July 2012 – 6th Circuit Copyright Litigation Update

The 6th Circuit Court of Appeals and its subordinate district courts issued a total of three decisions involving a substantive discussion of copyright-related claims in the month of July 2012:

Personal Jurisdiction

Martin v. Candle Queen Candles, LLC, No. 3:12-CV-00125-H (W.D. Kent. July 19, 2012)

Martin used to work for Candle Queen in Kansas.  During that time, Martin created a piece of visual art called “Flower Burst.”  Candle Queen bought it, and Martin moved to Kentucky.  Soon thereafter, Martin discovered that Candle Queen had painted a mural that she alleged copied the Flower Burst, and had posted photos of the mural on its website.  MArtin sued in her home district of Kentucky, and Candle Queen challenged personal jurisdiction.

The court dismissed the claim.  It first rejected Martin’s assertion of general jurisdiction.  Even though Candle Queen employed two Kentucky sales reps and had an interactive website accessible in Kentucky, the court found this activity to de minimus and passive to support jurisdiction.

Martin also asserted specific jurisdiction under the “effects test” of Calder v. Jones.  But the court found that “the principal act of the alleged copyright infringement took place in Kansas, and its subsequent Internet presence was neither exaggerated in nor exclusive to Kentucky.”

Sound Recordings; Compilations

Sun Entm’t Corp. v. Music World Music, LLC, No. 3:11-00625 (M.D. Tenn. July 10, 2012)

Plaintiff owns the copyright in the sound recordings contained in “Johnny Cash — The Complete Sun Recordings — 1955-1958.”  It licensed to Defendant the tight to remix these songs on a new album.  Defendant would own the rights to this album, but Plaintiff retained the rights in the original compositions.  Defendant licensed its remixes without paying royalties, so Plaintiff alleged both copyright infringement and breach of contract.

Plaintiff lost its copyright claim because of the nature of the rights that it owned.  It held a copyright only in the compilation, not the underlying recordings.  Plaintiff tried to bootstrap its compilation copyright into ownership of the individual recordings, but the Supreme Court, Sixth Circuit, and Copyright Act have all forbidden this.  “Were the Court to accept Plaintiff’s position that it has a protectible interests in the sounds recordings contained in the compilation, it would have to ignore not only the provisions of 17 U.S.C. § 301, which disallows copyright protection for “sound recordings fixed before February 17, 1972,” but also the Copyright Act’s language dealing with compilations, which states that “[t]he copyright in [a compilation] is independent of, and does not affect or enlarge the scope . . . of any copyright protection in the preexisting material.” 17 U.S.C. § 103(b) (italics added).”

Public Performance

BMI v. Bar None of Reynoldsburg, Inc., No. 2:11-cv-00625 (S.D. Ohio July 27, 2012)

This is a garden-variety enforcement action by a performance rights agency against a bar in Reynoldsburg, Ohio.  The agencies file such lawsuits as a last resort when food and drink establishments refuse to sign a license agreement covering the music they publicly perform.  This bar ignored over 70 phone calls and 7 visits from a BMI representative over the course of three years.  Thus, the court awarded all the relief BMI requested, including a permanent injunction, statutory damages of $12,000, and an award of BMI’s costs and attorneys’ fees, against both the bar and its owner.