Hip Hop Producer Failed To State A Claim Against Her Former Attorneys In An Earlier Copyright Action

Boone v. Codispoti & Assocs., No. 15-cv-01391 (S.D.N.Y. filed Oct. 7, 2015).

The Court held that a hip-hop producer, proceeding pro se, did not state a claim for fraud, conspiracy and denial of due process arising from her former attorney's prior representation in a copyright infringement action.  Plaintiff alleged that her former attorneys falsely led her to believe that a jury trial would occur, and to amend her pleadings, knowing that almost all copyright infringement actions do not survive summary judgment.  The claim failed because the alleged statements were a mere expression of future expectations that did not constitute actionable fraud.  Moreover, the alleged actions were not fraudulent representations or omissions.  The claim was also time-barred.  Lacking a fraud claim, her conspiracy claim also failed.  The due process claim, under 42 USC 1983, failed because there was no statement of a constitutional violation.  The summary judgment decision dismissing her earlier case was affirmed on appeal.  Nor did defendants act under color of state law.  The defendants were private attorneys who represented plaintiff in federal court in a copyright action.  Leave to amend was denied, and the complaint was dismissed.

Only Breach Of Contract Claim Survives in Ozzy Osbourne Guitarist Case

Rhoads v. Margolis, No. B249800 (Cal. App. Ct., 2d Dist. - Div. 7, Jan. 26, 2015).

Only a breach of contract claim survived in an action, brought by the family of a well-known rock guitarist who died in a 1982 plane crash, against Defendants based on the family's grant of the right to use personal information and memorabilia to make a documentary film about the deceased guitarist.  When the documentary project faltered, defendants instead published a book about the guitarist.  The family sued, alleging the book was based on materials they had provided for the exclusive purpose of making the documentary film.  Defendants moved to dismiss the complaint.

On appeal, the Court found that the Anti-SLAPP Statute (section 425.16) applied because the principal thrust of every claim was premised on the allegation that the defendants, in researching, writing and publishing the book, used the family's proprietary material provided solely for the purpose of the documentary.  Whether or not defendants violated the terms of the agreement, their conduct in writing and publishing the book qualified as a form of protected activity.  With the exception of the breach of contract claim, the family failed to establish a probability of prevailing on its claims. The fraud claim failed because there was no allegation that the defendants intended to create the book at the time of the agreement.  The misappropriation claim (based on the right of privacy) failed because the alleged acts did not implicate the personal privacy or publicity rights of the guitarist's family members.  Additionally, the life and death of the guitarist was a matter of public interest.  The unfair competition claim failed because plaintiffs had not articulated an actionable manner in which the public was likely to be deceived by the book or that consumers suffered substantial injury.

Monster's 3rd Party Claims Against DJ Dismissed In Beastie Boys Case

Beastie Boys v. Monster, No. 12-cv-6065 (S.D.N.Y. filed Nov. 4, 2013) [Doc. 51].

The Beastie Boys sued Monster Energy drinks under Lanham Act for the allegedly unauthorized publication of a promotional video that used as its soundtrack a remix including songs originally composed and recorded by the Beastie Boys.  Monster brought third-party claims for breach of contract and fraud against a DJ, who originally made the remix (with the Beastie Boys' permission) and furnished it to Monster.  After discovery, the Court granted the DJ summary judgment dismissing the third-party claims.

First, the Court found that there was no binding agreement between the DJ and Monster.  "...[A] reasonable
juror could not find an offer, sufficiently clear acceptance, or consideration, e.g., a legal duty which Monster incurred to Z-Trip, let alone all three."  Second, the Court found that there was no fraud.

"In sum, if Monster is liable to the Beastie Boys, it may not shift legal responsibility for such lapses to Z-Trip.  Any such liability on Monster’s part would arise instead because Monster left these matters in the hands of an employee insensitive to the legal issues presented by making derivative use of, and commercially exploiting, the Beastie Boys’ original work. In musical terms, Z-Trip can now, therefore, rest at least “as cool as a cucumber in a bowl of hot sauce,” because Monster’s Third-Party Complaint against him has “got the rhyme and reason but no cause.” Beastie Boys, So Watcha Want (Capitol Records 1992). It is therefore dismissed, with prejudice."

The Court, in a separate order, further urged the parties to settle the case rather than to go to trial.  [Doc. 53].

Radio Station Not Liable On Claims Based On Number Of Podcast Downloads

Cmty. Music Ctrs. of Atlanta, LLC v. JW Broad., Inc., 2013 ILRC 2580, 2013 WL 4516739 (Ga. Ct. App. 2013).

Plaintiff advertised its music education services on defendant's radio station, but failed to pay.  The radio station sued for "open account", and the plaintiff counter-claimed for breach of contract and fraud.  The crux of plaintiff's claims was that the radio station misrepresented the exposure it would provide through podcast downloads.  According to plaintiff, the radio station failed to fulfill its promise that there would be “hundreds of thousands of downloads” of the program plaintiff sponsored and, as a result, plaintiff did not receive the advertising exposure it had bargained for.

The court found that the radio station was not liable on the breach of contract claim because the plaintiff failed to present any evidence to show that the radio station promised that there would be a certain number of future downloads of the program.  Instead, the radio station "promoted the program's national popularity by stating that it 'has received hundreds of thousands of downloads,' in other words, in the past".  The fraud claim similarly failed because the plaintiff sought, not a certain number of downloads, but, rather, to sponsor a radio show for a specific time period.  Any prediction regarding future download statistics would be conjecture, falling short of fraud.

New Trial In EMI/Citi Case

Terra Firma Investments v. Citigroup, Docket No. 11-1267 (2d Cir. May 31, 2013)

After a jury trial, judgment was entered against Plaintiff.  The Second Circuit vacated the judgment and remanded for a new trial, "[b]ecause the district court’s jury instructions were based on an inaccurate understanding of the relevant English law".

This case concerns the 2007 acquisition of EMI by the private equity firm Terra Firma.  Terra Firma sued Citigroup, alleging that during the auction, a Citi banker advising the auction fraudulently induced the Terra Firma to make an inflated bid for EMI.  A jury ruled in Citi's favor.

'Beat It' to Promotor's Claims Against Jackson Estate

Allgood Entertainment, Inc. v. Dileo Entertainment Entertainment & Touring, Inc., et al., No. 09 Civ. 5377 (S.D.N.Y. opinion & order June 29, 2010).

"This case is about whether or not Michael Jackson, through his alleged manager Frank Dileo, agreed to perform a concert with the plaintiffs, AllGood Entertainment, Inc. and AllGood Concerts, LLC, and then later reneged on this agreement in order to perform a different concert with the defendants Anshutz Entertainment Group, AEG Live, LLC, and AEG Live NY, LLC. Plaintiffs allege breach of contract, promissory estoppel, and fraud by Frank Dileo and his management company, Dileo Entertainment and Touring, Inc., and allege tortious interference of contract on the part of Anshutz Entertainment Group and the other AEG entities; Plaintiffs also seek a permanent injunction. Both sets of defendants have moved to dismiss for failure to state a claim. For the reasons below, the tortious interference, fraud, and permanent injunction claims are DISMISSED."



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)

Oh, Nelly!

Juan Antonio Castro Rios p/k/a/ Tony Tun Tun v. Coalition Music, LLC et. al, No. 1:08-cv-20922-AJ (S.D.Fla filed Apr. 4, 2008).

Allegations:

Plaintiff wrote a song ("Hagamos el Amor"), brought the song to Nelly, and the two worked together to edit the musical arrangement of the original composition. English lyrics were written to a portion of the composition, and plaintiff recorded and produced the vocals.

Nelly retained copies of the recordings, and the composition appeared on "The Perfect Melody", performed by the artist Zion and produced by Nelly. Neither Zion or Nelly (or any other party) obtained licenses or consent for use of the composition.

The liner notes to "The Perfect Melody" falsely state that Zion is the sole songwriter of the composition, though it is noted that plaintiff is featured in the performance.

Therefore, plaintiff seeks declaratory relief as to the various parties' ownership percentage in the composition. Also, plaintiff alleges fraud by Nelly, unjust enrichment against all defendants, and seeks an accounting.

Interestingly, plaintiff's last count is for copyright infringement -- defendant's composition "is an unauthorized and illegal derivative work of the original composition".

[Request copy of the complaint]

Dick Clark Seeks Removal to Federal Court

On January 4, 2008, crooner Brian K. Evans filed suit in California state court against the legendary Dick Clark's production company on three causes of action arising out of defendant's use of the sound recording "It Had to be You" in connection with the television show (and international concert tour of) So You Think You Can Dance: breach of contract, fraud, and for an accounting. But, as the complaint explicitly indicated,

NATURE OF THE ACTION
6. This complaint concerns the breach of a written contract and the infringement of copyrighted property of Mr. Evans, specifically his recording of the song "It Had To Be You," the master of which is owned by the Plaintiff. The copyright registration number of this song is SR0000357687 (dated 06-22-2004). This particular song was used in the tour "So You Think You Can Dance." The recording of this song is not subject to BMI, ASCAP regulations or procedures. Plaintiff recorded this song on his own and licensed it to Dick Clark Productions, Inc.

Evans v. Dick Clark Productions, Inc., No. SC096606 (Cal. Super.Ct., Los Angeles Co. - Western Dist.) (Emphasis added.)

In response, Defendant filed a notice of removal to the federal district court in the Central District of California, noting that federal courts have original jurisdiction over copyright cases pursuant to 28 U.S.C. 1338(a). ("The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to ... copyrights... Such jurisdiction shall be exclusive of the courts of the states in ... copyright cases."). Further, Dick Clark argued that 17 U.S.C. 301(a) is "a broad preemption provision that preempts all state law claims within the general scope of copyright."

Given the above, it is unclear why Plaintiff (who is not appearing pro se) filed suit in state court.

[Evans v. Dick Clark Productions, Inc., No. 2:08-cv-00800-SVW-FFM (C.D.Cal, notice of removal filed Feb. 6, 2008)]

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]

Fool's Game

A month ago, OTCS reported that Michael Bolton et al. was sued by his money manager for breach of contract.

In a bizarre twist, and with probable implications under New York's Civil Practice Law and Rules (i.e., the CPLR), Michael Bolton (and many of the defendant's from the original action) have filed a summons with notice in New York Supreme Court, New York County -- the very same jurisdiction where the original suit was filed -- against Executive Monetary Management, Plaintiff in the original action, for alleged breach of fiduciary duty, fraud, and fraudulent concealment. Damages alleged are $5 mil.

Why is this being filed as a separate suit, rather than as counterclaims or affirmative defenses in the original action under CPLR 3018(b) and 3019? What are the implications for these claims not being asserted in the Answer of the original action, especially if they arise out of the same transaction? Litigators: this one's for you!

[Stowaways LLC; The Second Time Around LLC; MBO Tours Inc.; MBO Productions Inc.; Passion Realty LLC; MB Swings II LLC; Montaigne Records LLC; Passion Films Inc.; M Bolton Entertainment LLC; Bolton Power Blues LLC; Michael Bolton; Mr. Bolton's Music Inc.; Is Hot Music Ltd.; Passion Music Inc.; Bona Justitia Music Inc. v. Executive Monetary Management Inc. Filed 1/14/2008; Case no. 08-600111]