Record Label Not Subject To Personal Jurisdiction In New York

Gordon v. Chambers, et al. 1:20-cv-00696 (E.D.N.Y. Jan. 29, 2021) 

A New York federal court dismissed copyright infringement claims against the record label TenThousand Projects, LLC based on a lack of personal jurisdiction. Plaintiff Seth Gordon’s (“Yung Gordon”) asserted infringement claims arising out of the introductory segment of rapper Tekashi 6ix9ine’s song “Stoopid”, which allegedly used the plaintiff’s radio drop without authorization. Plaintiff argued that Tekashi’s origin in New York and his New York lawyer, who represented him regarding matters with the record label, gave proper jurisdiction to a New York court. The Court disagreed. Interpreting N.Y. C.P.L.R. § 301 and 302 to determine the personal jurisdiction issue, the court found that the relationship between the record label and the New York rapper did not create a basis for personal jurisdiction, as the contract between the parties was grounded in California. The representation of a New York lawyer did not qualify as sufficient enough, in addition to the failure to meet the state’s long-arm statute. Therefore, the Eastern District of New York ruled in favor of the Defendant’s motion to dismiss the case as against the label based upon a lack of personal jurisdiction.

Case Against Taylor Swift Over Lyrics Continues

Hall v. Swift, No. CV 17-6882-MWF (ASx), 2020 U.S. Dist. LEXIS 165214 , 2020 WL 5358390 (C.D. Cal. Sep. 2, 2020)

Sean Hall and Nathan Butler, who own the copyrights to the 2001 song “Playas Gon’ Play” by 3LW, filed a copyright infringement action against Taylor Swift and her label. Hall and Butler allege that Swift copied their lyrics in the chorus of her song “Shake it Off.” The allegedly similar lyrics are Taylor Swift’s: “Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate,” and Hall’s and Butler’s: “Playas, they gonna play / And haters, they gonna hate / Ballers, they gonna ball … .”

In 2018, the US District Court of Central California originally granted Defendant Swift’s motion to dismiss on the grounds that plaintiffs’ lyrics lacked sufficient originality to enjoy copyright protection. Hall and Butler appealed the dismissal and in 2019, the 9th Circuit Court of Appeals reversed the dismissal and denied Taylor Swift’s motion to dismiss because the plaintiffs sufficiently plead their case of originality of the lyrics and could not be decided as a matter of law at this point.

On September 2, 2020, the case returned to the US District Court and Swift’s motion to dismiss was denied. The court refused Swift’s Merger Doctrine argument that the idea, people are going to do whatever they are going to do, can only be expressed in one way because at this stage, the court cannot conclude as a matter of law that the Merger Doctrine applies to this action.

The court further disagreed with Swift that the combination of words, playas/players playing along with hatas/haters hating, is an arrangement of unprotectable elements because there are at least two, and perhaps as many as nine, creative choices that Swift copied, precluding dismissal at this point.

Lastly, the court was not persuaded by Swift’s argument that there was only a narrow range of available creative choices so that the works would have to be virtually identical to be substantially similar because at this stage of the lawsuit, the court is not ready to determine the range of creative choices available. The case will proceed to trial.

No Proof Of Access To Plaintiff's Songs Dooms Copyright Infringement Claim

William Smith et al. v. Abel M. Tesfaye (“The Weeknd”) et al. 2:19-cv-02507 (C.D. Cal. July 22, 2020)

A Los Angeles federal court has ruled for The Weeknd against claims that his track “A Lonely Night” was copied from “I Need to Love” by a trio of British musicians. The court expressed that there was no showing by Plaintiffs that The Weeknd had access to their song or that their works were substantially similar. The Complaint alleges claims for: (1) direct copyright infringement (against all defendants); (2) contributory copyright infringement (against all defendants); (3) vicarious copyright infringement (against all defendants); (4) declaration of authorship/ownership; (5) accounting - declaratory relief; (6) constructive trust - declaratory relief; and (7) unjust enrichment. In their Motion for Summary Judgment, Defendants argued that Plaintiffs’ did not have any evidence that Defendants had access to Plaintiffs’ song and because the protectable elements in “I Need to Love” are not substantially similar to “A Lonely Night.” In an opinion issued on July 22, 2020, the Court of the Central District of California granted Defendants’ Motion for Summary Judgement. The Court ruled that Plaintiffs were unable to sufficiently establish genuine issues of material fact regarding the elements of access and substantial similarity. The Court said that it found no evidence those involved with the creation of “A Lonely Night” had any access to the song “I Need to Love”. Also, the lyrics in the two songs are not similar. Therefore, the Court concluded there was no reasonable inference for anything more than a “bare possibility” that Defendants accessed “I Need to Love. After discovery Plaintiffs still had no evidence of any license. Without evidence of a license, Plaintiffs’ state law claims fail as a matter of law. Additionally, without evidence of a license, Plaintiffs’ state law claims lack the “extra element” required to avoid the Copyright Act’s preemption provision. The Court thus ruled in favor of summary judgement for Defendants on Plaintiffs’ state law claims. Since Plaintiffs failed to establish genuine disputed issues of material fact concerning Defendants’ access to Plaintiffs’ musical composition or that Defendants’ musical composition is substantially similar to Plaintiffs’ work in its protectable elements, the Court ruled in favor of summary judgement for the Defendants on all issues.

Sample Case Against Jay-Z and Timbaland Dismissed For Lack of Specificty

HINES V. ROC-A-FELLA RECORDS, LLC No. 19-CV-4587 (JPO), 2020 WL 1888832 (S.D.N.Y. Apr. 16, 2020)

Plaintiff Ernie Hines coauthored the soul single “Help Me Put Out The Flame” in the 1960s. Hines alleged that the sample from that song was used in two hip-hop songs without permission. Hines brought suit against four major record labels, as well as prominent artists Jay- Z and Timbaland. The court granted Defendant’s motion to dismiss. Defendants argued that Hines’s complaint did not specify the material from his song was copied in “Paper Chase”, co- authored by Jay-Z and Timbaland, or “Toe 2 Toe” which was authored by Timbaland. The Court agreed with Defendants that the complaint only contained broad allegations of similarity. Defendants also sought dismissal on grounds that the complaint failed to allege “whether and when the copyright ... was registered pursuant to statutory requirements.” The Court rejected the Defendants motion to dismiss on these grounds. However, the Court ruled in favor of Defendants’ motion to dismiss based on lack of specificity. The court also found that service of process had not been properly completed. Leave to amend was conditioned on Hines’s payment of the costs and attorney’s fees incurred by the Record Label Defendants in filing and defending their motions to dismiss.

Absence of Registration Dooms Copyright Case Against Ricky Martin; 1st Cir.

CORTÉS-RAMOS V. MARTIN-MORALES No. 19-1358, 2020 WL 1847072 (1st Cir. Apr. 13, 2020)

Luis Adrian Cortes-Ramos sued Rickey Martin, alleging violations of federal copyright law and Puerto Rico laws. Plaintiff alleged that Ricky Martin’s music video was similar to Plaintiff’s. The district court dismissed Plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(6). The First Circuit affirmed in part and vacated in part the decision of the district court. The Court held that the district court was correct in holding that the complaint did not state a proper copyright claim by not alleging registration. However, the district court erred by dismissing the complaint with prejudice because plaintiff had otherwise alleged a copyright claim and on remand the court should consider whether plaintiff could supplement his allegations concerning registration.

California Common Law Copyright Win For IHeartMedia

PONDEROSA TWINS PLUS ONE V. IHEARTMEDIA, INC. No. 16-CV-05648-VC, 2020 WL 3481737 (N.D. Cal. Jun. 26, 2020).

Plaintiff, Spicer, filed a complaint claiming that IHeartMedia improperly made use of Spicer’s sound recordings. The claim argued that Defendant committed common law copyright infringement under section 980 of the California Civil Code. The court dismissed all of the Spicer’s claims with leave to amend and granted Defendant’s motion to dismiss. There was no indication that common-law copyright in the 1960s included preventing someone from playing a sound recording publicly. The Court also mentioned that regardless of the common law copyright laws that existed at the time, Spicer lost rights to the recordings once the recordings were published. The Court ruled that the alleged infringement of public-performance copyright did not exist.

Termination Rights Class Action Against Sony Music Entertainment to Proceed

Johansen v. Sony Music Entertainment Inc., No. 19-cv-1094-ER, 2020 WL 1529442 (S.D.N.Y March 31, 2020).

On February 5, 2019, musicians David Johansen, John Lyon, and Paul Collins (collectively, “Plaintiffs”) filed a copyright infringement and declaratory judgment class action against Sony Music Entertainment based on Sony’s continued exploitation of the Plaintiffs’ copyrighted sound recordings despite being served with termination notices.  On June 11, 2019, Sony filed a motion to dismiss the action for failure to state a claim because the Plaintiffs’ termination notices are untimely, deficiently identify the grants being terminated, deficiently identify the dates of execution of the grants, and that these errors are not harmless so the notices are invalid. Addressing Sony’s assertions, the court determined based on the record before it that it is entirely plausible that Johansen’s and Lyon’s notices were timely, and that Collins’ untimeliness was due to a “scrivener’s error,” which would make it harmless error, so dismissing the suit without more information would be inappropriate.  Moreover, the court determined that the Plaintiffs provided sufficient information about the sound recordings in issue to overcome omissions of details about the grants being terminated, so “the general harmless error rule may apply.” As a result, the court denied Sony’s motion to dismiss. 

Termination Rights Class Action Against UMG Recordings to Proceed

Waite v. UMG Recordings, Inc., No. 19-cv-1091-LAK, 2020 WL 1530794 (S.D.N.Y March 31, 2020)

In 2018, John Waite and Joe Ely filed a copyright infringement class action against UMG Recordings based on UMG’s failure to stop marketing and selling sound recordings after being served with termination notices for such recordings. In response, UMG filed a motion to dismiss arguing that since termination rights do not apply to works for hire, whether a work was made for hire is a copyright ownership issue, and Plaintiffs claim to own the copyrights in issue, that the core of Plaintiffs’ claims revolve around ownership. Based on this, Defendants asserted that the presence of work for hire provisions in the Plaintiffs’ recording contracts signed in the 1970s and 80s alerted them of ownership issues at the time of signing, and that the statute of limitations has therefore run on the Plaintiffs’ claims. Refuting this argument, the court stated that while ownership is relevant to Plaintiffs’ claim, “the gravamen of plaintiffs’ claim is defendant’s refusal to recognize their termination rights,” and to apply a three year statute of limitations to claims involving termination rights, which do not vest until 35 years after copyright assignment, “would thwart Congress’s intent and eviscerate the right itself.” As a result, the court denied Defendant’s motion to dismiss as to all claims, except for those relating to declaratory relief, copyrights transferred by third parties, and sound recordings made prior to January 1, 1978.

9th Circuit Upholds Attorneys’ Fees Award to Universal Music Group in Copyright Infringement Suit

Apps v. Universal Music Group, Inc., Nos. 18-15889, 18-15987, 2020 WL 1514971 (9th Cir. March 30, 2020)

On March 30, 2020, the 9th Circuit affirmed a district court award of $41,955 in attorneys’ fees and $946.23 in costs to Universal Music Group Inc. (“UMGI”) in a copyright infringement suit involving the John Newman Song, “Love Me Again.” The Plaintiff, Alissa Apps, sued Newman, and other parties, including “UMGI,” which is a “holding company that does not create, develop, perform, market, sell, distribute, or exploit recorded music or musical compositions.” After awarding UMGI summary judgment, the district court awarded UMGI attorneys’ fees and costs incurred after the Plaintiff deposed UMGI’s in-house counsel, which revealed that UMGI “has no business operations” and “does not exploit music in any way,” thus rendering UMGI an improper defendant. On appeal, the 9th Circuit deemed that the district court’s reasoning under the Fogerty and Kirtsaeng factors for awarding attorneys’ fees was not an abuse of discretion, and thus it affirmed the fees and costs award.

9th Circuit Affirms Led Zeppelin Trial Verdict That "Stairway To Heaven" Is Not An Infringement

Skidmore as Trustee for Randy Craig Wolfe Trust v. Zeppelin, No. 16-56067, No. 16-56287, 2020 WL 1128808 (9th Cir. Mar. 9, 2020) (en banc)

In an en banc decision, the 9th Circuit affirmed the Central District of California’s post-jury trial judgment in favor of Led Zeppelin in a suit alleging that Led Zeppelin’s song “Stairway to Heaven” infringed the song “Taurus” written by guitarist Randy Wolfe of the band Spirit.

In Part I of the en banc decision, the court held that the 1909 Copyright Act controlled the court’s analysis because the allegedly infringed song “Taurus” was registered prior to the 1976 Copyright Act’s enactment. As a result, it was not error for the lower court to refuse to admit the sound recordings of “Taurus” to evidence.

In Part II, the court held that proving copyright infringement here required a showing that (1) the plaintiff owned a valid copyright for “Taurus,” and (2) Led Zeppelin copied protected elements of “Taurus,” which further required a showing of both copying and unlawful appropriation by Led Zeppelin.

In Part III, the court concluded that as it pertained to access and confusion with substantial similarity, the lower court’s exclusion of the “Taurus” sound recordings was moot because the jury found access regardless.

Next, in Part IV the court addressed the following issues regarding the district court’s jury instructions: (1) “the failure to give an inverse ratio instruction”; (2) “the sufficiency of the court’s originality instructions”; and (3) “the failure to give a selection and arrangement instruction.” In addressing these issues, the court held that (1) an inverse ratio was not required for substantial similarity; (2) the district court’s originality instructions were proper; and (3) failure to give selection and arrangement instruction receives plain error review, there was no plain error by the district court, there was no error by the district court because the plaintiff’s case did not involve a selection and arrangement theory at trial, and the district court’s instructions as a whole were fair and adequate as to plaintiff’s argument of extrinsic similarity between the songs.

Finally, in Part V the court held that the district court’s trial time limits, response to a jury question, admission of expert testimony, and non-award of attorneys’ fees was not error.

K. Perry Granted Judgment as a Matter of Law in “Dark Horse” Copyright Infringement Suit

Gray; et al. v. Perry; et al., No. 2:15-cv-05642-CAS-JCx, 2020 WL 1275221 (C.D. Cal. Mar. 16, 2020)

The U.S. District Court for the Central District of California granted a renewed motion for judgment as a matter of law filed by Katy Perry, Juicy J, and others involved in producing Perry’s song “Dark Horse” (“Defendants”) after a jury returned a verdict in favor of Plaintiffs in August 2019. The trial focused on Plaintiffs’ claims that Perry’s song “Dark Horse” infringed an 8-note ostinato in their song “Joyful Noise.” Applying the 9th Circuit’s “extrinsic test,” the court held that it could not conclude as a matter of law that the “allegedly original individual elements” of the ostinato in question were independently protectable. Additionally, the court held that the 8-note ostinato from “Joyful Noise” is not a sufficiently original combination of those individually unprotectable elements and thus the Plaintiffs failed to satisfy the “extrinsic test.” Furthermore, the court determined that even if the ostinato combination were protectable, under the Led Zeppelin case recently decided by the 9th Circuit, to find infringement the allegedly infringing ostinato in “Dark Horse” and the 8-note ostinato from “Joyful Noise” would have to be “virtually identical,” which the court found they were not. As a result, the court concluded that the Defendants were entitled to judgment as a matter of law on the copyright infringement claim.

Use of Sample in Rap song Held Fair Use by Second Circuit

Estate of James Smith v. Graham, No. 19-28, 2020 WL 522013 (2d Cir. Feb. 3, 2020).

On February 3, 2020, the Second Circuit issued a summary order affirming a finding by the Southern District of New York that Drake and Jay-Z’s sampling of the jazz song “Jimmy Smith Rap” in their song “Pound Cake” was fair use. The court found three of the four fair use factors weighed in favor of fair use. As to factor one, the court found that the use was transformative because “Pound Cake” sent a message that was counter to that of “Jimmy Smith Rap,” and “Pound Cake” is a seven-minute song featuring only thirty-five seconds of “Jimmy Smith Rap” in its beginning. As to factor two, the court stated that it is of “limited usefulness” where the use is transformative.  The court also found the third factor weighed in favor of fair use because the amount used by Drake and Jay-Z was reasonable in sending their transformative message. Finally, the court deemed that “Pound Cake” did not usurp the market for “Jimmy Smith Rap” because there is no evidence that an active market for it exists. As a result, the sampling was fair use.

Kanye West Obtains Partial Judgment in “The Life of Pablo” Sampling Lawsuit

Andrew Green et al. v. Kanye West et al., No. 2:19-cv-00366 (D.S.C. Jan. 17, 2020) [Doc. 59].

In January of 2016, a recording of one of the Plaintiffs praying was posted to Instagram. Shortly thereafter, Kanye West used an audio sample from the prayer recording in his Grammy nominated song, “Ultralight Beam,” from his certified platinum album, “The Life of Pablo.” The Plaintiffs filed suit against Kanye and various recording studios for several claims under the Copyright Act, the Digital Millennium Copyright Act (“DMCA”), and state law. The parties are still in dispute over whether Kanye received permission to use the sample. On January 17, 2020, a federal judge in the District of South Carolina issued an order granting Kanye’s motion to dismiss one Plaintiff’s copyright claims because she is not a registered owner of the copyrighted sample at issue. The order also granted Kanye’s motion to dismiss the Plaintiff’s quantum meruit claim as it is preempted by the Federal Copyright Act. Additionally, the order denied Kanye’s motion to dismiss Plaintiff’s claims for statutory damages, attorney’s fees, and falsifying copyright management information under the DMCA because genuine issues of material fact exist as to these issues.

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.

District of Massachusetts Grants Prince’s Estate Permanent Injunction Against YouTuber Who Repeatedly Posted Live Prince Performances

Comerica Bank & Trust, N.A. v. Habib, No. 17-12418-LTS, 2020 WL 58527 (D. Mass. Jan. 6, 2020).

Prince’s estate alleged that Defendant committed copyright infringement and violated the federal civil anti-bootlegging statute by recording and posting several videos of live Prince concerts to YouTube. In response, Defendant argued fair use, which failed as the District of Massachusetts found that all four factors weighed in favor of Prince’s estate.

Defendant also moved for summary judgment based on various other defenses, including non-commercial use and good faith use, which the court denied as well.

Moreover, Prince’s estate moved to increase the award of statutory damages under the Copyright Act based on Defendant’s willful infringement. The court granted this motion as Defendant’s continued posting of similar videos and insistence that “every artist encourages people to post videos,” which showed disregard for musician rights.

As to Plaintiff’s anti-bootlegging claim, the Court discussed how the statute is rarely litigated and noted that the question of “whether [the statute’s] protections are descendible and may be invoked by the estate of a once-protected performer” has never been addressed. The court provided Plaintiffs the option to file a supplemental brief on the question if it wishes.

The court also denied Defendant’s defense that Prince’s broad statement that “nobody sues their fans . . . fans sharing music with each other, that’s cool” acted as an implied license to post the videos. As such, the Court granted Plaintiff’s motion for a permanent injunction and scheduled a damages trial for March 2, 2020. [JM]

Biggie's "Party & Bullshit" Fair Use of 1960s Song; 2nd Cir.

Oyewole v. Ora, No. 18-1311 (2nd Cir. 9/4/19)

The Second Circuit affirmed (in a summary order) the lower court’s conclusion that the Notorious B.I.G.’s 1993 song Party And Bullshit was fair use when it sampled the plaintiff’s 1968 song, whose lyrics included the phrase “party and bullshit”

NWA Infringement Claims Trimmed To Composition Only, But Court Does Not Adopt 3-Year Damages Limitation

Mitchel v. Capitol Records, 3:15-CV-00174-JHM (W.D. Ky. Dec. 18, 2017).

Plaintiff alleges infringement of his 1977 song in the 1989 NWA rap song "Striaght Outta Compton."  Defendants made two motions for partial summary judgment.  First, the defendants argued that plaintiff is precluded from recovering any damages for infringements that occurred more than three years prior to his filing of the law suit, as barred by the statute of limitations.  Second, defendants argued that plaintiff did not own the sound recording for his song (only the musical composition) and thus could not recover for any infringement of the sound recording.  The former motion was denied, and the latter was granted.

As to the statute of limitations defense, the Court held that notwithstanding the Supreme Court's Petrella decision, Sixth Circuit precedent "defines accrual of a copyright claim as occurring when the plaintiff “knew of the potential violation or is chargeable with such knowledge.”  Continuing, "When the [Petrella] opinion is read in conjunction with footnote 4, which acknowledges that most circuits will modify this rule so as to focus on the date of 'discovery' as opposed to the date of 'occurrence,' then Petrella reiterates what the Sixth Circuit already requires: that damages be limited to those claims for infringement that accrued within three years of the initiation of the suit, with accrual being determined by the rules of the 8 circuit (until the Supreme Court “passe[s] on the question')."  Because Plaintiff had presented evidence that his claim did not accrue until 2014 (when it was allegedly discovered), his claim was not time-barred.

As to the sound recording, the Court held that defendant had provided proof that plaintiff did not own the sound recording.  The plaintiff's evidence (e.g., a mechanical license agreement) at best established his ownership of the musical work/composition.

"Gimme Some Lovin'" Guitar Riff Claim Dismissed

Parker v. Winwood et al., No. 16-cv-684 (M.D. Tenn. 10/17/2017) [Doc. 99].

In a copyright infringement action concerning the guitar riff in the classic rock song Gimme Some Lovin' performed by the Spencer Davis Group, the Court granted the defendants' motion for summary judgment.  Plaintiff's song was governed by the 1909 Act, under which the general rule was that the publication of a work with proper notice was necessary to obtain statutory copyright protection.  The Court found that "Although Defendants proffer evidence that the work was distributed as a phonorecord prior to 1978, the Copyright Act specifically states that the distribution of phonorecords prior to 1978 is not considered a publication under copyright law. See 17 U.S.C. § 303. Even if the work-at-issue had been published, however, Plaintiffs would not be foreclosed from bringing an infringement suit so long as they made the requisite deposit. The right to sue is not destroyed for failure to make a prompt deposit after publication."  Accordingly, the motion to dismiss was denied.

Nonetheless, there were other basis to dismiss.  One defendant's motion to dismiss was granted for lack of personal jurisdiction -- he was not properly served, and had no minimum contacts with Tennessee.  As to the record label owner, after rejecting the argument that the plaintiff's lacked standing, the Court nonetheless found that the claim should be dismissed because the record label's sister company owned the rights to plaintiff's song!

Turning to the meat of the claim, the Court granted the defendant musicians summary judgment:

The Court finds no dispute of material fact still exists regarding whether Defendants had a “reasonable possibility” of access to Plaintiffs’ song before they created “Gimme Some Lovin’.” Specifically, the Court finds Plaintiffs have failed to meet their burden to show that there is a dispute regarding whether Defendants infringed Plaintiffs’ song between its release date on October 7, 1966 in the United Kingdom (ECF No. 64 ¶ 25) and the release date of “Gimme Some Lovin’” on October 28, 1966 (ECF No. 64 ¶ 25), or at any time before that date. Defendants presented evidence in the form of affidavits that the members of The Spenser Davis Group had not heard Plaintiffs’ song prior to creating "Gimme Some Lovin’.” (Mervyn Winwood Decl., ECF No. 57 ¶ 5; Stephen Winwood Dec., ECF No. 58 ¶ 4; Spenser Davis Decl., ECF No. 59 ¶¶ 3, 5.) The burden then shifted to Plaintiffs to set forth specific facts showing a triable issue of material fact. Plaintiffs only proffered inadmissible evidence to refute these facts Defendants set out in affidavit form. Plaintiffs also proffer no admissible evidence that Defendants infringed Plaintiffs’ song between its release and Defendants’ release, but rather contend it would have been possible. (ECF No. 64-6 at PageIDs 547-48.) Because Plaintiffs have failed to proffer any admissible evidence that establishes a genuine issue of material fact as to whether Defendants heard Plaintiffs’ song prior to creating or releasing “Gimme Some Lovin’,” the Court GRANTS summary judgment in favor of Defendants Steve Winwood and Kobalt (ECF No. 54)

Infringement Claim Dismissed In Country Music Spat Because No "Access"

Arnett v. Jackson, No. 5:16-cv-00872-D (E.D.N.C. Aug. 14, 2017) [Doc. 28].

A songwriter who claimed that his song "Remember Me" was infringed by country music star Alan Jackson's song "Remember When" had his copyright infringement claim dismissed under Fed. R. Civ. P. 12(b)(6) for failure to plausibly allege the defendant's access to the plaintiff's song.  The Plaintiff argued that Jackson had access to Remember Me because it was widely disseminated and sent to third-party intermediaries who knew Jackson.  But, the Court found that the fact that the plaintiff's song was available on the internet and that plaintiff had sold the song (without an allegation of commercial success) did not create an inference of access.  Further, the connections between the alleged third-party intermediaries was not close enough, and the plaintiff did not sufficiently allege how the songs were sufficiently similar in order to assume access.

Former Jefferson Starship Founder Can Sue Over Band Name

Chaquico v. Freiberg, 2017 US Dist LEXIS 128167 [ND Cal Aug. 11, 2017, No. 17-cv-02423-MEJ].

A California Federal Judge determined that the band ‘Jefferson Starship’ lost the right to use their name when co-founder Paul Katner died in 2016. The band name had been contractually retired in 1985 under an agreement, after Katner and various other founders left the band. In 1993, Craig Chaquico, whom brought the suit, agreed to allow Katner to use the name for a new band under a new agreement. The Judge determined that Katner’s death terminated the ’93 agreement and the band’s new members as well as older founders were barred from using the name as they were not parties to the agreement. While the Judge dismissed Chaquico’s Lanham Act claims that the former band members’ imagines in marketing creates confusion, she is allowing the breach of contract claim to proceed.