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A Manhattan judge has issued a rare affirmative injunction, requiring a defendant to execute the documents necessary to transfer the rights to a multimillion-dollar catalog of copyrighted musical compositions back to a songwriter. In an affirmative injunction, a party is required to perform an act rather than to refrain from acting, as in a typical preliminary injunction. The songwriter — Annie Roboff, whose credits include the original “ESPN Sportscenter” theme and the Faith Hill smash “This Kiss” — initiated the action against The Songwriters Collective, an artist-owned publishing company. Roboff contended that the collective failed to properly manage her catalog of songs, causing a steep decline in its value. “This Court … finds that plaintiff has demonstrated that she will suffer an irreparable injury absent the granting of the injunctive relief sought since any judgment for money damages against [the collective], which appears currently to have very limited funds and few, if any, assets other than the catalog in question, will likely be ineffectual,” Supreme Court Justice Barbara R. Kapnick ruled in Roboff v. Mason, 600528/05. As with a traditional preliminary injunction, a petitioner seeking an affirmative injunction must establish a likelihood of success on the merits at trial, danger of irreparable injury in the absence of the injunction and a balancing of equities in her favor, Justice Kapnick wrote, citing Grant v. Srogi, 52 NY2d 496. However, courts are more hesitant to grant affirmative injunctions because they change, rather than maintain, the status quo, according to an attorney for Roboff, Brian D. Caplan of Goodkind Labaton Rudoff & Sucharow. Often, the effect of an affirmative injunction — as here — is to grant a plaintiff the ultimate relief she seeks. Roboff argued that she held a unilateral “put” option that created an absolute right to reacquire the rights to her $10 million catalog. Based on oral arguments and a review of the documents, Kapnick held that Roboff had “demonstrated a likelihood of success on the merits.” Roboff also established that she would suffer irreparable harm absent the injunction, Kapnick added. “[P]laintiff claims that the decline in the value of her copyrights has been ‘precipitous’ and will continue ‘[u]nless something is done promptly,’” the judge wrote. The court concluded that the balance of the equities favored Roboff. Sonnenschein Nath & Rosenthal served as co-counsel for Roboff. Sullivan & Worcester, Sidley Austin Brown & Wood and Callan, Koster, Brady & Brennan represented the various individual and corporate defendants.

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