What’s going on under the blanket?
Copyright / September 2019

COPYRIGHT The Music Modernization Act (MMA) was signed into US law on 11 October 2018, it plans to do what it says on the tin, namely the overhaul of how copyright underpins the US music industry. One particular area in need of a revamp is the law relating to mechanical tights and digital streaming. Prior to the MMA becoming law in the US, digital music providers (iTunes, Spotify and Google Play…) would file clearance notices with the relevant publisher of the music being streamed. The publishers would then receive a mechanical royalty based on a relatively complicated formula (see link below) which is set by an authorised body. Under this provision of the Copyright Act, the copyright owner is not able to refuse the grant of a mechanical license providing certain criteria is met e.g. the work has been lawfully recorded and distributed in the US and is a non-dramatic work. The Musical Works Modernization Act section of the MMA creates a new blanket license for the digital use of musical works and, amongst other things, authorises a newly formed Mechanical Licensing Collective (MLC) designated by the Copyright Office to administer mechanical licenses, this will entail the collection and distribution of royalties (much like…

Rights owners call for a halt to EU Copyright reforms – but the creative sector disagrees
Copyright / September 2019

COPYRIGHT Rights holders from across the European Union, including the recorded music sector, music publishing, television and sport have called for a halt to the planned reforms to copyright laws saying that recent revisions to the draft legislation mean that  “regrettably under these circumstances we would rather have no directive at all rather than a bad directive”.  But this view ha been challenged by the actual creators of music who are taking a very different view to the corporate owners of copyrights – they still see big benefit from the Copyright Directive. The planned legislation was first approved by the European Parliament in September 2018 but has undergone numerous revisions and amendments since then and latest draft text makes what rights holders regard as significant concessions to tech companies. The revisions came as compromises – but  after continuous lobbying from the tech sector, in particular Google and YouTube. Last month music rights organisations admitted that the recently proposed versions of the Copyright Directive “[do] not meet the original objective of Article 13” – namely “correct[ing] the distortion of the digital market place caused by User Upload Content (UUC) services”. Record label trade organisations IMPALA and IFPI were specifically opposed to the latest draft text…

Agreement on DSM Directive reached in trilogue
Copyright / September 2019

COPYRIGHT Over on the IPKat, Eleonora Roasti reports that at last, after several weeks, several discussions, and after France and Germany achieved a compromise on some key provisions in the draft Directive on copyright in the Digital Single Market an agreement has been reached between the European Parliament and Council negotiators on the content of this new piece of legislation. The text is not yet available, but according to a press release from the European Parliament: Tech giants to share revenue with artists and journalists: The deal aims at enhancing rights holders’ chances, notably musicians, performers and script authors, as well as news publishers, to negotiate better remuneration deals for the use of their works featured on internet platforms. Locking in freedom of expression: Sharing snippets of news articles will not engage the rights of the media house which produced the shared article. The deal however also contains provisions to avoid news aggregators abusing this allowance. The ‘snippet’ can therefore continue to appear in a Google News newsfeeds, for example, or when an article is shared on Facebook, provided it is “very short”. Uploading protected works for purposes of quotation, criticism, review, caricature, parody or pastiche has been protected, ensuring that memes and Gifs will…

Songwriters and music publishers furious with Spotify over US rate appeal
Copyright / September 2019

COPYRIGHT US publishers and songwriters have hit out at an appeal made by the US streaming services, including Amazon and Spotify, who have  now formally objected to the new mechanical royalty rate set by the recent Copyright Royalty Board (CRB) ruling, with royalty rates for streaming and other mechanical uses set to rise 44% for the compulsory licences over the next five years. That decision was ratified last month (February 5th), when the CRB published the final rates and terms for songwriters. The top line revenue share figure to be paid by streaming services will rise, over a number of years, from 10.5% to 15.1%.  The streaming companies were given 30 days to lodge official opposition to the ruling if they wished: Apple Music declined, but Spotify and Amazon, have now both filed a notice of appeal. Pandora and Google have also asked the CRB to review its decision. In a statement yesterday the National Music Publishers Association (NMPA) said that a “huge victory for songwriters is now in jeopardy” due to the streaming services’ filings. The NMPA called the appeal a “shameful” move which equates to “suing songwriters”. Amazon, Spotify and Pandora issued a joint statement saying: “The Copyright…

Marc Jacobs looks to dismiss Nirvana case
Copyright / September 2019

COPYRIGHT In December 2018 there were a number if press reports that detailed that legal representatives for the grunge band Nirvana were suing fashion brand Marc Jacobs for copyright infringement, primarily for using an iconic wobbly yellow and black smiley face design. The brand recently released the Bootleg Grunge T-shirt and sweatshirt as a part of its overall ‘ Redux Grunge’ grunge-inspired collection and seemingly acknowledges the ‘inspiration’ for the T-shirt the tee with reference to a reissued design from 1993 initially created by Perry Ellis.  At the time of those reports the T-shirt and sweatshirt are still being sold on Marc Jacob’s website and across retailers. Now Marc Jacobs is seeking to have the copyright infringement case dismissed; Jacobs questions whether Nirvana LLC even owns the copyright in the happy face illustration that was created by Kurt Cobain. It then argues that – while its happy face t-shirts are clearly influenced by the iconic Nirvana merchandise, the imagery on its garments is sufficiently different to not constitute copyright infringement. Jacob’s also notes that its products don’t include the text  “flower-sniffin, kitty-pettin, baby-kissin corporate rock whores” which was on the back of the band’s original shirts. And where the Nirvana…

BMG v Cox principles applied in finding liability for ISP Grande
Copyright / September 2019

COPYRIGHT The fallout from the BMG v Cox case in the USA continues, with a court denying ISP Grande Communications the benefit of safe harbour protection in a case brought by the Recording Industry Association Of America (RIAA). In the earlier case, BMG had accused ISP Cox Communications of running a deliberately ineffective system for dealing with repeat infringers:  At first instance the jury awarded $25 million against Cox when they found the broadband carrier liable for piracy by its subscribers. The US appellate court reversed that verdict in what might have been seen as a defeat for the record label – but many said at the time that a careful look at the judgment, which reversed the jury on a technicality, was actually a win in the battle against piracy.  The 4th Circuit took a long hard look at how and why Cox would be protected by US  “safe harbor” provisions that protect service providers from liability when users infringe copyright. – and here the Court ruled against Cox on a key point. The DMCA provides a degree of protection to ISPs and other platforms that respond expeditiously to takedown requests. But one of the requirements is that the ISP and other intermediaries to have “adopted and…

Spotify beware – Indian broadcasting licensing scheme may not cover streaming
Copyright / September 2019

COPYRIGHT A recent ruling against and Indian streaming service could have important implications for Spotify in its battle with Warners in the country and it’s plans to launch in the Indian market. The Bombay High Court (Justice S.J. Kathawalla) has now made its decision Tips Industries Limited vs Wynk Music Ltd with (judgement dated April 23, 2019) and and has found for Indian record label Tips against a local streaming service based, Wynk. The dispute began in 2017 when Tips and Wynk failed to agree new licensing terms. Tips then told Wynk to remove its catalogue from the service, but Wynk responded by saying it didn’t have to because it was covered by a compulsory licence under Indian law that was traditionally intended for broadcasters. Tips then brought a legal action for copyright infringement.  Justice SJ Kathawalla has now ruled in favour of the label, saying that Wynk was “knowingly infringing upon the plaintiff’s copyrights”. He also dismissed claims by Wynk that the label was simply trying to force its hand in licensing negotiations. The judge noted the increase in digital music companies claiming protection under Section 31-D of India’s Copyright Act but ruled that  this “amounts to usurpation of the exclusive rights of the owners to commercially rent,…

A ‘sample’ of the music industry’s issues ?
Copyright / September 2019

COPYRIGHT This week it has been reported that Ernie Hines, the American soul musician, has filed a lawsuit against Sony Music and Roc-A-Fella Records, whom published Jay-Z and Timberland 1998 track ‘Paper Chase’ and Timbaland’s 1999 track ‘Toe 2 Toe’. Uproxx reports that the claimed value of the suit is $2 million. The allegations stem from Hines’ 1970 track ‘Help Me Put Out The Flame (In My Heart)’, a sample of which has allegedly been used in ‘Paper Chase’ and ‘Toe 2 Toe’. Hines claims that, whilst the tracks were released nearly two decades ago, he has only just heard them, the Blast reports that the complaint explains that “[Hines is a] senior citizen, does not listen to rap music and was unaware [that the songs contained his music and composition.” It is claimed that in both matters the sample was used without consent of Hines, and in the case of Jay-Z it is claimed the infringement was wilful due to the fact that the TIDAL music streaming service lists the sample. But this is only one sample of an issue in the music industry, for example in 1999 Produce Records sued BMG Entertainment over a 7.5 second sample, this…

Vinyl pirates face prison sentences
Copyright / February 2019

COPYRIGHT Vinyl has become so fashionable again its attracted the attention of pirates – and now two UK men have been jailed and two others have received suspended sentences for their involvement in a bootleg vinyl operation that was manufacturing and selling unlicensed copies of mainly Northern Soul recordings. Alan Godfrey, Christopher Price, Robert Pye and Stephen Russell were variously accused of copyright and trademark infringements as a result of their piracy activities.  Explaining that the four men were part of one co-ordinated piracy venture, Alex Greenwood, speaking for the prosecution, told Newport Crown Court that: “All defendants were engaged in the large scale commercial sale of counterfeit goods infringing both trademark and copyright” and  “In many instances identical copies of recordings were found at the addresses of each of the defendants, indicative that they were supplying each other. All defendants’ PayPal records reflected thousands of sales of similarly described recordings over many years”. Greenwood said Price and Russell were involved with the “manufacture and sale” of the recordings, while Pye and Godfrey were involved in their “commercial sale between November 2013 and October 2016”. Analysis of bank accounts in Godfrey’s name showed he made transfers of £101,518 to Pye, and his…

Gig-goers or bootleggers? Are phone recordings an irritant or potential copyright infringement?
Copyright / February 2019

COPYRIGHT “Go to any stadium gig and you’ll be met with a forest of arms holding up mobiles and blocking lines of sight, so people behind feel irritated,” says Katie McPhee, Head of Marketing at Eventbrite who commissioned a new report by ComRes – 1,031 adults who attended a live event in the past twelve months were interviewed.  The research found that: • 70% found it irritating when others constantly take pictures or videos during live performances; • 69% would support more than minimal action to minimise the disruption; • 65% said using their phones to capture images could make them feel as though they are missing out on the live experience; • Nearly half (49%) took photos and videos with a clear majority (62% each) among those aged 18-24 and 35-44; • A large majority (81%) understood why an artist might not like videoing and photographing at the event; • A majority (69%) would support measures to reduce filming and photographing with phones. Artists, including Adele, Alicia Keys, Nick Cave, Kendrick Lamar and the late Prince have asked fans to refrain from using their phones during the performance. Rock bands White Stripes and Guns n’ Roses have famously banned…

For ‘substantial similarity’ a song has to have at least a spark of similarity
Copyright / December 2018

COPYRIGHT: US District Judge Dolly M. Gee has thrown out a plagiarism lawsuit, giving summary judgement to Gwen Stefani and Pharrell Williams, who had been accused of infringing copyright in their song “Spark the Fire”. Stefani and Williams were sued last year by Richard Morrill, a hairstylist, singer/songwriter and Korn member, over allegations of copyright infringement. Morrill contented that the Stefani and Williams’ song “Spark the Fire” was too similar to Morrill’s “Who’s Got My Lightah” brining claims for (1) direct copyright infringement and (2) contributory copyright infringement and (3) vicarious copyright infringement against Williams and Interscope Records only and (4) a conversion claim under California state law against Stefani only (Interscope Records is Stefani’s record label and perhaps Morrill thought she would hide behind it should the claim succeed) For those not familiar with the US concept of conversion, it can simply be described as theft. However, I will not consider it further as it was dismissed in November 2017. Morrill claimed that Stefani came in to his salon where he played the star his song. As a result of this ‘preview’ Morrill claimed that Stefani took parts of Morrill’s original and created “Spark the Fire”.  In November 2017 Stefani…

Spotify still face legal action in US mechanicals lawsuit
Copyright / December 2018

COPYRIGHT: It seems that so called ‘mechanical licensing’ is still haunting Spotify, despite the probgress of the new Music Modernization Act which will almost certainly soon become law. Now a federal court in Tennessee has denied Spotify’s bid to dismiss a copyright infringement lawsuit brought in July 2017 by Bluewater Music Services Corporation, the independent publisher and copyright administration company in the US District Court for the Middle District of Tennessee against the streaming music giant. Bluewater allege that Spotify wilfully infringed on 2,339 copyrighted works, including Sam Gay’s ’10,000 Pieces’ and Bob Morrison’s ‘You’d Make An Angel Want To Cheat.’ Bluewater says it had terminated the company’s license to reproduce and stream the works in November 2016 after discovering Spotify hadn’t paid any mechanical royalties and had also failed to negotiate a direct mechanical license: “Bluewater put Spotify on notice that ‘[f]failure to timely serve or file a valid NOI forecloses the possibility of a compulsory license, and, in the absence of a negotiated license, renders the making and distribution of phonorecords actionable as acts of infringement under and fully subject to the remedies provided by the Copyright Act.” Spotify defended itself by claiming it didn’t have data to track the compositions and sound…

Europe’s songwriters seek to block Sony Music takeover
Competition , Copyright / December 2018

COMPETITION / COPYRIGHT: The European Composer & Songwriter Alliance has joined the increasing clamour urging the  European Commission to block Sony’s plans to take complete control of EMI Music Publishing. The organisation -says that Sony’s proposed deals would “threaten competition in the licensing market, endanger music authors’ revenues across the EU and ultimately jeopardise cultural diversity in the European music landscape”. Other vpices who have argued against the merger include UK songwriter organisation BASCA and pan-European indie music companies trade group IMPALA  Under the proposed new deal, Sony would have complete control of the EMI repertoire and could fully merge the Sony/ATV and EMI music publishing businesses into its own, making Sony the biggest music publisher in the world – sitting alongside the second biggest recorded music company, (Sony Music). The ECSA’s President, Alfons Karabuda said: “We believe that allowing such a major and dominant publisher in the market is not only detrimental to a competitive market place but will also lead to a net loss for Europe’s culturally diverse music landscape. If approved, such a deal can only further exacerbate the domination of the top Anglo-American repertoire to the detriment of millions of music authors’ works that are very…

EU approves Sony takeover of EMI Music
Competition , Copyright / December 2018

COMPETITION / COPYRIGHT: Songwriters and independent music publisher have criticised the decision of the EU’s competition regulators to approve Sony’s deal to take complete ownership of EMI Music Publishing. Sony made no concessions to the European Commission who in turn said the deal “raises no competition concerns”.  Sony will become the world’s biggest music publisher and the World’s second biggest recorded music rights-holder. Sony originally led a consortium of investors to buy EMI Music Publishing in 2012 and  Sony/ATV has been the administrator of the EMI catalogue since then.  Sony is now clear to complete a $2.3bn deal where Sony will buy a further 60% of EMP from the Mubadala Investment Company, adding to the 30% it already owns. A $287.5m deal for the remaining 10% has already been agreed with Michael Jackson’s Estate. The takeover double Sony’s catalogue of songs from 2.16m to 4.21m compositions. Figure from pan-European indie label trade group IMPALA  (who opposed the deal) suggested that once complete, Sony’s catalogue of recordings released or distributed by Sony Music and the song catalogues of Sony/ATV and EMI would give Sony control of over 50% of chart tracks in seven key European markets in 2017. In the UK, Sony had control over an…

Getting to grips with the MMA
Copyright / December 2018

COPYRIGHT: Hailed as a major milestone and major opportunity for the music industry, the Music Modernization Act (MMA) of the USA was signed into law by President Trump on  the 11th October 2018.  The MMA also has a global impact due to the USA being a signatory to the Berne Convention which dictates that the copyright law of the country where music is played, performed, streamed, downloaded, etc regardless of the country in which it was created; is the applicable jurisdiction. The MMA comprises three Bills previously introduced to the US Congress, which were enjoined and finally passed: Title I: Music Licensing Modernization  This part of the MMA dictates how digital music providers (DMPs) of on-demand interactive audio streaming services e.g. Spotify, Tidal, Apple Music, Amazon Prime, etc, will in future obtain a blanket mechanical licence for interactive streaming or digital downloads; and the creation of a Mechanical Licensing Collective (MLC) to administer the blanket license.  It also replaces the current legal standard for setting the statutory rate by the Copyright Royalty Board (CRB) with a new standard taking free-market conditions into consideration when determining rates. The MLC will be a non-profit quasi-government agency which will (i) collect, distribute, and audit the…

Led Zeppelin’s Stairway leads to the Ninth Circuit Appeal Court
Copyright / December 2018

COPYRIGHT: From Hell to Heaven? Led Zeppelin have asked the Ninth Circuit appeals court to reconsider its recent ruling in the “Stairway To Heaven” copyright lawsuit ‘en banc’ to determine the law in the case that involves allegations that the 1971 classic is rip-off of the 1968 instrumental song “Taurus” recorded by Spirit and written by Randy “California” Wolfe’s whose estate brought the claim in 2016. The group’s representatives argue that by overturning the original judgement, the appeals court could “cause jurors to find infringement just because the same unprotected elements are present, upsetting the ‘delicate balance’” between copyright protection and the freedom of music creators to employ common techniques and musical elements when composing music”. In June of 2016 year a Californian jury was asked to consider the claim. The jury noted that there was a good chance Robert Plant and Jimmy Page had heard the Taurus song before they wrote Stairway to Heaven, but found the two songs not to be sufficiently similar. Subsequently the jury found in favour of Led Zeppelin, holding that there was no infringement.   In March 2017, the Estate of Randy California went on to appeal this ruling. In the Estate’s appeal it…

Time to collect your thoughts about the MMA
Copyright / December 2018

COPYRIGHT: The Music Modernization Act (USA) was signed into law just over a month ago on October 11th, 2018 and will globally impact on songwriters and music publishers, irrespective of nationality or country, by providing for the creation of the Mechanical Licensing Collective (MLC), a new digital music licensing entity which will begin operating in January 2021.  As the name indicates, the MLC will be a copyright licensing organisation which will create and maintain the world’s most thorough publicly accessible database of music composition copyrights and their owners; issue blanket licences and collect mechanical royalties from digital service providers (DSPs) – e.g. Spotify, Apple Music, Amazon Music Prime, Google Play, Tidal etc – for digital interactive music streaming and digital downloads in the USA; and pay those royalties to the copyright owners and rights holders anywhere in the world, who will be required to register their compositions and (co)ownership(s) with the database in order to satisfy claims for payment. There is no existing entity pre-designated to become the MLC and the process under which it will come into existence is that:  • No later than three months after the enactment date, the Register of Copyrights will publish a notice in the Federal…

UK Copyright if there’s no Brexit deal
Copyright / October 2018

COPYRIGHT   The UK’s Department for Business, Energy& Industrial Strategy has now published it’s long awaited paper which offers guidance on what will happen with copyright if the UK leaves the European Union with ‘no deal’ outcome – an increasingly likely scenario (although the paper paints a more positive picture!). The key points? – The UK and other EU member states are already party to the main international treaties on copyright and related rights. Under the rules of these treaties, countries provide copyright protection for works originating in or made by nationals of other countries. These rules underpin the copyright legislation in all member states of the EU and do not depend on the UK’s membership of the EU. There is also a body of EU law on copyright and related rights that goes beyond the provisions of the international treaties, including several cross-border copyright mechanisms. These mechanisms are unique to the EU and provide reciprocal protections and benefits between EU member states. They include: Sui generis database rights. Under the Database Directive (Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, extended to the EEA in paragraph 9a, Annex XVII…

For ‘substantial similarity’ a song has to have at least a spark of similarity
Copyright / October 2018

COPYRIGHT   US District Judge Dolly M. Gee has thrown out a plagiarism lawsuit, giving summary judgement to Gwen Stefani and Pharrell Williams, who had been accused of infringing copyright in their song “Spark the Fire”.   Stefani and Williams were sued last year by Richard Morrill, a hairstylist, singer/songwriter and Korn member, over allegations of copyright infringement. Morrill contented that the Stefani and Williams’ song “Spark the Fire” was too similar to Morrill’s “Who’s Got My Lightah” brining claims for (1) direct copyright infringement and (2) contributory copyright infringement and (3) vicarious copyright infringement against Williams and Interscope Records only and (4) a conversion claim under California state law against Stefani only (Interscope Records is Stefani’s record label and perhaps Morrill thought she would hide behind it should the claim succeed) For those not familiar with the US concept of conversion, it can simply be described as theft. However, I will not consider it further as it was dismissed in November 2017.   Morrill claimed that Stefani came in to his salon where he played the star his song. As a result of this ‘preview’ Morrill claimed that Stefani took parts of Morrill’s original and created “Spark the Fire”.  …

Spotify still face legal action in US mechanicals lawsuit
Copyright / October 2018

COPYRIGHT   It seems that so called ‘mechanical licensing’ is still haunting Spotify, despite the probgress of the new Music Modernization Act which will almost certainly soon become law. Now a federal court in Tennessee has denied Spotify’s bid to dismiss a copyright infringement lawsuit brought in July 2017 by Bluewater Music Services Corporation, the independent publisher and copyright administration company in the US District Court for the Middle District of Tennessee against the streaming music giant. Bluewater allege that Spotify wilfully infringed on 2,339 copyrighted works, including Sam Gay’s ’10,000 Pieces’ and Bob Morrison’s ‘You’d Make An Angel Want To Cheat.’ Bluewater says it had terminated the company’s license to reproduce and stream the works in November 2016 after discovering Spotify hadn’t paid any mechanical royalties and had also failed to negotiate a direct mechanical license: “Bluewater put Spotify on notice that ‘[f]failure to timely serve or file a valid NOI forecloses the possibility of a compulsory license, and, in the absence of a negotiated license, renders the making and distribution of phonorecords actionable as acts of infringement under and fully subject to the remedies provided by the Copyright Act.” Spotify defended itself by claiming it didn’t have data to track the compositions…

Europe’s songwriters seek to block Sony Music takeover
Competition , Copyright / October 2018

COMPETITION / COPYRIGHT   The European Composer & Songwriter Alliance has joined the increasing clamour urging the  European Commission to block Sony’s plans to take complete control of EMI Music Publishing. The organisation -says that Sony’s proposed deals would “threaten competition in the licensing market, endanger music authors’ revenues across the EU and ultimately jeopardise cultural diversity in the European music landscape”. Other vpices who have argued against the merger include UK songwriter organisation BASCA and pan-European indie music companies trade group IMPALA Under the proposed new deal, Sony would have complete control of the EMI repertoire and could fully merge the Sony/ATV and EMI music publishing businesses into its own, making Sony the biggest music publisher in the world – sitting alongside the second biggest recorded music company, (Sony Music). The ECSA’s President, Alfons Karabuda said: “We believe that allowing such a major and dominant publisher in the market is not only detrimental to a competitive market place but will also lead to a net loss for Europe’s culturally diverse music landscape. If approved, such a deal can only further exacerbate the domination of the top Anglo-American repertoire to the detriment of millions of music authors’ works that are…

Getting to grips with the MMA

Hailed as a major milestone and major opportunity for the music industry, the Music Modernization Act (MMA) of the USA was signed into law by President Trump on  the 11th October 2018.  The MMA also has a global impact due to the USA being a signatory to the Berne Convention which dictates that the copyright law of the country where music is played, performed, streamed, downloaded, etc regardless of the country in which it was created; is the applicable jurisdiction.   The MMA comprises three Bills previously introduced to the US Congress, which were enjoined and finally passed:   Title I: Music Licensing Modernization  This part of the MMA dictates how digital music providers (DMPs) of on-demand interactive audio streaming services e.g. Spotify, Tidal, Apple Music, Amazon Prime, etc, will in future obtain a blanket mechanical licence for interactive streaming or digital downloads; and the creation of a Mechanical Licensing Collective (MLC) to administer the blanket license.  It also replaces the current legal standard for setting the statutory rate by the Copyright Royalty Board (CRB) with a new standard taking free-market conditions into consideration when determining rates.   The MLC will be a non-profit quasi-government agency which will (i) collect, distribute, and…

New trial ordered in ‘Stairway to Heaven’ copyright dispute
Copyright / October 2018

COPYRIGHT   A U.S. appeals court has ordered a new trial in the lawsuit that accuses Led Zeppelin of copying an obscure 1960s instrumental into the classic 1971 Zeppelin  anthem “Stairway to Heaven.” Two years ago federal court jury in Los Angeles two years ago found Led Zeppelin did not steal the famous riff from the song “Taurus” by the band Spirit. The estate of musician Randy California of Spirit appealed the decision and challenged the conclusion that even though Zeppelin songwriters Jimmy Page and Robert Plant may have heard “Taurus” before they composed “Stairway,” the songs were not musically similar enough to rise to the level of copyright infringement. The claim came four decades after the songs were written. Immediately following the verdict, Led Zeppelin’s  Jimmy Page and Robert Plant released a statement saying that they were glad to see the issue resolved saying “We are grateful for the jury’s conscientious service and pleased that it has ruled in our favour, putting to rest questions about the origins of ‘Stairway To Heaven’ and confirming what we have known for 45 years,” they said. “We appreciate our fans’ support, and look forward to putting this legal matter behind us.” The…

American promoters take issue with proposed BMI music use rate rise
Copyright / October 2018

COPYRIGHT   Hot on the heels of the now agreed settlement in the UK between the live sector and the UK’s performing right organisation, PRS for Music, which included a rate rise, but a decrease for festivals and an acknowledgement of so called ‘direct licensing’, comes news that in the US a proposed change to music use royalties from live events will be determined by the Rate Court. Unable to reach agreement for a blanket license fee with the North American Concert Promoters Association (NACPA), the US performing rights organisation (PRO), Broadcast Music Inc (BMI) earlier this week (24 Sept 2018)  filed a court petition seeking the court’s decision in determining the license fees for live concerts in line with their proposed rate of a blanket license fee of 1.15% of gross revenues levied on an expanded revenue base for all live music events (which European readers will note is substantially lower than many rate agreed or set in the European Union). BMI issues performing rights licenses to music users across a range of industries which include radio broadcasters, TV, cable television, internet and website services, concert halls, concert promoters, nightclubs, restaurants and similar, and  collects license fees from them…

Artists threaten to boycott SiriusXM over Music Modernisation Act objections  – UPDATED AS ACT IS PASSED
Copyright / October 2018

The Music Modernisation Act (MMA) is hot stuff in America at the moment and it plans to do what it says on the tin. It is looking to reform US copyright law, amongst other things it seeks to resolve the “small” issue of satellite radio stations not being required to pay music royalties for playing pre-1972 tracks. Other proposals include a  fix for the fairly muddled mess on how mechanical royalties are paid Stateside and reforms to the way the US Copyright Royalty Board and rate courts determines what are fair royalties for compulsory and BMI/ASCAP licences.   There are two sides to every story, in the case of the MMA (the so called ‘CLASSICS’ Act element) they can be summed up very easily. On one hand you have the satellite radio stations that have not been required to pay royalties for their use of pre-1972 tracks, why should they now? On the other hand you have the artists of the pre-1972 tracks that have been without royalties payments for quite some time!   SiriusXM is one of these satellite radio stations, in fact it operates three satellite radio stations, and it is very opposed to some elements of the…

European Parliament vote on EU copyright law reform looms large (UPDATED)
Copyright / October 2018

COPYRIGHT   Tomorrow (Wednesday 12th September) sees the European Parliament vote on what have become a series of somewhat controversial reforms to EU copyright law, in a battle which pits content creators and content owners against the tech giants of Amazon, Google, YouTube and Facebook. Its been a fertile feeding ground for the lobbyists as both sides fought to catch the eyes and attention of of politicians and the general public, with the tech giants spending heavily on lobbying and the content axis wheeling out a plethora of stars and big names in advance of a vote which could “change the balance of power between producers of music, news and film and the dominant websites that host their work.”   The Directive on Copyright in the Digital Single Market 2016/0280(COD), also known as the EU Copyright Directive, is intended to harmonise certain aspects of the European Union copyright law and moved towards a ‘Digital Single Market’.The European Parliament Committee on Legal Affairs approved the proposed Directive on the 20th June 2018, with further voting by the entire European Parliament required before it became a Directive. On the 5th July 2018, a vote on the Directive rejected the then reforms with…

Turn it up even louder – This is Spinal Tap claim moves forwards
Copyright / October 2018

COPYRIGHT   We previously reported here about the ongoing ‘This is Spinal Tap’ litigation in the US and also the fact that we were running out of puns. Nonetheless, we are happy to report that Harry Shearer is having a good time…all the time following a development in the litigation. In short the case revolves around Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner’s allegations that Vivendi have been deliberately underpaying royalties due from the exploitation of the This is Spinal Tap film. The stars of the cult film have claimed Vivendi “wilfully manipulated certain accounting data, while ignoring contractually-obligated accounting and reporting processes, to deny [the] co-creators their rightful stake in the production’s profits”. In October 2017, Shearer, Guest, McKean and Reiner amended the claim against Vivendi to take into account “the fraud by concealment and misrepresentation conducted by Vivendi and its agent Ron Halpern and others”. This also resulted in Universal Music being added as a named defendant. Shearer, Guest, McKean and Reiner’s requests are simple; they want the copyright in the film to be transferred back to them from Vivendi. This claim is made under the US copyright reversion provisions which have seen some action in the last year or so. On the…

9th Circuit Court of Appeals re-masters the law for pre 1972 copyright
Copyright / October 2018

COPYRIGHT 1972  and copyright, mixed up with satellite radio and internet ‘broadcasting’, has been a rather a touchy subject in the US. Tracks (sound recordings) created before this date have, in the opinion of some, no performance right attached to them for said satellite radio stations – whereas songs created after 1972 benefit from compulsory licences administered by the Copyright Royalty Board and grated under federal law. Of course we now all know a number of artists and rights owners were not at all happy with the position taken by broadcasters such as Sirius XM and this resulted in a flurry of litigation.   The short story is that broadcasters were of the opinion that if a satellite radio station wanted to play a pre-1972 track, there was and is no need pay royalties. For sound recordings created after 1972 the station will be required to pay royalties.   The lead in the litigation was taken by Flo & Eddie of The Turtles who sued using state law to try and gain a performance right – in New York, in Florida, and in California – in the latter state  claiming that under California’s so called common law copyright, they were…

Stream ripping is taking another hit in the US court system
Copyright / October 2018

COPYRIGHT In 2016 a number of major record labels, including Universal, Warner Bros and Sony filed a federal lawsuit against the operators of YouTube-mp3.org. As the domain name suggests, the website allows for YouTube videos to be converted into permanent MP3 format, thus circumventing the profit that YouTube generates for artists by way of advertising. At the time of the lawsuit YouTube-mp3.org was accused as being responsible for up to 40% of all stream ripping. Ultimately the operators of the website complied with requests to shut up shop and hand over the domain name to the Recording Industry Association of America (RIAA). As is common place on the internet, as one operator shuts down a new one will spring up. Billboard has reported that a number of major record labels, again including Universal, Warner Bros and Sony have taken aim at FLVTO.biz and 2conv.com, two stream ripping websites based in Russia, by filing a federal complain in the Eastern District of Virginia. It has been reported that the two websites in question account for 120 million monthly visitors whom come to rip content from YouTube. FLVTO.biz and 2conv.com have previously received warnings from the RIAA and the International Federation of…

EU Copyright Reforms Stalled
Copyright / August 2018

COPYRIGHT All areas   European MEPs who voted on the Copyright Directive in Strasbourg today have failed (by a small majority) to move the legislative process forwards whereby the European Union Council, Commission and Parliament could have negotiated a final text for passage into law. The vote was close, with 278 in favour, 318 against and 31 abstentions. The outcome rejects the earlier Legal Committee decision to approve the draft law, which will now be sent back to parliament for further discussion.   The battle to update the EU’s copyright laws, the first since 2001, has sparked fierce lobbying from opponents to the  led by internet giants such as Google and free specch advocates (see our previous post), with the backing of celebrities such as Stephen Fry and Tim Berners-Lee, and those in favour of the plans such as film companies and record labels and artistes who included the former Beatle, sir Paul McCartney and James Blunt. The cultural and creative sectors, and rights owners will be more than disappointed. Anders Lassen, president of the European Grouping of Societies of Authors and Composers who backed the rule changes, said the vote was a “missed opportunity”, and PRS for Music’s Chief Executive, Robert…

Country music songwriter seeks $1.3 million in premium payments from ASCAP

COPYRIGHT / CONTRACT Music publishing. Collection societies   Country music songwriter Shane McAnally is taking one of the USA’s big two collecting societies, ASCAP, to arbitration in a dispute over $1.3 million of “premium payments” that he says should have been paid for his top performing songs. Having left ASCAP for the new rights organisation, Global Music Rights, McAnally’s works were still administered by ASCAP for radio until ASCAP’s then current agreements with the broadcasters expired. The disputed payments stem from that period. The dispute relates to premium payments which are paid to writers by ASCAP in addition to standard royalties where certain “threshold numbers” are reached (in any one quarter). McAnally claims that once he was in the process of pulling his rights from ASCAP he no longer received the same premiums as his co-writers on certain songs that topped the country radio charts and was thus allegedly unpaid or underpaid premiums. The matter was initially heard by the collecting society’s ‘board of review’, which ruled that the organisation had applied its royalty payment rules correctly. But the writer disagrees and with the support of GMR is now taking the matter to arbitration. McAnally is quoted by The Tennessean as declaring ASCAP…

BMI hail 100% licensing win

COPYRIGHT / COMPETITION Music publishing, collection societies   The head  of American collecting society BMI has written an opinion piece for Billboard hailing what he says is a victory in the log running 100% licensing dispute as a deadline is passed with no appeal from the Department of Justice who had fought the USA’s four  music collection societies, by BMI, ASCAP, GMR and SESAC, challenging the convention that anyone wishing to broadcast or perform a work that was co-written and also administered by different societies must have a licence from all relevant societies, and pay royalties to each, pro-rata according to what percentage it controls. When the US Department Of Justice reviewed the consent decrees that govern BMI and ASCAP in 2016, it announced that the two big American collecting societies were obliged to operate a so called ‘100% licensing system’. Both BMI and ASCAP objected to the DoJ’s new interpretation of the rules, the former fighting the ruling in the courts, the latter lobbying against it in US Congress. BMI’s pro-fractional licensing position was then endorsed by the courts and just before Christmas last year an appeals court upheld the original judgement upholding the fractional licensing system. The DoJ could have pursued…

Rights scandal alleged to be the “biggest music rights scam in South African history”

COPYRIGHT Music publishing, collection societies   The South African Minister of Arts and Culture Nathi Mthethwa has noted “with grave concern” the article published in City Press and News 24 Online News platforms on 1st April 2018 into what is “alleged to be the biggest music rights scam in South African history involving the legendary and multi-platinum selling gospel artist Hlengiwe Mhlaba. The report goes into worrying detail into the alleged theft over a period of years of royalties amounting to millions of rand due to the artist in question.” The Minister has given a directive to the legal unit of the Department of Arts and Culture to immediately initiate a process which will culminate in the appointment of a Commission that will be headed by a retired Judge. More here on the allegations made against collection society SAMRO here https://city-press.news24.com/News/gospel-shocker-how-black-musicians-got-screwed-20180401 The Chief Executive of SAMRO, Nothando Migogo, responds here  http://www.samro.org.za/news/articles/samro-ceo-response-media-reports

That Jenner and the Tupac T-shirt legal dispute has been settled
Copyright , Merchandising / May 2018

COPYRIGHT Merchandising   The dispute and controversy surrounding Kendall and Kylie Jenner’s line of musically themed T-shirts is drawing to a close. The Jenner line boasted a plethora of major rick star names, including Notorious BIG, KISS, Ozzy Osbourne and Tupac Shakur to name a few, but it seems the Jenner’s didn’t ask for any permissions. Indeed most of the people featured on the T-shirts were not happy at all, and cease and desist letters followed from their legal representatives. The Jenners went onto adhere to the requests in the letters and removed the offending T-shirts from sale, claiming that the design of the T-shirts was “not well thought out”. But Mike Miller, the photographer of the images of Tupac used by the Jenners, was even less happy. Tupac’s image may have been used, but he had never been approached by the Jenner’s or asked to consent to the use of his copyrighted pictures. In his claim it was stated that “at no times [had the Jenners] notified Miller that they intended to exploit his photography, let alone obtained his authorisation”. The representatives for the Jenners said the base T-shirts were obtained from a company licensed to sell them and went onto…

Tulisa wins a massive ‘scream & shout’ pay out

COPYRIGHT Music publishing   Former N-Dubz member and X-Factor judge Tulisa Contostavlos has reportedly won a 10% share of the songwriting income from the Britney Spears and will.i.am track ‘Scream & Shout’ after a six year dispute over who should share the royalties from the hit song.   Contostavlos argued that she had collaborated on an original version of the song ( then called I Don’t Give A F**k) with producers Jean Baptiste and Jef Martens, who work with will.i.am, the plan being to include it on her album ‘The Female Boss’. However the producers didn’t use the song  and instead Will.i.am used the song for a track featuring Britney Spears, with Spears apparently providing the vocals using Tulisa’s original vocals as a guide. The track ended up on will.i.am’s album ‘#willpower’ in 2012, accredited to Britney Spears and will.i.am. Tulisa, 29, immediately filed a claim and all income for the Number 1 hit was frozen by the court.   As the legal dispute continued, Tulisa insisted that Will.i.am and Britney’s version still included parts she had written including the line: ‘When you hear this in the club, you’d better turn this s**t up.’ It also transpired that some of Contostavlos’s vocals were still present on the final…

Wolfgang’s Vault looks buried in copyright dispute
Copyright , Media / May 2018

COPYRIGHT Recorded music, film and TV   U.S. District Court Judge Edgardo Ramos has made a monumental decision in favor of members of The National Music Publishers’ Association (incl. Sony/ATV & EMI Music Publishing, Warner/Chappell, ABKCO, peermusic, Spirit Music and Imagem Music). Judge Ramos ruled that the owners of Wofgang’s  – a collection of thousands of live concert performances such as those of legendary Rock and Rollers Keith Richards, David Byrne and Michael Stipe – had committed extensive copyright infringement by streaming the collection to the public. Wolfgang’s (formerly Wolfgang’s Vault) is described as “a private music-focused company established in 2002 dedicated to the restoration and archiving of live concert recordings in audio and video format and the sale of music memorabilia. It began with the collection of the late promoter Bill Graham”. This saga dates back to 2015, when the NMPA led its members to bring legal action, alleging that the licenses required to stream a collection of works that was acquired from promoter Bill Graham and other operators of concert venues, had not been obtained. The main issue in the case pertained to approximately 200 musical compositions (with a separate class action also pending). As there was no…

Music Modernization Act moves forwards in the US
Copyright / May 2018

COPYRIGHT All sectors   The U.S. House Judiciary Committee has introduced the Music Modernization Act with the goal of encouraging innovation and rewarding creativity in this increasingly digital age. Some of the antiquated law surrounding copyright in the U.S. is considerably flawed, and after years of reviewing the system under the leadership of Committee Chairman Bob Goodlatte the new legislation incorporates elements of four previously introduced bills: the Allocation for Music Producers (AMP) Act, the CLASSICS Act, the Fair Play Fair Pay Act and an earlier version of the Music Modernization Act that was specific to songwriting. Following this step, the reforms will go before the full House of Representatives, the lower chamber of the U.S. Congress.   The MMA, which contains many important changes to music licensing laws, addresses the following key issues:   * Creating a new collection entity to ensure that songwriters always get paid for mechanical licenses when digital services use their work * Establishing the same fair, market-based rate standard for both artists and songwriters whenever the government sets royalty rates * Closing the “pre-1972 loophole” so that digital services will pay legacy artists the compensation they deserve * Recognising producers and engineers in copyright law for the first time and protecting their right to collect royalties…

US Appellate Court majority rules that ‘Blurred Lines’ DID infringe Gaye classic
Copyright , Music Publishing / April 2018

COPYRIGHT Music publishing   The US Court of Appeals for the Ninth Circuit has upheld the 2015 jury verdict which found that Robin Thicke and Pharrell Williams’ 2013 hit ‘Blurred Lines’ infringed on the copyright in Marvin Gaye’s 1977 song ‘Got To Give It Up’. The decision had attracted widespread criticism and comment, not least as many commentators felt that the jury made their decision by comparing the ‘sound’ or vibe of the songs, rather than the actual song itself. The appellate panel’s  decision was a split decision, 2-1, with a scathing dissent from US Circuit Judge Jacqueline Nguyen who is openly critical of the majority and said that the Marvin Gaye Estate had been able to “accomplish what no one has before: copyright a musical style.” The decision means that Thicke and Williams remain liable for $5.3m in damages and ongoing royalties to the Marvin Gaye Estate from future revenues earned from ‘Blurred Lines’. The majority of the panel (Judge Milan D. Smith, Jr and Judge Mary H Murguia) held that “Got To Give It Up” was entitled to broad copyright protection because musical compositions are not confined to a narrow range of expression. That said, the panel accepted, without deciding, the merits of the district…

BMI hail 100% licensing win
Competition , Copyright / April 2018

COPYRIGHT / COMPETITION Music publishing, collection societies   The head  of American collecting society BMI has written an opinion piece for Billboard hailing what he says is a victory in the log running 100% licensing dispute as a deadline is passed with no appeal from the Department of Justice who had fought the USA’s four  music collection societies, by BMI, ASCAP, GMR and SESAC, challenging the convention that anyone wishing to broadcast or perform a work that was co-written and also administered by different societies must have a licence from all relevant societies, and pay royalties to each, pro-rata according to what percentage it controls. When the US Department Of Justice reviewed the consent decrees that govern BMI and ASCAP in 2016, it announced that the two big American collecting societies were obliged to operate a so called ‘100% licensing system’. Both BMI and ASCAP objected to the DoJ’s new interpretation of the rules, the former fighting the ruling in the courts, the latter lobbying against it in US Congress. BMI’s pro-fractional licensing position was then endorsed by the courts and just before Christmas last year an appeals court upheld the original judgement upholding the fractional licensing system. The DoJ could have pursued…

Country music songwriter seeks $1.3 million in premium payments from ASCAP
Contract , Copyright / April 2018

COPYRIGHT / CONTRACT Music publishing, collection societies   Country music songwriter Shane McAnally is taking one of the USA’s big two collecting societies, ASCAP, to arbitration in a dispute over $1.3 million of “premium payments” that he says should have been paid for his top performing songs. Having left ASCAP for the new rights organisation, Global Music Rights, McAnally’s works were still administered by ASCAP for radio until ASCAP’s then current agreements with the broadcasters expired. The disputed payments stem from that period. The dispute relates to premium payments which are paid to writers by ASCAP in addition to standard royalties where certain “threshold numbers” are reached (in any one quarter). McAnally claims that once he was in the process of pulling his rights from ASCAP he no longer received the same premiums as his co-writers on certain songs that topped the country radio charts and was thus allegedly unpaid or underpaid premiums. The matter was initially heard by the collecting society’s ‘board of review’, which ruled that the organisation had applied its royalty payment rules correctly. But the writer disagrees and with the support of GMR is now taking the matter to arbitration. McAnally is quoted by The Tennessean as declaring ASCAP…

Miley Cyrus on receiving end of copyright infringement lawsuit
Copyright , Music Publishing / April 2018

COPYRIGHT Music publishing   Miley Cyrus is facing a lawsuit from the Jamaican dancehall star Flourgon (Michael May)  which has been described in the popular press as a $300 million claim for copyright infringement which focuses on the lyrics single Cyrus’s 2013 hit single ‘We Can’t Stop’. In Flourgon’s ‘We Run Things’ the lyric reads ‘We run things, things no run we’. The similarity between the lyrics  is the basis of the claim which alleges that this line was utilised when Cyrus sings ‘We run things, things don’t run we’ in her We Can’t Stop. But Cyrus is not the only one in the firing line; the lawsuit also names Sony Records label RCA, the songs co-writers Rock City (Timothy Thomas and Theron Thomas), Mike Will Made It, and manager Larry Rudolph.   The lawsuit references the popularity of Flourgon’s 1998  track:  the song became a ‘cultural hit gathering significant sales and popularity’. ‘We Run Things‘ was well known within reggae and dancehall circles, both upon its release and to this day in various countries around the world. As such, it has influenced Caribbean culture significantly, says the lawsuit. Cyrus’s single was an international hit and reached number 2 on the Billboard Hot 100…

PPL and PRS for Music combine for joint licence
Copyright / April 2018

COPYRIGHT Collection societies   PRS For Music and PPL have officially launched a new joint venture company which will provide one licence to cover all public performance rights. The new company will administer the joint licence – called TheMusicLicence which will allow users to play recorded music publicly in venues including bars, offices, gyms, fishmongers and music venues. The licence will cover users for the performing right in both recordings and songs. Suzanne Smith is the new head of the JV, joining from credit rating company Experian: “We are very excited to now offer customers of both PPL and PRS For Music a more streamlined approach for licensing their businesses to play and perform music” Smith said, adding “With the launch of TheMusicLicence we are providing one licence and one contact, enabling companies and organisations to enhance their customer and employee experience by playing music in their premises”. PRS For Music chief executive Robert Ashcroft said: “We have invested years of effort and millions of pounds to simplify music licensing for UK businesses and on behalf of PRS For Music, I am delighted to launch what is the largest joint venture of its kind in the world. This is the beginning of a new era…

French Minister Clarifies Statutory Provision on Copyright Contracts
Copyright , Music Publishing / March 2018

COPYRIGHT Sound recordings, audio-visual, music publishing     One of the striking features of French copyright law is the protection it affords to authors in their contractual dealings with would-be licensees and assignees. One of the key statutory provisions that contributes to this high level of protection is Section L.131-2 of the Intellectual Property Code (IPC), which until recently provided as follows: “Contracts for public performance, publishing contracts, and audio-visual production contracts defined in this Section shall be in writing, as shall be free authorizations to publicly perform.     In all other cases, the provisions of Sections 1341 to 1348 of the Civil Code shall apply.”   This provision sets out a rule whereby certain named contracts (viz., public performance, publishing and audio-visual production contracts) must be in writing.  (To this list must also be added, pursuant to a different section of the Code, contracts for the acquisition of audio-visual adaptation rights of a literary work). Courts have long recognized that the requirement for a written instrument under Section L.131-2 IPC is merely for evidentiary purposes (ad probationem ) and not for the contract’s validity (ad validitatem). In all other cases, the ordinary rules of evidence under the Civil Code apply. …

Swift copyright infringement allegation fails – but has one last play
Copyright , Music Publishing / March 2018

COPYRIGHT Music publishing   The copyright lawsuit filed against Taylor Swift claiming the lyrics to her 2014 track ‘Shake It Off’ infringed on a 2001 hit by American girl group 3lw has been dismissed by the federal court of California. The plaintiffs, songwriters Sean Hall and Nathan Butler, of the 3lw track ‘Playas Gon’ Play’ claimed there were similarities between the lyrics that infringed their copyright. As there was no dispute over whether Hall and Butler owned their lyrics, or that Swift’s team had access to the song or that the underlying musical composition was similar and the case focussed on the lyrics The lyrics to the 3lw track include: “Playas, they gonna play/ And haters, they gonna hate.”   The chorus to Swifts’ chorus is: “Cause the players gonna play, play, play, play, play/ And the haters gonna hate, hate, hate, hate, hate.” Swift’s lega; team had dubbed the claim a “money grab”.   US District Judge Michael Fitzgerald has now granted Swift’s the ability to dismiss the lawsuit. Howeever the plaintiffs will be able to amend their complaint if they can cite more similarities by February 26th.   Judge Fitzegerald said: “The lynchpin of this entire case is thus whether or not the…

Big win for US songwriters and publishers with rate hike
Copyright , Music Publishing / March 2018

COPYRIGHT Music publishing   The streaming royalty rate for songwriters in the USA has jumped 44%. The Copyright Royalty Board has confirmed that compulsory royalty rates in the US market will rise by just under 44% for songwriters over the next five years. The National Music Publishers Association, who lobbied for the improvement, called the ruling a “huge win for music creators”.    The streaming companies will now have to pay songwriters and publishers 15.1 percent of their revenues, up from 10.5 percent with the rate rising over five years. The rate-setting hearing pitted songwriters and publishers against the top streaming companies, including Spotify, Apple Music, Google, Pandora and Amazon.  It is the largest rate increase in CRB history. NMPA President & CEO David Israelite: “We are thrilled the CRB raised rates for songwriters by 43.8% – the biggest rate increase granted in CRB history. Crucially, the decision also allows songwriters to benefit from deals done by record labels in the free market. The ratio of what labels are paid by the services versus what publishers are paid has significantly improved, resulting in the most favorable balance in the history of the industry.” the CRB  also removed the Total Content Cost…

How should Europe remould the digital market ?
Copyright / March 2018

COPYRIGHT All sectors: audio-visual, sound recordings, music publishing   An open letter, addressed to the European Parliament has asked MEPs to back an effort to reform the safe harbour laws and implement legislation to narrow the so called ‘value gap’. Not much new there? Well, the letter had two prominent signatories: the godfather of electronic music, Jean-Michel Jarre, and the Grammy Award winning Angelique Kidjo.  In essence, under the E-Commerce Directive, safe harbour laws as they stand mean that Internet Society Service Providers are not liable if they are unsuspectingly hosting copyright infringing content. If we look at the YouTube example, so much content is uploaded every day that it is practically impossible to sieve through it all for copyright infringing works, therefore if YouTube is doing all that it can to root out the infringing material it is protected under the safe harbour principle. Liability may arise if YouTube was put on notice of the infringing content and failed to remove it in a timely fashion.  Due to the quantity of infringing material out there and with entities only being liable in certain circumstances, not everyone is happy. Artists are not happy that their content is out there and…

US appeals court tells ISP that safe harbor comes with obligations

COPYRIGHT Recorded music, music publishing, internet   A US appellate court has reversed a $25 million verdict against the US Internet Service Provider Cox Communications in what might be seen as a defeat for record label BMG, which had sought to hold Cox liable for copyright infringement for its subscribers who were sharing pirated files online. But looking at the judgment, and despite what looks like a set back for BMG Rights Management, it can be argued that its actually a win in the battle against piracy The decision, by a three-judge panel of the 4th Circuit Court of Appeals, returns the case to the District Court for a new trial, based on a decision that there was an error in jury instructions. Irrelevant of arguments about safe harbor protection at the heart of the case, Cox might not been responsible for users’ infringement as companies are only liable for contributing to infringement if the companies either know about acts of infringement, or are wilfully blind to them, and the appellate court ruled that the trial judge, District Judge Liam O’Grady, incorrectly told the jurors that they could find Cox liable if it knew or should have known about infringement by users. “The formulation ‘should have known’…

“We Shall Overcome“ is now in public domain
Copyright , Music Publishing / March 2018

COPYRIGHT Music publishing   In September 2017, the lawsuit between music publishers The Richmond Organisation-Ludlow Music Inc (TRO-Ludlow) and the We Shall Overcome Foundation (WSOF) and Butler Films LLC saw US District Judge Denise Cote’s ruling that placed the first and fifth verse of the time-honoured iconic protest song We Shall Overcome firmly in the publicdomain.  A hearing was scheduled for March 2018 to decide on verses 2, 3 and 4 of the 1960 version, and verses 7 and 8 of the 1963 version.  The late folk singer Pete Seeger had been credited with writing verse 2 of both versions and verse 8 of the 1963 version. However, it was announced on 26th January 2018, that a settlement had been reached between the parties that puts the lyrics and melody to both versions of the song into the public domain, and that the publisher would retain copyright on the song’s musical arrangement.  A spokesperson for TRO-Ludlow said the litigation had become expensive and had cost far more than the song had earned back in recent years. In a statement, the publisher said that songwriter royalties, since the early 1960s, have been donated to the Highlander Research and Education Center, a non-profit social justice…

US appellate court upholds fractional licensing
Copyright , Music Publishing / February 2018

COPYRIGHT Music publishers, broadcasting   Songwriters and music publishers in America have welcomed an appeal court that has dismissed the Department of Justice move to introduce “100% licensing”, confirming the current system that the so called “fractional licensing” system for co-written songs with different publishers (and sometimes multiple collection societies with a ‘fraction’ of the song). With collaborating writers free to choose from four different societies in the US (BMI, ASCAP, GMR and SESAC) a third party wishing to broadcast or perform that work must still be licensed by ALL relevant  societies, and pay royalties to each, pro-rata according to what percentage it controls. The US Department Of Justice had different ideas, and having reviewed the consent decrees that govern BMI and ASCAP moved to force the two big American collecting societies to operate a so called ‘100% licensing system’ with any society able to offer a ‘100%’ licence,  a one stop shop for customers, provided the licensing PRO then passed on the relevant share(s) to other societies who owned a fraction of the work.  In September 2016 Judge Louis L Stanton (who oversees the BMI consent decree) ruled that the DoJ had been wrong to infer a 100% licensing obligation…

Eminen-esque to be appealed in New Zealand
Copyright , Music Publishing / February 2018

COPYRIGHT Recorded music, music publishing   In October 2016, New Zealand’s High Court ruled that the National Party had infringed on singer Eminem’s copyright in Lose Yourself  and awarded the rapper’s publisher NZ$600,000 (£315,000) in damages, saying that the political party’s use of a track titled ‘Eminem Esque‘ that was “sufficiently similar” to Eminem’s original song was infringement, noting that Lose Yourself was a “highly original work” and the “soundalike” version substantially copied it. Lose Yourself’ was composed by Marshall Mathers III (Eminem), Jeffrey Bass and Luis Resto (Eight Mile Style) in 2002. The court said: The differences between the two works are minimal; the close similarities and the indiscernible differences in drum beat, the ‘melodic line’ and the piano figures make Eminem Esque strikingly similar to Lose Yourself. Eminem Esque substantially reproduces the essence of Lose Yourself. The parts of Eminem Esque used in the National party’s campaign advertisements also substantially reproduce Lose Yourself.”   Now the two United States publishing companies that control and administer copyright for Eminem’s award-winning rap hit, Lose Yourself, are asking to have the award of damages increased. The advert was widely shared, but National Party is seeking a lower figure, saying Justice Helen Cull was wrong to accept evidence that the internet availability…