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Originally Posted by Quentin
I was referring to the part of the complaint wherein the plaintiff asserts that RK claims on its websites (in its terms and conditions) to own the rights to ALL the material displayed on their websites, including music and the soundtrack to the videos therein. (See the bottom of page 14 and top of page 15 of the complaint)
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actually you need to read it again it says
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"all materials included on the site, such as text, graphics, photographs, video and audio clips, music, soundtracks, button icons, streaming data, animation, images, downloadable materials, data compilations and softwae is the property of the SITE or its content suppliers and is protected by United States and international copyright laws
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that statement is not incompatible with a fair use defense,
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One thing on which I should hope we can agree here; the factual question of who holds the copyright to the songs in question is not subject to First Amendment arguments.
Once the plaintiff presents evidence in support of its allegation that the defense falsely represented its rights to the content at issue, I think that could impact whether the case ever even reaches the Constitutional and fair use questions at all.
My point is that the court may find grounds for deciding the case on "technical" points before reaching the more nuanced Constitutional ones. I'm not saying it will play out that way, just that it could. Many, many cases, both civil and criminal, that involve substantial questions of Constitutionality never reach those issues at all, and are decided on points that are relatively simple "black letter law" by comparison.
(Don't take my word for it, ask any 'con law' expert or academic, and they will tell you the same thing)
I suspect this case will settle before the court considers any of these points, anyway... but it is still an interesting set of questions we're talking about here.
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if the highlighted portion of the text was missing then yes i would agree with you
however given club setting, the normal liciencing process for playing music in a club and the nature of the shoot. that phrasing is appropriate for the first ammendment/fair use defense.