9th Circuit breaks up copyright class action over concert archives

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The James R. Browning U.S. Court of Appeals Building, home of the 9th U.S. Circuit Court of Appeals, is pictured in San Francisco, California. REUTERS/Noah Berger

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  • Musician Greg Kihn sued owners of Wolfgang's Vault on behalf of performers, composers
  • 9th Circuit reversed order certifying class action
  • Kihn tailored class to his claims, appeals court says

(Reuters) - Online concert archive Wolfgang's Vault on Monday persuaded a U.S. appeals court to break up two classes of musicians and composers who sued it for copyright infringement.

Musician Greg Kihn failed to prove that issues common to the classes predominated over his own individual claims, the 9th U.S. Circuit Court of Appeals said.

Wolfgang's Vault has thousands of audio and video recordings of concerts by hundreds of performers including the Rolling Stones, the Grateful Dead and Janis Joplin. It and owner William Sagan have faced multiple copyright infringement lawsuits, including one brought by the Doors, Carlos Santana and others that settled in 2008, and another in which a group of publishers won nearly $200,000 from the site in 2020.

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The site offered recordings of several performances by The Greg Kihn Band. Kihn argued that he never approved the recording or distribution of his shows, and sued Wolfgang's Vault in San Francisco in 2017 on behalf of himself and others whose concert recordings it allegedly offered without permission.

U.S. District Judge Yvonne Gonzalez Rogers certified two classes of composers and performers whose works had supposedly been "reproduced, performed, distributed, or otherwise exploited" by the website since 2014.

Wolfgang's Vault appealed the order, arguing it was wrong to "expand a personal dispute" between Kihn and the site into an "exceedingly rare and unmanageable copyright class action."

A unanimous three-judge 9th Circuit panel agreed, writing in a joint opinion that Kihn had improperly tailored the classes to his own claims.

After the site provided evidence that Kihn had licensed some of the recordings, the court said he had tried to redefine the classes to exclude those recordings from the case. But the panel said Kihn and his publishing company "may not accommodate differentiated evidence of their own consent while asking that every other artist's recordings be presumed unauthorized."

"If the case were litigated to judgment, individual issues of license and consent would predominate for the absent class members, who have not yet had the opportunity Plaintiffs had to sift through their claims and exclude those that lack merit," the court said.

The appeals court sent the case back to San Francisco for further proceedings.

U.S. Circuit Judges Michelle Friedland, Daniel Bress, and Patrick Bumatay wrote the opinion.

Wolfgang's Vault and the parties' attorneys didn't immediately respond to a request for comment.

The case is Kihn v. Bill Graham Archives LLC d/b/a Wolfgang's Vault, No. 20-17397, 9th U.S. Circuit Court of Appeals.

For Kihn: Daniel Warshaw of Pearson, Simon & Warshaw; and Neville Johnson of Johnson & Johnson.

For the Archives: Michael Elkin of Winston & Strawn

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Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at blake.brittain@thomsonreuters.com