Counsel Concerns

The New York Appellate Division, First Department, reinstated a malpractice suit filed by a law firm client over copyright problems from releasing re-mastered sound recordings. HNH International Ltd. V. Pryor Cashman Sherman & Flynn LLP, 2009 N.Y. Slip. Op. 04964. The trial court had granted Pryor Cashman's motion to dismiss HNH's malpractice suit, which alleged the law firm “incorrectly advised [HNH] concerning the early 20th century sound recordings they proposed to re-engineer, re-master and distribute as CDs.” The recordings in question ' classical music works by artists like Sergei Rachmaninov, Yehudi Menuhin and Pablo Casals ' were released through HNH's Naxos of America subsidiary. Capitol Records sued Naxos over the products' distribution. The New York Court of Appeals ultimately decided that a New York common-law copyright isn't extinguished by termination of a foreign copyright in a work and that a “new” re-mastered recording can infringe on an original work. Capitol Records Inc. v. Naxos of American Inc., 4 N.Y.3d 520 (2005).

In HNH's malpractice suit, the trial court determined that the law was unsettled at the time Pryor Cashman rendered its advice to HNH. Reversing, the New York appellate court explained, “however, that the state of the law was not so unsettled at the time the advice was given as to bar as a matter of law plaintiffs' claim that a reasonably skilled attorney would have advised that the CDs were or might be entitled to common-law copyright protection and would not have advised that the release of the CDs would not result in any copyright liability. Although defendant maintains that it did advise plaintiffs of the possibility of common-law liability and did not advise plaintiffs that the release of the CDs would not result in any copyright liability, we must accept the facts alleged in the complaint as true and accord plaintiffs the benefit of every possible favorable inference ' The determination whether defendant exercised the requisite level of skill and care must await expert testimony.”

Counsel Withdrawal Motion Granted