Dixon v. Atlantic Recording Corp.

No. 85 Civ. 287 (WCC) (S.D.N.Y. 1985)

Comment By Charles Cronin

While this dispute involved the usual allegations of infringement of protectable musical expression, the opinion (below) deals entirely with an ancillary issue. Harry Fox Agency, one of the defendants, sought summary judgment based on its argument that as merely the agent for the publisher/owner of the defending song, it could not be liable for any alleged infringement attributable to the publisher.

Complicating Harry Fox’s claim of immunity is the copyright statute’s music compulsory licensing provision from which one, arguably, may infer that Harry Fox did not have sufficient legal agency to engage in copyright infringement involving a creative work of a client. The court denied Fox’s motion, not because it rejected Fox’s immunity claim, but simply to allow the plaintiff ample time in which to investigate the meets and bounds of the business relationship between Fox and the publisher, to shed light on the legitimacy of Fox’s argument.It does not appear the plaintiff availed himself of this opportunity as the parties settled shortly after this rejection of Fox’s motion.

Turning for a moment, to the infringement claim… The factual circumstances, and contested expression, in this case are remarkably similar to those in the 2010 dispute between “folk-rock” performer Jake Holmes and Jimmy Page, in which the defending work was made popular by the group “Led Zeppelin.” In both cases one could plausibly claim that the defendants copied nothing more than commonplace musical ideas, topical themes, and performance styles. And yet… if not illegal, it is at least distasteful, as many have observed, that a cadre of opportunist middle-class young men from the U.K. (partial to wearing tight pants) enriched themselves with the Yankee dollars, and with no recompense to their progenitors, by flagrantly capitalizing on American, and particularly African-American, popular musical genres and styles.

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Opinion (Oct. 4, 1985): PDF