Legal
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Another group of Electric Zoo ticket buyers have filed a class action over what they call the “absolute fiasco” at this year’s festival, marking at least the fourth such lawsuit filed against promoter Avant Gardner, the organizer of the popular dance music event.
In a complaint filed Thursday in New York state court, lawyers for four attendees accused the Brooklyn-based company of false advertising, breach of contract and other wrongdoing over the event, which saw its Friday shows canceled at the last minute and Sunday plagued by problems.
“Normally this event is a transcendental audio-visual festival that creates everlasting thrilling memories for tens of thousands of EDM fans,” their lawyers wrote. “And while it did create everlasting memories in 2023, the memories created were not the ones which ticket holders were looking forward to.”
The “oversold, grossly understaffed” festival was “nothing short of an absolute fiasco,” attorneys for the concertgoers wrote, resulting in “long lines, massive overcrowding, and a literal stampede of people when it was discovered that the organizers oversold tickets.” The case was filed on behalf of Billy Ting, Duoc Vo, Garry Huang, Jeffrey Wang and Joshua Chin, but said it aims to represent as many as 75,000 ticketbuyers who had similar experiences.
Electric Zoo, held annually on New York City’s Randall’s Island, is one of the country’s top electronic dance festivals, but this year’s iteration – the second by Avant Gardner since the company acquired the festival in 2022 — was marred by issues.
First came an abrupt cancellation of Friday evening, meaning no performances by top names like The Chainsmokers and Kx5. That was followed by a delayed start and long lines on Saturday, and then a chaotic Sunday in which thousands of ticketholders were denied entry after the site reached capacity. Some fans jumped fences or ran through security checkpoints as a group.
Avant Gardner, which promised refunds for Friday and for anyone turned away on Sunday, blamed the problems on “global supply chain disruptions.” But sources later told Billboard that the Friday shutdown largely had stemmed from the promoter’s failure to pay vendors from last year’s festival, leading to a shortage of experienced concert professionals willing to work at this year’s event. Those shortages led to issues that caused city officials to withhold permitting approval until they were fixed. Citing internal sources, the New York Post also attributed the problems to staffing issues, as well as to a planning process that allegedly started months later than usual for a festival of its size and complexity.
Additionally, Sunday’s problems were caused by overselling the event by 7,000 people, according to an NYPD estimate reported by local news outlets. Shortly after the festival, Mayor Eric Adams suggested the city might launch an investigation into Avant Gardner over the debacle: “It’s unfortunate that the organizers wanted to turn our city into a zoo.”
Thursday’s lawsuit is at least the fourth such class action filed over the messy event. The first, filed on Sept. 13 in federal court, said Avant Gardner had caused “a nightmare endured by thousands of electronic music fans.” Another, filed just three days later in the same court, said the organizers had “lied to their guests at every opportunity.” In a third lawsuit, a Connecticut man said the festival’s “lack of planning and overselling of tickets” had caused dangerous overcrowding that caused him to “fear for his life.”
The specifics are varied, but all four lawsuits allege roughly similar forms of wrongdoing: That the Electric Zoo organizers misled ticket buyers, that they broke promises to concertgoers, and that they were negligent in failing to prevent the problems. Each case is seeking to represent hundreds or thousands of fans, and some or all of the cases could eventually be combined into a single, consolidated action.
A representative for Avant Gardner did not immediately return a request for comment.
The Electric Zoo class actions are only the latest legal issues for Avant Gardner, which operates an 80,000 square foot, multi-venue facility in Brooklyn’s East Williamsburg neighborhood. The company and owner Jürgen “Billy” Bildstein have clashed for years with the State Liquor Authority over allegations of drug use and other safety issues, including a 2020 agreement in which the company agreed to a $100,000 fine and to retain an independent safety monitor.
In August, that state-appointed monitor, T&M Security LLC, sued the company, claiming Avant Gardner had terminated the arrangement prematurely and then refused to pay its fees. A month earlier, another case claimed that security guards had assaulted patrons while searching them for drugs during a pride event.
Two years after Cardi B won a nearly $4 million defamation verdict against a YouTube host named Tasha K over her salacious lies about drug use, STDs and prostitution, a federal judge has ruled that the gossip blogger cannot avoid paying most of the judgment through Chapter 11 bankruptcy.
Tasha, who filed for bankruptcy in a May petition that said she had less than $60,000 in assets, will not be able to “discharge” $3.4 million owed to Cardi via the Chapter 11 process, Judge Scott M. Grossman ruled Thursday (Oct. 5) — meaning she’ll continue to be on the hook even after she exits bankruptcy.
Bankruptcy law allows insolvent people to escape certain debts, but it doesn’t shield them from paying money they owe because of “willful and malicious injury” they caused to others. After Tasha filed for bankruptcy, Cardi’s lawyers said that exception clearly applied to the huge judgment — a debt they said Tasha had incurred by “spreading false and defamatory statements” that were intended to cause harm.
After Cardi’s attorneys made those arguments, Tasha’s lawyers didn’t really fight back, essentially agreeing that $3.4 million of the $3.9 million judgment wasn’t going to be erased by the bankruptcy. And on Friday, Judge Grossman made it official: “The award of damages [and] interest thereon pursuant … are excepted from discharge.”
The ruling leaves only $500,000 of Cardi’s judgment in doubt. That money is technically owed solely by Tasha’s company Kebe Studios LLC. Whether or not Tasha herself is required to pay it will be the subject of future proceedings before the bankruptcy court.
Tasha’s bankruptcy attorney did not immediately return a request for comment on Monday.
Cardi (real name Belcalis Marlenis Almanzar) sued Tasha (Latasha Kebe) in 2019 over what the rapper’s lawyers called a “malicious campaign” on social media and YouTube aimed at hurting Cardi’s reputation. The star’s attorneys said they had repeatedly tried — and failed — to get her to pull her videos down.
One Tasha video cited in the lawsuit includes a statement that Cardi had done sex acts “with beer bottles on f—ing stripper stages.” Other videos said the superstar had contracted herpes; that she had been a prostitute; that she had cheated on her husband; and that she had done hard drugs.
Following a trial in January, jurors sided decisively with Cardi B, holding Tasha liable for defamation, invasion of privacy, and intentional infliction of emotional distress. They ordered her and her company to pay more than $2.5 million in damages and another $1.3 million in legal fees incurred by Cardi. Tasha appealed the verdict last summer, but a federal appeals court easily rejected that request in March.
Cardi B has repeatedly vowed to recover the money. Shortly after she won the jury verdict, she tweeted “imma come for everything” along with the acronym BBHMM — “bitch better have my money.” And her lawyers spent months legally pursuing the money, including garnishing her YouTube monetization account.
But in May, Tasha said there was barely any money for Cardi to take. In her bankruptcy petition, she listed just $58,595 in total assets to her name, the vast majority of which came from a truck that’s tied as collateral to an unpaid auto loan. She listed only $11,750 in other properties, including two Louis Vuitton purses and just $95 in actual cash in her bank account. She counted the trademark to her “UnWineWithTashaK” YouTube channel as an asset, but says the value of the brand is “unknown.”
Lawyers for Cardi quickly filed a so-called adversary proceeding — a lawsuit-like process that takes place within a larger bankruptcy case — to ensure that Tasha couldn’t dodge the damages she owes. It was that case that led to Friday’s decision.
Jason Derulo has spoken out about the lawsuit filed Thursday (Oct. 5) by a woman who claims the superstar sexually harassed her after signing her to his record label.
“I wouldn’t normally comment but these claims are completely false and hurtful,” said Derulo in a video and written statement posted to Instagram Thursday night. “I stand against all forms of harassment and I remain supportive of anybody following their dreams. I’ve always strived to live my life in a positively impactful way, and that’s why I sit here before you deeply offended, by these defamatory claims. God bless.”
In the complaint, the woman, Emaza Gibson, said that she signed with Derulo’s record label, Future History, after Derulo allegedly reached out about working with her in August 2021. But she claimed the relationship quickly soured, with Derulo continually pressuring her to have sex with him despite her persistent refusals to do so. Among other accusations, Gibson said the singer told her that if she wanted success in the music industry, she “would be required to partake in ‘goat skin and fish scales,’ which is a Haitian reference referring to conducting sex rituals, sacrificing a goat, goat blood and doing cocaine.’”
After allegedly rebuffing all of Derulo’s advances, Gibson claimed that the star became increasingly dismissive of and aggressive toward her. She further accused Derulo’s manager, Frank Harris, and human resources executives at Future History’s label partner, Atlantic Records, of defending Derulo or ignoring her complaints. In September 2022, she said she was informed that her “employment” with Future History and Atlantic had been terminated.
Since her alleged experiences with Derulo, Gibson claimed she’s required medical intervention for “breakdowns, weight loss, insomnia, mood swings, hopelessness, loss of motivation…[and] feelings of betrayal and deception” and was subsequently diagnosed with post-traumatic stress disorder.
Gibson is suing for sexual harassment, failure to prevent and/or remedy harassment, retaliation, intimidation and violence, breach of contract and more. Harris, Atlantic and RCA Records are also named as defendants. It’s unclear why RCA Records is listed, as the label has never done business with Derulo or Future History.
On Friday, Gibson’s attorney, Ron Zambrano, responded to Derulo’s statement by putting out his own. “If Derulo truly remained supportive of anyone following their dreams, he would acknowledge the pain and suffering he caused Emaza and aim to be a better person,” the statement reads. “He should be offended by these allegations, as should everyone, including his fans. Emaza is certainly offended by his dismissive attitude. The entire music industry is due for a #MeToo movement. This sort of conduct is pervasive but it takes brave people like Emaza to come out of the shadows and share their stories to finally bring an end to this shameful behavior.”
Kenny MacPherson, a long-time music publishing executive, has been placed on a leave of absence from his job at Hipgnosis Songs Fund, the company tells Billboard, following the filing of a lawsuit that claims he sexually assaulted a staffer in 2005 while he ran another company.
In a complaint filed Wednesday in Los Angeles court, Sara Lewis alleges that she “endured an onslaught of unwanted sexual advances” from MacPherson while she worked as an A&R at Chrysalis Music during the mid-2000s, when he served as the company’s president.
Lewis claims the harassment eventually escalated into “a traumatic sexual assault” during a 2005 business trip, and that she was then “blacklisted” when she reported the abuse.
“The entertainment industry is rife with tales of the abuse of aspiring entrepreneurial women at the hands of older, powerful executives,” Lewis’ lawyers write. “Women have been historically punished for standing up for themselves, refuting sexual advances, or speaking out against their perpetrators. Sara is unwilling to perpetuate that stigma. This lawsuit is about reclaiming agency for survivors of sexual violence and bringing to justice those high powered perpetrators who have historically avoided culpability.”
In a statement to Billboard on Thursday (Oct. 5), Hipgnosis — which was not named in the lawsuit nor accused of any wrongdoing — said it had placed MacPherson from his role as the CEO of the company’s publishing unit pending an investigation.
“Hipgnosis Songs Fund has a policy of zero-tolerance to harassment or abuse,” a spokesperson for the company said. “While the company is not a defendant to these historic allegations which relate to a period 15 years before Hipgnosis was founded, Kenny MacPherson was placed on leave of absence from Hipgnosis Songs Group as soon as it became aware of the allegations. Our rigorous procedures for dealing with such matters have commenced.”
MacPherson did not immediately return a request for comment on Thursday.
In addition to MacPherson, the lawsuit also named as a defendant BMG Rights Management, which acquired Chrysalis in 2010. Lewis claims that BMG, as the legal successor to her employer, is “directly liable” for the company’s failure to stop abuse by its president. In a statement to Billboard on Thursday, BMG stressed that it did not acquire Chrysalis until “years after the alleged events had taken place.”
“BMG stands solidly against all forms of discrimination, harassment, and abuse and we are shocked and dismayed by the allegations made by Sara Lewis,” the company said.
In her complaint — which contains graphic details of alleged harassment and assault — Lewis claims she was hired by Chrysalis in 2002 to “what she thought was her dream job,” eventually moving into a role as an A&R by 2003. But she says the dream “became a literal nightmare” as she was subjected to “relentless” harassment and “grooming” by MacPherson, who then served as the president of Chrysalis.
“Each of the repeated advances were unwanted and unwelcome,” her lawyers write. “But Sara had nowhere to turn. As president of Chrysalis, MacPherson knew all and controlled all. As a professional and aspiring executive, Sara put her head down, endured the harassment, and continued to pursue her dream career in the music industry.”
Lewis claims the harassment escalated into outright assault during a 2005 trip to Chicago to visit a newly-signed artist. After “plying her with alcohol” during a concert, she says he then “insisted that he and Sara have another drink in Sara’s hotel room” and eventually “professed his love” to her. When she says she “reiterated that she did not share these feelings,” he then “forced himself” on her.
“MacPherson attempted to penetrate Sara, but was unable to maintain an erection,” her lawyers wrote in Wednesday’s complaint. “MacPherson then forcibly performed oral sex on Sara as she laid motionless, repeatedly crying and saying ‘no,’ and pleading for MacPherson to stop. Eventually, apparently frustrated with Sara’s lack of participation and his own inability to perform, MacPherson relented and stopped his sexual assault.”
Lewis says she eventually “mustered the courage to report MacPherson’s abuse,” but her efforts were met only with silence and retaliation. Her direct supervisor did nothing, she says, and MacPherson began to shut her out of important portions of her job. When she tried to look for other jobs, she says she learned she had been “blacklisted” by MacPherson and Chrysalis. Eventually, she says she was “forced to leave the music industry entirely.”
“MacPherson and Chrysalis created an environment wherein Sara was without recourse,” her lawyers wrote. “She either acquiesced to MacPherson’s relentless and unwanted sexual advances, or faced a career-ending fate. Sara will no longer remain silent and now brings this action to seek redress for the years of sexual harassment and abuse she suffered at the hands of MacPherson, which was enabled and covered up by Chrysalis.”
In technical terms, Lewis is accusing BMG and/or MacPherson of 12 different counts of civil wrongdoing, including sexual battery, gender violence, and a slew of violations of California labor and employment laws covering sexual harassment and wrongful termination.
Stories about sexual assault allegations can be traumatizing for survivors of sexual assault. If you or anyone you know needs support, you can reach out to the Rape, Abuse & Incest National Network (RAINN). The organization provides free, confidential support to sexual assault victims. Call RAINN’s National Sexual Assault Hotline (800.656.HOPE) or visit the anti-sexual violence organization’s website for more information.
Read the full legal documents here:
After successfully defeating a lawsuit that claimed they ripped off their 2019 hit “Dancing With a Stranger” from an earlier song, Sam Smith and Normani are now demanding that their accuser reimburse their legal bills – a whopping total of $732,202.
In a ruling last month, a federal judge rejected allegations that Smith and Normani had copied a little-known 2015 song of the same name when they released “Dancing,” one of Smith’s top-charting hits that peaked at No. 7 on the Hot 100 chart.
Now, Smith and Normani say they shouldn’t be forced to foot the bill for a “frivolous and unreasonable” lawsuit.
“Defective copyright infringement claims, like Plaintiff’s claims here, burden the court, cause potentially damaging negative publicity for recording artists … and others, and force needless attorney’s fees on them,” wrote attorney Peter Anderson, who reps the two stars in a Sept 22 court filing. “Awarding attorney’s fees here will deter plaintiff and others from filing and blindly prosecuting such claims without anything close to the required factual and legal basis.”
The case against Smith and Normani was filed last year by songwriters Jordan Vincent, Christopher Miranda and Rosco Banlaoi, who claimed that “Dancing” was “strikingly similar” to their 2015 same-named track. In their complaint, they said it was “beyond any real doubt” that the song had been copied.
But last month, U.S. District Judge Wesley L. Hsu said it was, in fact, very much in doubt. Granting Smith and Normani’s motion for an immediate ruling ending the lawsuit, the judge said the songs simply were not similar – and he criticized the plaintiffs for manipulating them to make them appear more alike.
“Permitting copyright plaintiffs to prevail … by rotating chords, recalibrating the tempo, and altering the pitch of a defendant’s song so that it sounds more similar to the plaintiffs’ would lead courts to deem substantially similar two vastly dissimilar musical compositions,” Judge Hsu wrote at the time.
Unlike most forms of litigation, winners in copyright lawsuits are often able to legally recover the money they spent on lawyers fighting the case. Judges grant such requests in cases where a lawsuit shouldn’t have been filed, and they can serve as a powerful deterrent against future questionable lawsuits.
In their filing asking Hsu to order Vincent, Miranda and Banlaoi to reimburse them, Smith and Normani said the songwriters’ case had been exactly the kind of pointless lawsuit that needs to be deterred.
“Plaintiff sought to monopolize unprotectable elements that are common property to all,” Anderson wrote. “Claims like Plaintiff’s here threaten to cheat the public domain and curtail the creation of new works.”
As for the total, the pair of stars said they had incurred a whopping $732,202 bill for the services of Anderson and other lawyers from the top firm Davis Wright Tremaine who defended them. That figure was “below the median hourly rates” of similar elite copyright lawyers, they said, and they were “perfectly justified” in racking up big bills on a case that was demanding all of the profits from a a multi-platinum hit song.
BMG has reached a settlement to end a copyright lawsuit against a toymaker that promoted a brand of “unicorn poop” with a song called “My Poops” – a scatological parody set to the tune of Black Eyed Peas’ “My Humps.”
In an order Tuesday, a federal judge said that BMG and toymaker MGA Entertainment had “reached a settlement in principle” to resolve the lawsuit, marking an abrupt end to what would have been a high-profile dispute over copyright’s fair use doctrine when it comes to parody songs.
Neither side immediately returned requests for comment or more information about the terms of the settlement, like whether any money was exchanged.
Released to promote MGA’s Poopsie Slime Surprise toys – unicorns that release sparkling “unicorn poop” slime – “My Poops” features similar musical elements to Black Eyed Peas’ 2005 hit, which reached No. 3 on the Hot 100 and spent 36 total weeks on the chart. But it replaces the words with joke lyrics like “Whatcha gonna do with all that poop, all that poop.”
In a January complaint, BMG said the song was very clearly an infringement of its copyrights. In addition to copying key musical elements, BMG said, MGA’s song features a lead vocalist who “sounds very similar” to Black Eyed Peas lead singer Fergie.
“Music, especially a hit song such as ‘My Humps,’ adds great value when incorporated into a product or used in a video advertisement, because it increases consumer recognizability, consumer engagement and attention to the product,” BMG wrote in its lawsuit. “The infringing work is so substantially similar to ‘My Humps’ that it is obvious that the infringing work was intentionally copied.”
Federal protections for fair use expressly empower people to parody existing copyrighted works, and one of the U.S. Supreme Court’s most important copyright rulings held that 2 Live Crew was allowed to release a bawdy parody of Roy Orbison’s “Oh, Pretty Woman” without paying royalties. But the music industry’s premiere parodist, “Weird Al” Yankovic, voluntarily chooses to license all of the songs that he parodies. And the legal analysis is undoubtedly trickier when a parody song is used for outright commercial advertising, rather than merely as a new song.
Back in 2013, the Beastie Boys sued a toy company called GoldieBlox after it released a viral parody of the group’s 1987 song “Girls” to promote its engineering and construction toys for girls. After the band threatened copyright infringement, GoldieBlox argued fair use – saying it had aimed to criticize the “highly sexist” message of the original Beastie Boys track and “further the company’s goal to break down gender stereotypes.”
But six months later, GoldieBlox agreed to a settlement in which it apologized to the Beastie Boys and agreed to donate a portion of its revenues to charities of the band’s choosing.
A self-described gangster who police and prosecutors say masterminded the shooting death of Tupac Shakur in Las Vegas in 1996 is due to make his first appearance Wednesday (Oct. 4) before a Nevada judge.
Duane “Keffe D” Davis, 60, was arrested Friday during an early-morning walk near his home in suburban Henderson. A few hours later a grand jury indictment was unsealed in Clark County District Court charging him with murder.
Grand jurors also voted to add sentencing enhancements for the use of a deadly weapon and alleged gang activity. If Davis is convicted, that could add decades to his sentence. Davis denied a request from The Associated Press for an interview from jail where he’s being held without bond. Court records don’t list an attorney who could comment on his behalf.
Davis had been a suspect in the case, and publicly admitted his role in the killing in interviews ahead of his 2019 tell-all memoir, Compton Street Legend. “There’s one thing that’s for sure when living that gangster lifestyle,” he wrote. “You already know that the stuff you put out is going to come back; you never know how or when, but there’s never a doubt that it’s coming.”
Davis’ own comments revived the police investigation that led to the indictment, police and prosecutors said. In mid-July, Las Vegas police raided Davis’ home, drawing renewed attention to one of hip-hop music’s most enduring mysteries.
Prosecutors allege Shakur’s killing stemmed from a rivalry and competition for dominance in a musical genre that, at the time, was dubbed “gangsta rap.” It pitted East Coast members of a Bloods gang sect associated with rap music mogul Marion “Suge” Knight against West Coast members of a Crips sect that Davis has said he led in Compton, California.
Tension escalated in Las Vegas the night of Sept. 7, 1996, when a brawl broke out between Shakur and Davis’ nephew, Orlando “Baby Lane” Anderson, at the MGM Grand hotel-casino following a heavyweight championship boxing match won by Mike Tyson.
Knight and Shakur went to the fight, as did members of the South Side Crips,” prosecutor Marc DiGiacomo said last week in court. “And (Knight) brought his entourage, which involved Mob Piru gang members.”
After the casino brawl, Knight drove a BMW with Shakur in the front passenger seat. The car was stopped at a red light near the Las Vegas Strip when a white Cadillac pulled up on the passenger side and gunfire erupted. Shot multiple times, Shakur died a week later at age 25. Knight was grazed by a bullet fragment.
Davis has said he was in the front passenger seat of the Cadillac and handed a .40-caliber handgun to his nephew in the back seat, from which he said the shots were fired. In Nevada, a person can be convicted of murder for helping another person commit the crime.
Among the four people in the Cadillac that night, Davis is the only one still alive. Anderson died in a May 1998 shooting in Compton. Before his death, Anderson denied involvement in Shakur’s death. The other backseat passenger, DeAndre “Big Dre” or “Freaky” Smith, died in 2004. The driver, Terrence “Bubble Up” Brown, died in a 2015 shooting in Compton.
Knight, now 58, is now serving a 28-year prison sentence for running over and killing a Compton businessman outside a burger stand in January 2015. Sheriff Kevin McMahill, who oversees the Las Vegas Metropolitan Police Department, has acknowledged criticism that his agency was slow to investigate Shakur’s killing.
“That was simply not the case,” McMahill said. He called the investigation “important to this police department.”
Shakur’s sister, Sekyiwa “Set” Shakur, issued a statement describing the arrest as “a pivotal moment” but didn’t praise authorities who investigated the case. “The silence of the past 27 years surrounding this case has spoken loudly in our community,” she said.
Back in 2018, when music producer Sherman Nealy filed a lawsuit against Warner Music Group, it was just a run-of-the-mill copyright case. Nealy claimed that Flo Rida’s 2008 tune “In the Ayer” featured an unlicensed sample of “Jam the Box,” a 1984 track released by Pretty Tony that he owns.
It’s the same kind of claim that’s made in federal courts every day.
But five years later, Nealy’s lawsuit is now headed to the U.S. Supreme Court, which will use it as a vehicle to answer big unresolved questions about how much money can be awarded in copyright cases. Are those damages limited to just the last three years before a case was filed? Or can they range back decades, adding potentially many more millions to the total?
The high court’s eventual ruling, which the justices will issue next spring, will apply to all forms of copyrighted works, but the music industry is paying particularly close attention. In a filing earlier this year, record labels and music publishers called the case “exceptionally important” to their business.
Pay After Delay?
The controversy at the center of the case against Warner dates back to 2014, when the Supreme Court ruled that the movie studio MGM could be sued for copyright infringement over Raging Bull, even though the case was filed decades after the Martin Scorsese-directed film had first been released in 1980. The studio argued that long delay was unfair, but the justices pointed out that the Copyright Act has a three-year statute of limitations that resets with every new infringement.
Under the court’s interpretation of the law, as long as copies of an allegedly infringing book, song or movie had been sold during the three years prior to the lawsuit, it was fair game for a copyright case. Perhaps unsurprisingly, that ruling led to a surge in long-delayed infringement cases, including a high-profile lawsuit against Led Zeppelin over the 1971 song “Stairway To Heaven.”
But like many Supreme Court decisions, the Raging Bull ruling ultimately raised as many questions as it answered. Chief among them: if you can sue many years later, how far back can you seek damages? If you successfully sue someone in 2023 over a song that came out in 1995, can you demand payment based on 27 years of illegal sales?
In the Raging Bull ruling, the Supreme Court seemed to say no. In her opinion, the late Justice Ruth Bader Ginsburg was fairly clear: “A successful plaintiff can gain retrospective relief only three years back from the time of suit. No recovery may be had for infringement in earlier years. Profits made in those years remain the defendant’s to keep.”
In the years since, the New York-centric U.S. Court of Appeals for the Second Circuit has taken that language literally, ruling a copyright accuser cannot win damages for any for any conduct older than three years – full stop. If you wait to sue over a hit song from the 1990s, you cannot tap into those huge profits when you win the lawsuit.
But the U.S. Court of Appeals for the Ninth Circuit (covering California) disagrees. If you can prove that you only recently “discovered” the fact that your copyright was infringed, the Ninth Circuit says you can seek damages going back all the way to all the way back to the very first infringement – potentially decades worth of penalties.
That means the two courts that contain the vast majority of the country’s creative industries are directly divided over how copyright law works – a so-called “circuit split” that the Supreme Court is tasked with correcting.
Heading To Court
Nealy sued Atlantic Records, Warner Chappell and Artist Publishing Group in Florida federal court in 2018, arguing he had never actually granted them a valid license for his “Jam the Box” to be sampled in Flo Rida’s “In the Ayer,” which reached No. 9 on the Hot 100 after being released in July 2008.
In 2021, the judge overseeing the case cited Raging Bull and ruled that Nealy couldn’t win any money from earlier than 2015. Though Nealy said he had only learned of the illegal sample in 2016 and wanted damages going all the way back to 2008, the judge cited the Supreme Court’s “binding precedent” that had “explicitly delimited damages to the three years prior.”
But earlier this year, the U.S. Court of Appeals for the Eleventh Circuit overturned that ruling. Siding with the Ninth Circuit’s approach, the appeals court ruled that Nealy’s late discovery of the infringement was a different situation than the one dealt with in Raging Bull – and that any similar “discovery rule” cases would be allowed to seek damages as far back as they went.
Warner quickly appealed that decision to the Supreme Court. Repped by elite SCOTUS attorney Kannon Shanmugam of the law firm Paul Weiss, the company argued in a May petition that the “discovery” approach would unfairly expand the “financial exposure” of a copyright defendant and potentially lead to frivolous lawsuits that aimed to “extract settlements.”
“Deprived of a predictable limitations period and faced with expensive, time-consuming, and difficult litigation in order to defend years-old uses of copyrighted works, defendants will often be left with no choice but to settle claims early even in the absence of wrongdoing—or potentially never enter valuable agreements in the first place,” Shanmugam wrote for his client.
“Vitally Important”
The phrases “retroactive relief” and “three-year lookback period” might make your eyes glaze over, but the Nealy v. Warner case has big implications for copyright-heavy industries like music.
After the Raging Bull ruling dropped in 2014, artists and labels saw a rash of long-delayed cases. The lawsuit against Led Zeppelin – which resulted in more than six years of costly litigation before the band was ultimately cleared of all wrongdoing – was the most prominent, but it was just one of many. Meatloaf was sued over his 1993 song “I’d Do Anything For Love”; U2 was accused of ripping off its 1991 hit “The Fly”; and another case claimed that Notorious B.I.G.’s 1993 hit “Party and Bullshit” featured an unlicensed sample.
If the Supreme Court eventually rules in favor of Nealy, it would almost certainly encourage more age-old cases, creating a far larger potential prize for a successful accuser. As Nealy’s attorneys argued at an earlier stage of his case, when it comes to years-old copyright claims, “the vast bulk of damages” will typically fall outside the three-year limit.
Labels and publishers are watching the case closely. In a June brief at the Supreme Court, the Recording Industry Association of America and National Music Publishers’ Association didn’t advocate for either camp, but simply urged the justices to take up a case that is “vitally important to the music industry.”
“Because copyrights are the music industry’s most consequential asset, music labels and music publishers regularly find themselves both enforcing and defending copy right lawsuits,” lawyers for RIAA and NMPA wrote. “Without a clear national rule setting the temporal limits of recoverable damages, amici and their members face serious uncertainty.”
A Los Angeles judge ruled again Monday that Lady Gaga was not obligated to pay a $500,000 reward for the return of her stolen French bulldogs to the same woman who was criminally charged over the incident.
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Doubling down on an earlier decision to toss the case, Judge Holly Fujie dismissed a breach of contract case filed by Jennifer McBride, who pleaded no contest in December to receiving stolen property in connection with the 2021 robbery, in which Gaga’s dog walker Ryan Fischer was shot and nearly killed.
After the judge had given McBride a chance to fix her case, her lawyer argued that she was “in no way involved” with the theft of the dog and only wanted to help the animals. But in Monday’s decision, Judge Fujie said she was unswayed.
“Although plaintiff alleges that her motivation was to protect the bulldogs (and also to collect $500,000.00), this alleged motivation does not negate her guilt of the charge because she has admitted receiving the bulldogs with knowledge that they were stolen property,” the judge wrote. “If anything, the [updated lawsuit] makes even clearer … that plaintiff has unclean hands that prevent her from profiting from her actions.”
McBride is one of five people charged over the Feb. 24, 2021, gunpoint dog-napping of Gaga’s bulldogs, Koji and Gustav. Prosecutors say the singer was not specifically targeted, and that the group was merely trying to steal French bulldogs, which can be worth thousands of dollars. James Howard Jackson, the man who shot Fischer during the robbery, took a plea deal in December and was sentenced to 21 years in prison.
Days after the attack, it was McBride who returned the dogs to police, claiming she’d found the animals tied to a pole and asking about the reward. While police initially told the media that McBride appeared to be “uninvolved and unassociated” with the crime, she was later connected to the robbery and charged with one count of receiving stolen property and one count of being an accessory after the fact. In December, she pleaded no contest to the property charge and was sentenced to two years of probation.
But just two months later, McBride was back in court again — filing a civil lawsuit claiming she deserves the credit for returning the superstar’s bulldogs. The case argued that Gaga’s promise of a reward, which the media characterized as “no questions asked,” was a binding “unilateral” offer to pay for the safe return of the dogs, and that McBride had taken her up on the proposal by flipping on the men who actually committed the robbery.
But Gaga’s lawyers quickly argued that a convicted criminal like McBride cannot “profit from her participation in a crime.” And in July, Judge Fujie agreed.
“The allegations in the complaint are directly related to wrongful conduct that plaintiff pleaded guilty to in the criminal proceeding,” the judge wrote at the time. “Under the circumstances, plaintiff’s successful pursuit of her current claims would allow her to benefit from her admitted wrongdoing.”
In attempting to re-file an updated version of her lawsuit, McBride’s lawyers argued that she had “had no involvement with nor knowledge of the taking of Defendant’s dogs.” But in Monday’s ruling dismissing the case again, Judge Fujie pointed out all the things that McBride’s lawyers didn’t say.
“While Plaintiff alleges that she was not involved in the prior planning or the commission of the theft of Moving Defendant’s bulldogs, she does not deny that at the time she claimed the reward she knew that they were stolen from Moving Defendant, nor does she deny that she received them with that knowledge,” the judge wrote.
Ed Sheeran’s years-long copyright battle — over whether he copied “Thinking Out Loud” from Marvin Gaye’s iconic “Let’s Get It On” — isn’t over just yet.
Although one of Sheeran’s accusers dropped their case last month, a separate set of plaintiffs filed their opening salvo at a federal appeals court on Friday (Sept. 29), setting the stage for years more litigation and a ruling that could revive the case against the pop star.
“The district court’s erroneous decisions should be reversed, and appellant’s case restored so that it can proceed to trial,” Sheeran’s accusers wrote in their opening brief to the appeals court.
Sheeran was first sued over “Thinking Out Loud” by the daughter of Ed Townsend, who co-wrote the famed 1973 tune with Gaye. It was that long-running case that culminated in a May jury verdict that cleared Sheeran of any wrongdoing. Last week, Kathryn Griffin Townsend’s lawyers dropped their efforts to overturn that verdict, ending that leg of the legal battle.
But Sheeran has long faced a separate, closely related case filed by an entity called Structured Asset Sales (owned by industry executive David Pullman) that controls a different one-third stake in Townsend’s copyrights. In May, weeks after the big jury verdict, a federal judge tossed out that case, too, ruling that it was seeking an “impermissible monopoly over a basic musical building block.”
Unlike Griffin, however, Structured Asset Sales seems ready for a long appellate battle.
In their opening brief Friday at the U.S. Court of Appeal for the Second Circuit, Structure Asset Sales’ lawyers cited a wide range of supposed errors by Judge Louis Stanton in that May ruling dismissing the case, including his decision about “musical building blocks.”
But they mostly focused on what they said was a far more basic error: that Judge Stanton refused to let them cite the famous recorded version of “Let’s Get It On” in making their case. Instead, the judge ruled that Structured Asset Sales owned only the rights to a “deposit copy” — the basic notation filed at the Copyright Office decades ago to secure a copyright registration. That erroneous holding, the company’s lawyers said, “severely” limited their rights and unfairly hurt their ability to win the case.
“Musical notation is a way of trying to capture the ephemeral in the physical, but it is and has always been limited in its ability to capture every nuance of the work,” Structured Asset Sales’ lawyers wrote. “Deposit copies do not, and were never meant to be, a limitation on the scope of the copyright they represent.”
Structure Asset Sales’ lawyers also called into question the timing of Judge Stanton’s ruling, which came just weeks after the jury verdict in the Griffin case and seemingly reversed his own previous decision that the case would need to go to trial. In an unusual flourish, the company’s lawyers said the judge’s logic was “a mystery.”
An attorney for Sheeran did not immediately return a request for comment. Sheeran’s legal team will file their own appellate brief in the months to come.