entertainment law news
August 19, 2015 – Federal district court judge Lucy D. Koh has set an August 2016 trial date in a copyright infringement action brought by firm client Andrew Paley, a GRAMMY and EMMY award-winning musician and composer, against the producers of a popular online animated children's television series called TUTITU. Exclusively aired via YouTube, with its own YouTube channel, over 1.5 million YouTube subscribers and reported views in excess of one billion, the series featured (until recently) theme music Paley says was based on his song "Breakfast at Stubbs," a version of which was itself featured in Paul Bartel's motion picture "Shelf Life," released in 1993. The firm has subpoenaed YouTube for financial and other data expected to reveal the inner workings of YouTube's compensation to content creators like TUTITU's producers. Judge Koh also set a November deadline for the parties to conduct a private mediation. A date for that event is pending.
August 7, 2015 – In a Memorandum Order issued today, Federal District Court Judge Aleta A. Trauger in Nashville sided with the firm’s client, Believe Digital (a digital music aggregator based in France), and its codefendant, SAAR (a music licensor based in Italy), granting dual motions to dismiss the copyright infringement complaint of plaintiff One Media IP (a U.K. entity) against them for lack of personal jurisdiction. Finding that One Media had “not demonstrated that Believe purposefully availed itself of the privilege of transacting business in Tennessee,” the court concluded that One Media “has not shown that it would be reasonable for the court to exercise personal jurisdiction over Believe.” In contrast to the firm’s briefing, the court characterized One Media’s submissions and factual contentions variously as “disingenuous,” “misleading,” “difficult to follow,” “vague,” "evasive" and “exaggerate[d]." The court pointed to “many instances” in which One Media “fudged the distinction” between entities formed in Tennessee and elsewhere to bolster its position that the case was rightfully before the Nashville court, and agreed with the firm’s suggestion that One Media “attempted. . .to manufacture an illusory present financial interest in this lawsuit" in a defunct Tennessee entity. Further proceedings in the action are pending.
July 17, 2015 – In a case of first impression under California’s Talent Scam Prevention Act, Los Angeles Superior Court Judge John P. Farrell overruled the demurrer of defendants to the complaint of the firm’s clients for violation of the Act, rejecting in their entirety defendants’ untimeliness arguments. The firm’s clients are a young aspiring singer-songwriter and her supportive father. They say that over a two-and-a-half year period they paid over $1.7 million to an alleged former “Backstreet Boy,” Sam Licata (a/k/aPhoenix Stone), and his wife, Sybil Hall, together with their related business entities, some or all of which consisted of supposed “advance fees” for their representation of the young woman in her music career. (Such fees are unlawful under the Act, giving rise to damages starting at three times the amount of the fees.) In their demurrer, defendants contended that a one-year statute of limitations applied to the claim. Drawing on its research of the Act’s legislative history, the firm made the case that a three-year limitations period should apply. Judge Farrell agreed with the firm, overruling the demurrer and ordering defendants to answer the complaint. The Court also set a jury trial date of next May in the case.
June 30, 2015 -- The firm prevailed today in the case of Wonderbread 5 v. Gilles, a matter pending before the Trademark Trial and Appeal Board, concerning a dispute over the band name "Wonderbread 5" and the filing of a trademark registration for that name by a disgruntled former band member following his exit from the band. The band (a popular San Francisco-based party band) sought to cancel that registration on grounds of prior use and fraud on the Trademark Office. In its 26-page decision, the TTAB vindicated the band's position in the matter, finding unequivocally that the band partnership owned the name and that the former band member's trademark registration was invalid and must be cancelled.
Following breakthrough victory for songwriters, EMI Music Publishing agrees to settle "Daydream Believer" case
May 29, 2015 – In the wake of an early defeat, EMI Music Publishing has agreed to settle firm client Stephanie Ford Stewart’s case against it for unfair business practices in connection with its policy and practice on the payment of foreign royalties. The client, widow of John Stewart – former Kingston Trio member and composer of The Monkees’ hit song “Daydream Believer” – contended that EMI was unfairly paying its own wholly-owned foreign affiliates (in other words, itself) half of the royalties they collected abroad for “Daydream Believer.” EMI previously won similar cases against the heirs of Duke Ellington and Bert Berns (“Twist and Shout”), and was confident those precedents would control here; however, firm lawyers Nick Carlin and David Given persuaded the Court that Stewart sufficiently alleged that EMI’s conduct was actionable and that the case should go forward on the merits of the client’s claims. Rather than risk letting a jury evaluate the unfairness of its conduct, EMI quickly agreed to settle the case. The terms of the settlement are confidential. Any composers or songwriters who suspect they are victims of similar misconduct by their music publishers are invited to contact the firm.
Firm launches infringement case against producer of animated children's show
April 29, 2015 -- Firm partners Nick Carlin and David Given filed a complaint for copyright infringement on behalf of Emmy and Grammy award-winning musician and composer Andrew Paley against Twist Animation, Ltd., the producer of the wildly popular online animated children’s series TUTITU TV, and against its principals, for using as its ubiquitous theme music a composition that Paley contends infringes his original song “Breakfast at Stubbs.” Paley’s song was first used in the film Shelf Life, directed by Paul Bartel (Eating Raoul), which hit theatres in 1993 and went on to become a cult classic. Twist began using its theme music for the TUTITU TV programming in 2010, releasing over 850 videos mostly through YouTube; those videos have since been seen a “staggering one billion” times, according to Twist, and the TUTITU TV channel on YouTube has garnered over 1.5 million subscribers. Assignment of the case to a federal district court judge is pending.
Settlement reached in digital download case against UMG, Capitol Records
April 14, 2015 – Firm partner David Given joined other court-appointed lead counsel today in theirmotion for preliminary approval of an $11.5 million settlement reached on behalf of a group of recording artists and others in a class action case against UMG Recordings and Capitol Records over their treatment of income derived from digital downloads and ringtones. The settlement, which followed more than two years of negotiations and four years of hard-fought litigation, includes a fund for claims by class members for past due amounts as well as an increase of 10% in download and ringtone royalty rates. The firm’s clients include the Rick James Estate, David Coverdale (Deep Purple, Whitesnake, Coverdale/Page) and Rock and Roll Hall of Fame member Dave Mason (Traffic, Dave Mason Band), who served as class plaintiffs in the case. The court has set a hearing on the motion for April 28th.
UPDATE – April 28, 2015 – The court heard and granted plaintiffs’ motion for preliminary approval today. At the hearing of the matter, Federal District Court Judge Susan Illston voiced praise for the “wonderful job” the firm and its co-lead counsel did in the case. In her order entered later in the day, Judge Illston appointed the firm (together with others) class counsel with respect to all further proceedings and scheduled a final approval hearing for April of next year. Notice to the class is expected to commence shortly.
Firm partner to speak at international law symposium on developments in entertainment law litigation
April 13, 2015 -- Firm partner David Given has been invited to speak at the 6th Annual International Law Symposium on the World of Music, Film, Television, and Sports to be held at the Palms Hotel in Miami Beach, Florida. David will appear on a panel discussing issues and case law updates in entertainment litigation, with a special emphasis on the proceedings and outcome in the recent "Blurred Lines" song copyright infringement case. (The firm has prosecuted several such cases over the years, and has considerable expertise in this area.) The event, which runs for two days April 23th and 24th, is sponsored by the American Bar Association Forum on the Entertainment and Sports Industries, which David chaired in the early 2000s.
Federal court green-lights Daydream Believer's case for unfair business practices
March 2, 2015 -- In a carefully reasoned and groundbreaking 36-page decision issued today, U.S. Magistrate Judge Jacqueline Scott Corley agreed with the arguments made by firm partners Nicholas Carlin and David Given and gave the go-ahead to a lawsuit filed by firm client Stephanie Ford Stewart against EMI Music Publishing, the world’s largest music publisher, challenging EMI’s practice of paying its own foreign affiliates 50% of foreign royalties before remitting the balance to itself, to split 50/50 with its legacy songwriters. Stewart, the widow of John Stewart, former member of the Kingston Trio and composer of hit tunes such as The Monkees’ classic "Daydream Believer," alleges that EMI's self-dealing results in a drastic reduction in her (and others') share of such royalties. Judge Corley ruled that Stewart adequately alleged that EMI engaged in unfair business practices and breached the covenant of good faith and fair dealing, stating “the implied covenant claim asserts that Screen-Gems EMI has wronged Plaintiff by paying fees to foreign sub-publishers that are grossly above market rate, thereby depriving Plaintiff of the full benefit of the 50% net receipts royalty.” Judge Corley also ruled that Stewart adequately alleged that Screen-Gems EMI, the U.S. EMI entity that Stewart’s publishing contract was with, and the EMI foreign affiliates currently retaining 50% of the foreign royalties, are in reality a single enterprise and that money earned by one is money earned by all. Stewart's case is the first in the U.S. to successfully challenge the practice of music publishers double dipping in the collection of foreign royalties for legacy songwriters with so-called "net receipts" language in their publishing agreements. In a U.K. case from the 1980s, Elton John prevailed against his music publisher on similar claims; however, in this country, songwriters have struggled. In denying EMI’s motion to dismiss Stewart’s case, Judge Corley noted that none of the U.S. cases alleged, as Stewart does here, that the EMI entities were a single enterprise, or that EMI breached the covenant of good faith and fair dealing.
Model seeks to squash grape growers using her image without permission
October 30, 2014 -- Firm partners Nick Carlin and David Given have filed a complaint on behalf of firm client, Cyndra Busch, a model and actress, against grape producers Jakov Dulcich & Sons and Sunlight International Sales, for violation of her right of publicity. The complaint alleges that defendants have used (and continue to use) a photograph of Ms. Busch as the face of their "Pretty Lady" brand grapes without Ms. Busch's knowledge or consent. Her image has become so closely associated with the grapes that the company's website describes her as their "favorite lady," who has "become a recognized symbol of quality." The complaint seeks damages as well as an injunction. The firm has extensive experience in right of publicity cases.
Daydream Believer says EMI unfairly double dipping
September 29, 2014 -- Firm partners Nicholas Carlin and David Given filed a lawsuit in Marin County Superior Court on behalf of Buffy Stewart, the widow of songwriter and former Kingston Trio member John Stewart, against EMI Music Publishing, for breach of contract and breach of the covenant of good faith and fair dealing in connection with EMI’s royalty accounting for the mega-hit song Daydream Believer, made famous by the Monkees. The song was originally written about Ms. Stewart. The lawsuit alleges that EMI has engaged in unfair self-dealing in connection with the collection of royalties in foreign countries, in that EMI uses its own foreign subsidiaries to collect the royalties, and unfairly charges EMI songwriters such as Stewart 50% of such collections, instead of the usual market rate of 10%.
Firm opposes claims in Brian Jonestown Massacre copyright dispute
August 18, 2014 -- Partner David Given today prevailed on a motion to strike musician Jeffrey Davies’ answer and dismiss his counterclaims against firm client Anton Newcombe, a/k/a The Brian Jonestown Massacre. Through the lawsuit, Newcombe seeks a ruling that – contrary to Davies’ contention that he co-authored many of BJM’s musical works – Davies neither authored the works (with the exception of three songs) nor has any ownership interest in them. Davies attempted to assert counterclaims against Newcombe for, among other things, misappropriation, fraud, and copyright infringement. Just as he did during the previous round of motion practice Magistrate Judge Nathaniel Cousins of the Northern District of California ruled in Newcombe’s favor on every issue, holding that many of Davies’ state-law claims are preempted by the Copyright Act and that he failed to properly plead other claims. The court granted Davies leave to attempt to cure the defects in his counterclaims but dismissed for good Davies’ requests for statutory damages, attorneys’ fees, and punitive damages arising out of Newcombe’s alleged copyright infringement.
Firm partner advocates for artists at Copyright Office policy reform panel
July 30, 2014 -- Partner David Given participated in a roundtable discussion on remixes hosted by the Copyright Office and the Department of Commerce’s Internet Policy Task Force at the University of California Berkeley’s School of Law (Boalt Hall). The discussion was the final in a series of four roundtables (earlier roundtables were hosted at Vanderbilt, Harvard, and Loyola law schools) which emerged from a Green Paper designed to elicit discussion surrounding whether the current legal framework for the creation of remixes unacceptably impedes such remixing. Among the panelists offering their perspectives were lawyers, law professors, academics, artists, and industry and non-profit representatives. As a tireless advocate for nearly 25 years on behalf of creators, David discussed, among other issues, the need to preserve artists’ ability to say “no” to uses of their copyrighted works, the functionality of the current system for those artists and their representatives, and the imperative role that factual, academic research must play in determining what policy changes, if any, are necessary.
Firm presses copyright ownership case for Anton Newcombe, a/k/a The Brian Jonestown Massacre
May 12, 2014 -- Partner David Given overcame numerous procedural obstacles in his efforts to protect singer-songwriter and recording artist Anton Newcombe’s rights to the body of work (compositions and sound recordings) created by him as the Brian Jonestown Massacre. In response to musician Jeffrey Davies’ claims that he coauthored many of the BJM works, PE&G filed suit on behalf of Newcombe, seeking a ruling that (with the exception of three songs) Davies neither authored the works nor has any ownership interest in them. Rather than respond to the merits of Newcombe’s complaint, Davies filed a series of motions seeking to dismiss the suit on a variety of grounds, to strike Newcombe’s allegations, and/or to transfer the case to Los Angeles. In a carefully reasoned 13-page decision issued today, Magistrate Judge Nathaniel Cousins of the Northern District of California ruled in Newcombe's favor on every issue, and ordered Davies to answer Newcombe's allegations. The judge also set the matter for a case management conference next month.
Firm stakes out trademark claim for client in band name dispute
March 31, 2014 -- Partner David Given today submitted his main (trial) brief in the case of Wonderbread 5 v. Gilles, a matter pending before the Trademark Trial and Appeal Board. The case concerns a dispute over the band name "Wonderbread 5" and the filing of a trademark registration for that name by a disgruntled former band member following his exit from the band in 2009. The band (a popular San Francisco-based party band) is seeking to cancel that registration on grounds of prior use and fraud on the Trademark Office. The former band member's brief is due shortly, after which the TTAB will take additional argument and issue a decision in the matter.
Firm partner speaks at South by Southwest Music Conference on industry class actions
March 14, 2014 -- Firm partner David Given appeared at the South by Southwest Music Conference, participating on a panel entitled "Actions, Reactions and Class Actions: Music Business Litigation." He gave an update on the recently-concluded settlement with Warner Music Group on the accounting to artists and other royalty participants for income derived from internet music providers, as well as on other pending class cases over the same subject against UMG Recordings and EMI Music/Capitol Records. The panel also reviewed recent developments in music industry litigation and the suitability of class actions in the entertainment industry.
Federal Court gives preliminary approval to settlement with Warner Music in digital download case
January 23, 2014 -- Federal District Court Judge Richard Seeborg today granted preliminary approval to a deal struck between a group of recording artists and Warner Music Group over the treatment of monies derived from digital downloads and ringtones. The settlement was concluded following a year of intense negotiations between a team of lawyers representing the record label and PE&G and the other lead law firms representing the artists. The deal provides an $11.5 million fund for pre-digital age artists to make a claim for past amounts based on their download activity together with an uplift in the royalty rate paid to artists by WMG on download income. Notice to the class and the period to make claims by class members has commenced. A final approval hearing is scheduled for October. For more information about the settlement, and what an artist may need to make a claim, click here.
Firm launches trademark infringement case for celebrated Bay Area gentlemen's club
September 18, 2013 -- Partner David Given was recently retained by the Gold Club of San Francisco in a case pitting it against a new gentlemen’s club opened last month in San Joseusing the client’s same name and similar marks and logos. The firm commenced the client’s case against the new club in federal court, followed by anexpedited motion for preliminary injunction. Following an hour-long hearing before Federal District Judge William H. Orrick, III, the court issued a carefully-reasoned 19-page decision, denying the requestfor a preliminary injunction but finding that the firm had raised “seriousquestions” about the nature of the new club’s various defenses to infringement. Acknowledging the urgency of the matter, the court orderedthe parties to submit an “expedited schedule” for trial of the matter. The parties will be back in court on October 15th to discuss that subject and, most likely, to set the case for trial.
Firm represents indie rock favorite Brian Jonestown Massacre in copyright fight
August 28, 2013 -- Partner David Given filed suit today in San Francisco federal court on behalf of THE BRIAN JONESTOWN MASSACRE. The case addresses a dispute over music copyrights belonging to the band's legendary founder and leader, Anton Newcombe, which first arose following the use of "Straight Up and Down" in the opening credits of the HBO hit series BOARDWALK EMPIRE. A prolific singer-songwriter and recording artist, Newcombe has authored over 150 songs in a 15-year period and been responsible for conceiving, producing and recording all of the band's dozen or more record albums. The band has had a revolving cast of players over the years, with Newcombe always at its core, achieving cult-status following the 2004 release of the award-winning motion picture DIG! which highlighted the interaction of Newcombe with his counterpart in the DANDY WARHOLS, Courtney Taylor. The case has been set for a November 27th hearing.
Firm defends future baseball Hall-of-Famer in dispute over recording artist's services
March 1, 2013 – PE&G partner David Given concluded his defense of future Hall-of-Fame baseball player Frank Thomas and his record label, W2W Records, in a lawsuit brought in California Superior Court. The lawsuit alleged that Frank and W2W Records “interfered” with a recording contract ostensibly covering the services of a young singer who recorded for W2W Records as part of a trio, Belle Voxx; that group’s release in 2011 received a fair amount of press and critical attention. Following that publicity, plaintiff record label appeared making various claims under a five-year-old contract between the singer and another, predecessor record label and, in October 2012, sued Frank and W2W Records. The firm, together with Chicago counsel, vigorously defended the clients against these claims (among other things, no one had performed under the previous recording contract for over three years), while guiding the case into an early resolution. Plaintiff filed a dismissal with prejudice of its case against the firm’s clients today.
David Given moderates panel at digital music seminar
January 26, 2013 -- PE&G partner David Given helped organize and moderate a panel for the California Lawyers for the Arts during its 30th annual Music Business Seminar entitled "Fast Forward -- Protecting and Selling Music in the Digital Age" at the Berkeley Law campus. David's panel focused on the streaming music business, and featured speakers from Pandora, Stereotypes and the Electronic Frontier Foundation, as well as East Bay Ray, famed lead guitarist from punk-rock band (and firm client) Dead Kennedys.
Press seeks comment from firm on settlement of digital download case
October 30, 2012 -- Both Variety Magazine and the New York Times recently featured prominent articles covering Universal Music Group's settlement of its long-running battle with the producers of Eminem over the treatment of digital download income in its royalty accounting to recording artists and others. Firm partner David Given, who is one of the attorneys leading wide-ranging class action litigation against UMG on the same issue, provided his views on the meaning of the settlement for that litigation and on its expected impact on the music industry. NPR later interviewed Mr. Given for a piece featured on its "Market Place" program on the same subject.
Luce song infringement case settles
October 5, 2012 -- PE&G attorneys Nick Carlin and David Given, along with co-counsel Elliot Cahn, on behalf of their clients, the Bay Area band Luce (Tom Luce, Matt Blackett, Brian Kroll and Lawrence Riggs), have settled the band's copyright infringement lawsuit against Selena Gomez and the writers of Gomez's 2010 hit song "A Year Without Rain". Luce had contended that "A Year Without Rain" infringed on their song "Buy a Dog." The defendants denied the allegations. The terms of the settlement are confidential.
Variety Magazine reports on new complaint in Rick James case
October 11, 2012 -- Variety Magazine featured an article on its website and daily edition by veteran music industry reporter Chris Morris describing recent developments in the firm's case against Universal Music Group in the case over UMG's treatment of digital download income in its royalty reporting to recording artists and others. The filing of a new complaint (which Morris characterized as "a scathing indictment of UMG's business practices in the digital era") adds two new plaintiffs to the case as well as additional claims, all of which have now been consolidated in one pleading, and expands upon previous factual allegations made by the plaintiffs based upon evidence adduced by the firm thus far in discovery in the case. The filing follows the court's order rejecting UMG's attempt to block the plaintiffs from amending their complaint.
New pleading seeks to sharpen focus in class action over download royalties
September 7, 2012 -- Plaintiffs in the class action case against Universal Music Group moved today for permission from U.S. District Judge Susan Illston to file an amended complaint. The proposed amended complaint serves to consolidate the party plaintiffs (including two new ones - Bo Donaldson ["Billy Don't Be A Hero"] and The Black Sheep ["Strobelite Honey"]) and their various prior pleadings into one operative complaint and to conform the allegations of the complaint to the evidence adduced thus far in the case. That evidence includes, among other things, discovery of an internal memorandum authored by a highly-placed UMG executive in late 2002 setting the stage for treatment of UMG's licenses with its digital download providers as "resale" agreements, and apparently reversing UMG's prior course of conduct and course of performance in the customary accounting for licensing income, to the detriment of recording artists and producers. UMG has opposed plaintiffs' motion for leave to file this complaint on various grounds. The court has set a hearing for the motion on October 12th.
Firm appointed to lead counsel role in class action against Warner Music Group
June 1, 2012 -- United States District Judge Richard Seeborg has chosen PE&G to help lead the class action brought on behalf of recording artists and others against Warner Music Group relating to that label's receipt and accounting of digital download income. This is the second case brought by the firm as a class action against a major record label over the issue of how income from the online distribution of digital music is accounted to and paid to recording artists and other royalty participants. The first, against Universal Music Group, has survived UMG's attempts to dismiss the case and various of its claims, and is currently set for class certification proceedings beginning later this year. With Judge Seeborg's order appointing lead counsel, the case against WMG can now get underway in earnest. The case's first case management conference is expected to be set soon, after which discovery will commence.
Luce files $1 million plagiarism lawsuit against Selena Gomez
April 25, 2012 -- PE&G attorneys Nick Carlin and David Given (along with co-counsel) recently filed a lawsuit in the San Francisco federal court on behalf of Bay Area band Luce (Tom Luce, Matt Blackett, Brian Kroll and Lawrence Riggs), who contend that pop sensation Selena Gomez's 2010 hit song "A Year Without Rain" infringes on their song "Buy a Dog." Buy a Dog was released by Luce in 2005 and was a #1 hit record on several radio stations around the United States, including WRLT in Nashville and KFOG in San Francisco, at both of which it was among the ten most played records in 2005. The firm's clients allege that the melodies in the choruses of the two songs (A Year Without Rain at 0:50, Buy a Dog at 1:00) are virtually identical. The complaint names Gomez and her band, The Scene, as defendants, as well as Gomez's writers and producers, Lindy Robbins and Toby Gad, her record label, Hollywood Records, and distributors, including Apple iTunes. The lawsuit seeks damages in excess of $1 million.
Court denies defendant's summary judgment motion in Rick James digital download class action
April 19, 2012 -- PE&G partner David Given (together with attorneys from two allied law firms) helped defeat Universal Music Group's motion for summary judgment in the ongoing class action on behalf of recording artists and other royalty participants concerning UMG's treatment of income derived from its licenses with download music providers. In her seven-page order dispensing of the matter without oral argument, Federal District Court Judge Susan Illston concluded that the class claims for violation of California's Unfair Competition Law and related open book account were still viable, allowing discovery to continue into UMG's policies and practices. Among other things, Judge Illston rejected UMG's arguments that the claims were either time-barred or otherwise legally unsound on various technical grounds. The decision sets the stage for plaintiffs' effort to certify a class of recording artists, producers and others entitled to an enhanced royalty from UMG's receipt of digital download income; the Court set a hearing on class certification in the case for early January of next year. The firm recently commenced another class action on the same subject against Warner Music Group; that case is just now underway in the same San Francisco court before a different judge.
Firm appointed to lead counsel role in class action against Universal Music Group
March 7, 2012 -- Federal District Court Judge Susan Illston has appointed PE&G to serve as co-lead counsel in a class action on behalf of artists, producers and other royalty participants against the world's largest recorded music company, Universal Music Group, concerning UMG's treatment of income derived from its licenses with download music providers. The firm filed the first of several class cases against UMG on this issue following the decision of the Ninth Circuit Court of Appeals in F.B.T. Productions v. Aftermath Records. That case -- involving the Eminem catalog -- established the right of recording artists, music producers and other royalty participants of legacy music catalog to receive up to half (instead of a much reduced "record" royalty) of the income UMG and its affiliated record labels receive from their licenses with download music providers. In its role as co-lead counsel, the firm will be responsible for overseeing the conduct of the litigation, including directing discovery and motion practice in the matter, as well as supervising any settlement efforts on behalf of the class. Earlier, Judge Illston ordered UMG to produce all of its producer and artist agreements to plaintiffs' counsel by the end of this month. That production of documents continues. The court has set the next case management conference in the case for April 6th.
Firm retained by jazz great's heirs in dispute over legendary catalog of recordings
December 23, 2011 -- PE&G has filed a multi-million dollar lawsuit against record label Concord Music Group on behalf of the children of Bay Area recording artist and jazz legend Vince Guaraldi. The clients' Alameda County Superior Court complaint alleges, among other misconduct, a deliberate pattern and practice of misreporting in the sales of Guaraldi's works. It also seeks to right various other discrepancies in Concord Music's royalty accounting, including the treatment of income derived from Concord Music's licenses with digital music providers. Guaraldi's body of recorded musical work, made over a period stretching from the mid-1950s (as a member of the Cal Tjader Quartet) to the time of his untimely death in 1976 (at the age of 47), includes scores to a dozen animated Charlie Brown television specials as well as the jazz standard "Cast Your Fate to the Wind," which won the 1963 GRAMMY for Best Original Jazz Composition. To this day, his Charlie Brown Christmas album -- which includes the iconic "Christmastime is Coming" and the "Peanuts Theme (Linus & Lucy)" -- remains one of the best-selling (and most beloved) holiday albums of all time.
Firm concludes song royalty deal for FILTER hit "Hey Man Nice Shot"
December 7, 2011 -- PE&G attorney David Given recently helped to resolve a long-simmering dispute between Richard Patrick, front-man of the multi-platinum selling band FILTER, and client Nils Teig, relating to royalties derived from the band's hit song "Hey Man, Nice Shot." The matter arose in connection with Patrick's obligation to account to and pay Teig a portion of those royalties, an obligation founded in an agreement the parties made shortly after the release of the song in 1995. The firm first commenced an action on Teig's behalf in the Alameda County Superior Court, succeeding in obtaining an order for prejudgment writ of attachment for almost $300,000, and subsequently fought off an attempt to avoid the obligation to pay in Patrick's ensuing bankruptcy proceeding. Following mediation, the parties entered into a stipulation intended as a "complete and final settlement" of the dispute. Among other things, the stipulation calls for payment of the client's monetary claim in the amount of $400,000, as well as acknowledgment of the client's ongoing entitlement to song royalties on "Hey Man, Nice Shot" and four other FILTER songs, to be paid directly from the sources of those royalties. A motion to confirm the parties' settlement is pending in the bankruptcy court in Los Angeles.
Firm continues to protect performing artists from unauthorized use of their images
October 19, 2010 -- Building on its record-shattering settlement in Gonzalez v. Countrywide Home Loans, PE&G achieved another substantial settlement in a right of publicity/unauthorized use case. In 2006, Jodi Fung, a Los Angeles based television and internet personality, did a photo shoot for AT&T, for which she was paid $750 for a time limited license. After the license expired, AT&T continued to use the photos in advertising, in particular in large posters in its Cingular stores. Despite numerous requests from Ms. Fung and her talent agent, JE Talent, to AT&T and its ad agency to remove the ads or negotiate a new license, nothing was done. Within weeks of the case being referred to legal counsel, the firm negotiated a $65,000 settlement for the client.
Firm champions rights of visual artists: forces Christie's to pay resale royalties to prominent California artist Roland Petersen
October 19, 2010 -- While most other countries protect the rights of visual artists (such as painters and sculptors) by paying them royalties every time their works are resold (generally known as the “droit de suite”), in the U.S., only the State of California provides such a right – known as the “resale royalty.” Under that law, the artist is generally entitled to a percentage of the resale price. The purpose of the law is to give artists – who tend to become well known only later in life – an opportunity to share in the appreciation in value of works which they may have sold for a pittance when they were young. (See article on the subject by firm partner Nick Carlin.) Unfortunately, many dealers, collectors and auction houses ignore this law, and many artists are unaware of their rights or don’t assert them for fear of retaliation. PE&G recently vindicated the resale royalty rights for prominent California painter Roland Petersen. In 2007, Christie’s auction house sold three of Petersen’s paintings, one showing here, for almost $300,000 but failed to notify him. Even after Petersen found out about the sales and demanded the royalty, Christie’s refused to pay. After the matter was referred to legal counsel, the firm quickly settled the case for the full amount of the resale royalty owed, plus interest, plus attorneys' fees. (If you are an artist and believe that you are entitled to resale royalties which have not been paid, feel free to contact us for a consultation.)
Firm represents cult-rock hero Roky Erickson in copyright law dispute
May 6, 2010 -- PE&G recently obtained judgment in the San Francisco federal court in favor of Roky Erickson (of The 13th Floor Elevators fame) and related publishing and production companies on claims arising from the unauthorized sale and distribution of "Roky Erickson & The Aliens -- The Evil One." On its release, the album received four stars in Rolling Stone magazine (and later a 8.0 rating from pitchfork.com), and has since become an underground favorite. Roky's turbulent life in and out of the music business (he has been called "the great lost pioneer of rock and roll") was chronicled in the documentary film entitled "You're Gonna Miss Me" released by Palm Pictures in 2005. The judgment allows the clients to reclaim their rights to the songs and masters on this classic album.
Firm in rights deal for Men Are From Mars, Women Are From Venus
April 19, 2010 -- PE&G recently represented the rights-holders in negotiations with Los Angeles-based production company BermanBraun and studio Summit Entertainment over the acquisition of film and television rights to the phenomenally successful book series "Men Are From Mars, Woman Are From Venus." The "Mars/Venus" titles, authored by world-renowned self-help guru John Gray, have sold more than 50 million copies worldwide, and the first book of the series (released in 1992 by HarperCollins) was on the New York Times best-seller list for nearly seven years. For a copy of an article from The Hollywood Reporter about the deal, click here.
Firm sought out for music industry expertise
PE&G represented Dave Buckner in his case against the popular thrash rock band PAPA ROACH. Buckner's complaint, filed in the Sacramento County Superior Court, sought damages and an accounting for royalties and other entitlements in connection with his 15-year involvement as a founding member of the band. David Given has previously been involved in leaving member cases for such platinum and multi-platinum acts as 4 NON-BLONDES, CAKE, MARILYN MANSON, SOCIAL DISTORTION and RED JUMPSUIT APPARATUS. He has also been consulted as a music industry expert in several high profile rock-and-roll divorces, including those of Jerry Garcia (GRATEFUL DEAD, JERRY GARCIA BAND), Tre Cool (GREEN DAY) and Lars Ulrich (METALLICA). For a copy of the complaint in Buckner v. Papa Roach, click here. For a copy of an article about the case that appeared in the Sacramento Bee, click here. The Buckner matter settled on confidential terms.