Bit Parts

The Supreme Court of New York allowed Georgeann Walsh Ward to proceed with a defamation claim against musician Gene Simmons over the VH1 documentary “When KISS Ruled the World.” Ward acknowledged that she had been in a 3-year, monogamous relationship with Simmons 30 years ago, but was married to her husband shortly after. The court noted: “The repeated use of plaintiff's photographs during the documentary could lead a reasonable viewer to conclude that plaintiff was a woman who would regularly make herself available to Simmons, at his beck and call, for casual sexual encounters. Although it is true that the documentary never mentions plaintiff by name, or otherwise identifies her, the use of her photographs during the '24 Hour Whore' segment could certainly lead a reasonable person to conclude that she was one of those women with whom Simmons had a casual sexual liaison.” Ward v. Klein, 100231-05. But the court dismissed Ward's right-of-publicity claim on the ground that under New York Civil Rights Law Sec. 51 because “the use of plaintiff's image in the documentary does not constitute a use for advertising or trade purposes as required by the statute.”

The New York Appellate Division affirmed that Phil Spector's Philles Records can't deduct foreign VAT taxes from royalties it owes members of the 1960s group The Ronettes because “[t]o the extent any ambiguity might be deemed to exist as to the parties' 1963 Agreement regarding the calculation of taxes, the trial court properly construed it against the drafter [Philles] … as requiring that taxes not be taken into consideration when determining, for the purpose of computing royalties due plaintiffs under the Agreement, the net retail price for replacement records.” The appellate division also affirmed that Philles can't “deduct packaging costs based upon what defendants are charged by their licensees.” Greenfield v. Philles Records Inc., 2005 NY Slip Op 8613.

Sound-Recording Licenses/Unjust Enrichment Claims

The U.S. Circuit Court of Appeals for the Sixth Circuit ruled against King Records in an unjust enrichment claim that the company filed against Collectables Inc. over use of King's sound recordings. The appeals court noted in its unpublished opinion that “Collectables has shown that licenses authorized all of the materials it produced with King's and [King affiliate] GML's intellectual property, … that it paid all royalties due for the use of this intellectual property and … King and GML have not provided competent evidence to dispute these facts.” King Records Inc. v. Collectables Inc., 04-5579. King had also argued that Collectables improperly continued to pay royalties to Marshall Sehorn, the prior sound-recordings-licensee, after Sehorn lost those rights in a bankruptcy proceeding. But the appeals court emphasized: “King and GML have acknowledged that they did not take any steps to inform Collectables of their position that the royalties that Collectables continued to submit to Sehorn should in fact have gone to King and GML … As between the two sets of parties, King and GML stood in a far better position than Collectables to know about, and evaluate the consequences of, the bankruptcy court's decision against Sehorn ' and of course readily could have let Collectables know about this development.”