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Default Against iTunes in Artist's Download Suit Is Set Aside

A federal magistrate for the Northern District of California set aside a default that had been issued against Apple iTunes for failing to respond to a complaint by an artist alleging unauthorized download distribution of music. Sutton v. Apple Computers iTunes, 11-03911. Korvel Sutton, who had been a member of Pretty Boy Gangsters, alleged copyright infringement of his songs on the 1991 album Rollin' Like A Star. Magistrate Judge Laurel Beeler found: “Here, Apple's failure to answer or respond to Mr. Sutton's complaint was the result of neglect, not bad faith. According to declarations submitted from several of its employees, Mr. Sutton's complaint was erroneously tagged as a subpoena rather than a complaint, and this error led to the complaint not being timely reviewed by the appropriate persons.” Magistrate Beeler added: “Apple has put forth specific facts supporting two potentially meritorious defenses [that Sutton hadn't contested]. It first contends that a third-party rights holder granted Apple a valid license to promote, sell, and distribute the allegedly infringed works. ' Second, it contends that Mr. Sutton's claim for damages resulting from 'worldwide sales' fails because the United States' copyright laws have no application to extraterritorial infringement.”

Michigan Gets Governmental Immunity in Tax Credit Case

The U.S. District Court for the Eastern District of Michigan decided that the Michigan Film Office and the Michigan Department of Treasury were entitled to governmental immunity under the Eleventh Amendment from a suit brought by a production company denied a state tax credit. Sandy Frank Productions LLC v. Michigan Film Office, 11-10933. Sandy Frank Productions sought a 42% tax credit for filming the TV pilot The Making of ' Face the Music in Michigan. District Judge Sean F. Cox noted: “According to Plaintiff, one of the reasons provided by the Film Office for its denial of Plaintiff's application was that, in the Film Office's view, Plaintiff's show, 'The Making Of ',' is in actuality, a game show. The Michigan Film Production Tax Credit excludes game shows from eligibility for the tax credit. See, M.C.L. '208.1455(k)(x). Plaintiff maintains that its show is a reality show, centered around the production of a game show, and is not itself a game show.” But Judge Cox noted in dismissing the suit: “In this case, the Film Office and the Treasury have not waived their [Eleventh Amendment] immunity. Plaintiff is a New York entity and has brought a claim for damages in federal court against two agencies of the State of Michigan. Because Plaintiff [as a 'citizen' of another state] may not bring its claims against a state agency, the Court finds that the Film Office and the Treasury are entitled to Eleventh Amendment immunity.”

Translation Lyrics Suit Can Be Heard in New York Federal Court, Despite Appeal of Florida Litigation over Same Song

The U.S. District Court for the Southern District of New York allowed a music publisher's suit against a songwriter to proceed, despite pending litigation brought by the songwriter over the same song in Florida federal court. Songwriter Rafael Vergara sued in Florida over use by Coca-Cola of Spanish translation lyrics he wrote, by request of Universal Music for the song “Waivin' Flag,” to promote the World Cup Soccer Games. After the Southern District of Florida ruled that Vergara had given Universal a valid assignment of the translation-lyrics (Hermosilla v. The Coca-Cola Co., 10-21418), Vergara appealed to the U.S. Court of Appeals for the First Circuit. Meanwhile, Universal sued Vergara in New York federal court alleging Vergara breached the music publishing agreement by filing the Florida complaint. In denying Vergara's motion to stay the New York litigation, New York federal District Judge Thomas P. Griesa noted: “Whether Vergara wins or loses in the Florida action, UMG claims that Vergara's filing and prosecution of that lawsuit was a breach of the Agreement. This court's interpretation of the parties' rights and obligations under the Agreement will not be affected by the results of the Florida action. Accordingly, awaiting resolution of Vergara's litigation with Coca Cola will involve needless delay.” Universal Music-NBG NA LLC (UMG) v. Vergara, 11 Civ. 1884.

Default Against iTunes in Artist's Download Suit Is Set Aside

A federal magistrate for the Northern District of California set aside a default that had been issued against Apple iTunes for failing to respond to a complaint by an artist alleging unauthorized download distribution of music. Sutton v. Apple Computers iTunes, 11-03911. Korvel Sutton, who had been a member of Pretty Boy Gangsters, alleged copyright infringement of his songs on the 1991 album Rollin' Like A Star. Magistrate Judge Laurel Beeler found: “Here, Apple's failure to answer or respond to Mr. Sutton's complaint was the result of neglect, not bad faith. According to declarations submitted from several of its employees, Mr. Sutton's complaint was erroneously tagged as a subpoena rather than a complaint, and this error led to the complaint not being timely reviewed by the appropriate persons.” Magistrate Beeler added: “Apple has put forth specific facts supporting two potentially meritorious defenses [that Sutton hadn't contested]. It first contends that a third-party rights holder granted Apple a valid license to promote, sell, and distribute the allegedly infringed works. ' Second, it contends that Mr. Sutton's claim for damages resulting from 'worldwide sales' fails because the United States' copyright laws have no application to extraterritorial infringement.”

Michigan Gets Governmental Immunity in Tax Credit Case

The U.S. District Court for the Eastern District of Michigan decided that the Michigan Film Office and the Michigan Department of Treasury were entitled to governmental immunity under the Eleventh Amendment from a suit brought by a production company denied a state tax credit. Sandy Frank Productions LLC v. Michigan Film Office, 11-10933. Sandy Frank Productions sought a 42% tax credit for filming the TV pilot The Making of ' Face the Music in Michigan. District Judge Sean F. Cox noted: “According to Plaintiff, one of the reasons provided by the Film Office for its denial of Plaintiff's application was that, in the Film Office's view, Plaintiff's show, 'The Making Of ',' is in actuality, a game show. The Michigan Film Production Tax Credit excludes game shows from eligibility for the tax credit. See, M.C.L. '208.1455(k)(x). Plaintiff maintains that its show is a reality show, centered around the production of a game show, and is not itself a game show.” But Judge Cox noted in dismissing the suit: “In this case, the Film Office and the Treasury have not waived their [Eleventh Amendment] immunity. Plaintiff is a New York entity and has brought a claim for damages in federal court against two agencies of the State of Michigan. Because Plaintiff [as a 'citizen' of another state] may not bring its claims against a state agency, the Court finds that the Film Office and the Treasury are entitled to Eleventh Amendment immunity.”

Translation Lyrics Suit Can Be Heard in New York Federal Court, Despite Appeal of Florida Litigation over Same Song

The U.S. District Court for the Southern District of New York allowed a music publisher's suit against a songwriter to proceed, despite pending litigation brought by the songwriter over the same song in Florida federal court. Songwriter Rafael Vergara sued in Florida over use by Coca-Cola of Spanish translation lyrics he wrote, by request of Universal Music for the song “Waivin' Flag,” to promote the World Cup Soccer Games. After the Southern District of Florida ruled that Vergara had given Universal a valid assignment of the translation-lyrics (Hermosilla v. The Coca-Cola Co., 10-21418), Vergara appealed to the U.S. Court of Appeals for the First Circuit. Meanwhile, Universal sued Vergara in New York federal court alleging Vergara breached the music publishing agreement by filing the Florida complaint. In denying Vergara's motion to stay the New York litigation, New York federal District Judge Thomas P. Griesa noted: “Whether Vergara wins or loses in the Florida action, UMG claims that Vergara's filing and prosecution of that lawsuit was a breach of the Agreement. This court's interpretation of the parties' rights and obligations under the Agreement will not be affected by the results of the Florida action. Accordingly, awaiting resolution of Vergara's litigation with Coca Cola will involve needless delay.” Universal Music-NBG NA LLC (UMG) v. Vergara, 11 Civ. 1884.