from the how-dare-you... dept
As a result, the ESPN Defendants recognized that by associating their various products and services with the hip hop, rap and R7B musical genres and with And1 and the Marketing Plan, the ESPN Defendants would also receive increased good will and brand name recognition among the Urban Oriented Consumer demographic, would receive increased website traffic to their websites, and would enjoy increased marketing, sale and distribution of the various products and services sold by ESPN Defendants, including those involving the game of basketball, to such Consumers.This seems like guilt by association, even though the details of that association are never actually made clear.
The ESPN Defendants thus intentionally set out to associate themselves with the Mixtapes distributed by And1 and the ripple effect copies, described above, that it also knew would be produced, distributed and shared by others, and to profit therefrom.
As for Amazon, anyone can set up a store and sell stuff. It doesn't automatically make Amazon guilty of infringement. There's no indication that any sort of DMCA notice was sent to Amazon concerning these mixtapes either.
More oddities: apparently Jackson wrote the song in November 2006, but did not release it. And1 is accused of including the song in a mixtape in 2008. Yet... Jackson didn't actually get around to getting a registered copyright on the song until May 10th of 2010. That, of course, would limit whatever damages he might be able to get (perhaps significantly). If it's true that And1 took and used the song without permission, then it sounds like he may have a decent case against that company... but the others seem like a big stretch.
Oh, and just to make the whole thing even more confusing. I just checked out YouTube, and it appears Dutch Jackson has his own YouTube channel... and on that YouTube channel, posted back on September 30th, 2009 is a video of the song -- complete with a ton of clips of Lebron James. You would have to imagine that Jackson does not have permission to make use of those clips. In fact, it didn't take long to notice that at least some of the clips in the video are from ESPN. So, it seems that Jackson was perfectly thrilled that he was getting all this attention and promotion for free in relation to the NBA. And while he was aware of that, he didn't go rush out to get that song registered at the copyright office. Also, if you're going to sue ESPN for infringement, you probably shouldn't put up a video that includes clips from ESPN.
If you step back and look at it, it appears that Jackson and this song got an amazing amount of free promotion from the use of his song in the mixtape. Even if it was "unauthorized," it seems like a massive amount of attention that Jackson could capitalize on to get more attention for himself -- something he appeared to realize himself with that video. In the lawsuit itself, Jackson's lawyers admit that the mixtape went viral. So why not just build off of that, rather than suing a bunch of companies who probably had no idea about the song?
Anyway, I've embedded the video below. I'm guessing it may disappear soon after I do, so I've also got a screenshot of the YouTube page below that, with the video stopped at a point showing an ESPN clip: