Paul McCartney and Sony Settle Copyright Termination of Transfer Litigation

McCartney v. Sony/ATV Music Publishing LLC, et al., No. 17-cv-363 (ER) (S.D.N.Y. Document 41 Filed 06/29/17).

The parties resolved their litigation involving Paul McCartney's termination notices by entering into a confidential settlement agreement and jointly requested that the Court enter a proposed order dismissing the action without prejudice.

Spotify Settles Songwriter Royalty Class Action

Ferrick v. Spotify USA Inc. et al., No. 1:16-cv-08412 (S.D.N.Y. May 30, 2017).

Spotify has agreed to pay $43 million to settle two class actions brought by Camper VanBeethoven lead singer David Lowery, and singer-songwriter Melissa Ferrick. The actions claimed that Spotify chose “systemic and willful copyright infringement” by failing to pay proper royalties to thousands of songwriters and their music publishers.

“Different Strokes” Copyright Case Subject to Claim Preclusion; 7th Cir.

Johnson v. UMG Recordings, No. 16-2943 (7th Cir. Oct. 31, 2016).

Plaintiff’s copyright infringement case against some publishers concerning samples of his song “Different Strokes” was precluded by settlement of an earlier suit, holds the 7th Circuit in affirming that the Plaintiff should have moved before the original Judge to vacate the judgment on the alleged basis of fraud rather than commencing a new action.  The Appellate Court stated: “a judgment in civil litigation is not subject to collateral attack.  Fraud is a basis for setting aside a judgment, but that is done by motion…in the original case rather than by separate suit.”  Because the plaintiff had not attempted to re-open his earlier suit, his effort to obtain collateral review was properly dismissed.  The Court also noted that plaintiff was not entitled to split his claim into multiple pieces under the “merger and bar” doctrine.  “He must instead litigate all closely related claims at once.”

"Happy Birthday" Is In The Public Domain, Declares Court

Good Morning To You v. Warner/Chappell Music, 13-cv-4460 (C.D. Cal. filed June 30, 2016).

In the "Happy Birthday" case, the Court entered a final order and judgment declaring that the song is in the public domain and otherwise approving the parties' class-action settlement. Per the parties' agreement, class counsel was awarded fees, and the named plaintiffs also received incentive fees.

Happy Birthday Case Settles Shortly After Plaintiffs Granted Leave To Expand Class Period Back To 1949

Good Morning To You Productions v. Warner/Chappel, No. 13-4460 (C.D. Cal. Dec. 7 & 8, 2015).

In the "Happy Birthday To You" case, the Court granted Plaintiffs' motion to amend the complaint to expand the proposed class period back to 1949.  Shortly thereafter, an announcement was made that a settlement had been reached.

Pandora Pre-1972 Suit Settles

Various news outlets report that the Pandora pre-1972 sound recording litigation has settled for $90 million.

Pre-Trial Evidentiary Rulings In Grooveshark Case

UMG Recordings, Inc. v. Escape Media Group, No.11-cv-8407 (SDNY filed 04/23/15) [Doc. 174].

In advance of a jury trial on statutory damages, the Court made a number of pre-trial evidentiary determinations on motions in limine.  Among its holdings as to what the parties could or could not introduce at trial, the Court held that defendants were precluded from offering argument or evidence contesting that their conduct was willful or in bad faith (the jury would be instructed that there was a cap of $150,000 per work, not $30,000), but defendants were permitted to present proof as to the degree and extent of their willfulness.  As to Defendants' argument that Plaintiffs could receive statutory damages for infringement of pre-1972 sound recordings (or that the Court had jurisdiction over such claims), the Court reserved decision.  The Court also made several rulings as to what evidence Defendants could introduce concerning their failure to mitigate damages defense (e..g, concerning settlement and future licensing negotiations, failure to make claims against other infringers, DMCA compliance

SESAC Antitrust Settlement Submitted For Approval In Class Action

Meredith Corp. et al. v. SESAC, 1:09-cv-09177-PAE (S.D.N.Y. filed 10/15/14) [Doc. 174].

Plaintiffs filed an unopposed motion for approval of the parties' settlement of the class action antitrust claims.  In their motion, Plaintiffs summarize the first prong of the settlement as: "under the contemplated settlement, SESAC will be bound through 2035 by some of the same core conduct restrictions that constrain the anti-competitive potential, at least as it relates to their dealings with local stations, of the other two U.S. performance rights organizations ('PROs'), ASCAP and BMI, in their consent decrees with the Antitrust Division of the Department of Justice."  Notably, rather than a "rate court", the settlement provides that disputes should be submitted for binding arbitration.

Plaintiffs further summarize the second prong of the settlement as follows: "the proposed settlement will provide significant monetary relief to local stations.  SESAC has agreed to pay $58.5 million into a settlement fund. Those monies will be used to reimburse local stations for the claimed inflated license fees they have paid since 2008 as a result of the alleged anti-competitive conduct that was the subject of this lawsuit."  In addition, the monies will be used to reimburse for legal fees and costs.

Toto's Royalty Suit Against Sony Limited By Magistrate

Toto, Inc. v. Sony Music Entertainment, No. 12-cv-1434-LAK-AJP (SDNY report and recommendation Dec. 11, 2012).

Plaintiff Toto brought the action against Sony Music based on a dispute over the amount of royalties owed under the parties' recording contract.  Sony moved to dismiss, and the motion was granted in part and denied in part. The primary issue in the case ise the royalty rate for music distributed through download and mastertone providers (e.g., iTunes, eMusic, Amazon.com and Verizon Wireless).

The magistrate judge found that Toto's first claim based on royalty accountings for the audit period should be dismissed as contractually time barred.  The parties agreement had a 3 year limitation period (i.e., claims had to be brought within 3 years from the royalty report).  Toto's argument that August 2010 and December 2011 documentation restarted the time limitation was unavailing.  However, the magistrate judge found that the portion of Toto's first claim based on royalty accountings for the post-audit period should not be dismissed with respect to the digital download issue.  In other words, Toto stated a claim for breach of the recording contract for the period within the contractually agreed to 3 year limitation period.

The magistrate judge also found that Toto failed to plead the elements of equitable estoppel.  The Court held that purposefully delaying an audit was not a ground for invoking equitable estoppel.  Also, participation in settlement negotiations was not a ground for invoking equitable estoppel.

The magistrate judge also found that Toto's claim for breach of the implied covenant of good faith and fair dealing should be dismissed.  The claim did not state a distinct cause of action based on a separate set of facts and was not independent of the breach of contract claim.  The good faith and fair dealing claim was duplicative of the breach of contract claim.

Black Keys Settle Commercial Claims Against Pizza Hut and Home Depot

Auerbach v. The Home Depot, 12-cv-05386 (C.D. Cal. doc. 23 filed 11/13/2012); and Auerbach v. Pizza Hut, Inc., 12-cv-05385 (C.D. Cal. doc. 27 filed 11/9/12).

The Black Keys have settled their lawsuit against the Home Depot and Pizza Hut for the alleged unauthorized use of Black Keys songs in commercials.

Settlement Reached In Class Action Over Digital Royalties

Shropshire v. Sony Music, 1:07-cv-02394 (S.D.N.Y. filed 03/07/12) [Doc. 120].

Record label Sony Music agreed to pay nearly $8 million to settle a proposed class action brought by Elmo & Patsy and members of The Youngbloods in which Plaintiffs alleged that the label failed to pay artists proper royalties on sales of digital recordings.

Bob Marley Heirs Settle With UMG

Fifty-Six Hope Road Music Ltd. v. UMG Recordings, Inc., Index. No. 08-cv-6143 (SDNY filed Jan. 5, 2012) [Doc. 175].

The Court so-ordered the parties stipulation of dismissal without prejudice.

LimeWire Settlement

http://www.digitalmusicnews.com/stories/051211limewire

"Limewire and the four major labels have now reached an out-of-court settlement for $105 million, according to information confirmed by the RIAA"

Ticketmaster Settles with Attny Gen. in Springsteen Fiasco

"Attorney General Announces Settlement with Ticketmaster on Sale of Springsteen TicketsTickets will be made available for thousands of consumers shut out by Ticketmaster and steered to a more expensive ticket re-sale website." (Announcement; 2/23/09)

Attorney General Anne Milgram announced today a settlement with Ticketmaster to resolve more than two thousand complaints filed by consumers with the State Division of Consumer Affairs this month in connection with the sale of tickets to Bruce Springsteen and the E Street Band concerts scheduled for May at the Izod Center in the Meadowlands in East Rutherford, New Jersey. The agreement also mandates reforms to Ticketmaster’s business practices.

Copyright Statute of Limitations Bars Suit

"Plaintiff's infringement and ownership claims premised on his alleged full copyright ownership of the songs is barred by the statute of limitations. Plaintiff had been having 'numerous discussions and several meetings' with representatives of Atlantic, Warner/Chappell's predecessor-in-interest, as early as 1988 and knew that Atlantic was claiming a right to publish the songs at that time. Therefore, the three-year statute of limitations expired at latest in 1991 and, as the instant action was filed in 2006, Plaintiff's claims must be dismissed for untimeliness.

***

Plaintiff asserts that settlement discussions took place throughout this time period, but settlement discussions are not the sort of extraordinary circumstance that justify Plaintiff's failure to bring the instant action in a timely manner or to continue prosecuting the 1991 lawsuit, absent evidence of any misrepresentations from the relevant entities or any other type of egregious misconduct at any time during the relevant period."

Poindexter v. Warner/Chappell Music Inc., 2/23/09 N.Y.L.J. "Decision of Interest" (S.D.N.Y. Feb. 9, 2009)

[Procedural note: the Court converted Defendant's 12(b)(6) motion to dismiss to a Rule 56 motion for summary judgment, pursuant to Rule 12(d), "because both parties referenced and submitted materials beyond the scope of the complaint." The parties were permitted to make additional submissions.]

How Genuine is Ginuwine?

An October, 2007 report over the PRNewswire observed:

Ginuwine and his business partner, Michael Bourne, have cleared up their
differences and restored a solid relationship, the recording artist and his
attorney said Thursday. There is no pending lawsuit or liability, and work on a
new Ginuwine album will begin soon.

But my, how things change over the course of a couple months! Yesterday, the hip-hop artist (on Columbia records) Ginuwine filed suit in the Southern District of New York for alleged fraud and breach of settlement agreement by -- you guessed it -- Michael Bourne and related companies.

[Pa Pah Productions Inc; Elgin Lumpkin pka Ginuwine v. King Music Group Inc.; King Music Group LLC; M&A Holding LLC; Michael Bourne; Does 1-10. Case filed, 1/15/2008; Case no. CV-0391]

Infringement Case Reinstated

A copyright infringement case dismissed in Texas federal court upon a settlement amongst the parties has been reinstated after the defendant -- the alleged infringer via online distribution and copying-- defaulted on the settlement.

[Arista Records LLC et al. v. Painter; E.D.Tex. filed 2/6/07, Reinstated 1/4/08; case 1:07-cv-00071-MAC]

Paradise by the Dashboard Light

Steve Popovich, founder of Cleveland International Records, won a federal appeal upholding a jury's deicison to award him more than $5mil. after a contract dispute with Sony Music. Cleveland Int'l Records introduced the world to the artist Meat Loaf, whose "Bat Out of Hell" album has sold a reported 43 million copies worldwide since its 1977 release.

Meat Loaf was signed to Cleveland Int'l and Sony eventually acquired the rights to the album. (Epic Records > CBS > Sony.) In 1995, Popovich sued Sony for unpaid royalties and settled out of court for a reported $7mil. As part of the settlement, Sony agreed to include the Cleveland Int'l Records logo on reissues of "Bat Out of Hell". When Sony failed to include the logo, Popovich sued again. After a federal jury awarded Popovich $5mil in damages, the appellate court affirmed. Further, the appellate deciions permits Popovich to pursue, on remand, damages for possible breach by Sony outside of the original limited geographic scope of the Settlement.