SonyBMG rejects Toto digital royalty claim
Artists , Contract , Record Labels / April 2012
USA

CONTRACT Record labels, Artists Billboard reports that Sony BMG has asked a US court to dismiss the latest case filed against the label by 80s icons Toto, who are looking to challenge the basis of the way in which their digital download royalties are accounted for. With The Temptations having recently launched a new action against Universal, who have lost one case in the ‘Eminen’ action (actually brought by the rapper’s producers FBT), Sony BMG has now agreed to pay $7.95 million to settle a similar class action (see above, with Cheap Trick and the Allman Brothers amongst others) but is separately defending the lawsuit brought by Toto, who recorded the hit song “Africa”. The music company says the band is “dissatisfied with the bargain that it struck.” Billboard report that Sony have said that the argument that artistes should receive a share of ‘licence’ income from digital sales rather than a (much lower) per unit sales royalty is incorrect in this case because the “license” vs. “sale” dispute misses a third word — “lease” — which could play a role in determining whether musicians get roughly 50 percent of digital income or merely about 15 percent of the net sales…

Google COULD face legal action from record labels
USA

COPYRIGHT / COMPETITION Internet, record labels TorrentFreak reports that the recording industry is considering filing a lawsuit against Google for allegedly abusing its dominant market position to distort the market for online music saying “Industry groups including IFPI and the RIAA want Google to degrade links to ‘pirate’ websites in its search results” and that “IFPI has obtained a ‘highly confidential and preliminary legal opinion’ to see if they can force Google to step up its anti-piracy efforts though a lawsuit” – with the IFPI saying  “Google continues to fail to prioritize legal music sites over illegal sites in search results, claiming that its algorithm for search results is based on the relevance of sites to consumers” explaining “With a view to addressing this failure, IFPI obtained a highly confidential and preliminary legal opinion in July 2011 on the possibility of bringing a competition law [antitrust] complaint against Google for abuse of its dominant position, given the distortion of the market for legitimate online music that is likely to result from Google’s prioritizing of illegal sites.” So it seems whether the legal action will actually be launched is a matter of whether or not Google will come to the table…

Apparently Veoh Isn’t Dead Enough For Universal Music; Asks For Rehearing of Its Bogus Copyright Lawsuit
Copyright , Internet , Record Labels / March 2012
EU
UK
USA

COPYRIGHT Record labels, internet ARTICLE LINK: An interesting take on the Universal v Veoh litigation and some thoughts on why (despite Veoh’s victory) UMG initiated the action and indeed continue with an appeal. …. despite Veoh’s demise. http://www.techdirt.com/articles/20120126/02350517545/apparently-veoh-isnt-dead-enough-universal-music-asks-rehearing-its-bogus-copyright-lawsuit.shtml

SOPA is not censorship says RIAA Chief
Copyright , Internet , Record Labels / March 2012
USA

COPYRIGHT Internet, record labels Cary Sherman boss of the Recording Industry Association Of America has hit out at Wikipedia and its allies with a response in the New York Times to last month’s day of protests against the proposed SOPA and PIPA anti-piracy bills saying that the campaign was founded on a number of ‘mistruths’ and “Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal? When the police close down a store fencing stolen goods, it isn’t censorship, but when those stolen goods are fenced online, it is? Wikipedia, Google and others manufactured controversy by unfairly equating SOPA with censorship”. A recent Columbia University survey found, in fact, that 70 percent of 18- to 29-year-olds said they had bought, copied or downloaded unauthorized music, TV shows or movies, compared with 46 percent of all adults who’d done the same. CMU Daily 9th February 2012

Re-Digi case goes to full hearing
Copyright , Record Labels / March 2012
USA

COPYRIGHT Record labels EMI has failed to get a summary judgement against the MP3 resale website ReDigi, meaning the case will now get a full court hearing which will examine the digital company’s claim that it is possible that American copyright law allows consumers to resell MP3 as the ‘first sale’ doctine must to apply in the digital space as much as it applies to CDs and vinyl.  Whilst Judge Richard Sullivan declined to accept a amicus curiae brief from web giant Google, he has decided that it would be inappropriate to find in EMI’s favour without giving its claim full consideration, mainly because he didn’t feel the major had proven “irreparable harm” in its initial legal papers. The judge declined to issue an injunction against Re-Digi and the site remains open for business pending the trial. http://www.theregister.co.uk/2012/02/10/redigi_avoids_injunction_case_moves_to_full_trial/

Getting paid for being played
UK
Vietnam

COPYRIGHT Record Labels, Music Publishing, Live Events Industry   Its easy getting played – but its often more difficult getting paid. In Vietnam 40 composers and members of the Ha Noi Musicians’ Association have signed a letter petitioning management agencies for tighter regulation on copyright payments and permission for live performances at a recent meeting. The meeting was organised by the Viet Nam Copyright Protection Music Centre (VCPMC) in response to recent cases which they say have revealed the inefficiency of agencies authorised to give permission for live performances. In the last year, the centre says that only one-tenth of the total number of music performances throughout the country have been collected. At the meeting, participants blamed the agency authorised to monitor and distribute payments, the Performing Arts Department in the Ministry of Culture, Sports and Tourism, for granting performance organisers permission without demanding copyright payment for composers. In the UK a Bristol nightclub has been banned from playing recorded music after Mrs Justice Proudman banned owners Norcrown Ltd from playing any more recorded music at the club until the company brings its music licences up to date. The order was imposed after the judge heard that the company was…

Merlin settles for indies
Copyright , Internet , Record Labels / March 2012
USA

COPYRIGHT Internet, record labels   The global independent music rights agency Merlin has settled its long running copyright infringement claim on behalf of its members against the now defunct peer-to-peer service LimeWire.  The settlement was reached out-of-court subsequent to a lawsuit filed by Merlin in July 2011. Merlin’s settlement follows the major record labels’ announcement that they reached a $105 million out-of-court settlement with LimeWire in May 2011.  Merlin’s members’ claims against LimeWire were settled for an amount commensurate with the major record labels’ settlement, taking into account the aggregate market shares of the Merlin members relative to the major labels’ shares and costs of action. Merlin’s members’ market share in the US is around 10%. Merlin will pay out the proceeds of the settlement to its members shortly. Labels such as Epitaph, Merge, Warp, Yep Roc/Red Eye, Naïve, Naxos, Tommy Boy, One Little Indian, Kontor, Secretly Canadian, Beggars Group, [PIAS] Group,!K7, Sub Pop, Domino and Koch/E1 are all members of Merlin. Charles Caldas, Merlin CEO said: “It is deeply satisfying to announce this settlement today. The exclusion of independents from past major settlements such as Kazaa was a key factor in the formation of Merlin, and I am proud…

PPL delighted at jukebox jury
UK

COPYRIGHT Music Publishing, Record Labels, Collection Societies   Record label trade body BPI and recording rights collecting society PPL have welcomed a recent court ruling that will see a father and son team who ran an unlicensed jukebox business in the North East ordered t pay over £131,000 in compensation. Malcolm Wylie, his son Peter Wylie and William Ross were all handed custodial sentences for their involvement in the jukebox enterprise, which provided supposedly fully licensed jukeboxes to North East businesses, but the business paid no part of the income to the rights owners via PPL. Since then Ross has been ordered to pay £102,000 to BPI/PPL, and earlier this month Wylie Senior and Junior were together ordered to hand over £131,000. CMU Daily 24 February 2012

Now Warners face digital royalty claim
EU
Japan
UK
USA

CONTRACT / COPYRIGHT Artistes, record labels With Sony and Universal already facing claims over the way royalties are calculated (with actions from artistes including The Allman Brothers, Cheap Trick, Rob Zombie, Whitesnake, Chuck D and the Estate of Rick James) and the successful action already won by FBT Productions against UMG (in the ‘Eminen’ case) which set a precedent that royalties for iTunes-style downloads should not be treated the same as selling CD singles or albums and should attract a higher payment – usually a share of the profits from licensing revenues  – rather than a ‘per unit’ royalty based on dealer price, Warners are now facing an action from Sister Sledge and singer  Ronee Blakely whose lawsuit claims: “Rather than paying its recording artists and producers the percentage of net receipts it received – and continues to receive – from digital content providers for ‘licenses’, Warner wrongfully treats each digital download as a ‘sale’ of a physical phonorecord … which are governed by much lower royalty provisions than ‘licenses’ in Warner’s standard recording agreements”. Universal continues to insist the ruling in the FBT case is only relevant to the wording of that exact contract, and does not set a…

Warners to fight EMI sale to Universal
Competition , Record Labels / March 2012
EU
UK
USA

COMPETITION Record labels On his final day as Chairman of the Warner Music Group, Edgar Bronfman Jr has confirmed the World’s  third biggest music rights company would join with the independent sector fight ‘tooth and nail’ against the proposed merger of the EMI record companies with the market leader Universal Music Group. Saying that allowing Universal to take ownership of the EMI record companies “would create what I call a super-major that would control not only the future of recorded music but the future of all digital media”. According to the Wall Street Journal, he continued: “I think it’s dangerous, I think it’s problematic and I think it’s got to be stopped. It does strike me as hubris, particularly for Universal to think it’s going to be easy to buy EMI, and frankly to think they can buy EMI at all”. The position was subsequently confirmed by Warner Music’s CEO Stephen Cooper. Competition regulators in the EU. USA and elsewhere will be noting this with interest! And indie labels trade body IMPALA has repeated its opposition to the planned merger after Universal formally submitted its bid proposals to the European competition regulators. IMPALA’s Executive Chair Helen Smith said: “The clock…

Irish Three strikes works ‘incredibly well’ – but will it spread?
Copyright , Internet , Record Labels / February 2012
Ireland

COPYRIGHT Internet, record labels   The battle for the heart and soul of copyright in recorded music continues in Ireland, where The Irish Times (“EMI Records launches action against State over anti-piracy order”, by Carol Madden) reports on further legal action to prevent unauthorised music downloads.  According to this article: “The Irish arm of multinational music group EMI has launched a High Court action against the State as part of its bid to stop the illegal downloading of music. The Government recently pledged to issue an order to allow copyright holders to compel internet service providers (ISPs) to block access to websites that they consider are engaged in piracy. However, EMI Records (Ireland) remains unhappy with what it perceives to be foot-dragging on the part of the Government in tackling this issue. It is concerned that the matter could be delayed again, and that even if a statutory instrument is issued, its contents may not be satisfactory. Chief executive Willie Kavanagh … said yesterday that EMI asked the Government to show them the forthcoming instrument, but it has not yet received it, “leading me to believe it’s unlikely to satisfy the music industry’s requirement for injunctive relief”. … [In] 2010, … EMI and a number of…

Terra Firma fails in High Court bid to re-open EMI forced sale
Business , Record Labels / February 2012
UK
USA

BUSINESS Record labels   CMU Daily reports that private equity group and one time EMI owner Terra Firma has failed in its bid to force PricewaterhouseCoopers to hand over documents relating to the winding up of the music major’s holding company last January, the move than enabled US bank Citigroup to take control of the London-based music company off the equity firm, and put it up for sale. Terra Firma has questioned the decisions made by PWC that enabled Citigroup to repossess EMI, and also questioned the accountants’ valuation of the music business at the time the equity company lost control, and that PWC was not validly appointed as administrator for the EMI holding company. Terra Firma lost the entirety of its investment after CitiGroups takeover, totalling some £1.85bn. Terrra Firma had previously lost an action over the way Citi behaved when the equity group first acquired the music company in 2007. In the current case, Mr Justice Nicholas Warren has ruled that there is no case to force the accountancy firm to hand over any documents at this time, partly because there isn’t “the slightest suggestion [Citi] effected sales at undervalue” because it wouldn’t make commercial sense for them…

Music Business Tunes for Next Copyright Fight
Copyright , Record Labels / February 2012
China
EU
Japan
South Korea
USA

COPYRIGHT Record labels                                        ARTICLE LINK:  A useful update on the recorded music sector’s current position on piracy and its presumed wish list for legislative and other change http://www.pcworld.com/article/248915/music_business_tunes_for_next_copyright_fight.html

IFPI Digital Music Reports says its growth – but is it good news?
Copyright , Internet , Record Labels / February 2012
China
EU
Japan
USA

COPYRIGHT Record labels, internet   The IFPI’s Digital Music Report 2012 has just been published and headline figures from the record industry’s global trade body show Major international music services which include streaming services like Spotify are now in 58 countries, up from 23 in January 2011 Digital music revenues are up 8 per cent to US$5.2 billion The IFPI say that anti-piracy action has made an impact in France, New Zealand with the US to follow in 2012 but the IFPI says that piracy and the ‘legal environment’ remain a problem The IFPI say that consumers are benefitting from a widening choice of services for experiencing digital music. In 2011, subscription services expanded and linked with new partners to reach new audiences. Meanwhile cloud technology is helping transform the way fans manage and store their music. Global revenues to record companies grew by an estimated 8 per cent to US$5.2 billion in 2011 – a faster rate than 2010 – with strong consumer demand for both single track downloads (up 11 per cent by volume), digital albums (up 24 per cent by volume) and fast-expanding subscription services. The number of users paying to subscribe to a music service leapt…

New US Report says pre-1972 sound recordings should be ‘Federalized’
Copyright , Internet , Record Labels / February 2012
USA

COPYRIGHT Record industry, Internet   A Report from the US Copyright Office has recommended that all pre-1972 sound recordings become subject to US Federal Law. They are currently protected by state law. The move, if implemented, would open up a number of new opportunities, not least in making life easier for libraries and archivists who preserve old recordings.  Commercial use remains an issue though: with internet radio stations though, the move would expose the stations to paying royalties for using pre-1972 sound recordings to SoundExchange who currently do not (or cannot) always collect under state laws for the public performance right. The Copyright Office Report makes no comment on the position that no royalty is due to SoundExchange for US works from pre 1972 (unlike foreign works which are covered), but if pre-1972 works were to be covered, they would then need to be registered at the US Copyright Office. Some suggest that ‘Federalization’ of pre-1972 recordings would clear up all ambiguities and actually make it easier for internet based radio companies and streaming services to licence works. Terrestrial stations are exempt from performance royalties in the USA and there is no equivalent PPL ‘needletime’ payment for soudrecording use as…

EMI launches ReDigi action
Copyright , Internet , Record Labels / February 2012
USA

COPYRIGHT Record labels, internet   EMI has filed a lawsuit against digital track reseller ReDigi, alleging that the company’s plans to enable the selling of “used’’ digital music constitutes copyright infringement. On its website, ReDigi claims that the marketplace that it created to resell digital music is as legal as someone reselling an album to a used-record store. “Once you sell a song, you no longer have access to it,’’ the company says on the site. “This is how ReDigi stays legit, and how you now have access to an incredible marketplace where rights long accepted in the physical world may now be applied to digital goods.’’ http://bostonglobe.com/business/2012/01/07/emi-sues-cambridge-digital-music-reseller/bwemnUEMuWS6k9GKkJINdI/story.html and see http://www.musiclawupdates.com/?p=427

McGraw wins first round of exit battle
Artists , Contract , Record Labels / January 2012
USA

CONTRACT Artistes, record labels Country star Tim McGraw has won the first round of a legal battle with his record label partners Curb Records. The relationship between McGraw and Curb, which began at the start of McGraw’s career in 1992, has seemingly been deteriorating for some time. In May 2011 both sides filed lawsuits against the other. At the centre of the litigation was whether McGraw’s latest work, the album  ‘Emotional Traffic’, fulfilled the artist’s delivery contractual commitments to the label regards new recordings, whether he was due an advance on it, and whether or not on delivery he was out of contract with the record company. Curb said the songs on ‘Emotional Traffic’ were not sufficiently new and that McGraw remained tied to the label when it came to recordings. McGraw’s lengthy countersuit said the new album was in line with his contract, and that he now considered himself to be a free agent label-wise. The label said recordings started in 2008: McGraw claims the studio work took place in 2009/10), Now the Nashville Tennessean reports that a judge has uled in McGraw’s favour  with regard to the singer’s contractual commitments, concluding that the artist had provided Curb with…

MegaSong sparks mega row
USA

COPYRIGHT / CENSORSHIP Internet, record labels This story has been rumbling for while now but the ‘Mega Song’ dispute is taking all sorts of twists and turns. Let’s start at the beginning: MegaUpload is a file sharing platform that produced a video for what we will call the ‘Mega Song’ featuring numerous big name artistes such as Will.i.am, Chris Brown and Macy Gray all, well, ‘bigging up’ MegaUpload. This was posted up on YouTube. So far, so good. But it didn’t stay on YouTube for long as Universal Music Group (UMG) took umbrage and had it taken down under YouTubes takedown procedures (or so we thought).   MegaUpload founder Kim Dotcom (ermmm, that’s actually not his real name, its Schmitz, but wouldn’t it be great if it was) responded insisting his company had permission from all of the artists involved and owned all copyright in the track. He then said he was launching an action against UMG for improper use of the USA’s Digital Millennium Copyright Act. Universal firstly (and seemingly) said that their actions were correct as they were acting on behalf of one of their recording artistes featured in the MegaSong who had not given their consent to be…

Kanye and Jay-Z respond to sampling claim
USA

COPYRIGHT Record labels, music publishing Lawyers for Kanye West and Jay-Z have responded to the lawsuit filed by soul man Syl Johnson over a track on their collaborative album ‘Watch The Throne’. Johnson says the duo’s track ‘The Joy’ samples his song ‘Different Strokes’ without permission. Johnson’s lawsuit gives further detail saying that West’s people had approached his representatives about using the sample on his ‘My Beautiful Dark Twisted Fantasy’ album but no agreement was reached. The sample then showed up on ‘Watch The Throne‘ without a request even being made. The defence raised is primarily on technicalities relating to US copyright law. ‘Different Strokes’ dates from 1967, five years before the 1972 federal copyright protection applies. Although Johnson’s lawsuit specifically claims copyright protection under Illinois State Law, the West-Z rebuttal disputes that any such protection exists and according to their Answer: “Any claim based on the alleged use of Plaintiffs’ recording is barred because, inter alia, (a) the allegedly copied portion of the Plaintiff’s recording is not part of the musical composition; and, if it is part of the composition, (b) is not protectable and/or (c) any use was de minimis.” In a separate matter, the estate of the late…

Hard Cheese for content owners in the cantons
Copyright , Internet , Record Labels / January 2012
Switzerland

COPYRIGHT Internet, record labels, film industry Torrentfreak reports that the Swiss Government has decided that downloading music and movies will stay legal With an estimated one in three of the Swiss population admitting to downloading content without permission, Swiss policy will now be that downloading for personal use WILL be legal since people eventually spend the money saved on entertainment products. The Swiss government has been conducting a study into the impact downloading has on society and their findings and the overall conclusion of the study is that the current copyright law, under which downloading copyrighted material for personal use is permitted, doesn’t have to change. The Report notes that whilst the photocopier, audio cassette tape and VCR were all excellent and efficient copying devices, the internet has an added ‘bonus’- the world wide web offers near instant and global distribution of copies at the click of a button. The Report, which favours the option of putting technology to good use instead of taking the “repressive” approach says “Every time a new media technology has been made available, it has always been “abused”. This is the price we pay for progress. Winners will be those who are able to use…

Honey to The Bee
Artists , Copyright , Record Labels / January 2012
Germany

COPYRIGHT Record labels, artists ARTICLE LINK: In this article on the 1709 Blog, Monika Bruss explains Elvis Presley Enterprises’ so far unsuccessful claim against Arista Records in Germany for ‘equitable remuneration’ for records sold in the country. Expect an appeal sooner rather than later!   http://www.the1709blog.blogspot.com/2011/11/honey-to-bee.html

Artist’s digital royalty beef with Universal will go to court
Artists , Contract , Record Labels / December 2011
USA

CONTRACT Record labels, artistes A class action between a number of recording artistes and Universal Music over how digital royalties are calculated will go to court. A federal judge in California has given the green light for a class action lawsuit against Universal Music by a number of long established artists, led by White Zombie, Whitesnake, and the estate of Rick James. The music major had requested the case be dismissed.  The case will be a major test of how artiste digital royalties are calculated by record labels in the absence of specific contract wording:  The label would like to calculate the royalty based on the same accounting process as a normal (physical) sale – whilst artistes want a share of the income which will almost certainly be a substantially greater share of the revenues.  Almost all pre-internet contracts make no mention of digital releases beyond CD (and many predate CDs) let alone downloads and streaming and artistes have argued that because digital removes label’s manufacturing and distribution costs, the risks of sales are almost non-existent, and when a label makes its catalogue available to a service such as iTunes, it is actually a licensing deal and therefore the higher…

First ‘three strikes’ warnings go out in New Zealand
Copyright , Internet , Record Labels / December 2011
New Zealand

COPYRIGHT Internet, record labels The Copyright notices have been sent to internet services providers in New Zealand, with Telecom confirming it received 42 infringement notices. The notices were all sent out by the Recording Industry Association of New Zealand (RIANZ). Of the 42 notices received by Telecom, 35 were for the download of songs by Rhianna, six were for Lady Gaga tunes and one was for UK recording artist Taio Cruz. ISP TelstraClear has also confirmed that it received 27 notices from RIANZ, although the company would not say what copyrighted material the notices covered. Again, Internet provider Orcon received its first copyright notices, two months after controversial anti-piracy laws came into effect. The “three strikes” law requires internet companies to issue warning notices to customers suspected of illegally downloading copyright content – such as movies or music – if a rights holder requests it. After a third notice, rights holders can bring a case before the Copyright Tribunal, which can fine an offender up to $15,000. The law was passed in April and came into effect on September 1st 2011. http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10763131

EMI v MP3 case judge clarifies his position
Copyright , Internet , Record Labels / December 2011
USA

COPYRIGHT Record labels, internet The judge who oversaw EMI’s litigation against Michael Robertson and his MP3tunes.com service has responded to EMI’s response it submitted to his original ruling where he held that operating (or using) an MP3 locker wasn’t in itself an infringement of copyright and that MP3’s services were covered by the DCMA’s safe harbour provisions, providing MP3tunes.com operated a takedown system, blocking uses from sharing links to unlicensed content whenever a copyright owner complained although  Judge William Pauley was critical about the way MP3tunes.com’s takedown system operated, and of the fact Robertson himself had posted links to clearly unlicensed content.  EMI responded by asking the judge to reconsider some points, where the company argued he had got it wrong, and also to consider more fully what the deal was with pre-1972 recordings which are covered by state laws rather than federal law, and therefore arguably not subject to the DMCA safe harbor provisions. Pauley’s response rejects all of the major’s criticisms. On the pre-1972 issue, Judge Pauley says the safe harbor principles of the DMCA apply to all copyright works in America, oblivious of age, and even when the copyright protection comes from state and not federal law. …

Insane Crowd Posse face multiple sampling claims
Artists , Copyright , Record Labels / December 2011
USA

COPYRIGHT Artistes, record labels CMU Daily reports that Insane Clown Posse are being sued by a company called Entity Productions, which controls the catalogue of Midnight Syndicate, an American group who specialise in gothic-esque instrumental music, often said to soundtrack horror films that never existed. Entity claims that ICP have used uncleared samples of Midnight Syndicate’s music on several of their tracks across three albums. CMU says that the music company first contacted the Insane Clown Posse and their Psychopathic Records label in 2009, after discovering Midnight Syndicate’s music had been used in a number of tracks on two albums by the hip hop duo’s side projects Dark Lotus and Twiztid, as well as on 2004 ICP album ‘Hell’s Pit’, but that it never received a response. Entity is seeking $2.1 million in damages.   www.thecmuwebsite.com

RIAA wants DCMA clarity from Congress
USA

COPYRIGHT Internet, recorded music The USA’s The Digital Millennium Copyright Act (DCMA) has been criticised by many for being slanted far too much in favour of content providers, with the underlying suspicion that film, television, publishing and recording companies were effective in influencing the passage of the Bill. But now the Recording Industry Association of America is taking issue with the DCMA – or rather the US Court’s interpretation of the legislation – saying judges are far too favourable to Internet Service Providers, websites and even consumers. Jennifer Pariser, the RIAA’s litigation chief, told a US law conference: “I think Congress got it right, but I think the courts are getting it wrong,” adding “I think the courts are interpreting Congress’ statute in a manner that is entirely too restrictive of content owners’ rights and too open to [Internet] service providers. “We might need to go to Congress at some point for a fix,” Pariser added. “Not because the statute was badly drafted but because the interpretation has been so hamstrung by court decisions.” RIAA President Cary Sherman complained that the DMCA “isn’t working for content people at all” saying “You cannot monitor all the infringements on the Internet. It’s simply…

Indies look at EMI sale implications
EU

COMPETITION Recorded music Pan-European indie label trade body IMPALA has announced it will formally oppose any attempt by Sony to buy the EMI music publishing company and/or Universal to buy the EMI record labels . Vivendi-owned Universal and the Sony Corp’s combined music assets – including wholly owned Sony Music and publishing JV Sony/ATV – are the two biggest music companies in the world, and IMPALA argues that the move would be detrimental to the music industry as a whole. Interestingly IMPALA seems less resistant to a Warners takeover, saying here that ‘remedies’ could solve any competition issues. The trade body has confirmed that it has asked the European Commission to investigate “all possible options to intervene” should Sony or Universal be successful in bidding for a sizable slice of the EMI business. IMPALA’s Executive Chair Helen Smith said “We have always said our position is no mergers without remedies and we know from 2007 that it is possible to find a solution which is far-reaching enough. Our problem with Universal, however, is that we believe it is simply too big already to be allowed to gain more power and we have the same concerns over Sony buying EMI publishing….

Universal take on Grooveshark
Copyright , Internet , Record Labels / December 2011
USA

COPYRIGHT Internet, record labels Wikipedia describes the US based Grooveshark as the “international online music search engine, music streaming service and  and music recommendation web software application, allowing users to search for, stream, and upload music that can be played immediately or added to a playlist”. But is it legal? Well, the World’s biggest record company thinks not. Universal Music Group has reportedly filed a lawsuit against music service Grooveshark over alleged copyright violations, saying that records show that senior management at Escape Media Group, the company which operates Grooveshark, had led an effort to upload more than 100,000 songs to the music service and claims to have supporting emails and documents, including evidence showing that staff members Sam Tarantino, Paul Geller and Ben Westermann-Clark uploaded 1,791, 3,452 and 4,600 unlicensed songs respectively. Many of those tacks would be presumed to be Universal tracks given the major’s market share in the recorded music sector. Universal is reported to be seeking the maximum in damages of $150,000 per infringing act. Whilst Grooveshark has negotiated direct licenses with EMI and numerous independent labels and aggregators it has no deal with Universal – but as the service allows user to upload music so UMG tracks…

Popovitch estate sues for Bat Out Of Hell rights
Contract , Copyright , Record Labels / November 2011
USA

CONTRACT / COPYRIGHT Record labels CMU Daily reports that the estate of the late record label exec Stephen Popovich is trying to seize ownership of the sound recording copyrights in the iconic Meat Loaf album ‘Bat Out Of Hell’, currently owned by Sony Music. Popovich, whose Cleveland International Records released ‘Bat Out Of Hell’ in 1977 in partnership with the exec’s former employer Epic Records, had various run ins with Sony. Sony has owned Epic from the late 1980s onwards. Popovitch claimed that the major frequently misreported royalties and underpay him his share, and he also sued when Sony failed to fulfil a contractual commitment to include the Cleveland International logo on all releases of the album. A 1998 lawsuit ended in an out of court settlement, while in 2002 litigation – in part based on allegations Sony had breached the 1998 agreement – resulted in  Popovich being awarded $5 million in damages Popovich died in June 2011and his estate has taken up the ongoing battle with Sony. In a new lawsuit the estate claims that Sony continues to violate the terms of its agreements with Cleveland International Records, accusing the major of a number of fraudulent acts to underpay…

CD bootlegger gets suspended jail sentence
Copyright , Internet , Record Labels / November 2011
UK

COPYRIGHT Record labels, online Dave Finney, A 60 year old man from Barnsley, South Yorkshire has been given a suspended sentence for selling pirated CDs online. Finney downloaded music from the internet, burned it to CDs, and then sold them via the web, with very little attempt to hide his tracks.  After the BPI discovered the operation, police seized his computer equipment and found he had illegally copied more than 200,000 items although despite the high quantities of copies he was making , it is reported that payments taken via PayPal amounted to just over £12,000. The judge hearing the case accepted that there was a ‘degree of naivety’ about Finney’s piracy pursuits, but, he said, given the number of tracks illegally copied, and the fact the venture ran for four years, a custodial sentence was required, albeit a suspended one. Finney, previously of good character,  was given a nine month suspended jail term, and ordered to wear an electronic tag and adhere to a night time curfew for four months. Money and equipment associated with the piracy operation will also be confiscated.

Kanye and Jay-Z face sampling claim
USA

COPYRIGHT Music publishing, record labels US musician Syl Johnson has filed a lawsuit against Kanye West and Jay-Z over the use of a sample of his song ‘Different Strokes’ on a track on the duo’s collaborative album ‘Watch The Throne’. Johnson’s record label Numero Uno had previously threatening legal action over the sample claiming that West’s label Def Jam had got in touch about licensing the track for sampling on West’s previous album ‘My Beautiful Dark Twisted Fantasy’, but that no agreement had been reached, and that no talks had ever taken place regarding ‘Watch The Throne’. The lawsuit, filed last week, also names Def Jam, Universal Music and Roc-A-Fella Records as defendants. Billboard notes that previous legal action taken by Johnson against Cypress Hill relating to an unapproved sample was unsuccessful because the track in question dated from before 1972, and judges ruled that the sound recording rights the singer said he owned were not therefore protected by federal law. As ‘Different Strokes’ was released in 1967 the new lawsuit specifically relies on Illinois state law, where the lawsuit was filed. Syleena Johnson, daughter of Syl, has commented on her father’s lawsuit against Jay-Z and Kanye West in an…

Resale Rumble in the (Digital) Jungle – can you legally re-sell digital music?
USA

COPYRIGHT Internet, record labels, music publishing For some time now there have been articles and comments about the legality of ‘re-selling’ legally acquired MP3s and other digital download music and video files by consumers. Now a new platform called ReDigi has been launched with exactly this activity as its core business model, offering a new model where consumers can legally buy and sell ‘second hand’ downloads. TechCrunch offers this opinion, accepting that there are a number of legal points to be considered (not least when bearing in mind the tumultuous and lawsuit-heavy history of the sale and distribution of music on the internet): “With the rise in the digital distribution of music, movies, software, and more, there has come surfeit legal confusion over whether or not the so-called “first sale doctrine” applies to digital transactions. Basically, under the first-sale doctrine, once the person who owns the rights to, say, a CD sells a copy of that work, the owner relinquishes control of that individual copy. Once that copy is in a new user’s hands, they own it and can do with it as they please, including reselling, lending, or giving it away. However, Some have claimed that the first-sale doctrine does not apply to…

Elvis Estate sues for unpaid royalties
Artists , Contract , Record Labels / October 2011
Germany

CONTRACT Artists, record labels Elvis Presley’s estate is suing Arista Music in Germany for $9m (£5.6m) in unpaid royalties dating back to 2002 for ringtones, downloads and apps. The lawsuit also alleges the label (then RCA) exploited Presley in a $5.4m (£3.3m) 1973 “buyout” of his catalogue. It claims that, as a result of the contract, Presley went on to receive just $10 (£6) a year for worldwide rights to each of more than 1,000 recordings and the estate is seeking  a share of future revenue. It seems that under the 1973 agreement, RCA bought the rights to Presley’s back catalogue – with the $5.4m fee split evenly between the singer and his manager, Colonel Tom Parker – parker famously took a 50% management commission. The Presley estate says the singer’s annual payment for each song of about $10 is “conspicuously disproportionate” to the revenue RCA made from master recordings. As well as seeking $9m (£5.6m) in unpaid royalties, the estate wants a share of future revenue until 2023 – 50 years after the deal was struck and the year when Arista’s copyright expires under German law. The estate says it wants “equitable remuneration” asking the court to redress the deal…

Tenenbaum damages reinstated
Copyright , Internet , Record Labels / October 2011
USA

COPYRIGHT Internet, record labels In the see-saw world of US copyright damages for illegal downloading and file-sharing, a federal appeals court has reinstated a ‘hefty’ $675,000 judgment against Boston University post graduate student Joel Tenenbaum, who admitted to downloading music on Internet file-sharing sites after a judge had reduced the previous jury award at the same level by 90%. The US Circuit Court of Appeals for the First Circuit rejected Tenenbaum’s assertions that he did not violate copyright protection laws because he was a consumer, not someone looking to make a profit from downloading. The court also vacated  the US District Court’s decision to reduce the total charges to $67,500, because Judge Nancy Gertner found the original figure was unconstitutionally excessive. The court instead reinstated the jury’s figure of $675,000 criticising Judge Gertner for disregarding procedure in reducing the award. The case involves 30 infringements of copyright law which attracts maximum statutory damages of $150,000 per violation, or a potential maximum in this case of $4.5 million. In the other leading case involving single mum Jammie Rasset Thomas (Capitol Records v. Thomas-Rasset) Judge Michael Davis rejected a jury’s damages award of $1.9 million through both remittitur and on constitutional grounds, and…

EMI loses German ISP blocking case
Copyright , Internet , Record Labels / October 2011
Germany

COPYRIGHT Record labels, internet Following on from a fairly unsuccessful attempt to block digital cloud locker service MP3Tunes in the USA, EMI has now failed to force a German ISP to block access to file-sharing service eDonkey. The court in Cologne ruled that the net firm HanseNet was not liable for the actions of its customers in accessing Russian illegal file swapping services. In the UK in 2011 the Motion Picture Association was more successful, with the High Court granting an injunction ordering BT to block access to Newzbin2, an online community that provides links to manifold unlicensed content, and which relocated its base to Sweden after losing an earlier infringement lawsuit.  In the L’Oreal v Ebay case (2011) the European Court of Justice, looking primarily at trade mark issues, decided that a service provider such as eBay could be liable for users infringements under national law, unless it can rely on an exemption from liability provided by Directive 2000/31 on electronic commerce. The ECJ explained that such an exemption would be subject to the following conditions being met: (i) the operator does not play an active role, i.e., it does not know or control the data provided by its customers; (ii) a diligent economic…

EU agrees to term extension for sound recordings
Copyright , Record Labels / October 2011
EU

COPYRIGHT Record labels After a longish silence in Europe, the idea of copyright term extension for sound recordings was suddenly well and truly back on the agenda in Europe and the extension of the copyright term for sound recordings from 50 years 70 years was agreed by the EU on the 12th September, following an earlier meeting of the European Union’s Committee of Permanent Representatives. The European record industry has been lobbying for some time for the sound recording copyright term to be extended, noting the difference between European and US copyright terms (the US has a potential 95 year term for sound recordings), and difference with the term enjoyed by music publishers and songwriters  – the copyright term in the melody and lyrics of a song is life of author plus 70 years. Andrew Gower’s 2006 Report on IP was seemingly unconvinced by the arguments put forward by the record labels but the last (Labour) Government seemed to support term extension, mainly based on pleas to protect the pensions of ‘aging session musicians’ – and Cliff Richard. The matter moved to Europe with mixed results and whilst both the European Commission and European Parliament backed an extension, in 2009…

Syl Johnson considers action over Kanye and Jay-Z sample
Artists , Copyright , Record Labels / September 2011
USA

COPYRIGHT Record labels, artists Soul singer Syl Johnson and archive label Numero Uno are threatening legal action against Jay-Z, Kanye West and Universal’s Def Jam label over the use of a sample on the hip-hop duo’s recent collaborative album ‘Watch The Throne’ with Numero Uno saying thsat the pair sampled Johnson song ‘Different Strokes’ on their track ‘The Joy’ without permission. It adds that it had been in talks with Def Jam about West using the sample of his previous album ‘My Beautiful Dark Twisted Fantasy’, but could not reach an agreement. There had been no talk, the music company adds, of the same sample being used on ‘Watch The Thone”.

Syco settles Penguin claim
UK

COPYRIGHT Music publishing / record labels Leona Lewis and her label, Simon Cowell’s Sony imprint Syco, have settled out of court with Swedish producer Avicii and Avicii’s label the Ministry of Sound over the use of his instrumental track, ‘Penguin’ in Lewis’ new single, ‘Collide’.  An application for an injunction to prevent the alleged unauthorised use (which was disputed by Syco) was due to be head in the High Court mid-August but a settlement was reached and Lewis’s track will be released on the 4th September as planned  In a statement, Syco said: “It is announced today that Leona Lewis and Avicii will work together on the forthcoming single of ‘Collide’. ‘Collide‘ will be released on 4 Sep. Since getting its first radio play in the UK it has received rave reviews and is already topping club charts across the country”. Avicii said via Twitter: “We’ve finally come to an agreement with Leona on all the issues. So happy to move on and focus on hit making!” No further details of the settlement have been given See Music Law Updates August 2011 Ministry of Sound claims Leona’s Collide samples Avicii’s Penguin

Major artistes look to reclaim recordings and songs: Springsteen and others soon eligible to “recover song rights”
Artists , Copyright , Record Labels / September 2011
USA

COPYRIGHT Artistes, record labels ARTICLE LINK:  An interesting article in the New York Times notes that since their release in 1978, hit albums like Bruce Springsteen’s “Darkness on the Edge of Town,” Billy Joel’s “52nd Street,” the Doobie Brothers’ “Minute by Minute,” Kenny Rogers’s “Gambler” and Funkadelic’s “One Nation Under a Groove” have generated tens of millions of dollars for record companies. But thanks to a little-noted provision in United States copyright law, those artists — and thousands more — now have the right to reclaim ownership of their recordings, potentially leaving the labels and music publishers out in the cold.  Other artistes currently looking to regain rights include Bryan Adams, Bob Dylans, Tom Waites, Kris Kristofferson, Kool & The Gang and Fleetwood Mac. When copyright law was revised in the mid-1970s, musicians, like creators of other works of art, were granted “termination rights,” which allow them to regain control of their work after 35 years, so long as they apply at least two years in advance. Recordings from 1978 are the first to fall under the law, but in a matter of months, hits from 1979, like “The Long Run” by the Eagles and “Bad Girls” by Donna Summer, will…

Mixed results for EMI in MP3tunes case
Copyright , Internet , Record Labels / September 2011
USA

COPYRIGHT Internet, record labels In a potentially highly damaging day for the US content industries, the New York district court has ruled that digital music lockers don’t need licences from record labels to store recorded music and that the operators of digital locker services are protected by the ‘safe harbor’ provisions of the Digital Millennium Copyright Act, something that will bring cheer to both Amazon and Google who launched their cloud storage services without licences from record labels or music publishers, The New York District Court handed Capitol Records, part of the EMI Group, a mixed verdict in their lawsuit against MP3tunes, the San Diego music locker service founded by technology entrepreneur Michael Robertson. The lawsuit, filed in November 2007, contended that MP3tunes (and Robertson personally) violated copyright law when they allowed users to find music online and add songs to an online locker service that let them listen to those songs from any Internet connection. In its defence MP3tunes argued that it qualified for a so-called “safe harbor” exemption under the Digital Millennium Copyright Act, Judge William H. Pauley, III, in the U.S. District Court for the Southern District of New York ruled that MP3tunes didqualify for safe harbor exemption when it responded to…

Down Down, Deeper and Down
Artists , Copyright , Internet , Record Labels / September 2011
USA

COPYRIGHT Internet, record labels, artists What do Justin Bieber, Rhianna, Lady Gaga , Beyonce  and Shakira  have in common? Well you can make your own minds up about their music, but they are undoubtedly some of the biggest pop stars on the global music jukebox at the moment – and NONE of them are signed to iLCreation. Why do I mention iLCreation – well this entity managed to get videos by Bieber, Gaga, Shakira, Rhianna, Beyonce and others including Bruno Mars and Miley Cyrus taken down from YouTube. Seemingly rather easily. Many of the artistes who whose videos were targeted had performed at the 2011 MTV Video Music Awards last Sunday and according to Webpronews an unknown individual using the name iLCreation submitted a copyright claim on numerous videos including Miley Cyrus’ “Party In The USA”,  Rhianna’s “What’s My Name” and. Lady Gaga’s “Bad Romance” and following its standard procedures, YouTube pulled down the video including Bieber’s entire Vevo channel, it seems without requiring any form of verification that the claimant had the right to request the take-down. Vevo initially posted a statement that explained, “Someone is making false copyright claims against the Justin Bieber and Lady Gaga channels and YouTube has blocked…

China seeks to order online music
Copyright , Internet , Record Labels / September 2011
China

COPYRIGHT Internet, record labels The Chinese Ministry of Culture has ordered domestic websites to cease streaming and download services for a list of over 100 songs which the Ministry has not authorised for the Internet saying “A website that is engaged in the operation of an online music product must go through procedures with the Ministry’s department of cultural markets” – the ministry operates a review procedure all foreign tracks and operates a registration system for domestic product. Li Jian, an official told reporters “the procedure is a bid to strike out copyright infringement and refine the order of the online cultural market”. Domestic search engines and websites have been told to review and cancel services dealing with the list of (unapproved) tracks, which features Lady Gaga and the Backstreet Boys by September 15th or face investigation and penalties. The registration system means that whichever website gains the first permission to use the track can then pass that permission on – other websites have to go to the first registrant for permission. Record industry executive have pointed out that they do not agree that once they have licensed a website to sell their music it can re-authorise others, that the…

Ministry of Sound claims Leona’s Collide samples Avicii’s Penguin
UK

COPYRIGHT Music publishing / record labels The Ministry Of Sound has hit back at Simon Cowell’s Syco record company after the Sony label seemingly claimed that the MOS dance label had cleared the use of one its tracks as the backdrop to  X-factor winner Leona Lewis’s new track‘Collide’, which when premiered on BBC Radio 1 caused something of a buzz as fans commented that the new track was identical to the instrumental track  ‘Penguin’ by rising superstar DJ Avicii. ‘Penguin’, which has enjoyed airplay on various specialist dance shows, is due to be released with vocals under the name ‘Fade Into Darkness’ by MOS. Syco reportedly told reporters that there was “zero legal case to answer” because “Avicii is already credited as a songwriter on Leona’s song” adding “it’s a case of sour grapes from Ministry Of Sound”. Responding to reports about Syco’s response, Avicii took to Twitter this weekend to say: “To answer everyone, the first time I heard Leona Lewis ‘Collide’ was today. I didn’t produce it and neither me nor my manager could approve it… I’m just upset for someone taking credit of our idea before I had a chance to release it… And for the time and effort that has…

Jammie damages back down again
Copyright , Internet , Record Labels / August 2011
USA

COPYRIGHT Record labels, internet The long running Recording Industry of America (RIAA) v Jammie Thomas-Rassett court case has taken yet another twist, this time in the defendant’s favour, when a US Judge reduced jury awarded damages of $1.5 million down to $54,000. Thomas shared 24 songs illegally using Kazaa and was sued by the Recording Industry Association Of America. At first hearing, Thomas was ordered to pay $222,000 to the record industry in damages. This decision was then set aside and a second trial was held and the jury hearing the case ordered Thomas, a single mother of limited means, to pay $1.92 million in damages. A judge subsequently ruled the jury had got it wrong, and slashed the damages figure to $54,000. The RIAA was willing to accept that figure but Thomas refused. And so the RIAA appealed the judge’s amendment of the original jury decision, sending the case back into court for a third time, where the jury awarded the record industry $1.5 million in damages. That decision has now been overturned and  the judge hearing the case has again ruled that the jury were wrong to order Thomas to pay the sum of $1.5 million saying this…

When I die, what happens to my music?
USA

COPYRIGHT  Record labels, music publishers Article Link:  By CONNOR McKNIGHT at BusinessInsider You may think you know what happens to your music collection when you finally go to the big cloud in the sky — but if you purchased that music digitally, the answer is way more complicated than where your sofa will end up. Digital media ownership is different. There are decided benefits to the shift from physical ownership — like the ease of sharing and discovering new music, and the ability to carry an impossible amount of it with you everywhere you go — but also drawbacks. http://www.businessinsider.com/when-idie-what-happens-to-my-music-2011-7

SpaceBomb Music Law
USA

COPYRIGHT Record labels, music publishing, artistes Article Link:  By MATT RAWLS A US article aimed at entry level artistes that very clearly explains how record deals can work: royalties, advances and recoupment are all explained, as are royalty reducers. There is also a section on music publishers and songs.http://rvanews.com/entertainment/spacebomb-music-law-102/47902 More on SpaceBomb’s operations here  http://spacebombrecords.com/

Deconstructing the ownership rights of Nobody Canna Cross It
Jamaica

COPYRIGHT Music publishing, record labels, artistes Article Link: By CAMILLE ROYES in the Jamaica Observer An interesting article from entertainment Attorney Camille Royes from the Jamaica Observer looking at the legalities of ‘mash ups’ focussing on a recent mashup of a TVJ news interview on the plight of people living in a community in rural St Andrew called Nobody Canna Cross It, or The Bus Can Swim which was produced by a university student, DJ Powa and which has now gone viral and is now on-sale online.   http://www.jamaicaobserver.com/columns/Deconstructing-the-ownership-rights-of-Nobody-Canna-Cross-It_9148104 And more on master sampler and mash up producer Gregg Gillis  (aka Girl Talk) herehttp://www.ottawacitizen.com/sampler/5055755/story.html

UMG face more artiste digital royalty claims
Artists , Contract , Record Labels / June 2011
USA

CONTRACT Artistes, record labels Hot on the heels of FBT’s appellate court victory determining the Eminen producers a share of licensing income from digital sales, and another action launched in the same basis launched by the estate of Rick James, Universal Music Group has been hit with a class action lawsuit, filed by artists Rob Zombie, White Zombie, Whitesnake and Dave Mason, who allege they are owed what may amount to millions of dollars in additional digital music royalties, All of the lawsuits argue that record labels violated their contracts by considering a digital song a “sale” rather than a “license” of the recording and therefor arguing to move the accounting away from the labels preferred calculation of a percentage paid on the sale price (subject to royalty reducers) to the far higher rate of a 50% cut of profits for artists. The new lawsuit against Universal alleges the label “analyzed internally the financial consequences of its misconduct and cast it in terms of the additional profit to be made by UMG by avoiding its contractual obligations. The first action in this area we saw was the Allman Brother action against Sony BMG which again alleged that the record label…