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 recently thrown out of court by a Miami federal magistrate.

Magistrate 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 Miami-based Timbaland's (real name Timothy Mosley) and Furtado's summary judgment motion, and didn't allow the Finnish group to amend its complaint. Kernal Records Oy v. Mosley, 09-21597.

Kernal sought $10 million to $20 million on one of the decade's hottest-selling albums. In 2009, the company sued in South Florida, where Timbaland produced the album at the Hit Factory. The copyright-infringement claim was that Furtado plagiarized a Norwegian musician's work produced for Kernal.

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,” says Karen Stetson, a partner in the Miami office of GrayRobinson, for Timbaland. “But the other side was trying to get away from the plain language of the Copyright Act.”

U.S. copyright law says music published first on the Internet is considered U.S.-created and must be copyrighted for protection (see 17 U.S.C. 101(1)). 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 gave Kernal all rights to the recording. The company recently obtained a copyright registration and wanted to amend the complaint to include it.

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 said Gallefoss' testimony that the song was first published on a “disk magazine” meant a “computer disk containing a magazine” or a hard-copy computer disk. They asserted 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 (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 (for Kernal) 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 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, Furtado's third album, was released in 2006 by Geffen Records. Timbaland produced the album, which is part R&B and part hip-hop. It sold more than 10 million copies, making it the best-selling album of 2006-07 and the 22nd best-selling album of the decade.

Julie Kay is a staff writer for e-Commerce Law & Strategy's affiliate Daily Business Review.

A Finnish record company's claim that pop music producer Timbaland and pop star Nelly Furtado plagiarized its music was recently thrown out of court by a Miami federal magistrate.

Magistrate 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 Miami-based Timbaland's (real name Timothy Mosley) and Furtado's summary judgment motion, and didn't allow the Finnish group to amend its complaint. Kernal Records Oy v. Mosley, 09-21597.

Kernal sought $10 million to $20 million on one of the decade's hottest-selling albums. In 2009, the company sued in South Florida, where Timbaland produced the album at the Hit Factory. The copyright-infringement claim was that Furtado plagiarized a Norwegian musician's work produced for Kernal.

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,” says Karen Stetson, a partner in the Miami office of GrayRobinson, for Timbaland. “But the other side was trying to get away from the plain language of the Copyright Act.”

U.S. copyright law says music published first on the Internet is considered U.S.-created and must be copyrighted for protection (see 17 U.S.C. 101(1)). 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 gave Kernal all rights to the recording. The company recently obtained a copyright registration and wanted to amend the complaint to include it.

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 said Gallefoss' testimony that the song was first published on a “disk magazine” meant a “computer disk containing a magazine” or a hard-copy computer disk. They asserted 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 (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 (for Kernal) 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 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, Furtado's third album, was released in 2006 by Geffen Records. Timbaland produced the album, which is part R&B and part hip-hop. It sold more than 10 million copies, making it the best-selling album of 2006-07 and the 22nd best-selling album of the decade.

Julie Kay is a staff writer for e-Commerce Law & Strategy's affiliate Daily Business Review.