NWA Infringement Claims Trimmed To Composition Only, But Court Does Not Adopt 3-Year Damages Limitation

Mitchel v. Capitol Records, 3:15-CV-00174-JHM (W.D. Ky. Dec. 18, 2017).

Plaintiff alleges infringement of his 1977 song in the 1989 NWA rap song "Striaght Outta Compton."  Defendants made two motions for partial summary judgment.  First, the defendants argued that plaintiff is precluded from recovering any damages for infringements that occurred more than three years prior to his filing of the law suit, as barred by the statute of limitations.  Second, defendants argued that plaintiff did not own the sound recording for his song (only the musical composition) and thus could not recover for any infringement of the sound recording.  The former motion was denied, and the latter was granted.

As to the statute of limitations defense, the Court held that notwithstanding the Supreme Court's Petrella decision, Sixth Circuit precedent "defines accrual of a copyright claim as occurring when the plaintiff “knew of the potential violation or is chargeable with such knowledge.”  Continuing, "When the [Petrella] opinion is read in conjunction with footnote 4, which acknowledges that most circuits will modify this rule so as to focus on the date of 'discovery' as opposed to the date of 'occurrence,' then Petrella reiterates what the Sixth Circuit already requires: that damages be limited to those claims for infringement that accrued within three years of the initiation of the suit, with accrual being determined by the rules of the 8 circuit (until the Supreme Court “passe[s] on the question')."  Because Plaintiff had presented evidence that his claim did not accrue until 2014 (when it was allegedly discovered), his claim was not time-barred.

As to the sound recording, the Court held that defendant had provided proof that plaintiff did not own the sound recording.  The plaintiff's evidence (e.g., a mechanical license agreement) at best established his ownership of the musical work/composition.

"Gimme Some Lovin'" Guitar Riff Claim Dismissed

Parker v. Winwood et al., No. 16-cv-684 (M.D. Tenn. 10/17/2017) [Doc. 99].

In a copyright infringement action concerning the guitar riff in the classic rock song Gimme Some Lovin' performed by the Spencer Davis Group, the Court granted the defendants' motion for summary judgment.  Plaintiff's song was governed by the 1909 Act, under which the general rule was that the publication of a work with proper notice was necessary to obtain statutory copyright protection.  The Court found that "Although Defendants proffer evidence that the work was distributed as a phonorecord prior to 1978, the Copyright Act specifically states that the distribution of phonorecords prior to 1978 is not considered a publication under copyright law. See 17 U.S.C. § 303. Even if the work-at-issue had been published, however, Plaintiffs would not be foreclosed from bringing an infringement suit so long as they made the requisite deposit. The right to sue is not destroyed for failure to make a prompt deposit after publication."  Accordingly, the motion to dismiss was denied.

Nonetheless, there were other basis to dismiss.  One defendant's motion to dismiss was granted for lack of personal jurisdiction -- he was not properly served, and had no minimum contacts with Tennessee.  As to the record label owner, after rejecting the argument that the plaintiff's lacked standing, the Court nonetheless found that the claim should be dismissed because the record label's sister company owned the rights to plaintiff's song!

Turning to the meat of the claim, the Court granted the defendant musicians summary judgment:

The Court finds no dispute of material fact still exists regarding whether Defendants had a “reasonable possibility” of access to Plaintiffs’ song before they created “Gimme Some Lovin’.” Specifically, the Court finds Plaintiffs have failed to meet their burden to show that there is a dispute regarding whether Defendants infringed Plaintiffs’ song between its release date on October 7, 1966 in the United Kingdom (ECF No. 64 ¶ 25) and the release date of “Gimme Some Lovin’” on October 28, 1966 (ECF No. 64 ¶ 25), or at any time before that date. Defendants presented evidence in the form of affidavits that the members of The Spenser Davis Group had not heard Plaintiffs’ song prior to creating "Gimme Some Lovin’.” (Mervyn Winwood Decl., ECF No. 57 ¶ 5; Stephen Winwood Dec., ECF No. 58 ¶ 4; Spenser Davis Decl., ECF No. 59 ¶¶ 3, 5.) The burden then shifted to Plaintiffs to set forth specific facts showing a triable issue of material fact. Plaintiffs only proffered inadmissible evidence to refute these facts Defendants set out in affidavit form. Plaintiffs also proffer no admissible evidence that Defendants infringed Plaintiffs’ song between its release and Defendants’ release, but rather contend it would have been possible. (ECF No. 64-6 at PageIDs 547-48.) Because Plaintiffs have failed to proffer any admissible evidence that establishes a genuine issue of material fact as to whether Defendants heard Plaintiffs’ song prior to creating or releasing “Gimme Some Lovin’,” the Court GRANTS summary judgment in favor of Defendants Steve Winwood and Kobalt (ECF No. 54)

Copyright Ownership Claims Time-Barred For Songs Recently Sampled In Popular Songs

Wilson v. Dynatone Publishing, No. 16-cv-104 (S.D.N.Y. April 10, 2017).

For two songs from the 1970s that were recently sampled in popular songs, Plaintiffs sought a declaratory judgment judgment that they are the copyright owners of the sampled songs and that the defendants' copyrights are invalid, and Plaintiffs also sought an accounting.  The Court granted the defendants' motion to dismiss under Rule 12(b)(6).

The Court found that the copyright ownership claims were untimely and barred by the statute of limitations.  The claims accrued in the early 1970s.  The accounting claims, in addition to an absence of allegations of a fiduciary relationship, also were time-barred.