A federal judge in New York has slapped Select-O-Hits with $312,000 in statutory damages in a suit filed by Universal Music Group (UMG) over the indie's distribution of rap mix CDs.

LOS ANGELES -- A federal judge in New York has slapped Select-O-Hits with $312,000 in statutory damages in a suit filed by Universal Music Group (UMG) over the indie's distribution of rap mix CDs.

The jurist's message in the copyright and trademark infringement case was essentially, "You knew better."

In his May 5 decision, U.S. District Court Judge Richard M. Berman found co-defendant Cochise Productions liable for only $19,500 in damages. Memphis-based Select-O-Hits was held jointly liable for that amount.

Kenneth Bressler of Nixon Peabody, who litigated the case for UMG, says, "Select-O-Hits was shown to be extremely sophisticated and knowledgeable ... as to the rap industry, and understood what constituted copyright infringement, and in spite of that distributed this material, which was infringing on its face."

UMG filed its suit in U.S. District Court in New York on Sept. 12, 2002 (case no. 02 Civ. 0043); the complaint was amended Oct. 23, 2002.

The action alleged that mix CDs released on the Cochise, Melo-Mix and Dirty Harry labels -- all distributed by Select-O-Hits -- violated UMG's copyrights. (Claims against Melo-Mix and Dirty Harry were later dismissed.)

The titles in question -- "Eastside Heavyweights," "Southside Heavyweights," "Chikago Payback Part III," etc. -- featured the music, names and likenesses of such top rap acts as Jay-Z, DMX, Nelly, Eve, Ludacris and Foxy Brown.

UMG said the music and images were utilized without authorization or license.

A bench trial of the case was held Sept. 4, 2003.

In his decision, Berman said that while Select-O-Hits deleted the infringing CDs, it did not notify retailers of potential infringement, and refused to send out a recall letter.

However, the judged noted, Cochise owner Ernie Collier immediately ceased operation of his company; returned all offending product to UMG's counsel at his own expense; and told Select-O-Hits to stop distributing the product.

Noting that Select-O-Hits VP Johnny Phillips has worked in distribution for more than 40 years, Berman wrote, "Phillips knows that a 'mix tape' contains recordings that are not original; that Cochise makes mix tapes using popular recordings; and that one needs a license to use a recording on a mix tape."

He added that Phillips conceded at trial that it was obvious just from looking at the CD covers that the mix tapes contained infringing works.

Calling the distributor's infringement "willful," Berman levied damages of $8,000 per infringement against Select-O-Hits, and only $750 per infringement against Cochise.

Phillips tells ELW that Select-O-Hits plans to appeal the decision.