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13 May 2015Copyright

Music label appeals against $2m Whoomp! (There It Is) ruling

Music label DM Records has asked the US Supreme Court to review a copyright ruling surrounding the song “Whoomp! (There It Is)”, which saw the company fined more than $2 million in damages.

The appeal was filed May 1, but only became public this week.

DM Records is appealing against a decision from the US Court of Appeals for the Fifth Circuit which, in December last year, ruled in favour of Alvertis Isbell, ex-president of the now defunct Bellmark Records.

Isbell is commonly known as Al Bell.

The case centres on the ownership to the copyright of the pop song released in 1993 by the band Tag Team. It reached number two in the US Billboard Charts and featured on its album “Whoomp! (There It Is)”.

That year, Tag Team signed a licensing deal with Bellmark Records to release the song. As part of the deal 50% of the rights to the song were assigned to the record label.

Bellmark went bankrupt in 1997 prompting Bell to transfer the 50% ownership to Alvert Music, a music label he set up in 1977.

During Bellmark’s bankruptcy proceedings, DM Records purchased “all property” of Bellmark for $166,000.

DM Records believed that it would own the copyright to the song as part of the deal despite the fact that 50% was owned by Alvert Music.

DM Records subsequently started using the song in compilation albums that were sold across the US.

Bell first filed a lawsuit in 2002 at the US District Court for the Northern District of Texas. The case was transferred to the US District Court for the Eastern District of Texas in 2007.

The district court initially granted DM Records’s motion to dismiss the case in 2008 but Bell appealed against the decision at the fifth circuit which sent the case back to the district court in 2012.

In its 2012 ruling, the district court awarded $2.1 million in damages to Alvert Music after it deemed DM’s infringement to be willful.

Under US law, a court can award between $30,000 and $150,000 for each instance of “willful” infringement.

In December last year, the fifth circuit upheld the district court’s ruling.

The US Supreme Court is expected to respond to DM Records’s request for an appeal by June 4.

Neither DM Records nor Richard Busch, partner at law firm King & Ballow and representing Bell, responded to a request for comment at the time of publication.

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