United States: In Brief: False Authorship: Lawsuit Hits West Publishing In The Pocket

Last Updated: June 22 2011
Article by Gergana Miteva

This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.

- False authorship lawsuit hits West Publishing in the pocket parts. Recently, two law professors successfully sued West Publishing (Thomson Reuters Legal) for defamation after the publisher falsely attributed to them authorship of a pocket part treatise update. While Professors David Rudovsky and Leonard Sosnov had in fact authored the treatise and several annual updates after that, they had refused to write the update in question because West had reduced their compensation. After a jury trial, the plaintiffs each received $90,000 in damages and $2.5 million in punitive damages. A Pennsylvania district court subsequently denied West's motion notwithstanding the verdict, but did reduce the punitive damages award to $110,000 each because there was no jury finding that West acted with malice. The court order requires West to choose between either accepting the revised award, or pursuing its motion for a new trial, but not both.

- ASCAP appeals to Supremes for review of "public performance" decision. The American Society of Composers, Authors and Publishers ("ASCAP") petitioned the Supreme Court to review the Second Circuit Court of Appeals' ruling that downloading musical works over the Internet does not constitute public performance under the Copyright Act. The Second Circuit concluded that the Act's "public performance" factor requires "contemporaneous perceptibility" of the work, such as Yo-Yo Ma "draw[ing] the bow across his cello," while downloading a song is merely transmitting music to a potential listener. The court drew a distinction between a download and a streaming transmission over the Internet, explaining that the latter is a public performance because the user perceives the song simultaneously with the transmission. Further, the download itself does not play the file and the user must take additional action to experience the work. In its petition for cert., ASCAP argues that downloading a music file amounts to public performance for which the author is entitled to additional compensation (artists already collect royalties for copies created by the download). ASCAP maintains that the Second Circuit's interpretation of the Act was inaccurate because a public performance can occur even if listeners receive it "at different times" and that the Circuit court had created an "unworkable and inequitable statutory scheme that fails to account for emerging technologies."

- BMG faces class action lawsuit over digital royalties. Rob Zombie, Whitesnake, and other music performers are leading a federal class action lawsuit against UMG Recordings, Inc., claiming the world's largest record company is shortchanging them on royalties from digital downloads and cell phone ringtones. The musicians estimate they have been underpaid by tens of millions of dollars per year and seek restitution and declaratory relief entitling them to future royalties. According to the complaint, UMG arbitrarily labels digital music downloads from online music providers like iTunes as a "sale" rather than a license and pays the artists a lesser royalty than the standard 50% payable in connection with a license to a third party. The class action follows a Ninth Circuit ruling that UMG underpaid Eminem and other performers for digital music download royalties. Rob Zombie's lawsuit is based on the same grounds, which tips the scales in the musicians' favor, especially after the Supreme Court refused to review the Eminem decision. As the New York Times predicted in the wake of that ruling, its implications may indeed prove life changing for many aging musicians.

- Polo wears Ralph Lauren. The United States Polo Association ("USPA") will not be able to place the word "Polo" next to its Double Horsemen logo on a new line of perfume for men because a New York court ruled that such use infringes on Polo Ralph Lauren's ("PRL") trademark. Federal Judge Robert Sweet found that USPA's logo featuring two men on horses swinging polo sticks (PRL's features one player in a similar posture) used in conjunction with the word "Polo" is likely to cause consumer confusion with the clothing designer's perfumes. USPA initially filed the suit in 2009 seeking a declaratory judgment that its logo does not infringe PRLs' trademark. The court denied USPA's request and instead granted PRL a permanent injunction against USPA's use of the logo. In its ruling, the court relied on PRL's consumer survey showing confusion in 27.8% of the participants. The court also determined that PRL's trademark is inherently distinctive and said that the USPA's choice of colors and wording on the product suggested that they "intended to capitalize on PRL's reputation and goodwill-instead of building their own."

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This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

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