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Live music companies removed from lawsuit over Barry Manilow’s duet with a dead Judy Garland

By | Published on Thursday 4 April 2019

Barry Manilow

A Californian judge has removed a bunch of live music companies from an ongoing copyright dispute over Barry Manilow’s ‘My Dream Duets’ album. The judge ruled that the plaintiff in the case hadn’t presented a sufficiently compelling argument as to why companies which promoted or hosted Manilow’s concerts should be involved in the case.

The legal dispute has been rumbling on for a year now. 2014’s ‘My Dream Duets’ featured Manilow performing new duets with dead artists, the latter making their contributions through archive recordings. One of the duets was with Judy Garland, her audio coming from a recording of the 1960s television series ‘The Judy Garland Show’.

The claimant in this case, producer Darryl Payne, argues that he previously acquired the rights in that TV programme and that Manilow had used clips from it in his record – and the accompanying video and live shows – without licence.

Payne initially filed his lawsuit a year ago but there have been a number of amendments of the legal action since then. Much of the focus so far has been on a disagreement over ownership of the telly programme footage.

The Judy Garland Trust – which counts Manilow’s manager Garry Kief among its trustees – says that it employed the termination right under US copyright law and reclaimed the rights in the programme as of last June. Payne argues that Garland made the TV show on a work-for-hire basis, so the programme’s producer not Garland was the default owner of the recording, which means her estate can’t reclaim any rights at this point.

The judge ruled last October that Payne hadn’t presented sufficient evidence to prove he was still the copyright owner, but he nevertheless allowed the producer to amend his lawsuit to beef up that side of the claim. The legal battle over who owns the TV show footage and whether Manilow infringed the rights in it with his record is therefore ongoing.

However, Payne also sued Live Nation, AEG and the Madison Square Garden Company because Manilow had used footage from the TV programme in his live shows when performing the duet. The three live music companies argued that, even if Payne did control the copyright in the telly footage, he hadn’t demonstrated why they should be liable for so called secondary copyright infringement by hosting Manilow’s concerts.

According to Law360, this week judge Philip S Gutierrez concurred, ruling that – in his latest legal filing – Payne had simply recycled previous claims about how venues supposedly operate which had already been rejected by the court.

To that end, Gutierrez agreed to remove Live Nation, AEG and MSG as defendants on the case. Although he did give Payne one more chance to amend his lawsuit yet again if he wanted to have another go at arguing why the live music companies should share in any liability for Manilow’s alleged copyright infringement.