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Fifty-Six Hope Road Music Ltd., Cedella v. Umg Recordings

August 31, 2011

FIFTY-SIX HOPE ROAD MUSIC LTD., CEDELLA MARLEY, DAVID MARLEY, JULIAN MARLEY, KAREN MARLEY, RITA MARLEY, ROHAN MARLEY, STEPHEN MARLEY, DAMIAN MARLEY, STEPHANIE MARLEY, AND ROBERT MARLEY, PLAINTIFFS,
v.
UMG RECORDINGS, INC., DEFENDANT.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION & ORDER

This Opinion addresses motions in limine in an action to recover unpaid royalties on the sound recordings of the Jamaican reggae artist Bob Marley. The plaintiffs are Marley's widow and children and their wholly-owned company, Fifty-Six Hope Road Music Ltd. ("Fifty-Six"); their royalty accounting claims concern the interpretation of a 1992 master agreement governing the defendant UMG Recordings, Inc. ("UMG") rights to the Marley recordings.

On January 21, 2011, plaintiffs filed motions in limine for an order (1) prohibiting the defendant UMG from offering evidence regarding its distribution agreements with third parties; (2) excluding evidence regarding the depressed financial state of the music industry; (3) excluding evidence regarding the administration of the Marley estate; (4) precluding evidence allegedly withheld during discovery of UMG's relationships with foreign distributors; its foreign withholding taxes; its excess free goods; its television advertising expenses; and a 2002 audit; (5) precluding UMG from arguing at trial that Paragraph 2 of the July 1, 1992 Agreement (the "1992 Agreement") between the parties governs royalties on digital downloads; (6) precluding UMG from arguing at trial that the 1992 Agreement permits it to pay royalties on digital downloads on a net receipts basis; and (7) precluding UMG from offering the testimony of an accountant as an expert witness.

Plaintiffs' motions to exclude the distribution agreements, evidence regarding the state of the music industry, and evidence regarding the administration of the Marley estate are granted. Plaintiffs' motion to preclude the introduction of evidence allegedly withheld by UMG during discovery is granted in part.

Plaintiffs' motions to preclude UMG from arguing for the application of Paragraph 2 of the 1992 Agreement, to preclude UMG from arguing for payment on a net receipts basis, and to preclude UMG from offering expert testimony are denied.

1. Plaintiffs' Motion to Exclude Evidence of Distributor Agreements

The plaintiffs move to preclude UMG from introducing evidence of its distributorship agreements with third parties. UMG represents that it does not intend to introduce any distribution agreements at trial. Accordingly, the plaintiffs' motion is granted.

2. Plaintiffs' Motion to Exclude Evidence of the State of the Music Industry

The plaintiffs move to preclude UMG from offering evidence regarding the depressed financial state of the music industry. As UMG asserts that it does not intend to offer such evidence, the motion is granted.

3. Plaintiffs' Motion to Exclude Evidence of the Administration of the Marley Estate

The plaintiffs move to preclude UMG from introducing evidence regarding the administration of the Marley estate. UMG contends that it does not intend to offer such evidence as part of its affirmative case and that its only value may be for impeachment or rebuttal purposes. Accordingly, this motion is granted.

4. Plaintiffs' Motion to Exclude Evidence Allegedly Withheld During Discovery

The plaintiffs move to preclude UMG from introducing at trial certain categories of documents and evidence relating to these documents which the plaintiffs claim were withheld by UMG and not produced during discovery despite the plaintiffs' requests. Plaintiffs seek to exclude the following: (1) UMG's agreements with foreign affiliates or third-party overseas distributors; (2) evidence relating to UMG's deduction of foreign withholding taxes; (3) the number of Bob Marley units given away as "free goods" by UMG; (4) UMG's television advertising expenditures related to Bob Marley's music; and (5) a 2002 audit report produced by UMG on January 14, 2011.

a. UMG's Agreements with Foreign Affiliates UMG asserts that it will not be offering its agreements with foreign affiliates or third-party distributors at trial. Accordingly, the motion is granted. To the extent that plaintiffs seek to bar UMG from pursuing its legal theory that Paragraph 11 of the 1992 Agreement refers only to the "receipts" of UMG, ...


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