Everyday I'm Hustlin' Lawsuit Against LMFAO Survives

Roberts v. Gordy, No. 13-24700 (S.D. Fla. dated Feb. 5, 2015).

Performer Rick Ross brought this action against the group LMFAO over use of "Everyday I'm Hustlin'" / "Everyday I'm Shufflin'"  in defendant's song Party Rock Anthem.  LMFAO moved to dismiss on the pleadings plaintiff's copyright and trademark infringement claims.  The Court denied the motion, finding at this stage of the proceedings, plaintiff's allegations were sufficient.  Whether the phrase was copyrightable, or the works were substantially similar, were not appropriate for a motion on the pleadings as those issues would require a fact intensive inquiry.  Similarly, a factual inquiry was required on the trademark claim as to whether the phrase had acquired distinctiveness/secondary meaning.

Iggy Azalea Granted Preliminary Injunction To Prevent The Posting Of Early Recordings

Kelley v. Primco Management, Inc., No. 14-cv-07263 (C.D. Cal. Jan. 12, 2015).

Pop star Iggy Azalea obtained a preliminary injunction based on claims that Defendants misappropriated the contents of her computer and began releasing infringing songs and music videos.  Defendants claims that they had authority to use Azalea's name, likeness and various intellectual property assets pursuant to a Recording Agreement.  Azalea claimed that the document was forged, and that was the key issue before the Court because no party disputed that Defendants had exploited Azalea's copyrights, trademarks and right of publicity.  The Court held an evidentiary hearing and discussed the evidence presented on whether the document was forged.  It concluded that, even though there was sharply conflicting testimony, Azalea had at the very least raised serious questions about the validity of the agreement, and therefore had raised serious questions going to the merits of her claims which were enough to grant a preliminary injunction.  The court then considered the factors necessary for a preliminary injunction -- likelihood of success on the merits, threat of irreparable harm, balancing the equities, and the public interest -- and found that an injunction was warranted.  Azalea was ordered to post a $20,000 bond.

Suit Against Kanye West Dismissed On "De Minimis" Grounds

Steward v. West, No. CV 13-02449 (C.D. Cal. Aug. 14, 2014).

In this copyright infringement action against Kanye West et al concerning a sample, the Court granted defendants' Rule 12(c) motion for judgment on the pleadings.  On the motion, the Court considered the sound recordings and held that, while plaintiff's sound recordings were sufficiently original to be protectable, defendants' copying was de minimis.  "The result of these distortions and the short length of the samples is that the average audience would not recognize plaintiffs’ Song in any of Defendants’ songs without actively searching for it. In the Ninth Circuit, digital sampling is de minimis when 'the average audience would not recognize the appropriation.'"  Accordingly, the copyright infringement (and dependent contributory liability claims) were dismissed.

No Proof of Famousness - Dilution Sum. Judgment Denied

Irby v. Thompson, No. 05 Civ. 9935, NYLJ 6/5/09 "Decision of Interest" (S.D.N.Y. May 29, 2009) (Swain, J.)

Action arists out of the alleged use and dilution of the mark "Hi-Five" by defendants via the production, marketing, and distribution of recordings under the "Hi-Five" name without the consent of former "Hi-Five" bank members (plaintiffs). Plaintiff's second motion for summary judgment denied.

Dilution, 15 U.S.C. 1125(c). Dispute as to whether the mark "Hi-Five" is famous. Plaintiffs provided no evidentiary proffers to establish the mark's fame other than information contained in documents purporting to be pritntouts from the website of the RIAA, for which plaintiffs failed to proffer the necessary foundational support and authentication pursuant to Fed. R. Evid., Art. VIII. Therefore, plaintiffs failed to carry their burden of demonstrating that the "Hi-Five" mark is famous as a matter of law. (The Court expressly decided, fn. 6, that the purported RIAA records were not subject to judicial notice pursuantt o Rule 201 of the Fed. R. of Evid.)

Failure to Prosecute, Fed. R. Civ. P. 41. The Court directed plaintiffs to "show cause" as to why Plaintiffs' claims against all defendants other than a media marketing and distribution business (that allegedly marketed and distributed the recordings in question) should not be dismissed for failure to prosecute.

Summary Judgment. In denying Plaintiffs' second motion for summary judgment, the court held that "No further dispositive pre-trial motions will be entertained."