Comerica Bank, appointed by the probate court as the Personal Representative of the estate of Prince, sued Massachusetts resident Kian Andrew Habib over videos posted by Habib on YouTube that included live recordings of several Prince-written songs, including “Nothing Compares 2 U,” “Glam Slam,” and “Sign o’ the Times.” The complaint alleges that these videos were posted for commercial purposes, including at least advertising revenue generated by views of the videos by YouTube users, and that this commercial use negatively affected the value of the Prince estate by taking away from revenues legitimate Prince videos could realize. YouTube removed the videos in response to a take-down notice. In response, Habib provided a counter-notification pursuant to 17 U.S.C. 512(g), contesting their removal. Comerica filed suit to prevent the videos from being reposted, and seeks damages and attorneys’ fees as well as injunctive relief. (Full Disclosure – Comerica is represented by members of my firm, Lando & Anastasi).
Photographer Richard Sobol sued filmmakers Sheila Canavan and Michael Chandler for copyright infringement. Sobol alleges that the defendants, operating as Pack Creek Productions, used a number of Sobol’s photographs of ex-Massachusetts Congressman Barney Frank in their 2015 documentary film Compared to What? The Improbable Journey of Barney Frank. Sobol seeks destruction of all copies of the film and actual and/or statutory damages. Judge Stearns was assigned to the case.
The Literacy Lab (“TLL”), a nonprofit organization that provides literacy services to low income students, filed a declaratory judgment action, seeking a declaration that it is not infringing copyright in Fastbridge’s earlyReading and CMBreading assessments. TLL had previously been served a subpoena in a Minnesota suit brought by the defendants against a nonprofit partner of TLL who provided TLL with the Reading Corps program and model that is accused in the Minnesota suit, creating declaratory judgment jurisdiction. TLL asserts that the reading assessment tools are not protectable under copyright law because any such copyright would encompass the underlying ideas rather than the form of expression and under the merger doctrine.
Continuing the ASCAP theme, WB Music Corp., Milksongs, and Hunglikeyora Music filed suit against the owners and operators of Louie’s Lakehouse of Southwick Massachusetts, alleging infringement of the songs “Shut Up And Dance,” “And So I Know,” and “Drive” by allowing them to be performed in the restaurant on July 16, 2017. According to the complaint, ASCAP representatives tried on over sixty occasions since 2008 to contact the defendants to offer an ASCAP license, all of which were refused. This is one of six ASCAP-styled suits naming at least one of the same plaintiffs that were filed yesterday in Illinois, Louisiana Maryland, and Wisconsin as well as Massachusetts.
I would note that the performances of the Hendrix songs just referenced took place on July 14, 2017, and that the road from Southwick, located just west of Springfield, MA to Marlborough, home of the Bolton Street Pub, leads directly towards Boston – perhaps more such suits will arise in the coming days based on what appears to be a road trip taken by an ASCAP representative to explore unlicensed performance spots.
Experience Hendrix, which (according to its website) is owned and operated by members of Jimi Hendrix’s family, sued the owners and operators of the Bolton Street Pub of Marlborough, MA for allowing several copyrighted Jimi Hendrix’s songs to be performed without license. The Bolton Street Pub appears to offer entertainment most weekend nights in the form of cover bands. Experience Hendrix asserts that it is a member of ASCAP, an association that licenses performance rights to members’ copyrighted musical compositions, and that despite repeated requests, the Bolton Street pub have refused ASCAP’s license overtures. Experience Hendrix seeks an injunction preventing the Bolton Street Pub from publicly performing, causing, or permitting to be performed three particular Jimi Hendrix songs – “Fire,” “Purple Haze,” and “Stone Free” – and seeks statutory damages and attorneys’ fees.
Asigra hired Atlantis to develop and provide software to Asigra, a project that was initially expected to take about a year. After agreeing to the terms for this work, Asigra sought to accelerate the completion of the project. Asigra indicated that it could only do so by incorporating code from Atlantis’ own appliance product. The parties orally agreed to Asigra receiving a limited right to use this code, with the parties disputing the consideration due Atlantis for this right. After completion of the project, when a dispute arose over payment, Atlantis “unilaterally revoked the nonexclusive license” and sued Asigra for breach of contract, trade secret misappropriation, and copyright infringement, among other things. Asigra moved for judgment on the pleadings on all counts. Judge Hennessy granted Asigra’s motion with respect to the copyright claims, while denying it with respect to the other claims. He determined that Atlantis had granted a nonexclusive license to the code by the parties’ oral agreement, which became irrevocable upon the payment of consideration by Asigra. The reasoning is that, upon payment of consideration (regardless of whether it was complete consideration under the agreement) a contract has been formed, and the remedy for the aggrieved party is through contract law, not copyright.
Also of interest, Judge Hennessy determined that Asigra waived its argument that the allegedly misappropriated trade secrets were not adequately identified by raising it only in a footnote; First Circuit case law holds that arguments raised perfunctorily or solely by footnote are waived. He also denied judgment on the pleadings with respect to Asigra’s Ch. 93A claim, finding that one party’s breach of contract for the purpose of gaining leverage over the non-breaching party has been deemed an unfair business practice in Massachusetts.
Microsoft sued Terason and its president, Alice Chiang, for copyright and trademark infringement, false designation of origin, and unfair competition related to allegedly pirated versions of Microsoft software being advertised and distributed by Terason. Microsoft alleges that Terason customers purchase the software without being aware that it is not legally licensed by Microsoft. Terason manufactures color portable ultrasound equipment, and (according to the complaint) thousands of activations and attempted activations of Windows 10 and Windows 7 software occurred over the past six years from an IP address assigned to Terason. The product keys for these activations were either used more times than authorized by the applicable license or were used to activate software outside of the region for which they were authorized. Microsoft alleges that Chiang personally participated in or had the right to direct and control these activities and received a direct financial benefit from these activities, justifying personal liability either directly or under principles of secondary liability such as respondeat superior, vicarious liability and contributory infringement. The case is before Judge Gorton.