Rock archive web site countersues bands, labels

By | March 5, 2007 at 1:34 PM

A rock archive Web site is fighting back against a copyright lawsuit brought by some of music’s most notable classic rock acts, dragging two major record labels into the battle. In December, Led Zeppelin, the Grateful Dead, Santana and the Doors sued Wolfgang’s Vault claiming that the Bill Sagan-owned Web site violates intellectual property rights by selling merchandise and streaming concert archives belonging to the musicians. In response, Wolfgang’s Vault attorney Michael Elkin recently filed a 40-page counterclaim against the musicians and their labels, Sony BMG and Warner Music Group. “Far from being about bootlegging, consumer confusion or infringement of any sort, this case is actually a blatant attempt by two of the largest record labels in the world — using artists as a front — to secure new income streams and destroy a legitimate business,” the suit says. It also alleges that the two record companies unsuccessfully sought to negotiate licenses to the concert footage, and when that was not possible, “conspired with each other to concoct fictitious legal claims in an effort to appropriate for themselves the use of musical recordings through an abuse of this judicial process.” The lineage and ownership of the concert recordings figures to be a contentious topic in the case. A trial date has not been set. In the 1960s, legendary concert promoter Bill Graham put on numerous concerts at the Fillmore West and Winterland in San Francisco and the Fillmore East in New York with the industry’s biggest names, including Bob Marley, The Who, Bob Dylan, Jimi Hendrix, Neil Young, Miles Davis and others. Graham died in a helicopter crash in 1991, and his archive was sold to SFX Entertainment, which was sold to Clear Channel Entertainment in 2000. Sagan acquired the assets from Clear Channel in 2003 and named his Web site after the original promoter. In December, the musicians, represented by Jeff Reeves, claimed that the IP rights to the concert footage couldn’t be transferred without permission from the artists. Further, they allege that a federal anti-bootlegging statute disallows the broadcast of concert footage without artist consent. Responding to the suit, Wolfgang’s Vault denies most of the allegations and offers 28 affirmative defenses, including lack of jurisdiction and standing, abandonment and forfeiture of the plaintiffs’ IP, misuse of copyright and trademark, fraud, unclean hands, license and consent, fair use, statute of limitations and the unconstitutionality of the plaintiffs’ claims. In the countersuit, the defendant claims that Sony BMG and Warner met with each other on several occasions last year to recruit artists and conspire to “disrupt and dismantle” the Bill Graham Archive business. Wolfgang’s Vault seeks a declaratory judgment that it legally acquired the footage, and is also suing for libel, fraudulent deceit, breach of contract, tortious interference, and civil conspiracy. Unspecified punitive damages are sought. Representatives for the site could not be reached for comment on the defendant’s response.

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