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The 2nd U.S. Circuit Court of Appeals on Feb. 22 ordered the Southern District of New York to reconsider whether The Chambers Brothers and other recording artists can pursue a lawsuit over rights to digital recordings of their music ( Chambers v. Time Warner, No. 01-7010, 2nd Cir. (No. 99 Civ. 2839, S.D. N.Y.)) The 2nd Circuit panel did not rule on the merits of the lawsuit but said the district court improperly considered materials outside the pleadings in dismissing copyright claims and inadequately considered the musicians’ Lanham Act claim against online distributor MP3.com. Plaintiffs are Lester Chambers of The Chambers Brothers, Carl Gardner of The Coasters, Bill Pinkney of The Original Drifters and Tony Silverster of The Main Ingredient. They contend that their original contracts with record companies did not encompass digital re-recordings and that those digital products or downloads are competing with sales of vinyl, cassette and CD sales. Defendants are Time Warner Inc., as successor to Warner Bros Records; Atlantic Records, Elecktra Records, Sony Corp., BG Entertainment, on its own and as successor to RCA Records; Arista Records; Universal Music Group, on its own and as successor to MCA Records; Polydor Records; and MP3.com. Chambers has asserted copyright claims against the record companies, and alleged that MP3.com’s use of plaintiffs’ names on its Web site is not fair use and violates the Lanham Act. Plaintiffs also seek relief on behalf of a class of other artists. AFFIDAVITS Chambers argued on appeal that the district court improperly considered affidavits submitted by defendants that contained copies of contracts purported to have been signed by plaintiffs, and drafts of collective bargaining agreements between record companies and the American Federation of Television and Radio Artists. Despite those submissions, the court did not convert the motion to dismiss to one for summary judgment and plaintiffs were deprived of an opportunity to introduce their own evidence, Chambers argued. Writing for the 2nd Circuit panel, Circuit Judge B.D. Parker Jr. agreed that the district court should have taken one of two options under Rule 12(b) of the Federal Rules of Civil Procedure: excluded the extrinsic documents or converted the motion to dismiss to one for summary judgment. Judge Parker said the district court also failed to fully consider whether MP3.com’s use of plaintiffs’ names on its Web site violated plaintiffs’ trademark rights. In dismissing that cause of action, the district court relied exclusively on one example provided in the complaint. While that one example may be fair use, plaintiffs’ allegations extend beyond that one example, Judge Parker said. The panel left it to the district court to decide whether to grant leave to replead to clarify the scope of those alleged trademark violations. Counsel for Chambers: Mark C. Rifkin (argued) and Lawrence E. Feldman of Feldman & Rifkin in Jenkintown, Pa., and Frederick Isquith of Wolf Haldenstein Adler Freeman & Herz in New York. Counsel for Time Warner, et al.: Katherine B. Forrest of Cravath Swaine & Moore in New York (argued); Jay Cohen of Paul Weiss Rifkind Wharton & Garrison in New York; Charles B. Ortner of Proskauer Rose in New York; Andrew H. Bart and Susan Arden of Pryor Cashman Sherman & Flynn in New York and Russell J. Frackman and Jeffrey D. Goldman of Mitchell Silberberg & Knupp in Los Angeles. Counsel for MP3.com: Jeffrey A. Conciatori (argued), Michael B. Carlinsky, Lisa T. Simpson and Margret M. Caruso of Orrick Herrington & Sutcliffe in New York.

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