I wish I was there to watch the process server attempt to penetrate GFK's security detail.
The court gave Urbont more time but apparently the best he could do was serve Ghostface's agent. According to a motion filed by GFK's lawyer, this is insufficient service because an entertainer's agent cannot accept service on behalf of the entertainer. I note that this motion reports an AOL email address in the signature block -- I expected the Wallabee Champ would retain counsel with a gmail account, at a minimum, but this really has no impact on whether service was proper. If service was improper then the amended complaint will likely be dismissed with respect to Ghostface. Ask a lawyer if you want to know for sure.
Meanwhile, Sony filed a motion to dismiss claiming that Urbont's claims were brought too late with respect to all potential infringement prior to May 21, 2007. The judge issued her decision on Tuesday. She wrote that:
Defendant Coles is a well-known "musician, performer, and producer," formerly a member of the group the Wu-Tang Clan.
Formerly?! I guess Judge Buchwald doesn't know about this. Here's a preview:
The judge first explained whether Urbont's federal copyright claim accrued at the time of the alleged infringement ("the injury rule") or at the time when he learned of the alleged infringement ("the discovery rule"). She applied the injury rule, following Second Circuit precedent. Because Sony and Urbont entered into a tolling agreement in May of 2010, the "injuries" that occurred more than three years before then were time barred. So Sony won on this issue. The judge also noted that the First, Third, Fifth, Sixth, Seventh, and Ninth Circuits follow the discovery rule, so Urbont would have won on this issue if he had filed in, say, Boston, Newark, Houston, Detroit, Chicago, or LA. This is at least one reason why people hate lawyers.
Part of Judge Buchwald's opinion dismissing the federal copyright claim distinguished the Second Circuit case Kwan v. Schlein. I note this only because she later analogized to Kwan in support of her decision to allow Urbont's state law claims to proceed, writing that "[i]t would seem only logical for federal and state claims based on copyright infringement to accrue in a parallel manner." This probably makes perfect sense if you're a lawyer. This is another reason why people hate lawyers.
Urbont's state law claim was not dismissed because the Wallabee Kingpin's alleged infringement was not analogous to the tort of conversion (i.e., Pretty Tone's use of the jingle didn't prevent Urbont from using the jingle), and was instead analogous to the tort of trespass (i.e., GFK merely interfered with Urbont's jingle). Therefore, each separate act of infringement gives rise to a separate cause of action. This result is somewhat incongruous, at least in my feeble brain. If someone completely destroys your copyrighted material so that you can never make any money off it again, you only have a limited time to sue them. But if someone rips you off in a way that doesn't prevent you from continuing to make money off your copyrighted material, you can probably go after them in perpetuity (well, until 70 years after your death, but who's counting)? Thank you Sonny Bono!
Unrelatedly, feel free to get me these Stan Smith X Pretty Toney kicks for my birthday: