THE ENTERTAINMENT, ARTS and SPORTS LAW BLOG

UMG Recordings Inc. v Escape Media Group Inc.

By Barry Werbin

Attached is a copy of the First Department's unanimous reversal of Justice Kapnick's prior decision in UMG Recordings, Inc. v. Escape Media Group, Inc., which held that pre-1972 sound recordings were covered by the DMCA despite such works not being covered by the Copyright Act. UMG Recordings Inc v Escape Media Group Inc.pdf The First Department noted that Justice Kapnick's decision had relied "heavily on Capitol Records, Inc. v MP3tunes, LLC (821 F Supp 2d 627 [SD NY 2011]), in which the United States district court tackled precisely the same issue and found that the DMCA embraced sound recordings fixed before February 15, 1972."

The Court held that to adopt defendant's view "would directly violate section 301(c) of the Copyright Act." Instead, it adopted UMG's view that "Section 301(c) forbids the Act from 'annull[ing]' or 'limit[ing]' the common-law rights and remedies of owners of such works, and the DMCA, if it were to bar infringement actions against Internet companies that otherwise comply with the DMCA, would do just that." The Court observed that in the absence of the DMCA, "there would be no question that UMG could sue defendant in New York state courts to enforce its copyright in the pre-1972 recordings, as soon as it learned that one of the recordings had been posted on Grooveshark [defendant's Internet music streaming service]." Thus, any "material limitation" on a copyright owner's New York common law rights, "especially the elimination of the right to assert a common-law infringement claim, is violative of section 301(c) of the Copyright Act."

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About Elissa

Elissa D. Hecker practices in the entertainment and business fields. Her practice focuses on copyright, trademark and business law.  Her clients encompass a large spectrum of the entertainment world. In addition to her private practice, Elissa edited the books Entertainment Litigation - Know the Issues and Avoid the Courtroom, In the Arena, and Counseling Content Providers in the Digital Age.

Elissa is Chair of the Board of Directors of Dance/NYC. She is Past Chair of the Entertainment, Arts and Sports Law (EASL) Section of the New York State Bar Association, Editor of the EASL Journal, member of the Editorial Board of the NYSBA Bar Journal, and Co-Chair and founder of the EASL Pro Bono Committee. She is also editor of the EASL Blog. Elissa is a frequent author, lecturer and panelist, a member of the Copyright Society of the U.S.A. (CSUSA), a member of the Board of Editors for The Journal of the CSUSA, and the CSUSA’s Newsletter Editor.

Elissa was selected as a 2011 New York Super Lawyers Rising Star. She was also the inaugural recipient of the Copyright Society of the U.S.A.'s 2011 Award for Excellent Service and received the 2005 New York State Bar Association's Outstanding Young Lawyer Award. She was previously Associate Counsel with The Harry Fox Agency, Inc. and its parent company, the National Music Publishers Association, Inc.

Practice Areas include:

• Entertainment Law
• Copyright
• Trademark
• Intellectual Property
• Television
• Production
• Music
• Dance
• Photography
• Internet
• Media
• Business
• Corporate issues
• Contracts
• Publishing