Blues Musician's Sampling Case Dismissed For Lack Of Jurisdiction In Illinois

Johnson v. Barrier et al., No. 15-3928 (N.D. Ill. Jan. 4, 2017).

The Court granted defendant's Rule 12(b)(2) motion to dismiss for lack of jurisdiction, without prejudice to refiling in another jurisdiction.  Plaintiff is a blues musician who alleges UMG and others intentionally misappropriated his song by sampling it in another group of songs (the "Juice Products").  After granting plaintiff limited jurisdictional discovery, the federal Court found that it did not have specific or general jurisdiction over the defendants under Illinois law.  The Court observed that " UMG’s wholesale shipments and sales of Juice Products within Illinois constituted only 1% of its total wholesale figures, and—as UMG’s corporate designee testified—none of the marketing associated with the Juice Products was specific to or otherwise targeted Illinois."  Having dismissed on jurisdictional grounds, the Court did not decide the defendants' motion to dismiss for failure to state a claim.

Sampling Case Against B.I.G. Dismissed

Hutson v. Notorious B.I.G., LLC et al., No. 14-cv-2307-RJS (SDNY Dec. 22, 2015) [Doc. 51].

On a Rule 12(b)(6) motion, the Court dismissed plaintiff Lee Hutson's copyright infringement claims against the Notorious B.I.G.'s successor, label, publisher, record company and distributor, which alleged unauthorized sampling of Plaintiff's 1973 song (composition and sound recording) "Can't Say Enough About Mom" in the Biggie song "The What" appearing on the 1994 album "Ready To Die."  Plaintiff alleged that he first discovered the unauthorized sample in 2012, and brought suit in 2014.  In his amended complaint, plaintiff alleged infringement of the composition, of the sound recording outside the USA, and the digital performance right of the sound recording.

The Court dismissed each claim.  After noting the standard on a Rule 12(b)(6) motion, and discussing which documents outside of the pleadings it would consider (e.g., agreements, the sound recording, copyright registrations, certificates of incorporation), the Court then turned to each cause of action.

First, the Court found that Plaintiff lacked standing.  Although Plaintiff alleged that he owned 50% of the copyright in the composition, the Court found that allegation implausible for the time of the infringement (1994-the present) because the agreements submitted did not establish that he had a chain of title, and further, the allegation that plaintiff was "doing business as" a certain entity was insufficient given corporate formalities.  [The Court did note in dicta, fn. 4, that the statute of limitations defense likely failed.]  Similarly the Court found that Plaintiff failed to plead ownership of the sound recording because of a a prior lawsuit in which the settlement included an assignment to the record label as well as a release.

Second, the Court found that it lacked jurisdiction over infringement occurring abroad.

Accordingly, the Court dismissed the claims.  The Court even dismissed claims against a non-moving defendant.

Lastly, the Court denied Plaintiff's application for leave to amend, as futile.

Manager's Suit Against Band Not Stayed By Parallel State Proceeding

Tramposch v. Winter, 10 Civ. 8286 (TPG), NYLJ 1202496374985, at *1 (SDNY, Decided May 25, 2011).

Plaintiff brought an action for breach of contract, unjust enrichment, etc. Plaintiff was the manager of the band "Red Jumpsuit Apparatus" until the band terminated the relationship in January 2010. According to plaintiff, prior to his termination, he and the band had a series of disputes regarding payment of commissions and repayment of loans made by plaintiff to the band. Defendants, members of the band, moved to stay the action pending resolution of a parallel proceeding brought by defendants against plaintiff in California. The Court denied the motion.

Plaintiff was not served with the complaint in the California state proceeding until AFTER he had commenced the Federal proceeding in New York (diversity jurisdiction). The Court found that there was no basis to abstain from hearing the federal case.

VideoEgg Transferred to California

In Capitol Records v. VideoEgg, defendant's motion to dismiss for improper venue and lack of jurisdiction was denied, but the case was transferred to California. [Article.]

The jurisdiction discussion focused on defendant's website and New York's long-arm jurisdiction statute (did they "transact business in New York?"). With respect to the transfer request, the court analyzes 7 factors for a transfer under 28 U.S.C. 1404.

No. 1:08-cv-05831-HV-DCF (Doc. 57 filed Mar. 5, 2009)

MP3Tunes Update

Back in November, 2007, OTCS did a posting on a copyright infringement claim filed against MP3Tunes. (Posting here.) At the time, our hypothetical questions were ignored. (OTCS takes absolutely no position on the merits of the case or defense.)

So, we hadn't heard anything until a Tipster dropped us a line today:

"...just completed oral arguments on jurisdiction for the company and [MP3Tunes CEO Michael Robertson personally]."

CEO Michael Robertson's take on the issue of his personal liability is available on his website. ("The Record Label Wants My Minivan"; June 11, 2008).

Thanks Tipster. Please let us know what the court finds (e.g., send us a copy of the decision).

[Capitol Records Inc.; Caroline Records Inc.; EMI Christian Music Group Inc.; Priority Records LLC; Virgin Records America Inc.; Beechwood Music Corp.; Colgems-EMI Music Inc.; EMI April Music Inc.; EMI Blackwood Music; EMI Full Keel Music; EMI Golden Torch Music Corp.; EMI Longitude Music; EMI Virgin Music Inc.; EMI Virgin Songs Inc. v. MP3Tunes LLC; Michael Robertson. Filed S.D.N.Y. 11/9/2007; 07 CV-9931]

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,

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)]