Bit Parts

Concert Promotion Testimony Excluded. A Manhattan federal court has granted a motion by defendant booking agencies to exclude expert witness testimony from a racial discrimination suit by minority-owned music promoters. Rowe Entertainment Inc. v. The William Morris Agency Inc., 98-8272. The district court concluded, among other things, that the plaintiffs' expert witness had relied on the plaintiffs' amended complaint to estimate the defendants' market share and had taken no steps to verify the accuracy of the data that the plaintiffs had given him.

Request for Client Files Rejected. The Court of Appeal of California, Second Appellate Division, decided that the law firm of prominent entertainment attorney Kenneth Ziffren will not have to produce 52,683 client files at a projected cost of $6 million for Ziffren's divorce proceeding with his wife, Marcia. Ziffren, Brittenham, Branca, Fischer, Gilbert-Lurie & Stiffelman, B167832. Marcia had sought the documents to determine her community interest in the firm. The documents' limited probative value was “greatly outweighed” by the burden of producing them and the intrusion into of the privacy rights of the Ziffren firm's clients, the court noted in its unpublished opinion. The court concluded that the community interest could be estimated from the large amount of documentation already handed over by Ziffren or his firm.

No 'Brotherhood' Injunction. The U.S. District Court for the District of New Hampshire refused to issue a preliminary injunction to bar the premiere of producer David Kelley's new series “The Brotherhood of Poland, New Hampshire.” MJM Productions v. Kelley Productions Inc., 03-390. In its unpublished opinion, the district court found insufficient evidence that the defendants intentionally copied the plaintiffs' “Brotherhood” film title or that the plaintiffs had established secondary meaning in the name. On likelihood of consumer confusion, the court noted, “A nationally broadcast television program and a film which has been shown only twice cannot be said to be similar goods, share channels of trade, or target the same classes of purchasers.”

Collateral Estoppel Blocks MP3.com. A Manhattan federal court held that determinations in prior cases against MP3.com collaterally estopped the company from raising fair use and performance license defenses in an infringement action over the Internet copying of musical compositions. Country Road Music Inc. v MP3.com, 02-8006. But the district court also held, as it has consistently done, that the plaintiffs' statutory damages should be based on a per-CD, rather than a per-composition basis, for purposes of calculating the amount of “works” in dispute.

Sampling Complaint Can Be Amended. The U.S. District Court for the District of Massachusetts ruled that plaintiffs alleging unauthorized use of a sample of the sound recording “Pack Jam (look out for the OVC)” by the Jonzun Crew in the recording “I Like It” by Sammie should be allowed to amend their complaint to show that they have standing to pursue their infringement claim. Boston International Music Inc. v. Austin, 02-12148. The defendants had argued that the plaintiffs failed to allege that they were either the owners or the exclusive licensees of the copyright in the Jonzun Crew sound recording. However, the district court dismissed the plaintiffs' Lanham Act claim on the ground that the defendants, rather than the plaintiffs, were the “origin” of the “I Like It” sound recording.

Public Performance Damages Reduced. The U.S. District Court for the Eastern District of Louisiana awarded the performing rights society Broadcast Music Inc. and song copyright owners four times the fees that a tavern owner would have paid had it licensed use of the plaintiffs' music. Broadcast Music Inc. v. Barflies Inc., 03-304. The plaintiffs had asked for $28,500, which was six times the licensing fee, but the district court emphasized the proper infringement-award range is three to five times the actual licensing fee.

Concert Promotion Testimony Excluded. A Manhattan federal court has granted a motion by defendant booking agencies to exclude expert witness testimony from a racial discrimination suit by minority-owned music promoters. Rowe Entertainment Inc. v. The William Morris Agency Inc., 98-8272. The district court concluded, among other things, that the plaintiffs' expert witness had relied on the plaintiffs' amended complaint to estimate the defendants' market share and had taken no steps to verify the accuracy of the data that the plaintiffs had given him.

Request for Client Files Rejected. The Court of Appeal of California, Second Appellate Division, decided that the law firm of prominent entertainment attorney Kenneth Ziffren will not have to produce 52,683 client files at a projected cost of $6 million for Ziffren's divorce proceeding with his wife, Marcia. Ziffren, Brittenham, Branca, Fischer, Gilbert-Lurie & Stiffelman, B167832. Marcia had sought the documents to determine her community interest in the firm. The documents' limited probative value was “greatly outweighed” by the burden of producing them and the intrusion into of the privacy rights of the Ziffren firm's clients, the court noted in its unpublished opinion. The court concluded that the community interest could be estimated from the large amount of documentation already handed over by Ziffren or his firm.

No 'Brotherhood' Injunction. The U.S. District Court for the District of New Hampshire refused to issue a preliminary injunction to bar the premiere of producer David Kelley's new series “The Brotherhood of Poland, New Hampshire.” MJM Productions v. Kelley Productions Inc., 03-390. In its unpublished opinion, the district court found insufficient evidence that the defendants intentionally copied the plaintiffs' “Brotherhood” film title or that the plaintiffs had established secondary meaning in the name. On likelihood of consumer confusion, the court noted, “A nationally broadcast television program and a film which has been shown only twice cannot be said to be similar goods, share channels of trade, or target the same classes of purchasers.”

Collateral Estoppel Blocks MP3.com. A Manhattan federal court held that determinations in prior cases against MP3.com collaterally estopped the company from raising fair use and performance license defenses in an infringement action over the Internet copying of musical compositions. Country Road Music Inc. v MP3.com, 02-8006. But the district court also held, as it has consistently done, that the plaintiffs' statutory damages should be based on a per-CD, rather than a per-composition basis, for purposes of calculating the amount of “works” in dispute.

Sampling Complaint Can Be Amended. The U.S. District Court for the District of Massachusetts ruled that plaintiffs alleging unauthorized use of a sample of the sound recording “Pack Jam (look out for the OVC)” by the Jonzun Crew in the recording “I Like It” by Sammie should be allowed to amend their complaint to show that they have standing to pursue their infringement claim. Boston International Music Inc. v. Austin, 02-12148. The defendants had argued that the plaintiffs failed to allege that they were either the owners or the exclusive licensees of the copyright in the Jonzun Crew sound recording. However, the district court dismissed the plaintiffs' Lanham Act claim on the ground that the defendants, rather than the plaintiffs, were the “origin” of the “I Like It” sound recording.

Public Performance Damages Reduced. The U.S. District Court for the Eastern District of Louisiana awarded the performing rights society Broadcast Music Inc. and song copyright owners four times the fees that a tavern owner would have paid had it licensed use of the plaintiffs' music. Broadcast Music Inc. v. Barflies Inc., 03-304. The plaintiffs had asked for $28,500, which was six times the licensing fee, but the district court emphasized the proper infringement-award range is three to five times the actual licensing fee.