Rapper Can't Use "Rolls Royce" Name Or Images

Rolls-Royce Motor Cards v. Davis, No. 15-0417 (D.N.J. Mar. 11, 2016).

On an unopposed motion for default judgment, the Court entered a permanant injunction restraining the defendant rapper from using the name "Rolls Royce Rizzy" and using Rolls Royce imagery.  Plaintiff brought claims for trademark infringement, unfair competition, false designation of origin, and trademark dilution under the Lanham Act, and was awarded default judgment on those claims.  However, Plaintiff was not awarded default judgment on its claim for unfair competition under New Jersey common law.

Default Judgment Entered In Grooveshark Case

Arista Records v. Tkach et al., No. 15-cv-3701 (SDNY Dec. 11, 2015).

The Court granted Plaintiff record companies a default judgment on their claims for copyright infringement, trademark counterfeiting, unfair competition, and cybersquatting claims based on the websites "grooveshark.io" and "grooveshark.pw".  The plaintiffs had obtained a preliminary injunction, and the defendants did not respond to either the injunction or the complaint in any manner.  The Court entered a judgment permanently enjoining Defendants' use of the "Grooveshark" marks and the infringing domains.  Plaintiff UMG was also awarded $4 million for the trademark infringement, $400,000 for the cybersquatting, and statutory damages on the copyright claim of over $13 million.  Plaintiffs were also granted their attorney's fees, to be calculated on a later submission.

BMI May Recover More Than Minimum Statutory Damages After Nightclub's Default

BMI v. Crocodile Rock Corp., No. 14-3891 (3d Cir. Oct. 30, 2015) (non-precedential opinion).

The Third Circuit held that performance rights organization BMI could recover a default judgment for more than the minimum statutory damages available under the Copyright Act.  The Court found that so long as the award falls within the limits set by statute, the trial court's discretion and sense of justice were controlling in setting the amount of the award, even in the case of a default judgment and where the defendant's alleged profits are less than the amount awarded.  Accordingly, the $35,000 award of statutory damages was affirmed.

Songwriter's Widow Sanctioned; Default Judgments In Favor Of Assignee Not Vacated

Bridgeport Music, et al. v. Smith, et al., No. 12-1523 (6th Cir. May 1, 2013).

This action is based on default judgments entered in 2004 that plaintiff obtained against defendants for copyright infringement of the 1974 song "You’re Getting a Little Too Smart" ("Smart").  Plaintiff was the assignee of the songwriter's rights in the song.  In 2011, the songwriter's widow moved to vacate the default judgments, arguing that she, not Plaintiffs, was the legal owner of the copyright by operation of law at the time the lawsuit was filed.  The district court denied the motion, as well as her motion for reconsideration, and the widow appealed.  The Sixth Circuit affirmed, and granted Plaintiffs motion for damages and costs.

After stating the relevant facts, the Court began its analysis by determining who was entitled to what copyright interests in “Smart” under the renewal provisions of the Copyright Act:  "(1) Based on their assigned interest in the initial copyright, Plaintiffs had the right to sue for infringing acts occurring up through December 31, 2002, see 17 U.S.C. § 501(b) ..., and they had three years after that date to bring a cause of action. ... (2) Because Tilmon died prior to the renewal term, Tilmon’s contingency interest in the renewal copyright passed to Tilmon-Jones and Tilmon’s children, on January 1, 2003."

Next, the Court considered whether the widow, as a non-party to the litigation in which the judgments were entered, had standing.  The Court determined she did not have standing to bring a Fed. R. Civ. P. 60(b) motion.  Rule 60(b) provides in pertinent part that a “court may relieve a party or its legal representative” from a final judgment.  Nor was the widow in privity, or were here interests "strongly affected."

The Court also found that the widow's motion to vacate the judgments was untimely under Fed. R. Civ. P. 60(c)(1), which requires such motion be made within a reasonable period of time.  She did not file the motions until 6 years after constructive notice of the judgments (due to recordation of the judgments with the Copyright Office), and 7 years after they were entered.  The motions also were barred by a release the widow signed in another action.

Lastly, the Sixth Circuit sanctioned the widow and her counsel, pursuant to Fed. R. App. P. 38 and 28 U.S.C. § 1912.  "The conduct of Tilmon-Jones and her counsel was objectively and patently meritless and a waste of judicial resources. Tilmon-Jones maintains that her appeal is not frivolous because the question of whether a nonparty has standing under Fed. R. Civ. P. 60(b) was not obviously without merit. This may be true, but it does not obviate the fact that her appeal was utterly without merit because it was untimely and barred by a release. We find that this appeal is frivolous and that sanctions are appropriate."

$6.6 Million Copyright Infringement Judgment In Lyrics Website Case

Peermusic III v. Live Universe, Inc., No. 2:09-cv-06160 (C.D. Cal. filed Oct. 9, 2012) [Doc. 215].

Defendants operated song lyric websites that infringed copyrights held by a group of music publishers.  The company was run by the co-founder of MySpace Inc.  The Court granted a default judgment to plaintiffs and awarded statutory damages in the sum of $12,500 per each of the 528 songs shown to be infringed for a total of $6,600,000.  Plaintiffs were also awarded their attorneys fees.

Kudos to my former colleagues Paul Fakler and Ross Charap, who represented Plaintiffs.

Artist Has Label's Claims Dismissed; Judgment On Counterclaims

Alistair Records, Inc., v. Adams, 603695/09, NYLJ 1202497369670, at *1 (Sup., NY, Decided May 20, 2011).

Defendant recording artist's motion for an order amending the caption to reflect the correct name of plaintiff record label, "Alistair Records, LLC" is granted. Defendant artist's motion for entry of a default judgment on his breach of contract counterclaim against plaintiff label is granted ($6,000). Artist's motion for entry of a default judgment on his counterclaim for rescission is denied and that counterclaim is severed and dismissed. Artist's remaining counterclaims continue.

Artist's motion for summary judgment dismissing the complaint (seeking injunction and $750,000) is granted. Record label failed to submit any evidentiary facts to controvert the claims in artist's motion.

Default Judgment Entered Against Distributing Agent Originally Appearing Thru Counsel

Jeepster Recordings Ltd. v. World's Fair Label Group Inc., 09 Civ. 2155, NYLJ 3/2/10 "Decision of Interest" (S.D.N.Y. decided Feb. 22, 2010).

Plaintiff and Defendant entered into an agreement under which Defendant would become Plaintiff's North American distribution agent. Plaintiff alleges that Defendant failed to meet is distribution, accounting, and sales obligations, and withheld contractually obligated royalties owed to Plaintiff.

After the action commenced, Defendant's counsel withdrew and Defendant did not obtain alternative counsel. Thereafter, Plaintiff moved for default judgment seeking to recover monies that were allegedly improperly retained in breach of the distribution agreement.

"In this case, the allegations in the Complaint, coupled with [Defendant]'s failure to retain counsel and prosecute the case, support the entering of a default judgment and a finding that Defendant is liable for breach of the distribution agreement. "

Continuing:

"Although [Defendant] initially appeared, it has failed to retain counsel and has indicated that it does not intend to. As a corporate entity, [Defendant] can only appear through counsel. [Cit. om.]. The failure to retain counsel thus constitutes a failure to appear for further proceedings. Even though default judgments are generally disfavored, [Defendant]'s conduct indicates that it had the capability to defend itself, and its withdrawal and cessation of prosccution was willful and voluntary. While [Defendant] filed an answer and conducted some discovery, it did not raise any meritorious defenses. Finally, a denial of default judgment would prejudice [Plaintiff] because it has actively pursued its claims to recover monies under its agreement with [Defendant], and has not contributed to the default."

Ne-Yo Default

A Los Angeles Superior Court judge has ordered a concert promoter to pay R&B singer-songwriter Ne-Yo $700,000 stemming from a lawsuit filed earlier this year. (OTCS post.) It appears that the defendant Rowe Entertainment defaulted by never answering the complaint.

Spoliation in RIAA P2P Case (D.Ariz)

August 29, 2008, Order striking defendant's answer and granting default judgment to plaintiffs in RIAA P2P case Atlantic v. Howell, No 06-cv-2076(D. Ariz.).

The basis of this order, and the sanction of granting default judgment to plaintiffs, was defendant file-sharer's repeated spoliation of evidence on his computer.