Facts

Kerry Marshall Jr. filed suit against Durrell Babbs, a recording artist and performer professionally known as Tank, and various other defendants in relation to his copyrighted work entitled "RnB Chord and Riff ideas to Help Your Playing."

PLAINTIFF'S CONTENTIONS: : Marshall claimed that on Sept. 29, 2017, defendant Atlantic Recording Corp. released and distributed a musical work performed by Tank entitled, "Only One," and this work featured identical portions of Marshall's copyrighted work. The allegedly infringing song was part of Tank's album entitled, "Savage," and Marshall claimed copying of his work, which defendants did not deny. However, because plaintiff had failed to register his copyright before the infringement, statutory damages and attorney fees were not available for the initial use on Tank's album "Savage", under the United States Copyright Act, Section 412. However, after registration, Tank published a new Instagram video using one minute of the infringing song. Plaintiff contended this constituted a new and separate basis for statutory damages and attorney fees because of differences between pre- and post-registration infringements under the U.S. Copyright Act, Sections 412, 504(c), and 505.

DEFENDANTS' CONTENTIONS: Defendants claimed that a producer, co-defendant, placed the sample in Tank's track.

After the court granted defendants' motion to dismiss on the issue of statutory damages and attorney fees, defendants argued that Marshall was not entitled to statutory damages and attorney fees on plaintiff's first amendment complaint. Defendants contended because the first allegedly infringing acts occurred prior to Marshall's copyright registration on Dec. 14, 2017, and Tank's Instagram video was merely part of the same alleged acts of infringement.

Result

The court granted defendants' motion to dismiss, finding Marshall alleged new acts of infringement that were part of a continuing series of infringements beginning Sept. 29, 2017.

Other Information

According to plaintiff, the parties settled at a Mandatory Settlement Conference.