Frackman, Russell
Partner
Entertainment & New Media
Entertainment Litigation
Intellectual Property & Technology
Litigation
Legal Expertise
Mr. Frackman is a “go-to” lawyer for the entertainment industry through his stewardship of many of the most important copyright and trademark cases to have been litigated in recent years. Mr. Frackman is recognized as one of the nation’s leading entertainment and intellectual property litigators, having successfully represented clients in a number of landmark cases in state and federal trial and appellate courts. Mr. Frackman was lead counsel for the record company plaintiffs in the seminal Internet file sharing litigation, A&M Records, Inc. v. Napster, 239 F.3d 1004 (9th Cir. 2001), and 284 F.3d 1091 (9th Cir. 2002), In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003), and Metro-Goldwyn-Mayer Studios, et al. v. Grokster, Ltd, et al., 545 U.S. 913 (2005). Mr. Frackman was also the lawyer in two precedent-setting decisions involving the scope of the Digital Millennium Copyright Act (DMCA), Rossi v. Motion Picture Assn of America, Inc., 391 F.3d 1000 (9th Cir. 2004) concerning the notice and takedown provisions of the DMCA, and 321 Studios v. MGM, 307 F. Supp. 2d 1085 (N.D. Cal. 2004) concerning the anti-circumvention provisions of the DMCA.
Industry Focus
Motion picture, record, and music publishing companies; recording artists, actors, producers, agents and writers
Key Professional Accomplishments
* On behalf of numerous music industry organizations (including BMI and ASCAP) and individual artists (including Garth Brooks and Sting), Russell Frackman filed an amicus curiae brief supporting Viacom in the Second Circuit of Appeals in Viacom, Intern. v. YouTube, Inc. This is one of many closely-watched cases for which Mr. Frackman has been engaged to provide amicus support, including most recently a brief on behalf of the Recording Industry Association of America in support of the plaintiffs in a district court case involving the issue of the application of the Digital Millennium Copyright Act to recordings made before 1972 (which are not subject to federal copyright protection).
* Obtained a “precedential” opinion sustaining, on both likelihood of confusion and dilution grounds, an opposition to the registration of a trademark infringing the world-famous “Motown” trademark. UMG Recordings, Inc. v. Mattel, Inc., 100 USPQ2d 1868 (TTAB 2011)
* Represented as lead counsel several record companies in obtaining affirmance of a contempt citation and permanent injunction enjoining the auction of thousands of infringing recordings. A&M Records, Inc. , et al v. LaMonte, et al, 366 Fed. App’x. 736, (9th Cir. 2010)
* Obtained a preliminary injunction against, and then a summary judgment holding liable, an online company that provided digital “simulations” of thousands of commercial recordings (including virtually all of The Beatles recordings) as lead counsel in an important case of first impression involving the scope of rights in sound recordings under § 114 of the Copyright Act in Capitol Records, LLC, et al v. Bluebeat, Inc., 765 F. Supp. 2d 1198 (C.D. Cal 2010)
* Obtained summary judgment for defendant on audit claims based on a contractual limitations provision. Clinton v. Universal Music Group, 2011 WL 3501818 (C.D. Cal. Aug. 9, 2011)
* Lead counsel in the Ninth Circuit for defendant in E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, 547 F.3d 1095 (9th Cir. 2008), involving First Amendment issues concerning the use of trademarks in video games.
* Obtained summary judgment dismissing for lack of standing copyright action against Jay-Z, Linkin Park, and others, because plaintiff did not possess an exclusive copyright interest. Nafal v. Carter, 540 F. Supp. 2d 1128 (C.D. Cal 2007), aff’d 2010 WL 2852571 (9th Cir. July 21, 2010).
* Lead counsel for record company and music publisher clients in more than 100 related copyright infringement cases arising from the alleged unauthorized “sampling” of musical works in musical compositions and sound recordings, most recently arguing in the Court of Appeals for the Sixth Circuit in Bridgeport Music, Inc. v. WB Music, Inc., 520 F.3d 588 (6th Cir. 2008), involving recovery of attorneys’ fees under the Copyright Act.
* Counsel for plaintiff in claim for copyright infringement against search engine “image search” function, Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal 2006); aff’d in part and rev’d in part, 487 F.3d 701 (9th Cir. 2007).
* Counsel for amicus NBC Universal in Tur v. YouTube, Inc., 2007 U. S. Dist. LEXIS 50254 2007, WL 1893635 (C.D. Cal., June 20, 2007).
* Obtained summary judgment defending an infringement claim brought against a record company client and involving a hit recording of the rap artist 50 Cent, Lil’ Joe Wein Music, Inc. v. Jackson, 2006 U.S. Dist. Lexis 78367 (S.D. Fla. October 27, 2006); aff’d 2007 U.S. Dist. LEXIS 19165, 2007 WL 2274519 (11th Cir., August 8, 2007).
* Represented defendant in litigation involving pre-emption of right of publicity claims based on use of recording artist’s voice fixed in a sound recording. Laws v. Sony Music Entertainment, Inc. 448 F. 3d 1134 (9th Cir. 2006).
* Represented defendant in trademark infringement and unfair competition action seeking damages and to enjoin the hit recording “Barbie Girl.” Mattel, Inc. v. MCA Records, Inc. 296 F.3d 894 (9th Cir. 2002).
Court Admissions
* California, 1971
* USDC, Central District of California, 1971
* USDC, Eastern District of California, 1984
* USDC, Northern District of California, 1980
* U.S. Court of Appeals, Second Circuit, 1980
* U.S. Court of Appeals, Ninth Circuit, 1971
* U.S. Supreme Court
Education
Columbia University School of Law, J.D., 1970; cum laude
Northwestern University, B.A., 1967
