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Russell J. Frackman

Partner, through his Professional Corporation - los angeles

  

Spotlight

“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.

Experience

Legal Expertise

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.  Lead counsel for the record company plaintiffs in the District Courts and Courts of Appeals in 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).  Counsel 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.  Counsel for 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) aff’d in part, vacated in part, and remanded for further proceedings, 826 F.3d 78 (2d Cir. 2016), involving the application of the DMCA to a user-generated content website.  

Representative Matters

  • Represented 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 therefore ineligible for federal copyright protection).
  • Represented 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 an earlier case 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.)
  • On behalf of numerous industry organizations (including, among others, the Recording Industry Association of America, SoundExchange, Inc., the Recording Academy, BMI and ASCAP), filed amicus curiae briefs supporting content providers in the Supreme Court, American Broadcasting v. Aereo, Inc., 573 U.S. 431 (2014); various Courts of Appeals, Fox Television v. Aereokiller, LLC 861 F. 3d 1002 (9th Cir. 2017), Viacom Int’l, Inc. v. YouTube, Inc., 676 F. 3d 19 (2d Cir 2012), Bridgeport Music, Inc. v. Dimension Films, 410 F. 3d 792 (6th Cir. 2005), United States v. Moghdam, 175 F. 3d 1269 (11th Cir. 1999), Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 529 (9th Cir. 1996); District Courts, Viacom Int’l., Inc. v. YouTube, 718 F. Supp 2nd 514 (S.D. N.Y. 2010); Tur v. YouTube, Inc., 2007 U.S. Dist. LEXIS 50254 (C.D. Cal., June 20, 2007), and state courts, Flo&Eddie, Inc. v. Pandora Media, Inc., S240649 (Cal. Supreme Court 2017), State v. Awawdeh, 72 Wash. App. 373 (1994).
  • 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 U.S.P.Q.2.d 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).
  • Counsel 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).
  • Counsel for record company and music publisher defendants in more than 100 related copyright infringement cases arising from the alleged unauthorized “sampling” of musical compositions and sound recordings, including several cases in the Court of Appeals for the Sixth Circuit in Bridgeport Music, Inc. v. WB Music, Inc., 520 F.3d 588 (6th Cir. 2008); Bridgeport Music, Inc. v. WB Music Corp. 508 F.3d 394 (6th Cir. 2007); Bridgeport Music, Inc. v. Universal-MCA Music Publ., 481 F. 3d 926 (6th Cir. 2007); Bridgeport Music, Inc. v. Rhyme Syndicate Music, Inc., 376 F. 3d 615 (6th Cir. 2004); Bridgeport Music, Inc. v. DJ Yella Muzick, 99 Fed. Appx 686 (6th Cir. 2004).
  • 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).
  • 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 injunction involving the hit recording “Barbie Girl.” Mattel, Inc. v. MCA Records, Inc. 296 F.3d 894 (9th Cir. 2002).

Honors & Awards

  • Senior Statesmen in Media & Entertainment: Litigation, California, Chambers USA (2018); Band 1 in Media & Entertainment: Litigation California, Chambers USA (2017)
  • “Hall of Fame” in Intellectual Property - Copyright, Legal 500 (2017); “Leading Individual” in Intellectual Property - Copyright, Legal 500 (2017 & 2018)
  • Recipient of the GRAMMY Foundation® 2015 Entertainment Law Initiative Service (ELI) Award in recognition of his demonstrated commitment to advancing and supporting the music community through service.
  • Initial recipient of the Donald E. Biederman Legacy Award presented by the Entertainment Media Law Institute of Southwestern Law School which recognizes a member of the bench or bar who upholds the highest standard of ethics and professionalism as a leader in entertainment and media law.
  • “California Lawyer Attorney of the Year” (CLAY Award) in Intellectual Property, California Lawyer (2001)
  • “Entertainment Lawyer of the Year” (2001), the Beverly Hills Bar Association
  • The “Most Influential Lawyers of the Decade,” the National Law Journal (2010)
  • “100 Lawyers Who Helped Shape a Decade,” Los Angeles Daily Journal (2010); “Top 10 California Entertainment IP Litigators,” Daily Journal(2008); “75 Leading Intellectual Property Litigators in California,” Daily Journal (2011, 2012)
  • “Top 100 Most Influential Lawyers in America,” California Law Business
  • “Los Angeles' Top 50 Litigators,” Los Angeles Business Journal; “Who's Who in Entertainment Law,” Los Angeles Business Journal (2012); “Who's Who in Intellectual Property Law,” Los Angeles Business Journal (2012); “Los Angeles’ Top 100 Lawyers, Top Media and Entertainment Attorneys,” Los Angeles Business Journal (2009)
  • Recognized by Best Lawyers in America© in:
    • Entertainment Law - Motion Pictures and Television (2006-2020)
    • Entertainment Law - Music (2006-2020)
      • “Lawyer of the Year” (2013, 2015, and 2018)
    • Litigation - Intellectual Property (2006-2020)
      • “Lawyer of the Year” (2014 and 2018)
  • “The Lawdragon 500 Leading Lawyers in America” (2010)
  • “Top Music Lawyers,” Billboard (2017 and 2018)
  • “Power Lawyer; Top 100” The Hollywood Reporter
  • “Hollywood Law Impact List,” Variety
  • “Top 5% of lawyers in Southern California,” Southern California Super Lawyers(2004-2019)
  • Recipient of two honorary Gold Record Awards from the Recording Industry Association of America for litigation on behalf of the record industry
  • AV® Preeminent™ Rating, Martindale-Hubbell

Headlines

Headlines

Publications

Events & Speaking Engagements

Admissions

  • 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

Education

Columbia Law School, J.D., 1970; cum laude

Member, Board of Editors, Columbia Law Review

Northwestern University, B.A., 1967

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