Photographer’s Copyright Infringement Suit Allowed to Proceed Against Music Festival But Not Against Related Entities

Bayoh v. Afropunk Fest 2015 LLC, No. 18-cv-5820-DLC, 2020 WL 229978 (S.D.N.Y. Jan. 15, 2020).

In August 2015, plaintiff Photographer Mambu Bayoh was hired by Afropunk LLC to take pictures at its Brooklyn music festival. However, in 2018 Bayoh filed suit in the Southern District of New York claiming that Afropunk, its co-CEOs, and related entities infringed the copyrights for his photographs by exceeding the scope of permission that he granted. In response to the suit, Afropunk LLC moved for summary judgment, arguing that Bayoh’s copyright registrations were invalid, that Bayoh’s license to Afropunk was an unlimited license, and that Bayoh’s suit was barred by equitable estoppel and the statute of limitations. The court was unpersuaded by these arguments as it issued an opinion and order on January 15 denying the motion as to Afropunk LLC and its co-CEOs because it failed to present sufficient evidence to support its arguments at the summary judgment stage. However, the court granted summary judgment as to Bayoh’s claims against Afropunk Fest 2015 LLC and Afropunk Global Initiative because these two entities were uninvolved in the alleged infringement against Bayoh.

Signs Signs Everywhere There's Signs

...Signs of the times, that is.

1) Summer musical festivals now offer installment payment plans for tickets.
[NYTimes article.]

2) The New York Metropolitan Opera offers its famous Chagall paintings as collateral for a loan from JPMorgan Chase.
[NYTimes article.]

Cancelled Festival - Artist Damages?

News that this year’s Langerado Festival in Miami, Florida, was canceled due to "sluggish ticket sales" got OTCS thinking...when an artist agrees to perform at a festival, and the festival is thereafter cancelled, is the artist entitled to any damages? What are the terms of the performance agreement? Does it include a liquidated damages clause?

Last year OTCS contemplated that the over-saturation of festivals might lead to the inclusion of "exclusivity" clauses in festival agreements; in this year's economy, might an artist now demand a liquidated damages clause?

Festival Cross-MOJO

"AEG Live is helping brands tune up for its compilation of summer music festivals. The producers of the New Orleans Jazz and Heritage Festival, the Coachella Valley Music and Arts Festival, and Stagecoach Country Music Festival have decided to bundle those and nine more of its giant music events to allow marketers to buy across festivals."

How will these festivals retain their geo-cultural uniqueness?

[Beth Snyder Bulik, "Concert Producer Gives Brands Chance to Reach More Bands AEG Live Bundles Together Major Music Festivals So Marketers Can Save Money, Target Fans", 1/29/09 AdAge.com]

Oversaturation of Festival Headliners

A while back, OTCS proposed a novel idea for the future: festival exclusivity.

Perhaps the future isn't so far off. As Rolling Stone notes:

Promoters postponed New Jersey’s Vineland Festival before even putting it on sale, and Coachella in late April was attended by 160,000 fans, according to reports, compared to 180,000 last year. Many of this summer’s major festivals have the same headliners — such as Jack Johnson at Coachella, Bonnaroo, All Points West and Outside Lands — and they may be losing their distinctiveness. “There’s always a saturation point for everything,” says Chuck Morris, the AEG Live promoter who is producing the July 19th-20th Mile High Music Festival in Denver, with Petty and DMB.

If and when you see such a clause, shoot us an e-mail.

Festival Exclusivity?

With the announcement that the Radiohead-and-Jack-Johnson-combo are headlining TWO festivals this summer, is it possible that -- notwithstanding the geographic distance between San Francisco and Jersey City, NJ -- in the future the festival industry will begin including EXCLUSIVITY CLAUSES in their head-liner agreements?

While it may be true that festivals on complete opposite sides of the continent will attract different audiences, is something of the festival's aura (and uniqueness, at the least) lost by having the same act(s) headline multiple festivals? Does it harm ticket sales to either festival?

The situation is distinguishable from an event like Live Aid because here the events are not under the same banner and ostensibly have separate promotors and vendors.