Angry Fed. Judge Throws Out Song Infringement Suit

A Miami company's decision to defend a small-potatoes copyright case all the way to trial paid off when the case was dismissed after a few hours — by an angry federal judge. Southern District of New York federal Judge Richard Sullivan found the plaintiffs' only trial witness, the principal of two companies that claimed Spanish Broadcasting System (SBS) willfully infringed copyrights by playing six songs on the radio, contradicted years of amended complaints by saying his companies didn't hold the copyrights. Latin American Music Co. v. Spanish Broadcasting System, 13-cv-1526. The plaintiffs' attorney also said the witness, Raul Bernard, had recordings of the songs being broadcast on the radio after previously telling the judge the recordings were missing.

“Nobody should think that you get to do what's gone on in this case and we all just walk away and shrug our shoulders,” District Judge Sullivan told Bernard and his New York attorney Kelly Talcott. This doesn't happen in federal court, people making statements that are directly contradicted by their attorneys and that constitute grave violations of the Federal Rules of Civil Procedure and potentially perjury. So this is really serious.”

Judge Sullivan ordered Talcott and the plaintiffs' previous attorney, Jose Torres, to prove they should not be sanctioned for perjury and failure to comply with discovery obligations and orders of the court.

Talcott, who is with the Talcott Law Firm in Sea Cliff, NY, did not respond to requests for comment. Torres, who was not at the trial, said he should not be punished for what happened in the case after his involvement ended. “The copyright infringement complaint was filed after a due diligence preliminary investigation,” the White Plains, NY, attorney said in an email. “My representation was limited to the first 16 months of this four-year litigation. I knew nothing about the disclosures made at trial several years later. I am confident that once the court understands the circumstances of my representation, it will find that I acted in a reasonable and prudent manner and that there is no reason to impose a sanction.”

Defense attorney James Sammataro of Stroock & Stroock & Lavan in Miami, FL, said his client decided to take the case to trial to force the hand of the plaintiffs, Latin American Music Company and Asociación de Compositores y Editores de Música Latinoamericana (ACEMLA). The companies claim to own or control rights to more than 40,000 musical compositions, including several salsa classics, according to Sammataro.

After summary judgment rulings, the case was limited to six songs that the plaintiffs alleged SBS willfully infringed, with a demand of $150,000 per infringement. (The songs included recordings by “master of boogaloo” Jimmy Sabater and Afro-Peruvian musician Caitro Soto.)

Sammataro said litigation between SBS and the plaintiffs has flared up many times over the past 20 years due to the “really messy chain of titles” of the songs to which LAMCO and ACEMLA claim they hold the rights. SBS wanted to take the case to a bench trial just to have a ruling on the copyrights once and for all, he said — and it paid off.

The plaintiffs “never got by the first witness,” Sammataro said. “It was supposed to be a three-day trial.” (Stroock associate Hans Hertell and New York attorney James Fitzpatrick of Hughes Hubbard & Reed served as defense co-counsel at trial.)

Before trial, Judge Sullivan ruled the plaintiffs could not introduce any recordings or logs noting the dates and times of the alleged broadcasts of the songs because they had failed to produce the recordings in discovery.

“Incredibly, on the day of trial, Mr. Talcott revealed for the first time that Mr. Bernard did indeed possess the recordings,” the district judge wrote in his show-cause order. “But while Mr. Talcott asserted that Mr. Bernard had led him to believe the recordings were 'missing,' Mr. Bernard testified several times that he sent the recordings both to Mr. Talcott and to Mr. Torres well before the close of discovery in this action.”

During cross-examination, Bernard also said neither LAMCO nor ACEMLA owns the rights to the disputed songs — his sister-in-law, a LAMCO employee, does.

“LAMCO owns no intellectual property beyond its logo, which LAMCO valued at $1.00,” Sullivan said Bernard's testimony revealed.

Bernard was the plaintiffs' only witness, and once they rested their case, Judge Sullivan tossed the lawsuit. SBS general counsel Richard Lara said in a statement that the court's decision “should have a chilling effect on would-be plaintiffs who assert highly questionable rights that are not supported by any credible evidence of wrongdoing on the part of radio station owners and operators.”

Judge Sullivan's admonishment at trial indicated he also hopes not to deal with what he called a “wholly not credible” witness again. “Basically, this all works as an honor system. That's how it works,” the district judge said. “Lawyers and litigants are on notice that they don't get to just make it up as they go or create facts that suit them for the time being. It doesn't work that way. When people go across that line, they will wish to God they had not.”

*****
Celia Ampel is a reporter for Entertainment Law & Finance's Florida-based ALM sibling Daily Business Review.

A Miami company's decision to defend a small-potatoes copyright case all the way to trial paid off when the case was dismissed after a few hours — by an angry federal judge. Southern District of New York federal Judge Richard Sullivan found the plaintiffs' only trial witness, the principal of two companies that claimed Spanish Broadcasting System (SBS) willfully infringed copyrights by playing six songs on the radio, contradicted years of amended complaints by saying his companies didn't hold the copyrights. Latin American Music Co. v. Spanish Broadcasting System, 13-cv-1526. The plaintiffs' attorney also said the witness, Raul Bernard, had recordings of the songs being broadcast on the radio after previously telling the judge the recordings were missing.

“Nobody should think that you get to do what's gone on in this case and we all just walk away and shrug our shoulders,” District Judge Sullivan told Bernard and his New York attorney Kelly Talcott. This doesn't happen in federal court, people making statements that are directly contradicted by their attorneys and that constitute grave violations of the Federal Rules of Civil Procedure and potentially perjury. So this is really serious.”

Judge Sullivan ordered Talcott and the plaintiffs' previous attorney, Jose Torres, to prove they should not be sanctioned for perjury and failure to comply with discovery obligations and orders of the court.

Talcott, who is with the Talcott Law Firm in Sea Cliff, NY, did not respond to requests for comment. Torres, who was not at the trial, said he should not be punished for what happened in the case after his involvement ended. “The copyright infringement complaint was filed after a due diligence preliminary investigation,” the White Plains, NY, attorney said in an email. “My representation was limited to the first 16 months of this four-year litigation. I knew nothing about the disclosures made at trial several years later. I am confident that once the court understands the circumstances of my representation, it will find that I acted in a reasonable and prudent manner and that there is no reason to impose a sanction.”

Defense attorney James Sammataro of Stroock & Stroock & Lavan in Miami, FL, said his client decided to take the case to trial to force the hand of the plaintiffs, Latin American Music Company and Asociación de Compositores y Editores de Música Latinoamericana (ACEMLA). The companies claim to own or control rights to more than 40,000 musical compositions, including several salsa classics, according to Sammataro.

After summary judgment rulings, the case was limited to six songs that the plaintiffs alleged SBS willfully infringed, with a demand of $150,000 per infringement. (The songs included recordings by “master of boogaloo” Jimmy Sabater and Afro-Peruvian musician Caitro Soto.)

Sammataro said litigation between SBS and the plaintiffs has flared up many times over the past 20 years due to the “really messy chain of titles” of the songs to which LAMCO and ACEMLA claim they hold the rights. SBS wanted to take the case to a bench trial just to have a ruling on the copyrights once and for all, he said — and it paid off.

The plaintiffs “never got by the first witness,” Sammataro said. “It was supposed to be a three-day trial.” (Stroock associate Hans Hertell and New York attorney James Fitzpatrick of Hughes Hubbard & Reed served as defense co-counsel at trial.)

Before trial, Judge Sullivan ruled the plaintiffs could not introduce any recordings or logs noting the dates and times of the alleged broadcasts of the songs because they had failed to produce the recordings in discovery.

“Incredibly, on the day of trial, Mr. Talcott revealed for the first time that Mr. Bernard did indeed possess the recordings,” the district judge wrote in his show-cause order. “But while Mr. Talcott asserted that Mr. Bernard had led him to believe the recordings were 'missing,' Mr. Bernard testified several times that he sent the recordings both to Mr. Talcott and to Mr. Torres well before the close of discovery in this action.”

During cross-examination, Bernard also said neither LAMCO nor ACEMLA owns the rights to the disputed songs — his sister-in-law, a LAMCO employee, does.

“LAMCO owns no intellectual property beyond its logo, which LAMCO valued at $1.00,” Sullivan said Bernard's testimony revealed.

Bernard was the plaintiffs' only witness, and once they rested their case, Judge Sullivan tossed the lawsuit. SBS general counsel Richard Lara said in a statement that the court's decision “should have a chilling effect on would-be plaintiffs who assert highly questionable rights that are not supported by any credible evidence of wrongdoing on the part of radio station owners and operators.”

Judge Sullivan's admonishment at trial indicated he also hopes not to deal with what he called a “wholly not credible” witness again. “Basically, this all works as an honor system. That's how it works,” the district judge said. “Lawyers and litigants are on notice that they don't get to just make it up as they go or create facts that suit them for the time being. It doesn't work that way. When people go across that line, they will wish to God they had not.”

*****
Celia Ampel is a reporter for Entertainment Law & Finance's Florida-based ALM sibling Daily Business Review.