Last week, Judge Broderick denied a motion to dismiss a case brought by the copyright holders for the song “A New Day is Here at Last,” written by Perry Kibble in 1969 and performed by J.C. Davis.  The suit alleged that Justin Timberlake’s 2006 hit song “Damn Girl” sampled “A New Day is Here at Last” without seeking permission from the copyright holder, a company managed by Kibble’s sister.  Timberlake released the song in 2006 as part of an album and tour that received multiple Grammy and Emmy nominations.  Plaintiffs discovered that “Damn Girl” had sampled “A New Day is Here at Last” in August 2015 and filed the suit in February 2016.

Among other arguments, defendants claimed that the widespread availability of the album and concert DVD put plaintiffs on notice of any possible infringement well before 2015, and hence the case was untimely.  Judge Broderick rejected this argument:

Defendants’ argument that the popularity and success of the Album, DVD, Tour, and HBO Special gave rise to constructive or inquiry notice of Plaintiff’s claims is unpersuasive. Nothing in the record before me suggests that Damn Girl was ever played on the radio, and even if it was, that Plaintiff had the opportunity to hear it. The only way Plaintiff would have heard Damn Girl would have been by buying the Album or DVD (or obtaining/hearing the song in some other way), owning an HBO subscription (or watching HBO or the performance of the song on HBO in some other way), or attending a concert on the Tour. Defendants have supplied no case law that suggests that a diligent plaintiff is one who obtains all popular or successful albums or concert DVDs at any given time and scours each song and the liner notes to discover potential infringements.

Nor is the diligent plaintiff one who has or obtains access to HBO and watches all concert specials available on the channel or who attends the concerts of all popular artists. The fact that the Album, DVD, and HBO Special were nominated for and won several prominent awards also fails to support Defendants’ argument. Nothing in the record suggests that Damn Girl itself received any awards. And Defendants have provided no authority supporting the position that a diligent plaintiff is one who watches or keeps track of major awards shows every year and listens to each song on each album or television special that was nominated for or won an award. Simply because a person could have bought the Album or DVD, attended a concert on the Tour, or watched the HBO Special does not mean that a reasonable person exercising due diligence in McQuinton’s position should have done any of those things.