ATTORNEYS
Russell J. Frackman

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 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.

 

Representative Matters

  • 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).
Russell J. Frackman

Partner - Los Angeles


Email Russell J. Frackman


Phone:

  (310) 312-3119

Fax:

  (310) 231-8319
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Industry Focus

Record and music publishing companies, motion picture studios, recording artists, actors, producers, agents, and writers.

Education Collapse

  • Columbia University School of Law, J.D., 1970; cum laude
    Member, Board of Editors, Columbia Law Review
  • Northwestern University, B.A., 1967

Court Admissions Collapse

  • 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, 1980

Professional Recognition Expand

  • 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:
    • Entertainment Law - Music (Lawyer of the Year, Los Angeles, 2015)
    • Litigation - Intellectual Property (Lawyer of the Year, Los Angeles, 2014)
  • "Leading Lawyer" in Intellectual Property Litigation nationwide, Legal 500
  • "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 (2004-2015)
  • 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

Publications and Presentations Expand

  • Mr. Frackman is a founding member and former-chair of the USC Gould School of Law Intellectual Property Institute (2009-2010). Mr. Frackman’s expertise has made him a popular lecturer and panelist before industry and academia. For a decade he co-chaired the Practicing Law Institute’s program, “Litigating Copyright, Trademark and Unfair Competition Cases.” He also has lectured extensively on subjects relating to entertainment law and intellectual property, including at the International Consumer Electronics Show (CES), International Trademark Association (INTA); International Film & Television Finance Summit; ABA Section on Intellectual Property Law; ABA Forum Committee on Sports and Entertainment; UCLA Entertainment Law Symposium; Georgetown University Law Center, Corporate Counsel Institute; USC Gould School of Law, Entertainment Law Institute; Intellectual Property Law Section of the State Bar of California; Los Angeles County Bar Association; the Copyright Society of the U.S., and the Los Angeles, San Francisco, and New York Copyright Societies; American Film Marketing Association; the California Copyright Conference; and the University of Michigan Law School, University of Santa Clara Law School, and Southwestern Law School.
  • Co-author, “Trademarks, Video Games, and the First Amendment: An Evolving Story,” Oct-Nov 2010, World Trademark Review 63 (October 2010).
  • Participant in Symposium, “Make it Available at Your Own Risk: A Look Into Copyright Infringement by Digital Distribution,” 30 Loyola Ent. L. Rev. 1 (2009).
  • Participant in Symposium, “Sony v. Universal: The Betamax Decision Twenty Years Hence,” 34 Southwestern University Law Review 179 (2004).
  • Co-author, “Back to the Future: The Napster Decision Confirms the Applicability of Traditional Copyright Principles to the Internet,” 2 Sedona Conference Journal 31 (2001) .
  • Co-author, “The Chess Catalog Litigation,” Los Angeles Lawyer, Vol. 16, No. 2, p. 28 (April 1993).
  • Author, “The Failure to Pay Wages and Termination of Entertainment Contracts in California: Some Implications of the Labor Code,” 52 U.S.C. L. Rev. 333 (1979).
  • Speaker, Appealing YouTube: The Experts Debate!, Copyright Society of the U.S.A. (July 2011)
  • Co-author, Trademarks, Video Games, and the First Amendment: An Evolving Story, Oct/Nov 2010, World Trademark Review 63 (October 2010)
  • Participant in Symposium, Make it Available at Your Own Risk: A Look Into Copyright Infringement by Digital Distribution , 30 Loyola Ent. L. Rev. 1 (2009)
  • Participant in Symposium, Sony v. Universal: The Betamax Decision Twenty Years Hence, 34 Southwestern University Law Review 179 (2004)
  • Co-author, Back to the Future: The Napster Decision Confirms the Applicability of Traditional Copyright Principles to the Internet, 2 Sedona Conference Journal 31 (2001)
  • Co-Author, The Chess Catalog Litigation, Los Angeles Lawyer Vol. 16, No. 2, p. 28 (April 1993)
  • Author, The Failure to Pay Wages and Termination of Entertainment Contracts in California: Some Implications of the Labor Code, 52 U.S.C.L. Rev. 333 (1979)