Evidence Of Copying By Steve Winwood Inadmissible; 6th Cir. Affirms

Parker, et al. v. Winwood, et al., No. 18-5305 (6th Cir. 9/17/19).

6th Circuit affirms district court’s finding that the plaintiffs, who alleged the Spencer Davis Group’s famous 1966 song Gimme Some Lovin’ infringed the bass-line in their song from the prior year, failed to submit admissible evidence that Steve Winwood copied the work. The Court also affirmed the finding that the court lacked jurisdiction over one of the defendants, who resides in the UK. The evidence at issue was found to be hearsay: interviews with Steve Winwood. The Court also rejected arguments of striking similarity, which were not timely raised. Notably, there was a strong dissent, which focused on the plaintiffs’ expert report concerning the similarity of the works and observed that there is a “fine line” between inspiration and infringement.

"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)

Lack of Personal Jurisdiction Over BBC Films In Copyright Infringement Action

Hit Bound Muisc, Ltd. v. BBC Films, et. al., No. 2:16-cv-7125 CBM (Ksx) (C.D. Cal. June 2017).

BBC Films is a British Corporation responsible for providing broadcast television, radio news and entertainment content in the United Kingdom. Hit Bound Music Ltd., a Canadian music publisher, sued BBC, among others, alleging that the company infringed on three of Hit Bound’s copyrights for the soundtrack in the film “My Old Lady.”

The court ultimately dismissed the claims against BBC Films for lack of personal jurisdiction, determining that the company’s principal place of business is in the United Kingdom. Hit Bound argued that BBC should be subject to general jurisdiction because one of their subsidiaries maintains an office in Los Angeles. The court held that BBC Films had no business operations or property in California and the company is not incorporated in California so it is not subject to general jurisdiction and the parent-subsidiary relationship is insufficient to establish personal jurisdiction after the Supreme Court’s decision in Daimler AG v. Bauman.

Court Has Jurisdiction Over King Of Pop's Executors In Photo Shoot Case, But Plaintiff's Counsel Disqualified As A Witness

Noval Williams Films v. Branc, 14-cv-4711 (S.D.N.Y. Sep. 3, 2015) [Doc. 43].

In a case where Plaintiff film matker sought a declaratory judgment against Michael Jackson's estate that it did not infringe the copyrights in certain audivisual and photographic materials by using them in a documentary film, the Court denied Michael Jackson's executor's motion to dismiss for lack of jurisdiction, or alternatively to transfer to California federal court.  However, the executor's motion disqualify plaintiff's counsel was granted because he is a material witness.

Katie Perry Dismissed From Copyright Suit In Missouri For Lack Of Personal Jurisdiction

Gray v. Hudson, 14-cv-1183 (E.D. Mo. dated July 23,  2015).

A copyright action against Katie Perry alleging that her song "Dark Horse" infringes upon Plaintiff's gospel/hip-hop song was dismissed by the Court for lack of personal jurisdiction over Perry and the other defendants.  Fed. R. Civ. P. 12(b)(2).  Plaintiffs alleged that Defendants directed their marketing/promotion/sale of the song towards residents of the State of Missouri, including performing concerts in the state.  However, the Court agreed with Defendants that it lacked personal jurisdiction due to a lack of minimum contacts necessary to comport with due process.  The only defendant who did not contest jurisdiction, Capitol Records, moved to transfer the action to New York or California and the Court granted the motion to transfer to the Central District of California.

Stairway To Heaven Copyright Infringement Survives Dismissal, Transferred From Philly To Calif.

Skidmore v. Led Zeppelin,  14-cv-03089 (E.D. Pa. filed 05/06/15) [Doc. 54].

Plaintiff alleged Led Zeppelin copied significant portions of its iconic 1971 song “Stairway to Heaven” from plaintiff's copyrighted guitar composition “Taurus,” and that all of the Defendants (the band members, publisher and label) have exploited and continue to exploit “Taurus” as “Stairway to Heaven.”  Plaintiff sued all Defendants for direct, contributory, and vicarious copyright infringement and also brought a claim for equitable relief in the form of an order directing Defendants and the Copyright Office to include Plaintiff as a writer of “Stairway to Heaven."  Defendants moved to dismiss for lack of jurisdiction and improper venue.

The Court found the individual Defendants (band members) were not subject to either general or specific jurisdiction in Pennsylvania, where the case was filed.  Notably, because there is a three-year statute of limitations for copyright claims, the Court found that contacts with Pennsylvania in the 1980s and 1990s were not relevant to the Court's analysis.  These Defendants, however, consented to personal jurisdiction and venue in the Central District of California.  The Court found a transfer to California to be in the interests of justice.

Breach Of Contract Claim Survives In "Daydream Believer" Royalty Suit Concerning Foreign Publishing

Stewart v. Screen Gems-EMI Music, Inc., No. 3:14-cv-04805 (N.D. Cal. filed Mar. 2, 2015) [Doc. 45].

Plaintiff alleges that defendants -- various EMI defendants -- wrongfully withheld publishing royalties to the song "Daydream Believer" written by Plaintiff's late-husband.  The claims arise out of a 1967 songwriter's agreement, which has a "net receipts" (not "at source") arrangement, meaning that the publisher is only obligated to remit to the songwriter a certain percentage of revenue the publisher actually receives after deducting applicable fees and costs.  Plaintiff contended that Defendants were improperly deducting from the song's foreign receipts fees that defendant paid to affiliated foreign sub-publishers that are alter egos of defendant and operate as part of a single enterprise (i.e., defendant was effectively paying itself and then deducting those payments from the receipts to reduce the "net receipts").  Defendants moved to dismissed.  The Court granted the motion to dismiss of defendants EMI and EMI North America for lack of personal jurisdiction; but, found that Plaintiff had stated a claim against defendant Screen Gems-EMI for breach of contract, breach of the implied covenant of good faith and fair dealing, and for an accounting.

NAPSTER Trademark Action Continues In California

Rhapsody Int'l, Inc. v. Lester & Napster.fm, Index No. C 13-05489 CRB (N.D. Cal., Feb. 24, 2014).

The Court denied defendants' motions to dismiss the trademark infringement case, concerning the mark NAPSTER, for failure to state a claim, lack of jurisdiction and improper venue.  The Court found that plaintiff stated a claim for trademark infringement, dilution, cybersquatting, unfair competition, and unfair business practices.  The Court also found that plaintiff made a prima facie showing of personal jurisdiction, and that transfer to Virginia for defendants' convenience was insufficient to warrant transfer.

No Jurisdiction Over Indian Ringtone Website Under NY Long Arm

Yash Raj Films (USA), Inc. v. Dishant.com LLC, No 1:08-cv-02715-ENV-RML (E.D.N.Y. filed Dec. 15, 2009) - District Court grants pro se defendants' motion to dismiss for lack of personal jurisdiction pursuant to FRCP 12(b)(2)(4) and New York's long-arm jurisdiction statute, CPLR 302. Defendants' website - which provides access to digitized versions of Indian songs, movies and images that users may stream or download ringtones - is accessible in NY, but does not constitute transaction of business in NY, tortious conduct in NY, or out-of-state tortious conduct causing injury in NY; plaintiff's request for jurisdictional discovery denied.

No Personal Jurisdiction Over Music Website in Copyright Action

The Royalty Network Inc. v. Dishant.com LLC, No. 08 Civ. 8558 (SHS) (S.D.N.Y. July 29, 2009).

Defendant's FRCP 12(b)(2) motion to dismiss for lack of personal jurisdiction granted; plaintiff's request for jurisdictional discovery denied.

Defendants operate a website which invites visitors to play Indian music, to create "playlists" of Indian songs, and to "listen to and download Bollywood Movie ringtones." Plaintiff, the administrator of music owned by non-party music recording company based in India, brought action alleging that defendants' website provides visitors with unauthorized access to music produced by the record company, thereby violating its copyrights and denying Plaintiff royalties to which it is entitled as administrator.

Plaintiff contended that the Court has specific jurisdiction over defendants pursuant to New York's "long arm" statute, CPLR 302(a)(1) and (a)(3)(ii). The Court disagreed.

After discussing the standard on a 12(b)(2) motion, the Court examined whether Defendants' website conferred personal jurisdiction over defendants, who operated the website from Virginia and had no office, real estate or any employee in New York.

Under the "transacts business in" in New York claim for specific jurisdiction, the Court analyzed the "Spectrum of Interactivity" of the Website (passive, interactive, or somewhere in the middle), and found that the website "falls somewhere in the 'middle ground' and thus the jurisdiction inquiry requires closer evaluation of tis contact with New York residents." Plaintiff contended that the following contacts were sufficient: the website was available to NY visitors who could stream and download material from it; the site sells advertisments to NY based companies; and defendants registered the domain name thorugh a NY company.

Plaintiff, however, provided no evidence that any NY resident actually engaged in any transaction on the website (e.g., registered or downloaded material), or that defendants did anything to indicate their knowing and purposeful transaction with NY visitors. Nor was there anything to indicate that defendants sold to, or interacted with the NY office of any of its advertisers (who have national audiences) or that defendants knew that any of those advertisers were headquartered in NY. There was insufficient evidence to support the inference of a purposeful attempt to take advantage of the NY market. Lastly, even if Defendants registered their domain name through a NY company, there was no nexus between that transaction and those at issue (i.e., the connection was merely coincidental).

Under the "tortious conduct out of state causing injury in state" claim, plaintiff fared no better. Although plaintiff's copyright infringmenet claim validly alleged tortious activity and injury within NY, "the jurisdiction inquiry breaks down" becuase plaintiff proffered insufficient evidence to support a finding that it was reasonably foreseeable to defendants that their conduct would cause such injury in NY. (The "reasonable foreseeability" requirement is construed under NY law consistent with U.S. Supreme Court precedent concerning due process.) Plaintiff pointed to neither tangible manifestations of defendants' intent to target NY, nor concrete facts known to defendants that would lead them to foresee being sued in NY. There was no purposeful NY affiliation or discernable effort to target NY. Plaintiff's "sheer speculation" was insufficient.

Lastly, Plaintiff was unable to make a threshold showing that there was some basis for the assertion of jurisdiction to grant jurisdictional discovery. Moreover, plaintiff did not put forward any compelling reasons why discovery should be allowed, nor did it identify any particular facts it would seek to adduce through such discovery or suggest how discovery could aid the Court's jurisdictional inquiry.
Decision Dishant

Jurisdiction and Transfer Decision in MP3tunes

The District Court, Southern District of New York, has found that personal jurisdiction exists over MP3tunes but not over its CEO, Michael Robertson. (Background here.) Further, venue and forum were proper, such that the suit will not be transferred to the Southern District of California.

Capitol Records Inc. v. MP3tunes LLC, No. 07-cv-9931, 10/3/08 N.Y.L.J. "Decision of Interest" (S.D.N.Y. decided Sept. 29, 2008).

PERSONAL JURISDICTION

The case analyzed personal jurisdiction over both MP3tunes and Robertson under New York's long-arm statute (CPLR 302). Because MP3tunes is an interactive website, provides users with software, transfers of music files, and allows for the exchange of e-mails/postings, the court held that MP3tuns "transacts business in New York" under the long-arm statute. Further, the website's minimum contacts with New York meant that the assertion of personal jurisdiction would not offend "traditional notions of fair play and substantial justice."

Robertson, however, was not subject to the court's personal jurisdiction. There was no competent evidence that the CEO's only activities in New York (a single meeting and a speaking engagement at an industry forum) related to plaintiffs' claims. Nor was there competent evidence to show that Robertson exercised control over the corporations allegedly infringing activities in New York (important, because an individual defendant may also be subject to jurisdiction under New York's long-arm statute if a corporate defendant is acting as his agent).

VENUE
A defendant "may be found", pursuant to 28 U.S.C. 1400(a), in any district where the defendant is subject to personal jurisdiction. Therefore, the motion to dismiss for improper venue was denied.

TRANSFER
The Court examined nine transfer-factors and denied defendants' motion to transfer the action.

Vacating DMX Order Where Improper Service

A $1.5mil judgment against DMX was vacated by a Maryland state court judge after finding that the rapper was not properly served process.

His lawyer argued that the defamation-claim plaintiff did not properly serve DMX with the lawsuit papers and was unaware of the case against him.

Any readers from Maryland, please feel free to drop a line on the service requirements under state law. In New York, service of process is governed by CPLR Article 3. For example, for service upon an individual, see CPLR 308. Also, under New York law and objection that the summons and complaint were not properly served is waived if, having raised such objection in a pleading, the objecting party does not moved for judgment on that ground within sixty days after serving the pleading. CPLR 3211(e).

Co-Authorship Dispute Over Composition Performed by System of a Down

In Maxwood Music Limited v. Malakian et al., case no. 1:08-cv-01730-RWS (S.D.N.Y. complaint filed Feb. 21, 2008), the assignee of copyright interests in various compositions by Casey Chmielinksi p/k/a/ Casey Chaos seeks a declaratory judgment against System of a Down members and related publishing companies.

The dispute arises out of the hit song "B.Y.O.B", the first single on the System of a Down album entitled Mezmerize, and winner of the 2005 GRAMMY Award for "Best Hard Rock Performance". (Notably, Chaos recieved a certificate from the National Academy of Recording Arts and Sciences recognizing his participation as a songwriter of the GRAMMY Award-winning song.)

The complaint alleges that Chaos and Daron Malakian, lead guitarist of the System of a Down, collaborated on an independent project entiled "Scars on Broadway", during which the two wrote approximately 14 songs. "At all times, Malakian and Chaos considered themselves the sole co-authors of 'Scars on Broadway' and each of the individual compositions written for it, including the Composition [B.Y.O.B.], and intended that they be joint authors of those musical works." (Compl. para. 14). However, the project was "put...on hold while they each returned to their own music for their respective bands." (Id. at 17.)

Unbeknownst to Chaos, B.Y.O.B. was later recorded by System of a Down and released as a single to promote Mezmerize, an album that has sold millions worldwide.

Chaos was not listed in the credits for the Single or the Album as a co-author of the Composition. Upon the release of the Album, however, Malakian's publishing company [Sony] filed a registration with the Copyright Office for the Composition that explicitly listed Chaos as an author together with Malakian.
...

Sony also registered Chaos as a co-author with the relevant public performance societies in the United States and United Kingdom that collect royalties for songwriters generated from public performances of their compositions.

(Id. at 21-22.)

Based on the above, Plaintiff (as assignee of Chaos' copyright interests) seeks a declaratory judgment that B.Y.O.B. was co-authored by Chaos and Malakian, without the participation of any other party; further, plaintiff seeks a declaration that Chaos owned (and Plaintiff now owns by virtue of an assignment) an equal and undivided 50% share of B.Y.O.B. Lastly, plaintiff seeks an accounting.

The theme from plaintiff's complaint is clear: if Chaos was not an equal-share co-author, why was he listed with both the Copyright Office and the public performance societies as a co-author?

An interesting aside - why did defendants consent to personal jurisdiction in the Southern District of New York?