3rd Cir. Affirms Judgment For Usher In "Bad Girl" Copyright Dispute

Marino v. Usher, No. 15-2270 (3rd Cir. Dec. 8, 2016).

Songwriter-plaintiff appealed the lower court's grant of summary judgment to Usher (and the other defendants) in a copyright action involving the song "Bad Girl."  The 3rd Circuit affirmed the finding that the claim must fail because the song was jointly written by plaintiff and certain of the defendants (Guice and Barton).  "The district court correctly held that co-authors of a joint work are each entitled to undivided ownership and that the joint owner of a copyright cannot sue his co-owner for infringement.  The court reasoned that, without direct infringement, there can be no vicarious infringement, hence the derivative song, Bad Girl, did not infringe on Marino’s
rights. The district court also concluded that Guice and Barton conveyed a valid nonexclusive
license for the song to the other defendants."

Additionally, the Court held that the state-law claims were pre-empted, that the plaintiff had granted an implied license, that his sound recording claims failed because there was no copyright registration for the sound recording, and that defendant's were properly granted costs/fees (in a 90% reduced amount based upon plaintiff's financial circumstances).  Lastly, the Court affirmed the financial sanction entered against Plaintiff's lawyer for improperly communicating with an unrepresented defendant in violation of the Pennsylvania rules of professional conduct.

Attorney Sanctioned In Usher Copyright Action

Marino v. Usher et al., Index No. 6811-cv-11 (E.D. Pa. memorandum dated May 21, 2014).

The court dismissed most of the plaintiff song-writer's copyright infringement claims against Usher and other defendants, and sanctioned plaintiff's counsel for behaving "in a flagrantly unprofessional and offensive manner."  The sanctionable conduct: the attorney "(1) inveigled an inculpatory affidavit from unrepresented Defendant William Guice; and (2) after falsely assuring Guice that he was only a witness, entered a default against him."

Blacked Eyed Peas Not Liable For Infringement In Absence Of Access And Lack Of Similarity

Pringle v. Adams, No. 12-55998 (9th Cir. Feb. 21, 2014).

The 9th Circuit affirmed summary judgment for the defendants -- the Black Eyed Peas and related parties -- in a copyright infringement case.  The Court found: "The evidence in support of Plaintiff, however, raises only the barest possibility that Defendants had access to [the song], and Plaintiff does not argue that there is a 'striking similarity' between [the song] and Defendants’ allegedly infringing work."  The 9th Circuit also affirmed sanctions against plaintiff for violating a court order regarding service of process on one of the defendants.

Songwriter's Widow Sanctioned; Default Judgments In Favor Of Assignee Not Vacated

Bridgeport Music, et al. v. Smith, et al., No. 12-1523 (6th Cir. May 1, 2013).

This action is based on default judgments entered in 2004 that plaintiff obtained against defendants for copyright infringement of the 1974 song "You’re Getting a Little Too Smart" ("Smart").  Plaintiff was the assignee of the songwriter's rights in the song.  In 2011, the songwriter's widow moved to vacate the default judgments, arguing that she, not Plaintiffs, was the legal owner of the copyright by operation of law at the time the lawsuit was filed.  The district court denied the motion, as well as her motion for reconsideration, and the widow appealed.  The Sixth Circuit affirmed, and granted Plaintiffs motion for damages and costs.

After stating the relevant facts, the Court began its analysis by determining who was entitled to what copyright interests in “Smart” under the renewal provisions of the Copyright Act:  "(1) Based on their assigned interest in the initial copyright, Plaintiffs had the right to sue for infringing acts occurring up through December 31, 2002, see 17 U.S.C. § 501(b) ..., and they had three years after that date to bring a cause of action. ... (2) Because Tilmon died prior to the renewal term, Tilmon’s contingency interest in the renewal copyright passed to Tilmon-Jones and Tilmon’s children, on January 1, 2003."

Next, the Court considered whether the widow, as a non-party to the litigation in which the judgments were entered, had standing.  The Court determined she did not have standing to bring a Fed. R. Civ. P. 60(b) motion.  Rule 60(b) provides in pertinent part that a “court may relieve a party or its legal representative” from a final judgment.  Nor was the widow in privity, or were here interests "strongly affected."

The Court also found that the widow's motion to vacate the judgments was untimely under Fed. R. Civ. P. 60(c)(1), which requires such motion be made within a reasonable period of time.  She did not file the motions until 6 years after constructive notice of the judgments (due to recordation of the judgments with the Copyright Office), and 7 years after they were entered.  The motions also were barred by a release the widow signed in another action.

Lastly, the Sixth Circuit sanctioned the widow and her counsel, pursuant to Fed. R. App. P. 38 and 28 U.S.C. § 1912.  "The conduct of Tilmon-Jones and her counsel was objectively and patently meritless and a waste of judicial resources. Tilmon-Jones maintains that her appeal is not frivolous because the question of whether a nonparty has standing under Fed. R. Civ. P. 60(b) was not obviously without merit. This may be true, but it does not obviate the fact that her appeal was utterly without merit because it was untimely and barred by a release. We find that this appeal is frivolous and that sanctions are appropriate."

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.

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.

Sanctions for Blogging in Music Case?

An attorney representing a college student in a copyright infringment case based on music downloads faces possible court sanctions for an Internet posting of deposition excerpts from his defense. The attorney, Professor Charles Nesson of Harvard Law School, is representing defendant in Capital Records Inc. v. Alaujan, a District of Massachusetts case that several record companies and the RIAA filed against the students.

Judge Nancy Gertner issued an electronic order on July 7 demanding an explanation why defendant and his counsel should not be sanctioned for the posting of parts of a deposition on Harvard Law School's Berkman Center for Internet & Society Web site. The court noted that prior oral and written orders "made clear" that deposition recordings were permitted but "not to be made public via the Internet."

Reconsideration of Sanction Denied

Homkow v. Musika Records Inc., No. 04 Civ. 3587, NYLJ 7/10/2009 "Decision of Interest (SDNY June 18, 2009) (denying motion to reconsider).

The Court had adopted magistrate's report to sanction defendants based on plaintiff's hours "primarily spent dealing with, reacting to, and seeking relief from, the steady stream of misstatements from Defendants as to the location and status" of the Master tapes.

On reconsideration, the Court confirmed the Report's assessment. Moreover, Plaintiff'smonetary damages and copyright claims were predicated on Plaintiff's inability to recover the Master tapes. Thus, whatever attorney's fees Plaintiff incurred in pursuit of the monetary damages and copyright claims were as result of Defendants' failure to return the Master tapes as promised.

Sanction Motion Argues Blogging is Vexatious Conduct

Ray Beckerman defends alleged file-sharers in cases brought by the RIAA; he also runs the most comprehensive blog about the RIAA's legal campaign against file-sharing.

In UMG Recordings, Inc. et al. v. Lindor, No. 05 CV 1095 (DGT)(RML), (E.D.N.Y. motion dated Sept. 12, 2008), plaintiffs filed a memorandum of law in support of their motion for sanctions and to dismiss without prejudice. Their argument is:

Defendant And Her Counsel Should Be Sanctioned For Providing False And Misleading Information And For Unreasonably And Vexatiously Multiplying And Prolonging This Litigation; Defendant and her counsel should be sanctioned for discovery abuses under Rule 37 and the Court’s inherent authority; Defendant’s counsel should be sanctioned for engaging in vexatious litigation in violation of 28 U.S.C. § 1927 by making false statements, fighting Plaintiffs’ good faith efforts to uncover crucial evidence, and filing frivolous motions, all of which unnecessarily increased the costs of this litigation; Defendant, her counsel, or both should be ordered to pay monetary sanctions to Plaintiffs because their misconduct demeaned the integrity of the judicial process and unnecessarily prolonged and increased the cost of this lawsuit.

At page 19-20 of the brief, plaintiff's argue:

Finally, as this Court is aware, Defendant’s counsel has maintained an anti-recording
industry blog during the course of this case and has consistently posted virtually
every one of his baseless motions on his blog seeking to bolster his public relations campaign and embarrass Plaintiffs. Such vexatious conduct demeans the integrity of these judicial proceedings and warrants this imposition of sanctions. See Galonsky, 1997 U.S. Dist. LEXIS 19570, at *18-19.

Nail and Mail - The Bronx

Warner Bros. Records Inc. v. Berry, No. 07 Civ. 1092-HB, 4/15/08 N.Y.L.J. "Decision of Interest" (S.D.N.Y. decided Apr. 9, 2008).

The court adopted Magistrate Judge's recommendation to deny Plaintiff's default judgment application and dismissed the case.

Plaintiff's alleged that Defendant used KaZaA to download, distribute and make available for distribution the copyrighted recordings of certain artists in violation of the Copyright Act. Over a year before filing the complaint, Plaintiffs served AOL (an ISP), which identified Defendant as the person responsible for the IP address that was using KaZaA. AOL provided Plaintiff's with an address for Defendant in the Bronx, NY. Plaintiffs then hired a process server, whose attempts at service were "unsuccessful"; thereafter, the process server affixed one copy on the property in the Bronx. and depositing a copy of the summons in a first class post paid envelope addressed to the same address.

However, the Court found that service on Defendant was defective and therefore dismissed the complaint. "Here, service was defective under the 'nail and mail' method [CPLR 308(4)] because Plaintiffs' process server both affixed and mailed the summons to Defendant's last known residence."

Though the mailing component of service by "affixing and mailing" may be to the defendant's last known residence, "the 'affixing' component must be to the door of the defendant's actual place of business, dwelling place or usual place of abode, and not to the defendant's last known residence. To blur the distinction between 'last known residence' and 'dwelling place' 'would diminish the likelihood that actual notice will be received by potential defendants.'"

However, the Court did not adopt the Magistrate Judge's recommendation that Plaintiffs be ordered to show cause they they did not violate FRCP 11(b). The Court found that "while Plaintiffs' lawyers should be faulted for failing to keep closer tabs on their process server and for failing to better supervise their paralegal, their actions do not rise to the level of a Rule 11(b) violation. Plaintiffs' lawyers might have been sloppy in their attempts to serve Defendant, but giving them as officers of the Court the benefit of the doubt, all their representations to this Court were...nor for the improper purpose of unnecessary delay."