Flo & Eddie v. Sirius XM Radio

Defendant-Appellant Sirius XM Radio, Inc., appeals from the November 14, 2014 and December 12, 2014 orders of the United States District Court for the Southern District of New York (McMahon, J.) denying its motions, respectively, for summary judgment and for reconsideration in connection with Plaintiff-Appellee Flo & Eddie, Inc.’s copyright infringement suit. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-cv-5784 (CM), 2014 WL 7178134 (S.D.N.Y. Dec. 12, 2014) (denial of motion for reconsideration); Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 62 F. Supp. 3d 325 (S.D.N.Y. 2014) (denial of motion for summary judgment). We previously concluded that the appeal raised a significant and unresolved issue of New York law that is determinative of this appeal: Is there a right of public performance for creators of pre-1972 sound recordings under New York law and, if so, what is the nature and scope of that right?

We certified this question to the New York Court of Appeals. Flo & Eddie, Inc. v.Sirius XM Radio, Inc., 821 F.3d 265 (2d Cir. 2016). The Court of Appeals accepted certification and responded that New York common law does not recognize a right of public performance for creators of pre-1972 sound recordings. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 2016 WL 7349183 (N.Y. Dec. 20, 2016).

In light of this ruling, we REVERSE the district court’s denial of Appellant’s motion for summary judgment and REMAND with instructions to grant Appellant’s motion for summary judgment and to dismiss the case with prejudice.

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Antonick v. Electronic Arts, Inc.

The panel affirmed the district court’s judgment as a matter of law in favor of Electronic Arts, Inc., in a diversity action seeking unpaid royalties pursuant to a contract, arising from alleged copyright infringement.

Plaintiff Robin Antonick developed the computer code for the original John Madden Football game for the Apple II computer, which was released by Electronic Arts. Electronic Arts subsequently released Madden games for Sega Genesis and Super Nintendo for which plaintiff received no royalties under a 1986 contract.

Concerning plaintiff’s Sega claims, the panel held that the plaintiff did not provide sufficient evidence of copyright infringement because neither the source code used for Apple II Madden nor Sega Madden was in evidence. The panel also rejected plaintiff’s argument that Electronic Arts’s postverdict Fed. R. Civ. P. 50(b) motion for judgment as a matter of law regarding the intrinsic test for copyright infringement should not have been considered.

Concerning plaintiff’s Super Nintendo claims, the panel held that the district court did not err in dismissing plaintiff’s derivative work claims because the Apple II and Super Nintendo processors were not in the same microprocessor family, as defined by the parties’ contract. The panel also affirmed the district court’s conclusion that the jury could not have determined plaintiff’s damages from the alleged breach of contract to a reasonable certainty. The panel further held that, even if the district court erred, there was no harm, because plaintiff’s failure to introduce any source code precluded a finding that Super Nintendo Madden was a derivative work.

Finally, the panel held that plaintiff offered no evidence of purported damages arising from plaintiff’s claim that Electronic Arts used development aids to create nonderivative works without seeking a negotiated license.

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In re: Rearden, LLC

The defendants in the underlying case, Rearden LLC, Rearden MOVA LLC, MO2, LLC, and MOVA, LLC, petition for a writ of mandamus to challenge the district court’s order compelling them to produce allegedly privileged documents. We conclude we have jurisdiction to decide their petition. We further conclude that petitioners’ arguments fail to carry the high burden required on mandamus to overturn the district court’s discovery determination. We therefore deny their petition.

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Cortes-Ramos v. Sony Corp. of America

Luis Adrián Cortés Ramos ("Cortés") appeals from the dismissal of his contract and intellectual property claims against a variety of companies affiliated with Sony Music Entertainment ("Sony"). The dispute concerns an original song and music video that Cortés submitted to Sony as part of a songwriting contest sponsored by Sony. The District Court dismissed all of Cortés's claims. It did so on two grounds: that the claims were subject to mandatory arbitration under the Federal Arbitration Act, and that Cortés failed to allege facts sufficient to support his claims under Fed. R. Civ. P. 12(b)(6). Because Cortés has not appealed the ruling that his claims must be arbitrated, we affirm the order compelling arbitration.

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Loomis v. Cornish

The panel affirmed the district court’s summary judgment in favor of the defendants in a copyright infringement case. Will Loomis, composer of the song “Bright Red Chords,” alleged that the defendants stole a two-measure vocal melody and used it as the theme for the verse melody in their hit song “Domino.” The panel held that Loomis did not put forth any potentially admissible evidence to establish that the Domino songwriters had access to Bright Red Chords, either on a chain-of-events theory or a widespread-dissemination theory. Accordingly, he failed to establish copyright infringement.

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GlobeRanger Corp. v. Software AG

Software maker GlobeRanger obtained a $15 million judgment in a trade secret misappropriation trial against competitor Software AG. Software AG challenges that result on a number of grounds, but its principal argument is that GlobeRanger finds itself in a jurisdictional Catch-22. It argues that GlobeRanger’s trade secret claim is preempted by federal copyright law, but if not, then the result is no federal claim to support jurisdiction. Because we find that the trade secret claim is not preempted but that a dismissed conversion claim was preempted and supports federal jurisdiction, we also consider challenges to the sufficiency of the evidence, the damages award, and jury instructions. Finding no reversible error on those grounds, we AFFIRM.

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Direct Tech. v. Electronic Arts

The panel affirmed in part and reversed in part the district court’s summary judgment in favor of defendant Electronic Arts, Inc., in a copyright infringement and trade secrets case. Electronic Arts, maker of The Sims, a computer game, contracted with a production company to produce a USB flash drive shaped like a “PlumbBob,” a gem-shaped icon from the game. That company contracted with Direct Technologies, LLC, to produce a prototype. Electronic Arts approved the prototype but had the flash drives produced by a company in China. Direct Technologies sued under the Copyright Act and the California Uniform Trade Secrets Act. Reversing as to the copyright infringement claim, the panel held that the district court erred in ruling as a matter of law that the flash drive was not sufficiently original when compared to the PlumbBob icon to qualify for copyright protection as a derivative work. The panel held that there was a genuine issue of material fact as to whether Direct Technologies’ cut-away design for removing the flash drive from the PlumbBob object was sufficiently non-functional and non-trivial to warrant copyright protection. There was also a genuine issue of material fact as to whether Direct Technologies was sufficiently in control of its artistic contribution to qualify as a joint author in the flash drive prototype. DIRECT TECH. V. ELECTRONIC ARTS 3 Affirming as to the trade secrets claim, although relying on different grounds than the district court, the panel held that Direct Technologies’ contribution to the PlumbBob USB drive, a design for the flash drive’s removal from the PlumbBob object, did not derive independent economic value from not being generally known to the public. The panel also held that the district court did not clearly err or otherwise abuse its discretion in denying Electronic Arts attorneys’ fees for the trade secrets claim.

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Leonard v. Stemtech Int'l, Inc

Andrew Leonard, a stem cell photographer, and Stemtech International, Inc., a company that sells nutritional supplements through independent distributors, cross appeal various rulings in the copyright infringement lawsuit Leonard brought against Stemtech in the District of Delaware. For the reasons discussed herein, we will affirm the District Court’s pretrial, trial, and post-trial rulings, except the order denying prejudgment interest to Leonard, which we will vacate and remand.

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Friedman v. Live Nation Merchandise

In a case arising out of a copyright dispute over Live Nation’s unauthorized use, on t-shirts and a calendar, of photographs Glen Friedman took of the hip hop group Run- DMC, the panel (a) reversed the district court’s summary judgment in favor of Live Nation Merchandise, Inc., on claims that Live Nation willfully infringed Friedman’s copyrights and knowingly removed copyright management information from the images it used, and (b) affirmed the district court’s ruling on statutory damages. Live Nation stipulated that it infringed Friedman’s copyrights. The panel held that the evidence in the record gave rise to a triable issue of fact as to whether Live Nation’s infringement was willful, which would make it liable for additional damages under 17 U.S.C. § 504(c)(2), and that the district court therefore erred in granting summary judgment to Live Nation on willfulness. The panel held that the district court also erred in granting summary judgment on Friedman’s claim under section 1202(b) of the Digital Millennium Copyright Act regarding removal of copyright management information. The panel explained that Friedman could prevail upon a showing that Live Nation distributed his works with knowledge that copyright management information had been removed, even if Live Nation did not remove it. The panel concluded that FRIEDMAN V. LIVE NATION MERCHANDISE 3 evidence in the record creates a triable issue of fact as to whether Live Nation distributed Friedman’s photographs with the requisite knowledge. Affirming the district court’s ruling on statutory damages, the panel held that Copyright Act Section 504(c)(1)’s provision of separate statutory damage awards for the infringement of each work “for which any two or more infringers are liable jointly and severally” applies only to parties who have been determined jointly and severally liable in the course of the liability determinations in the case for the infringements adjudicated in the action, and that a plaintiff seeking separate damages awards on the basis of downstream infringement must join the alleged downstream infringers in the action and prove their liability for infringement. The panel concluded that because Friedman did not join any of his alleged downstream infringers as defendants in this case, the district court correctly held that he was limited to one award per work infringed by Live Nation.

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Ali v. Final Call, Inc.

Carpenters have a saying: measure twice, cut once. This litigation might have been averted if that adage had been observed here. In 1984, Jesus Muhammad‐Ali painted a portrait of the leader of the Nation of Islam, Louis Farrakhan. In 2013, Ali sued The Final Call, a newspaper that describes itself as the “propagation arm of the Nation of Is‐ lam,” for copyright infringement. The Final Call, it turned out, admittedly had sold over a hundred copies of Ali’s Farrakhan portrait. Ali nonetheless lost his case after a bench trial. He now appeals, arguing that the district court misstated the ele‐ ments of a prima facie copyright infringement claim and erro‐ neously shifted to him the burden of proving that the copies were unauthorized. Ali is correct, and The Final Call proved no defense. We therefore reverse.

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