Copyright Suit Dismissed Against Beatles Company

Sid Bernstein Presents LLC v. Apple Corps Ltd. et al., No. 1:16-cv-07084 (S.D.N.Y. July 26, 2017)

The Court dismissed a copyright suit against the Beatles' Apple Corp. company, determining that Sid Bernstein Presents LLC – the company that currently owns intellectual property rights of a promoter who is credited with bringing The Beatles to the U.S. – did not have rights over footage from the band’s 1965 concert at Shea Stadium. The complaint alleged that Sid Bernstein Presents LLC retained copyrights to the footage and that The Beatles Company had infringed their copyright by allowing it to be used in Ron Howard’s “Eight Days a Week.” After reading through the contracts, the Judge determined that the language makes an admission that Sid Bernstein was not involved in the filming of the concert and was not the “author” of the footage for the purposes of copyright law.

"Rat Pack" Generic For Live Shows

TRP Entertainment v. Cunningham, No. 13-16754 (9th Cir. Feb. 16, 2016) [non-precedential].

The 9th Circuit held that the term "The Rat Pack" is generic in the context of live shows about or in tribute to members of the Rat Pack, therefore not identifying any particular producer of a Rat Pack tribute show.  Further, the lower court correctly ordered a disclaimer of the term "The Rat Pack" modifying the plaintiff's trademark registration pursuant to 15 USC 1119.

Film Festival Temporarily Enjoined From Screening Aretha Franklin Documentary

Franklin v. Nat'l Film Preserve, No. 15-cv-1921 (D. Colo. filed 9/4/2015) [Doc. 14].

The Court issued a temporary restraining order enjoining the Telluride Film Festival from screening a documentary film about Aretha Franklin, which consisted primarily of previously unreleased footage from a 1972 concert.  The deed granting the film producer rights in the footage required Ms. Franklin's consent to use the footage, which defendant did not obtain.

The Court found that Ms. Franklin has a strong interest in her rights of publicity, and to the use of her name/likeness.  She also had a federal statutory right to prevent bootlegging.  17 USC 1101(1).  The Court found that the film, which essentially recreated the entire concert experience, was not a fair use, and that a TRO would preserve the status quo.

New York Law On Photographing And Recording Concerts

In researching for an unrelated matter, I came across New York's Arts and Cultural Affairs Law § 31.01.  The law was enacted in 1983.  Imagine how it might apply today, with the abundance of iPhones and other smart-phones with image capturing and sound recording capabilities.

The statute prohibits, inter alia, the taking of photographs or making of sound recordings of any performance presented in a theater "without having first obtained the written consent of the management to do so."  Remedies for the management include bringing an action for an injunction, an accounting, or for damages resulting from or in respect of any photographs or sound recordings of any performance made without the consent required or resulting from or in respect of any distribution or attempted distribution of any such photographs or sound recordings or reproductions thereof.

Further, the statute provides that management shall have the right to request and obtain possession of photographic or sound recording devices until the conclusion of the performance.  Failure by any person admitted or seeking admission to a theatre in which a performance is to be or is being presented, refuses or fails to give or surrender possession of any photographic or sound recording device which such person has brought into or attempts to bring into such theatre without having first obtained the written consent of the management to do so, then the management shall have the right to remove such person therefrom or refuse admission thereto to such person, and shall thereupon offer to refund and, unless such offer is refused, refund to such person the price paid by such person for admission to such theatre. 

If such person refuses to leave such theatre after having been informed by the management thereof that possession of any photographic or sound recording device in such theatre without the written consent of the management is prohibited, then such person shall be deemed to be remaining in the theatre unlawfully, and in addition, the management shall have the right to maintain an action in trespass and for punitive damages against such person.  

The criminal penalties and civil remedies provided by the statute are without force or effect unless the management of the theatre shall have posted signs at the box office and at or near the audience entrance to the portion of the theatre wherein the performance is to be presented and printed in any program which may be furnished to the audience for such performance, stating in substance as follows: "WARNING The photographing or sound recording of any performance or the possession of any device for such photographing or sound recording inside this theatre, without the written permission of the management is prohibited by law. Offenders may be ejected and liable for damages and other lawful remedies."

There are no reported cases under this statute.

 

Green Day's Use Of Illustration During Concert Was Fair Use, But Attorney's Fees Denied

Seltzer v. Green Day, Inc. et al., No. 11-56573 [D.C. No. 2:10-cv-02103] (9th Cir. Aug. 7, 2013).

The 9th Circuits affirmed summary judgment in favor of the defendants, but vacated the attorney's fees award, in an artist's action alleging violations of the Copyright Act and the Lanham Act relating to the rock band Green Day's unauthorized use of an illustration ("Scream Icon") in the video backdrop of its stage show.

The Court found that use of the illustration in the video backdrop was a fair use under the Copyright Act: it was transformative, the illustration was a widely disseminated work of street art, the illustration was not meaningfully divisible, and the video backdrop did not affect the value of the illustration.  As to the trademark claims, the artist failed to establish any trademark rights.  In vacating the attorney's fees award under the Copyright Act, the Court found that even though defendant was successful on their fair use defense, the plaintiff did not act objectively unreasonably ("there is simply no reason to believe that Seltzer should have known from the outset that his chances of success in this case were slim to none.").

Bowery Presents Avoids Arbitration In Ticket Case

The Bowery Presents LLC v. Pires, No. 653377/2012, NYLJ 1202608931096, at *1 (Sup. Ct., N.Y. Co. decided June 24, 2013) (Bransten, J.S.C.).

Bowery Presents, a concert promoter, moved to stay arbitration that had been filed by the respondent ticket purchaser on the basis that Bowery Presents was not a party to an arbitration agreement with the respondent.  The Court granted the motion and stayed arbitration.

Bowery Presents had entered into a written License Agreement with Live Nation Entertainment, Inc. (d/b/a Ticketmaster) ("Ticketmaster") under which Ticketmaster was to act as Bowery's agent for the sale and distribution of tickets to entertainment events.   Bowery Presents was the promoter for a March 28, 2012 event to which the respondent purchased a ticket through the Ticketmaster website.  In order to purchase her ticket, Respondent was required to agree to the "Terms of Use" on Ticketmaster's website. The Terms of Use contained an arbitration clause: "Live Nation and you [user of ticketmaster.com and its related websites] agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted." 

In the arbitration, Respondent asserts a claim pursuant to §25.33 of the Arts and Cultural Affairs Law of the State of New York ("ACAL") to recover damages and injunctive relief arising from Bowery's alleged violations of §25.30(c) of the ACAL by employing a paperless ticketing system.  Respondent contended that Bowery violated ACAL §25.30(c) by employing a paperless ticketing system without providing the consumer the option of purchasing the tickets in a transferable form.  Respondent thus filed a demand for arbitration.  The issue was whether Bowery Presents, a nonsignatory to the arbitration agreement, could nonetheless be bound by the arbitration clause.

The Court found that Ticketmaster was Bowery's limited agent and, therefore, Bowery was not bound by the arbitration clause in the Terms of Use.  Moreover, the Court found that even if Ticketmaster did possess sufficient authority to bind Bowery Presents to an arbitration agreement, the plain language of the arbitration clause at issue bound only Ticketmaster and the ticket purchaser to arbitration, not Bowery Presents. 

Statute Of Limitations Limits Damages Claim Against Jay-Z; Concert Profits Questionable Damages

Fahmy v. Jay-Z, et al., 07-cv-5715-CAS (C.D. Cal. decided. Dec. 9, 2011) [Doc. 309].

Plaintiff brought this copyright infringement action concerning the song Big Pimpin'. The Court concluded that plaintiff may recover damages from any infringement only within three years prior to the filing of his lawsuit unless he can provide other bases for equitably tolling the statute. The Court, however, was unpersuaded by any of the three bases offered by plaintiff for why the statutory period should be equitably tolled. The mere fact that plaintiff lived in Egypt and speaks little to no English did not toll the statutory period. Alleged misrepresentations by the record label did not toll the statute. Lastly, the existence of a prior judicial action did not toll the statute. "Ultimately, plaintiff cannot avoid the fact that he admittedly knew that Big Pimpin’ allegedly infringed Khosara, Khosara by December 2000, more than six years prior to filing the present lawsuit."

The Court next turned to the question of whether Jay-Z’s concert revenues are properly considered direct or indirect profits resulting from his allegedly infringing performances of Big Pimpin’. Because the Court determined that this question presented a triable issue, the Court reserved judgment as to whether plaintiff is able to prove the requisite causal nexus.

'Beat It' to Promotor's Claims Against Jackson Estate

Allgood Entertainment, Inc. v. Dileo Entertainment Entertainment & Touring, Inc., et al., No. 09 Civ. 5377 (S.D.N.Y. opinion & order June 29, 2010).

"This case is about whether or not Michael Jackson, through his alleged manager Frank Dileo, agreed to perform a concert with the plaintiffs, AllGood Entertainment, Inc. and AllGood Concerts, LLC, and then later reneged on this agreement in order to perform a different concert with the defendants Anshutz Entertainment Group, AEG Live, LLC, and AEG Live NY, LLC. Plaintiffs allege breach of contract, promissory estoppel, and fraud by Frank Dileo and his management company, Dileo Entertainment and Touring, Inc., and allege tortious interference of contract on the part of Anshutz Entertainment Group and the other AEG entities; Plaintiffs also seek a permanent injunction. Both sets of defendants have moved to dismiss for failure to state a claim. For the reasons below, the tortious interference, fraud, and permanent injunction claims are DISMISSED."

Mosh Dancer Assumes Risk

"On the undisputed facts, plaintiff, an experienced concertgoer, assumed the risk of being struck by a fellow concertgoer when, although conscious that an aggressive type of moshing was in progress, he deliberately placed himself in proximity to it." Therefore, complaint against rock-club dismissed.

Schoneboom v. B.B. King Blues Club, No. 115632/06, 3/11/09 N.Y.L.J. "Decision of Interest" (Sup.Ct., N.Y. Co. decided Feb. 23, 2009)