Category Archives:Copyright Infringement

Ariana Grande sued for copyright infringement over “One Last Time” song

Recently, Ariana Grande and David Guetta, among other Defendants, were sued for copyright infringement over the song “One Last Time.”[1] The lawsuit was brought by musician Alexander John Greggs, who is professionally known as “Alex Greggs” or “Alex G.”[2] The Plaintiff alleges that the Defendants’ song “One Last Time” is substantially similar to his “Takes All Night” song.[3] The Complaint alleges that the “most immediately apparent similarities” are the chorus and/or “hook” of each song, since the “choruses in the two songs use a similar melodic contour.”[4] The Complaint alleges claims for direct, contributory, and vicarious copyright infringement.[5] Further, Plaintiff is seeking injunctive relief, damages and attorneys’ fees and costs.[6]

In order to show infringement the Plaintiff will need to establish substantial similarity between the two songs. In addition, the Plaintiff’s vicarious and contributory infringement claims seek to hold one or more of the Defendants who were not direct infringers liable. Plaintiff’s vicarious infringement claim requires a showing that one or more of the Defendants 1) had the right and ability to control the direct infringer’s acts; and 2) received a direct financial benefit from the infringement. The Plaintiff’s contributory infringement claim requires a showing that one or more of the Defendants 1) had knowledge of the infringement; and 2) induced, caused or materially contributed to the infringement.

Please contact our office if you have any questions regarding the information in this article.

Daniel Devine, Esq.
Santucci Priore, P.L.
Shareholder

[1] See, Greggs v. Ariana Grande-Butera, et. al., Case No. 2:16-cv-06320, at Docket Entry #1 (August 23, 2016).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.

HBO prevails in copyright infringement lawsuit over the show “Ballers”

Earlier this week, the Central District Court of California dismissed a lawsuit brought by screenwriters Everette Silas and Sherri Littleton (“Plaintiffs”) against HBO, Dwayne Johnson and Mark Wahlberg, among others (“Defendants”).[1] As discussed in a previous blog entry, Plaintiffs brought a lawsuit against the Defendants claiming that Defendants committed copyright infringement by producing the HBO show “Ballers,” as a result of alleged similarities from Plaintiffs’ trailer, screenplay and treatment entitled “Off Season.”[2] The Plaintiffs’ Complaint alleged that the show “Ballers” contains several similarities to Plaintiffs’ “Off Season,” namely the physical appearance of characters and their vehicles, plot, scenes and story lines.[3] The Defendants filed a motion to dismiss the Complaint arguing that, while Defendants had access to Plaintiffs’ “Off Season,” the two works are not sufficiently similar to permit a finding of copyright infringement.[4]

The Plaintiffs attempted to have the Court limit its analysis of the similarities between the two works by only considering the script for “Ballers” instead of the actual television series.[5] The Court rejected Plaintiffs’ position and instead took into consideration the “Ballers” television series.[6] The Court compared the plot, setting, characters, theme, mood, dialogue and pace of the two works to see if “Ballers” was substantially similar to Plaintiffs’ “Off Season.”[7] In doing so the Court found that two works were not substantially similar noting that while there were generic similarities in the two works, several of the specific details were different, namely that the main star of “Ballers” is a retired football player and involved in a wealth management group, while the main star in “Off Season” is an active football player and is a nightclub owner, even though both of the works take place in Miami, Florida and are set in the football offseason.[8] The Court then granted Defendants’ motion to dismiss the Complaint and found that the dismissal would be with prejudice since the defects in Plaintiffs’ Complaint could not be cured by amendment.

Please contact our office if you have any questions regarding the information in this article.

Daniel Devine, Esq.
Santucci Priore, P.L.
Shareholder

[1] See, Silas, et. al. v. Home Box Office, Inc., et. al., No. CV-15-9732-GW (FFMx) , at Docket Entry No. 32 (July 25, 2016).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.

Vimeo partially prevails in copyright lawsuit over user posted music videos

Recently, Internet Service Provider Vimeo partially prevailed in a copyright infringement lawsuit filed against it.[1] The Plaintiffs in this case alleged that their copyrights were infringed as a result of music videos being posted to Vimeo’s website by its users.[2] Vimeo invoked the safe harbor provisions provided to it under the Digital Millennium Copyright Act, 17 U.S.C. § 512(c).[3] Under the safe harbor provisions, Internet Service Providers, such as Vimeo, can be protected from liability for copyright infringement as a result of their users uploading infringing content on their site if the service provider does not have knowledge of the infringement.[4]

On summary judgment, the District Court ruled in the Plaintiffs’ favor on pre-1972 videos finding that the safe harbor provisions did not apply to them.[5] The District Court ruled in Defendant’s favor as to several of the post-1972 videos where there was a lack of evidence showing Vimeo employees viewed them, but noted that there was a question as to whether Vimeo possessed knowledge of circumstances that made infringement apparent on some videos which could not be determined on summary judgment.[6]

Vimeo filed an appeal to the Second Circuit Court of Appeals, who reversed the District Court’s finding that the safe harbor provisions did not apply to pre-1972 videos.[7] The Second Circuit found that pre-1972 videos were not covered under federal law, but that state law provided safe harbor protection.[8] The Second Circuit supported its holding by stating that making service providers “subject to liability under state copyright laws for postings by users of infringements of which the service providers were unaware would defeat the very purpose Congress sought to achieve in passing” the safe harbor provision.[9] The Second Circuit further warned that service providers would be required to incur substantial costs to monitor postings of pre-1972 videos, while noting that many popular recordings from artists such as Elvis, Marvin Gaye and the Beatles, were made prior to 1972.[10]

The Second Circuit also found that “some viewing by a service provider’s employee of a video that plays all or virtually all of a recognizable copyrighted song” is not sufficient to establish knowledge and otherwise disqualify a service provider from the safe harbor protection.[11] The Second Circuit provided several reasons for its finding, namely that more facts are needed to determine how long the viewing was and for what purpose the employee viewed the videos.[12] The Second Circuit noted that in order to be disqualified from the safe harbor protection a service provider “must have actually known facts that would make the specific infringement claimed objectively obvious to a reasonable person.”[13] There is also no requirement that a service provider’s employees affirmatively seek indications of infringement.[14]

The Second Circuit also rejected the Plaintiffs’ argument that Vimeo was willfully blind as to the alleged infringements because of Vimeo’s policies to monitor posted videos for infringement of visual but not audio content and because Vimeo allegedly encouraged its users to post infringing videos.[15] The Second Circuit specifically noted that “a handful of sporadic instances (amongst the millions of posted videos) in which Vimeo employees inappropriately encouraged users to post videos that infringed music . . . cannot suffice to justify stripping Vimeo completely” of the safe harbor protection.[16]

This ruling appears to be a significant victory for service providers such as Vimeo and makes it difficult to breach the safe harbor protection provided to service providers under the Copyright Act. However, some issues still remain unresolved in this case, such as whether Vimeo can be held liable under the specific standards set forth by the Second Circuit, which may need to be resolved through a trial. Please contact our office if you have any questions regarding the information in this article.

Daniel Devine, Esq.
Santucci Priore, P.L.
Shareholder

[1] See, Capitol Records, LLC, et. al. v. Vimeo, LLC, No. 14-1048, 2016 WL 3349368 (2d Cir. Jun. 16, 2016).
[2] Id. at 2016 WL 3349368 at *1
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at *2.
[8] Id. at *6.
[9] Id. at *8.
[10] Id. *7-10.
[11] Id. at *2, 13.
[12] Id. at *13.
[13] Id. at *11.
[14] Id.
[15] Id. at 14-15.
[16] Id. at 15.