IP Law Daily, COPYRIGHT—E.D. Pa.: A family feud over rock legend interviews winds up in a no-decision, (Mar 26, 2024)

By Matthew Hersh, J.D.

The son of the disc jockey who recorded interviews did not own the works—but it remains unclear who does.

The son of a famous rock and roll disc jockey from the Philadelphia area failed to prove standing to bring a copyright infringement lawsuit against his two siblings over a set of recorded interviews his father made with 1970s rock and roll legends because he could not establish that the works were registered in his name with the Copyright Office, the federal court for the Eastern District of Pennsylvania has held. The court’s order, in granting summary judgment to the siblings as well as to a third party who allegedly distributed the audio works over the internet in the form of NFTs, effectively found that none of the three siblings owned the works—but left it unresolved just who actually did (Somach v. Firstenberg, March 25, 2024, Murphy, J.).

The highly contentious lawsuit revolves around the work of Denny Somach, a prominent Philadelphia-era DJ during the 1970s and 1989s who conducted interviews of rock musicians such as Paul McCartney, Mick Jagger, and Pete Townshend. The recorded interviews, known as the Voices of Classic Rock collection, has now become the subject of an internecine feud between family members and third parties alike.

Theodore Somach, one of Denny Somach’s children, struck first. He filed a lawsuit in 2022 against Emily and Reilly Somach, his siblings. The complaint alleged that he owned the works and that the two siblings had “collectively possessed, used, and licensed and sold [his] copyrighted content to third-parties in an unauthorized manner and in blatant violation of” his legal rights to the interview collection. The complaint also named a California resident named Jonathan Firstenberg, alleging that he was selling the interview collection over the internet in the form of non-fungible tokens.

Firstenberg and the Somach siblings then struck back—in a manner that laid bare the nature of the contentious family feud. Firstenberg claimed that Theodore Somach never obtained ownership to the interview collection because the collection was awarded to their mother (and one of Denny Somach’s ex-wives) Kathleen Somach. The two siblings also claimed that the interview collection had passed from their father to their mother and then to an unspecified third party. The two siblings added in their answers that their brother’s lawsuit was fueled by his “vendetta” at being excluded from their mother’s estate after her death, stated that he had made “vile threats to us, primarily through email,” and sought orders of protection against him. None of the three defendants claimed to own the works themselves—only that Theodore Somach did not.

But that was only the beginning of the matter. Three other individuals—David Kelley, Aviel Felix, and Jill Goldstone—then sought leave to intervene in the same action to file their own complaint. Their complaint, aimed at all three of the Somach children, sought a declaration that they owned the works because Kathleen Somach, Dennis’ ex-wife, had transferred ownership to them before she died. The other two siblings and Firstenberg did not deny the allegations (they had never claimed ownership themselves), but Theodore Somach did.

Firstenberg, one of the defendants in Theodore Somach’s original lawsuit (recall that he was not a sibling, but Theodore claimed that he was unlawfully distributing the interview collection by means of NFTs), moved to dismiss the lawsuit on grounds of standing.

Standing. The court, in a short opinion, easily found that Theodore Somach did not have standing to bring the lawsuit. Somach’s problem, the court observed, was that he did not have any evidence that he had registered ownership in the works—a statutory prerequisite to bring a copyright infringement lawsuit.

Nor did Theodore Somach’s claim as to foreign works help his case. Some of the interviews had allegedly been recorded outside of the United States, which meant that Theodore could bring a lawsuit based on his claim of ownership over those works even without a registration. But the claim failed on another ground, the court found: Theodore was unable to prove he owned the works. Theodore had at one point worked with his father before their own working relationship felt apart in 2016. Theodore claimed that his father transferred ownership to him in 2016 as part of a settlement of their dispute. But the settlement agreement said nothing of the kind, the court found. The vague settlement agreement, the court noted, “[did] not at all reference transferring ownership of any copyrighted content to Theodore.” Thus, the complaint would fail on all grounds.

Next steps. It is unclear where things go now with this heated family feud. Even though siblings Emily and Reilly had not joined Firstenberg’s motion for summary judgment, the court nonetheless dismissed the claim against them as well. (Theodore had not standing to bring the lawsuit against anyone, the court reasoned, meaning that his claims against his siblings could not move forward either.) As to the intervenors, the court found that their claims against the two siblings was now mooted as well, meaning that the only question left was whether their lawsuit would be dropped with or without prejudice. The court gave them 21 days to decide.

The Case is No. 2:22-cv-02775-JFM.

Attorneys: Brian P. McCafferty (McCafferty Law Firm, LLC) for Theodore Somach. Eileen Kelly Conway (Steve Harvey Law, LLC) for Jonathan Firstenberg.

Cases: Copyright PennsylvaniaNews