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Music publishers denied a second hearing on damages in Wolfgang’s Vault cases

By | Published on Wednesday 18 November 2020

Wolfgang's Vault

A judge in New York last week declined to order a new trial to consider what damages should be paid to the various music publishers who successfully demonstrated that their copyrights had been infringed by concert streaming service Wolfgang’s Vault. However, he did award the publishers legal costs, albeit somewhat less than had been requested.

Launched in 2003, Wolfgang’s Vault began life as an archive of concert recordings previously owned by promoter Bill Graham, although it later expanded its content sources. As that happened, and the channels through which the firm disseminated and monetised the live recordings expanded too, the company became somewhat controversial in music circles.

Various legal challenges were made, with the US National Music Publishers Association pursuing a lawsuit on behalf of various publishers, including all the majors, back in 2015.

The publishers then prevailed in that lawsuit in 2018, although damages were not set at the time, with a separate court hearing considering what Wolfgang’s Vault should pay the music companies taking place in March this year.

In the end, the publishers got a total of $189,500 in damages. Which is rather low for a copyright case of this kind in the US. The original lawsuit listed 197 songs that had been specifically infringed, and under US law a court can award a copyright owner up to $150,000 in statutory damages per infringed work. Which is why multi-million dollar payouts are common.

The publishers were, needless to say, disappointed. Seeking a new trial on the damages issue, the publishers said that the low payout was the result of rushed jury deliberations which, in turn, were the result of mounting COVID-19 concerns.

The pandemic was starting to spread around the US at the time of the damages court hearing and public health concerns were mounting. On the final day of the trial, one juror specifically expressed concern about the virus, pointing out the court case they were involved in was entirely focused on what money the publishers should get and – in the wider scheme of things – that didn’t seem sufficiently important to put the health of jurors at risk by having them come into court each day.

The juror wasn’t asking for the case to be put on hold, he simply sought assurances that the trial would be completed as quickly as possible. In response, the judge stressed that the courthouse had introduced a number of measures to reduce the risk of the virus spreading in the building, while also noting that the jury was likely to begin their deliberations later that day anyway.

When that happened, the jury took less than an hour to reach its decision that $189,500 was due. The publishers said that, given the COVID concerns that had been expressed, and given how quickly the jury reached its conclusion at the end of a nine day trial, they didn’t feel proper consideration was given to what level of damages would be appropriate. Which, they added, resulted in the unusually low payout.

However, last week the judge hearing the case concluded that neither the COVID concerns nor the speedy jury decision nor the unusually low payout were grounds for saying that a “miscarriage of justice” had occurred when the publishers were awarded $189,500.

The publishers cited as precedent an earlier case in the American courts that was overturned on appeal because a jury had not properly deliberated as a result of public safety concerns. In that case, the insufficient deliberations were the result of an incoming hurricane.

However, in that case, the judge had pressured the jury to reach a speedy conclusion, which didn’t happen in the Wolfgang damages hearing back in March. Plus there was no evidentiary basis for the decision the jury reached in that earlier case, whereas in the Wolfgang litigation jurors correctly used their discretion in setting damages within the albeit wide parameters set by the law.

On the legal costs issue, the judge concluded that there were grounds for forcing Wolfgang’s Vault to cover some of the publishers’ attorney fees. However, whereas the publishers requested $6 million – which the operator of the Wolfgang’s Vault site said would leave him in financial ruin – the judge ordered the payment of $2 million.