Court Explains Prior Dismissal of Copyright Claim Concerning Beyonce's LEMONADE Trailer

Fulkes v. Knowles-Carter et al., No. 16-4278 (S.D.N.Y. Sep. 12, 2016).

Having previously granted the motion to dismiss for failure to state a claim for copyright infringement by "bottom-line order," the Court explained the reasons for its ruling.  In this case, the plaintiff alleged that defendants' distribution of a film trailer and the film itself promoting the release of Beyonce's musical album "Lemonade" infringed plaintiff's copyright in the short film "Palinoia." 

On a Rule 12 motion, the Court noted that the works themselves control, not Plaintiff's descriptions in the pleadings, and decided that the works were not substantially similar as a matter of law.  In short, "Plaintiff's alleged similarities consist almost entirely of clearly defined ideas not original to plaintiff and of stock elements with which even a casual observer would be familiar. Moreover, to the very limited extent that there are even any superficial similarities, these are overwhelmed by the works' vastly different creative choices and overall aesthetic feel. "  The Court then went through each of the 9 allegedly similar scenes.

Ricky Martin Music Video Case Must Be Arbitrated; 1st Cir.

Cortes-Ramon v. Sony Corp., No. 15-1786 (1st Cir. Sep. 9, 2016).

Claims against Ricky Martin and his record label were properly dismissed in favor of mandatory arbitration, holds the 1st Circuit affirming the lower court.  The dispute concerned an original song and music video that the plaintiff submitted to Sony as part of a songwriting contest sponsored by Sony.  Plaintiff did not win the contest.  Nonetheless, shortly thereafter Martin released a song and music video -- "Vida" –- that, according to the plaintiff, closely resembled his own contest submission.  

Sony filed a motion seeking, among other things, dismissal under Fed. R. Civ. P. 12(b)(6) and, in the alternative, a stay pending arbitration under 9 U.S.C. § 3.  Sony appended the "Contest Official Rules" to its motion to dismiss.  Those rules contained a mandatory arbitration clause, requiring that disputes "arising under, in connection with, touching upon or relating to" the rules be submitted to an arbitrator.  The District Court granted the motion, dismissing the case with prejudice.  The District Court found that the plaintiff "received, signed, notarized, and returned" an affidavit stating he had complied with the Contest Rules, and noted that "a valid agreement to arbitrate is presumed even when the signed document incorporates by reference an arbitration provision that may be found in another document, irrespective of whether the party received a copy of the document containing the clause." 

On appeal, the plaintiff appealed only the motion to dismiss for failure to state a claim -- not the dismissal on the grounds of the arbitration clause.  Accordingly, the First Circuit affirmed.  "Because those rulings provide an independent basis for dismissing his claims, we need not address Cortés's challenge to the District Court's decision to dismiss his complaint on 12(b)(6) factual sufficiency grounds."

Vimeo Decision Modified; Leave To Appeal Granted

Capitol Records, LLC v. Vimeo, LLC, 2013 ILRC 3345, No. 09-cv-10101 (S.D.N.Y. Dec. 31, 2013).

Upon further review of the record, the Court agreed with defendants that Vimeo is entitled to summary judgment with respect to five videos for which the only evidence of employee interaction was that the user's account had been "whitelisted."  "It is simply unrealistic to infer that a Vimeo employee watched" those videos.  Also upon further review, the Court found that for two videos, the infringing nature of the videos was not objectively "obvious" and therefore Defendants did not have "red flag" knowledge of the videos' infringing content.  However, the Court found that 18 of the videos still should go to a jury.

The Court granted Plaintiff's motion to amend the complaint to add additional videos, including both pre- and post- 1972 sound recordings.

Lastly, the Court granted Vimeo's motion to certify two questions for interlocutory appeal: (1) Are the DMCA's safe-harbor provisions applicable to sound recordings fixed prior to Feb. 15, 1972, (2) and does a service provider's mere viewing of a user-generated video containing third party copyrighted music automatically give rise to a triable issue of fact as to the service provider's knowledge of infringement under the DMCA?

Airline Sued Over In-Flight Music Videos

Arista Music et al. v. United Airlines Inc. et al., No. 13-cv-7451 (S.D.N.Y. filed Oct. 22, 2013).

Plaintiffs are multiple record labels suing United Airlines for alleged copyright infringement.  Plaintiffs allege that United is transmitting performances of the Plaintiff's music videos and sound recordings, without Plaintiffs' authorization, to airline passengers for in-flight entertainment.

Green Day's Use Of Illustration During Concert Was Fair Use, But Attorney's Fees Denied

Seltzer v. Green Day, Inc. et al., No. 11-56573 [D.C. No. 2:10-cv-02103] (9th Cir. Aug. 7, 2013).

The 9th Circuits affirmed summary judgment in favor of the defendants, but vacated the attorney's fees award, in an artist's action alleging violations of the Copyright Act and the Lanham Act relating to the rock band Green Day's unauthorized use of an illustration ("Scream Icon") in the video backdrop of its stage show.

The Court found that use of the illustration in the video backdrop was a fair use under the Copyright Act: it was transformative, the illustration was a widely disseminated work of street art, the illustration was not meaningfully divisible, and the video backdrop did not affect the value of the illustration.  As to the trademark claims, the artist failed to establish any trademark rights.  In vacating the attorney's fees award under the Copyright Act, the Court found that even though defendant was successful on their fair use defense, the plaintiff did not act objectively unreasonably ("there is simply no reason to believe that Seltzer should have known from the outset that his chances of success in this case were slim to none.").

Veoh Protected By Safe Harbor; 9th Cir.

UMG Recordings Inc. et al. v. Veoh Networks Inc. et al., No. 09-56777 (9th Cir. filed 12/20/2011) [Doc. 39]

Veoh Networks (Veoh) operates a publicly accessible website that enables users to share videos with other users. Universal Music Group (UMG) is one of the world’s largest recorded music and music publishing companies, and includes record labels such as Motown, Def Jam and Geffen. In addition to producing and distributing recorded music, UMG produces music videos. Although Veoh has implemented various
procedures to prevent copyright infringement through its system, users of Veoh’s service have in the past been able, without UMG’s authorization, to download videos containing songs for which UMG owns the copyright. UMG responded by filing suit against Veoh for direct and secondary copyrightinfringement. The district court granted summary judgment to Veoh after determining that it was protected by the Digital Millennium Copyright Act (DMCA) “safe harbor” limiting service providers’ liability for “infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” 17 U.S.C. § 512(c). The 9th Circuit agreed, and accordingly affirmed.

"We ... hold that merely hosting a category of copyrightable content, such as music videos, with the general knowledge that one’s services could be used to share infringing material, is insufficient to meet the actual knowledge requirement under [the statute]".

The Strokes Looted

A complaint filed in New York Supreme Court alleges that plaintiff (as subrogee of Sony BMG Entertainment) parked a rented rented truck that contained video and camera equipment for a Strokes music video shoot at the defendant's garage. When the truck was picked up, its lock had been tampered with and certain video equipment had been stolen. Alleged damages: $89,000.

[Great Lakes Reinsurance (UK) PLC as subrogee of Sony BMG Entertainment/HSI Productions v. Wooster Parking Corporation. Filed 4/9/2008; No. 08-105083]