“If you don't know where you’re going, you won’t know when you get there” - one of Yogi Berra’s famous pronouncements and Russell Frackman’s favorite. Russ likes to point out it reflects the unintended path his career has taken. He arrived at MSK in 1970, as its 40th lawyer and fresh out of law school, before “intellectual property” existed as a term of reference, and long before many of the laws he’s navigated in his career. He didn’t know it then, but he had “gotten there”.
Russ quickly became the “music man”. From the 8-track to the cassette to CD’s to the internet, changes in the creation, distribution, and consumption of music mirrored the course of his career. This Brooklyn boy, whose mother wanted him to be an accountant, was an unlikely candidate to tackle what would become the most famous modern day case in copyright law. As he likes to point out, he was still getting “comfortable” with e-mail when he dove headfirst into the technology behind Napster and successfully represented the recording industry as lead counsel in its seminal case. Russ approached the case and guided it to a successful conclusion with the same thoughtfulness and thoroughness he had applied to countless cases over his decades of practice.
Those who know Russ describes him as the ultimate nice guy, a personality trait atypical of a successful trial lawyer and a far cry from the colorful nickname he earned in the Napster case - - “Russell the Muscle”. With all of Russ’s success and high profile representation over the years of clients such as The Rolling Stones, Coldplay, Neil Diamond, Jimmy Page, Jack Nicholson, and Paul Newman, he has maintained the same standards that one of his mentors at MSK impressed upon him early in his career: be tough but be fair.
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 District Courts and Courts of Appeals 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. Mr. Frackman currently represents the plaintiffs in Capitol Records, LLC et al. v. Vimeo, LLC, et al., 972 F. Supp. 2d 500 (S.D.N.Y. 2013) and 972 F. Supp. 2d 537 (S.D.N.Y. 2013), involving the application of the DMCA to a user-generated content website.
Currently represents the record company plaintiffs in litigation against Sirius XM Radio, Inc. and Pandora Media, Inc., in precedential cases involving the issue of performance rights under state law for sound recordings “fixed” prior to February 15, 1972 (and thus ineligible for federal copyright protection).
Currently represents the record company plaintiffs in copyright infringement litigation against Amway Corp. and others involving the unauthorized use of hundreds of sound recordings in videos uploaded to and performed over the Internet. (In 1998, Mr. Frackman obtained what was, at the time, the largest civil settlement on behalf of the record industry against Amway Corp. and others in similar litigation for use of sound recordings in videocassettes.)
Filed on behalf of numerous music industry organizations (including the Recording Industry Association of America, SoundExchange, Inc., the Recording Academy, BMI and ASCAP), amicus curiae briefs supporting content providers in the Supreme Court, American Broadcasting v. Aereo, Inc. [134 S.Ct. 2498 (2014)], and the Courts of Appeals for the Ninth Circuit, Fox Television v. Aereokiller, LLC [No. 13-55156], and the Second Circuit, Viacom Int’l, Inc. v. YouTube, Inc. [No. 13-1720-cv].
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 contractual limitations provisions. 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 a copyright action against Jay-Z, Linkin Park, and others, holding 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).
Honors & Awards
Recipient of the GRAMMY Foundation® 2015 Entertainment Law Initiative Service Award in recognition of 45-year career protecting rights of the music industry.
Initial recipient of the Donald E. Biederman Legacy Award presented by the Entertainment Media Law Institute of Southwestern Law School.
CLAY, “California Lawyer Attorney of the Year in Intellectual Property," California Lawyer (2001)
“Entertainment Lawyer of the Year” (2001), the Beverly Hills Bar Association
Selected as one of the "Most Influential Lawyers of the Decade," the National Law Journal (2010)
Selected as one of “100 Lawyers Who Helped Shape a Decade," Los Angeles Daily Journal (2010)
“Top 100 Most Influential Lawyers in California," California Law Business
"Los Angeles' Top 50 Litigators," Los Angeles Business Journal
“Top 10 California Entertainment IP Litigators,” Daily Journal (2008)
"75 Leading Intellectual Property Litigators in California," Los Angeles Daily Journal
“Leading Lawyers in Intellectual Property and Media and Entertainment Litigation,” Chambers USA, America’s Leading Lawyers for Business (2005-2015)
Recognized by Best Lawyers in America© in the fields of:"Leading Lawyer" in Intellectual Property Litigation nationwide, Legal 500
Entertainment Law - Music (Lawyer of the Year, Los Angeles, 2015)
Litigation - Intellectual Property (Lawyer of the Year, Los Angeles, 2014)
"Top 100 Power Lawyers" list, The Hollywood Reporter
“Hollywood Law Impact List," Daily Variety
"Who's Who in Intellectual Property Law," Los Angeles Business Journal
"Who's Who in Entertainment Law," Los Angeles Business Journal
"Top 5% of lawyers in Southern California," Southern California Super Lawyers (2004-2017)
Recipient of two honorary Gold Record Awards from the Recording Industry Association of America for his work on behalf of the record industry
AV® Preeminent™ Rating, Martindale-Hubbell
- December 15, 2016
- May 31, 2016
- April 20, 2016
- March 29, 2016
- February 18, 2016
- January 20, 2016
- October 22, 2015
- August 2015
- July 2015
- July 2015
- May 2015
- April 2015
- February 2, 2015
- November 21, 2014
- The Best Lawyers in America© 2015 Recognizes 21 Attorneys from Mitchell Silberberg & Knupp and Names 2 Attorneys “Lawyer of the Year”August 2014
- June 2014
- May 2014
- January 2014
- August 15, 2013
- Russell Frackman Named 2014 Los Angeles Litigation - Intellectual Property "Lawyer of the Year" by Best LawyersAugust 15, 2013
- May 2013
- March 25, 2013
- January 2013
- November 1, 2012
- MSK's Russell Frackman Named 2013 Los Angeles Entertainment Law - Music "Lawyer of the Year" by Best LawyersSeptember 15, 2012
- August 24, 2012
- July 18, 2012
- June 25, 2012
- The 2012 Legal 500 USA Guide Recognizes MSK Attorneys and Intellectual Property and Tax Practice Groups Among the Nation's BestJune 18, 2012
- April 26, 2012
- April 13, 2012
- January 23, 2012
- August 31, 2011
- July 13, 2011
- June 10, 2011
- The 2011 Legal 500 USA Guide Recognizes MSK Attorneys and Intellectual Property and Tax Practice Groups Among the Nation's BestJune 9, 2011
- April 7, 2011
- January 25, 2011
- October 12, 2010
- Daily Journal Names Russell Frackman Among "Ten California Lawyers Who Helped Shape the Past Decade"September 2010
- August 24, 2010
- August 19, 2010
- July 1, 2010
- March 29, 2010
- February 4, 2010
- January 26, 2010
- December 31, 2009
- December 14, 2009
- Los Angeles Business Journal's 2009 "Who's Who in the Law" Lists MSK Attorneys Russell Frackman and Bill ColeOctober 5, 2009
- August 3, 2009
- The Hollywood Reporter Recognizes Bill Cole and Russell Frackman to its List of 2009 "Power Lawyers"July 29, 2009
- April 16, 2009
- January 30, 2009
- November 21, 2008
- September 17, 2008
- July 23, 2008
- June 18, 2008
- June 17, 2008
- January 30, 2008
- January 8, 2008
- January 5, 2008
- December 28, 2007
- August 20, 2007
- August 6, 2007
- July 20, 2007
- June 15, 2007
- September 21, 2006
- June 19, 2006
- September 19, 2005
- June 2002
- March 11, 2002
- October 29, 2001
- World Trademark Review, October 2010
- Back to the Future: The Napster Decision Confirms the Applicability of Traditional Copyright Principles to the Internet2001
- February 1993
- The Failure to Pay Wages and Termination of Entertainment Contracts in California: Some Implications of the Labor Code
- August 22, 2016
- Russell Frackman and Christine Lepera Named to Billboard's 2016 List of Top Lawyers in the Music IndustryJuly 15, 2016
- MSK's Russell Frackman Receives Inaugural Donald E. Biederman Legacy Award from Southwestern Law SchoolOctober 26, 2012
- July 16, 2010
Events & Speaking Engagements
- California Copyright ConferenceNovember 15, 2016
- October 17, 2015
- October 14, 2015
- September 17, 2015
- May 21, 2014
- December 14, 2011
- July 2011
- October 13, 2010
- Video Game Content and Third Party IP: The Intersection of First Amendment, Copyright and TrademarksMay 22, 2010
- March 23, 2010
- January 6, 2010
- October 22, 2009
- March 17, 2009
- Make it Available at Your Own Risk: A Look Into Copyright Infringement by Digital Distribution2009
- November 8, 2008
- September 4, 2008
- January 7, 2008
- Sony v. Universal: The Betamax Decision Twenty Years Hence2004
- October 14, 2001
- California, 1971
- U.S. District Court
- Central District of California, 1971
- Eastern District of California, 1984
- Northern District of California, 1980
- U.S. Court of Appeals
- Second Circuit, 1980
- Ninth Circuit, 1971
- U.S. Supreme Court, 1980
Columbia Law School, J.D., 1970; cum laude
Member, Board of Editors, Columbia Law Review
Northwestern University, B.A., 1967