Continuing its long history of successful and groundbreaking representation in music copyright cases, Pryor Cashman obtained summary judgment dismissing claims of copyright infringement against clients Nelly Furtado and EMI Music concerning Furtado’s song, Do It.

The case, Kernel Records Oy v. Timothy Z. Mosley p/k/a Timbaland, et al., Case No. 09-21597-CIV-TORRES, was pending in the U.S. District Court for the Southern District of Florida. 

The case involved so-called “demoscene” music arranged on an old Commodore-64 (or “c64”) computer. Plaintiff Kernel Records Oy was an alleged record company from Finland which had purchased the rights to a c64 arrangement called Acidjazzed Evening. The arrangement was first published in an Australian online disk magazine called “Vandalism News.” 

Kernel alleged and maintained throughout the litigation that because Acidjazzed Evening was first published abroad, it was not a “U.S. work” requiring U.S. Copyright Office registration under the Copyright Act and the international Berne Convention. Pryor Cashman and its co-counsel disagreed, arguing that first publication over the Internet constitutes “simultaneous” worldwide publication, including first publication in the U.S., thereby requiring Copyright Office registration in order to maintain a claim for infringement. 

In a ruling of first impression, the Federal Court agreed with Pryor Cashman and its co-counsel, rejected Kernel’s position, and granted Furtado, EMI Music and all other defendants summary judgment dismissing Kernel’s claims of copyright infringement. 

Partners William Charron and Ilene Farkas, members of Pryor Cashman's Litigation and Intellectual Property Groups, represented Furtado and EMI Music.

To read the full decision, please click here. The case, one that is likely to have wide-reaching implications, is already receiving attention from the press. To read the June 8, 2011 article in Law 360 entitled “Online Publication Nixes Foreign Work Exemption: Court,” please click here.