Bit Parts

The U.S. District Court for the Southern District of New York ruled it didn't have long-arm jurisdiction over Georgia resident John Conte Jr., who receives song and record royalties from and served as a record producer for an artist in New York. Ballard III v. Walker, 11 Civ. 5874. In considering the plaintiff's proposed second amended complaint in this litigation over song rights, U.S. District Judge Louis L. Stanton noted: “Allegations that Conte maintains royalty accounts in New York, and at some time worked in New York, do not adequately support the conclusion that Conte is in New York 'with a fair measure of permanence and continuity,' ' such that it can be said that he 'does business' in New York under CPLR '301.” The accounts included Conte's songwriting and music publishing income collected through BMI in New York for public performances of 30 of his songs. “Plaintiff's claims arise out of Conte's transaction of business in Georgia, where Conte's alleged dealings with plaintiff took place, and his promises to plaintiff were made,” Judge Stanton added. “Plaintiff does not allege the location of Conte's breach of those promises.”

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.

Nashville Federal Court Finds Plausible Copyright Infringement Claim over “Remind Me” Phrase

The U.S. District Court for the Middle District of Tennessee, Nashville Division, declined to grant a defense motion to dismiss, for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a copyright infringement action filed by artist Lizza Connor over the Carrie Underwood/Brad Paisley hit recording “Remind Me.” Bowen v. Paisley, 13-cv-0414. Connor had previously written and publicly performed her song of the same name. The defendants include EMI April Music, Sony Music Entertainment, and Paisley's co-songwriters Charles Dubois and John Kelley Lovelace. District Judge Aleta A. Trauger noted of Sixth Circuit judicial practice: “Given that summary judgment motions premised on a developed record ' often with the benefit of expert testimony ' are to be granted 'sparingly,' it is not surprising that the defendants have identified only one case within this circuit in which a district court has granted a Rule 12 motion involving a copyright claim ' and that case is readily distinguishable.” After acknowledging that in Bridgeport Music Inc. v. UMG Recordings Inc., 585 F.3d 267 (6th Cir. 2009), the Sixth Circuit held that a repeated word or phrase can be the basis for infringement, District Judge Trauger found Connor “has plausibly shown that, taken in combination, the lyrics and associated melodies, intonations, and usage could be sufficiently original to constitute protectable material.” Specifically, Judge Trauger observed that in both Connor's demo of her song and the Paisley/Underwood recording, “(1) the phrase 'Remind me' is often followed by the partner phrase 'Baby, remind Me,' which essentially echoes the hook; (2) the hooks are repeated in close proximity and with similar intonation ' higher the second time than the first; (3) the hooks rise in pitch from 're-' to '-mind' and descend in pitch from 're-' to '-mind,'; and (4) the syllable 're-' crosses two tones and the syllable '-me' crosses at least three tones.”

Puerto Rico District Court Rules There Were Implied Licenses for Music Festival Artworks, But Were the Licenses Irrevocable?

A magistrate for the U.S. District Court for the District of Puerto Rico found that a visual artist gave sponsors of an annual music festival implied licenses to use designs the visual artist created for each year's event. Rivera v. M'ndez & Compa'ia, 11-1530. M'ndez is a beverage distributor that sponsors the annual Puerto Rico Heineken Jazz Fest (PRHJF) for which it had Dennis Mario Rivera make a featured work from 1998 through 2009. Then the festival's executive director told Rivera a different visual artist was being used. In 2011, Rivera filed a copyright infringement suit claiming he had told the defendants to stop using his works. Federal Magistrate Bruce J. McGiverin decided “the evidence clearly indicates Rivera granted M'ndez an implied license to use, reproduce, and display his artworks. It is undisputed that M'ndez, the licensee, requested Rivera to create the twelve artworks at issue. Accordingly, Rivera created and delivered the artworks to M'ndez, with the intent that M'ndez would 'reproduce, display, and distribute copies' of the works in marketing materials to promote each annual PRHJF.” M'ndez claims the implied license was irrevocable, but Magistrate McGiverin wrote that the case should continue on whether the implied license was for a limited duration. “The record lacks evidence of statements or conduct that indicate whether Rivera intended for M'ndez to be able to use his artwork beyond the year in which it was commissioned,” the magistrate noted. “It is also unclear whether M'ndez objectively manifested an intent to procure from Rivera a license to use the artworks for more than the year in which they were made.”

Songwriting Income and Record Production Activity Don't Support Long-Arm Jurisdiction

The U.S. District Court for the Southern District of New York ruled it didn't have long-arm jurisdiction over Georgia resident John Conte Jr., who receives song and record royalties from and served as a record producer for an artist in New York. Ballard III v. Walker, 11 Civ. 5874. In considering the plaintiff's proposed second amended complaint in this litigation over song rights, U.S. District Judge Louis L. Stanton noted: “Allegations that Conte maintains royalty accounts in New York, and at some time worked in New York, do not adequately support the conclusion that Conte is in New York 'with a fair measure of permanence and continuity,' ' such that it can be said that he 'does business' in New York under CPLR '301.” The accounts included Conte's songwriting and music publishing income collected through BMI in New York for public performances of 30 of his songs. “Plaintiff's claims arise out of Conte's transaction of business in Georgia, where Conte's alleged dealings with plaintiff took place, and his promises to plaintiff were made,” Judge Stanton added. “Plaintiff does not allege the location of Conte's breach of those promises.”

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.