Month: July 2016

400,000 reasons to stop a dubious ‘Loca’ lawsuit

A federal judge in New York sent a punishing message to persistent litigants seeking to prolong claims that have proved without merit: Just stop now. And, by the way, he told them, pay up for attorney fees for opposing counsel. U.S. District Judge Alvin K. Hellerstein has ordered Mayimba Music Inc. to fork over $400,000 in legal fees and nontaxable expenses resulting from its curious copyright infringement case against Sony/ATV Latin Music Publishing LLC and Sony/ATV Discos Music Publishing LLC over pop star Shakira’s hit song Loca. The court found that Mayimba had presented dubious evidence and failed to prove infringement. A questionable victory Mayimba sued Sony in 2012 over Loca, asserting the song, which became an English-language hit, was ripped-off from Ramon Arias Vasquez’s recording Loca Con Su Tiguere. Mayimba won in a 2014 bench trial, with the federal court finding it had a valid copyright that Sony infringed. But in December, 2014, Sony moved to partially vacate that ruling based on newly discovered evidence: the recording company and its counsel showed that a key tape used by Mayimba was not created in 1998, as the court had been told, but more likely in 2010. The court found that this and other flaws in the case easily could have been discovered before presentation to a judge; the court also expressed unhappiness about the plaintiff filings and handling of the case. In April, 2015,...

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Judge finds foul play in royalties for ‘Foul Play’

Although it may be fashionable to criticize screenplays from days past as quaint and almost cliche in how their plot complications tied up so neatly, a judge in Los Angeles has provided a tidy $6.8 million curtain-closer to a lawsuit over disputed right payments for some older films. In doing so, Superior Court Judge Elihu Berle has agreed with plaintiffs that there really was foul play over sums owed to the estates of Foul Play screenwriter Colin Higgins and others. Berle recently approved a $6.8 million settlement of a class action lawsuit against Paramount Pictures Corp.  by Colin Higgins Productions. The suit disputed video royalty payments, and was one of several legal actions filed against Hollywood studios, and now slowly coming to resolution. The studios for decades have pocketed 80 percent of home video royalties. That standard was set in the 1980s, when home video distribution was booming. Studios then would outsource home video distribution to third parties, which paid studios a flat 20 percent royalty rate. The studios  then paid profit-participants a 20 percent royalty based on what they received. But studios since then have created and maintained their own home video divisions. But they continued to act as if they worked with outsiders and got less on older films, continuing to pay 20 percent to profit participants and to pocket 80 percent, according to the Higgins suit...

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It’s in vogue: an appellate rift over sampling

The Material Girl, when using a .23-second horn blast in her mega-hit Vogue, didn’t infringe on a record company’s copyrights, the U.S. Ninth Circuit Court of Appeals has ruled. But in holding for Madonna, aka Madonna Louise Ciccone, the appellate judges in California also locked horns with their federal brethren in Nashville over what’s legally acceptable and what’s not when it comes to “sampling,” the practice of musicians taking snippets of others’ work. The dispute over de minimis v. “bright line” sampling–or not–may be left to the U.S. Supreme Court to resolve. The case started when VMG Salsoul, a recording company, sued Madonna and others in July, 2013, asserting she and producer Robert “Shep” Pettibone violated copyrights by sampling a “horn blast” from the 1976 song Love Break. The Material Girl’s use of the horn snippet (listen closely around :56 and 1:02 in the video above) was de minimis and did not infringe, U.S. Circuit Judge Susan P. Graber wrote in the recent Ninth Circuit ruling, which affirmed the 2013 decision by a federal court in California. Graber said it was key to listen to the audio recording sampled, from which “ a reasonable juror could not conclude that an average audience would recognize the appropriation of the horn. …” She said the plaintiff’s primary expert originally misidentified the source of the sampling, leading her to observe that: “a highly...

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