Greg Kihn is a musician best known for his 1983 hit song, “Jeopardy.” In 2017, he (and his publishing company) filed suit against Bill Graham Archives, LLC, which did business as Wolfgang’s Vault. Wolfgang’s Vault is a website where visitors could, for a fee, access thousands of live musical performances from the 1950s to the 1990s. Mr. Kihn’s complaint alleged violations of federal copyright and anti-bootlegging laws. He sought to bring these claims of a class of other performers similarly situated.
Class certification allows a single plaintiff to bring a lawsuit on behalf of hundreds, if not thousands, of other similarly situated claimants. A plaintiff seeking class certification must establish certain factors under Rule 23 of the Federal Rules of Civil Procedure, including that there are common questions of law and fact to all class members that outweigh any questions affecting only individual members (FRCP 23(b)(3)), and that the defendant has acted or refused to act in generally the same manner as to the entire class (FRCP 23(b)(2)). The district court granted Kihn’s motion for class certification, which defendants then appealed to the Ninth Circuit.
The Ninth Circuit noted that Wolfgang’s Vault “contains thousands of audio and audiovisual recordings featuring hundreds of performers, including well-known artists such as the Rolling Stones, Janice Joplin, and the Grateful Dead.” The site’s collection of recordings had apparently been assembled through the acquisition of private collections “of roughly a dozen concert promoters, theaters, radio producers and sound engineers.” One of these collections was from the King Biscuit Flower Hour, which was a radio show that broadcast live concert performances through the use of a mobile recording truck. Mr. Kihn and his band performed at several popular venues throughout the 1970s and 1980s and recordings of at least 15 of his concerts were available on Defendant’s website. He claimed that he had never consented to either the initial recording or the later distribution of his concert performances.
During the course of the litigation, Mr. Kihn apparently changed the definition of the class he was seeking to represent. He initially sought to certify a single class defined as “[a]ll owners of copyrights and musical compositions registered under United States copyright law, that were reproduced and/or distributed by Defendants without a license since 2003.” When he later moved for class certification, he narrowed the class period to after September 2014 and sought to divide the previously-identified class into two classes: a composer class and a performer class, which were defined respectively as “all owners of copyrights” and “all persons whose performances are fixed” in the recordings that were being exploited on Defendants’ website “without a license or authorization to do so.”
In opposing the motion for class certification, Defendants argued that it was essentially a “fail-safe class,” which by definition seeks to exclude from the class “anyone who could not prove liability.” The Defendants also offered evidence that they had documentation of licenses and consent granted by numerous performers, “including a seven-year licensing agreement between [Mr.] Kihn and the King Biscuit Flower Hour.”
Mr. Kihn’s reply brief in support of motion for class certification sought to make two additional changes to the definition of the potential class. First, Mr. Kihn removed the qualifier “without a license or authorization to do so” to eliminate the fail-safe problem identified by the Defendants. He then sought to change “performances” to “non-studio performances.” By doing so, he sought to exclude the King Biscuit recordings but did not acknowledge what other recordings may likewise be excluded. Nevertheless, the district court accepted these modifications and granted his motion for class certification. The district court noted the potential class excluded any studio recordings and specifically the King Biscuit recordings.
The Ninth Circuit concluded that the district court erred in accepting these definitions without conducting a more “rigorous analysis” required to certify a class. The Ninth Circuit noted that the King Biscuit Flower Hour was known for broadcasting live concert performances and that even if the mobile truck could be defined as a “studio,” the performances were recorded at “non-studio” venues. At oral argument before the Ninth Circuit, Mr. Kihn’s counsel attempted to explain away this discrepancy by noting that the “King Biscuit recordings had been excluded not because they were studio recordings but because `our client’s interaction was different in that case.’”
The Ninth Circuit was concerned that this was an attempt to tailor the class “to the merits of Kihn’s individual claims” as opposed to the claims of a class as a whole. The Court found this to be problematic because “plaintiff’s may not accommodate differentiated evidence of their own consent while asking that every other artist’s recording be presumed unauthorized and included in the classes by default.” This raised the prospect that “individual issues of license and consent” would come to predominate over those issues that might be common to the class, which would weigh against class certification.
The Ninth Circuit also noted that the district court had apparently concluded that all of the written agreements relied upon by Defendants had “substantially identical terms,” but that this was incorrect. Rather, Defendants had submitted additional agreements “with even more variation” that should have been considered by the district court.
The Ninth Circuit also disagreed with the finding that the Defendants had “acted or refused to act on grounds that applied generally to the class.” The Ninth Circuit recognized that the type of injunction sought by Plaintiffs “could result in Defendants removing all non-studio recordings from their website.” This was regardless of whether individual potential class members were earning royalties from Defendants’ website or had otherwise agreed to Defendants’ distribution of their work. Furthermore, other potential class members might have an interest in entering into such agreements but an adverse ruling against Defendants on behalf of the class could foreclose this option. The Ninth Circuit likewise rejected the plaintiff’s argument that any such artist could simply opt-out of the litigation finding that Rule 23(b)(2) does not provide such a right. Thus, the Ninth Circuit reversed the district court and concluded, “There is an insufficient showing that common questions predominate and Plaintiffs have not shown they are seeking an injunction `benefiting all [class] members at once.’”
The unpublished decision by the Ninth Circuit Court of Appeals in the Kihn case is a reminder that counsel must pay close attention as to how they seek to define a putative class in bringing copyright infringement claims on a class-wide basis.