Judge Tosses Claim Over Hit Nelly Furtado Song

(CN) - A Florida judge dismissed a Finnish record company's claim that Miami-based producer Timbaland and Nelly Furtado plagiarized one of its songs.

U.S. Magistrate Judge Edwin Torres threw out Kernal Records Oy's claim that Timbaland sampled most of Kernal's "Acidjazzed Evening" and added new instrumentation and lyrics to create Furtado's hit "Do It."

Norwegian songwriter Glenn Rune Gallefoss recorded "Acidjazzed Evening" in 2002 as an SID computer file, playable with the help of a musical-synthesizer chip. Gallefoss based the song on an earlier musical arrangement created by Finnish composer Janne Suni.

According to the complaint, in August 2002, Gallefoss authorized publication of "Acidjazzed Evening" in Vandalism News, an Australian disk magazine, which made it available for online downloading and copying. The song was subsequently posted on the High Voltage SID Collection website the same year.

Kernal Records acquired the rights to the sound recording and arrangement of Gallefoss' song in 2007.

In 2009, the Finnish label filed a copyright-infringement suit against Timothy Mosley aka Timbaland, Nelly Furtado and others involved in the creation and distribution of "Do It."

Timbaland has produced records and singles for artists such as Brandy, LL Cool J and Justin Timberlake.

In a 34-page order filed June 7, Torres finalized his earlier ruling, which said Kernal could not sue for copyright infringement without having registered the song with the U.S. Copyright Office.

The order concluded that "Acidjazzed Evening" had first been published on the Internet, which constituted simultaneous publication in the United States and other countries with online access, and therefore the song met the definition of a "United States work" under the Copyright Act of 1976.

Kernal Records had claimed that the work was posted online only three months after it was published in Vandalism News.

But Torres rejected Kernal Records' argument that the song was first published on a "disk magazine," which referred to a physical computer disk, not an online publication.

The court found that Kernal Records failed to produce a physical copy of a magazine or computer disk, or any credible evidence that could dispute the fact that "Acidjazzed Evening" had first been published on the Internet. Moreover, both Gallefoss and Suni had testified that Vandalism News was an online magazine, the order states.

The court rejected Kernal Records' reliance on a Delaware case in which a federal judge held that photos posted on a website in Germany were not published simultaneously in the United States. Torres found that Gallefoss' song was not merely viewable or audible, as was the case with the German photos, it was also available for downloading and copying, which equates publication.

"We hold that publishing AJE ["Acidjazzed Evening"] on a website in Australia was an act tantamount to global and simultaneous publication of the work, bringing AJE within the definition of a 'United States work'" under the Copyright Act, and therefore subject to registration, Torres wrote.

Torres denied Kernal Records' motion to amend the complaint, finding that the Finnish label only registered its copyright after the court had ruled for the defendants, although the issue of copyright registration had come up in the litigation as early as May 2010.

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