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26 Intell. Prop. & Tech. L. J. 55 (2021-2022)
Kihn v. Bill Graham Archives, LLC 445 F. Supp. 3d 234 (N.D. Cal. 2020)

handle is hein.journals/iprop26 and id is 61 raw text is: Kihn v. Bill Graham Archives, LLC 445 F. Supp. 3d 234 (N.D. Cal. 2020) KIRKMAN RIDD* BACKGROUND Plaintiffs are recording and performing artist Greg Kihn (Kihn) and his music publisher Rye Boy Music, LLC (Rye Boy). Defendants are music business entrepreneurs Bill Graham Archives, LLC d/b/a Wolfgang's Vault; Norton, LLC; and William Sagan.' Kihn and Rye Boy filed a putative class action against Defendants claiming infringement under the Copyright Act and unauthorized trafficking of live audio and audiovisual recordings in violation of the Anti-Bootlegging Act.2 Plaintiffs claimed that, beginning in 2006, Defendants used their web- sites to distribute and sell thousands of audio and audiovisual recordings that captured the live performances of hundreds of musical artists over several decades without the artists' authorization.3 Defendants purchased the vast majority of the recordings in 2002 from the estate of deceased San Francisco Bay Area concert promoter Bill Graham.4 Defendants contended that their acquisition agreements granted them full and unrestricted ownership of the recordings, and that the artists whose performances were captured had known of and consented to the recordings and had never asserted any ownership in or rights to the recordings. Kihn and Rye Boy stated that Kihn's live performances were recorded without his awareness or permission, and that his performances and compositions were exploited when they were trafficked on Defendants' websites without his per- mission. PROCEDURAL HISTORY Prior to this motion, Defendants settled with three major record com- panies who brought copyright infringement and bootlegging claims;5 how- ever, Defendants did not settle with Plaintiffs in this action. On behalf of themselves and other performers and composers, Plaintiffs moved for class * Kirkman Ridd is a 2023J.D. candidate at the University of San Francisco School of Law. 1. Kihn v. Bill Graham Archives, LLC., 445 F. Supp. 3d 234, 239-42 (N.D. Cal. 2020). 2. 17 U.S.C. §§ 101-504, 1 101 (section 1101 of the Copyright Act the so-called Anti-Bootleg- ging Act - prohibits the unauthorized fixation and trafficking in sound recordings and music videos). 3. Defendants had acquired over 21,000 recordings featuring over 900 musical artists including such iconic artists as Van Morrison, the Grateful Dead, and Carlos Santana. 4. Bill Graham promoted rock concerts from the 1950's through the 1990's. Defendants also ac- quired recordings from other third-party sources including concert producers and sound engineers. 5. In 2009 Defendants settled with UMG Recordings, Inc., Warner Music, Inc., and Sony Music Entertainment.

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