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U.K. Music Company's Copyright Suit Ends on a Sour Note in U.S. Court
New Jersey Law Journal
October 22, 2009
A federal judge has squelched a suit accusing a New Jersey company of invading the exclusive territory of Europe's largest distributor of sheet music.
U.S. District Judge Renee Bumb ruled on Monday that Music Sales Ltd. of London had no standing under the U.S. Copyright Act to enforce a 2002 British court consent order in which Charles Dumont & Son of Voorhees, N.J., agreed to cease any infringing activity.
The copyright law doesn't apply because the New Jersey company has licenses to distribute the music in this country, so it isn't violating any rights in the United States, Bumb ruled.
If Music Sales' rights are being violated by unauthorized distribution in Europe, that's the place to bring a suit, Bumb wrote in an opinion dismissing Music Sales Ltd. v. Charles Dumont & Son Inc. 09-1443.
The case had implications for the British company's exclusive right to sell sheet music for thousands of songs, ranging from classics to top 40 hits -- from "St. Louis Blues" and "The Girl from Ipanema" to works by Fleetwood Mac and Kiss, according to the complaint, filed in March.
The suit alleges that starting at least as early as 2006, Charles Dumont shipped sheet music in unknown quantities to retailers in Music Sales' exclusive territories, including stores that are the British company's customers.
The plaintiff asked Bumb to enjoin the defendant from shipping the titles in question to Europe, award damages for lost profits and order the destruction of any infringing material.
Bumb said she knew of no previous attempt by a foreign company to stop a U.S. distributor by invoking the Copyright Act, probably because "enforcing a foreign judgment against an American company in the foreign jurisdiction is feasible when the company has substantial contacts with that jurisdiction."
In this case, Dumont is a small company that does little or no business in Europe, making enforcement there more difficult, she said.
"Plaintiffs have therefore taken the unprecedented step of seeking enforcement in the United States," she concluded.
She said there is only one exception to the rule that foreign conduct doesn't give rise to a cause of action under the Copyright Act. That's when a person commits infringing acts in the United States that cause unauthorized use of the materials abroad.
Because Charles Dumont had the right to distribute the music in the United States, no predicate infringing act occurred in this country, she said.
"To be clear, the unauthorized distribution of a work in the United Kingdom, by mailing the work from the United States to the United Kingdom, does not constitute infringement under the Copyright Act," she concluded.
She also brushed aside the complaint that a U.S. court is the plaintiff's only hope because a British Court can't enforce an injunction against an American company.
The plaintiffs could bring a suit for damages in Britain as new instances of infringement arise, she said.
"Just as a blues musician is not expected to perform classical opera, this Court is ill-equipped to determine the scope of plaintiffs' European distribution rights," Bumb said.
The lawyer for the New Jersey company, Betsy Ramos of Capehart & Scatchard in Mount Laurel, N.J., says Charles Dumont is indeed shipping sheet music to Europe. If Bumb had not ruled as she did on the standing issue, Charles Dumont's next argument would have been that the items it legally owned and could copy in the United States could be re-sold here and shipped to Europe.
The plaintiffs lawyer, Gary Schulz of Nixon Peabody in Jericho, N.Y., did not return a call for comment on a possible appeal.
