[NEohioPAL] Midnight Syndicate sues Insane Clown Posse for Copyright Infringement

[Mary Ellen Tomazic]

*Entity Production, Inc. v. Psychopathic Records, Inc. – an Analysis of the
Complaint*

*By Mary Ellen Tomazic*



        Some Cleveland-based musicians specializing in the horror genre
have unleashed a monster-sized lawsuit against some evildoers. On Halloween
2011, the recording artists Midnight Syndicate and their company Entity
Production, through their attorney Marc Avsec (a musician himself) filed a
$2.1 million copyright infringement suit against Michigan bad boy rappers
Insane Clown Posse and their company, Psychopathic Records. Judge Solomon
Oliver of the U.S. District Court for the Northern District of Ohio in
Cleveland will preside over the case, which is expected to begin after the
first of the year. That is, if the case even gets to trial, in view of the
magnificent complaint filed by Avsec. The filing, in twenty pages, sets out
every jurisdictional requirement and answers every possible question in a
copyright infringement case – what was taken, who did it, who owns it, and
what it is worth. Copyright registration certificate numbers are listed for
all the seven appropriated compositions and sound recordings made from
them. Information is given in several counts about the popularity of
Midnight Syndicate’s Halloween/horror themed songs, their distribution and
sales worldwide of 500,000 copies, and their use in theme parks, television
shows, films and video games. Against this in other counts is the research
showing the Insane Clown Posse (ICP) catalogue has sold 6.5 million units
worldwide and reaps $10 million per year in revenue from exploitation of
their songs and related merchandise.

        Although the Midnight Syndicate music samples were used in bands
other than ICP itself, the bands are part of ICP’s companies and are
controlled by Psychopathic Records and the principals of that company and
Insane Clown Posse LLC, Joseph Utsler aka Shaggy 2 Dope, and Joseph Bruce,
aka Violent J. The complaint leaves no stone unturned, listing the
trademark registration for “Insane Clown  Posse®” in several different
classes for sound recordings, record production services and entertainment
services including musical performances. The other bands on ICP’s label are
also marketed under ICP’s trademark. In meticulous but straightforward
detail, the complaint alleges the harm caused to the plaintiff Entity
Production, the control, supervision and ultimate responsibility of the
principals for the infringement, and how they profited from the
exploitation of the Midnight Syndicate samples. Direct and vicarious
liability is alleged with the statement that “Bruce and Utsler personally
sampled or directed the sampling of Midnight Syndicate Recordings.” A copy
of the cease and desist letter that Entity Production sent to Psychopathic
Records in October of 2009 is attached to the complaint, detailing the
specific infringements of Midnight Syndicate recordings by the ICP groups;
the letter was ignored, leading to this lawsuit. Illustrating the
defendants’ utter defiance of the claims of infringement, ICP again sampled
a Midnight Syndicate recording in the summer of 2011, leading to the
lawsuit’s claim that the infringement was malicious and intentional.

        The allegations are that ICP sampled substantial portions of
Midnight Syndicate recordings and used them in their original form with
vocal overdubbing and multiple looping, essentially making them into the
musical bed for seven of ICP’s and the other related band’s songs. One
writer who listened and compared the original to the infringing songs
stated that it sounded like the sample was lifted straight from the
Midnight Syndicate song. Under section 114 of the Copyright Act, which
grants an exclusive right to the copyright owner to reproduce and make
derivative versions of the copyrighted work, infringement is found when
there is physical copying of a recording by digital sampling. By the
precedent set in a 2005 case from the 6th Circuit Court of Appeals, *Bridgeport
Music v. Dimension Films*, no tests of similarity or de minimis inquiry is
required when there is unauthorized sampling, no matter how small the
sample. *Bridgeport* set a new rule that the copyright owner is the only
one who may sample his own copyrighted works; the court in that case
admonishes prospective samplers to get a license from the owner or don’t
sample, also noting that licensing of samples is now standard practice in
the recording industry. There are a number of clearinghouses for licensing
music samples as a result of actual and threatened litigation in the area
of digital sampling infringement, which are authorized by member copyright
owners to clear samples for use on albums according to an agreed upon fee
structure. However the court in *Bridgeport* also stated that there will
still be artists and companies that choose to sample and take their
chances, and six years after that case, Insane Clown Posse have been haled
into court for doing just that.

        Entity Production’s case may not make it to trial, either because
of a settlement, in view of the overwhelming evidence of intentional
infringement, or because it can be decided simply on the information
contained in the complaint, on summary judgment. I don’t believe there is
any colorable defense that ICP can put forth to Midnight Syndicate’s claims
of copyright infringement, and we will soon find out if they want to take
their chances in a trial, which would be more costly than a settlement.
Either way it would be a nice victory for the underdogs, two niche
recording artists from the Cleveland area, against two million dollar
mainstream performers and merchandise salesmen from Michigan.
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