Bit Parts

The U.S. District Court for the Southern District of New York decided that the band Toto wasn't entitled to a 50% royalty for digital downloads sales of the band's recordings through retailers like iTunes, but instead should receive a lower royalty under an “Audiophile Provision” in the band's agreements with Sony Music. Toto Inc. v. Sony Music Entertainment (SME), 12-CV-1434. The Audiophile Provision applies to “all Records made for digital playback.” Toto pointed, however, to a contract clause that stated: “In respect of any Master Recording leased by [SME] to others for their distribution of Phonograph Records in the United States, [SME] will pay you 50% of [SME's] net receipts therefrom after deduction of all copyright, AFM and other applicable third party payments.” District Judge Richard J. Sullivan found “the term 'lease,' as used in the Lease Provision, means a license for a third party to incorporate the licensor's recording in its own product [like compilations]. Because there is no dispute that SME's arrangements with the Digital Retailers are not such a license, the Lease Provision does not apply.”

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.

Cartoon Network Mobile App Users Android ID Isn't “Personally Identifiable Information” under the Video Privacy Protection Act

The U.S. District Court for the Northern District of Georgia, Atlanta Division, ruled that the Cartoon Network's release to a data analytics company of the Android IDs of users of the channel's mobile application didn't violate the Video Privacy Protection Act (VPPA), 18 U.S.C. '2710 (http://bit.ly/WwBqDG). Ellis v. Cartoon Network Inc. (CN), 1:14-CV-484. Class action plaintiff and CN mobile app user Mark Ellis claimed his Android ID was “personally identifiable information” under the VPPA that he never consented to Cartoon Network releasing. District Judge Thomas W. Thrash Jr. did find Ellis was a “subscriber” under the VPPA by noting that Ellis “downloaded the CN App and used it to watch video clips. His Android ID and viewing history were transmitted [by CN] to Bango [a U.K. data analytics firm]. These facts suffice to qualify the Plaintiff as a 'subscriber,' and as such, a 'consumer.'” But Judge Thrash then concluded in dismissing the suit: “The Android ID is a randomly generated number that is unique to each user and device. It is not, however, akin to a name. Without more, an Android ID does not identify a specific person. As the Plaintiff admits, to connect Android IDs with names, Bango had to use information 'collected from a variety of other sources.'”

Court Says Republication Rule Alive in Tennessee But Dismisses Defamation Claims by Disqualified American Idol Finalist

The U.S. District Court for the Middle District of Tennessee, Nashville Division, held that the republication exception to the single publication rule for determining the timeliness of defamation claims is still viable in Tennessee. But the district court found in favor of the defendants on the substance of the plaintiff's defamation allegation. Clark v. E! Entertainment Television LLC, 3:13-00058. Plaintiff Corey Clark placed as a finalist on Fox Broadcasting's American Idol but was disqualified in 2003, after TheSmokingGun.com reported he had an arrest record. Later, Clark sued within one year of a January 2012 updated, rebroadcast of the 2005 program E! True Hollywood Story: Paul Abdul, which discussed Clark's claim that he had an affair with Abdul, an Idol judge. Fox and Abdul publicly denied Clark's allegation. After finding Clark's defamation claims against Fox and E! were timely, District Judge Kevin H. Sharp nevertheless dismissed those allegations by noting as to E! that the 2012 program “reports on what Ms. Abdul is alleged to have said in response to Plaintiff's allegation and tracks what occurred once the allegations were made. ' Ms. Abdul was responding to an allegation (to which any denial would suggest Plaintiff lied), and E! reported the dispute as it was entitled to do.” As for Fox, District Judge Sharp explained: “Plaintiff's claim is based upon what Abdul is alleged to have said and E!'s statement about her ability to persevere. Even under the republication doctrine which allow[s] for an original defamer to be held liable for reasonably foreseeable re-broadcasts, Plaintiff does not adequately explain how an original defamer can be liable for a rebroadcast which alters the original [Fox] statement.”

Toto Denied 50% Royalty for Digital Download Sales

The U.S. District Court for the Southern District of New York decided that the band Toto wasn't entitled to a 50% royalty for digital downloads sales of the band's recordings through retailers like iTunes, but instead should receive a lower royalty under an “Audiophile Provision” in the band's agreements with Sony Music. Toto Inc. v. Sony Music Entertainment (SME), 12-CV-1434. The Audiophile Provision applies to “all Records made for digital playback.” Toto pointed, however, to a contract clause that stated: “In respect of any Master Recording leased by [SME] to others for their distribution of Phonograph Records in the United States, [SME] will pay you 50% of [SME's] net receipts therefrom after deduction of all copyright, AFM and other applicable third party payments.” District Judge Richard J. Sullivan found “the term 'lease,' as used in the Lease Provision, means a license for a third party to incorporate the licensor's recording in its own product [like compilations]. Because there is no dispute that SME's arrangements with the Digital Retailers are not such a license, the Lease Provision does not apply.”

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.