Kernal Records Oy v. Mosley
2011 U.S. Dist. LEXIS 60666
S.D. Fla.2011Background
- Gallefoss created Acid Jazzed Evening (AJE) in 2002 as a SID file; it was first published on Vandalism News #39 (disk magazine) in August 2002, then posted to High Voltage SID Collection in December 2002.
- Kernal Records Oy acquired transferrable rights to AJE’s sound recording and arrangement on August 16, 2007.
- Plaintiff alleges the sound recording and composition were copied into a new work titled Do It, and sues Defendants (Timbaland et al.) for infringement and related claims.
- Defendants moved for summary judgment arguing AJE was first published on the Internet and thus a United States work under § 101(1)(C), triggering the § 411(a) registration requirement, which Plaintiff had not satisfied at filing.
- The court granted summary judgment for Defendants on the § 411(a) issue; Plaintiff later obtained registration and sought to amend, which the court denied, and the case was closed.
- The court reaffirmed that publication of AJE on the Internet constituted a simultaneous global publication making AJE a United States work.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was AJE first published on the Internet? | AJE’s first publication was on a disk magazine (physical), not the Internet. | Evidence shows AJE was first published online via Vandalism News #39 and later on High Voltage site. | AJE was first published on the Internet. |
| Does Internet publication constitute simultaneous worldwide publication under §101(1)(C)? | Moberg’s rule should apply; Internet publication does not automatically mean simultaneous worldwide publication. | Posting online makes work publicly available and simultaneously accessible globally; thus it is a global publication. | Yes; Internet publication constitutes simultaneous worldwide publication, making AJE a United States work. |
| Is AJE a United States work requiring §411(a) registration before suit? | If not a United States work, §411(a) registration is not required to file suit. | Because of simultaneous global publication, AJE is a United States work and subject to §411(a). | AJE is a United States work subject to §411(a)'s registration requirement. |
| Whether Plaintiff's post-judgment request to amend based on newly obtained registration should be granted | Registration was obtained in good faith after the ruling; amendment should relate back and be allowed in the interest of justice. | Late amendment would prejudice defendants; good cause and Rule 16(b)(4) requirements not satisfied; amendment denied. | Motion to amend denied. |
Key Cases Cited
- Football Ass'n Premier League Ltd. v. YouTube, Inc., 633 F. Supp. 2d 159 (S.D.N.Y. 2009) (discusses Berne Convention and lack of formalities for foreign works)
- Moberg v. 33T LLC, 666 F. Supp. 2d 415 (D. Del. 2009) (internet publication not automatically simultaneous publication under §101)
- Getaped.com, Inc. v. Cangemi, 188 F. Supp. 2d 398 (S.D.N.Y. 2002) (live website goes live; publication through public access and copyability)
- Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010) (§411(a) precondition; registration required for infringement case relief)
- M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir. 1990) (timing of amendment after registration; procedural posture considerations)