Pryor Cashman Obtains Affirmance of Grant of Summary Judgment to Nelly Furtado and EMI In Music Copyright Case

by Pryor Cashman LLP
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The Eleventh Circuit U.S. Court of Appeals has affirmed the dismissal of a high profile music copyright case brought against internationally renowned singer Nelly Furtado and her renowned producer, Timbaland, together with a number of corporate defendants. Pryor Cashman defended Furtado, her music publishing company, and certain EMI entities in the case.

In the case of Kernel Records Oy v. Timothy Mosley f/k/a Timbaland, et al., which was brought in federal court in Florida by a company based in Finland known as Kernel Records Oy. Kernel Records claimed that the song Do It, on Ms. Furtado’s 2006 album Loose, infringed a portion of a computer-generated “demoscene” song controlled by Kernel known as Acidjazzed Evening.

In addition to defending on the merits, the defendants argued that Kernel Records failed to state a claim under the Copyright Act because Kernel had failed to register Acidjazzed Evening with the U.S. Copyright Office, which is a statutory requirement unless a work is first “published” outside of the United States and within a nation that, like the U.S., has joined the Berne Convention for the Protection of Literary and Artistic Works. Kernel Records alleged that Acidjazzed Evening had first been published in Australia (a member of the Berne Convention) on an Internet-based “disc magazine” known as Vandalism News, and on that basis alleged that U.S. Copyright Office registration was unnecessary.

The U.S. District Court for the Southern District of Florida awarded summary judgment to the defendants and dismissed Kernel’s claims upon the finding that the first publication of Acidjazzed Evening over the Internet constituted simultaneous first publication in the United States, thereby necessitating U.S. Copyright Office registration.

On September 14, 2012, in a detailed, 40-page decision, the U.S. Court of Appeals for the Eleventh Circuit closely analyzed the meaning of “publication” under the Copyright Act and the various means of distributing information over the Internet, and disagreed with the district court’s finding that Acidjazzed Evening was necessarily first distributed over an Internet-based medium that was capable of making Acidjazzed Evening available to the public in the United States (as opposed to limiting first distribution to the public in Australia). The appellate court instead found that the record was unsettled on precisely how and when Acidjazzed Evening was first distributed to the public (anywhere), and, further, that Kernel Records had failed to meet its burden of introducing evidence that could answer that question. The Eleventh Circuit therefore affirmed the dismissal of Kernel Records’s claims for failing to prove that registration with the U.S. Copyright Office was indeed unnecessary, as Kernel had alleged in its pleading. The Court also denied Kernel Records an opportunity to replead its case or to try to gather and introduce more evidence into the record.

The case continues Pryor Cashman’s tradition of representing clients in matters that establish new Copyright Act law, particularly in the field of music performance. The Eleventh Circuit decision is likely to constitute a significant new ruling as to what “publication” means under the Copyright Act in the Internet age. The decision is also important for practitioners for its findings and rulings as to what a plaintiff’s reasonable opportunity, and burden, to prove its case means and entails.

Furtado, her publishing company (Nelstar) and EMI were represented by Litigation Group partner William L. Charron, with assistance from Litigation Partner Ilene Farkas.

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