IP Industry Update: 2022 Beijing Olympics and Robin Williams
Updated: Mar 23, 2022
In this post, our contributors will check in on two timely IP cases, and discuss the implications of these cases for arts and entertainment law.
Marderosian v. Comcast
A California-based folk band has filed a copyright infringement suit for the unauthorized use of one of their recordings during the 2022 Beijing Olympics. Brothers, Robert and Aron Marderosian, make up the folk-duo, Heavy Young Heathens. Through their company, Twelve Sixty, LLC, the plaintiffs create musical compositions and recordings for use in different television shows, films, and commercials. According to the complaint, they have created works for a number of media projects, such as, The Magnificent Seven, Deadpool, The Amazing Spiderman 2, Lucifer, The Simpsons, and commercials for Ford, Dodge, Starbucks, and Chrysler.
In 2016, the plaintiffs registered, with the U.S. Copyright Office, their recording of the song “House of the Rising Sun,” which had previously gained significant popularity due to the renditions by famous artists like Nina Simone and Bob Dylan. It came to the plaintiffs’ attention, through the use of online monitoring software, that U.S. Figure Skating pair, Alexa Knierim and Brandon Frazier had, allegedly, used their sound recording during the skaters’ short program performance at the Olympics. The performance was aired by NBCUniversal and, as with most Olympic performances, highlights, full video, and clips of the performance were uploaded to the internet. According to the plaintiffs, neither the skaters nor their management reached out to request and acquire a license or authorization to utilize the recording during the performance.
The plaintiffs have filed this lawsuit for the alleged infringing use of their protected work during the short program performance and the subsequent media distribution of the performance. The suit not only draws in the skaters and the U.S. Figure Skating Organization as defendants, but the plaintiffs have included the media distribution companies that aired the performance and uploaded it to the internet. NBCUniversal, its parent company Comcast, and the USA Networks are all named as co-defendants in the suit, as the Marderosians’ claim that the corporations contributed to the infringement by showing and continuing to promote the performance on its various platforms.
The Marderosians’ attorney stated in the complaint that: “Recognizing plaintiffs’ popularity, talent and goodwill, and in a brazen and improper effort to capitalize on plaintiffs’ hard work and copyright ownership of their master recording of ‘House of the Rising Sun,’ defendants have use, created and publicized…broadcasts of a 2022 Beijing ‘House of the Rising Sun’ without authorization from plaintiffs.” Therefore, based on their own valuing of the song, the plaintiffs are seeking both a preliminary and a permanent injunction from the court to suppress any further use of the alleged infringing work. In addition to the injunction, the complaint asks for an award of money damages, based on probable profits attributable to the infringement and statutory damages.
The parties will look at number of issues to determine if the claim is valid. Do the plaintiffs hold a valid registration for the alleged infringing work? Was the recording that played during the performance the same as the registered work? Was a license or authorization sought by the skaters or U.S. Figure Skating organization? The court may need to look to the liability of a parent corporation over its subsidiary or how much input or authorization the U.S Figure Skating has in the selection of the songs used in performances. Although this case is in its earliest stages, if the parties do not dispute that the plaintiffs’ registered work was used in the performance, and no license was sought or obtained, then there is a high probability that this case could be settled before going to trial.
RWT v. Pandora Media LLC
In this one-count copyright infringement action, the Robin Williams Trust sued internet-streaming radio service Pandora for publicly performing (via internet streaming) Williams’ recorded comedy routines without a license. Like with a musical sound recording, there are two copyrights in a literary recording (such as a comedy routine): the copyright to the underlying literary work embodied in the recording, and the copyright to the recording itself. The existence of two copyrights means that a potential user would need two separate licenses to publicly perform the work. Unlike traditional musical albums, spoken-word albums are not usually registered with performing rights organizations (PRO) like ASCAP and BMI, which administer the public performance rights of musicians, or SoundExchange which specializes in digital performance rights for sound recordings. Even so, the Trust would not be required to utilize the services of a PRO to protect their interests.
In this case, the Trust retained the exclusive rights to exploit the recordings, but Pandora never reached out to the Trust to obtain a license or pay royalties. The Complaint alleges that Pandora would have been able to make this discovery rather easily. The Trust then alleged that, based on statements made in Pandora’s SEC filings, Pandora’s infringement of Williams’ copyrights was willful, and that Pandora simply decided it was a risk it was willing to take. If this can be proven, the Trust may be able to obtain statutory damages for infringement of Williams' works, which were registered with the Copyright Office. This case could be handled by summary judgment if it is as straightforward as the Complaint makes it seem, but we’ll have to watch to see how Pandora responds and what transpires in early discovery.
Brett Manchel is an associate attorney at Amin Talati Wasserman, a boutique firm with offices in Chicago, Washington DC, and Los Angeles that primarily works with clients in the food, drug, and health and beauty sectors. Brett’s practice includes all aspects of brand protection for clients in the United States and abroad. He is involved in prosecuting trademarks and copyrights and managing IP portfolios for companies large and small. Brett is also a go-to resource at his firm for privacy and internet law questions.
Since 2016, Brett has had the honor of being selected by his peers to the Super Lawyers Rising Star list. He is also on the Associate Board for Lawyers for the Creative Arts, and the Chair of the Chicago Bar Association IP committee
Alyssa Newswanger is an Associate Board member for Lawyers for the Creative Arts, serving on the social media committee. She practices corporate law and volunteers with LCA in her free-time.