Thursday, July 18, 2013 7:59 AM PT
Fees Awarded After
Nelly Furtado Copyright Win

     (CN) - A Finnish record company that failed to advance copyright claims over Nelly Furtado's hit "Do It" must cover attorneys' fees for the singer and Timbaland, a federal magistrate ruled.
     Kernal Records Oy had claimed that Timbaland (born Timothy Mosley) sampled most of its song, "Acidjazzed Evening," adding only new instrumentation and lyrics to create the hit song on Furtado's 2006 album.
     Norwegian songwriter Glenn Rune Gallefoss recorded "Acidjazzed Evening" in 2002 as an SID computer file, playable with the help of a musical-synthesizer chip. Gallefoss based the song on an earlier musical arrangement created by Finnish composer Janne Suni.
     Vandalism News, an Australian disk magazine, published "Acidjazzed Evening" in August 2002, making it available for online downloading and copying. High Voltage SID Collection posted the track on its website the same year.
     Kernal Records acquired the rights to the sound recording and arrangement of Gallefoss' song in 2007. The Finnish label filed the Miami complaint in 2009 after its first effort in Helsinki failed.
     U.S. Magistrate Judge Edwin Torres dismissed the complaint in June 2011 after finding that Kernal never registered the song with the U.S. Copyright Office.
     When Timbaland and the other parties associated with "Do It" moved for attorneys' fees earlier this year, Kernel challenged the maneuver as premature since it can still amend its complaint.
     Torres disagreed Tuesday, giving the defense 60 days to file their fee application.
     "Kernel's suit was dismissed for failure to meet statutory prerequisites for a copyright claim, not jurisdiction, improper venue, or failure to join a party," Torres wrote. "The court thus recognized in its summary judgment order that defendants have successfully and finally avoided 'approximately two years' worth of damages' due to Kernel's failure to register and the applicable statute of limitations.
     "Such a scenario undoubtedly creates a dismissal 'tantamount to a dismissal with prejudice' as to the barred claims," he added.
     Given "the uncontroverted effect on the limitations period on that dismissal, there is little doubt that the effect of the summary judgment is to render the defendants as a prevailing party on any and all copyright claims that pre-dated the registration," Torres wrote.