Workshop Agreement Does Not Permit Attorneys Fees Or Indemnification

Bowen v. Paisley, No. 3:13-cv-0414 (M.D. Tenn. June 16, 2014).

The Court held that defendant's counterclaims for breach of contract would proceed, but their counterclaims for indemnification and attorney's fees would be dismissed.  Plaintiff wrote and recorded a song and alleged that two popular country music artists (Brad Paisley and Carrie Underwood) violated her copyright interests.  Plaintiff alleged that defendants gained access to her song when she performed it during a 2008 country music songwriting workshop in Nashville, in which two other defendants served as guest instructors.  Those defendants alleged that s a condition of participation in the workshop, plaintiff signed a consent agreement, in which the plaintiff effectively waived her right to bring the copyright claims asserted, at least as they related to access gained in the workshop.  First, the Court found that the defendants could not assert contractual indemnification under the agreement because it would lead to an "absurd result" of requiring plaintiff to defend the defendants against her own claims.  Second, the Court held that it would permit the defendant's breach of contract claim -- based on a covenant not to sue provision -- to remain, but recognized that the claim would eventually lead to "a doctrinal thicket" as to its viability.  Lastly, the Court held that the attorneys fees claim failed under the language of the contract.

Gaga Dismissed From Copyright Case Because Indemnification And Contribution Not Available

Gaines v. Fusari, No. 2:11-cv-04433-WJM-MF (D.N.J. filed 05/08/13) [Doc. 85].

The Court granted third-party defendant Lady Gaga's motion to dismiss the third-party complaint.  Gaga and defendant co-own the copyright to a number of songs.  Plaintiff brought the action seeking a declaration that he is a co-author and co-producer of the songs.  After Plaintiff sued defendant, defendant brought third-party claims for indemnification and contribution against Gaga.  The Court found:
Fusari’s indemnification and contribution claims against Germanotta must be grounded in federal law. But neither federal statutory law nor federal common law provide causes of action for indemnification or contribution in Copyright Act cases. See, e.g., Pure Country Weavers, Inc. v. Bristar, Inc., 410 F. Supp. 2d 439, 448 (W.D.N.C. 2006) (no cause of action for indemnification in Copyright case); Arista Records, Inc. v. Flea World, Inc., 356 F. Supp. 2d 411, 416 (D.N.J. 2005) (no cause of action for contribution in Copyright case). Accordingly, the Court will DISMISS Counts I and II WITH PREJUDICE.

Napster Loses Indemnification Suit Against Label Over Mechanical Licenses

Napster LLC v Rounder Records Corp., No. 09-cv-00318 (S.D.N.Y. decided Jan. 25, 2011).

The dispute is over whether Rounder, a record label, is contractually obligated to indemnify Napster for costs incurred due to copyright infringement lawsuits brought by the owners of musical compositions embodied in the sound recordings provided by Rounder. Napster contends that under two contracts, Rounder was required to procure mechanical licenses for use of the infringed musical compositions.

The court dismissed Napster’s claim based on the first contract because the contract was rescinded by the second contract, thereby extinguishing any claim Napster might have had for its breach. The court dismissed Napster’s claim based on the second contract (i) for Napster's failure to comply with its advance consent provision concerning indemnification; and (ii) it was not Rounder’s responsibility to procure mechanical licenses for the infringing compositions under the contract.

Motion to dismiss granted.


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.