5 January 2022CopyrightMuireann Bolger

Appeals court overturns class cert in rock music dispute

The US Court of Appeals for the Ninth Circuit has overturned a district court’s decision to certify class status for musicians and composers suing the recording archive Wolfgang’s Vault for copyright infringement.

In a short memorandum published on Monday, January 4, the appeals court claimed that musician Greg Kihn had “tailored” the class definitions to better suit his own individual claims rather than the interest of all class members.

Wolfgang’s Vault features thousands of audio and video recordings of historic performances from many well-known artists, including The Rolling Stones, Janis Joplin and The Grateful Dead.

Musician Greg Kihn filed a complaint against the archive, claiming that he had never consented to the recording and distribution of the performances he had made with his own band during the 1970s and 1980s.

As a result, Kihn and his publisher sued Wolfgang’s Vault for copyright infringement on behalf of themselves and other artists.

Originally, the plaintiffs sought to form a single class under the title “[a]ll owners of copyrights and musical compositions registered under US copyright law, that were reproduced and/or distributed by defendants without a licence since 2003”.

However, the start date was later pushed from 2003 to 2014 and was split into two separate classes, referred to as the “composer class” and the “performer class”.

In their opposition to class certification, Wolfgang’s Vault held that the recordings were authorised at the time of performance and that the performers had acquired “all necessary licences” to exploit the recordings after the fact.

It also submitted evidence of a seven-year licensing agreement between Kihn and the King Biscuit Flower Hour—a radio show targeted in the initial complaint—as evidence of the authorisation.

Kihn and the other plaintiffs proposed several changes to their class definitions and managed to get the district court to certify the amended “composer” and “performer” classes and limited their action to “non-studio” performances, which they claimed excluded the King Biscuit recordings from the proceedings.

The US District Court for the Northern District of California agreed that the two classes “excluded recordings made in a studio” and that the recordings made by King Biscuit were “no longer at issue”, deciding to certify the amended class definitions.

The Ninth Circuit said that the district court “failed to conduct the rigorous analysis” required for class certification by accepting these class definitions without questioning the exclusion of the King Biscuit recordings.

The appeals court concluded: “Faced with evidence that some of Kihn’s concerts were recorded with his consent, which would fatally undermine his claims for those concerts, Plaintiffs attempted to redefine the classes to exclude those concerts. But Plaintiffs may not accommodate differentiated evidence of their own consent while asking that every other artist’s recordings be presumed unauthorised and included in the classes by default.”

The certification of the two classes was reversed and the case was remanded back to the district court for further proceedings.

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