ABKCO Music, Inc. et al v. Sagan et al
OPINION AND ORDER re: 161 MOTION for Summary Judgment; 252 LETTER MOTION for Leave to File First Supplemental Declaration of Matthew Lundberg; 191 CROSS MOTION for Summary Judgment: For the reasons set forth above, the parties' motions fo r summary judgment are GRANTED in part and DENIED in part as follows: Plaintiffs' claim of copyright infringement is GRANTED against all Defendants and as to all infringement within the statute of limitations; Defendants' motion on Plaintif fs' claim of copyright infringement is DENIED in all respects. Plaintiffs' claim for willful infringement is GRANTED with respect to the audiovisual recordings, pre-1972 recordings, and recordings ostensibly covered by the UMG agreement, an d DENIED in all other respects; Defendants' motion on Plaintiffs' claim of willful infringement is DENIED in all respects. Plaintiffs' request for a permanent injunction is DENIED; and Defendants' motion is GRANTED. Defendants 9; request to supplement the record, Doc. 252, is GRANTED only with respect to the HFA spreadsheet, Ex. 1, and DENIED in all other respects. The Clerk of the Court is respectfully directed to terminate the motions, Docs. 161, 191, 252. (Signed by Judge Edgardo Ramos on 3/30/2018) (jwh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ABKCO MUSIC, INC., COLGEMS-EMI MUSIC,
INC., EMI ALGEE MUSIC CORP., EMI APRIL
MUSIC INC., EMI BLACKWOOD MUSIC, INC.,
EMI CONSORTIUM MUSIC PUBLISHING, INC.
d/b/a EMI FULL KEEL MUSIC, EMI
CONSORTIUM SONGS, INC. d/b/a EMI
LONGITUDE MUSIC, EMI FEIST CATALOG
INC., EMI ROBBINS CATALOG INC., EMI
UNART CATALOG, INC., JOBETE MUSIC CO.,
INC., SCREEN-GEMS-EM! MUSIC INC.,
STONE AGATE MUSIC, STONE DIAMOND
MUSIC CORP., RODGERS & HAMMERSTEIN
HOLDINGS LLC, PEER INTERNATIONAL
CORPORATION, PSO LIMITED, PEERMUSIC
LTD., PEERMUSIC III, LTD., SONGS OF PEER,
LTD., SPIRIT CATALOG HOLDINGS S.A.R.L.,
TOWSER TUNES, INC., TOWSER NEWCO
LTD., SPIRIT TWO MUSIC, INC., WARNER
TAMERLANE PUBLISHING CORP., and WB
OPINION AND ORDER
15 Civ. 4025 (ER)
- againstWILLIAM SAGAN, NORTON LLC, BILL
GRAHAM ARCHIVES, LLC d/b/a
WOLFGANG'S VAULT, BILL GRAHAM
ARCHIVES, LLC d/b/a CONCERT VAULT,
BILL GRAHAM ARCHIVES, LLC d/b/a MUSIC
VAULT, and BILL GRAHAM ARCHIVES, LLC
During the course of this litigation, Rodgers & Hammerstein Holdings LLC acquired the musical works
that had been controlled by Imagem Music LLC. Plaintiffs therefore request that Rodgers &
Hammerstein Holdings LLC be substituted for Imagem Music LLC. The Court grants this request. See
Fed. R. Civ. P. 25(c) ("if an interest is transferred" the court, on motion, may order "the transferee to be
substituted in the action"). Similarly, on March 26, 2018, the Court granted Plaintiffs' request to join two
subsidiaries of Plaintiff Spirit Catalog Holdings S.a.r.1: Towser Tunes, Inc. and Towser Newco Ltd. See
Fed. R. Civ. P. l 7(a)(3). The Clerk of Court is respectfully requested to update the caption as reflected
This federal copyright infringement suit concerns a collection oflive audio and
audiovisual recordings oficonic songs that were recorded while being performed live in concert
and thereafter acquired by Defendants William E. Sagan, Bill Graham Archives, LLC, 2 and
Norton, LLC ("Defendants"), from the late Bill Graham and operators ofother concert venues.
The collection primarily consists ofrecordings made from the 1960s to the 2000s, and reads like
a veritable who's who ofrock, soul, and alternative music, containing the performances ofThe
Rolling Stones, The Who, the Grateful Dead, Willie Nelson, Ray Charles, Aretha Franklin, and
Carlos Santana, to name a few. The list ofsongwriters who penned the works embodied in those
performances is no less impressive and diverse, including legends such as Hoagy Carmichael,
Carol King, Mick Jagger, Keith Richards, Pete Townshend, and Green Day, among others.
In the years following Defendants' acquisitions, they have reproduced those recordings
principally in digital format and made them available for mass consumption through digital
download and streaming services offered for a fee through Defendants' websites. 3 Plaintiffs are
a collection ofsix groups ofmusic publishers4 who claim to own, or hold exclusive licenses in,
Bill Graham Archives, LLC, does business under the names Wolfgang's Vault, Concert Vault, Music
Vault, and Daytrotter.
Defendants operate Wolfgangs.com, WolfgangsVault.com, ConcertVault.com, Daytrotter.com,
MusicVault.com and the Music Vault channel on YouTube. Defs.' Responses and Objections to
Plaintiffs' Statement of Undisputed Facts, ("Defs.' Counter 56.1 ") ,r 40.
Plaintiffs are comprised of the following groups of music publishing companies: (1) ABKCO Music,
Inc., (2) Colgems-EMI Music Inc., EMI Algee Music Corp., EMI April Music Inc., EMI Blackwood
Music Inc., EMI Consortium Music Publishing, Inc. d/b/a EMI Full Keel Music, EMI Consortium Songs,
Inc. d/b/a EMI Longitude Music, EMI Feist Catalog Inc., EMI Robbins Catalog Inc., EMI Unart Catalog
Inc., Jobete Music Co., Inc., Screen-Gems- EMI Music Inc., Stone Agate Music, Stone Diamond Music
Corp.; (3) Rodgers & Hammerstein Holdings; ( 4) Peer International Corporation, PSO Limited,
Peermusic Ltd., Peermusic III, Ltd., Songs Of Peer, Ltd.; (5) Spirit Catalog Holdings S.A.R.L., Spirit
Two Music, Inc.; and (6) Warner-Tamerlane Publishing Corp. and WB Music Corp.
the copyrights to approximately 200 musical compositions (the "Musical Works") reflected in
Defendants' recordings. Plaintiffs claim that Defendants' exploitation of those recordings
infringes their copyrights in the Musical Works. The principal question before the Court is
whether Defendants obtained valid licenses such that their exploitation of these recordings is
lawful under the Copyright Act, 17 U.S.C. § 101 et seq.
Before the Court are the parties' cross motions for summary judgment pursuant to
Federal Rule of Civil Procedure 56 on Plaintiffs' claim of copyright infringement and their
request to permanently enjoin Defendants from using the recordings at issue. Docs. 161, 191.
For the reasons set forth below, the parties' motions for summary judgment are GRANTED in
part and DENIED in part.
Statutory Scheme for Mechanical Licenses under the Copyright Act
To better contextualize the dispute between the parties, it is helpful to outline the
statutory scheme covering the licensing of musical works under the Copyright Act. As a general
matter, the owner of a copyright in a nondramatic musical work (i.e., a song's words and musical
composition) "has the exclusive rights" to reproduce that musical work in copies or
phonorecords and to distribute those copies or phonorecords to the public. 5 17 U.S.C. § 106(1),
(3). That exclusive right, however, is not without limitation. To encourage creativity and
prevent monopolization in the music industry, Congress created the compulsory mechanical
license, 6 a narrow exception to that exclusive right, which "must be construed narrowly, lest the
Under the Copyright Act, separate copyrights attach to a musical work and a sound recording. See 17
U.S.C. § 102 (a)(2), (7).
The term "mechanical license" derives from the historical practice of using "such media as a
phonograph record or piano roll," to mechanically reproduce the sounds embodied in a musical work.
exception destroy, rather than prove, the rule." Fame Publishing Co. v. Alabama Custom Tape,
Inc., 507 F.2d 667, 670 (5th Cir. 1975) ("[W]e should neither expand the scope of the
compulsory license provision beyond what Congress intended . . . nor interpret it in such a way
as to frustrate that purpose.") (citing H.R. rep. NO. 2222, 60th Cong., 2d Sess. 6 (1909)); see
also Fox Television Stations, Inc v. Aereokiller, LLC, 851 F.3d 1002, 1011 (9th Cir. 2017). As a
result, although the copyright holder in the musical composition has the exclusive right to
determine "the manner in which his composition will initially be offered to the public," once that
musical work has been distributed to the public, the copyright holder "must then license others
who wish to present their own competing renditions." Fame Publishing Co., 507 F.2d at 670.
Under Section 115 of the Act, compulsory licensees are entitled to make and distribute
"phonorecords" of a musical work, so long as they comply with requirements of that section.
See 17 U.S.C. § 115; Cherry River Music Co. v. Simitar Entm 't, Inc., 38 F. Supp. 2d 310, 312
(S.D.N.Y. 1999). Certain of those requirements are purely procedural, such as the timely filing
of a Notice of Intention to Obtain Compulsory License ("NOI"). In this respect, Section
115(b)(l) requires that "[a]ny person who wishes to obtain a compulsory license under this
section shall, before or within thirty days after making, and before distributing any phonorecords
of the work, serve notice of intention to do so on the copyright owner." 17 U.S.C. § l15(b)(l).
At that point, the copyright owner cannot deny the license-hence the term "compulsory"
however, "[f]ailure to serve or file the notice required by clause (1) forecloses the possibility of a
Cherry River Music Co. v. Similar Entm 't, Inc., 38 F. Supp. 2d 310,312 (S.D.N.Y. 1999) (citations and
quotation marks omitted).
compulsory license and, in the absence of a negotiated license, renders the making and
distribution of phonorecords actionable as acts of infringement .... Id. § 115(b)(2).7
Typically, a compulsory licensee must "exercise his rights under the compulsory license
only by assembling his own musicians, singers, recording engineers and equipment ... for the
purpose of recording anew the musical work that is the subject of the compulsory license." 2 M.
Nimmer & D.Nimmer, Nimmer on Copyright ("Nimmer") § 8.04 [A]; see also The Law of
Copyright, Howard B. Abrams, ("Abrams") § 5:25; Recording Indus. Ass 'n ofAm., Inc. v.
Librarian of Congress, 608 F.3d 861, 863 (D.C. Cir. 2010). In other words, the licensee cannot
simply repackage and sell copies of another's sound recording. To do that, a licensee would
have to comply with the additional substantive requirements of Section 115(a)(l ). See 17 U.S.C.
§ 115(a)(l ) (identifying the requirements for works "fixed by another"). Those requirements
include that the recording be (1) "lawfully fixed," 8 and (2) that the licensee have the
authorization of the copyright holder in the sound recording, or "if the sound recording was fixed
before February 15, 1972," that the sound recording was fixed "pursuant to an express license
from the owner of the copyright in the musical work or pursuant to a valid compulsory license
for use of such a work in a sound recording." Id. As discussed in more detail below, these
In contrast to a compulsory license, a negotiated license is simply a license that is consensually entered
into based on terms privately negotiated and set by the parties. See Blagman v. Apple, Inc., No. 12 Civ.
5453 (ALC) (JCF), 2014 WL 1285496, at *5 (S.D.N.Y. Mar. 31, 2014).
Pursuant to the Copyright Act, a work is "fixed" when it is embodied in a "tangible medium of
expression . . . by or under the authority of the author, [and] is sufficiently permanent or stable to permit it
to be perceived, reproduced, or otherwise communicated." 17 U.S.C.§ 101. In layman's terms, the
recordings here were fixed when they were first captured on film reel, VHS, cassette tape, CD, DVD,
vinyl record, or similar device. For a work to be "lawfully fixed" its fixation cannot "constitute
copyright infringement under federal law, or common law copyright infringement, unfair competition," or
any other violation of state law. 2 Nimmer§ 8.04[E] n.88.
procedural and substantive requirements are strictly enforced and form the basis of the dispute
between the parties in the instant suit.
Defendants Acquire Bill Graham Archives
Defendant William Sagan is the founder, president, CEO, and sole owner of Defendant
Norton LLC. Defendants' Responses and Objections to Plaintiffs' Statement of Material Facts,
("Defs.' Counter 56.1"), Doc. 218 � 10. Between 2002 and 2015, Defendants built their
collection of audio and audiovisual recordings of live concert performances by acquiring entities
possessing such recording archives, as well as acquiring collections of such recordings from
various concert venues. Plaintiffs' Responses to Defendants' Statement of Material Facts ("Pls.'
Counter 56.1"), Doc. 202, � 1. These acquisitions began in July 2002, when Defendant Norton
LLC acquired Bill Graham Archives LLC ("BGA"), which owned the archives of the late
concert promoter Bill Graham. Defs.' Counter 56.1� 11. That acquisition netted Defendants
276 recordings covering approximately 90 of the Musical Works. See Dickstein Deel. Ex. 11
(Columns E & F). In documenting the sale, BGA was careful to advise Norton LLC that it was
making no representations regarding BGA' s rights to record or exploit the Musical Works. The
purchase agreement that conveyed the BGA collection provided that the seller was acquiring
Counter 56.1� 17 (citing Dickstein Deel., Ex. 3 at� 3.l0(a)(C), � 3.1l(a)). A side letter to that
purchase agreement further provided that
Id. � 18 (citing Dickstein Deel.,
Ex. 7 at *2). 9 In purchasing those recordings, Defendants never saw any performance contracts
executed by the artists authorizing the recording of those performances, nor were they made
aware that such agreements existed. Id.
Contemporaneous external sources confirmed the exceedingly limited nature of the
intellectual property rights Norton was acquiring along with the BGA collection. An appraisal
report prepared by Richard Prelinger, a prominent archivist and intellectual property consultant,
and included in Defendants' closing binder stated that:
21; Dickstein Deel., Ex. 5, BGA Appraisal Report, at 26200. Indeed, in his deposition
testimony, Sagan later confirmed that he was unaware if any of the copyright owners of the
Musical Works captured in those recordings ever even consented to the recording of those
concert performances. Defs.' Counter 56.1 ,r 27; Dickstein Deel. Ex. 2 at 132:18-25, 133:10-15.
A marketing document for the BGA archive that was provided to Sagan at the time of the
acquisition disclosed that
In this regard, it is important to note that although he created a world-famous archive of concert footage,
Bill Graham did not appear himself exploit the recordings commercially, except on a very limited basis.
The video recordings were "used in approximately 10 non-revenue generating instances as part of concert
programs and to provide ambient imagery for special events or private parties." Dickstein Deel., Ex. 5,
BGA Appraisal Report, at 26177. Certain material was also licensed to VH-1 and MTV for documentary
and biographic series such as "Behind the Music," "Where Are They Now," and "VH-1 Confidential."
Michael Krassner, an attorney who represented the seller in connection with the sale of
BGA to Defendants, explained to Sagan at the time of the sale that
Finally, Nicholas Clainos, an employee ofBill Graham's companies since the 1970s and
president of those companies following Graham's death, testified that the -
Defendants Expand their Collection of Live Concert Recordings
Following Defendants' acquisition ofBGA in 2002, they acquired at least a dozen other
collections of concert tapes, which "expanded dramatically" the number of recordings in their
collection. Defs.' Counter 56.1 ,-i 26. All told, Defendants went on to acquire recordings from
collections owned by KingBiscuit Flower.Hour, Festival Network, ThomasBradshaw, John
Defendants challenge these statement on the basis of hearsay not within any exception and lack of
personal knowledge, to the extent those statements are used to determine the Graham companies'
practices prior to Clainos' s hire. Defs.' Counter 56.1 ,i 23.
Brower, Plainfield Music, David Hewitt, Steve Weitzman, Dawson Sound Productions,
Amazingrace, Filmsonix, Fuel 2000 Records, Daytrotter, and the Ash Grove theatre. Pls.'
Counter 56.1 ,r 1.
The Plainfield Music collection includes some 213 recordings covering approximately 86
Musical Works. Dickstein Deel. Ex. 11 (Columns E & F). However, the agreement by which
Plainfield Music acquired those recordings provided that the concert promoter, -
Defs.' Counter 56.1 ,r 35. And
despite Sagan inquiring about performance agreements for this collection, the seller of those
works did not possess any consents for Sagan to review, id, and no such consents were produced
Likewise, David Hewitt, from whom Defendants purchased a collection of live concert
recordings that he created using recording equipment in a truck parked outside the concert
venues, acknowledged that he did not have written consents from performers because it was not
industry custom to acquire such consents when those performances were recorded. Though, he
also noted that such consents would have gone through a legal or business department, and not
through him as the engineer. Defs.' Counter 56.1 ,r 33. That collection conveyed 303 recordings
to Defendants, covering 86 of the Musical Works. Dickstein Deel. Ex. 11 (Columns E & F).
Similarly, the agreement by which Festival Network acquired a collection of concert recordings
later sold to Defendants in 2009 noted that Festival Network's predecessor
Defs.' Counter 56.1 ,r 34. Again, although Sagan requested copies of the
performance agreements for the Festival Network collection, he did not receive any consents, id.,
and no consents were ever produced in discovery.
The sales agreement with Thomas Bradshaw, however, did purport to be made with the
consent of performers.11 The agreement stated
Dickstein Deel., Ex. 15,
, ,r 4(e).
That agreement, however, did not attach any of the performer consents that were ostensibly
entered into decades prior. IVIor�over, that agreement further
Dickstein Deel., Ex. 15, ,r 4(e). There is no
evidence in the record that Defendants ever acquired those consents.
More broadly, although Defendants unilaterally prepared performer revenue share
agreements, which would "authorize [them] to fully utilize and exploit the [recordings] in
exchange for sharing with the Artist a portion of the revenue from such activity," Sagan testified
that he could not recall which artists have signed that form, id.
,r 29, and no executed performer
revenue share agreements were produced in discovery. To the contrary, three performing artists
whom Defendants sought to depose-Keith Richards, David Byrne, and Michael Stipe-could
not recall ever consenting to the recording of their performances. Defs.' Counter 56.1 ,r 30.
Notably, even as of 2010, when Defendants applied to register copyrights in remixes of
concert recordings they had acquired, the United States Copyright Office repeatedly asked
Bradshaw operated the Great American Music Hall, and conveyed 27 recordings (covering seven of the
Musical Works) to Defendants. See Dickstein Deel., Ex. 11 (Columns E & F).
In response, and not
withstanding Defendants' inability to produce a single written performer consent, Lundberg
Deel., Doc. 163, Ex. D.
Defendants Begin Exploiting their Recordings
As early as 2002, the Defendants
Defs.' Counter 56.1 ,-r 53; Dickstein Deel. Ex. 2 Sagan
Dep. at 132:9-17. In October 2003, as Sagan sought to reproduce and exploit his archive in CD
and DVD format, he informed an employee that
Dickstein Deel., Ex. 30 at 2. During his
In 2003, Defendants established their first website, Wolfgang's Vault, now named
Wolfgang's, to provide to the public the live concert recordings obtained through Defendants'
acquisition of BGA (the only collection that had been acquired up to that point). Lundberg Deel.
,r 10; Dickstein Deel, Ex. 11 (Column G, showing acquisition date).
But it was not until 2006
that Defendants made audio recordings in that collection, and others, available for download and
on-demand streaming. Id. Defendants also launched the Concert Vault website in 2006, which
offers both audio and audiovisual recordings for on-demand streaming. Lundberg Deel.
the years that followed, Defendants continued to expand their internet-based platforms. In 2007,
Defendant Norton LLC acquired a majority stake in Daytrotter Media, LLC, thereby acquiring
Daytrotter's website, which also offered audio recordings to the public .. Id.
Media, LLC, which now touts itself as the source for discovering new music, 12 rewrote its
website in 2010 and now only allows visitors to download or stream audio recordings from
recording sessions hosted specifically for the website. Id. As such, Plaintiffs' recordings are no
longer offered on that website. In 2014, Defendants' Music Vault Youtube channel was
launched and offers audiovisual recordings for on-demand streaming, including certain of the
Musical Works at issue here. Id.
As Defendants tell it, they have, "at all relevant times," properly obtained mechanical
licenses to ensure compliance with the Copyright Act. Defendants' Cross-Motionfor Summay
Judgment ("Defs.' MSJ"), Doc. 161, at 13. They have done so either by working directly with
the Harry Fox Agency ("HFA"), a third-party licensing agent that grants mechanical licenses on
behalf of music publishers, or by using licensing vendors that obtain licenses on behalf of record
manufacturers and distributors. Id. at 13-14; Lundberg Deel. ,r 41. However, Defendants first
applied for a mechanical licensing account with the Harry Fox Agency on March 1, 2007, over a
year after they began to provide downloading and on-demand streaming of audio and
audiovisual recordings of the then-acquired Musical Works through the Wolfgang 's and Concert
Vault websites. Lundberg Deel.,r 42; id. Ex. 28, Application for HFA Mechanical Licensing
Account, at 1. Defendants worked directly with HFA until 2010, when they switched to
RightsFlow Inc. ("RightsFlow") to secure their necessary licenses. Id. at 43-44.
Defendants contend that RightsFlow obtained on their behalf the right to exploit the
Musical Works in one of three ways: by either "(1) obtaining licenses directly from the
publisher; (2) obtaining licenses from HFA through Defendants' HFA mechanical licensing
account; or (3) issuing a . ..NOI ... pursuant to the statutory requirements." Id.
,r 50 (c).
Finally, in May 2013, after RightsFlow was acquired by Google, Inc., Defendants switched to
MediaNet, Inc. ("MediaNet") to manage their licensing needs and make the necessary payments
to the publishers and administrators of the Musical Works. Id.
administrative issues occurring with HFA" that arose when Defendants changed licensing
services providers from RightsFlow to MediaNet in 2013, Defs.' MSJ at 9; Lundberg Deel.,r 52,
Defendants claim that they have fulfilled their royalty-payment obligations for all the recordings
at issue and that Plaintiffs have never returned or rejected their payments, Defs.' MSJ at 9-10,
14; Pis.' Counter 56. ,r,r 6-7. Defendants also contend that they have held licenses with
performing rights organizations ("PROs"), which grant them the right to publicly perform, or, as
in this case, provide on-demand streams for viewing of the Musical Works in question.
Lundberg Deel. ,r,r 36-39. The PROs, in tum, pay songwriters and publishers for the public use
of their works. Id.
Defendants maintain that they have remitted royalties for all on-demand
streaming pursuant to their licenses with the PROs and in accordance with the law and industry
practice. Id. Those licenses, however, do not authorize Defendants to reproduce or distribute
any of the Musical Works. Lundberg Deel., Ex. 25,
In Plaintiffs' rendition, licensing gaps abound. They assert that HFA licenses cover only
a limited number of the recordings at issue; specifically they argue that 180 of the approximately
200 Musical Works have at least one recording that is not covered by Defendants' HFA licenses.
Defs.' Counter 56.1 ,r 63. Plaintiffs further explain that once Defendants began sending NOIs in
2013, they served their notices months or even years after they began exploiting a given
recording, and that Lundberg, Defendants' Chief Technology Officer, acknowledged that
Defendants failed to abide by Section 115 when he testified that it was "common industry
practice" to send NOis after publishing a recording to the Defendants' websites. Id.
Dickstein Deel., Ex. 1, Lundberg Dep. 245:13-265:23. Further, Plaintiffs state that the NOis
"fraudulently misrepresented" the date on which Defendants began distributing the recordings at
As they explain, the NOIs stated that the date of distribution of the relevant
recording was the same as the date that the NOI was filed. In actuality, and as Lundberg
A license for public performance of a musical work, which includes on-demand streaming, is distinct
from a mechanical license, which grants the licensee the right to reproduce and sell recordings of the
musical work. Compare 17 U.S.C. §§ 1 15 with id.§ 106(4); see Country Rd. Music, Inc. v. MP3.com,
Inc., 279 F. Supp.2d 325, 327 (S.D.N.Y. 2003) ("'Performance' and 'reproduction' are clearly and
unambiguously separate rights under the Copyright Act of 1976 ....") (
citing 17 U.S.C. § 106 (1), (4)).
concedes, the dates listed on the NOis were not the dates on which Defendants' own records
show the recordings were first downloaded or streamed. Id. Although Plaintiffs admit that they
have not returned any payments made to them on the Defendants' behalf, they strongly "deny
that Defendants have paid all sums owed," as, they contend, "Defendants have no valid licenses
that would authorize [their] exploitation" ofthe Musical Works at issue. Pls.' Counter 56.1 ,r 7.
1. Defendants Enter Joint Exploitation Agreements
In 2009-three years after they began exploiting their then-current collection oflive
recordings-Defendants entered into Joint Exploitation Agreements with three major record
labels: Warner Music, Inc., Sony Music Entertainment, and UMG Recording Inc. (collectively,
the "Joint Exploitation Agreements"). 14 Generally, the agreements purport to authorize
Defendants to exploit through sale and distribution certain sound recordings ofconcerts featuring
the record labels' artists, so long as Defendants obtained mechanical licenses for those
recordings. See Lundberg DecL ,r,r4-6, Ex. 2, Warner Music Inc. Joint Exploitation Agreement,
dated August 4, 2009, §§ 1.1, 3.3; Ex. 3, Sony Music Entertainment Joint Exploitation
Agreement, dated August 4, 2009, §§ 1.1, 3.2; Ex. 4, UMG Recording, Inc., Joint Exploitation
Agreement, dated August 4, 2009 §§ 1, 2.2.
None ofthese agreements, however, provide any written consent from the artists
Warner Music, Inc. is the record-music arm of the larger Warner Music enterprise. It is a distinct entity
from Plaintiffs Warner-Tamerlane Publishing Corp,and WB Music Corp, which are publishing
companies. See Pls.' MSJ at 3 8. Sony Music Entertainment is likewise the recorded-music arm of
Sony, and an affiliate of Plaintiff Sony/ATV Music Publishing, LLC, which, in 2012, began
administering the music catalog owned by the EMI Plaintiffs. Id. Defendants initially contended that
Sony Music Entertainment acquired the publishing catalog of the EMI Plaintiffs noted above. Pls.'
Counter 56.l ,r 4. However,in their Counter 56.1, they do not dispute that it is Sony/ATV Music
Publishing, LLC that administers the EMI Plaintiffs' music catalog. See Defs.' Counter 56.1 ,r 86;
Declaration of Audrey Ashby,dated September 12,2017, Doc. 199 ("Ashby Deel.") ,r 3 ("Sony Music
Entertainment was not a member of the group that acquired EMI," and EMI's music publishing catalog is
administered by Sony/ATV - not Sony Music Entertainment.").
themselves, nor do they purport to state that the artists consented to the recording of their
performances. Moreover, none of the Plaintiffs in this case are signatories to any of the Joint
Exploitation Agreements, and those agreements expressly exclude any rights to the musical
compositions. Pls.' Counter 56.1 ,r 3.
Instead, the Warner and Sony
- Lundberg Deel., Ex. 2, § 1.1. In somewhat different language,
Lundberg Deel., Ex. 3, § 1.1.
Defendants have produced no
Both agreements, however, expressly exclude audiovisual recordings of the Musical Works. See
Lundberg Deel., Ex. 2, § 3.6(t) (providing that the agreement "shall not apply to audio-visual
recordings")' id. Ex. 3, § 10.3 (same); Pis.' Counter 56.1 ,i 3.
Section 1 Notices.
2. Defendants Receive Cease-and-Desist Demands
In August of 2013 and 2014, Plaintiff ABKCO Music, Inc., demanded that Defendants
cease and desist exploiting an audiovisual recording of a 1981 Rolling Stones concert because
"ABKCO has never issued synchronization licenses for the video" and without such a grant
"ABKCO's copyrights in those Compositions have been infringed and continue to be knowingly
and willfully infringed." Id. ,164. From 2013 to 2016, Defendants also received several similar
demands from songwriters and publishers of songs embodied in Defendants' audiovisual
recordings, alerting Defendants that they potentially lacked the necessary licens�s to exploit
those audiovisual recordings. Id. ,1,165-71. 16
On May 27, 2015, Plaintiffs filed this action claiming Defendants infringed their
copyrights in approximately 200 Musical Works by reproducing those works in digital format
and making them available for downloading and streaming from Defendants' websites without
Plaintiffs' consent. Doc. 1, 43. Plaintiffs also claimed infringement based on Defendants'
manufacture of physical records containing certain of Plaintiffs' Musical Works. See Doc. 1,
Defs.' Counter 56.1 ,150. 17 All told, Plaintiffs assert that Defendants have exploited in audio or
Defendants assert that third-party records relied on by Plaintiffs are inadmissible hearsay that may not
be relied on for the truth of the matter asserted, and are not authenticated. Defs.' Reply at 37 (citing Fed.
R. Evid. 801 ). Plaintiffs correctly point out, however, that Defendants have authenticated these records
by acknowledging their receipt and that those records are not being offered for the truth of the matter
asserted, but are offered to show that the Defendants were on notice as to their allegedly infringing
activity. Pis.' Reply at 14 n.35. As a result, the Court finds these records admissible in that limited
regard. See George v. Celotex Corp., 914 F.2d 26, 30 (2d Cir. 1990) ("out of court statement offered not
for the truth of the matter asserted, but merely to show that the defendant was on notice of a danger, is not
Those physical records include a vinyl albums that include the song "Moondance" by Van Morrision,
and a John Denver performance of James Taylor's 'Fire and Rain." Pis.' Counter 56.1150.
audiovisual format more than 1,175 recordings of Plaintiffs' approximately 200 Musical Works.
Id. ,r 47. Of those approximately 200 works, Defendants have exploited audiovisual recordings
of at least 146 of them. Id.
Defendants answered, asserting counterclaims seeking a declaration that their use of the
recordings does not infringe Plaintiffs' rights and that they do not need synchronization licenses
to exploit the audiovisual works at issue. Doc. 12.18 Defendants also claimed in their answer
that "all of the recordings which make up Defendants' collection were created (and have been
exploited) with permission and proper legal consent from the various artists who controlled the
copyrights in the musical compositions they performed." Doc. 12 at 21, 28 ,r,r 4, 50. Defendants
similarly represented in their Rule 26(a)(l) Initial Disclosures that they had "[l]icense
agreements, including but not limited to agreements between and among BGA (and/or its
predecessors and/or affiliates) and [PROs], [HFA], and/or any of the Plaintiffs ... and/or the
artists whose musical compositions and/or recordings [Plaintiffs] now allege to control." Defs.'
Counter 56.1 ,r 72. Notwithstanding ABKCO's cease and desist letters of August 2013 and 2014
and the commencement of this action, Defendants have added to their websites at least 36
recordings of Plaintiffs' Musical Works during the pendency of this action. Id.
,r 77; Doc. 59 at
4. Following discovery, in May and September 2017, the parties filed cross-motions for
summary judgment on Plaintiffs' infringement claim and request for permanent injunction.
Docs. 161, 191.
On December 14, 2017, the Court held oral argument to address Defendants' motion to
strike eleven documents produced in Plaintiffs' reply submission that were intended to fill chain-
Defendants also brought third party claims against the National Music Publishers' Association and its
president. Doc. 12. Those claims were dismissed in May 2016. Doc. 44.
of-title gaps raised by Defendants. 19 Because Defendants had raised those arguments for the first
time in their opposition papers and the documents were relevant, the Court concluded that the
documents were properly submitted in reply and denied Defendants' request. Doc. 240 at 8, 11.
The Court also granted Plaintiffs leave to submit additional, recently obtained documents that
Plaintiffs claimed would complete their chain of title for the Musical Works, and permitted
Defendants to submit a sur-reply addressing those chain-of-title issues. Doc. 240 at 8, 11; Doc.
234; id. Ex. A, Supplemental Declaration of Audrey Ashby, Exs. 202-210.
In their sur-reply, Defendants challenged the chain of title for 45 of the Musical Works
created by Pete Townshend (the "Townshend Works") and administered by Plaintiff Spirit
Catalog Holdings, S.a.r.l ("Spirit"). Defendants' Sur-Reply ("Defs.' Sur-Reply"), Doc. 242 at 4.
Defendants contended for the first time that Plaintiff Spirit did not own or possess an exclusive
license in the Townshend Works, and that its status as "exclusive administrator" was insufficient
to confer standing. Id. at 5.
On February 6, 2018, Plaintiffs moved to strike the portions of Defendants' sur-reply that
alleged a break in the chain of title for the Townshend Works. Doc. 244 at 1. They contended
that the chain-of-title documentation challenged by Defendants fell outside the scope of the
Court's prior order, and had been produced to Defendants not later than March 2017. Id. at 2.
Alternatively, Plaintiffs advanced several theories purporting to establish Spirit's standing to sue.
First, Plaintiffs claimed that because Townshend assigned Spirit his 50% share of writer's
royalties, Spirit was a beneficial owner with standing to sue. Id. Second, Plaintiffs claimed that
Spirits "exclusive administration rights" entitled them to bring suit on behalf of the owner or
exclusive licensee. Id. at 3. Third, Plaintiffs claimed that Spirit could bring suit on behalf of its
Defendants concede Plaintiffs' copyright ownership for purposes of their summary judgment motion.
See Defs.' MSJ at n.2.
wholly owned subsidiaries,Towser Tunes,Inc. and its subsidiary Towser Newco Ltd.,which the
parties agreed held the exclusive license in the Townshend Works. Id.; Doc. 242 at 6
("Towser-not its new parent Spirit-continued to hold any and all copyrights."). Finally,and
in the alternative,Plaintiffs requested leave to join its subsidiaries pursuant to Federal Rule of
Civil Procedure 17(a)(3). Doc. 244 at 3.
On March 26,2018,the Court heard oral argument on these issues,among others. In an
effort to reach the merits,the Court denied Plaintiffs' motion to strike and concluded that Spirit
lacked standing to sue under any of the theories advanced by Plaintiffs because neither exclusive
administration rights nor beneficial ownership in a writer's royalty share conferred to Spirit an
"exclusive right" as contemplated by the Copyright Act. See 17 U.S.C. § 501(b) (providing that
"the legal or beneficial owner of an exclusive right" may bring suit); id. § 106 (setting out the
"exclusive rights" referenced in Section 501(b)); Russian Entm 't Wholesale, Inc. v. Close-Up
Intern., Inc., 482 Fed.Appx. 602,604 (2d Cir. 2012) ("[T]he legal or beneficial owner of an
exclusive right under a copyright is entitled . ..to institute an action for any infringement of that
particular right committed while he or she is the owner of it."); Eden Toys, Inc. v. Florelee
Undergarment Co., Inc., 697 F.2d 27,32 (2d Cir. 1982),superseded on other grounds by Fed. R.
Civ. P. 52(a) ("The Copyright Act authorizes only two types of claimants to sue for copyright
infringement: [i] owners of copyrights,and [ii] persons who have been granted exclusive
licenses by owners of copyrights."); John Wiley & Sons, Inc. v. DRK Photo, 998 F. Supp. 2d
262,276-77 (S.D.N.Y.2014) ("Although the right to prosecute an accrued cause of action for
infringement is also an incident of copyright ownership,it is not an exclusive right under" the
Copyright Act.) (citations,alterations,and quotation marks omitted) ajf'd, 882 F.3d 394 (2d Cir.
2018). Nor does "a parent company [have] standing to bring claims on behalf of its subsidiary."
EMI Entm 't World, Inc. v. Karen Records, Inc., No. 05 CIV. 390 LAP, 2013 WL 2480212,at *3
(S.D.N.Y. June 10,2013); Yong Ki Hong v. KBS Am., Inc., 951 F. Supp. 2d 402,430 (E.D.N.Y.
2013) ("although the contract purports to delegate . ..authority .. . to protect [the] copyrights
from infringement,Eden Toys makes clear that a copyright owner cannot, by contract or
otherwise,grant a non-exclusive licensee the right to sue for copyright infringement").
The Court,however,granted Plaintiffs leave to join its subsidiaries,Towser Tunes,Inc.
and Towser Newco Ltd.,which indisputably do have standing to sue,see Defs.' Sur-Reply at 6,
concluding that their joinder would not prejudice Defendants as no new discovery was required,
and the subsidiaries had the same officers,executives and business operations as Spirit. See Fed.
R. Civ. P. 17(a)(3) ("The court may not dismiss an action for failure to prosecute in the name of
the real party in interest until,after an objection,a reasonable time has been allowed for the real
party in interest to ratify,join,or be substituted into the action.").
Motion for Summary Judgment
Summary judgment is appropriate where "the movant shows that there is no genuine
dispute as to any material fact." Fed. R. Civ. P. 56(a). "An issue of fact is 'genuine' if the
evidence is such that a reasonable jury could return a verdict for the non-moving party." Senno
v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454,467 (S.D.N.Y. 2011) (citing SCR Joint
Venture L.P. v. Warshawsky, 559 F.3d 133,137 (2d Cir. 2009)). A fact is "material" if it might
affect the outcome of the litigation under the governing law. Id. The party moving for summary
judgment is first responsible for demonstrating the absence of any genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). If the moving party meets its burden,"the
nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue
of fact for trial in order to avoid summary judgment." Saenger v. Montefiore Med. Ctr., 706 F.
Supp. 2d 494, 504 (S.D.N.Y. 2010) (internal quotation marks omitted) (citing Jaramillo v.
Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)).
In deciding a motion for summary judgment, the Court must "'construe the facts in the
light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant."' Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.
2011) (quoting Williams v. R.H Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). However,
in opposing a motion for summary judgment, the non-moving party may not rely on unsupported
assertions, conjecture or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14,
18 (2d Cir. 1995). To defeat a motion for summary judgment, "the non-moving party must set
forth significant, probative evidence on which a reasonable fact-finder could decide in its favor."
Senno, 812 F. Supp. 2d at 467-68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256-57
"When confronted with cross-motions for summary judgment, the Court analyzes each
motion separately, 'in each case construing the evidence in the light most favorable to the nonmoving party.'" Peterson v. Kolodin, No. 13 Civ. 793 (JSR), 2013 WL 5226114, at *1
(S.D.N.Y. Sept. 10, 2013) (quoting Novella v. Westchester Cty., 661 F.3d 128, 139 (2d Cir.
2011)); see also Morales v. Quintel Entm 't, Inc., 249 F.3d 115, 121 (2d Cir. 2001) ("[E]ach
party's motion must be examined on its own merits, and in each case all reasonable inferences
must be drawn against the party whose motion is under consideration.") ( citation omitted). The
Court is not required to resolve the case on summary judgment merely because all parties move
for summary judgment. Morales, 249 F.3d at 121.
To establish copyright infringement,a plaintiff must demonstrate '" (1) ownership of a
valid copyright, and (2) copying of constituent elements of the work that are original."' Kwan v.
Schlein, 634 F.3d 224,229 (2d Cir. 2011) (quoting Feist Pub! 'ns, Inc. v. Rural Tel. Serv. Co.,
Inc., 499 U.S. 340,361 (1991)). Copyright owners and their exclusive licensees are entitled to
bring an action for copyright infringement. See 17 U.S.C. § 501(a)-(b); Random House, Inc. v.
Rosetta Books LLC, 283 F.3d 490,491 (2d Cir. 2002). "A certificate of copyright registration is
prima facie evidence that the copyright is valid." Fonar Corp. v. Domenick, 105 F.3d 99,104
(2d Cir. 1997) (citing 17 U.S.C. § 410(c); Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759,763
(2d Cir. 1991)).
Once a plaintiff establishes infringement,a defendant may proffer as a defense proof that
it held a valid license to use that copyrighted work. See Associated Press v. Meltwater US.
Holdings, Inc., 931 F. Supp. 2d 537,561 (S.D.N.Y. 2013) (citing Graham v. James, 144 F.3d
229,236 (2d Cir. 1998)). A valid nonexclusive license "immunizes the licensee from a charge of
copyright infringement,provided that the licensee uses the copyright as agreed with the
licensor." Davis v. Blige, 505 F.3d 90,100 (2d Cir. 2007) (citing Graham v. James, 144 F.3d
229,236 (2d Cir. 1998) ("A copyright owner who grants a nonexclusive license to use his
copyrighted material waives his right to sue the licensee for copyright infringement.")).
The party raising the defense bears the burden of proving that a valid license exists.
Associated Press, 931 F. Supp. 2d at 561; Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104,107
(2d Cir. 1998) (noting that it is the "proponent" of an "affirmative defense to a claim of
infringement" that bears "the burden of proof') (citing Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569,590 (1994)); Am. Geophysical Union v. Texaco, Inc. 60 F.3d 913,918 (2d Cir. 1994)
(stating that a party claiming fair use "typically carries the burden of proof as to all issues in the
Copyright Ownership and Copying
Here, there is no dispute that Plaintiffs have produced copyright registrations for each of
the Musical Works at issue, entitling them to a prima facie presumption of validity. Fonar
Corp., 105 F.3d at 104 (citing 17 U.S.C. § 410(c); Folio Impressions, Inc., 937 F.2d at 763);
Defs' Counter 56.1 ,r 78. As noted, Defendants concede Plaintiffs' copyright ownership for
purposes of their summaryjudgm ent motion and ultimately challenged the chain of title for the
45Townshend Works only. See Defs.' MSJ n.2; Defs.' Sur-Reply at 5. Thejoinder of Plaintiff
Spirit's subsidiaries, Towser Tunes, Inc. and Towser Newco Ltd., resolved that chain-of-title
challenge and it is undisputed that Plaintiffs now have standing to sue for the entirety of the
Musical Works. See Doc. 234; id. Ex. A, Supplemental Declaration of Audrey Ashby, Exs. 202210; Ex. B, Supplemental Declaration ofTal. E. Dickstein, Ex. 57A (addressing each of the
chain-of-title issues raised by Defendants). Nor is there any dispute that Defendants have
exploited, in audio or audiovisual format, more than 1,175 recordings of Plaintiffs' Musical
Works, and manufactured physical records of certain of those works. Defs.' Counter 56.1 ,r,r 47,
50. Accordingly, Plaintiffs have established infringement and the burden shifts to Defendants to
demonstrate that they hold valid licenses authorizing the exploitation of Plaintiffs' Musical
Works. See Associated Press, 931 F. Supp. 2d at 561; Infinity Broad. Corp., 150 F.3d at 107.
In disputing Plaintiffs' copyright infringement claim, Defendants contend that, from 2007
to the present,2° they have held valid mechanical licenses-either in the form of compulsory
licenses acquired by their licensing vendors pursuant to Section 115's notice requirements, or
equivalent licenses through HF A-authorizing them to exploit the Musical Warks. Defs' MSJ at
22 (stating that in "Defendants first began acquiring mechanical licenses and paying Plaintiffs
under such licenses" in 2007). Defendants' Reply ("Defs.' Reply"), Doc. 217 at 2 ("Defendants
obtained compulsory mechanical licenses pursuant to 17 U.S.C. § 115."). Plaintiffs, on the other
hand, contend that Defendants do not have valid mechanical licenses and advance several bases
in support of their claim. First, they assert that audiovisual works-video recordings of the
works being performed live in concert-are not eligible for Section 115 compulsory mechanical
licenses. Second, Plaintiffs argue that none of Defendants' live concert recordings are eligible
for mechanical licenses because (i) they were not "lawfully fixed" in the first instance, (ii)
Defendants cannot show that they obtained the necessary authorization from the performers
reflected in those recordings, and (iii) Defendants cannot show that the recordings made prior to
February 15, 1972 were fixed pursuant to licenses from the owners of copyrights in the
underlying Musical Works, i.e., Plaintiffs or their predecessors. Third, Plaintiffs contend that
Defendants issued untimely and fraudulent NOIs that provide an independent basis for finding
their compulsory mechanical licenses invalid. Fourth, and finally, Plaintiffs assert that
Defendants' HFA licenses cannot shield them from the infringement alleged here. Plaintiffs'
Defendants implicitly concede that they did not have authority to exploit the works when they first
made certain of them available in 2006. However, they assert a statute of limitations defense with respect
to that infringing activity, which is addressed below.
Cross-Motion for Summary Judgment ("Pls.' MSJ"), Doc.191, at 22-34. The Court addresses
each of these arguments in turn.
1. Audiovisual Recordings
Relying on the text of the Copyright Act, Plaintiffs assert that Defendants' audiovisual
recordings are ineligible for Section 115 compulsory mechanical licenses. Pls.' MSJ at 22, 2526. 21 As Plaintiffs explain, "Section 115 grants a limited license to 'make and to distribute
phonorecords of [musical] works[.]"' Pls.' MSJ at 25 (citing 17U.S.C. § 115) (emphasis
added). The Copyright Act, in turn, defines "phonorecords" as:
material objects in which sounds, other than those accompanying a
motion picture or other audiovisual work, are fixed ..., and from
which the sounds can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device.
The term "phonorecords" includes the material object in which the
sounds are first fixed.
17U.S.C. § 101 (emphasis added).
Notwithstanding the statute's clear language, Defendants contend that the Copyright
Act's text compels the opposite result. For support they rely on the last sentence of the definition
of phonorecords, which states: "The term 'phonorecords' includes the material object in which
the sounds are first fixed." 17U.S.C. § 101; Defs.' Reply at 12. Defendants claim that because
their live concert recordings "first fixed" the sounds in those recordings as part of an audiovisual
work, the resulting "material object" qualifies as a phonorecord. Id. To conclude otherwise,
Defendants contend, would fail to give effect to both sentences and result in the second sentence
being "completely redundant, since 'material objects in which sounds . .. are fixed' plainly
includes the material objects in which sounds are first fixed." Id.
The parties agree that Defendants have exploited 206 audiovisual recordings that cover 146 of the
Musical Works. See Defs.' MSJ at 15; Pls.' MSJ at 23; Lundberg Deel., Ex. 5.
The Court finds Defendants' interpretation unpersuasive. The second sentence cannot
save Defendants from the first sentence's categorical exclusion ofaudiovisual works. That is
because the second sentence speaks only in terms of"the material object in which the sounds are
first fixed." Pursuant to its terms, then, the second sentence itselfreinforces the concept that
phonorecords include only sounds, and makes no mention ofaudiovisual works. Moreover, as
Plaintiffs note, Plaintiffs Reply ("Pls.' Reply"), Doc. 230 at 9, the use ofthe definite article "the"
to reference the concepts "material objects" and "sounds" can only be read to refer to these terms
as previously defined in the first sentence, that is to say, as expressly excluding audiovisual
works. See Am. Bus Ass 'n v. Slater, 231 F.3d 1, 4-5 (D.C. Cir. 2000) ("[I]t is a rule oflaw well
established that the definite article 'the' particularizes the subject which it precedes.") (citations
and internal quotation marks omitted); see also S.E.C. v. KPMG LLP, 412 F.Supp.2d 349, 38788 (S.D.N.Y. 2006) ("A [statute's] use ofthe definite article 'the,' as opposed to the indefinite
'a,' 'an,' or 'any,' indicates that Congress intended the term modified to have a singular
The Court does not make this determination on a blank slate. The Second Circuit has
held that the "plain language of[Section 101 of] the Copyright Act refutes" the claim that
Nor is the Court persuaded that the general preference of statutory construction that courts avoid
redundancy merits adopting Defendants' interpretation. As Plaintiffs explain, the more natural
interpretation is that Congress intended to ensure that the Copyright Act protected as phonorecords
material objects such as studio equipment on which "sounds are first fixed," just as it protected
commercially available objects such as records and CDs. Pis.' Reply at 8 - Where "[s]urplusage does
not ...produce ambiguity [the Court's] preference for avoiding surplusage constructions is not absolute."
Lamie v. U.S. Tr., 540 U.S. 526,536 (2004); Alliance for Open Soc '.Y Int'!, Inc. v. U.S. Agency for Int'l
Dev., 430 F. Supp.2d 222,247 ( S.D.N.Y. 2006), aff'd, 651 F. 218 (2d Cir. 2011), aff'd sub nom.
Agency for Int'! Dev. v. All.for Open Soc '.Y Int'!, Inc., 570 U.S. 205 (2013) ("[W]hen construing a statute,
the general preference against surplusage is constrained by the requirement that a construction avoiding
surplusage must be a reasonable one."); see also Sabre, Inc. v. Dep 't of Transp., 429 F.3d 1113, 1122
(D.C. Cir. 2005) ("Legislative drafters often use apparently redundant language in order to emphasize ...
"audiovisual works" fall "within the grant of [a] compulsory license." ABKCO Music, Inc. v.
Stellar Records, Inc., 96 F .3d 60, 65 (2d Cir. 1996) abrogated on other grounds by Salinger v.
Catting, 607 F.3d 68, 75 (2d Cir. 2010). In reaching that conclusion, the Court explained that
"[p]honorecords are defined as objects on which 'sounds' are fixed," but that the definition does
not include "objects on which sounds and visual representations . ..are fixed." Id. (emphasis in
original). The Court further noted that the term "phonorecords" excludes "audiovisual works,"
which, by definition, "'consist ofa series ofrelated images... together with accompanying
sounds." Id. (quoting 17 U.S.C. § 101). There is no dispute that Defendants' "audiovisual
recordings" (a term they employ almost exclusively) meet this definition. 23 Accordingly,
Defendants' license defense fails with respect to each ofthe 206 audiovisual recordings.24
2. Lawful Fixation
S ection 115(a)(l) provides that:
[a] person may not obtain a compulsory license for use of the
[musical] work in the making of phonorecords duplicating a sound
recording fixed by another, unless: (i) such sound recording was
fixed lawfully; and (ii) the making of the phonorecords was
For the reasons stated above, the Court declines Defendants' invitation to reject the holding of ABKCO
Music, Inc., on the basis that that the Court would have reached a different conclusion had the case
concerned a "first fixed" recording. Defs.' Reply at 14.
In their papers, the parties dispute whether Defendants need "synchronization" licenses to exploit their
audiovisual recordings. See Pis.' MSJ at 23-24; Defs.' MSJ at 15. But the issue before the Court is
whether Defendants had valid licenses for their audiovisual recordings that immunizes them from a
charge of infringement. Because the Court concludes that mechanical licenses do not cover audiovisual
recordings, it need not address whether Defendants needed synchronization licenses (which they never
obtained) to exploit audiovisual recordings of the Musical Works. Defendants sought adjudication of that
issue as part of their counterclaims against Plaintiffs. See Doc. 9 at 20-23. In Defendants' Notice of
Motion for Summary Judgment and/or Summary Adjudication, however, they moved only on "Plaintiffs'
claims of copyright infringement against Defendants," but did not seek summary judgment on their
counterclaims. Doc. 161 at 1. Nor have Plaintiffs cross-moved for summary judgment on Defendants'
counterclaims. See Doc. 191 at 2 (seeking a "grant [of] summary judgment on liability for Defendants'
infringements of Plaintiffs' copyrights in and to each of the musical works at issue," but not moving for
summary judgment on Defendants' counterclaims); Pis.' Reply at 8 ("the Court need not define the scope
of a synch license in order to decide this motion").
authorized by the owner of copyright in the sound recording or, if
the sound recording was fixed before February 15, 1972, by any
person whofixed the sound recording pursuant to an express license
from the owner of the copyright in the musical work or pursuant to
a valid compulsory license for use of such work in a sound
17 U.S.C. 115(a)(l) (emphasis added).
In order for a work to be lawfully fixed it cannot "constitute copyright infringement
under federal law,or common law copyright infringement,unfair competition," or any other
violation of state law. 2 Nimmer§ 8.04[E] n.8 8. The parties are in agreement that Section
115(a)(l)(i) requires Defendants to have obtained the consent of the musical performers for their
recordings to be lawfully fixed. See Pls.' MSJ at 29 ("Defendants must show that [the concert
recordings] were made with the consent of ...the performing artists ...."); Defs.' Reply at 6
("Whether a fixation is 'lawful' depends exclusively on whether the performer 's consent was
obtained.") (alteration omitted). This is because it is a violation of state and federal law to record
a live musical performance "without the consent of the performer or performers involved." 17
U.S.C. § llOl(a); see also N.Y.Penal Law§ 275. (criminalizing the manufacture or sale of an
unauthorized recording of a performance where,among other things,a person sells,resells,or
rents any recording "the person knows " was produced "without the consent of the performer ").
The parties disagree,however,as to whether consent of the performers was properly obtained.
They also dispute whether lawful fixation requires the consent of the holder of a copyright in a
musical work. See Pls.' MSJ at 31, 33; Defs.' Reply at 6-8.
The Court turns to the issue of the performers' consent first,because if it is resolved in
Plaintiffs' favor, the Court need not reach the question of whether lawful fixation also requires
the consent of the holder of a copyright in the musical work.
In support of their claim that their live concert recordings were lawfully fixed,
Defendants rely on the three Joint Exploitation Agreements entered into with third-party record
labels years after they began exploiting their collection of live recordings and a sales agreement
conveying to Defendants a collection of live recordings covering six of the Musical Works.
Defs.' Reply at 9. According to Defendants, those agreements purport to show that "performers
duly consented to the first fixation of their live performances." Id. Plaintiffs contend that these
agreements are insufficient because they are not proof of consent from the performers
themselves and because they are inadmissible hearsay that may not be considered on a motion
for summary judgment. Pls.' Reply at 3. The Court agrees.
The Joint Exploitation Agreements, which were entered into in 2009, in most cases
decades after the recordings were fixed, are insufficient to demonstrate that the initial fixation of
those recordings was lawful because, contrary to Defendants' characterization, the agreements
do not purport to "acknowledge that the recordings were lawfully made." Defs.' Reply at 9.25
The Court separately concludes that the joint exploitation and sales agreements are inadmissible for the
purposes of proving that the artists gave their consent. The agreements purport to contain out of court
statements by the artists (i.e., that they consented to the fixation and exploitation of their recordings),
within a document that is itself an out of court statement. While the contract itself is admissible because
it is a verbal act, Fed. R. Evid. Note to 801(c), the document may not be used to prove artist consent
because the artists are not signatories to the agreement and their statements are hearsay, for which
Defendants have not offered an applicable exception. See Fed. R. Evid. 801(c); cf id. 805; (noting that
"each part of the combined statements [must] conform with an exception to the [hearsay] rule").
Accordingly, because factual assertions must be supported by admissible evidence, the Court may not
consider these documents on summary judgment for the purpose of determining that the performing
artists consented to the fixation and exploitation of their performances. See Fed. R. Civ. P. 56(c)(2).
On March 23, 2018, Defendants requested leave to submit replacement copies of the Joint Exploitation
Agreements, which, unlike the version of those Agreements addressed above, do provide schedules of the
artists and performances to which those agreements apply. Those agreements, however, still do not
include the actual artist authorizations and do not purport to provide consent for the fixation of the
recordings. Moreover, those documents also contain the same hearsay issue noted above. As such, the
Court denies Defendants' request to supplement these documents into the summary judgment record as
this late hour.
Rather, the Sony and Warner agreements contain representations and warranties from the third
party record labels that purport to have the consent of artists that authorize the record labels to
grant Defendants the right to exploit the sound recordings in which those artists ' performances
Neither of these agreements provide any written
consent from the artists themselves or purport to say anything about whether the artists consented
to the initial.fixation of these recordings.
Defendants cannot rely on documents purporting to grant exploitation rights as proof that
artists consented to the initial fixation of their performance decades prior. See 17 U.S.C. § 101
("A work is 'fixed' in a tangible medium of expression when its embodiment in a copy or
phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit
it to be perceived .. .. "). This requirement is not pure semantics. The requirement that the
recording be "fixed lawfully," which requires performer consent, is separate from the
requirement that copyright holders in the performance authorize the "making of the
phonorecords," i.e., that the reproduction and distribution of the recording is also authorized.
See id. § 115(a)(l )(i)-(ii). At best, the Sony and Warner agreements purport to do the latter, and
are insufficient even in that respect.
As Plaintiffs point out, Pls.' Reply at 4, the agreements do not identify the performers, or
attach any written consents from those performers. There is therefore no basis on which a trier
of fact could determine which performers or recordings these Joint Exploitation Agreements
ostensibly cover. Finally, even if those agreements were proof that the Defendants were
authorized to reproduce and distribute those works, neither the Sony nor the Warner agreement
applies to any audiovisual recordings of the Musical Works. See Lundberg Deel., Ex. 2-
The UMG agreement is even less helpful to Defendants' case.
Defendants similarly rely on a sales agreement conveying to Defendants a collection of
live recordings covering six of the Musical Works. Defs.' Reply at 9. In that agreement, the
music venue operator, the Great Music Hall, represented and warranted that
Although that agreement at least purports to have contemporaneous consents
from artists to lawfully fix recordings of their performances, the agreement does not attach any
of the artist consents. Moreover, that agreement provides that Defendants were required
Id. As Plaintiffs note, nothing in the record indicates that Defendants have complied with that
requirement. Pls.' Reply at 3 n.8.
Moreover, Defendants' claim of artist consent is belied by contrary admissible evidence
that consent does not exist. As an initial matter there is no dispute that Defendants have not
produced a single performance agreement or consent from any of the performing artists at issue.
Defs.' Counter 56.1 ,r 20. .The BGA collection contained a side letter to that purchase agreement
Id. ,r 18 (citing Dickstein Deel., Ex. 7 at *2). And Defendants never
viewed any artist performance contracts authorizing the recording of those performances, nor
were they made aware that such agreements existed. Id. ,r 19. Krassner, the attorney who
represented the seller in connection with the BGA sale, specially
Likewise, David Hewitt, from whom Defendants purchased a collection of recordings,
acknowledged that he did not have written consents from performers because it was not industry
custom to acquire such consents when those performances were recorded. Defs.' Counter 56.1 ,r
33. That collection contains 303 recordings covering 86 of the Musical Works. Dickstein Deel.
Ex. 11 (Columns E & F). Similarly, the agreement by which Festival Network acquired a
collection of concert recordings later sold to Defendants in 2009 noted that Festival Network's
Defs.' Counter 56.1 ,-i 34. Finally,there is undisputed
evidence that the three performing artists whom Defendants sought to depose-Keith Richards,
David Byrne,and Michael Stipe-could not recall ever consenting to the recording of their
performances. Defs.' Counter 56.1 ,-i 30. As a result,Defendants have not sustained their burden
of demonstrating that any of their recordings were lawfully fixed.
Pre-1972 Musical Works
Section 115 separately requires that,for "sound recordings ...fixed before February 15,
1972," compulsory licensees must demonstrate that the making of phonorecords was authorized
"by any person who fixed the sound recording pursuant to an express license from the owner of
the copyright in the musical work or pursuant to a valid compulsory license for use of such work
in a sound recording." 17 U.S.C. § 115(a)(l )(ii); see also Blagman v. Apple, Inc., No. 12 Civ.
5453 (ALC) (JCF), 2014 WL 128 5496,at *7 (S.D.N.Y.Mar. 31, 2014) ("Federal copyright law
further provides that a compulsory license in the underlying composition may not issue unless,
for sound recordings fixed prior to 1972,the duplicator obtains authorization from the person
who fixed the sound recording,who must themselves have had authorization [from] the
copyright owner of the .. . underlying composition.") (citation and quotation marks omitted); 2
Nimmer § 8.04[E]  ("The compulsory licensee must be authorized to make that duplication by
the person who fixed the sound recording,who must, in tum, have made the fixation pursuant to
a consensual or compulsory license from the copyright owner of the musical work that was thus
For precisely the same evidentiary reasons, Defendants cannot show that "the making of the
phonorecords was authorized by the owner of copyright in the sound recording." 17 U.S.C. §
l 15(a)(l)(ii); see also In re Cellco P 'ship, 663 F. Supp. 2d 363, 369 (S.D.N.Y. 2009) (The owner of a
copyright in the sound recording "is the performer(s) whose performance is fixed, or the record producer
who processes the sounds and fixes them in the final recording, or both."); In re Porter, 498 B.R. 609,
670 (Bankr. E.D. La. 2013) ("A sound recording is owned by the person whose performance is reflected
on the recording.").
fixed."). That is because the Copyright Act does not protect "sound recording[s] fixed before
February 15, 1972." 17 U.S.C.A.§ 301(c); see 2 Nimmer§ 8.04[E] (noting that sound
recordings fixed prior to February 15, 1972 are "not subject to statutory copyright").
Defendants claim that Plaintiffs have not refuted the evidence that pre-1972 recordings
were properly authorized. Defs.' Reply at 5. This argument is totally without merit. As an
initial matter it is Defendants who bear the burden of proving that their licenses were valid. See
Associated Press, 931 F. Supp. 2d at 561; Infinity Broad. Corp., 150 F.3d at 107. But more
importantly, there is nothing for Plaintiffs to refute: Defendants point to no evidence that the
sound recordings were fixed pursuant to an express license or valid compulsory license from the
holders of copyrights in the Musical Works, i.e., Plaintiffs or their predecessors. See 17.U.S.C.§
115(a)(l)(ii). As such, Defendants have failed to establish that they hold valid licenses for any
of the pre-1972 recordings.
3. HFA Licenses
From 2007 to 2010, prior to hiring RightsFlow to manage their licenses, Defendants
worked directly through HF A. Lundberg Deel. ,r,r 41-47. Defendants contend that these
licenses are "negotiated licenses" that are not subject to the requirements of Section 115. Defs.'
MSJ at 19; Defs.' Reply at 15. Plaintiffs disagree, claiming that the HFA licenses are Section
115 compulsory licenses and invalid for the same reasons set forth above. Pls. MSJ at 13, 3435. The Court concludes that Defendants' HFA licenses are insufficient to establish that licenses
are valid because those licenses do not alter the substantive requirements of Section 115.
Most mechanical licensees do not use Section 115's notice requirements. Rather, they
acquire licenses through HF A, which is authorized to issue mechanical licenses on behalf of
publishers. See EMI Entm 't World, Inc. v. Karen Records, Inc., 603 F. Supp. 2d 759, 763
(S.D.N.Y. 2009); Rodgers & Hammerstein Org. v. UMG Recordings, Inc., No.00 CIV. 9322
(JSM),2001 WL 1135811, at *2 (S.D.N.Y. Sept. 26, 2001). Although HFA acts to "streamline
the procedures created by§§ 115(b) and 115(c)," the "[l]icenses issued by [HFA] do not ... alter
the basic rights and obligations of the licensee under§ 115." EM! Entm 't World, Inc., 603 F.
Supp. 2d at 763-64; see also Rodgers & Hammerstein Org., 2001 WL 1135811, at *2.
That understanding is borne out by the undisputed record evidence. Defendants'
communications with HFA confirm that the licenses HFA issued were
Defendants have put forward no evidence to support their contention that the HFA
licenses they obtained deviated from Section 115's substantive requirements.
Defendants' HFA licenses are therefore invalid as a matter of law: They are
substantively invalid because, as set forth above, there is no indication that the recordings were
lawfully fixed, or that the pre-1972 recordings were fixed pursuant to express or compulsory
licenses from Plaintiffs or their predecessors. And just as a Section 115 mechanical license does
not apply to audiovisual works, the HFA licenses do not either. See Sony/ATV Puhl 'g, LLC v.
Marcos, 651 F.App'x 482,485 (6th Cir. 2016) (HFA licenses are a "standard compulsory
Defendants take out of context language in Rodgers & Hammerstein Org., which states that "HFA
waives the statutory notice requirements." 2001 WL 1135811, at *2. Understood in context, that case
stands for the proposition that HFA acts as the publishers' "agent to receive notice[s] of the intention to
obtain a compulsory license, and to collect and distribute royalties." Id. It does not stand for the
proposition that parties need not have HFA licenses prior to distributing phonorecords of a musical work.
license limited to distribution of phonorecords and incorporates the statutory definition of that
term, which excludes 'audiovisual work[s]."') (quoting 17U.S.C. § 101). Moreover, because
Defendants concede they began exploiting certain recordings in 2006, but only obtained HFA
licenses beginning in 2007, recordings exploited prior to obtaining an HFA license are, as set
forth directly below, independently barred by Section 115's filing requirements, and any
reproduction or distribution made pursuant to those untimely licenses, constitutes infringement.
4. Untimely NOis
As a further independent basis for finding Defendants' mechanical licenses invalid,
Plaintiffs contend that Defendants' NOis were not filed prior to the reproduction and distribution
of their phonorecords, and are therefore invalid pursuant to Section 115(b ). Pls.' MSJ at 26. For
support they cite to a spreadsheet showing that for all but five recordings Defendants filed NOis
months or years after they admittedly began exploiting those recordings. See Pls.' MSJ at 12;
Defs.' Counter 56.1 ,r 60; Dickstein Deel. Ex. 52; Dickstein Deel. Ex. 1, Lundberg Dep. at
245:13-257:25 (stating "we always publish [songs] before we file [NOis]").28 For their part,
Defendants advance two positions, one factual, the other legal. As a factual matter, Defendants
assert that they held HFA licenses prior to submitting NOIs pursuant to Section 115's notice
requirements. Defs.' Reply at 15. As a result, they explain, Plaintiffs' claim that NOis were
filed months or years after the exploitation of the relevant recording is without basis. For
support, they point to Lundberg's declaration, which avers that Defendants have held a
On March 23, 2016, Defendants requested leave to file a supplemental declaration on behalf of
Lundberg, in which he attempts to explain away his prior sworn deposition testimony that Defendants had
a practice of making recordings available on their websites prior to filing NOIs. Doc. 252. Because the
proposed supplemental declaration contradicts Lundberg's prior sworn testimony, the Court denies
Defendants' request. See Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572
(2d Cir. 1991) ("The rule is well-settled in this circuit that a party may not, in order to defeat a summary
judgment motion, create a material issue of fact by submitting an affidavit disputing pnor sworn
mechanical licensing account with HFA since 2007 and licensed musical works through HFA
until 2010. Lundberg Deel.,r,r 42-44. They also point to a spreadsheet that contains each
recording that was licensed through Defendants' HFA account along with the HFA license
number. Id. Ex. 29; Defs.' Counter 56. ,r 62. Having reviewed the record evidence, the Court
concludes that there is a disputed question of fact as to whether and which NOis were actually
submitted after the first download or streaming of a phonorecord and in the absence of an HFA
license. Although the parties offer evidence which they claim resolves this issue, as best the
Court can tell, neither the affidavits or spreadsheets relied on by the parties on their own terms
bridge the gap between the HFA licenses and the submission of NOIs.
Second, Defendants contend that as a legal matter the incorrect date of distribution on
theirNOis is "harmless error." See Defs.' Reply at 25 (citing 37 C.
F.R. § 201.
errors in a Notice that do not materially affect the adequacy of the information required to serve
the purposes of section 115(b)(1) of title 17 of the United States Code, shall not render the
Section 115(b)(1) expressly provides that "[a]ny person who wishes to obtain a
compulsory license under this section shall, before or within thirty days after making, and before
distributing any phonorecords of the work, serve notice of intention to do so on the copyright
owner. " 17 U.S.C. § 115(b)(l) (emphasis added). Section 115(b)(2) then states that "[f]ailure to
serve or file the notice required by clause (1) forecloses the possibility of a compulsory license
and, in the absence of a negotiated license, renders the making and distribution of phonorecords
actionable as acts of infringement ...." Id. § 115(b)(2). In view of this language, and the
absence of case law to the contrary, the Court declines to read the regulation's harmless error
exception as an exemption from the mandatory filing period in Section 115(b)(1). See e.g.,
Cherry River Music Co., 38 F. Supp. 2d at 312 ("[T]he failure to serve the [NOI] before
distributing phonorecords ... before the start of distribution precludes the creation of a
compulsory license, and it does so both as to copies distributed prior to service and as to copies
distributed thereafter.") (emphasis added). Rather, the Court construes the harmless error
exception to apply to the clerical filing formalities contained in that provision. See 17 U.S.C. §
11 S(b )(1) (providing that the NOI "shall comply, in form, content, and manner of service, with
requirements that the Register of Copyrights shall prescribe by regulation").
To summarize, the Court concludes that Defendants hold no valid licenses authorizing
the reproduction and distribution of the Musical Works. Audiovisual recordings are not covered
by Section 115 mechanical licenses, and Defendants have not met their burden of establishing
that the balance of their recordings were fixed or manufactured with the consent of the artists
featured in them, nor have they demonstrated that the pre-1972 recordings were fixed pursuant to
an express or valid compulsory license from the copyright holders in the Musical Works, i.e.,
Plaintiffs or their predecessors. Moreover, any mechanical licenses-whether procured by NOIs
or through HFA-that were not filed prior to the distribution of the related phonorecords are, as
a legal matter, invalid. However, there remain questions of fact as to whether certain of the
NOIs were untimely filed, or covered by preexisting HFA licenses. While that issue does not
alter the Court's analysis of infringement, as discussed below, it does raise a triable issue on
whether untimely NOIs were recklessly or willfully filed after the distribution of phonorecords.
1. Implied License
"[T]he existence of an implied license to use the copyright for a particular purpose
precludes a finding of infringement." Johnson v. Jones, 149 F.3d 494,500 (6th Cir. 1998).
Because non-exclusive licenses do not transfer ownership and therefore are not subject to the
writing requirement of Section 204 of the Copyright Act,id., "[a] nonexclusive license may be
granted orally,or may even be implied from conduct." 3 Nimmer§ 10.03[A].
'" [T]he Second Circuit has not yet ruled on the precise circumstances under which an
implied non-exclusive license will be found."' Psihoyos v. Pearson Educ., Inc., 855 F. Supp. 2d
103,120 (S.D.N.Y. 2012) (quoting Weinstein Co. v. Smokewood Entm 't Grp., LLC, 664 F. Supp.
2d 332, 344 (S.D.N.Y. 2009)). It has, however, endorsed the view of other circuits "and
cautioned that implied non-exclusive licenses should be found 'only in narrow circumstances
where one party created a work at the other's request and handed it over intending that the other
copy and distribute it."' Weinstein Co., 664 F. Supp. 2d at 344 (alterations and second internal
quotation marks omitted) (quoting SmithKline Beecham Consumer Healthcare, L.P. v. Watson
Pharm., Inc., 211 F.3d 21,25 (2d Cir. 2000) (addressing implied license on interlocutory appeal)
Defendants half-heartedly contend that the Copyright Act's three-year statute of limitations bars
Plaintiffs' claims as to any "issues" that existed with their licenses prior to May 27, 2012. Defs.' MSJ at
24; Defs.' Reply at 26-27. That is incorrect. As Plaintiffs correctly point out, see Pls.' MSJ at 40,the
statute of limitations bars any "actions" that are not "commenced within three years after the claim
accrued." 17 USC§ 507(b). The "issues" that Plaintiffs raise with Defendants' license defense, for
which it bears the burden, are not the claims of "infringement" that Plaintiffs allege. There is no dispute
that Defendants have exploited each of the Musical Works within three years of the filing of the
Complaint. Defs. Counter 56. ,r 87 (citing Dickstein Deel.,Exs. 26 (showing dates of download in
Column C), 56 (showing the month and year of streams in Columns I and J)). Accordingly, those claims
for infringement are timely and Plaintiffs may recover on them,irrespective of when "issues" with
Defendants' licenses arose. See Kwan v. Schlein, 634 F.3d 224,228 (2d Cir. 2011) (although "[a]n
ownership claim accrues only once ...an infringement action maybe commenced within three years of
any infringing act, regardless of any prior acts of infringement'') (citations omitted). Defendants' reliance
on Simmons v. Stanberry, is misplaced because that case concerned a claim of copyright ownership, not
copyright infringement. 810 F.3d 114 (2d Cir. 2016).
(citing Effects Assocs., Inc. v. Cohen, 908 F.2d 555,558 (9th Cir. 1990)); see also I.A.E., Inc. v.
Shaver, 74 F.3d 768,776 (7th Cir. 1996) (finding an implied license where: "(1) a person (the
licensee) requests the creation of a work,(2) the creator (the licensor) makes that particular work
and delivers it to the licensee who requested it, and (3) the licensor intends that the licensee
requestor copy and distribute his work"); Lulirama Ltd. v. Axcess Broad. Servs., Inc., 128 F.3d
872, 879-81 (5th Cir. 1997) (finding implied license where licensor created song at request of
defendant); Jacob Maxwell, Inc. v. Veeck, 110 F.3d 749,752-53 (11th Cir. 1997) (same).
Although some courts have applied a more lenient test,those courts fall outside of this
circuit or predate the Second Circuit's decision in SmithKline. See, e.g., Field v. Google Inc., 412
F. Supp. 2d 1106, 1116 (D. Nev. 2006) ("Consent to use the copyrighted work need not be
manifested verbally and may be inferred based on silence where the copyright holder knows of
the use and encourages it."); Keane Dealer Servs., Inc. v. Harts, 968 F. Supp. 944, 947
(S.D.N.Y. 1997) (noting that "consent given in the form of mere permission or lack of objection
is also equivalent to a nonexclusive license and is not required to be in writing") (citation
omitted). Under either formulation,the touchstone of implied consent analysis is whether there
was a "meeting of the minds." Psihoyos, 855 F. Supp. 2d at 124 (citing Ulloa v. Universal
Music and Video Distrib. Corp., 303 F. Supp. 2d 409,416 (S.D.N.Y. 2004); Design Options, Inc.
v. BellePointe, Inc., 940 F. Supp. 86, 92 (S.D.N.Y. 1996) (requiring evidence that "both parties
to the transaction,not just the defendant,intended that the defendant could use or copy the
plaintiffs work without liability for copyright infringement"); Viacom Int'!. Inc. v. Fanzine Int'!.
Inc., No. 98 Civ. 7448 (KMW), 2000 WL 1854903, at *3 (S.D.N.Y. July 12, 2000) ("As with all
copyright licenses,an implied license protects the licensee only to the extent the copyright
owners intended that their copyrighted works be used in the manner in which they were
eventually used.") (quotation marks omitted).
Defendants contend that Plaintiffs granted them an implied license by accepting their
payments for several years and failing to object to their exploitation of the recordings at issue.
See Defs.' MSJ at 18-20. They assert that this "longstanding course of dealing with Plaintiffs
has permitted them to believe that they have properly licensed the compositions in question. " Id.
at 20. Plaintiffs counter that Defendants' implied-license defense is barred by their unclean
hands, and that, in any event, Defendants fail to demonstrate that Plaintiffs granted them an
implied license. See Pls.' MSJ at 41-45. The Court concludes it need not reach the unclean
hands issue, because Defendants cannot meet their burden under either version of the implied
Under the more rigid formulation endorsed by the Second Circuit, Defendants falter at
the gate, as they do not even contend-and there is no admissible evidence to support-that they
"'created [their] [recordings] at the [Plaintiffs'] request."' Weinstein Co., 664 F. Supp.2d at 344
(quoting SmithKline Beecham Consumer Healthcare, L.P., 211 F.3d at 25).
Even under the more lenient test, Defendants cannot show that there was a meeting of the
minds. Defendants assert that the meeting of the minds is manifest from their royalty payments
and Plaintiffs ' acceptance of those payments. See Defs.' MSJ at 19. For support, they rely on
Keane Dealer Servs., Inc., for the proposition that a meeting of the minds can be inferred from
"lack of objection." 968 F. Supp.at 947. On that basis, they conclude that "knowledge of, and
acquiescence in, the use of copyrighted material ...may constitute an implied license." See
Defs.' MSJ at 19. That case has no persuasive force under these circumstances.
As Plaintiffs note, the parties in that case had extensive communications with each other
and plaintiff admitted that it was aware of the nature of defendant's use of the software at issue.
968 F. Supp. at 946. Indeed, the software, "an automated trading system [that] traded a
proprietary account . . . against incoming retail order flow," had but one clear use. Id. Here,
aside from Plaintiff ABKCO's cease and desist letters in August of 2013 and 2014, Defs.'
Counter 56.1 ,r 64, there is no evidence that the parties communicated with each other and no
evidence that Plaintiffs understood the nature of the use that they were licensing. This lack of
understanding is in large part due to the nature of the compulsory licensing scheme. That is to
say, copyright holders in musical works have no say in whether to grant these licenses. Instead,
when a licensee manifests their intention to manufacture "phonorecords" pursuant to Section
115, Plaintiffs are entitled to rely on the compulsory licensees' compliance with the requirements
of that provision.30
Under these circumstances, prudential concerns also counsel against imputing intent to
compulsory licensors who accept payments made pursuant to ostensibly valid NOIs and HFA
licenses. As Plaintiffs persuasively argue, by conditioning the availability of the compulsory
license on the timely filing of the NOI, Congress sought to impose strict liability on
manufacturers who fail to comply with the terms of Section 115. Pls.' MSJ at 44 (citing 17
U.S.C. § l 15(b)(2) ("Failure to serve or file the [NOI] required by clause (1) forecloses the
possibility of a compulsory license and, in the absence of a negotiated license, renders the
The terms of the agreements entered into with HFA, RightsFlow, and MediaNet all indicate that the
statutory requirements of Section 115 control the availability of the compulsory licenses Defendants
obtained. See Lundberg Deel. ,r SO(h), Ex. 31 (HFA licenses) at 1-2; Dickstein Deel. Ex. 31 (RightsFlow
Agreement) ,r,r l(a), 7(b)(iii); Ex. 32 (MediaNet Agreement) ,r,r 1.16, 4(a).
making and distribution of phonorecords actionable as acts of infringement .... ")). Finding an
implied license whenever a licensee remits payments under Section 115 would require
songwriters to "investigate the bona fides of every NOI they receive," or risk granting an implied
license for otherwise unlawful use. Id.
Defendants' payments were expressly conditioned on the lawful fixation of phonorecords
(but not audiovisual works) and the filing of NOIs prior to the date of distribution. Where, as
here, a licensee fails to meet the substantive and procedural requirements of that provision,they
cannot claim that there was a meeting of the minds as to how those licenses would be used. The
inherent assumption was compliance with the commands of Section 115. Defendants' failure to
satisfy those conditions defeats their claim that a meeting of the minds existed between the
parties. Cf Graham v. James, 144 F.3d 229,237 (2d Cir.1998) (noting that '"if the nature of a
licensee's violation consists of a failure to satisfy a condition to the license ...,it follows that
the rights depend[e]nt upon satisfaction of such condition have not been effectively licensed, and
therefore,any use by the licensee is without authority from the licensor and may therefore,
constitute an infringement of copyright' ") (citing 3 Nimmer § 10. [A]). Indeed,"no court has
found an implied license where the nature of the use is contested." SHL Imaging, Inc. v. Artisan
House, Inc., 117 F.Supp. 2d 301,317 (S.D.N.Y. 2000).
The objective facts concerning the course of conduct between the parties do not support a
finding that an implied license existed. There is no evidence that Defendants intended
audiovisual recordings of their Musical Works to be exploited under the guise of Section 115
Prior to the 1972 Copyright Act, manufacturers who "faile[d] to serve a notice of intention to use,''
were liable only for the statutory royalty rate plus a minimal award of damages of "not more than 6 cents
per record." S. REP. 94-473. This limitation on liability, however, was "strongly criticized as inadequate
either to compensate the copyright owner or to deter infringement." Id. Section l 15(b)(2) of the 1972
Act was therefore intended to deter non-compliance with Section l 15's notice provision by making
violators strictly liable for copyright infringement.
compulsory mechanical licenses. Nor is there any indication that Plaintiffs intended recordings
that were not fixed or exploited with the appropriate consents to be laundered into lawful
reproductions by reason of the compulsory license regime. Accordingly, Defendants' implied
license defense fails.
For substantially the same reasons, Defendants have not established a basis for estoppel.
To prevail on an estoppel defense in the copyright context, a defendant must show that:
(1) plaintiff had knowledge of the defendant's infringing conduct;
(2) plaintiff either (a) intended that defendant rely on plaintiffs acts
or omissions suggesting authorization, or (b) acted or failed to act in
such a manner that defendant had a right to believe it was intended
to rely on plaintiffs conduct; (3) defendant was ignorant of the true
facts; and (4) defendant relied on plaintiffs conduct to its detriment.
SimplexGrinnell LP v. Integrated Sys. & Power, Inc., 642 F. Supp. 2d 167, 194 (S.D.N.Y.2009)
(citation and quotation marks omitted) (emphasis added). "Courts have warned that '[e]stoppel
is a drastic remedy and must be utilized sparingly. Clearly, a successful application of this
remedy requires the party asserting estoppel to use due care and not fail to inquire as to its rights
where that would be the prudent course of conduct.'" Psihoyos, 855 F. Supp. 2d at 129 (quoting
Keane, 968 F. Supp. at 948).
Defendants rely on two bases to support their claim of estoppel. First, they argue that
Plaintiffs "knew" of Defendants "allegedly infringing conduct" and profited "from that conduct
since 2007," when Defendants acquired an account with HFA and began paying Plaintiffs under
HFA licenses. Defs.' MSJ at 22. Defendants assert that those continued payments are proof of
their detrimental reliance. Id. at 23. Second, Defendants contend that the Joint Exploitation
Agreements are proof of their "good faith belief that they were acting under the proper licenses
and authority." Id. at 22.
Defendants' sole proof of knowledge is the fact that they made payments to Plaintiffs
pursuant to mechanical licenses. See id. at 22 (citing Defs.' 561., 6); Lundberg Dec. Exs. 7
(Transaction Statement for ABKCO), 10 (Transaction Statement for EMI), 13 (Transaction
Statement for Imagem), 16 (Transaction Statement for Peer), 19 (Transaction Statement for
Spirit), Ex. 22 (Transaction Statement for Warner); Defs.' Reply at 24 (citing Defs.' 561., 7;
Lundberg Deel. Ex. 21 (NOis sent by MediaNet to Warner)). But just as Defendants could not
show that there was a "meeting of the minds" in the implied license context, they cannot show
that Plaintiffs "knew" that their conduct was infringing. The transaction statements relied on by
Defendants are summaries of the checks cashed by Plaintiffs and are not proof that Plaintiffs
knew Defendants' conduct was infringing. Nor are NOis or HFA licenses that explicitly state
that Defendants seek licenses for "phonorecords" as "authorized pursuant to 17 U.S.C. § 115."
Lundberg Deel. Ex. 21 (NOis sent by MediaNet to Warner); see id. Ex. 31 at 1 - (HFA
informing Defendants that they were receiving
As a result,
Defendants cannot prove the first element of their equitable estoppel defense, and it must
The Court separately notes that Defendants' estoppel claim fails because they were not ignorant of the
facts at issue. As discussed above in detail, when Defendants acquired their collection they were well
aware of the myriad licensing and authorization issues they faced with respect to performing artists and
the holders of copyrights in the compositions. Indeed, the record is clear that Defendants were repeatedly
and specifically told that the sales agreements did not convey the intellectual property rights that
Defendants now claim entitlement to exploit. The Joint Exploitation Agreements that they entered into
three years after they began exploiting some portion of the Musical Works-did not purport to resolve a
number of those issues. On their terms, those agreements said nothing about whether the recordings were
fixed with the consent of the performing artist. See Lundberg Deel., Exs. 2, 3, 4. Likewise, Defendants
cannot credibly claim ignorance with respect to any of the audiovisual works, as the Sony and Warner
agreements expressly excluded audiovisual recordings, see Lundberg Deel., Ex. 2, § 3.6(f), id. Ex. 3, §
10.3; Defs.' 56.1 � 79, and the definition of phonorecords expressly excludes audiovisual works, see 17
U.S.C. §§ 101, 115. In addition, there is no reasonable basis to conclude that Defendants were ignorant to
the fact that sound recordings fixed prior to 1972 were required to be fixed pursuant to a license from the
holder of the copyright in the musical work. That is an unambiguous requirement of Section 115.
The Copyright Act permits a court to "increase the award of statutory damages to a sum
of not more than $150,000" where a defendants infringement is willful. 17 U.S.C. § 504(
"A copyright holder seeking to prove that a copier's infringement was willful must show that the
infringer 'had knowledge that its conduct represented infringement or ... recklessly disregarded
the possibility."' Bryant v. Media Right Prods., Inc., 603 F.3d 135, 143 (2d Cir. 2010) (quoting
Twin Peaks Prods., Inc. v. Publ'ns. Int'l Ltd., 996 F.2d 1366, 1382 (2d Cir.1993). The Second
Circuit's "decisions clearly recognize that,
even in the absence of evidence establishing the
infringer's actual knowledge of infringement, plaintiff can still prove willfulness by proffering
circumstantial evidence that gives rise to an inference of willful conduct." Island Software &
Computer Serv., Inc. v. Microsoft Corp., 413 F. 257,264 (2d Cir. 2005). "Although courts are
generally reluctant to dispose of a case ...when mental state is at issue, it is permissible to do so
where there are sufficient undisputed material facts on the record to make the question
appropriate for summary judgment." Lipton v. Nature Co., 71 F.3d 464, 47 2 (2d Cir. 1995).
Plaintiffs contend that, at a minimum, there is undisputed evidence that Defendants acted
with reckless disregard thereby entitling them to a finding of willfulness on all of Defendants'
infringement. Pls.' MSJ at 47. In contrast,
Defendants assert that they hold a reasonable, good
faith belief that their conduct does not constitute copyright infringement and that they took the
necessary steps to obtain valid licenses. Defs.' MSJ at 36. Defendants rely on the fact that they
enlisted licensing vendors to aid in transmitting their NOIs to Plaintiffs to support their claim
See 17 U.S.C. § 115(a)(l)(ii). "Reliance is not justifiable if the party invoking estoppel 'had the means by
which with reasonable diligence he could acquire the knowledge so that it would be negligence on his
part to remain ignorant by not using those means." Associated Press v. Meltwater U.S. Holdings, Inc.,
931 F. Supp. 2d 537,565 (S.D.N.Y. 2013) (quoting In re Becker, 407 F.3d 89, 99 (2d Cir. 2005)). Thus,
Defendants reliance is not justifiable.
that they reasonably relied on these professional companies. Id. at 36-37. Defendants also
assert that Plaintiffs cannot rely on the cease-and-desist demands from third parties as they are
hearsay. Defs.' Reply at 37; see supra n.18.
As an initial matter, the Court agrees with Plaintiffs that there is voluminous, undisputed
record evidence demonstrating that Defendants were on notice that the recordings they acquired
lacked the consents and authorizations necessary to exploit them, both from performing artists
and the copyright holders in the songs. The collections, which were at least in part conveyed
through quit-claim transfer, Defs.' Counter 56.1 'i) 17, informed Defendants that they were not
acquiring intellectual property rights, id., warned of the significant licensing issues that
Defendants would need to overcome, id. 'i)'i) 18-22, and either made "no representation ...
regarding original performance contracts," id., or simply never provided Defendants with any
performer contracts, id. 'i) 33-35. Moreover, there is no factual assertion in the record that
Defendants ever obtained the consent of the copyright holders in the Musical Works.
There is also ample evidence that during the course of Defendants' exploitation, they
were made aware of the statutory provision with which they were obligated to comply. Indeed,
in invoking their licensing vendors as a show of good faith, Defendants fail to acknowledge that
both the HFA and RightsFlow agreements stressed that Defendants were bound by the
requirements of Section 115. Emails from HFA expressly informed Defendants that they were
represented and warranted in their agreement with RightsFlow that Defendants would remain
Defs.' Counter 56.1 ,-[ 57.
Having been put on notice as to their obligations, Defendants obtained Joint Exploitation
Agreements to ensure they had consent from artists to exploit those agreements. The Sony and
Warner agreements expressly excluded audiovisual recordings, see Lundberg Deel., Ex. 2, §
3.6(±), id. Ex. 3, § 10.3; Defs.' 56.1 ,-[ 79, and so there is no good faith basis to conclude that
those audiovisual recordings were authorized by the performers. Likewise, although Section 115
may give rise to reasonable disagreement as to certain of its terms, two things cannot reasonably
be disputed: that phonorecords do not include audiovisual works, and that sound recordings
fixed prior to 1972 must have been "fixed pursuant to an express license from the owner of the
copyright in the musical work or pursuant to a valid compulsory license for use of such work in a
sound recording." 17.U.S.C. § 115(a)(l)(ii). In this latter respect, Defendants have made a
business of exploiting vintage concert recordings. No less than 122 of the 1,175 recordings at
issue were fixed before 1972. Dickstein Deel. Ex. 23. There is also no reasonable argument
that, in the absence of a Section 1 Notice under the UMG agreement, that the UMG recording
alone was sufficient to authorize any exploitation of sound recordings featuring UMG artists.
Taken together, the record evidence establishes that Defendants' conduct was, at a minimum,
reckless with respect to their audiovisual recordings, the pre-1972 recordings, and recording
featuring UMG artists.
There is, however, contrary admissible evidence that precludes a finding of willful
infringement based on the untimely filing of the NOis and the post-1972 sound recordings.
Lundberg testified that, based on his communications with licensing vendors, he understood it
was industry custom to file NOIs after the date of distribution. Defs.' Counter 56.1 ,-[ 33. That
creates a genuine dispute offact as to whether the untimely filing ofNOIs was willful. There are
also genuine disputes offact as to whether licenses obtained directly from HFA covered the
distribution ofrecordings prior to Defendants' filing ofNOIs directly with Plaintiffs. Likewise,
although the Court concludes that the Joint Exploitation Agreements are insufficient to show
lawful fixation and,in any event,inadmissible hearsay for the purposes ofproving artist consent,
the Sony and Warner agreements are sufficient to create a triable issue as to whether the post1972 sound recordings ostensibly covered under those agreements were exploited with reckless
intent. There is at least a reasonable argument that Defendants believed the Sony and Warner
agreements authorized the exploitation ofrecordings featuring those record companies' artists.
Accordingly,summary judgment is granted to Plaintiffs on their claim ofwillful
infringement as to all audiovisual recordings,pre-1972 audio recordings,and all recordings
covered by the UMG agreement,and denied in all other respects.
Liability for Sagan in his Individual Capacity
"It is well established that all persons and corporations who participate in,exercise
control over or benefit from an infringement are jointly and severally liable as copyright
infringers and that an individual,including a corporate officer,who has the ability to supervise
infringing activity and has a financial interest in that activity,or who personally participates in
that activity is personally liable for infringement." Capitol Records LLC v. Redigi Inc., No. 12CV-95 RJS,2014 WL 4354675,at *2 (S.D.N.Y. Sept. 2,2014) (citing Arista Records LLC v.
Lime Grp. LLC, 784 F.Supp.2d 398,437 (S.D.N.Y.2011)) (punctuation marks omitted).
The Court has already ruled that Defendants are liable for copyright infringement.
The undisputed record evidence establishes that Sagan is personally liable for direct
infringement. Sagan is the founder, president,CEO,and sole owner ofDefendant Norton LLC.
Defs.' Counter 56.1 ,-i 10. He was deeply involved in the acquisition of the recordings at issue
and the agreements that conveyed those recordings clearly disclaimed intellectual property rights
and in many instances documented the licensing issues the collections presented. Defs.' Counter
56.1 ,-i� 17-19, 21, 27, 33-35. On several occasions Sagan pressed sellers for artist consents,
only to tum up empty handed. Id. ,-i 34-35. At his deposition, Sagan confirmed that he had
"final decision-making authority" over the Defendant entities. Id. ,-i 55; Dickstein Deel., Ex. 2,
Sagan Dep. at 43:1-3. Moreover, Lundberg, the Chief Technology Officer for Wolfgang's
Vault, stated in his deposition that it was Sagan who instructed him as to "which concerts to
make available for download or not," who "manage[d] [the companies] original agreements,"
and made plans "to start digitizing tape recordings with an eye towards making them available
on a public website." Id. at 54:3-9, 55:23-56:5
As the sole owner of Norton, and based on Sagan's testimony and that of his Chief
Technology Officer, the record evidence establishes that Sagan "has the ability to supervise
infringing activity and has a financial interest in that activity." Capitol Records LLC, 2014 WL
4354675, at *2. Sagan's acknowledgement that he had "final decision-making authority" and the
testimony from Lundberg regarding Sagan's direction and management of Defendants'
operations is sufficient to establish that Sagan personally participated in the infringing activity.
See Id.; see also Arista Records LLC, 784 F. Supp. 2d at 437-38 (granting summary judgment on
claim that CEO was personally liable for copyright infringement, where CEO was "l 00%
shareholder" of corporate defendant and testified that he "ran" and was the "ultimate
decisionmaker" for corporate defendant); Capitol Records LLC., 2014 WL 4354675, at *2
(concluding at motion to dismiss stage that allegation that corporate officer who controlled
operations, personally conceived of business model, was "ultimate decision maker concerning
the development and implementation of the infringing activity," and "directed and approved"
key aspects of infringing activity, could be held directly liable for infringement) (alterations
omitted); Arista Records LLC v. USENETcom, Inc., 633 F. Supp. 2d 124, 158-59 (S.D.N.Y.
2009) (granting summary judgment on claim that "sole shareholder" was "personally responsible
for a major share of Defendants' infringing activities" and the "moving force behind the entire
business"). Accordingly, summary judgment is granted to Plaintiffs on their claim of direct
infringement by individual Defendant Sagan.33
"A plaintiff seeking a permanent injunction must satisfy a four-factor test before a court
may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages, are inadequate to compensate for
that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a
remedy in equity is warranted; and (4) that the public interest would not be disserved by a
permanent injunction." Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156-57 (2010)
(quoting eBay Inc. v. MercExchange, L.L. C., 547 U.S. 388, 391 (2006)) (alterations and
quotation marks omitted). A permanent injunction is an extraordinary remedy that may be
granted in the exercise of a court's sound discretion. See Winter v. Nat. Res. Def Council, Inc.,
555 U.S. 7, 24 (2008).
Defendants' sole argument in response to Plaintiffs' claim that Sagan is personally liable for
infringement, is that Plaintiffs did not allege vicarious liability in their complaint and are barred from
asserting it now. Defs.' Reply at 27-33. Although Defendants cast Plaintiffs claim as one for vicarious
liability (and spill much ink arguing it), Plaintiffs never frame it as such, and Defendants concede that
Plaintiffs' Complaint alleged direct infringement by the "Defendants," among whom Sagan is clearly
named. They further concede that the Complaint alleges that Sagan "authorized, ratified, participated in
and benefitted from each of the acts" identified in the Complaint. Id. at 28 n.22 (citing Doc. 141, Supp.
Compl.) (emphasis added). Although the Court agrees that Plaintiffs did not plead vicarious liability,
they have pleaded direct liability and their motion is granted on that basis alone.
Plaintiffs argue that they are entitled to this extraordinary remedy because, absent the
injunction, Defendants will continue their infringing conduct and hamper Plaintiffs' "negotiating
leverage with prospective licensees." Pls.' MSJ at 53. Plaintiffs also suggest that their damages
would be too difficult to quantify. Id.; Pls.' Reply at 15 (citing Declaration of Alisa Coleman,
COO of ABKCO, Doc. 192, ,r 4). The Court is unpersuaded by these arguments.
While there is no question that Plaintiffs have been harmed by Defendants, that harm is
not irreparable because they can be compensated. See Tom Doherty Assocs., Inc. v. Saban
Entm 't, Inc., 60 F.3d 27, 37 (2d Cir. 1995) ("Irreparable harm is an injury . .. for which a
monetary award cannot be adequate compensation.") (citation and internal quotation marks
omitted); Roach v. Morse, 440 F.3d 53, 56 (2d Cir.2006) (identifying irreparable harm as
essential to claim for permanent injunction)
Plaintiffs have argued throughout their summary judgment submissions that there are
ways in which Defendants could have lawfully licensed these works; either through the
mechanical licensing regime, negotiated licenses, or through synchronization licenses for their
audiovisual recordings. See Pls.' MSJ at 23-24 (asserting that Plaintiffs "have identified
numerous synchronization licenses that they have issued for live concert recordings"); Pls.' 56.1
,r 8 (same); see also Docs. 1, 43. Indeed, in filing its cease-and-desist letters, Plaintiff ABKCO
informed Defendants that they needed synchronization licenses to exploit certain audiovisual
recordings. Pls.' 56.1 if 64. Plaintiff ABKCO cannot now be heard to argue that calculating the
fees for such licenses would be too difficult to do. See Pls.' Reply at 15; Declaration of Alisa
Coleman, COO of ABKCO, Doc. 192, ,r 4. That's what experts are for.
Finally, the Court finds that the balance of hardships and consideration of the public
interest does not tip in Plaintiffs' favor. Setting aside any copyright ownership issues, there is no
question that Defendants own the recordings at issue. Although that is insufficient to entitle
them to exploit these recordings without the proper licenses, these licensing hurdles are not
insurmountable. Defendants provide recordings of iconic songs and entertainers in a platform
that makes them accessible to the general public. Licensing issues notwithstanding, the Court
finds that the public's interest in having access to these recordings counsels against the
imposition of a permanent injunction. Plaintiffs request for a permanent injunction is therefore
For the reasons set forth above, the parties' motions for summary judgment are
GRANTED in part and DENIED in part as follows:
Plaintiffs' claim of copyright infringement is GRANTED against all Defendants
and as to all infringement within the statute of limitations; Defendants' motion on
Plaintiffs' claim of copyright infringement is DENIED in all respects.
Plaintiffs' claim for willful infringement is GRANTED with respect to the
audiovisual recordings, pre-1972 recordings, and recordings ostensibly covered
by the UMG agreement, and DENIED in all other respects; Defendants' motion
on Plaintiffs' claim of willful infringement is DENIED in all respects.
Plaintiffs' request for a permanent injunction is DENIED; and Defendants'
motion is GRANTED.
Defendants' request to supplement the record, Doc. 252, is GRANTED only with
respect to the HFA spreadsheet, Ex. 1, and DENIED in all other respects.
The Clerk of the Court is respectfully directed to terminate the motions, Docs. 161, 191,252.
New York, New York
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