Judge says sound recordings producer may add defendants in copyright infringement case against Florida company

By Karen Kidd | Jun 28, 2018

MIAMI (Florida Record) – A federal judge in the U.S. District Court for the Southern District of Florida, Miami Division, recently ruled that a New York-based producer of sound recordings that is suing a Florida company over alleged copyright infringement will be allowed to add three people to its list of defendants but won't be allowed to amend its complaint.

MIAMI (Florida Record) – A federal judge in the U.S. District Court for the Southern District of Florida, Miami Division, recently ruled that a New York-based producer of sound recordings that is suing a Florida company over alleged copyright infringement will be allowed to add three people to its list of defendants but won't be allowed to amend its complaint.

U.S. Magistrate Judge Edwin G. Torres said in his order issued June 11 that the plaintiff in the case, 43 North Broadway based in Yonkers, New York, will be allowed to add as defendants the corporate officers of Hallandale-based Essential Media Group at the time when the alleged infringement occurred. "Plaintiff is correct that corporate officers can be held liable for a corporation's infringing activity," Torres said in his 11-page amended order to 43 North Broadway's motion for leave to file an amended complaint.

"This would be applicable to claims of direct infringement, which plaintiff alleges took place in Count I. For this reason, the motion to amend the complaint as to this count will be granted," the order said.

43 North Broadway, suing under the Copyright Act of 1976, claims that Essential Media Group unlawfully and without 43 North Broadway's permission, used and claimed ownership of the copyrighted song "Baby, I’m Gonna Love You." 43 North Broadway is asking for damages in its single cause of action against Essential Media Group over the alleged copyright infringement.

The case before Torres is not the first time the parties have sued each other. In October 2016, Essential Media Group LLC filed a copyright infringement lawsuit against 43 North Broadway, claiming 43 North Broadway had sold derivative works of recordings owned by Essential Media Group. The parties began their current litigated over alleged copyright infringement in the U.S. District Court for the Central District of California.

In the California litigation, which ended with its amicable transfer to Torres' court in December, 43 North Broadway alleged that Essential Media Group wrongly claimed ownership of the song "Do Me," as well as "Baby I'm Gonna Love You."

In March, 43 North Broadway asked to be allowed to amend its complaint and to add "certain parties" to the lawsuit. "Plaintiff seeks to add Paul Klein, Rama Barwick and Sharon Klein, individuals allegedly managing defendant's operation at the time the infringing conduct took place," Torres' order said.

"According to the motion, the individuals to be added had knowledge, profited and internally induced (Essential Media Group's) direct infringement. Plaintiff therefore also asks that a second cause of action for secondary copyright infringement against those same individuals be added to the complaint," the order said.

Essential Media Group opposed the motion, arguing it would be futile because the amended complaint would fail to prove, as required under the Copyright Act, that the newly named individuals "not only profited from the alleged infringement, but also had the right to and ability to supervise the direct infringer," Torres's order said.

However, Torres, in his order said a point that 43 North Broadway "cannot grasp" is that in a secondary infringement, an officer or corporation must be alleged to have induced third parties to commit direct infringement. "The proposed amended complaint makes this impossible, as the only other party induced would be the very same corporation the individuals added to Count I control," Torres' order said.

"(Essential Media Group) cannot be considered the requisite third party, and so any attempt to attach secondary liability to a corporate officer of the same corporation alleged to be committing the direct infringement would be futile," the order said.

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