On March 24, 2020, the Ninth Circuit Court of Appeals issued a decision finding that a licensor of copyrights must pay attorneys’ fees to KB’s client, the Burbank High School Vocal Music Association, a boosters club, and its parent volunteer board members. Along with the choir director, the boosters club had been sued for allegedly infringing copyrighted music in creating a show choir piece that involved the song “Magic” by Olivia Newton John. The District Court had granted summary judgment on behalf of KB’s clients, but had denied fees. The choir director had prevailed on a theory of qualified immunity. Cross appeals were filed, and the Ninth Circuit unanimously found that not only should KB’s client be awarded fees, but that the case should be affirmed on the fair use defense, which had not been expressly ruled upon by the trial court. The case provides valuable precedent for other schools and choir groups around the country facing similar issues. The opinion in the case, Tresona Multimedia, LLC vs. Burbank High School Vocal Music Association, et al., Case No. 17-56006, can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/24/17-56006.pdf. Commentary from the Stanford Copyright and Fair Use Center can be found here: https://fairuse.stanford.edu/case/tresona-multimedia-llc-v-burbank-high-school-vocal-music-assn/.
Category: Legal Victories
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KB Defeats Motion for Preliminary Injunction Sought Against Famed Musician Mark Farner
Grand Rapids, Michigan — On March 14, 2019, the U.S. District Court for the Western District of Michigan ruled in favor of KB’s client Mark Farner (former guitarist, singer and songwriter for Grand Funk Railroad) and denied a motion for preliminary injunction brought against Farner by his former band mates. In denying Plaintiff’s motion, the Court ruled that Farner could not be enjoined from using the name MARK FARNER’S AMERICAN BAND in connection with his new group. The members of Grand Funk Railroad, who at one time registered a trademark on THE AMERICAN BAND, filed a suit for trademark infringement, claiming that the name of Farner’s band causes confusion with that mark. Through his counsel at KB, Farner argued that there was no showing to justify the proposed injunction, noting particularly that U.S. Patent and Trademark Office had already allowed Farner to register his new name.
The Court agreed with KB’s position. In a lengthy opinion balancing the law relevant to trademark infringement in the Sixth Circuit, the Court summed up its findings, writing “GFR fails to show a strong likelihood of success that Farner’s use of MARK FARNER’S AMERICAN BAND creates a likelihood of confusion among consumers.” Farner continues to tour nationally and around the world under MARK FARNER’S AMERICAN BAND. Trial is set for December, 2019.