Bit Parts

In a case of first impression, the U.S. District Court for the District of Minnesota decided that Minnesota's right of publicity under common law is descendible. Paisley Park Enterprises v. Boxhill, 17-cv-1212. The lawsuit by the estate of music icon Prince against Prince sound engineer George Ian Boxhill, Rogue Music Alliance (RMA) and Deliverance LLC arose over the unauthorized online sale of previously unreleased Prince sound recordings. In 1995, the U.S. Court of Appeals for the Eighth Circuit determined there was a right of publicity under Minnesota common law. Ventura v. Titan Sports Inc., 65 F.3d 725 (8th Cir. 1995). In Boxhill, District Judge Wilhelmina M. Wright denied a defense motion to dismiss, noting: “The clear weight of authority from jurisdictions that have addressed this issue supports a conclusion that the right of publicity is a property right that is enforceable by a decedent's estate.” The district court also allowed Prince's estate to continue with a breach of contract claim over a confidentiality agreement Boxhill had signed to work with Prince. But the district court decided on a copyright registration issue that has a split view among federal courts: “Because the plain language of [17 U.S.C.] Section 411(a) makes registration of a copyright a prerequisite to initiating an action for copyright infringement and Plaintiffs as yet have only applied for copyright registrations [of the disputed Prince recordings], Defendants' motion to dismiss is granted as to Plaintiffs' copyright-infringement claim and that claim is dismissed without prejudice.”

Original Housewives Producers' Fraud Claim Time-Barred, Though Contract Breach Claim Can Proceed

The New York Appellate Division, First Department, ruled that fraud claims brought by Kevin Kaufman and Patrick Moses — co-creators/co-executive producers of the initial season of the TV series The Real Housewives of Orange County — against Scott Dunlap, the third creator/executive producer, were time-barred. Moses v. Dunlop, 653412/14. The plaintiffs seek income they claim they are owed in connection with the series. In 2006, Dunlop had told Kaufman and Moses that Bravo Media would no longer be using the trio's production company, though Dunlop went on to continue to executive-produce the series. The appellate court noted of the fraud claim: “At the very latest, [the plaintiffs] were on inquiry notice by January 2007, when Dunlop presented Moses and Kaufman with the settlement and release agreement [among Dunlop, Kaufman, Moses and a Brave affiliate] — more than two years before the commencement of this action.” But the appellate court allowed the plaintiffs' breach of contract claim to proceed over their 2005 co-production agreement with Dunlop, “because the contracts impose continuing obligations, each of which can be breached, triggering a new cause of action with its own [six-year] limitations period.”

Ticketmaster.com Arbitration Clause Doesn't Apply to Potential Buyer on ticketexchangebyticketmaster.com

The U.S. District Court for the Western District of Washington decided that a potential ticket buyer who accessed the re-sale site www.ticketexchangebyticketmaster.com — but didn't click through to the website's terms of assent — wasn't bound by an arbitration clause on www.ticketmaster.com, on which he had bought concert and baseball game tickets. Long v. Live Nation Worldwide Inc., C16-1961. Plaintiff Barry Long alleges he didn't see information about wheelchair-accessible seating when he sought to buy tickets to a Seattle Seahawks game on the re-sale site. Long claims violations of the federal Americans with Disabilities Act (ADA) and Washington state discrimination law. In denying the defendants' motion to compel arbitration of Long's claims, District Judge Thomas S. Zilly noted: “Plaintiff's ADA and [state law] claims do not relate to plaintiff's use of the [www.ticketmaster.com] 'Site,' which does not, by definition, include www.ticketexchangebyticketmaster.com …”

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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. He is author of the book Baby You're a Rich Man: Suing the Beatles for Fun & Profit (ForeEdge/University Press of New England). For more, visit www.stansoocher.com.

Florida Federal Court Confirms Denial of Song Administration Rights to Chic Co-Founder's Widow

The U.S. District Court for the Middle District of Florida affirmed a bankruptcy court's ruling that Bambi Herrera-Edwards — widow of Chic music group co-founder Bernard Edwards — was barred by a probate settlement from obtaining administration rights to her late husband's musical composition. Herrera-Edwards v. Bernard Edwards Co., 8:17-cv-328-T-36 (2017). The 1997 settlement had been entered into among Herrera-Edwards, Bernard's children, his previous wife and the estate executor, who had been Bernard's business manager. A co-publishing agreement Herrera-Edwards signed as part of the probate settlement stated that “the executor of the estate will act as publisher of the copyrights and will have full and complete administration rights therein.” As for Herrera-Edwards Chapter 11 bankruptcy case, the district court confirmed on the publishing administration rights issue that “the principle that [executory] rejection [through bankruptcy of the unperformed portions of an agreement] may not be used to 'change the substantive rights of the parties to the contract.” In addition, the district court noted about Bernard's artist and producer royalties, which Herrera-Edwards claimed a share of: “As the bankruptcy court accurately observed, the Settlement Agreement does not give Edwards any royalty income; it only gives her a share of the copyright income. The bankruptcy court concluded that 'copyright' is a 'well-understood term' that does not include income from sources other than the compositions themselves.”

Minnesota Right of Publicity Ruled Descendible in Prince Recordings Dispute

In a case of first impression, the U.S. District Court for the District of Minnesota decided that Minnesota's right of publicity under common law is descendible. Paisley Park Enterprises v. Boxhill, 17-cv-1212. The lawsuit by the estate of music icon Prince against Prince sound engineer George Ian Boxhill, Rogue Music Alliance (RMA) and Deliverance LLC arose over the unauthorized online sale of previously unreleased Prince sound recordings. In 1995, the U.S. Court of Appeals for the Eighth Circuit determined there was a right of publicity under Minnesota common law. Ventura v. Titan Sports Inc. , 65 F.3d 725 (8th Cir. 1995). In Boxhill, District Judge Wilhelmina M. Wright denied a defense motion to dismiss, noting: “The clear weight of authority from jurisdictions that have addressed this issue supports a conclusion that the right of publicity is a property right that is enforceable by a decedent's estate.” The district court also allowed Prince's estate to continue with a breach of contract claim over a confidentiality agreement Boxhill had signed to work with Prince. But the district court decided on a copyright registration issue that has a split view among federal courts: “Because the plain language of [17 U.S.C.] Section 411(a) makes registration of a copyright a prerequisite to initiating an action for copyright infringement and Plaintiffs as yet have only applied for copyright registrations [of the disputed Prince recordings], Defendants' motion to dismiss is granted as to Plaintiffs' copyright-infringement claim and that claim is dismissed without prejudice.”

Original Housewives Producers' Fraud Claim Time-Barred, Though Contract Breach Claim Can Proceed

The New York Appellate Division, First Department, ruled that fraud claims brought by Kevin Kaufman and Patrick Moses — co-creators/co-executive producers of the initial season of the TV series The Real Housewives of Orange County — against Scott Dunlap, the third creator/executive producer, were time-barred. Moses v. Dunlop, 653412/14. The plaintiffs seek income they claim they are owed in connection with the series. In 2006, Dunlop had told Kaufman and Moses that Bravo Media would no longer be using the trio's production company, though Dunlop went on to continue to executive-produce the series. The appellate court noted of the fraud claim: “At the very latest, [the plaintiffs] were on inquiry notice by January 2007, when Dunlop presented Moses and Kaufman with the settlement and release agreement [among Dunlop, Kaufman, Moses and a Brave affiliate] — more than two years before the commencement of this action.” But the appellate court allowed the plaintiffs' breach of contract claim to proceed over their 2005 co-production agreement with Dunlop, “because the contracts impose continuing obligations, each of which can be breached, triggering a new cause of action with its own [six-year] limitations period.”

Ticketmaster.com Arbitration Clause Doesn't Apply to Potential Buyer on ticketexchangebyticketmaster.com

The U.S. District Court for the Western District of Washington decided that a potential ticket buyer who accessed the re-sale site www.ticketexchangebyticketmaster.com — but didn't click through to the website's terms of assent — wasn't bound by an arbitration clause on www.ticketmaster.com, on which he had bought concert and baseball game tickets. Long v. Live Nation Worldwide Inc., C16-1961. Plaintiff Barry Long alleges he didn't see information about wheelchair-accessible seating when he sought to buy tickets to a Seattle Seahawks game on the re-sale site. Long claims violations of the federal Americans with Disabilities Act (ADA) and Washington state discrimination law. In denying the defendants' motion to compel arbitration of Long's claims, District Judge Thomas S. Zilly noted: “Plaintiff's ADA and [state law] claims do not relate to plaintiff's use of the [www.ticketmaster.com] 'Site,' which does not, by definition, include www.ticketexchangebyticketmaster.com …”

*****
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. He is author of the book Baby You're a Rich Man: Suing the Beatles for Fun & Profit (ForeEdge/University Press of New England). For more, visit www.stansoocher.com.