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ABKCO Music, Inc. v. William Sagan, Norton, LLC

United States District Court for the Southern District of New York

March 30, 2018, Decided; April 9, 2018, Filed

15 Civ. 4025 (ER)

Opinion

OPINION AND ORDER

Ramos, D.J.:

This federal copyright infringement suit concerns a collection of live audio and audiovisual recordings of iconic songs that were recorded while being performed live in concert and thereafter acquired by Defendants William E. Sagan, Bill Graham Archives, LLC,2 and Norton, LLC ("Defendants"), from the late Bill Graham and operators of other concert venues. The collection primarily consists of recordings made from the 1960s to the 2000s, and reads like a veritable who's who of rock, soul, and alternative music, containing the performances of The Rolling Stones, The Who, the Grateful Dead, Willie Nelson, Ray Charles, Aretha Franklin, and Carlos Santana, to name a few. The list of songwriters who penned the works embodied in those performances is no less impressive and diverse, including legends such as Hoagy Carmichael, Carol King, Mick Jagger, Keith Richards, Pete Townshend, and Green Day, among others.

In the years following Defendants' acquisitions, they have reproduced those recordings principally in digital format and made them available for mass consumption through digital [*4]  download and streaming services offered for a fee through Defendants' websites.3 Plaintiffs are a collection of six groups of music publishers4 who claim to own, or hold exclusive licenses in, the copyrights to approximately 200 musical compositions (the "Musical Works") reflected in Defendants' recordings. Plaintiffs claim that Defendants' exploitation of those recordings infringes their copyrights in the Musical Works. The principal question before the Court is whether Defendants obtained valid licenses such that their exploitation of these recordings is lawful under the Copyright Act, 17 U.S.C. § 101 et seq.

Before the Court are the parties' cross motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 on Plaintiffs' claim of copyright infringement and their request to permanently enjoin Defendants from using the recordings at issue. Docs. 161, 191. For the reasons set forth below, the parties' motions for summary judgment are GRANTED in part and DENIED in part.

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2018 U.S. Dist. LEXIS 60026 *; Copy. L. Rep. (CCH) P31,256

ABKCO MUSIC, INC., COLGEMS-EMI MUSIC, INC., EMI ALGEE MUSIC CORP., EMI APRIL MUSIC INC., EMI BLACKWOOD MUSIC, INC., EMI CONSORTIUM MUSIC PUBLISHING, INC. d/b/a EMI FULL KEEL MUSIC, EMI CONSORTIUM SONGS, INC. d/b/a EMI LONGITUDE MUSIC, EMI FEIST CATALOG INC., EMI ROBBINS CATALOG INC., EMI UNART CATALOG, INC., JOBETE MUSIC CO., INC., SCREEN-GEMS-EMI MUSIC INC., STONE AGATE MUSIC, STONE DIAMOND MUSIC CORP., RODGERS & HAMMERSTEIN HOLDINGS LLC, PEER INTERNATIONAL CORPORATION, PSO LIMITED, PEERMUSIC LTD., PEERMUSIC III, LTD., SONGS OF PEER, LTD., SPIRIT CATALOG HOLDINGS S.A.R.L., TOWSER TUNES, INC., TOWSER NEWCO LTD., SPIRIT TWO MUSIC, INC., WARNER-TAMERLANE PUBLISHING CORP., and WB MUSIC CORP., Plaintiffs-Counterclaim-Defendants,1 — against — WILLIAM SAGAN, NORTON LLC, BILL GRAHAM ARCHIVES, LLC d/b/a WOLFGANG'S VAULT, BILL GRAHAM ARCHIVES, LLC d/b/a CONCERT VAULT, BILL GRAHAM ARCHIVES, LLC d/b/a MUSIC VAULT, and BILL GRAHAM ARCHIVES, LLC d/b/a DAYTROTTER, Defendants-Counterclaim-Plaintiffs.

Subsequent History: Reconsideration denied by ABKCO Music, Inc. v. Sagan, 2019 U.S. Dist. LEXIS 51666 (S.D.N.Y., Mar. 25, 2019)

Prior History: ABKCO Music v. Sagan, 2016 U.S. Dist. LEXIS 60778 (S.D.N.Y., May 6, 2016)

CORE TERMS

recordings, licenses, Music, infringement, exploit, audiovisual, compulsory, Counter, artists, phonorecords, performers, sound recording, collection, mechanical, concert, Reply, licensee, summary judgment, consents, notice, copyright infringement, parties, Copyright Act, implied license, distribute, authorize, fixation, purport, holder, sounds