Tuesday, August 09, 2011

Ghost Is Back

For weeks I checked PACER daily, gleefully hoping to get my hands on Ghostface's answer to Jack Urbont's complaint. Then I had a busy stretch involving a 3-year-old's birthday party, dinner with my in-laws, and a trip to the pediatrician. I didn't check PACER for a few days, and BAM, Ghostface dropped a Motion to Dismiss. Ghost is back! And I missed it. Family always gets in the way of the important stuff.

As all you civ pro heads know, a 12(b)(6) motion to dismiss is filed before an answer. Such a motion is based on the premise that the plaintiff's complaint fails to state a claim upon which relief can be granted. Or as Ghostface would say, your beef is some triflin-ass bullshit, now get in line, 'fore you get your lil thick ass tossed up!

Ghostface's lawyers fortunately didn't put it that way. In a very nicely laid out brief, they explain why all claims are barred by the relevant statutes of limitations, except for the federal copyright claims which are limited to sales that occurred after May 21, 2007, based on a tolling agreement Sony entered into with Mr. Urbont and the relevant statute of limitations. They take Mr. Urbont's assertion that he's too old to know about rap music and piss all over it using case law, industry publications, album reviews, and Mr. Urbont's own arguments. In short, they argue that if Mr. Urbont really derives most of his income from licensing his music, and if he is such an experienced composer, why doesn't he read Billboard, Rolling Stone, or any other relevant industry publication to make sure no one's busting his loops? Poisonous darts indeed.

Equally entertaining is the section in which they vitiate Mr. Urbont's fraudulent concealment claims. Mr. Urbont claims that Ghostface hid the fact that Supreme Clientele sampled Mr. Urbont's song because the liner notes don't credit Mr. Urbont. Counsel for Ghostface (of whom I am painfully jealous) noted that Mr. Urbont claims that he's too old to know about rap music, and conclude that under this rationale crediting Mr. Urbont in the liner notes wouldn't be sufficient to put Mr. Urbont on notice. The part that made me go "daaaaamn" was this:

[I]n order for Urbont to have been misled by the absence of any mention on the liner notes of Supreme Clientele, he would have had to (1) buy and open a copy of Supreme Clientele, (2) read teh several pages of liner notes, and (3) choose not to listen to the album .... Whether or not the liner notes more specifically mentioned the Iron Man Theme or Urbont himself, it would have been unreasonable for him not to listen to the album after purchasing it and opening it.

In other words, if the album itself isn't sufficient to put you on notice, how in the hell would the liner notes put you on notice?

I'm sure that Mr. Urbont's team will prepare an equally persuasive responsive brief. I'll let you know what happens next.

Special bonus

If an intrepid copyright owner really wanted to get his statutory damages freak on, he'd go after the guy who did this:


Almighty Yojo said...

thanks for summarizing this so i don't have to check PACER every day.

what is PACER?

rob said...

an old american motors car. the last remaining one is also somewhat of an oracle for the legal community. it's bit of a mark leyneresque thing.

Jerry said...

Channing Crowder retired. Sad day. We'll always have London.

"I couldn't find London on a map if they didn't have the names of the countries. I swear to God. I don't know what nothing is. I know Italy looks like a boot. I learned that. I know London Fletcher. We did a football camp together. So I know him. That's the closest thing I know to London. He's black, so I'm sure he's not from London. I'm sure that's a coincidental name."

Go Gators.