David M. Given
David is the managing partner and general counsel as well as a co-founder of the firm. He began his career at the law firm of the esteemed New York trial attorney Louis Nizer. His current practice spans both commercial and class action litigation as well as transactional matters, the latter with a special emphasis on entertainment, technology and intellectual property law.
Over the past dozen years, David has served in several leadership roles in complex class action litigation. He also has a wide-ranging entertainment law practice, encompassing both litigation and transactional work. His experience spans all areas of the music industry, with particular expertise in intra-band dynamics and talent management. David has also been called upon to counsel and advise individuals and estates on the disposition of their creative property (i.e., songs, recordings, literary material, visual art, etc.) and royalty interests, including on the subject of copyright reversion.
For a two-year term, David served as chairman of the American Bar Association's Forum on the Entertainment and Sports Industries. He has been a panelist and featured speaker at numerous entertainment, technology and video game industry events. In 2007, he co-chaired with Microsoft's lead in-house copyright attorney the LSI-sponsored Entertainment Technology Law Summit in Seattle. That same year, the American Bar Association chose him to present its annual Presidential Showcase Program, "Privacy, Copyright and Parental Control in the Age of YouTube, MySpace and Beyond.” And he was a featured speaker over the years at the South by Southwest Interactive/Music Conference in Austin, Texas, on topics ranging from recent developments in music industry litigation to the future of cloud computing.
For four consecutive spring semesters, David lectured in law at the University of California at Berkeley, School of Law (Berkeley Law), where he helped develop and implement the core curriculum for the school's entertainment law class. David has also guest lectured at the law schools of the University of San Francisco, Pepperdine and Stanford University, among others.
-
Cornell University (A.B. - French)
University of Virginia School of Law (JD)
-
Author v. Major Book Publisher. In continued representation of heir of generational cultural figure, completed new arrangement with one of the world’s largest publishing houses covering entire body of author’s two dozen or so literary works, almost all of which remain in print. Deal was precipitated by copyright termination notices prepared by firm reclaiming rights on heir’s behalf to some of author’s most important autobiographical and other works. Parties closed after months-long negotiation, resetting the economic terms of author’s original writer’s agreement, and resulting in substantial uplift of heir’s income. New agreement included profit participation and milestone payments as well as certain approval and consultation rights over other uses of author’s literary works.
Multi-Platinum Recording Act v. Record Label. Led year-long renegotiation of multi-platinum selling rock band’s omnibus agreement with record label, triggered by copyright termination notices prepared by the firm for band members on the band’s biggest-selling albums. New deal reset the band’s relationship with its record label on worldwide basis (band was a chart-topper in 14 countries) and included uplifts of royalty rates paid to the band on all formats. Label also made substantial non-recoupable advance to re-up with band and secure ongoing rights to recorded music catalog.
Record Producer v. Singer-Songwriter. Represented famed record producer who worked with Bay Area singer-songwriter, propelling him to considerable renown, including multiple Grammy nominations and MTV Music Video awards, in negotiations over entitlements to copyrights and royalties in recordings appearing on artist’s first seven albums. Client was first approached by artist manager regarding potential buyout. Upon engagement by client and subsequent due diligence, firm discovered various accounting discrepancies and questionable business practices relating to the client’s copyright interests, leading to an enhanced purchase price three times greater than artist’s initial offer. Firm handled all aspects of deal, from due diligence to close.
Anonymous v. Anonymous. Settlement of just under $9 million in a “Me Too” sexual harassment case. The client was a foreign national working for a foreign subsidiary of an American company. Her supervisor, who was a foreign national but also in the worldwide leadership group of the company, harassed the client for months, forcing her into a sexual relationship, and attempting to get her to provide sexual favors to others to obtain business for the company. The matter presented complex issues of foreign, U.S. and international law. It settled confidentially in late 2019 after a two-day mediation and before the filing of a lawsuit.
Smith v. AMC Network. Represented comic book writer in copyright infringement claim against makers of Fear the Walking Dead. Case settled on confidential terms at mediation shortly after firm prevailed on defendants’ motion to dismiss claiming a lack of substantial similarity between the two works in question.
Faith No More v. Manifesto Records. Represented iconic hard rock band in claim against record label that it was dealing in band’s debut album We Care A Lot without the right to do so. Case settled on confidential financial terms at mediation shortly after firm prevailed in the Second District Court of Appeal on defendants’ copyright preemption argument and anti-SLAPP motion. Settlement included return by defendants of all unsold inventory together with entry of court order permanently enjoining defendants from dealing in any way with album.
Estate of Singer-Songwriter v. Big Three Music Publisher. Represented the heir of legendary singer-songwriter with hit song catalog (including a 1967 chart-topper covered by one of the preeminent recording artists of that era) in sale to one of the world’s largest music publishers. Transaction was precipitated by publisher following audit initiated by firm on heir’s behalf, which revealed the publisher’s practice of “double-dipping” in the accounting of foreign publishing royalties (i.e., taking two fees on one collection of money). Firm negotiated all aspects of the multi-million dollar deal, closing within a few months of the firm’s engagement by client.
Opperman et al. v. Path et al. Served as co-lead counsel in class action litigation against Apple and a host of App Developers over the alleged surreptitious harvesting of consumers’ contact information; obtained $5.3 million settlement approved by court in March 2018.
In re: Digital Download Litigation. Served as co-lead counsel in two class actions against UMG/EMI and Warner Music over the alleged systematic failure to account properly for income derived from digital downloads and ringtones; obtained $23 million cumulatively-valued settlement and prospective royalty adjustments on behalf of recording artists, producers and others.
In re: Checking Account Overdraft Litigation (Multidistrict Litigation). Class action litigation against major US banks for their overdraft fee practices; firm served as co-team leader and class counsel, obtaining over $430 million in settlement proceeds on behalf of three different banks’ customers.
The Lovin’ Spoonful v. Sony Music. Represented members of 60s folk-rock group and its record producer in claims against major record label relating to label’s royalty accounting practices, including its treatment of income derived from digital distribution of the group’s recorded music via iTunes, Spotify, Pandora and other music ISPs. Case settled on confidential financial terms four months after filing following two-day mediation in New York City.
Medical Self Care v. NBC. Prevailed on summary judgment in dispute regarding the assignment of almost $10 million in advertising time on the NBC television network.
Black v. Lucasfilm. Defended Lucasfilm Ltd. against claims for $4 million in unpaid royalties to plaintiff claiming rights to Raiders of the Lost Ark book; settlement entailed dismissal of case and no monies paid.
Dunbar v. Gottwald. Represented songwriters for the pop group THE RUBINOOS in lawsuit against pop superstar AVRIL LAVIGNE and her producer and co-writer Lukasz (“DR. LUKE”) Gottwald for copyright infringement, alleging that the Lavigne/Gottwald song “Girlfriend,” which was a No. 1 worldwide hit song for much of 2007, infringed on The Rubinoos’ 1979 hit song “I Wanna Be Your Boyfriend."
Estate of Jerry Garcia. Following successful representation of Carolyn “Mountain Girl” Garcia in three-week bench trial to enforce five million dollar marital settlement agreement with her former husband (which his widow refused to honor), firm assumed role in advising the majority of Jerry Garcia’s heirs during the administration of his estate. Firm eventually played a central role in creating the Jerry Garcia Estate LLC, which controlled and managed Jerry’s recordings, artwork and other intellectual property, as well as his continuing royalty interests derived from the Grateful Dead, after his estate closed. That entity later morphed into the Jerry Garcia Family LLC, which continues to control and manage the clients’ rights and entitlements in Jerry’s artistic and creative legacy.
-
State Bar of California
State Bar of New York
American Bar Association
- Section on Litigation
- Section on Intellectual Property
- Forum on Entertainment & Sports Industries (Chair, 2000-02)
Bar Association of San Francisco
- Entertainment and Sports Law Section (Chair, 1997-99)
-
"US copyright termination: re-monetizations final frontier," Journal of Intellectual Property Law & Practice, 2016, Vol. 11, No. 11: 826-832.
"U.S. Copyright Termination: Remonetization's Final Frontier," in The Monetization of the Global Music Business Ch. 3.5 at 292 (Marcelo Goyanes & William Lewis eds., 2016).
"Music in the Cloud -- A Business and Legal Primer," Entertainment and Sports Lawyer (Winter 2012).
"Clash of the Titans: Viacom v. YouTube," Daily Journal (January 25, 2010).
"A Modern Pandora's Box: Music, the Internet and the Dilemma of Clearing Public Performance Rights," Entertainment and Sports Lawyer (Fall 2008).
"Online Music Comparisons, A Practical Guide," Entertainment and Sports Lawyer (Fall 2000).
First Amendment Protection for Trademark Use, Practicing Law Institute (1998).
Review of Law and Business of the Entertainment Industries (Third Edition), Entertainment and Sports Lawyer (Spring 1996).
"Plus Ca Change, Plus C'est La Meme Chose": European Coproduction Remains Viable, For Now," Entertainment and Sports Lawyer (Fall 1995).
Interview with Frank Zappa, Entertainment and Sports Lawyer, Vol. 9, No. 2, (Summer 1991).
-
Crowley v. Jones, 608 F. Supp.3d 78 (S.D.N.Y. 2022)
Krisko v. Marvel Entm't, 473 F. Supp. 3d 288 (S.D.N.Y. 2020)
Samsky v. State Farm, 37 Cal.App.5th 517 (2019)
Smith v. AMC Networks, 129 U.S.P.Q.2d 1366 (N.D. Cal. 2019)
Opperman v. Path, 205 F.Supp.3d 1064 (N.D. Cal. 2016)
One Media IP v. S.A.A.R., 122 F.Supp.3d 705 (M.D. Tenn. 2015)
Opperman v. Path, 84 F.Supp.3d 962 (N.D. Cal. 2015)
Stewart v. Screen-Gems-EMI Music, 81 F.Supp.3d 938 (N.D. Cal. 2015)
In re Checking Account Overdraft Lit., MDL No. 2036, 674 F.3d 1252 (11th Cir. 2012)
USA Technologies v. Doe, 713 F.Supp.2d 901 (N.D. Cal. 2010)
Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004)
Mendler v. Winterland Production, 207 F.3d 1119 (9th Cir. 2000)
Dead Kennedys v. Biafra, 37 F.Supp.2d 1151 and 46 F.Supp.2d 1028 (N.D. Cal. 1999)
Systems XIX v. Parker, 30 F.Supp.2d 1225 (N.D. Cal. 1998)
Ahern v. Scholz, 85 F.3d 774 (1st Cir. 1996)
-
State Bar of California
State Bar of New York
Southern, Central, and Northern Districts of California
Southern District of New York
Ninth Circuit
-
Alternative Dispute Resolution in the Sports and Entertainment Industries. Panel moderator. ABA Forum on the Sports and Entertainment Industries — 2023 Annual Meeting. (October 7, 2023; Las Vegas, Nevada)
NFT Litigtation. ABA Forum on the Sports and Entertainment Industries — 2022 Annual Meeting. (October 7, 2022; Las Vegas, Nevada)
Virginia Sports and Entertainment Law Journal Symposium. (October 20, 2021; Charlottesville, Virginia)
Recent Developments in Music Copyright Law. Intellectual Property Section of the Bar Association of San Francisco and the Copyright Society of the U.S. (September 12, 2018; San Francisco, California)
Death, Taxes and Legacy Management. SXSW Conference and Festival (March 17, 2017; Austin, Texas)
Monetisation of the Global Music Business - From Creators to Major Industry. MIDEM Conference. (June 4, 2016; Cannes, France)
Workshop on Copyright Termination of Transfer. Berkeley Center for Law & Technology (October 30, 2015; UC Berkeley Law)
Issues and Case Law Updates in Entertainment Litigation. 6th Annual International Legal Symposium on the World of Music, Film, Television, and Sports (April 23, 2015; Miami, Florida)
Copyright Policy, Creativity, and Innovation in the Digital Economy. Department of Commerce Internet Policy Task Force Green Paper Roundtable on Remix, Sampling, and Mashups (July 30, 2014; UC Berkeley Law)
Actions, Reactions and Class Actions: Music Business Litigation. SXSW Conference and Festival (2014; Austin, Texas)
Fast Forward! Protecting and Selling Music in the Digital Age. Berkeley Center for Law & Technology, California Lawyers Association, and Sports and Entertainment Law Society of Berkeley Law (January 2013; UC Berkeley Law)
Run for Cover: The Future of Cloud Commerce. SXSW Conference and Festival (2012; Austin, Texas)
The Impact of Recent Big Music Cases. SXSW Conference and Festival (2011; Austin, Texas)
Is Copyright Law Harming or Helping the Music Industry? Northern California Chapter of the Copyright Society of the U.S.A. (February 21, 2011)
Clash of the Titans: Viacom v. YouTube -- Will Copyright Law Undo Google's Internet Juggernaut? American Bar Association Forum on the Entertainment and Sports Industries (August 6, 2010; San Francisco, CA)
Recent Developments in Digital Copyright Litigation. Bar Association of San Francisco (November 20, 2008)
The Ongoing Transformation of the Music Business: Lessons from the History of New Approaches for Online Distribution and Industry Responses to New Technologies and Players. Entertainment Technology Law Summit (August 16-17, 2007; Seattle, Washington)