A federal appeals court has sided with internet concert archive Wolfgang’s Vault and ruled that two large groups of musicians cannot team up as a class action to sue the site for copyright infringement over bootleg recordings.
In a decision issued Monday, the U.S. Court of Appeals for the Ninth Circuit ruled that the lawsuit against Wolfgang’s could not proceed as a class action, since thorny questions for each particular accuser – like whether they had granted consent for their individual performance– would predominate over common issues.
The ruling will send the case back to a trial court, where Wolfgang’s will now only face only claims from a single musician who filed the lawsuit, Greg Kihn, best known for his 1983 hit song “Jeopardy.”
Once labeled one of “the most important collection of rock memorabilia and recordings ever assembled” by the Wall Street Journal, Wolfgang’s allows users to stream audio and video from concerts by the Rolling Stones, the Grateful Dead, and hundreds of others. The service was created by acquiring the archives of classic concert promoters, including the legendary Bill Graham.
Unsurprisingly, the service has faced copyright litigation for years. Wolfgang’s was sued in the 2000s by The Doors, Carlos Santana and many other artists, resulting in a settlement. It was sued again in 2015 by major music publishers, resulting in a $2.5 million award against Wolfgang’s in 2020.
The current lawsuit was filed in 2017 by Kihn, who had several hits in the 1980s with his The Greg Kihn Band. Like previous cases, he claimed that Wolfgang’s did not have a license to stream footage of his concerts. But he also filed his case as a class action, seeking to represent thousands of other musicians whose concert footage appeared on the site.
In 2020, a federal judge granted Kihn so-called class certification – an important procedural step that meant the case could formally proceed as a class action on behalf of many other artists. The judge certified two groups of plaintiffs, one covering performers and another covering songwriters.
Monday’s appellate ruling overturned that decision. Class actions can only be certified if common issues among the accusers “predominate” over individual questions, and the Ninth Circuit said Kihn had not met that tough standard. In particular, the appeals court cited tricky questions about whether each individual artist had authorized the recording and performance of its concert footage.
“Those agreements in fact vary as to the artists, performances, and rights they purport to cover,” the Ninth Circuit wrote in a footnote. “Determining whether any performer or composer consented to the recording of live performances at numerous events over a period of decades will thus require individualized analysis.”
Attorneys for both sides — Melissa Weiner of Pearson Simon & Warshaw LLP for Kihn and Michael Elkin of Winston & Strawn LLP for Wolfgang’s – did not immediately return requests for comment on Tuesday.
