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JAMES v. UNIVERSAL MOTOWN RECORDS

United States District Court, S.D. New York


June 15, 2004.

ROBERT JAMES, et al., Plaintiffs,
v.
UNIVERSAL MOTOWN RECORDS, INC., et al., Defendants.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

Plaintiffs claim to be the co-writers and copyright proprietors of songs entitled "We Should Be Making Love" and "Caught in a Trap" (collectively, the "Works"), that the Works rere recorded by a group called Proyecto Uno and included on an album entitled "Four," that the album was released in the United States in 1999 without their authorization, and that at least some of the defendants are selling the album or other allegedly infringing material here now. They sue Univeral Motown Records, Inc. and Universal Music International, Inc. divisions of Universal Music Group, Inc. (collectively "Universal") as well as Jelly's Jams LLC ("Jelly's"), Hogland Records and P1 Music for copyright infringement. The matter is before the Court on motions for summary judgment by Universal and Jelly's and plaintiff's cross-motion for partial summary judgment. The central point of contention seems to be Universal's assertion that it is responsible for no sales in the United States, that there in consequence has been no infringement, and that the Court therefore lacks subject matter jurisdiction. It asserts that the only sales complained of occurred abroad and that Universal never sold the album in this country.

Universal's motion is supported principally by an affidavit of a vice president of legal and business affairs of Universal Music Latin America, a division of UMG Recordings, Inc. The witness claims that he has "personal knowledge of the facts alleged herein based on my involvement in this matter and/or my review of the relevant documents and files." Batista Aff. ΒΆ 1.

  Rule 56(e) provides in relevant part that "[s]upporting and opposing affidavits [on summary judgment motions] shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." The Batista affidavit does not comply with the rule. It does not indicate where his personal knowledge leaves off and his impressions based on some undefined "involvement . . . and/or" his review of unspecified files begins. Nor does it affirmatively show that he is competent to testify to the matters stated in the affidavit or that the facts in questions are admissible in evidence. Universal's motion, which has been joined in by Jelly's, therefore must be denied.

  Plaintiffs' cross-motion stands no better. Neither their affidavits nor their Rule 56.1 Statement remotely approaches a demonstration that there are no disputed issues of material fact or that they are entitled to judgment as a matter of law.

  Accordingly, all of the motions are denied.

  SO ORDERED.

20040615

© 1992-2004 VersusLaw Inc.



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