IP Law Daily Statutory damages, false copyright management claims against Kanye West have a prayer
Tuesday, January 21, 2020

Statutory damages, false copyright management claims against Kanye West have a prayer

By Robert Margolis, J.D.

Fact questions preclude dismissal of claims arising from West’s inclusion of an allegedly unauthorized sample of plaintiffs praying on his "The Life of Pablo" album.

The federal district court in Charleston, South Carolina, has denied a motion by Kanye West and several corporate defendants to dismiss claims for statutory damages and attorney fees arising out of allegations that the defendants infringed an audio recording of two children praying. The defendants included a sample of the prayer on West’s 2016 song "Ultralight Beam," which appeared on his platinum selling album "The Life of Pablo." The court also denied the defendants’ motion and upheld a claim that the defendants provided false copyright management information by failing to credit the owners of the sample as authors and copyright holders, finding disputed factual issues over how such information was communicated. The court similarly found that factual issues precluded denial of the plaintiffs’ claims for statutory damages and attorney fees, though the court did dismiss as preempted a claim for quantum meruit (Green v. West, January 17, 2020, Gergel, R.).

Prayer recording. The plaintiffs, two legal guardians of minor children N.G. and Andreia Green, allege that around January 20, 2016, a recording of N.G. and Andreia praying was uploaded to Instagram ("Green Samples"). Once on Instagram, the Green Samples became popular, with thousands of page views. In early February, an attorney for West and the other defendants approached the Greens seeking permission to use audio from the Green Samples. N.G.’s biological mother agreed to preliminarily allow such use for West’s upcoming album, provided that she later receive payment. On February 14, 2016, West released his album, "The Life of Pablo," which includes "Ultralight Beam," a song that features the Green Samples. The Greens also allege that West has performed "Ultralight Beam" live multiple times. No agreement was reached with the Greens and they have received no compensation for use of the Green Samples.

Claims, motion. The Greens sued West and the other defendants for (1) copyright infringement; (2) vicarious copyright infringement; (3) contributory copyright infringement; (4) falsification of copyright management information; (5) wrongful appropriation of personality; (6) unfair trade practices; and (7) quantum meruit. The defendants moved for judgment on the pleadings seeking to dismiss the Greens’ claims for statutory damages and attorney fees, copyright infringement claims brought by Andreia, and the falsification of copyright infringement and quantum meruit claims.

Statutory damages, fees. The court held that fact questions preclude dismissal of the Greens’ claims for statutory damages and attorney fees, in light of questions left unanswered by the complaint. Statutory damages and attorney fees are available for copyright infringement plaintiffs that register the allegedly infringed work within three months of first publication of the work, or after publication but before the alleged infringement occurred. 17 U.S.C. § 412. The parties disagreed about whether the Greens registered within three-month post-publication grace period—the Green samples were published when uploaded to Instagram on January 20, 2016, and the copyright was registered on April 21, 2016. They did not even discuss whether registration was made before the commencement of infringement, and the court lacked information about that possibility. In addition, the court noted that statutory damages and attorney fees may be obtained if the registration occurs within one month of the copyright owner learning of the infringement. Again, the factual allegations did not resolve the question of when the Greens know of the infringement, though "The Life of Pablo," featuring the Green samples, was released on February 14, 2016, and registration was made on April 21, 2016.

Applicant’s claims. The court dismissed Andreia Green’s copyright infringement claim because at the time of filing the complaint, N.G. was the sole listed owner of the copyright in the Green Samples on the copyright registration. Though after the complaint was filed an application for supplemental registration was made to add Andreia as a claimant and owner, the court found this insufficient. A mere applicant cannot bring a copyright infringement claim, the court held, citing 17 U.S.C. § 411(a).

Copyright management information. The Greens alleged that West and the other defendants provided false copyright management information when they failed to include N.G. and Andreia as authors and copyright owners of "Ultralight Beam" and "The Life of Pablo," or the terms and conditions for the defendants’ use of the Green Samples. The defendants sought dismissal of the claim, arguing that the copyright information was not "conveyed in connection" with the song or album, but rather displayed separately on a publicly available website. Relying on a June 2017 decision of the Northern District of Illinois holding that a plaintiff need not allege that false copyright information was "conveyed with copies of the work" and need not plead with particularity how defendants communicated false information when that information is "exclusively" within defendants’ knowledge (Carter v. Pallante, 256 F. Supp. 3d 791), the court declined to dismiss. The complaint, taken as true in the light most favorable to the Greens, created a material fact issue as to when, how, and to whom the defendants communicated the allegedly false information.

Quantum meruit. The Greens alleged that they conferred the benefit of the Green samples on West, who realized a benefit from those samples by recording, selling, licensing, and performing music containing them. The Greens also alleged that the inequity of West retaining the benefits without paying for them supports a quantum meruit claim. But the court found that this state law claim, concerning Copyright-protected works of authorship, is preempted. The rights that the Greens were seeking to vindicate—the right to benefit from their copyrighted samples—are not "qualitatively different" than those that the Copyright Act protects, the court held.

This case is No. 2:19-cv-00366-RMG.

Attorneys: Jason Scott Luck (Garrett Law Offices, LLC) for Andrew Green. Christopher Jumin Lee (Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C.) for Kanye West., Getting Out Our Dreams II LLC and UMG Recordings Inc a/k/a Universal Music Group.

Companies: Getting Out Our Dreams II LLC; UMG Recordings Inc a/k/a Universal Music Group

MainStory: TopStory Copyright SouthCarolinaNews

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