Bit Parts

Alleging “Online” Distribution Not Enough to Establish Simultaneous International “Publication.”

The U.S. Court of Appeals for the Eleventh Circuit decided that alleging “online” distribution from Australia of a sound recording didn't establish simultaneous worldwide publication. Kernel Records Oy v. Mosley, 11-12769. For example, the appeals court noted, “if the software for a peer-to-peer network was downloaded only in Canada, Egypt, and the Netherlands, offering a file for download on the peer-to-peer network would not make the file simultaneously available to a worldwide audience” in the way that posting on an open Internet website would. Thus, there was a genuine issue of material fact ' in Kernel Records' copyright infringement suit against UMG Recordings, recording artist Nelly Furtado and producer Timbaland over the track “Do It” ' as to whether the plaintiff's work “Acidjazzed Evening” was simultaneously published in the United States. If it was, the lawsuit would be blocked, the appeals court noted, “because Kernel failed to apply for [U.S. Copyright Office] registration prior to the district court's grant of summary judgment” for the defendants '.”

Expert Report on Value of “Bogart” Ruled Reliable

The U.S. District Court for the Middle District of Georgia ruled that an expert witness report on the fair market value for licensing the name of late actor Humphrey Bogart was “sufficiently reliable” to be admitted into evidence. Bogart LLC v. Ashley Furniture Industries Inc., 3:10-CV-39. Bogart LLC sued alleging illegal use of “Bogart” in the defendants' “Bogart Ocean” furniture line. Rule 702 of the Federal Rules of Evidence states that an expert must use “reliable principles and methods.” According to District Judge Clay D. Land, Ashley Furniture challenged Jon Albert's expert report for “not entail[ing] any scientific calculus, factors to be reviewed, or a method that can be repeated and tested.” But Judge Land decided the report of Albert, described as “a celebrity talent and music rights packager,” was admissible because “Albert seeks to testify based on his more than [30] years of experience in celebrity licensing valuation. ' Moreover, he points to concrete evidence supporting his opinions, including evidence of how others in the market place have placed a value on these intellectual property rights.”

Alleging “Online” Distribution Not Enough to Establish Simultaneous International “Publication.”

The U.S. Court of Appeals for the Eleventh Circuit decided that alleging “online” distribution from Australia of a sound recording didn't establish simultaneous worldwide publication. Kernel Records Oy v. Mosley, 11-12769. For example, the appeals court noted, “if the software for a peer-to-peer network was downloaded only in Canada, Egypt, and the Netherlands, offering a file for download on the peer-to-peer network would not make the file simultaneously available to a worldwide audience” in the way that posting on an open Internet website would. Thus, there was a genuine issue of material fact ' in Kernel Records' copyright infringement suit against UMG Recordings, recording artist Nelly Furtado and producer Timbaland over the track “Do It” ' as to whether the plaintiff's work “Acidjazzed Evening” was simultaneously published in the United States. If it was, the lawsuit would be blocked, the appeals court noted, “because Kernel failed to apply for [U.S. Copyright Office] registration prior to the district court's grant of summary judgment” for the defendants '.”

Expert Report on Value of “Bogart” Ruled Reliable

The U.S. District Court for the Middle District of Georgia ruled that an expert witness report on the fair market value for licensing the name of late actor Humphrey Bogart was “sufficiently reliable” to be admitted into evidence. Bogart LLC v. Ashley Furniture Industries Inc., 3:10-CV-39. Bogart LLC sued alleging illegal use of “Bogart” in the defendants' “Bogart Ocean” furniture line. Rule 702 of the Federal Rules of Evidence states that an expert must use “reliable principles and methods.” According to District Judge Clay D. Land, Ashley Furniture challenged Jon Albert's expert report for “not entail[ing] any scientific calculus, factors to be reviewed, or a method that can be repeated and tested.” But Judge Land decided the report of Albert, described as “a celebrity talent and music rights packager,” was admissible because “Albert seeks to testify based on his more than [30] years of experience in celebrity licensing valuation. ' Moreover, he points to concrete evidence supporting his opinions, including evidence of how others in the market place have placed a value on these intellectual property rights.”