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SUN TRADING DISTRIB. CO. v. EVIDENCE MUSIC

October 14, 1997

SUN TRADING DISTRIBUTING CO., INC. d/b/a LANDMARK RECORDS and MUSE RECORDS, a Division of Blanchris, Inc., Plaintiff, against EVIDENCE MUSIC, INC., d/b/a EVIDENCE RECORDS, and KENWOOD ELECTRONICS CORP., Defendants.


The opinion of the court was delivered by: CHIN

 Chin, D.J.

 Plaintiff brings this action pursuant to § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and New York State common law, seeking damages and injunctive relief for defendants' alleged unfair competition arising out of their exploitation of sound recordings by three jazz artists. Defendants move to dismiss on the ground that plaintiff fails to state a claim upon which relief can be granted, or, in the alternative, for summary judgment. Defendants' motion for summary judgment is granted, for no reasonable trier of fact could find, on the record before the Court, actual consumer confusion or the likelihood of confusion. Hence, plaintiff's Lanham Act claims fail as a matter of law. The Court declines to exercise supplemental jurisdiction over plaintiff's state law claims.

 BACKGROUND

 Plaintiff Sun Trading Distributing Co. ("Sun Trading") does business as Muse Records and Landmark Records. Both companies are in the business of producing, recording, manufacturing, and selling sound recordings, internationally and domestically. Defendant Evidence Music, Inc. ("Evidence") is in the business of producing, acquiring, and licensing principally jazz and blues recordings for distribution and sale as phonograph records and tapes. Sun Trading also names as a defendant Kenwood Electronics Corp. ("Kenwood"), a nonexistent business entity. Kenwood concedes that the intended defendant in this matter was likely Kenwood USA, but maintains that Kenwood USA is entirely unconnected with any of the events that are the subject of this lawsuit.

 At issue in this case are the recordings of three professional jazz artists -- John Hicks, Edward "Sonny" Stitt, and Antoine Roney. Hicks is an active professional musician. On November 1, 1994, Hicks entered into a one-year exclusive recording agreement with Landmark Records, to expire on October 31, 1995 (the "Hicks Agreement"). During the term of this exclusive agreement, and in violation thereof, Hicks recorded an album for Evidence with another musician named Ray Drummond. Evidence contends that it was unaware of the Hicks Agreement at the time, but that when it learned of the agreement, it refrained from releasing the record. Sun Trading disputes that Evidence was ignorant of the Hicks Agreement when it entered into its own recording deal with Hicks. Sun Trading claims that the unauthorized Hicks recording belongs to Landmark and that Evidence is in possession of this recording without plaintiff's permission. It is undisputed, however, that the Hicks recording is not currently, nor has it ever been, in commerce.

 Sonny Stitt was a professional musician until the time of his death in 1982. Stitt entered into a two-year exclusive recording agreement with Muse on May 1, 1979, to expire on April 30, 1981 (the "Stitt Agreement"). A company called Trio Records/Trio-Kenwood Corp. ("Trio-Kenwood") recorded Stitt during the term of the exclusive agreement. The head of Trio-Kenwood later started another company called Art Union Records, which obtained the rights to the unauthorized Stitt recording. Art Union Records eventually licensed the recording to Evidence, roughly ten years after it was made. Evidence, in turn, distributed the recording. Sun Trading alleges that this unauthorized recording, entitled "Deuces Wild," is Muse's property because it was recorded while the Stitt Agreement was in effect, and that Evidence distributed this recording without Muse's knowledge or permission and improperly gave publishing credit to a company named Birdseed Music instead of to Muse. Such action, Sun Trading contends, falsely designates the origin of the Stitt recording, thereby creating consumer confusion.

 Like Hicks, Antoine Roney is also an active professional musician. Roney entered into a two-year exclusive recording agreement with Muse on November 1, 1991, to expire on October 31, 1993 (the "Roney Agreement"). The Roney Agreement specifically permitted Roney to make recordings for other companies during this period as long as he performed only as a "sideman" and not as a lead musician. During the term of the Roney Agreement, a company called Alfa Music made a recording of Roney in which he performed as a sideman, consistent with the Roney Agreement. Sun Trading complains, however, that when Evidence obtained the rights to this recording, it repackaged the recording for U.S. distribution in a manner that depicted Roney as a lead musician. Such action, plaintiff contends, deceives and confuses consumers by leading them to believe that Roney performs as a lead musician on an album on which he performs solely as a sideman.

 Plaintiff maintains that the names and likenesses of Hicks, Stitt, and Roney are properties uniquely associated with Muse and Landmark; therefore, Evidence's conduct with respect to the Hicks, Stitt, and Roney recordings trades unfairly upon Landmark's and Muse's goodwill in violation of § 43(a) of the Lanham Act. In addition, plaintiff asserts claims of tortious interference with contract, misappropriation, and unfair competition under New York law. Plaintiff seeks money damages, injunctive relief, and costs.

 Defendants move to dismiss the complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. Sun Trading opposes the motion and cross-moves for leave to amend the complaint to include the proper Kenwood entities as defendants in the action, which it believes to be Kenwood Corporation of Tokyo, Japan ("Kenwood Japan") and Art Union Records.

 DISCUSSION

 A. Defendant's Motion for Summary Judgment

 Because both parties had a reasonable opportunity to conduct discovery prior to the filing of this motion and have submitted matters outside the pleadings with their motion papers, the Court treats this motion as ...


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