Zomba Recording LLC (“Zomba”) is a record company that distributes copies and phonorecords of sound recordings performed by music artists, including Britney Spears, Leona Lewis, and Beyonce Knowles. On October 30, 2007, Zomba released Britney Spears’s album Blackout, her first record released since 2003. According to the first amended complaint filed by Zomba against Mario Aramando Lavandeira, the legal name of celebrity blogger Perez Hilton (“Hilton”), Hilton posted copies of tracks of the album on his website www.perezhilton.com. As a result, Zomba was forced to push forward the release of Spear’s album. From August 23, 2007 to October 6, 2007, Hilton consistently posted eight unreleased Britney Spears’ tracks (Perfect Lover, Heaven on Earth, Break The Ice, Everybody, Hot as Ice, Piece of Me, Radar, and Kiss You All Over), as well as one released track (Gimme More). The complaint states that Zomba consistently appealed to the Recording Industry Association of America to demand that Hilton remove the sound recordings from his website and demanded that Hilton’s Internet service provider (“ISP”) disable access to the sound recording. Although the ISP disabled access to the recordings, Hilton “continued to post and re-post unlawful copies” of the sound recordings. For each of the individual sound recordings, Zomba argued that Hilton infringed Zomba’s copyright “ by copying and reproducing plaintiff’s [sound recordings],… by distributing copies…to the public,” and “by performing [sound recordings] publically.” As a prayer for relief for copyright infringement, Zomba asked that Hilton be “enjoined…from infringing…[Zomba’s] copyrights…” and that Hilton “be required to pay plaintiff…damages…[Zomba] has sustained in consequence of [Hilton’s] infringement.
This complaint is of importance to my research paper as it involves Hilton’s use of sound recordings. An analysis of the four factors of fair use clearly weighs in favor of Zomba. For one, there is nothing transformative in Hilton’s posting of the songs. He does not produce a new mix of alter the material in any way, shape, or fashion. This is also the first case in which the nature of the copyrighted work weighs heavily against Hilton, as all but one of the songs was unpublished. As under copyright law the author has the right to control the first public appearance of its expression, Hilton clearly violated this right by posting the tracks before the release. Although the tracks posted did not represent the final release version, the heart of the work was expressed through the “draft” versions on Hilton’s website. Therefore, coupled with the fourth factor, the sound recordings on Hilton’s website substantially effected the potential market, as individuals could substitute the tracks online for the actual album. This conclusion is further substantiated by the fact that Zomba was forced to release the album two weeks earlier in an attempt to retain its economic profit.