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Levitin v. Sony Music Entm't

United States District Court, S.D. New York

April 22, 2015

LEE OSKAR LEVITIN /p/k/a LEE OSKAR, as an individual and d/b/a IKKE-BAD MUSIC; GREG ERRICO, as an individual and d/b/a RADIO ACTIVE MATERIAL PUBLISHING COMPANY; and KERI OSKAR, an individual, Plaintiffs,
v.
SONY MUSIC ENTERTAINMENT, a wholly-owned subsidiary of SONY CORPORATION OF AMERICA, a New York corporation; MR. 305, INC., a Florida corporation; POLO GROUNDS MUSIC, INC., a New York corporation; SONY MUSIC ENTERTALNMENT CANADA INC., a Canadian corporation; SONY MUSIC ENTERTAINMENT UK, a British entity of unknown form; SONY MUSIC ENTERTALNMENT GERMANY GMBH, a German limited liability company; SONY MUSIC ENTERTAINMENT AUSTRALIA, LTD., an Australian limited company; SONY MUSIC ENTERTALNMENT ITALY, S.P.A., an Italian corporation; SONY MUSIC ENTERTAINMENT MEXICO S.A. DE C.V., a Mexican corporation; SONY MUSIC EINTERTAINMENT ESP ANA, S.L., a Spanish limited liability company; SONY MUSIC ENTERTAINMENT KOREA INC., a South Korean corporation; and SONY MUSIC ENTERTAINMENT FRANCE, a French entity of unknown form, Defendants

Decided April 21, 2015

Page 377

[Copyrighted Material Omitted]

Page 378

[Copyrighted Material Omitted]

Page 379

[Copyrighted Material Omitted]

Page 380

For Lee Oskar Levitin, as an individual personally known as Lee Oskar, doing business as Ikke-Bad Music, Greg Errico, as an individual, doing business as Radio Active Material Publishing Company, Keri Oskar, an individual, Plaintiffs: Kenneth David Freundlich, LEAD ATTORNEY, Freundlich Law, Encino, CA.

For Sony Music Entertainment, a wholly owned subsidary of Sony Corporation of America, a New York corporation, Mr. 305, Inc., a Florida corporation, Sony Music Entertainment Canada Inc., a Canadian Corporation, Sony Music Entertainment UK, a British entity of unknown form, Sony Music Entertainment Germany GBH, a German limited liability company, Sony Music Entertainment Austrailia, LTD., an Australian limited company, Sony Music Entertainment Italy, S.P.A., an Italian corporation, Sony Music Entertainment Mexico S.A. de C.V., a Mexican corporation, Sony Music Entertainment España, S.L., a Spanish limited liability company, Sony Music Entertainment Korea Inc., a South Korean corporation, Sony Music Entertainment France, a French entity of unknown form, Defendants: Barry E. Mallen, LEAD ATTORNEY, William Brody, Loeb & Loeb LLP (CA), Los Angeles, CA; Jonathan Neil Strauss, Loeb & Loeb LLP, New York, NY.

For Polo Grounds Music, Inc., a New York Corporation, Defendant: Barry E. Mallen, Loeb & Loeb LLP (CA), Los Angeles, CA.

Page 381

OPINION & ORDER

PAUL A. CROTTY, United States District Judge.

Plaintiffs Lee Oskar Levitin (" Levitin" ), Greg Errico (" Errico" ), and Keri Oskar (" Oskar" ) (collectively, " Plaintiffs" ), writers of the musical composition " San Francisco Bay," bring this action for (i) domestic copyright infringement under 17 U.S.C. § 106; and (ii) foreign copyright infringement. Plaintiffs' suit against Sony Music Entertainment (" SME" ), a wholly owned subsidiary of Sony Corporation of America, Mr. 305, Inc., and Polo Grounds Music, Inc. (collectively, " Domestic Defendants" ), and Sony Music Entertainment Canada Inc., Sony Music Entertainment UK, Sony Music Entertainment Germany GmbH, Sony Music Entertainment Australia, Ltd., Sony Music Entertainment Italy, s.p.a., Sony Music Entertainment Mexico SA. de C.V., Sony Music Entertainment España, S.L., Sony Music Entertainment Korea Inc., and Sony Music Entertainment France (collectively, " Affiliate Defendants" ), arises out of the international release of the song " Timber," which contains interpolations of " San Francisco Bay."

All Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Affiliate Defendants also move to dismiss the complaint for lack of personal jurisdiction, pursuant to Fed. R. Civ, P. 12(b)(2), or in the alternative, based on the doctrine of forum non conveniens.

Page 382

For the following reasons, the Court grants the motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) with respect to the Domestic Defendants, but denies it with respect to the Affiliate Defendants. The Court denies the Affiliate Defendants' motion to dismiss for lack of personal jurisdiction and forum non conveniens.

BACKGROUND

Plaintiffs co-wrote the song " San Francisco Bay" in 1978. Compl. ¶ 26. That same year, the song was publicly released on Levitin's solo album titled " Before the Rain." Id. On April 20, 1978, Plaintiffs signed a standard form songwriters contract (the " SSC" ), which transferred ownership in the song's copyright as follows: 25% to Levitin's publishing company Ikke-Bad; 25% to Errico's publishing company, Radio Active; and 50% to non-party Far Out Music (" FOM" ), collectively referred to as " the Publisher" in the SSC. Id. ¶ 27; Ex. A to Compl.[1] On July 3, 1978, FOM registered " San Francisco Bay" with the U.S. Copyright Office, listing Ikke-Bad, Radio Active, and FOM as the copyright claimants and incorrectly listing Plaintiffs as work-for-hire authors. Id. ¶ 28. FOM later submitted a supplementary registration partially correcting this error with respect to Oskar, but failed to correct the error for Errico and Levitin. Id. ¶ 29. Accordingly, the registration erroneously states that Errico and Levitin are work-for-hire authors, which is incorrect, since none of the Plaintiffs were work-for-hire authors. Id. ¶ ¶ 29-30.

In 2013, a group of writers including Kesha Seybert, Armando Christian Perez (a/k/a " Pitbull" ), and Lukasz Gottwald co-wrote " Timber," which " without Plaintiffs' permission, makes copious use of the melody and harmonica riff of San Francisco Bay.'" Id. ¶ 31. Defendants created a master sound recording and music video of " Timber," performed by Pitbull and Seybert. Id. ¶ 32. The harmonica player in the recording, Paul Harrington, was told to " emulate [Levitin's] harmonica performance from 'San Francisco Bay' so that the harmonica lines in 'Timber' would have an identical texture and sound as 'San Francisco Bay." ' Id. " Timber" is thus " a reproduction of copyright-protected elements within 'San Francisco Bay,' and a derivative work based on 'San Francisco Bay.'" Id. ¶ 33.

Domestic Defendants sought to exploit " Timber" on a worldwide basis and to that end " offered, transmitted (physically and/or electronically), and otherwise made available 'Timber" ' to the Affiliate Defendants. Id. ¶ 34. On October 7, 2013, " Timber" was released to the public internationally. Id. ¶ 35. With the " encouragement, authorization, and assistance" of Domestic Defendants, the Affiliate Defendants digitally and physically released " Timber" in their respective countries: the United Kingdom, Italy, Germany, Mexico, Spain, Canada, Australia, France, and South Korea. Id. Domestic and Affiliate Defendants have wrongfully profited from the exploitation of " Timber" in these countries. Id. " Timber" has been hugely successful and has reached top chart positions in the U.S., U.K., Canada, Germany, and on Europe's " Euro Digital Songs" chart, and has achieved multi-platinum sales in the U.S., Australia, Canada, and South Korea. Id. ¶ 36. Defendants " 'might' have obtained a license from [FOM] purportedly giving worldwide permission to use 'San Francisco Bay' in 'Timber,'" but have never obtained the requisite license from Plaintiffs for such use, Id. ¶ 37. Without a license from all of the copyright holders of " San Francisco Bay," Defendants cannot exploit " Timber" in the countries of the Affiliate Defendants. Id. ¶ 38. Affiliate

Page 383

Defendants have thus violated the copyright laws of their respective countries by infringing on Plaintiffs' " moral and economic rights." Id. ¶ 41.

Plaintiffs allege that Domestic Defendants have committed copyright infringement in the following ways:

o Violating 17 U.S.C. § 106(1) and (2) by " creating duplicate master tapes and/or electronic files of 'Timber' for distribution to and/or public performances via streaming or other broadcasting to the Sony Affiliate Defendants, among others, abroad" while in the United States. Id. ¶ 43.
o Violating 17 U.S.C. § 106(3) and/or (4) by " distributing and/or streaming or other broadcasting of 'Timber'" to the Affiliate Defendants abroad while in the United States. Id. ¶ 44.
o Violating 17 U.S.C. § 106(3) by " making 'Timber' available" to the Affiliate Defendants " for download through the Internet and/or via Domestic Defendants' intranet/extranet-based, worldwide matrix distribution systems" while in the United States. Id. ¶ 45.
o Violating 17 U.S.C. § 106(3) by " offering to distribute copies of 'Timber' to the Sony Affiliate Defendants, among others, for purposes of further distribution and/or public performance abroad" while in the United States, Id. ¶ 46.
o Violating 17 U.S.C. § 106 by " signing agreements with the Sony Affiliate Defendants, among others, for the foreign exploitation (e.g., foreign reproduction, distribution, and/or public performance) of 'Timber'" while in the United States. Id. ¶ 47.
o Violating 17 US.C. § 106 by " authorizing the ... Affiliate Defendants, among others, to commit actions abroad which infringe and continue to infringe Ikke-Bad's and Radio Active's various exclusive rights" while in the United States. Id. ¶ 48.

Plaintiffs allege that the Affiliate Defendants have an agency relationship with SME such that Affiliate Defendants would undertake the activities performed by SME in New York, were it not for the agency relationship. Id. ¶ 23. The products marketed abroad by Affiliate Defendants derive from the recordings of artists signed in New York, and Affiliate Defendants market their material in New York exclusively through SME. Id. ΒΆ 24. Additionally, a matrix agreement grants SME and each Affiliate ...


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