Second Circuit Affirms Dismissal Of Untimely Copyright Claims Against 50 Cent

Simmons v. Stanberry, No. 14-3106-cv (2nd Cir. Jan. 15, 2016).

Plaintiff, who alleged he was the exclusive licensee of a hip-hop beat later sold to rapper 50 Cent and successfully exploited by him, was too late in filing a lawsuit against the licensor and 50 Cent, says the Second Circuit in affirming dismissal of Plaintiff's copyright claims.  Plaintiff was aware of the dispute of defendants' right to exploit and use the beat, and of the alleged infringement, but waited more than three years to file suit.  Relying upon Kwan v. Schlein, 634 F.3d 224 (2d Cir. 2011), the Court held that notwithstanding the occurrence of allegedly infringing acts within three years of filing the action, the suit was nonetheless barred by the Copyright Act’s three-year statute of limitations, 17 U.S.C. § 507(b).  Because Plaintiff's ownership claim was time barred, he could not revive the time-barred claim of ownership of a copyright interest by relying on the defendants’continued exploitation of the copyright within three years of his filing suit.

Beyonce Dodges Copyright Claim In "XO" v "XOXO" Case

Lane v. Carter et al., No. 14-cv-6798 (SDNY filed 10/21/15) [Doc. 51].

Plaintiff's claim, alleging that he gave a copy of his song XOXO to one of Beyonce's background singers and that Beyonce infringed the song when she created the song XO, was dismissed pursuant to Rule 12(b)(6) and 8(a).  First, the Court found that although Plaintiff holds a copyright registration for the lyrics to XOXO, the registration excluded rights to the music which was the sole basis of the copyright claim.  Moreover, even though Plaintiff alleged that he was an exclusive licensee, he did not allege that hte licensor had a valdily registred copyright.  Accordingly, the claim was dismissed for lack of standing. 

Even though that was potentially curable on an amended pleading, the Court found then considered whether a copyright infringement claim was otherwise substantively viable.  The Court then underwent a "substantial similarity" analysis of: (1) "the beat" and the songs to determine whether the similarities between the two songs concern copyrightable parts of XOXO and whether a reasonable and properly instructed jury could conclude that there is substantial similarity.  The Court found that the use in both songs of "a common four-bar phrase" would not establish substantial similarity between them.  Additionally, comparing the songs holistically, the Court found that no reasonable jury could find the lyrics of XOXO substantially similar to XO.  Aside from thef act that both songs' lyrics use the letters X and O, "there is virtually nothing common to the two song's lyrics" (emphasis in original).  Moreover, the lryics of the two songs have no word in common, save ubiquitous words like "I," "you," your," "is," and "baby."  The themes were also different.  Next, as to the music, the Court listened to the two song and found litte, if anything, in common.  The Court, accordingly, dismissed the complaint with prejudice.

License Agreements Preclude Copyright Infringement Claim; 6th Circuit

Murphy v. Lazarev, No. 14-5028 (6th Cir. Oct. 17, 2014) [File Name: 14a0790n.06]

The Sixth Circuit affirmed dismissal of copyright infringement and breach of contract claims by two American co-authors of a song, Almost Sorry, against a Russian pop artist because there were numerous licensing agreements that granted defendant sweeping permission to record and perform the song.  First, the Court held that the defendant did not waive his affirmative defense of "license," even though defendant did not file an answer to the amended complaint, because the plaintiffs were on notice of his affirmative defenses from an early stage in the lawsuit (when defendant filed a pro se letter in response to the complaint), thus satisfying the purposes of Rule 8.  Second, the Court held that defendant had a valid express sub-license to record the song until 2013.

Toto Loses Breach Of Contract Claim Against Label For Digital Download Royalties

Toto, Inc. v. Sony Music Entertainment, No. 1:12-cv-01434-RJS (S.D.N.Y. filed Oct. 8, 2014) [Doc. 117].

In this breach of contract action concerning royalties for digital downloads (and master and ringtones) payable by the record label to the 80's band "Toto", the Court granted the record label summary judgment finding that the proper royalty rate had been paid.  The Court applied New York law to interpret the relevant recording agreements, and found that one provision (the "Audiophile Provision" in 1986 and 2002 amendments) supplied the applicable royalty rate for the sale of downloads through digital retailers, regardless of whether the downloads were sold by the record company or unaffiliated third-party licensees.  The dispute turned on the meaning of the terms "Licensee" and "lease", which had different royalty rates.  Toto argued the term "lease" referred to a license to any party, regardless of whether that party is affiliated with the record company; the record company argued that the term "lease" referred to a special license whereby a third party incorporates the recordings into its own product, such as a compilation record.  The Court found that the inclusion of the record company's affiliates in the contractual definition of "licensee" did not limit the scope of that term; the definition included the term "without limitation".  Accordingly, digital retailers were licensees, and industry custom defined the term "lease" as a limited license to a third party to incorporate recording into their own unique product.  However, the Court found that the record company did not have a declaratory judgment claim because the dispute was "far more hypothetical than real."  The declaratory judgment dispute arose from Toto's threat to sue the label for breach of the implied covenant of good faith and fair dealing if the label ceased distributing Toto's records through certain retailers.

Judge Finds Liability In Shakira Infringement Trial

Mayimba Music, Inc. v. Sony Corp. of Am. et al., No. 1:12-cv-01094-AKH (SDNY filed 08/19/14) [Doc. 104].

This is an infringement action alleging that a Shakira song infringes the copyright in a musical composition.  After a bench trial, the Court found: (a) that plaintiff, as exclusive licensee, had standing; (b) there was no proof of laches; (c) the Shakira song was an unlawful copy of plaintiff's song; and (d) the US distributors were liable for infringement.  The next stage was determining damages, or alternatively a permanent infringement.

2d Cir Affirms Adjustable Carve Out Rates For Performance Rights Licenses

BMI v. DMX, Inc., Docket Nos. 10-3429-cv and 11-127-cv (2d Cir. decided June 13, 2012) (decision).

The 2d Circuit holds that the consent decrees with the performing rights organizations permits blanket licenses subject to carve-outs to account for direct licensing by the music user.  Then, the 2d Circuit held that the rate-court (SDNY) set reasonable rates.

Standing Still Lacking Under 1909 Act In "Big Pimpin'" Case

Nafal v. Jay-Z, et al, 11 cv 06238 (C.D. Cal. Mar 2, 2012).

Plaintiff argued that because was the exclusive license of a song sampled in the Jay-Z song "Big Pimpin'", he had standing to sue Defendants for infringement. The court held that Plaintiff's standing had to be evaluated under the 1909 Copyright Act (due to the copyright date of the sampled song). Even if Plaintiff were deemed a co-exclusive licensee, the 1909 Act required Plaintiff to join the author's heirs in the action, who were the copyright owners. He did not do so, and accordingly, lacked standing.