United States District Court, S.D. New York
OPINION & ORDER
L. STANTON, U.S.D.J.
decided on this motion to compel document production is
whether this Court should compel defendants to produce
documents containing financial information about defendant
Edward Sheeran's live performances of "Thinking Out
Loud" ("TOL") -- including expenses and
revenues related to ticket, merchandise sales and
endorsements from such performances, and Sheeran's tour
schedules and set lists.
SAS plausibly alleges that each of Sheeran's live
performances of TOL infringed SAS's copyright in
"Let's Get It On" ("LGO"), SAS's
motion to compel is granted as to documents containing
information about Sheeran's live performances of TOL on
or after June 28, 2015.
28, 2018, SAS brought this action for copyright infringement,
alleging that the musical composition TOL infringes its
copyright in LGO. SAS asserts that Sheeran has repeatedly
performed TOL live without the right to do so. SAS also
asserts that defendants profited from those performances in
the form of ticket sales, merchandising, and endorsements.
seeks from defendants Sheeran, Sony/ATV Music Publishing,
LLC, Atlantic Recording Corporation, and The Royalty Network,
Inc. the production of documents containing information about
Sheeran's live performances of TOL, including expenses
and revenues related to ticket sales and merchandise sold at
such performances, as well as Sheeran's tour schedules
and set lists. It also seeks documents detailing expenses and
revenues related to endorsements and merchandising more
distantly related to TOL.
object that those requests have no causal relationship to the
alleged infringement. They also, and more fundamentally,
contend that ASCAP and BMI's blanket licenses prevent
Sheeran's live performances of TOL from infringing the
copyright in LGO.
Asserted Right to Perform TOL
argue that "as a matter of law, the public performances
of either or both TOL or LGO at any or all of the Sheeran
concerts in the United States were licensed performances and
were, as a matter of law, non-infringing." Def.'s
Mem. Opp'n 9. They support this argument with
declarations from the Vice Presidents of both Performing
Rights Organizations ASCAP and BMI stating that "each of
the concert venues at which Sheeran performed TOL in the
United States, or the concert promoters, held valid blanket
licenses from the PROs, which authorized the public
performance of any or all compositions within the repertories
of the PROs." Id. at 8-9; Gonzalez Decl.
¶¶ 4-7; Reimer Decl. ¶¶ 3-7. They state
that "It is undisputed that both TOL and LGO are within
the repertories of the PROs." Def.'s Mem. Opp'n
9. They also further claim that for that reason
. . . it is indisputable that, regardless of whether SAS will
ultimately be able to prove that TOL infringed LGO - and
Defendants submit that they will not be able to do so - the
public performances of TOL at Sheeran's concerts in the
United States could not, as a matter of law, be infringing.
Id. at 9 n.6.
defendants' argument lacks a foundation: there is no
"right" to infringe. BMI's and ASCAP's
blanket and venue licenses could not grant a right to
infringe, for there never was one.
inapplicable exceptions,  neither the author nor any licensee
of an infringing work has the right to perform it publicly.
The author cannot assign, to BMI or ASCAP, the ability to
include such a right in their blanket licenses, for the