Billboard Magazine is reporting that the copyright lawsuit filed by Joe Satriani against Coldplay was dismissed.  Satriani sued based on the similarities between his song “If I Could Fly” and Coldplay’s “Viva La Vida”.  Details of the settlement are under wraps but industry insiders say that a financial settlement was likely reached and that Coldplay does not have to admit any wrongdoing.  Both parties will bear their own legal costs.  The case was dismissed with prejudice which means that the case cannot be reinstated.

Neither Satriani nor Coldplay has made any public comment about the settlement.  Satriani is currently on tour with “supergroup” Chickenfoot while Coldplay is in the studio recording new material.  The settlement was finalized on September 14, 2009, but was kept under the radar as news of Kanye West’s outburst on the MTV Video Music Awards took over the airwaves.

What remains to be seen is whether Cat Stevens will file a similar lawsuit based on his belief that Coldplay’s “Viva La Vida” infringed his song “Foreigner Suite”.  Stevens has publicly said that he may file suit depending on how Satriani’s lawsuit turns out. But what about the Latin band Enanitos Verdes whose song “Frances Limon” sounds similar and predates both Coldplay & Satriani’s versions?  Are they contemplating getting in on the legal action?  Is the Satriani settlement just the first in a long line of potential lawsuits?

It will be interesting to see whether this settlement affects Coldplay’s habit of publicly bragging about the similarities between their songs and other artists’.  Hopefully, their legal counsel has advised them that this habit is not endearing to fans and could come back to bite them in the butt.

Sometimes life only gives us time for a quick coffee break and snippet of information that we lawyers tuck in the back of our mind to pull out for later use (either a moment of great insight for a client or a cocktail party story that only other intellectual property attorneys appreciate).

Take your coffee break and enjoy:

Professor Susan Scafidi at the Counterfeit Chic blog takes a quick coffee break and sounds off on Nescafe and Starbucks “Via.”

Trademark lawyer Marty Schwimmer tells us about “stuff he’s gotten free” by blogging and how the FTC will be regulating those “freebies” to bloggers and other social networkers. 

The Hollywood Reporter, ESQ blog reports a lawsuit for theft of an idea against the William Morris Agency for the television show “Shaq vs.”

The Copyright Litigation Blog advises statutory mergers trigger copyright infringement.

Las Vegas Trademark Attorney Ryan Gile tells us “Rat Pack” is generic in connection with Rat Pack tribute shows. 

If you have a little longer coffee break, treat yourself to this week’s Blawg Review #232 from Solo Practice University.  Not IP related, but an interesting read. 

SIIA’s new music video “Don’t Copy That 2,” the sequel to its 1992 classic “Don’t Copy That Floppy,” has had a dramatic, worldwide impact on anti-piracy awareness.  Since its September 9th release, SIIA’s “Don’t Copy That 2” music video has been viewed more than 255,000 times on YouTube, where more than a thousand people have posted comments about the video and its message, “It’s not just a copy. It’s a crime.”  The video has also been a favorite of bloggers and Twitter users around the world, who have made it the subject of hundreds of tweets and postings over the last two weeks.

People either love it or hate it, but either way Don’t Copy that 2 is having a powerful impact.  And that is exactly our goal – to deliver our anti-piracy message to audiences around the world. The criminal consequences of piracy are significant, but we can’t expect to deliver that message simply through reports, press releases and run-of-the-mill educational materials.  Don’t Copy that 2 is reaching young and engaged audiences that need to understand that pirating copyrighted works is a serious crime.”

People have called it ‘hysterical,’ ‘genius,’ ‘contemporary drama at its finest,’ and my favorite – ‘the worst anti-piracy ad ever.’  Whatever you want to say about it, one thing is clear:  ‘Don’t Copy That 2’ has gained the attention of both those who obey – and those who violate – copyright laws.  The video is fun to watch, and perhaps even more fun to critique, but it has unquestionably been a successful means for delivering a serious message.

House of Bryant, the administrators for the song “Rocky Top,” sued A&E Television Network for copyright infringement of the song based on an authorized clip of the song included in an episode of the television show “City Confidential” featuring a crime that took place in Knoxville, TN. 

The City Confidential episode aired on December 11, 2004 and included a 12-second clip of the song “Rocky Top.”  The song is included in a scene of a University of Tennessee football game as performed by the school’s marching band.  Defendant’s Memorandum in Support of its Motion to Dismiss states: “During this brief sequence, and as part of the actual noise occurring within the stadium, the UTK marching band can be heard playing an instrumental version of the musical composition “Rocky Top.” The song is audible for a total of approximately twelve seconds; however, the tremendous noise of the crowd and the narration of the documentary obscure the song for approximately six of the twelve seconds. Therefore, the song “Rocky Top” can be heard on its own for only six seconds of the Program.”

A&E, citing the 2008 court ruling regarding the use of the song “Imagine,” argues the usage was “fair use” which is a defense to copyright infringement. In the “Imagine” case, Yoko Ono -- the plaintiff, was denied an injunction for an unauthorized use of the song “Imagine” in the film Expelled, with the court holding the defendant/alleged infringer was likely to prevail on a fair use defense.  A&E, like the defendant in the “Imagine” case, is relying on the transformative nature of the use.  The Defendant’s Memorandum in Support of the Motion To Dismiss argues the use of “Rocky Top” is transformative in that it is used to portray the atmosphere around Knoxville and the lyrics, used in context with the subject matter of the murder mystery, are a commentary on what life should be like in Tennessee.

The first air date of December 11, 2004 does not seem to be contested by either party. The episode has continued to air.   The Complaint was filed June 3, 2009.  I am wondering why A&E has not raised the defense of statute of limitations because the three year statute of limitations found in 17 U.S.C. sec. 507(b) should apply.  The section states that “no civil cause of action may be brought later than three years from the date the claim accrued.”  It is possible the parties had a tolling agreement while they attempted to resolve the matter outside of the court house.

You can read the complaint here.  House of Bryant Publications, L.L.C. v. A&E Television Networks, Middle Dist. Tenn., Civil Cause No. 3:09-cv-00502.

You can read the Defendant’s Brief In Support of the Motion to Dismiss here.

The long-running case of Solers, Inc. v. Doe in the District of Columbia raises the interesting dilemma of balancing significant free speech rights with the interest of an alleged "victim" to pursue claims against an alleged anonymous defamer.  Usually, this issue arises in the context of an online message board poster's public diatribe against someone or something, made under a pseudonym.  The alleged victim then sues the poster under the name "John Doe" and immediately subpoenas the web site host or publisher to try to discover the real identity of the poster.  Thus far, courts have acknowledged the transcendental importance of free speech and, for the most part, blocked disclosure of the posters' identities.  A collection of some of those cases is described here.  In Solers, there is a twist.  An informant ("whistleblower") made a private report to the SIIA via a piracy reporting link on the SIIA's web site, and Solers subsequently embarked on a quest to unmask that informant.  The latest appellate ruling in the case is a mixed bag for Solers, establishing significant hurdles that make it unlikely for Solers to acquire the identity of the informant, but giving Solers one more shot to try.  More significantly, the decision adds to a body of case law addressing when an alleged claim of wrongdoing may overcome the First Amendment right to make anonymous speech.

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Last Friday, August 28th, a jury in the Northern District of California, awarded French luxury goods maker, Louis Vuitton Malletier (part of LVMH), $32.4 million in statutory damages for its claims of contributory copyright and trademark infringement.   The amount awarded -- $31.5 million for contributory trademark infringement and $900,000 for contributory copyright infringement -- was certainly newsworthy standing alone.  But really what pushes this case to the top of the IP headlines is that the defendants held liable here -- Akanoc Solutions and Managed Solutions Group, Inc -- are Internet Service Providers (ISP) (and their primary -- Stephen Chen). 

Many a case has been brought against an ISP by a plaintiff trying to hold that ISP liable for the acts of its users.  I could be wrong, but I believe this is the first case where an ISP was held liable for the acts of its users.  For one reason or another these other ISPs and hosting sites have been able to escape liability.  But that was not to be the case here.  Through internal emails, Plaintiff LV was able to demostrate that the ISPs knew of the counterfieting taking place on the sites they hosted but took no action.  The jury agreed with LV that the ISP defendants should be liable because they knew of the large amounts of counterfeiting of LVMH product taking place on their sites and failed to take proper action to stop it.

The case began with a complaint filed back in 2007 in which LV claimed that "most if not all" of the sites hosted by Akanoc were trafficking in counterfeit goods.  About two years later, the jury awarded almost all of $1 million in damages requested for each of LV's fifteen trademark infringement claims against each of the three defendants. The copyright award was $150,000 for each of two copyrights against three defendants for a total of $900,000.

Although motions are still pending in the case, the amount of damages ordered by the jury should send a strong signal that ISPs must actively enforce their terms of use and effectively disable or remove content the subject of abuse notices from rights owners.  This case proives that an ISP that knows of an infringement and fails to take quick and effectuve action to remove the infringement from its site runs the risk of incurring a large damage award and serious damage to its business reputation as a result.

This month’s blog revisits the pending lawsuit filed by Joe Satriani against Coldplay for copyright infringement.  Some background in copyright law is necessary to evaluate the merits of Satriani’s case.  Let’s start with the basics of copyright law.

Under Section 106 of the Copyright Act,  copyright owners are granted certain exclusive rights.  A copyright owner has the right to reproduce, distribute, perform, display or prepare derivative works.  A claim for copyright infringement arises under Section 501 of the Act when someone violates the owner’s exclusive rights.  In order to prove a claim of copyright infringement, the copyright owner must prove two things: ownership of the copyright and proof that defendant copied the work. 

Ownership can be proven by providing a copy of the registration on file with the Copyright Office.  Proof of actual copying is very difficult to prove unless you are a fly on the wall in the musician’s rehearsal studio.  Courts recognize that eyewitness testimony rarely exists.  Thus, in order to prove that copying occurred, a plaintiff must demonstrate that the defendant had access to the work and that there are substantial similarities between the two works.  This legal analysis will be the crux of Satriani’s case. More...

In July, the terms of the recent agreement on royalty payments reached between performers and record labels, on the one hand, and "pureplay" webcasters, on the other hand, were published in the Federal Register (the publication in which federal regulations are documented).  This marks the beginning of a 30-day period in which webcasters can opt-in to participate in this deal, as opposed to pay the rates for webcasters established by the Copyright Royalty Board.  This news drives home the fact that a clear regime is being established to compensate labels and artists for playing their recordings on digital services, while there is no such payment regime for playing the recordings on broadcast radio.  There is currently proposed legislation, called the Performance Rights Act, to change this by requiring broadcasters to pay a royalty for playing records.  Webcasters, labels and a number of artist representative groups (like SoundExchange, which represents labels and performers) are for it.  Radio broadcasters are against it.  Looking at the blogs out there, a lot of people appear to think this is yet another money grab by the labels that will put small radio stations out of business.

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I blogged here and here regarding the recent case brought by author J.D. Salinger for copyright infringement against the writer, publisher and distributor of a sequel to "Catcher In The Rye" entitled "60 Years Later: Coming Through the Rye."

Although Mr. Salinger won in the district court when the Judge held Mr. Salinger was likely to succeed on a claim of copyright infringement, an appeal has since been filed along with “Friends of the Court” Amicus Briefs.

The Amicus Briefs filed by the American Library Association (here),

The New York Times Company (here), and

Public Citizen, Inc. (here), all argue to the court that the district court erred in its decision. 

The briefs are worth the read for the depth of case law cited. 

The primary focus of the briefs filed by the American Library Association and The New York Times Company is the concern that First Amendment rights of authors/creators/readers are being narrowed and that an unduly restrictive fair use standard was applied.

In comparison, the Public Citizen brief’s primary focus is the concern the district court extended copyright to “ideas” and has blurred the line between the idea/expression dichotomy.

Agree or disagree, this case is one to watch and to read the court filings. 

On July 27th, in Capitol Records Inc. v. Alaujan, the U.S. District Court for the District of Massachusetts granted the plaintiff record companies’ motion for summary judgment by holding that the defendant Joel Tenenbaum, a Boston University student who was using the Kazaa peer-to-peer file-sharing system to upload infringing music files, may not present a fair use defense before a jury at trial. 

The court said that the proposed defense was “so broad that it would swallow the copyright protections that Congress has created” and that Tenenbaum had failed to set forth any argument based on the fair use doctrine.  The court added that “…fair use is not a referendum on fairness in the abstract, as the Defendant would have it, but an effort to measure the purpose and effects of his particular use against the incentives for artistic and literary creation that Congress established in the Copyright Act.” 

In this case Tenenbaum admitted to using Kazaa to illegally distribute the music files, but takes the position that the potential penalties under U.S. copyright law are unconstitutionally excessive.  Opening arguments in the case began on July 29 and then, on July 31st -- following Tennenbaum’s admission in court that he was liable for infringing the copyright of 30 songs he downloaded and distributed -- the court quickly concluded that there was no issue for the jury on the question of infringement and granted the record company’s motion for a directed verdict of infringement.  

With the only issues remaining being willfulness and damages, the jury came back with a verdict that found Tenenbaum liable for willful copyright infringement of 30 songs to a tune of $675,000 - which amounts to $22,500 for each song (the same as Jammie Thomas).