The music business streams into courtrooms story after story of the grimy details behind a commercial success. Amethyst Kelly is the Australian rapper and model known as Iggy Azalea who achieved fast fame in both occupations after coming to America. She sued her ex-friend Maurice Williams and others for intellectual property infringements that come down to the question of who signed what among three people in a Hoboken, New Jersey hotel room in February 2009 when she was 18 years old.
Claiming copyright, trademark, and right of publicity infringements resulting from the unauthorized downloading and sample releases of her never before released songs, she asked a federal court in Los Angeles for an injunction to stop more releases. The defendants first announced the releases last summer and refused to stop them because they claim authority under a 29 page recording agreement signed by Ms. Kelly at the hotel. She says she signed a two page management contract and the recording agreement is a forgery.
Judge Beverly O’Connell ruled on Monday that Ms. Kelly was likely going to succeed on her claims, and granted an injunction that stays in effect while the lawsuit goes forward—called a preliminary injunction. It stops the defendants from doing anything with sound recordings obtained from Ms. Kelly’s laptop, including the EP “Inizio.” It also prohibits them from using the IGGY AZALEA trademark or any aspect of Ms. Kelly’s identity.
The decision itemizes the literal “he said, she said” discrepancies calling the authenticity of the recording agreement into question or supporting it. But the most convincing evidence does not require you to imagine what happened in the hotel room. It involves the section in the document on giving notice among the parties. If an issue comes up requiring a party to notify others formally, the notice section tells you who gets notice at what address.
The recording contract says notice goes to a California attorney whose name and address are listed. That attorney gave sworn testimony to the court saying he was never involved with the contract, didn’t authorize using his name, did not know the document existed, does not know the defendants, and never provided legal services to them. The defendants offer no explanation.
The decision goes into all the analysis required before a federal court can grant a preliminary injunction. Since there’s little question copyright, trademark, and right of publicity infringements all occurred unless the recording contract is valid, the only argument that caught my attention was the defendants’ claim that it was too late to issue an injunction.
They argued the horses are already out of the barn, so it’s too late for an injunctive lock on the doors. Injunctions exist to prevent irreparable harm, harm that can’t be compensated in money. The defendants said the harm of their releases was already done, so an injunction could not issue.
The argument was rejected on many grounds, but the only legal issue of note is the first publication doctrine. It is unusual for it to get attention only because most copyright infringement lawsuits involve works already published. The doctrine is simply that copyright owners have the right to control the first public distribution of their works.
Ms. Kelly claimed copyright infringement of six songs she has never released. You won’t find them if you search Spotify for her recordings of “U Ain’t My Daddy,” “It Ain’t Trickin,” “Take My Picture,” “Red Bottoms,” “Supernova,” or “Miss International.”
The court cites the Harper & Row 1985 Supreme Court decision and others for the doctrine which interprets the Copyright Act. The “distribution” right section does not mention first publication. 17 USC §106. But the first publication doctrine is necessary to make the law work. For example, sound recordings of musical works are subject to a compulsory licensing provision that allows anyone to record their own version of a work “When phonorecords…have been distributed to the public…” 17 USC § 115.
The defendants were not distributing a version of the musical works created by other artists, but §115 shows why first publication rights are a necessary part of the “distribution” right.
Ms. Kelly had to post a $20,000 bond to cover damage to the defendants if the preliminary injunction should not have been granted. Someday we’ll learn the final outcome. Since longevity is the toughest act in entertainment, there may or may not be much interest when it happens. For now, however, Ms. Kelly is a pop star and she has the power to control what performances the public will hear and see.