Bowery Presents Avoids Arbitration In Ticket Case

The Bowery Presents LLC v. Pires, No. 653377/2012, NYLJ 1202608931096, at *1 (Sup. Ct., N.Y. Co. decided June 24, 2013) (Bransten, J.S.C.).

Bowery Presents, a concert promoter, moved to stay arbitration that had been filed by the respondent ticket purchaser on the basis that Bowery Presents was not a party to an arbitration agreement with the respondent.  The Court granted the motion and stayed arbitration.

Bowery Presents had entered into a written License Agreement with Live Nation Entertainment, Inc. (d/b/a Ticketmaster) ("Ticketmaster") under which Ticketmaster was to act as Bowery's agent for the sale and distribution of tickets to entertainment events.   Bowery Presents was the promoter for a March 28, 2012 event to which the respondent purchased a ticket through the Ticketmaster website.  In order to purchase her ticket, Respondent was required to agree to the "Terms of Use" on Ticketmaster's website. The Terms of Use contained an arbitration clause: "Live Nation and you [user of ticketmaster.com and its related websites] agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted." 

In the arbitration, Respondent asserts a claim pursuant to §25.33 of the Arts and Cultural Affairs Law of the State of New York ("ACAL") to recover damages and injunctive relief arising from Bowery's alleged violations of §25.30(c) of the ACAL by employing a paperless ticketing system.  Respondent contended that Bowery violated ACAL §25.30(c) by employing a paperless ticketing system without providing the consumer the option of purchasing the tickets in a transferable form.  Respondent thus filed a demand for arbitration.  The issue was whether Bowery Presents, a nonsignatory to the arbitration agreement, could nonetheless be bound by the arbitration clause.

The Court found that Ticketmaster was Bowery's limited agent and, therefore, Bowery was not bound by the arbitration clause in the Terms of Use.  Moreover, the Court found that even if Ticketmaster did possess sufficient authority to bind Bowery Presents to an arbitration agreement, the plain language of the arbitration clause at issue bound only Ticketmaster and the ticket purchaser to arbitration, not Bowery Presents. 

Class Action Brought Against eMusic

Dabaghian v. eMusic.com, No. 651794/2013 (Sup. Ct., N.Y. Co. filed 5/20/2013).

Plaintiff brought a class action for breach of contract, breach of warranty and violations of N.Y. Gen. Bus. Law.  Plaintiff alleges that eMusic sells music download cards that represent that a specific number of songs can be purchased for a fixed price.  Plaintiff allegedly purchased such a card that advertised 30 songs for $15.  However, plaintiff allegedly was only able to download 16 songs before the card was depleted.  Plaintiff alelges that eMusic failed to disclose it had switched to a monetary based credit system where each song is individually priced.  Under this system, a song may cost 89 cents, and allegedly only rarely costs 50 cents.  Accordingly, Plaintiff alleges it is impossible to purchase 30 songs for $15.

Composer's Suit Against Orchestra Survives Summary Judgment

Currier v Brooklyn Philharmonic Symphony, No. 7661/2009 (N.Y. Sup. Ct., Kings Co. May 6, 2013).  Decision here.

Defendant symphony motion for summary judgment on Plaintiff's claims for breach of contract denied (though the claim for breach of the duty of good faith and fair dealing was dismissed).  The dispute is based on the symphony's failure to perform the entirety of Plaintiff's 3-act piece, and on issues relating to the length of breaks and overtime for the musicians.

DMCA Safe Harbor Does Not Apply To Pre-1972 Recordings, N.Y. Appellate Court

UMG Recordings, Inc. v. Escape Media Group, Inc., 2013 NY Slip Op 02702 (1st Dep't Apr. 23, 2013).  Decision here.  

Plaintiff is UMG, and defendant is the service "Grooveshark"  As described by the Court, "Users of Grooveshark can upload audio files (typically songs) to an archive maintained on defendant's computer servers, and other users can search those servers and stream recordings to their own computers or other electronic devices. "

In its answer, Grooveshark asserted as its fourteenth affirmative defense that pre-1972 recordings sat within the safe harbor of section 512(c) of the DMCA. UMG moved, inter alia, to dismiss that defense pursuant to CPLR 3211(b). The motion court denied plaintiff's motion, relying heavily on Capitol Records, Inc. v MP3tunes, LLC (821 F Supp 2d 627 [SDNY 2011]), in which the United States district court tackled precisely the same issue and found that the DMCA embraced sound recordings fixed before February 15, 1972.  The Appellate Court reversed.

First, the Court found that applying the DMCA to pre-1972 recordings would violate Section 301(c) of the Copyright Act.  "Had the DMCA never been enacted, there would be no question that UMG could sue defendant in New York state courts to enforce its copyright in the pre-1972 recordings, as soon as it learned that one of the recordings had been posted on Grooveshark. However, were the DMCA to apply as defendant believes, that right to immediately commence an action would be eliminated. Indeed, the only remedy available to UMG would be service of a takedown notice on defendant. This is, at best, a limitation on UMG's rights, and an implicit modification of the plain language of section 301(c). The word "limit" in 301(c) is unqualified, so defendant's argument that the DMCA does not contradict that section because UMG still retains the right to exploit its copyrights, to license them and to create derivative works, is without merit. Any material limitation, especially the elimination of the right to assert a common-law infringement claim, is violative of section 301(c) of the Copyright Act."  Continuing, the Court found "there is no reason to conclude that Congress recognized a limitation on common-law copyrights posed by the DMCA but intended to implicitly dilute section 301(c) nonetheless. ... Congress explicitly, and very clearly, separated the universe of sound recordings into two categories, one for works "fixed" after February 15, 1972, to which it granted federal copyright protection, and one for those fixed before that date, to which it did not. Defendant has pointed to nothing in the Copyright Act or its legislative history which prevents us from concluding that Congress meant to apply the DMCA to the former category, but not the latter."

Second, the Court rejected Grooveshark's argument that the very purpose of the DMCA will be thwarted if it is deemed not to apply to the pre-1972 recordings. "The statutory language at issue involves two equally clear and compelling Congressional priorities: to promote the existence of intellectual property on the Internet, and to insulate pre-1972 sound recordings from federal regulation. As stated above, it is not unreasonable, based on the statutory language and the context in which the DMCA was enacted, to reconcile the two by concluding that Congress intended for the DMCA only to apply to post-1972 works."

Gershwin et al. v. WB Music Corp., No. 650117/2013 (Sup. Ct., N.Y. Co. filed Jan. 11, 2013).

Plaintiffs, successors-in-interest to the rights/copyrights of George Gershwin -- composer of iconic 20th Century music such as "Porgy and Bess" and "Rhapsody in Blue" - brought a contract action seeking to redress the Defendants' failure to pay music publishing royalties and other amounts ($5 million alleged damages).  The claims at issue are related to, inter alia, foreign rentals, ballet licensing, concert grand rights licensing, and performance rights organizations registrations.  Complaint here.

Sanctions Against Music Company For Frivolous Case

Arabesque Recordings, LLC v. Capacity, LLC, No. 650277/2006 (Sup. Ct., N.Y. Co. Commercial Division, July 31, 2012) (Bransten, J.S.C.)  (decision here).

Plaintiff music distributor/seller sued defendant warehouse and distribution center for over $2 million for breach of the warehousing agreement.  A bench trial was had.  After approximately 1 hour of testimony, plaintiff moved to dismiss its own case with prejudice on the ground that it lacked any evidence to support its claim.  The court granted the motion, and granted defendant leave to move for sanctions.  Defendant moved for sanctions equaling its legal fees and costs.  The court found that plaintiff's witness's testimony was belied by his own deposition testimony and undisputed documentary evidence, and that continuation of the case was frivolous.  The court sanctioned plaintiff for defendant's legal fees and costs.

Pre-1972 Recordings Subject To DMCA

UMG Recordings, Inc. v. Escape Media Group, Inc., No. 100152/2010 (Sup. Ct., N.Y. Co. July 10, 2012) (Kapnick, J.S.C.).

New York State Court holds that the "safe harbor" provisions of the DMCA extend to common law copyright claims relating to pre-1972 recordings.

Plaintiff moved to dismiss defendant's "safe harbor" affirmative defense under the DMCA [17 U.S.C. 512(c)(1)].  Section 301(c) of the Copyright Act makes clear that the copyrights of pre-1972 recordings are not protected by the federal Copyright Act, and the Court analyzed whether the DMCA may provide a defense or "safe harbor" to internet service providers facing New York State common law copyright infringement claims (as opposed to claims under the federal act).  The Court observed that only one court has considered the issue (Capitol Records, Inc. v. MP3Tunes, 821 F. Supp.2d 627, 640 (SDNY 2011), and concluded that "there is no indication in the text of the DMCA that Congress intended to limit the reach of the safe harbors provided by the statute to just post-1972 recordings."  In response to a report by the Register of Copyrights that "it is for the Courts to interpret the applicable statute and decide the issues raise by this motion.  This Court is not attempting to extend the Copyright Act to pre-1972 recordings, but, nonetheless, does find, based on the relevant language of the statutes...that the safe harbor provisions codified by section 512(c)(1) of the DMCA is applicable to pre-1972 recordings."  Accordingly, plaintiff's motion to dismiss the DMCA affirmative defense was denied.

However, the Court did dismiss defendant's affirmative defense based on the Communications Decency Act of 1996 (the "CDA") [47 U.S.C. 230].  Lastly, the Court dismissed defendant's counter-claim for violation of a New York State anti-trust statute, the "Donnelly Act" (NY General Business Law 340), but denied plaintiff's motion to dismiss the counter-claims for tortious interference with contract and business relations.

Helm Claim Has No "Weight"

Helm v BBDO Worldwide, Inc.

2012 NY Slip Op 01573

Decided on March 1, 2012

Appellate Division, First Department (New York)

Plaintiff's claim under New York Civil Rights Law § 51, which prohibits the use of a person's "name, portrait, picture or voice" for advertising or trade purposes without written consent, was properly dismissed. By contract, plaintiff broadly granted his record company the "exclusive and perpetual right to use and control" plaintiff's sound recordings and the "performances embodied therein," which included the recording that was licenced to and used by defendant in a third-party television commercial. Although plaintiff claims that he never gave written consent for the use of his voice, as it is embodied in that recording, for the instant advertising purpose, he unambiguously authorized defendant to license the recording in the contract (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]).

Common-Law Copyright Claim Time Barred; No Breach or Unjust Enrichment

Goeke v. Naxos of America, Inc., 650606/09, NYLJ 1202541596753, at *1 (Sup., NY, dec. Jan. 27, 2012) (Fried, J).

Plaintiff, a world-renowned lyric tenor, alleged that Defendants have been engaged in the unauthorized distribution and sale of five audio and audiovisual recordings of live opera and choral performances, in which plaintiff appeared as a featured artist. Plaintiff's cause of action for breach of contract against the defendant record distributor was dismissed because the label was not party to any contract with plaintiff. Plaintiff's causes of action for unjust enrichment against the defendant record distributor also was dismissed because there was no connection or relationship between the parties. Plaintiff's cause of action for common-law copyright infringement under New York law was dismissed because " the only judicially recognized relief in New York for the violation of such right are the protections afforded against the commercial misappropriation of a person's name, picture, or voice that are provided by Civil Rights Law §§50 and 51." This claim was dismissed under the applicable one-year limitations period. Additionally, Plaintiff's common law claim for unjust enrichment, based on the unauthorized appropriation of a name, picture, or voice, was subsumed under the time-barred Civil Rights Law §§50 and 51 claims.

Duke Ellington's Foreign Royalties Claim Dismissed Under Plain Language Of 1961 Contract

Ellington v. EMI Music Inc., 651558/2010, NYLJ 1202519466664 (printed Oct. 21, 2011), at *1 (Sup. Ct., N.Y. Co. decided Oct. 2011).

This is action for breach of a songwriter royalty agreement, fraud, and a declaratory judgment. Defendant EMI moved to dismiss the complaint.

Plaintiff Paul M. Ellington, the heir and grandson of the legendary jazz composer and performer Edward Kennedy "Duke" Ellington, sought to recover foreign music publication royalties allegedly owed to him by defendants pursuant to contract dated December 17, 1961 (the 1961 contract). Ellington also sought to commence a class action against defendants on behalf of a putative class consisting of all persons to whom defendants have failed to pay their full contractual share of foreign publication royalties.

Pursuant to the 1961 contract, the First Parties transferred to the Second Party the copyrights to numerous identified musical compositions written by Duke Ellington between 1927 and the contract date, in exchange for, inter alia, payments of cash and royalties, calculated as a percentage of various sources of income, including income generated from sales outside the United States. The 1961 contract superceded a series of similar agreements between Duke Ellington and Mills Music or certain of its affiliates.

There was no real dispute that the 1961 contract is a "net receipts" songwriter royalty agreement. A "net receipts" agreement, common in the music industry prior to the early 1980s, provides for the payment of royalties to the songwriter on a net receipts basis, or, payment based on the net income received by the United States publisher from foreign subpublishers, who retain a percentage of the foreign income as a fee in payment for their services in exploiting and administering publication of the songs outside the United States.

The Court held that the 1961 Contract was clear and unambiguous. ""The royalty payment provision terms demonstrate that the 1961 contract is a net receipts royalty agreement that requires Mills Music, now EMI Mills, to pay Duke Ellington, now Ellington, one half of the 'net revenue actually received by the Second Party' from the 'foreign publication' of the songs falling within the scope of the contract." The Court rejected plaintiff's argument that the 1961 contract was a "at source" agreement, i.e., an agreement for payment of royalties earned worldwide calculated on the amount of income earned in the foreign territories at their source, rather than on the portion of that income received by the United States publisher. In sum, the 1961 contract permited defendants to employ the very method of royalty calculation of which Ellington now complains. Motion to dismiss granted.

"Hey Micky!" Malpractice Action Survives Dismissal

Basilotta v. Warshavsky, 115524/09, NYLJ 1202511322101, at *1 (Sup.Ct., N.Y. Co., decided August 2, 2011)

The singer of the 1980's hit song that starts "Oh Micky you're so fine, you're so fine you blow my mind! Hey Mickey!" can proceed with her malpractice action against an attorney she claims failed to diligently protect her rights to the song. The Court found that the suit was not time barred.

Artist Has Label's Claims Dismissed; Judgment On Counterclaims

Alistair Records, Inc., v. Adams, 603695/09, NYLJ 1202497369670, at *1 (Sup., NY, Decided May 20, 2011).

Defendant recording artist's motion for an order amending the caption to reflect the correct name of plaintiff record label, "Alistair Records, LLC" is granted. Defendant artist's motion for entry of a default judgment on his breach of contract counterclaim against plaintiff label is granted ($6,000). Artist's motion for entry of a default judgment on his counterclaim for rescission is denied and that counterclaim is severed and dismissed. Artist's remaining counterclaims continue.

Artist's motion for summary judgment dismissing the complaint (seeking injunction and $750,000) is granted. Record label failed to submit any evidentiary facts to controvert the claims in artist's motion.

Who Owns A Grammy?

National Academy of Recording Arts & Sciences Inc. v. Gotta Have It! Collectibles Inc. dba Gotta Have and Roll.com, No. 11-103366 (Sup. Ct. NY. Co. filed 3/18/11) -- summons with notice for conversion of the Grammy Award Statuette awarded to Stevie Wonder for Songwriter of the Year (1973).

Music Photos Suit

Lawrence Martin Temme v. Sony Music Entertainment, Index No. 11-650342 (Sup. Ct., N.Y. Co. filed 2/8/2011).

Complaint for negligence and conversion. Plaintiff, a freelance music photographer, alleges that over the course of his 20 years in the music industry, he has photographed some of the biggest names in popular music. Plaintiff alleges that the defendant has lost or converted thousands of valuable photographic images belonging to the Plaintiff. Plaintiff seeks $500,000 in damages based on the defendant's alleged breach of bailment, its negligence, and its conversion of the plaintiff's property.

Ramones Royalties Suit

Christopher J Ward v. Ramones Production Inc. et al, Index 650291/2011 (Sup. Ct., NY Co. filed Feb. 2, 2011). Complaint for breach of contract. Plaintiff (known as "CJ Ramone") is a former member of the rock band The Ramones. Plaintiff seeks to recover royalty payments for musical compositions created by the Ramones. $600,000.

Lady Gaga Insurer Seeks Declaratory Judgment

Navigators Specialty Insurance Company v. Mermaid Music LLC; Stefani Joanne Germanotta; Team Love Child; Rob Fusari Productions LLC individually and in the right of Team Love Child LLC, Index No. 108996/2010 (Sup.Ct., N.Y. Co. filed 7/8/2010)

Plaintiff seeks a declaration that it is not required to defend and indemnify the insured, Stefani Germanotta (aka "Lady Gaga") in an underlying breach of contract action, on the basis of the policy's definition of "professional services." While the underlying complaint alleges breaches of a production agreement held between Germanotta and defendant Rob Fusari, none of these causes of action assert that the insured was negligent in the performance of music production, rendering the policy inapplicable to the claim.

Sony Loses Employment Suit Against EMI and Top Executive

Sony Music Entertainment, Inc. v. Werre, No. 601441/09 (Sup. Ct., N.Y. Co. Mar. 19, 2010)

Sony sued a top EMI executive for alleged breach of contract, and EMI for tortious interference with that contract. The Court granted Defendants' motion to dismiss for failure to state a claim. (CPLR 3211(a)(7)). The Court found that the letter agreement at issue was not a binding, enforceable contract because a contingency, namely the executive's availability for employment on April 1, 2010, did not occur. Nor did the "prevention doctrine" apply because there was not binding contract in effect that contained the condition precedent in question; the contract was not binding on the parties until the condition precedent occurred such that the prevention doctrine did not apply. Similarly, since there was no valid contract, the tortious interference claim against EMI failed. Lastly, the fraud and breach of covenant of good faith and fair dealing claims against the executive were dismissed as duplicative of the (failed) breach of contract claim.

Sony v Werre (NYS)

My Boyfriend's Back

Sirico v. F.G.G. Prods., Inc., 2010 NY Slip Op 01733 (1st Dep't Mar. 4, 2010).

Singers of the 1960s hit "My Boyfriend's Back" sues producer of the recording concerning royalties. On appeal of denial of motion for renewal, the Appellate Division addresses plaintiff's New York breach of contract, breach of implied contract, unjust enrichment, accounting, rescission, and right of privacy statutory claims. Specifically at issue is whether summary judgment was appropriate based on limited discovery and problematic affidavits. The court also addresses laches, statute of limitations, limitation on equitable claims.

Sirico v F

Labels Participate in Judicial Forum, Waive Arbitration

Lockett v. Tuff City Records, No. 602900/08, NYLJ 9/25/2009 "Decision of Interest" (Sup. Ct., N.Y. Co. Sep. 21, 2009)

Defendants, record labels and their principals, waived right to arbitration by actively participating in judicial forum. Plaintiffs' action sough monies allegedly owed for royalties. Defendants answered, but did not plead arbitration as an affirmative defense. Moreover, the arbitration demand was made nearly eight months into the litigation, after Defendants had made discovery demands. Additionally, defendants failed to establish that plaintiffs' claims were subject to the alleged arbitration clause in a 1986 recording contract because the songs at issue were recorded prior to 1986. Thus, Plaintiffs' motion to permanently stay arbitration granted.

The Court also denied defendants' motion to dismiss for misjoinder of plaintiffs; instead, the court severed the individual plaintiff's claims and ordered them to obtain a no-fee index number and serve their own complaint within 30 days.

Lastly, the Court denied defendants' motion to remove the action to Small Claims court; and denied both plaintiffs' and defendants' motions for sanctions.

Mosh Dancer Assumes Risk

"On the undisputed facts, plaintiff, an experienced concertgoer, assumed the risk of being struck by a fellow concertgoer when, although conscious that an aggressive type of moshing was in progress, he deliberately placed himself in proximity to it." Therefore, complaint against rock-club dismissed.

Schoneboom v. B.B. King Blues Club, No. 115632/06, 3/11/09 N.Y.L.J. "Decision of Interest" (Sup.Ct., N.Y. Co. decided Feb. 23, 2009)