Cameo Clips

RECORD DISTRIBUTION/EXTRATERRITORIAL IMPACT

The U.S. Court of Appeals for the Ninth Circuit decided that California right of publicity and federal Lanham Act claims didn't apply to the British release of Brian Wilson's Good Vibrations CD, which featured Beach Boys photographs. Love v. Sanctuary Records Group Ltd., 07-56008. Good Vibrations was distributed as a promotional mailer in England and Ireland in about 2.6 million copies of the newspaper Mail on Sunday. Mike Love, a Beach Boys founding member, filed suit in the U.S. District Court for the Central District of California against a number of parties over the CD release. The district court dismissed Love's claims. Love settled with many of the defendants but appealed some issues in the case.

Affirming the dismissal, the Ninth Circuit noted, as to Love's right of publicity claim, that he was a resident of Nevada, not California. But the court added: “Even if California has an interest in protecting the right of an entertainer with economic ties to the state to exploit his image overseas, that interest is not nearly as significant as England's interest [in promoting unregulated competition in the commercial exploitation of name and likenesses and thus] in (not) regulating the distribution of millions of copies of a newspaper and millions of compact discs by a British paper primarily in the United Kingdom.” (Britain doesn't recognize a right of publicity but does protect against trademark infringement and “passing off.”)

In finding no extraterritorial reach of the Lanham Act, the appeals court explained: “Here, it is undisputed that all relevant acts occurred abroad. The idea for the CD originated with Ian Spero of BigTime.tv, who then approached [Associated Newspapers Ltd.] ANL. BigTime.tv and ANL are both British entities. ' Love no longer claims that the CDs were distributed in the United States.”

Thus, the court said, “for the Lanham Act to apply, Love must have presented evidence that the complained of actions caused him monetary injury in the United States. ' Even if, as Love argues, European purchasers of the Mail on Sunday would mistakenly associate the promotional CD with Love and [Love's] official Beach Boys touring band, it is too great of a stretch to ask us, or a jury, to believe that such confusion overseas resulted in the decreased ticket sales [for Love's group] in the United States.”

SONG DISTRIBUTION/PERSONAL JURISDICTION

The U.S. District Court for the District of New Jersey granted a motion by EMI Blackwood Music to dismiss the publisher from a copyright infringement suit that alleges Mary J. Blige's recording of “Enough Cryin'” is substantially similar to plaintiff Jermaine Jumpp's composition “On My Grind.” Jumpp v. Jerkins, 08-6268 (RBK/KMW). District Judge Robert B. Kugler noted, in an unpublished opinion, that “aside from alleging that Defendant is a Florida corporation with its principal place of business in Delaware, Plaintiff does not allege any particular facts about Defendant, its business practices, or the role it played in the alleged infringement.”

Judge Kugler acknowledged that “a relevant argument regarding specific jurisdiction seems to underlie Plaintiff's amended complaint.” But considering the “stream of commerce” approach, which requires purposeful contacts by a defendant with the
forum state, the district judge observed: “[T]he record shows no evidence favorable to Plaintiff regarding the scope of the licensing agreement between Defendant and [co-defendants, Interscope Geffen A&M label group], whether [the latter] was obligated or likely to distribute the song in New Jersey, or whether the song was actually distributed in New Jersey in the first place. In these circumstances, where the [c]ourt is left to guess how the song may or may not have trickled its way into New Jersey, it would be simply inappropriate to assume that Defendant [EMI Blackwood] had any knowledge or awareness that the song would reach this forum.”

RECORD DISTRIBUTION/EXTRATERRITORIAL IMPACT

The U.S. Court of Appeals for the Ninth Circuit decided that California right of publicity and federal Lanham Act claims didn't apply to the British release of Brian Wilson's Good Vibrations CD, which featured Beach Boys photographs. Love v. Sanctuary Records Group Ltd., 07-56008. Good Vibrations was distributed as a promotional mailer in England and Ireland in about 2.6 million copies of the newspaper Mail on Sunday. Mike Love, a Beach Boys founding member, filed suit in the U.S. District Court for the Central District of California against a number of parties over the CD release. The district court dismissed Love's claims. Love settled with many of the defendants but appealed some issues in the case.

Affirming the dismissal, the Ninth Circuit noted, as to Love's right of publicity claim, that he was a resident of Nevada, not California. But the court added: “Even if California has an interest in protecting the right of an entertainer with economic ties to the state to exploit his image overseas, that interest is not nearly as significant as England's interest [in promoting unregulated competition in the commercial exploitation of name and likenesses and thus] in (not) regulating the distribution of millions of copies of a newspaper and millions of compact discs by a British paper primarily in the United Kingdom.” (Britain doesn't recognize a right of publicity but does protect against trademark infringement and “passing off.”)

In finding no extraterritorial reach of the Lanham Act, the appeals court explained: “Here, it is undisputed that all relevant acts occurred abroad. The idea for the CD originated with Ian Spero of BigTime.tv, who then approached [Associated Newspapers Ltd.] ANL. BigTime.tv and ANL are both British entities. ' Love no longer claims that the CDs were distributed in the United States.”

Thus, the court said, “for the Lanham Act to apply, Love must have presented evidence that the complained of actions caused him monetary injury in the United States. ' Even if, as Love argues, European purchasers of the Mail on Sunday would mistakenly associate the promotional CD with Love and [Love's] official Beach Boys touring band, it is too great of a stretch to ask us, or a jury, to believe that such confusion overseas resulted in the decreased ticket sales [for Love's group] in the United States.”

SONG DISTRIBUTION/PERSONAL JURISDICTION

The U.S. District Court for the District of New Jersey granted a motion by EMI Blackwood Music to dismiss the publisher from a copyright infringement suit that alleges Mary J. Blige's recording of “Enough Cryin'” is substantially similar to plaintiff Jermaine Jumpp's composition “On My Grind.” Jumpp v. Jerkins, 08-6268 (RBK/KMW). District Judge Robert B. Kugler noted, in an unpublished opinion, that “aside from alleging that Defendant is a Florida corporation with its principal place of business in Delaware, Plaintiff does not allege any particular facts about Defendant, its business practices, or the role it played in the alleged infringement.”

Judge Kugler acknowledged that “a relevant argument regarding specific jurisdiction seems to underlie Plaintiff's amended complaint.” But considering the “stream of commerce” approach, which requires purposeful contacts by a defendant with the
forum state, the district judge observed: “[T]he record shows no evidence favorable to Plaintiff regarding the scope of the licensing agreement between Defendant and [co-defendants, Interscope Geffen A&M label group], whether [the latter] was obligated or likely to distribute the song in New Jersey, or whether the song was actually distributed in New Jersey in the first place. In these circumstances, where the [c]ourt is left to guess how the song may or may not have trickled its way into New Jersey, it would be simply inappropriate to assume that Defendant [EMI Blackwood] had any knowledge or awareness that the song would reach this forum.”