Music Published On Internet Ruled 'U.S. Work'

A Finnish record company's claim that pop music producer Timbaland and pop star Nelly Furtado plagiarized its music was thrown out of court by a Miami, FL, federal magistrate in the Southern District of Florida. The magistrate, Judge Edwin Torres, threw out Kernal Records Oy's claim that its song, 'Acid Jazzed Evening' (AJE), was the basis for 'Do It' on Furtado's hugely popular 2006 album Loose. Torres approved a motion for summary judgment by Miami-based Timbaland (real name Timothy Mosley) and Furtado, and refused to allow the Finnish group to amend its complaint. Kernal Records Oy v. Mosley, 09-21597.

Kernal Records Oy sought $10 million to $20 million in damages on one of the hottest-selling albums of the decade. In 2009, the company sued in South Florida, where the album was produced by Timbaland at the Hit Factory studio in North Miami. The copyright infringement claim was that a Norwegian musician who sold his music to Kernal wrote and recorded a song that was plagiarized by Furtado.

The case centered on whether the European tracks were first published on the Internet or in Europe. 'We thought from the beginning that this issue was an important one. But the other side was trying to get away from the plain language of the Copyright Act,' says Karen Stetson, a partner out of the Miami office of GrayRobinson who represents Timbaland.

According to U.S. copyright law, music published first on the Internet is considered U.S.-created and must be copyrighted to be protected. See, 17 U.S.C. 101(1). The plaintiffs argued that songwriter Glenn Rune Gallefoss published his composition in Vandalism News, an Australian computer-disk magazine, in 2002 and put it on the Internet later that year. In 2007, Gallefoss transferred all rights to the recording to Kernal. The company obtained a copyright registration recently and wanted to amend the complaint to include that copyright information.

Internet Distribution Means U.S. Work

The defendants argued, and Torres agreed, that Gallefoss' work met the definition of a 'United States work' under federal copyright law based on the Internet distribution and that Kernal was therefore required to register it before suing for copyright infringement. 'As there was no dispute that plaintiff had failed to obtain a copyright registration for AJE or for any claimed 'sound recording' or 'composition,' we found that plaintiff had not satisfied a statutory condition precedent to initiating this infringement lawsuit,' Torres stated in his order. Due to inaction, he found Kernal 'could not initiate or maintain this action.'

The plaintiffs strongly disputed that the work was first published on the Internet. They insist that when Gallefoss testified in a deposition that the song was first published on a 'disk magazine' he was referring to a 'computer disk containing a magazine' or a hard-copy computer disk. They assert the song was not posted on the Internet until three months after it was published in Vandalism News.

The plaintiffs also disagreed with the premise that Internet publication equates to simultaneous worldwide publication. They cited a federal case in Delaware in which a judge ruled that photos published on a German website did not amount to simultaneous publication in the United States and Germany, the only similar case cited. See, Moberg v. 33T LLC, 666 F. Supp.2d 415 (D. Del. 2009). 'The work that we say was infringed by Timbaland was created outside the United States in Europe,' Nashville attorney Richard Busch, who represents Kernal Records Oy, says. 'The judge stated a U.S. copyright needed to be obtained. While we got one recently, he would not allow us to amend the complaint to allege the U.S. copyright.' Busch says his client will appeal.

Stetson, whose co-counsel was Jonathan Gaines from GrayRobinson, says her client spent hundreds of thousands of dollars on discovery and litigation. A specialist in entertainment law, the Miami lawyer also represents 50 Cent, Gloria Estefan and local rapper Rick Ross.

Loose, the third album by Canadian singer-songwriter Nelly Furtado, was released in 2006 by Geffen Records. The album, part R&B and part hip-hop, was produced by Timbaland. It sold more than 10 million copies, making it the bestselling album of 2006-07 and the 22nd best-selling album of the decade.

A Finnish record company's claim that pop music producer Timbaland and pop star Nelly Furtado plagiarized its music was thrown out of court by a Miami, FL, federal magistrate in the Southern District of Florida. The magistrate, Judge Edwin Torres, threw out Kernal Records Oy's claim that its song, 'Acid Jazzed Evening' (AJE), was the basis for 'Do It' on Furtado's hugely popular 2006 album Loose. Torres approved a motion for summary judgment by Miami-based Timbaland (real name Timothy Mosley) and Furtado, and refused to allow the Finnish group to amend its complaint. Kernal Records Oy v. Mosley, 09-21597.

Kernal Records Oy sought $10 million to $20 million in damages on one of the hottest-selling albums of the decade. In 2009, the company sued in South Florida, where the album was produced by Timbaland at the Hit Factory studio in North Miami. The copyright infringement claim was that a Norwegian musician who sold his music to Kernal wrote and recorded a song that was plagiarized by Furtado.

The case centered on whether the European tracks were first published on the Internet or in Europe. 'We thought from the beginning that this issue was an important one. But the other side was trying to get away from the plain language of the Copyright Act,' says Karen Stetson, a partner out of the Miami office of GrayRobinson who represents Timbaland.

According to U.S. copyright law, music published first on the Internet is considered U.S.-created and must be copyrighted to be protected. See, 17 U.S.C. 101(1). The plaintiffs argued that songwriter Glenn Rune Gallefoss published his composition in Vandalism News, an Australian computer-disk magazine, in 2002 and put it on the Internet later that year. In 2007, Gallefoss transferred all rights to the recording to Kernal. The company obtained a copyright registration recently and wanted to amend the complaint to include that copyright information.

Internet Distribution Means U.S. Work

The defendants argued, and Torres agreed, that Gallefoss' work met the definition of a 'United States work' under federal copyright law based on the Internet distribution and that Kernal was therefore required to register it before suing for copyright infringement. 'As there was no dispute that plaintiff had failed to obtain a copyright registration for AJE or for any claimed 'sound recording' or 'composition,' we found that plaintiff had not satisfied a statutory condition precedent to initiating this infringement lawsuit,' Torres stated in his order. Due to inaction, he found Kernal 'could not initiate or maintain this action.'

The plaintiffs strongly disputed that the work was first published on the Internet. They insist that when Gallefoss testified in a deposition that the song was first published on a 'disk magazine' he was referring to a 'computer disk containing a magazine' or a hard-copy computer disk. They assert the song was not posted on the Internet until three months after it was published in Vandalism News.

The plaintiffs also disagreed with the premise that Internet publication equates to simultaneous worldwide publication. They cited a federal case in Delaware in which a judge ruled that photos published on a German website did not amount to simultaneous publication in the United States and Germany, the only similar case cited. See, Moberg v. 33T LLC, 666 F. Supp.2d 415 (D. Del. 2009). 'The work that we say was infringed by Timbaland was created outside the United States in Europe,' Nashville attorney Richard Busch, who represents Kernal Records Oy, says. 'The judge stated a U.S. copyright needed to be obtained. While we got one recently, he would not allow us to amend the complaint to allege the U.S. copyright.' Busch says his client will appeal.

Stetson, whose co-counsel was Jonathan Gaines from GrayRobinson, says her client spent hundreds of thousands of dollars on discovery and litigation. A specialist in entertainment law, the Miami lawyer also represents 50 Cent, Gloria Estefan and local rapper Rick Ross.

Loose, the third album by Canadian singer-songwriter Nelly Furtado, was released in 2006 by Geffen Records. The album, part R&B and part hip-hop, was produced by Timbaland. It sold more than 10 million copies, making it the bestselling album of 2006-07 and the 22nd best-selling album of the decade.