Bit Parts

The U.S. District Court for the Southern District of New York refused to grant sanctions against litigation counsel for a record production company and its owner that filed suit over an alleged improper use in the VH-1 series Love & Hip-Hop: New York of music by one of the plaintiffs' artist. Scrilla Hill Entertainment v. Dupree, 16-CV-490. Scrilla Hill filed suit claiming that the VH-1/Viacom program improperly aired music written by Scrilla Hill artist Young B. But, according to the court, the defendants later learned that an assertion by Scrilla Hill case counsel Israel Adam Burns that his clients were the owners of the rights to a Young B “Chicken Noodle Soup” music video, which appeared without sound in Love & Hip-Hop, “was false.” (In an interesting footnote, Southern District Judge Jesse M. Furman noted: “Burns represents (albeit improperly, in his unsworn memorandum of law) that he had claimed his clients owned the rights to the 'Chicken Noodle Soup' music video by relying in part on a 2006 royalty statement and invoice that showed UMG [the actual copyright owner of the music video] had paid Scrilla Hill artist royalties. [TV show producer and co-defendant] Eastern's only response is that the significance of the royalty statement is 'unclear.'”) Burns did file a voluntary dismissal notice, but the defendants decided to move for attorney fees sanctions against him on the ground that the plaintiffs' copyright infringement claim was frivolous. Burns responded by sending an insulting email to defense counsel. District Judge Furman determined that “the Court is reluctantly compelled to deny Defendants' application for attorney's fees. Judge Furman noted in part: “[S]ignificantly, Burns was put on notice that the claim was meritless only after Plaintiffs had filed the First Amended Complaint and, thereafter, Plaintiffs made no more filings other than the notice of voluntary dismissal.” The district judge continued: “And while Burns's dealings with opposing counsel outside the courtroom may have fallen particularly short of professional standards, awarding attorneys' fees requires more than that. It requires clear bad faith, which generally means persistent misconduct that rises above mere incompetence or petulance or even an unfortunate mix of the two. As a result, sanctions are not warranted based on Burns' present failings, however unfortunate they may be.”