Artist Has Label's Claims Dismissed; Judgment On Counterclaims

Alistair Records, Inc., v. Adams, 603695/09, NYLJ 1202497369670, at *1 (Sup., NY, Decided May 20, 2011).

Defendant recording artist's motion for an order amending the caption to reflect the correct name of plaintiff record label, "Alistair Records, LLC" is granted. Defendant artist's motion for entry of a default judgment on his breach of contract counterclaim against plaintiff label is granted ($6,000). Artist's motion for entry of a default judgment on his counterclaim for rescission is denied and that counterclaim is severed and dismissed. Artist's remaining counterclaims continue.

Artist's motion for summary judgment dismissing the complaint (seeking injunction and $750,000) is granted. Record label failed to submit any evidentiary facts to controvert the claims in artist's motion.

Assignment of Label Trademark

Fitzpatrick v. Sony-BMG Music Entertainment, Inc., 07 Civ. 2933 (SAS), NYLJ 1202471263978, at *1 (SDNY, Decided August 23, 2010):

Plaintiff Basil Fitzpatrick brought suit under section 1125 of Title 15 of the United States Code (the "Lanham Act") against Sony-BMG Music Entertainment, Inc. and Red Distribution, Inc. (collectively the "Red defendants") and Sheridan Square Entertainment, LLC ("SSE"), Sheridan Square Entertainment, Inc., and Daniel Goldberg (collectively, the "SSE defendants"). Fitzpatrick alleges that the SSE defendants infringed his common law trademark in the name "ARTEMIS RECORDS" by improperly using that name and creating reverse confusion in the marketplace. Goldberg now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c) on the ground that he assigned the "ARTEMIS RECORDS" trademark to SSE and is therefore not liable for any alleged "indirect infringement." For the reasons that follow, Goldberg's motion is granted and plaintiff's Complaint is dismissed against him.

The Court held the assignment was not an invalid assignment "in gross."

2d Cir Finds Antitrust Suit Stated Against Record Labels For Online Sales

The United States Circuit Court, Second Circuit, holds that plaintiffs' antitrust complaint alleging a conspiracy by major record labels to fix the prices and terms under which their music would be sold over the Internet states a claim for violation of Section 1 of the Sherman Act under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The amended complaint contains "enough factual matter (taken as true) to suggest that an agreement was made," id. at 555, and therefore states a claim.

"The present complaint succeeds where Twombly's failed because the complaint alleges specific facts sufficient to plausibly suggest that the parallel conduct alleged was the result of an agreement among defendants," Judge Katzmann said.

The defendants "agreed to launch MusicNet and pressplay, both of which charged unreasonably high prices and contained similar DRMs", and the entities did not "dramatically" drop "their prices for Internet Music (as compared to CDs), despite the fact that all defendants experienced dramatic cost reductions in producing Internet Music."

Starr v. Sony BMG, No. 08-5637-cv, NYLJ 1/14/2010 "Decision of the Day" (2d Cir. decided Jan. 13, 2010).

Music Videos Authorized by Artist - Where does the Label Come In?

Recently, OTCS was forwarded a link for Black Cab Sessions. For fans of indie music, this site is a must. In sum, it's "unplugged" - but in the back of a taxi driving around London. (Favorites include Bon Iver, and Jens Lemkin.)

The site got OTCS thinking. Generally, an artist's recording agreement provides that the label owns all rights in recorded live performances and music videos. But, where an artist agrees to be recorded for online distribution, where does the label come in? Is it a "bootleg" if the artist agrees to be recorded without the label's consent? Do labels even care, and if yes, how can they capitalize on it? What sort of protection can a indie video producer/web-site receive from the artist? Where does the publisher come in?

OTCS doesn't have the answers, nor does it have any idea about the specifics of Black Cab. But, these issues might arise in the future. - Artists Royalty Program launched their Artist Royalty Program. The program allows unsigned musicians to collect royalties when their music is loaded into’s library and then streamed.

“The young musician making music in a bedroom studio has the same chance as the latest major label signing to use to build an audience and get rewarded. The Artist Royalty Program is another revolutionary step towards helping musicians take control of their music — and, more importantly, make a living from it,” said co-founder Martin Stiksel.


Napster - DRM Free

Napster, who has a sale catalogue of 6 million songs, today stripped DRM from all paid downloads on its digital music service in favor of unprotected MP3s.

The company has support from all 4 major labels. (Given Napster's legal history with the labels, it's kind of ironic, right?)

Notably, customers cannot (yet) replace their previously purchased DRM-laden files with the new unprotected versions. Does the media-upgrade strategy correlate to other historical "upgrades": LP to tape, tape to CD, CD to...errr...minidisc? Will consumers purchase DRM-free copies of songs they previously downloaded with DRM?

[Billboard article.]

Lennon - State Court Action

A tipster wrote in informing OTCS that a Naxos/Pre-72 case (i.e., state common law copyright infringement of sound recording) HAD been filed against the Expelled defendants (see today's earlier posts). After a little research, OTCS reports the following:

EMI Records Limited; Capitol Records LLC v. Premise Media Corporation LP; C & S Production LP dba Rampant Films; Premise Media Distribution LP; Rocky Mountain Pictures Inc.. Filed 4/22/2008; No. 08-601209.

Complaint asserts common law copyright infringement and unfair competition related to "Imagine." Plaintiff seeks to "curtail" defendants' use. (Does that mean enjoin?) Note that Plaintiffs in this matter are the record labels, rather than the Lennon heirs and Imagine-publisher.

If you have a copy of the complaint, please forward.

Thanks tipster!

Radiohead Authorizes Unauthorized Remix of "In Rainbows"

Radiohead - again challenging industry standard! Rolling Stone reports "Amplive’s remixed version of Radiohead’s In Rainbows has finally gotten the green light from the Oxford quintet after the band initially denied its release." And from Amplive,

After a cease & desist put the breaks on Amplive's Radiohead In Rainbows remix project, the online music community reasonably wondered if the tracks would ever see the light of day. Well, here they are. While the Oakland producer/DJ acknowledges that he probably should have contacted Radiohead (who were not involved in the project) to seek approval prior to making his interpretations publicly available, an agreement has been reached between all involved parties and Amplive has been granted permission to release Rainydayz Remixes for free to the general public. Effective immediately, the eight-track record is available here.

So, to clarify. Radiohead releases an album, initially online in a pay-your-own-price scheme and subsequently in physical (traditionally priced) formats, all without label support. A remix of the album is created without authorization from Radiohead. A cease & desist letter is issued. The cease & desist letter is abandoned. The remix is distributed WITH authorization, for free, online.

Why did Radiohead change their mind and grant authorization? If the remix is distributed on-line for free, is there a licensing fee and if yes, on what is it based?

DOES Anyone Care?

More. Copyright. Infringement. Actions. Various. Federal Courts.

IP Addresses. John Does. Major Labels.

Some (but not all): Ex parte. Discovery. College ISPs.

Who is Carlos Linares, upon whose application the ex parte applications for expedited discovery are based?

[Atlantic Recording Corporation et al v. Does 1-2; filed 1/31/08 in Calif. Southern District; case no. 3:2008cv00190.
Arista Records LLC et al v. Does 1 - 4; filed 1/31/08 in Georgia Northern District; case no. 1:2008cv00358.
BMG Music et al v. Does 1-19; filed 1/31/08 in Kentucky Western District; case no. 3:2008cv00070.
LaFace Records L L C et al v. Does; filed 1/31/ 08 in Louis. Western District; case no. 3:2008cv00137.
Arista Records LLC et al v. Does 1 - 3; filed 2/1/08 in Missouri Eastern District; case no. 4:2008cv00160.
BMG Music et al v. Does 1-6; filed 1/31/08 in Mississippi Northern District; case no. 1:2008cv000231.
CAPITOL RECORDS, INC. et al v. DOE # 1 et al; filed 2/1/08 in North Carolina Middle District; case no. 1:2008cv0008.
ZOMBA RECORDING LLC et al v. DOES 1-26; filed 2/1/08 in New Jersey, case no. 3:2008cv00566.
Zoomba Recording LLC et al v. Does 1-8; filed 1/31/08 in Ohio Southern District; case no. 3:2008cv00030.]

I Went to College - And Got Sued by the RIAA!

Another day at the races for the major labels, who yesterday (1/30) filed no less than 7 copyright infringement cases against "John Doe" defendants in various federal district courts.

Here's a highlight from Warner Bros. Records, Inc. v. Does 1-4 (1:08-cv-00120-RLY-TAB; filed 1/30/08 in the Southern District of Indiana):

"The true names and capacities of Defendants are unknown to Plaintiffs at this time. Each Defendant is known to Plaintiffs only by the Internet Protocol ("IP") address assigned to that Defendant by his or her ISP on the date and time of that Defendant's infringing activity...Plaintiffs believe that information obtained in discovery will lead to the identification of each Defendant's true name."


"Although Plaintiffs do not know the true names of Defendants, each Defendant is alleged to have committed violations of the same law (e.g., copyright law), by committing the same acts (e.g., the downloading and distribution of copyright sound recordings owned by Plaintiffs), and by using the same means (e.g., a file-sharing network) that each Defendant accessed via the same ISP. Accordingly, Plaintiffs' right to relief arises out of the same series of transactions or occurrences, and there are questions of law or fact common to all Defendants such that joinder is warranted and appropriate here."

Several queries: first, can plaintiffs allege facts as mere "e.g."s? Their description of the infringing acts is beyond general and vague! Second, when you have 15 or more plaintiffs, how much damages does each actually get? The sheer number of plaintiffs indicates that these suits are meant as a deterrent to on-line infringement, rather than as a means to redress actual injury.

But, the fun doesn't stop. Plaintiffs in the above case also filed an ex parte motion for leave to take immediate discovery on a third party ISP to determine the true identies of the Doe defendants.

"Plaintiffs intend to serve a [Federal Rule of Civil Procedure] Rule 45 subpoena on the ISP seeking documents that identify each Defendant's true name, current (and permanent) addresses and telephone numbers, e-mail addresses, and Media Access Control ("MAC") addresses. Without this information, Plaintiffs cannot identify the Doe Defendants or pursue their lawsuit to protect their copyrighted works from repeated infringement."

A glance at the attached "proposed order" shows that the ISP is Indiana University-Purdue IU students, look out!

Also filed with the motion was a brief and affidavit, with attached exhibits of similar orders granted in other district courts. (S.D. Ind.; W.D.Wis.; N.D. Ill; N.D. Ind.; E.D. Wis; C.D. Ill.)

Faithful readers of OTCS, you guessed it. Virtually identical complaints, ex parte motions (and affidavits from the same individual, Carlos Linares) were filed in the other Doe cases: Elektra Enter. Group Inc. v. Does 1-11, (1:-08-cv-10140-NG; filed 1/30/08; D.Mass); Arista Records LLC v. Does 1-3 (1:08-cv-10139-NG; filed 1/30/08); Atlantic Recording Corp. v. Does 1-14 (1:08-cv-00028-JAW; filed 1/30/08; D.Maine); Arista Records LLC v. Does 1-36 (0:08-cv-00278-DWF-AJB; filed 1/30/08; D.Minn - 2d Div.); Arista Records LLC v. Does 1-5; 3:08-cv-00523-GEB-TJB; filed 1/30/08; order granting ex parte discovery on Princeton University 1/30/08; D.N.J); and Arista Records LLC v. Does 1-10 (5:08-cv-00108-NPM-GJD; filed 1/30/08; N.D.N.Y.; proposed order indicates discovery sought on Ithaca College).

I wonder how the clerks of each of the above courts would feel knowing plaintiffs are filing form-complaints and motions with the court? Are the district courts a processing center for the RIAA?

Jay-Z To Join...Apple?!

OTCS thanks its friends over at for bringing the following to our attention:

Jay-Z is launching a record label with...APPLE. Yes, that Apple, that brings you iPods, iTunes and iCantThinkOfAnythingElse.

News is sure to abound, and OTCS plans to watch this developing story closely.

Meanwhile, what does this mean in Apple computer's settlement with Apple Records (of The Beatles fame) over use of the "apple" trademark for a music distribution company?

Online Storage/Locker

This looks interesting: MP3tunes, a company that appears to store your already PURCHASED music on-line, sued by the recording industry. The company offers users a "locker" with unlimited storage and streaming of music, enabling users to listen to their music on any computer, anywhere.

If the user has already purchased the music, what's the problem here? OTCS, regrettably, has not yet read the complaint. However, OTCS assumes this is a section 106 copying claim. Is this what the Copyright Act should protect? How is this any different than a purchaser taking their Case Logic book of CDs from their home-stereo, to their car, to their friend's home, to the office etc.? Music is mobile, and once purchased in one-format (e.g., MP3, 8-track) users should be able to enjoy the music on the corresponding playing -- no matter where. Aren't the labels trying to double-dip?

[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]