Cameo Clips

Copyright Infringement/Contempt Motion Denied

The U.S. District Court for the Central District of California denied a motion by a copyright infringement plaintiff that asked that hip-hop artist Jay-Z and his co-defendants be held in contempt for in general failing to respond to the plaintiff's discovery requests regarding concert revenues. Fahmy v. Jay-Z, 07-5715. Osama Ahmed Fahmy claims Jay-Z's song “Big Pimpin'” infringes on the composition “Khosara” by Fahmy's deceased uncle, Egyptian artist Baligh Hamdy. Fahmy had earlier moved for a summary judgment ruling that an infringement award could include Jay-Z concert revenues as direct profits, rather than indirect profits.

In a December 2011 ruling on the motion, District Judge Christina A. Snyder had concluded: “The Court reserves judgment as to whether plaintiff is able to prove the requisite causal nexus. The Court therefore DENIES plaintiff's motion for an order specifying that concert revenues are recoverable as a matter of law. However, defendants are directed to respond to discovery requests that go to both the manner of advertising concerts as well as the revenues derived therefrom.” Fahmy v. Jay-Z, 835 F. Supp. 2d 783 (C.D.Calif. 2011).

Judge Snyder now agrees that the ruling wasn't specific enough to now find the defendants in contempt.

Judge Snyder went on to grant the defendants' current motion for a protective order by noting that Fahmy's discovery request “encompasses several concerts dating back to 2004, and could involve combing through multifaceted revenue streams related to the many concerts that have taken place. Given the burdensome nature of the discovery at issue, the fact that defendants only seek a short delay in the commencement of this discovery, and the fact that defendants' pending motion [for summary judgment] could obviate the need for the discovery, the Court finds that a protective order should issue.”

Venue Competition/Expert Witnesses

The U.S. District Court for the District of Colorado has allowed the introduction of a supplemental expert witness report regarding lost profits in a dispute alleging that the owners of Beatport, the most successful website aimed at electronic dance music (EDM) DJs, used their influence to persuade A-List EDM DJs not to appear in the plaintiffs' clubs. Christou v. Beatport LLC, 10-cv-02912. Regas Christou, who founded the Denver, CO, EDM nightclubs Vinyl and The Church, had helped with funding for the 2003 startup of Beatport, whose founders included Bradley Roulier, a talent buyer for Christou. Then in 2008, Roulier left his job with Christou and started the Beta nightclub in Denver. Christou's Church and Vinyl subsequently sued Roulier and Beta, alleging that Roulier was telling A-List EDM DJs that their music wouldn't be promoted on Beatport if they appeared at Christou's clubs.

Christou causes of action include attempting to monopolize and for intentional interference with prospective business expectancies. Ruling on a series of pre-trial evidentiary motions, District Judge R. Brooke Jackson decided in part that a March 4, 2013, supplemental report by the plaintiffs' expert witness Jay Freedberg was acceptable. Judge Jackson cautioned: “The Court held a 'Daubert' hearing on January 15, 2013 and subsequently issued its order of January 23, 2013. In that order the Court expressed some misgivings about Mr. Freedberg's opinion on 'lost enterprise value,' ' This was not intended to be an invitation to Mr. Freedberg to modify his opinions to meet the Court's concerns.”

Judge Jackson went on to explain that, “if there is no change in methodology, for example the method of calculating lost profits, and the supplement does nothing substantively beyond updating the calculation to including data for the years 2011 and 2012 that literally did not exist and therefore could not have been included by Mr. Freedberg in his initial report, then it is not a matter of providing an untimely opinion. ' The defendants are armed with their own very able expert who should have little added burden in responding to the supplemented opinion, if that is all that it contains.”

The district judge concluded: “I see no reason why, at least in a tying/attempt to monopolize case such as this one where the alleged misconduct has continued to the present time, there is something magic about the date the complaint was filed. If there is a rational basis for such a cutoff, the defendants have not provided it to me.”

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He can be reached at [email protected] or via www.stansoocher.com.

Copyright Infringement/Contempt Motion Denied

The U.S. District Court for the Central District of California denied a motion by a copyright infringement plaintiff that asked that hip-hop artist Jay-Z and his co-defendants be held in contempt for in general failing to respond to the plaintiff's discovery requests regarding concert revenues. Fahmy v. Jay-Z, 07-5715. Osama Ahmed Fahmy claims Jay-Z's song “Big Pimpin'” infringes on the composition “Khosara” by Fahmy's deceased uncle, Egyptian artist Baligh Hamdy. Fahmy had earlier moved for a summary judgment ruling that an infringement award could include Jay-Z concert revenues as direct profits, rather than indirect profits.

In a December 2011 ruling on the motion, District Judge Christina A. Snyder had concluded: “The Court reserves judgment as to whether plaintiff is able to prove the requisite causal nexus. The Court therefore DENIES plaintiff's motion for an order specifying that concert revenues are recoverable as a matter of law. However, defendants are directed to respond to discovery requests that go to both the manner of advertising concerts as well as the revenues derived therefrom.” Fahmy v. Jay-Z, 835 F. Supp. 2d 783 (C.D.Calif. 2011).

Judge Snyder now agrees that the ruling wasn't specific enough to now find the defendants in contempt.

Judge Snyder went on to grant the defendants' current motion for a protective order by noting that Fahmy's discovery request “encompasses several concerts dating back to 2004, and could involve combing through multifaceted revenue streams related to the many concerts that have taken place. Given the burdensome nature of the discovery at issue, the fact that defendants only seek a short delay in the commencement of this discovery, and the fact that defendants' pending motion [for summary judgment] could obviate the need for the discovery, the Court finds that a protective order should issue.”

Venue Competition/Expert Witnesses

The U.S. District Court for the District of Colorado has allowed the introduction of a supplemental expert witness report regarding lost profits in a dispute alleging that the owners of Beatport, the most successful website aimed at electronic dance music (EDM) DJs, used their influence to persuade A-List EDM DJs not to appear in the plaintiffs' clubs. Christou v. Beatport LLC, 10-cv-02912. Regas Christou, who founded the Denver, CO, EDM nightclubs Vinyl and The Church, had helped with funding for the 2003 startup of Beatport, whose founders included Bradley Roulier, a talent buyer for Christou. Then in 2008, Roulier left his job with Christou and started the Beta nightclub in Denver. Christou's Church and Vinyl subsequently sued Roulier and Beta, alleging that Roulier was telling A-List EDM DJs that their music wouldn't be promoted on Beatport if they appeared at Christou's clubs.

Christou causes of action include attempting to monopolize and for intentional interference with prospective business expectancies. Ruling on a series of pre-trial evidentiary motions, District Judge R. Brooke Jackson decided in part that a March 4, 2013, supplemental report by the plaintiffs' expert witness Jay Freedberg was acceptable. Judge Jackson cautioned: “The Court held a 'Daubert' hearing on January 15, 2013 and subsequently issued its order of January 23, 2013. In that order the Court expressed some misgivings about Mr. Freedberg's opinion on 'lost enterprise value,' ' This was not intended to be an invitation to Mr. Freedberg to modify his opinions to meet the Court's concerns.”

Judge Jackson went on to explain that, “if there is no change in methodology, for example the method of calculating lost profits, and the supplement does nothing substantively beyond updating the calculation to including data for the years 2011 and 2012 that literally did not exist and therefore could not have been included by Mr. Freedberg in his initial report, then it is not a matter of providing an untimely opinion. ' The defendants are armed with their own very able expert who should have little added burden in responding to the supplemented opinion, if that is all that it contains.”

The district judge concluded: “I see no reason why, at least in a tying/attempt to monopolize case such as this one where the alleged misconduct has continued to the present time, there is something magic about the date the complaint was filed. If there is a rational basis for such a cutoff, the defendants have not provided it to me.”

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He can be reached at [email protected] or via www.stansoocher.com.