Christmas Comes Early for Musician’s Copyright Action


     SAN JOSE, Calif. (CN) – A federal judge would not dismiss most copyright claims over a YouTube video of “Grandma Got Run Over By a Reindeer.”
     Aubrey Canning had moved to dismiss on the basis of jurisdiction because Canning was in Canada when he uploaded the allegedly infringing video.
     But U.S. District Judge Lucy Koh said the song’s co-owner, Elmo Shropshire, may still be able to prove that some infringement occurred in the United Statees.
     Koh also refused to dismiss claims that Canning filed a false counternotice with YouTube, but she will dismiss a claim that Canning misrepresented his use of audio in the uploaded video.
     Shropshire, who goes by the stage name of Dr. Elmo, is famous for his performance of the 1979 holiday tune with Patsy Trigg.
     The musician claims Canning, a Canadian resident, posted a video on YouTube that combined Christmas-related pictures with audio of “Grandma” being sung by the Canada-based Irish Rovers.
     Canning ignored multiple requests from Shropshire’s manager to remove the video, ultimately telling the manager to “contact the video site managers and get my video removed. I won’t be doing it.”
     YouTube did remove the video for a short time after Shropshire filed a copyright-infringement notification, but it restored the file after Canning filed a counternotice stating that he believed his video constituted fair use.
     Koh dismissed Shropshire’s first infringement lawsuit against Canning in January, but the second amended complaint filed in February has fared better.
     “The court finds that in this case, the alleged act of direct copyright infringement – uploading a video from Canada to YouTube’s servers in California for display within the United States – constitutes an act of infringement that is not ‘wholly extraterritorial’ to the United States,” Koh wrote.
     “The problem is that [Canning] did not stop at the mere creation of the Grandma song video in Canada, but instead allegedly uploaded it to YouTube’s California servers for display in the United States after agreeing to YouTube’s Terms of Service agreement,” she added.
     Koh also would not dismiss the misrepresentation claim against Canning for telling YouTube in a counternotice that he had “a good faith belief” it removed his video by mistake. The notice said that neither sound nor visuals were copied, “and no part of my Grandma video is a copy of any original work made by Elmo. My video’s audio as performed by the Canadian ‘Irish Rovers’ under Section 107 of the Copyright Act of 1976 of the United States allows for ‘fair use.'”
     Shropshire said his manager informed Canning that there was still a copyright issue with the Irish Rovers’ version because there is difference between rights to a copyrighted sound recording and a copyrighted composition.
     While this claim survived Canning’s motion to dismiss, Koh threw out an allegation that Canning knew his video used Shropshire’s copyrighted composition.
     “[Canning’s] statement, even on [Shropshire’s] own allegations, is factually accurate: the Grandma song video does not contain a copy of ‘any original work made by Elmo,'” Koh wrote. “The fact that [Shropshire] is a co-owner of the musical composition to the Grandma song does not morph [Canning’s] statement into a misrepresentation. [Canning] made no representations as to [Shropshire’s] rights or to his own rights in the work.”
     Canning had also tried to dismiss the claim for declaratory relief, alleging Shropshire had failed to state a claim. But Koh disagreed since claims for copyright infringement and violations of the Digital Millennium Copyright Act support this measure.

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