Bit Parts

Independent Artist Has No Claim to Radio Airplay

The U.S. District Court for the District of Arizona dismissed an action by an artist who sued over a consent decree, entered into several years ago between radio-station chains and the Federal Communications Commission (FCC), to increase airplay for independent musicians. Quain v. Capstar, CV-09-2365. Unable to get his music on local radio, John Quain, of the band Citizen Quain, sued Clear Channel Communications for breach of contract, misrepresentation and unjust enrichment. But District Judge David G. Campbell noted of the breach-of-contract claim: “Statements by certain FCC Commissioners make clear that the consent decree is designed to limit 'payola,' that is, the 'pay for play' practices of Clear Channel and its subsidiaries. Those statements also show that rules and agreements prohibiting payola benefit independent local artists who otherwise could not afford to get their music on the airwaves. But this incidental benefit does not render Plaintiff a 'real promissee' to the consent decree between the FCC and Clear Channel. ' Defendants note, correctly, that nothing in the consent decree requires Clear Channel to play Plaintiff's music or that of any other musician.” However, Quain further alleged that the radio-station chain “misrepresented that it would comply with the provisions to provide approximately 4,000 hours of airtime made available to independent and/or local artists.” Here, Judge Campbell found that “the consent decree contains no such provision. Nor does the complaint allege that Clear Channel intended Plaintiff to act on the purported misrepresentation in the manner he did, that is, spending nearly $100,000 recording music and preparing promotional items.”

Music-Royalty Conversion Claim Improperly Pleaded

The U.S. District Court for the Northern District of California ruled in part that members of the 1970s punk rock band The Avengers failed to properly state a conversion claim in their suit for royalties from master recordings and compositions that comprised the early 1980s compilation Pink Album. Houston v. Ferguson, 10-01881. District Judge Jeffrey S. White noted: “Plaintiffs allege that [defendant David] Ferguson [with whose companies The Avengers had signed non-exclusive licensing agreements for the masters and two band members signed music publishing agreements] wrongfully received money when he infringed their copyrights, that that money was rightfully theirs, and that he converted it by not turning it over to Plaintiffs when they demanded it in 2009. ' [But] Plaintiffs have not alleged a cause of action for conversion, because they fail to allege that Ferguson converted an identifiable sum of money.” Judge White continued: “Rather, Plaintiffs allege that Ferguson converted the profits he received from unlawfully exploiting their copyrights. This is a general claim for damages for copyright infringement.” But the district judge declined to accept Ferguson's argument that the bands' claim for a declaration of rights ' under an agreement band member Penelope Houston had signed with Ferguson regarding rights to a 1978 performance by The Avengers at the Winterland venue in San Francisco ' was preempted by the Copyright Act. The court instead observed that “the parties dispute which works were transferred. The Copyright Act does not prevent a district court from declaring whether a contract was formed or revoked, or declaring its contents.”

Six-Month Suspension for Georgia Lawyer over File-Sharing Defense

The Supreme Court of Georgia approved a six-month suspension from the practice of law for an attorney's handling of the defense in a music-downloading case. In the Matter of Hardwick, S10Y1759. Clifford E. Hardwick was hired in June 2005 and paid $5,000 to defend his clients' son, who had been sued for committing copyright infringement through file sharing. But Hardwick made no entry of appearance in the infringement case until November 2005 and, according to the state supreme court, failed to comply with discovery. A default judgment was subsequently entered against his clients. “Hardwick never informed his clients of the default judgment,” the GA Supreme Court emphasized. When the state bar filed a complaint against Hardwick, he admitted to violating the Georgia Rules of Professional Conduct, then filed a petition for voluntary discipline. The state bar emphasized, among other things, that Hardwick had previously received two disciplinary letters of admonition [in 1994 and 2008] and that he falsely stated during the current disciplinary process that his download clients' case had been settled. The state supreme court concluded: “In mitigation, we find the absence of a selfish motive; that Hardwick was attempting to cope with significant personal and family issues at the time of this infraction; and that he has paid full restitution to his clients and agreed to indemnify them against further financial harm. In aggravation, we note Hardwick's prior disciplinary offenses and the fact that he made a false statement during the disciplinary process. Accordingly, we accept Hardwick's petition for voluntary discipline and order that Hardwick be suspended from the practice of law in this State for six months from the date of this opinion. Hardwick is reminded of his duties under Bar Rule 4-219(c).”

Independent Artist Has No Claim to Radio Airplay

The U.S. District Court for the District of Arizona dismissed an action by an artist who sued over a consent decree, entered into several years ago between radio-station chains and the Federal Communications Commission (FCC), to increase airplay for independent musicians. Quain v. Capstar, CV-09-2365. Unable to get his music on local radio, John Quain, of the band Citizen Quain, sued Clear Channel Communications for breach of contract, misrepresentation and unjust enrichment. But District Judge David G. Campbell noted of the breach-of-contract claim: “Statements by certain FCC Commissioners make clear that the consent decree is designed to limit 'payola,' that is, the 'pay for play' practices of Clear Channel and its subsidiaries. Those statements also show that rules and agreements prohibiting payola benefit independent local artists who otherwise could not afford to get their music on the airwaves. But this incidental benefit does not render Plaintiff a 'real promissee' to the consent decree between the FCC and Clear Channel. ' Defendants note, correctly, that nothing in the consent decree requires Clear Channel to play Plaintiff's music or that of any other musician.” However, Quain further alleged that the radio-station chain “misrepresented that it would comply with the provisions to provide approximately 4,000 hours of airtime made available to independent and/or local artists.” Here, Judge Campbell found that “the consent decree contains no such provision. Nor does the complaint allege that Clear Channel intended Plaintiff to act on the purported misrepresentation in the manner he did, that is, spending nearly $100,000 recording music and preparing promotional items.”

Music-Royalty Conversion Claim Improperly Pleaded

The U.S. District Court for the Northern District of California ruled in part that members of the 1970s punk rock band The Avengers failed to properly state a conversion claim in their suit for royalties from master recordings and compositions that comprised the early 1980s compilation Pink Album. Houston v. Ferguson, 10-01881. District Judge Jeffrey S. White noted: “Plaintiffs allege that [defendant David] Ferguson [with whose companies The Avengers had signed non-exclusive licensing agreements for the masters and two band members signed music publishing agreements] wrongfully received money when he infringed their copyrights, that that money was rightfully theirs, and that he converted it by not turning it over to Plaintiffs when they demanded it in 2009. ' [But] Plaintiffs have not alleged a cause of action for conversion, because they fail to allege that Ferguson converted an identifiable sum of money.” Judge White continued: “Rather, Plaintiffs allege that Ferguson converted the profits he received from unlawfully exploiting their copyrights. This is a general claim for damages for copyright infringement.” But the district judge declined to accept Ferguson's argument that the bands' claim for a declaration of rights ' under an agreement band member Penelope Houston had signed with Ferguson regarding rights to a 1978 performance by The Avengers at the Winterland venue in San Francisco ' was preempted by the Copyright Act. The court instead observed that “the parties dispute which works were transferred. The Copyright Act does not prevent a district court from declaring whether a contract was formed or revoked, or declaring its contents.”

Six-Month Suspension for Georgia Lawyer over File-Sharing Defense

The Supreme Court of Georgia approved a six-month suspension from the practice of law for an attorney's handling of the defense in a music-downloading case. In the Matter of Hardwick, S10Y1759. Clifford E. Hardwick was hired in June 2005 and paid $5,000 to defend his clients' son, who had been sued for committing copyright infringement through file sharing. But Hardwick made no entry of appearance in the infringement case until November 2005 and, according to the state supreme court, failed to comply with discovery. A default judgment was subsequently entered against his clients. “Hardwick never informed his clients of the default judgment,” the GA Supreme Court emphasized. When the state bar filed a complaint against Hardwick, he admitted to violating the Georgia Rules of Professional Conduct, then filed a petition for voluntary discipline. The state bar emphasized, among other things, that Hardwick had previously received two disciplinary letters of admonition [in 1994 and 2008] and that he falsely stated during the current disciplinary process that his download clients' case had been settled. The state supreme court concluded: “In mitigation, we find the absence of a selfish motive; that Hardwick was attempting to cope with significant personal and family issues at the time of this infraction; and that he has paid full restitution to his clients and agreed to indemnify them against further financial harm. In aggravation, we note Hardwick's prior disciplinary offenses and the fact that he made a false statement during the disciplinary process. Accordingly, we accept Hardwick's petition for voluntary discipline and order that Hardwick be suspended from the practice of law in this State for six months from the date of this opinion. Hardwick is reminded of his duties under Bar Rule 4-219(c).”