Cameo Clips

CONCERT PROMOTION/TICKET SALES DISPUTE

The U.S. District Court for the Western District of South Dakota denied a motion to dismiss all but one of several claims filed by a concert promoter over the handling of ticket sales for concerts held during the annual Sturgis Motorcycle Rally in the Black Hills. Rozone Productions LLC v. Raczkowski, 09-5015-JLV. The Rozone Productions plaintiffs promoted Motorcycle Rally concerts by Kenny Chesney, John Fogerty and KISS. Rozone hired Good Music Agency to book the acts. Good Music then recommended that Rozone use Star Tickets as the ticket vendor. The concerts attracted large audiences, but after the shows, Star Tickets' CEO Andrew Rocky Raczkowski seized the ticket-stub boxes and allegedly destroyed some of the boxed stubs so that the amount remaining would match the ticket sales actually reported to Rozone. Meanwhile, unknown to Rozone, Star Tickets paid Good Music a $2.00 kickback for each ticket sold.

District Judge Jeffrey L. Viken allowed Rozone's breach of contract and intentional misrepresentation claims against Good Music to move forward. Judge Viken then noted of Rozone's deceit and civil conspiracy allegations: “Plaintiffs' complaint contains fact-specific allegations of deceit [i.e., receipt of the kickback payments] on the part of Good Music. ' It is alleged this non-disclosed conduct misled plaintiffs in their relationship with Good Music and the other defendants. ' The alleged torts of intentional misrepresentation and deceit involved the participation of one or more of the other defendants. The complaint asserts Raczkowski and Star Tickets are the individuals with whom Good Music may have had a meeting of the minds to cause the commission of another tortious act. ' This under-the-table, or kickback, relationship satisfies the allegations necessary to create an independent cause of action for civil conspiracy.”

But Judge Viken dismissed Rozone's breach-of-fiduciary-obligation claim against Good Times on the ground that “Plaintiffs have failed to allege how they had 'confidence' in Good Music, how plaintiffs suffered 'a certain inequality' of 'business intelligence' or 'other conditions,' which gave the defendants an 'advantage over' the plaintiffs.”

The U.S. District Court for the Northern District of Georgia granted summary judgment for defendants on the basis of independent creation, in a suit that alleged the use of a repeating three-note motif in the song “Betcha Can't Do It Like Me” by rap group D4L infringed on the copyright for the plaintiff's rap song “Come Up.” Watt v. Butler, 1:08-CV-3386-TWT.

However, District Judge Thomas W. Thrash Jr. first denied a defense motion to exclude the plaintiff's expert, Dr. Gage Averill, an ethnomusicologist and Vice-Principal Academic and Dean of the University of Toronto. The district judge noted that “Dr. Averill's methodology is consistent with that used in his professional studies. ' [T]he Defendants argue that Dr. Averill's opinion focuses too heavily on the similarities between 'Come Up' and 'Betcha' while disregarding the differences in rhythm and context ' and merely 'regurgitated' information supplied by the Plaintiff's counsel. ' These objections, however, go to the weight and accuracy of Dr. Averill's testimony, not the reliability of his methodology.”

The district court did find a material issue of fact existed regarding whether the defendants had a “reasonable opportunity” to hear “Come Up” before writing “Betcha,” considering that “[defendant] Teriyakie Smith and the members of D4L live in the Atlanta area, where 'Come Up' was disseminated and performed” by Tennessee-based rappers Woodlawn Click, who wrote “Come Up” and assigned their rights to case plaintiff Charles Watt. Judge Thrash also acknowledged “it is possible to identify a similar repeating pattern underlying both works. Thus, the [c]ourt cannot conclude that no reasonable juror would find that the two works are substantially similar.”

But the judge concluded that evidence of the defendants' independent creation of “Betcha” justified dismissing the infringement suit. “Teriyakie Smith testified that he created the 3-note pattern at issue by using a computer keyboard and the 'Fruity Loops' music production software,” Judge Thrash observed. “Smith explained that 'the keys on the [computer] keyboard were right beside each other. And that's how the tune came about.' Watt has offered no evidence to contradict Smith's testimony.” Watt further argued that “striking similarity” between “Come Up” and “Betcha” precluded summary judgment, but the court found “the Plaintiff's expert does not contend that the ostinati [i.e., the three-note refrains] are identical, conceding that certain 'transitional sequences' distinguish the two works.”

CONCERT PROMOTION/TICKET SALES DISPUTE

The U.S. District Court for the Western District of South Dakota denied a motion to dismiss all but one of several claims filed by a concert promoter over the handling of ticket sales for concerts held during the annual Sturgis Motorcycle Rally in the Black Hills. Rozone Productions LLC v. Raczkowski, 09-5015-JLV. The Rozone Productions plaintiffs promoted Motorcycle Rally concerts by Kenny Chesney, John Fogerty and KISS. Rozone hired Good Music Agency to book the acts. Good Music then recommended that Rozone use Star Tickets as the ticket vendor. The concerts attracted large audiences, but after the shows, Star Tickets' CEO Andrew Rocky Raczkowski seized the ticket-stub boxes and allegedly destroyed some of the boxed stubs so that the amount remaining would match the ticket sales actually reported to Rozone. Meanwhile, unknown to Rozone, Star Tickets paid Good Music a $2.00 kickback for each ticket sold.

District Judge Jeffrey L. Viken allowed Rozone's breach of contract and intentional misrepresentation claims against Good Music to move forward. Judge Viken then noted of Rozone's deceit and civil conspiracy allegations: “Plaintiffs' complaint contains fact-specific allegations of deceit [i.e., receipt of the kickback payments] on the part of Good Music. ' It is alleged this non-disclosed conduct misled plaintiffs in their relationship with Good Music and the other defendants. ' The alleged torts of intentional misrepresentation and deceit involved the participation of one or more of the other defendants. The complaint asserts Raczkowski and Star Tickets are the individuals with whom Good Music may have had a meeting of the minds to cause the commission of another tortious act. ' This under-the-table, or kickback, relationship satisfies the allegations necessary to create an independent cause of action for civil conspiracy.”

But Judge Viken dismissed Rozone's breach-of-fiduciary-obligation claim against Good Times on the ground that “Plaintiffs have failed to allege how they had 'confidence' in Good Music, how plaintiffs suffered 'a certain inequality' of 'business intelligence' or 'other conditions,' which gave the defendants an 'advantage over' the plaintiffs.”

The U.S. District Court for the Northern District of Georgia granted summary judgment for defendants on the basis of independent creation, in a suit that alleged the use of a repeating three-note motif in the song “Betcha Can't Do It Like Me” by rap group D4L infringed on the copyright for the plaintiff's rap song “Come Up.” Watt v. Butler, 1:08-CV-3386-TWT.

However, District Judge Thomas W. Thrash Jr. first denied a defense motion to exclude the plaintiff's expert, Dr. Gage Averill, an ethnomusicologist and Vice-Principal Academic and Dean of the University of Toronto. The district judge noted that “Dr. Averill's methodology is consistent with that used in his professional studies. ' [T]he Defendants argue that Dr. Averill's opinion focuses too heavily on the similarities between 'Come Up' and 'Betcha' while disregarding the differences in rhythm and context ' and merely 'regurgitated' information supplied by the Plaintiff's counsel. ' These objections, however, go to the weight and accuracy of Dr. Averill's testimony, not the reliability of his methodology.”

The district court did find a material issue of fact existed regarding whether the defendants had a “reasonable opportunity” to hear “Come Up” before writing “Betcha,” considering that “[defendant] Teriyakie Smith and the members of D4L live in the Atlanta area, where 'Come Up' was disseminated and performed” by Tennessee-based rappers Woodlawn Click, who wrote “Come Up” and assigned their rights to case plaintiff Charles Watt. Judge Thrash also acknowledged “it is possible to identify a similar repeating pattern underlying both works. Thus, the [c]ourt cannot conclude that no reasonable juror would find that the two works are substantially similar.”

But the judge concluded that evidence of the defendants' independent creation of “Betcha” justified dismissing the infringement suit. “Teriyakie Smith testified that he created the 3-note pattern at issue by using a computer keyboard and the 'Fruity Loops' music production software,” Judge Thrash observed. “Smith explained that 'the keys on the [computer] keyboard were right beside each other. And that's how the tune came about.' Watt has offered no evidence to contradict Smith's testimony.” Watt further argued that “striking similarity” between “Come Up” and “Betcha” precluded summary judgment, but the court found “the Plaintiff's expert does not contend that the ostinati [i.e., the three-note refrains] are identical, conceding that certain 'transitional sequences' distinguish the two works.”