IP Law Daily Class certified in copyright suit over archives of live music concerts
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Monday, April 13, 2020

Class certified in copyright suit over archives of live music concerts

By Brian Craig, J.D.

Common issues of fact and law predominated in suit alleging that website operators trafficked in unauthorized recordings of live musical performances.

In a suit brought by composers and performers involving archives of live music concerts performed in the 1950s through 1990s against website operators, the federal district court in Oakland has certified claims for copyright infringement under the Copyright Act and the Anti-Bootlegging Act. The court concluded that common issues of fact and law exist for claims brought by both composers and performances against the website operators alleging bootleg archives of live music concerts (Kihn v. Bill Graham Archives, LLC, April 10, 2020, Rogers, Y.).

A musician, Greg Kihn, and his music publisher, Rye Boy Music, LLC, brought suit against Bill Graham Archives, LLC, owners and operators of websites that make available audio and audiovisual recordings from live musical performances involving more than 900 musical artists, spanning from the 1950s through the 1990s. Specifically, the complaint alleges copyright infringement in violation of the Copyright Act on behalf of composers and violation of 17 U.S.C. § 1101, sometimes called the Anti-Bootlegging Act, on behalf of performers. The website owners and operators, Bill Graham Archives, LLC, purchased the archives from the estate of deceased San Francisco Bay Area rock concert promoter Bill Graham. The complaint alleged that the concert promoter acquired the recordings from concert producers and sound engineers who recorded the live performances without authorization. The content was made available on websites, including wolfgangs.com, concervault.com, and a YouTube channel. The plaintiffs motioned to certify the proposed class-action suit under Federal Rule of Civil Procedure 23 for both composer and performers.

Rule 23(a) factors. The court first held that the proposed class meets the requirements under Rule 23(a) for numerosity, commonality, typicality, and adequacy of representation. The number of performers and musical works in the recordings numbered in the hundreds, if not thousands. The claims all arose from the same actions: defendants’ sale and distribution of audio and audiovisual recordings of live performances on their websites. The claims of the musician and music publisher were typical of claims of other class members and the putative classes’ claims were essentially the same alleging that the defendants offer audio and audiovisual recordings on their websites. Furthermore, the musician and music publisher will represent the proposed classes adequately.

Composer class. The court next held that common issues of fact and law predominate on copyright infringement claims involving the composer class. Because the claims brought by the composer class and performer class differ, the court examined the two classes separately. The prima facie case for copyright infringement may be established readily on common evidence. Proof of the class members’ ownership of the copyrights to the compositions may be established readily from the records of the Copyright Office. Once these prima facie elements of copyright infringement are established, the burden of proof shifts to defendants to establish a defense to copyright infringement. The defendants argued that they have all the necessary licenses to exploit the recordings and have complied with all licensing and royalty payment requirements. The court found that the evidence on affirmative defenses supported a finding that common questions predominate. Because common issues of fact and law predominate on the copyright infringement claims, the court granted certification of the composer class.

Performer class. Finally, the court held that common issues of fact and law predominate on claims involving the performer class. In a Section 1101 claim for reproduction and trafficking in a bootleg recording, also called the Anti-Bootlegging Act, the claimants need only establish that they are performers in the recording and that defendants exploited the recording by reproducing copies and trafficking in them. The burden then shifts to defendants to plead and establish that the recording was made, and copies reproduced, with effective consent and authorization of the performers. The presence of individual settlement agreements as to a relatively small number of putative class members would not overcome the number of common issues of fact and law with respect to the performer class. Therefore, the court certified the performer class to include all persons whose non-studio live musical performances are captured in the recordings of sounds or sounds and images which have been reproduced, performed, distributed, or otherwise exploited by the defendants during the applicable time period.

This case is No. 17-cv-05343-YGR.

Attorneys: Daniel L. Warshaw (Pearson, Simon & Warshaw, LLP) for Greg Kihn. Erin R. Ranahan (Winston & Strawn LLP) for Bill Graham Archives, LLC d/b/a Wolfgang's Vault.

Companies: Bill Graham Archives, LLC d/b/a Wolfgang's Vault

MainStory: TopStory Copyright TechnologyInternet CaliforniaNews GCNNews

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