Bit Parts

'The U.S. District Court for the Southern District of New York decided that a three-year state statute of limitations applies to damage claims for common law copyright infringement. ABS Entertainment Inc. v. CBS Corp., 15-cv-6801. The ruling came in a class action suit alleging violation via online uses of public performance rights in pre-1972 sound recordings. There is a split between New York state and federal judges on the limitations issue. In Harrison v. Greenwich LLC, 986 N.Y.S.2d 837 (Sup. Ct. 2014), a state court applied a six-year catchall statute of limitations from N.Y. C.P.L.R. '213(1). In Flo & Eddie Inc. v. Sirius XM Radio Inc., 80 F.Supp. 3d 535 (S.D.N.Y. 2015), a federal district court applied a three-year statute of limitations from N.Y. C.P.L.R. '214(4) for “an action to recover damages for an injury to property.” The class action plaintiffs argued that their request for an injunction, in addition to over $5 million in damages, meant the catchall six-year provision should apply. On this Southern District Judge John G. Koetl concluded: “[W]hile plaintiffs cannot extend the statute of limitations for their damages claims beyond three years, they have a claim for an injunction governed by a six-year statute of limitations.”

Continuous Accrual Doctrine Applied To Songwriter Heirs' Royalty Suit over Disney's Movie The Jungle Book

The California Court of Appeal, Second Appellate District, applied the continuous accrual doctrine to a suit by the heirs of songwriter Terry Gilkyson over royalty payments from DVD-type uses of compositions that Gilkyson wrote for the animated movie The Jungle Book. Gilkyson v. Disney Enterprises Inc., B260103. The heirs are asking for royalties from DVD and additional new media uses of Gilkyson's “The Bare Necessities” in the movie and from demo versions of compositions he wrote for The Jungle Book that were included as bonus features in the 40th anniversary DVD edition that was released in 2007. The plaintiffs, who sued in L.A. Superior Court in 2013, sought to use the continuous accrual doctrine to be able to go back four years ' under California's four-year contract statute of limitations ' from when they filed their complaint. The trial court dismissed the suit, but the court of appeal concluded: “Under California law the continuing right to receive royalties for Disney's disposition of mechanical reproduction rights created a divisible contract, with each breach of that right separately actionable and subject to its own limitations period.” Gilkyson heirs' counsel Craig Barker of Austin, TX noted: “The closest music industry case Disney could find to cite in its favor was an unpublished federal district court opinion (Mappa Music Co. v. Universal-PolyGram International Publishing [Inc., 00-6593 (C.D.Calif. 2001)], which was a breach of contract royalty case over the song 'Gonna Get Along Without Ya Now,' performed by Patience & Prudence) that was contrary to the Kingsmen's 'Louie, Louie' [sound recording] case, Peterson v. Highland Music [Inc., 140 F.3d 1313 (9th Cir. 1998)], in the Ninth Circuit, that interpreted California law and applied the continuous accrual doctrine so that the claims were not completely time-barred.”

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Studies at the University of Colorado's Denver Campus. His most recent book is Baby You're a Rich Man: Suing the Beatles for Fun & Profit (ForeEdge/University Press of New England). For more, visit www.stansoocher.com.