Amazon Faces False Attribution Claim in Infringement Suit For Unauthorized Digital Downloads

In Taylor v. Amazon.com et al., No. 2:08-cv-00061-wks (D. Vermont filed Mar. 17, 2008), the core of plaintiff's claim is:

Defendants have placed on their website and have offered for sale MP3 files of the thirteen sound recordings Plaintiff created which QuiXote Music pressed and marketed [with authorization from plaintiff, pursuant to a written agreement] ... The page on Defendants' website falsely indicates the copyright in [sound recording and composition] as being "(c) 2008 QuiXote". [However,] the compact discs pressed and marketed [with written authorization] by QuiXote Music beginning in 2001 bear multiple clear indications that the copyright in [the sound recordings and compositions] belong to Plaintiff.

Nowhere on the compact discs pressed and marketed by QuiXote Music is there any representation that the copyright in Cheshire Tree Suite belongs to QuiXote Music. On information and belief, QuiXote Music has never represented that it owns the copyright in [the sound recording and compositions]. [Eds: This may explain why QuiXote, the European based manufacturer and distributor of the album, is not a party to this suit.]

Thus, notwithstanding the basic infringement allegation (unauthorized sale of the sound recording via defendants' online digital music store), the central theme of Plaintiff's complaint is a moral rights theory of false attribution. In addition to the above quoted material, the theme of a moral rights claim as central to this action is buttressed by plaintiff's allegations of "deliberate misstatement of copyright ownership", and reference to the Berne Convention as a source of protection.

Nonetheless, Plaintiff's demand for relief is limited to an injunction prohibiting Defendants "from the infringement and unauthorized use of Plaintiff's copyright."

Several Observations and Comments:

(1) Plaintiff does not specify whether the sound recordings and/or compositions are registered. Rather than list (or include as an exhibit) any SR registration number, Plaintiff merely alleges that the works "are protected under the Untied States Code, including without limitation the Copyright Act of 1976 and the Digital Millennium Copyright Act." If unregistered, Plaintiff's claim has a fatal problem (17 U.S.C. 411). (Alternatively, her demand for fees and statutory damages may be barred, 17 U.S.C. 412. Homkow v. Musika Records Inc., No. 04 Civ. 3587, N.Y.L.J. "Decision of the Day", Mar. 17, 2008 (S.D.N.Y. decided Feb. 25, 2008)). Notable, however, is the filing of an AO Form 121 mailed to the Register of Copyright pursuant to 17 U.S.C. 508. This form, entitled "Report on the Filing or Determination of an Action or Appeal Regarding a Copyright", presumably was filed with the relevant Registration Numbers, i.e., not left blank? (However, a search of the Copyright Office's public catalogue did not find any relevant SRs.)

(2) What is the process by which digital music stores obtain information regarding copyright ownership?

(3) Where is the European label? Review of Plaintiff's agreement with QuiXote Music would seem highly relevant to whether Plaintiff granted the label authorization to distribute the sound recordings in intangible electronic or digital form, e.g., MP3?

More Moral Rights in Puerto Rico

We recently highlighted a copyright infringement case pending in Puerto Rico in which the plaintiff, along with their claims under the Copyright Act, alleged violations of their MORAL RIGHTS under Puerto Rico law.

Another case filed yesterday makes a similar claim. Rodriguez v. Emusica Records, LLC et al., No. 3:08-cv-01272-ADC (Dist. P.R. filed Mar. 4, 2008). Here, Plaintiff states under the heading "Nature of the Action" that in addition to this being an action for copyright infringement under 17 USC 101 et seq, "This action is also for moral rights violation, unfair competition, torts and unjust enrichment under the laws of Puerto Rico."

The gravamen of the complaint is as follows: plaintiff registered a copyright in the composition entitled "Rico Son", as well as the sound recording embodying a performance of the composition. The sound-recording appeared on a 2003 album entitled Rigo y su Obra Maestra - Conquistando al bailador, also registered to plaintiff. In 2007, plaintiff discovered that the sound-recording and underlying composition were being reproduced and distributed without authorization/license on a compilation entitled The Myth - FANIA - 45 Platinum Hits - Su Autentica Historia Musical by various entities in Spain and/or New York. Plaintiff alleges that his song "Rico Son" appeared on the allegedly infringing compilation under a different name ("Para Los Rumberos") and that authorship in the song was attributed to the late Tito Puente. However, "When the CD of reference is played in a CD player, the song that actually plays is the one of Plaintiff Rodriguez, 'Rico Son'."

Thus, plaintiff alleges that "Under the law of Puerto Rico, the use of this song and it's music recording by co-defendants also violates Plaintiff's moral rights of attribution." Plaintiff continues, in his second cause of action, "Co-Defendants did not make the corresponding authorship attribution to Plaintiff over his song and its music recording. This unauthorized use of Plaintiff's work has harmed his reputation and violated his moral rights of attribution as an author under the Puerto Rico Intellectual Property Law (31 L.P.R.A. sec 1401 et seq)."

Regarding damages under his moral rights claim, plaintiff seeks actual damages for an amount not less than $250,000, "pursuant to 31 L.P.R.A. 1401 et seq."

So, there you have it - another moral rights claim arising out of alleged copyright infringing in a a sound recording and underlying composition appearing in a US jurisdiction.

If such claims are viable, and ultimately successful, will mainland US plaintiffs somehow seek jurisdiction in Puerto Rico in order to tag a moral rights claim upon their copyright infringement claim? There is some case law indicating that Puerto Rico's moral rights law does not extend extraterritorially to distribution of infringing albums outside of Puerto Rico; so, the availability of limited damages may deter a mainland plaintiff from alleging a moral rights claim in Puerto Rico.

Puerto Rico Moral Rights Update

This morning, OTCS commented on a copyright infringement case in the Federal District Court, District of Puerto Rico, which included a claim for infringement of the plaintiff's moral rights.

This claim appears to be based on Title 31 of the Laws of Puerto Rico, section 1401 et seq. Section 1401 states: "The author or beneficiary of a literary, scientific, artistic and/or musical work has the right to benefit from it, and the exclusive prerogatives to attribute to him/herself or retract its authorship, dispose of his/her work, authorize its publication and protect its integrity, in accordance with the special laws in effect on the matter".

Title 31 continues...the moral right has a 50 year duration (1401c); and, does not attach to works created for advertising entities or for promoting goods or services, unless otherwise agreed (1401e). The moral right includes a right to resale royalties, totalling 5% deducted from the seller's earnings (1401h). Remedies for infringement include temporary or permanent injunction, restitution, seizure, or destruction of the infringing works (1401f).

Notably, Puerto Rico provides a moral right specifically for musical works (1401i), which requires the complete name of the composer of a musical work and corresponding song shall be specified and mentioned, in addition to the complete name of the artist or performer, on the production, recording, show or musical event at issue. This section should come into play in the Pascual suit filed yesterday.

Moral Rights in Puerto Rico?

In a case filed in the District of Puerto Rico for copyright infringement arising out of defendant record-label's alleged willful breach of royalty agreement, the artist/"MC" plaintiff included a claim for "moral damages under Puerto Rico's copyright act."

There are two main claims under this count of the complaint: first that the version of a song unlawfully published and distributed by defendant "severely altered" the artist's "voice and delivery". Second, "as the song's author, [plaintiff] has the moral right to protect the integrity of the same". Damages under the claim are alleged to be $100,000.

Traditionally, moral right claims are an claim in international copyright cases - not in the U.S.! Is Puerto Rico the only U.S. territory to have a moral rights law?

Interestingly, plaintiff also makes a claim for attorney's fees under 17 U.S.C. 505 (an actual count! Not just in there prayer for relief!).

Lastly, plaintiff raises an issue over a song re-recorded by defendant. Though a publishing claim by the author is feasible, the complaint appears to mix its analysis of basic copyright law: the distinction between sound recordings and musical compositions. ("Upon hearing the song...re-record the same in Record Inc's studio.")

*Note: the complaint is labeled "Plaintiff Requests Trial By Jury".

[Pascual v. Pina Records, Inc.; case no. 3:08-cv-01114-GAG; filed 1/28/08; D. Puerto Rico]