Copyright Fight Ensues Over Rebecca Black’s ‘Friday’
USA

COPYRIGHT/CONTRACT Music publishing, record labels The internet viral hit of a 13 year old called Rebecca Black singing a song called “Friday” has sparked potential new litigation about who actually owns the sound recording – and the song. Black’s parents paid a company called Ark Music Factory (AMF) to produce a music video of a song that was written by Clarence Jey and Patrice Wilson – who run AMF. Here’s the seeming legal conundrum – no one quite seems to know who owns what.  Jey and Wilson would have held the original rights to the composition as authors, while Black probably holds the copyright on the recording itself (though, there may be some questions about the musicians who played on the track). But its al dependent on the terms of the contract which was signed between the Blacks and AMF – and I am guessing behind that, the contracts that AMF itself has with Jey, Wilson and recording artists who put together the recording as well as the video director. A Rolling Stone Report says that “the agreement that Black signed with Ark in November stipulates that Black has 100 percent ownership and control of ‘Friday,’ including the master recording and the music video.” Seeming…

Rick James estate to test the FBT (‘Eminen’) court ruling
Artists , Contract , Record Labels / May 2011
USA

CONTRACT Artists, record labels Administrators of the Estate of Rick James are planning to test the extent of Universal’s unsuccessful defence to the claim in FBT Productions v Interscope where the court ruled that the music major’s relationship with services like iTunes should be treated as a licensing arrangement rather than a record sales relationship akin to that record companies have with traditional retailers meaning the artist (or here producer) was entitled t a large share of royalties. It’s an important distinction because many record contracts give artists a bigger cut of royalties when they are generated by licensing deals rather than record sales. The distinction seemingly applies to many contracts that pre-date the digital revolution, some of which still generate large revenues. The lawsuit says: “By this lawsuit, the plaintiff seeks to compel UMG to account to and pay its other recording artists and music producers (ie, those not directly involved in the FBT litigation) their rightful share of the licensing income paid to UMG for downloads and mastertones of the recorded music licensed by UMG to these entities”. Commenting on the action, Jeff Jampol, manager of the James estate, told Billboard: “In assessing and watching the Eminem case, the original…

Dre wins royalties claim against Death Row
Artists , Contract , Record Labels / May 2011
USA

CONTRACT Artists, record labels Dr Dre has won a royalties lawsuit against Death Row Records in relation to his 1992 debut album ‘The Chronic’, Dre sued the label over digital sales of the album arguing that Death Row did not have permission to sell ‘The Chronic’ digitally, while also claiming he hadn’t been paid proper royalties on the record since 1996.  The Federal Court agreed, saying that the digital release breached the label’s agreement with the rapper as it needed Dre’s permission and District Judge Christina Snyder ordered that 100% of the profits from digital sales of ‘The Chronic’ should go to Dre. A separate part of the same lawsuit, claiming Death Row was guilty of false advertising and trademark infringement for re-releasing the physical version of ‘The Chronic’, was dismissed last year. http://www.mtv.com/news/articles/1662444/dr-dre-the-chronic-lawsuit-death-row-records.jhtml

Girl Talk scales things back
Copyright , Record Labels / April 2011
USA

COPYRIGHT Record labels ARTICLE LINK:  Gregg Gillis’ Girl Talk project is the epitome of collage music. He composes songs using fragments of other people’s songs. Every sound is borrowed from somewhere and someone else. On his latest collection — “All Day,” released for free online — the track “This Is the Remix” opens with a nip from Justin Timberlake’s “Sexyback,” the recognizable rhythmic melody from Bananarama’s “Cruel Summer,” some grunts from Lady Gaga’s “LoveGame,” plus rapping from Mr. Cheeks’ “Lights, Camera, Action.” That’s the first 48 seconds of the six-minute song. After that, it’s Lil’ Kim, Genesis, the Jackson 5, George Michael, Beastie Boys, U2, Kid ’n Play, INXS, Method Man, Billy Squier, on and on. http://www.suntimes.com/entertainment/conner/4095883-417/girl-talk-scales-things-back.html

Judge Limits Potential LimeWire Copyright Payout to $1.5 Billion
USA

COPYRIGHT  Record labels, music publishing, internet   Following on from the settlement between LimeWire and US music publishers in the USA, In New York federal District Judge Kimba Wood has now limited the potential copyright infringement damages that the now shuttered file-sharing service could have to pay record labels to $1.5 billion. Judge Kimba Wood sided with LimeWire, which had argued that the damages should be based on an ‘single’ infringement for each sound recording shared on the service – rather than on the number of times the work had been illegally downloaded or shared by each LimeWire user. LimeWire could face statutory damages of between $7.5 million and $1.5 billion; US copyright law provides for statutory damages of between $750 and $150,000 for copyright infringement. www.ilmc.com

Closing the window – but have the little birds flown?
Copyright , Internet , Record Labels / March 2011
UK

COPYRIGHT Record labels, internet Readers of this blog may or may not be aware that almost ever since radio, and then television, became the music industry’s most important marketing tools, record labels and artists have used what seems to be an ever extending period between releasing a track to the media and actually selling discs (and now downloads) to the consumer to promote the song and the sound recording. For the last few years, as rampant peer to peer file swapping and illegal downloading  seriously decimated record label’s profits, many commentators have warned the labels that the ‘I want it now’ generation – brought up in a digital world of instant gratification – Google, Youtube, Spotify, We7 – simply won’t play the waiting game, however hard the labels try. Now Sony and Universal have finally decided to give in – by making legal downloads available on the same day that tracks hit the radio airwaves. With labels have sometimes waiting up to six weeks between starting promotion and releasing tracks to customers the writing was definitely on the wall for the practice – enhanced by the idea that if the digital customer can’t buy then they might just might ‘steal’…

Google join the EFF in MP3tunes’s battle against EMI
USA

COPYRIGHT Internet, record labels, music publishers Google have reportedly filed a paper with the New York District Court in support of MP3tunes.com in its legal battle with EMI, joining The Electronic Frontiers Foundation who had previously filed a brief of Amici curiae in support of the company and its founder Michael Robertson. MP3tunes provides an online music “locker” service where users can store their music and access it from computers and mobile devices. MP3tunes also operates a music search engine called Sideload where users can find music tracks on other sites and then put them in their locker. EMI says the service makes mass copyright infringement easy by letting users upload music they didn’t buy and providing links to online songs that users can then “sideload” into their library and EMI claims that digital locker service such as MP3tunes infringes copyright unless  licensed by rights holders . Robertson unsurprisingly argues that EMI’s position is an incorrect interpretation of copyright law saying that MP3tunes is shielded from liability by the “safe harbor” provisions of the Digital Millennium Copyright Act – because it doesn’t encourage copyright infringement and promptly removes infringing content when notified but EMI. Applying for summary judgment, EMI said that “This case…

EU Commissioner calls for one-stop digital licensing
EU

COPYRIGHT Music publishing, record labels Neelie Kroes, the EU’s Commissioner, has called on content owners of Europe to construct a “simple, consumer-friendly legal framework” for making digital content available across the Union. Speaking at an event in London alongside the bosses of Amazon and BT, and the government’s culture minister Ed Vaizey, Kroes said that the traditional content industries had not developed their licensing models fast enough to cope with the new demands of internet services.  She told the event: “Digitisation has fundamentally changed content industries, but licensing models simply have not kept up with this. National licensing can create a series of Berlin cultural walls. The price, both in pounds and frustration, is all too real, as creators are stifled and consumers are left empty-handed. It is time for this dysfunction to end. We need a simple, consumer-friendly legal framework for making digital content available across borders in the EU”.

Scottish bootlegger jailed
Copyright , Record Labels / March 2011
UK

COPYRIGHT Record labels, film industry A Scottish father of seven has been jailed for sixteen months after admitting to making and selling illegal copies of albums and movies between 2007 and 2009. Police found 4000 fake CDs and DVDs worth £200,000 when they raided Paul McPhillips’ Edinburgh home. He had been selling the bootlegs online. Judge Frank Crowe in the Edinburgh Sheriff Court said whilst he understood that the operation had originally been small scale, the scale McPhillips’ piracy operation was sufficient that prison was “the only option”. The Minister for Intellectual Property, Judith Wilcox, welcomed the ruling, adding that the government remained committed to the principle of custodial sentences for those involved in criminal copyright infringement. http://www.thecmuwebsite.com/article/scottish-bootlegger-jailed/

US Live and recorded music sectors both suffer sharp decline
Artists , Copyright , Live Events , Record Labels / February 2011
UK
USA

COPYRIGHT / ECONOMIC NEWS Live sector, artists, record labels Ticketnews.com reports that US concert ticket sales dropped by double digits in 2010, as economic concerns, fan apathy, over exposure of acts and resistance to high ticket prices caused artists and promoters to cancel shows or entire tours. According to figures from Pollstar, combined ticket sales for the Top 50 North American tours generated $1.69 billion in 2010, down 15 percent from $1.99 billion in 2009. The Top 50 worldwide tours generated $2.93 billion in 2010, a drop of 12 percent from $3.34 billion the previous year. The total number of tickets sold to North American concerts dipped to 26.2 million, a 12 percent drop from 29.9 million in 2009. In addition, the show count was also less at 2,114, a 3 percent decrease, and the average cost of a show fell by $1.55, or 2 percent, primarily due to heavy discounting by Live Nation and others in an 11th-hour attempt to move slow-selling tickets. At the worldwide level, the total number of tickets sold decreased 15 percent to 38.3 million in 2010, down from 45.3 million in 2009. The show count dropped 8 percent to 2,650, but unlike in North America,…

Universal fails to stop re-sale of promo CDs
Copyright , Record Labels / February 2011
USA

COPYRIGHT Record labels The U.S. Ninth Circuit Court of Appeals has ruled that consumers have a right to re-sell “promotional” CDs distributed for free by record labels to radio stations, music journalists and others. The court upheld a lower court’s 2008 finding in favor of Troy Augosto, an eBay re-seller of promo CDs who was sued by Universal Music Group (UMG) for copyright infringement. Universa; had argued that the use of a label stating “For Promotional Use Only, Not For Sale” on the discs constituted a term of a “license” of the CDs, meaning they could recall them at any time and prohibit their resale. The Appelate court was having none of this and  found that, “UMG transferred title to the particular copies of its promotional CDs and cannot maintain an infringement action against Augosto for his subsequent sale of those copies.” The Court added that Universal did not require recipients of the promo CDs to agree to the “not for sale” condition, nor had it demanded return of the CDs if recipients did not consent. Copyright’s “first sale” doctrine prevents a copyright owner from restricting further sales or uses of a work once title has passed. Corynnew McSherry, from…

Pink Floyd and EMI settle down
Artists , Copyright , Record Labels / February 2011
UK

COPYRIGHT Artists, record labels It seems the legal war between EMI and Pink Floyd has run its course with the parties now agreeing to a new five year deal – and it seems EMI will be able to sell individual Pink Floyds tracks as digital downloads. EMI’s Roger Faxon said: “Pink Floyd are one of the most important and influential bands of all time and I know I speak for everyone at EMI when I say that it is a privilege to have the opportunity to work with them. We’re looking forward to continuing to help the band reach new and existing fans through their incredible body of work”. http://www.cityam.com/news-and-analysis/emi-reaches-five-year-deal-pink-floyd-after-lawsuit

PPL to make charities pay up!
Copyright , Record Labels / February 2011
USA

COPYRIGHT Record labels Christmas is over – and from January 1st 2011 Phonographic Performance Limited, the record and recording artists collection society, have secured the removal of an exception in music licensing rules which enables PPL to collect from charities and not-for-profit sector. The sector had enjoyed an exemption from the Copyright Designs and Patents Act 1988, although this did not include an exemption from PRS payments which are collected on behalf of publishers and songwriters. PPL has extensively lobbied to have the exemption for music use in village halls, community halls, student nightclubs and council buildings to be removed and bring the UK in to line with European law (the European Copyright Directive and the Copyright and Related Rights Regulations 2003) and provide remuneration for performers and record companies. PPL and VPL chairman and chief executive Fran Nevrkla told Music Week “From a business point of view the countless artificial exceptions and exclusions in existence gave the excuse to many licensees to avoid payment for use of sound recordings” and Nevrkla added, “On my part I was not prepared to accept a situation which meant that the rights of our constituents, both the performers and the record labels, were being constantly downgraded”….

Major labels must face internet price fixing case
Competition , Record Labels / February 2011
USA

COMPETITION Record labels This is a case that has been bubbling under for a while now and one I have kept my eye on. Did the record labels set up MusicNet and PressPlay (remember them?) to try and enforce their control over the distribution of music on the internet and fix prices  ….. well, the US Supreme Court has rejected an move by the major record labels’ to block a lawsuit lodged by consumers who claim the majors colluded to fix prices on music sold on the Internet. Universal Music Group, Sony Music, Warner Music and EMI had asked the Supreme Court to block the lawsuit, after a federal appellate court in New York agreed with a lower court’s ruling that sufficient evidence existed for the lawsuit to proceed. The now five year old lawsuit (Starr v Sony) alleges the labels charged unreasonable rates for songs, and unreasonably imposed restrictions on consumers transferring songs to portable players. It also alleges the labels colluded to set a base price of 70 cents per song for selling their songs. In 2008, a federal judge dismissed the original lawsuit, ruling the plaintiffs had not presented enough evidence for a anti-trust hearing  but on…

Early Law Hadopi results disappoint French music industry
Copyright , Internet , Record Labels / January 2011
France

COPYRIGHT Record labels, internet In October France’s “Creation and Internet” law formally went into effect but Jared Moya at ZeroPaid reports that it seems that it has yet to warn as many suspected file-sharers as the music industry had hoped. The French “three-strikes” measure to fight P2P in that was first proposed back in June of 2008. The Director General of the French record labels trade body David El Sayegh said the music industry has already been identifying and submitting to the  the HADOPI Agency the IP addresses of more than 25,000 suspected file-sharers per day, and recently raised their daily submission to 50,000, but it appears that HADOPI is so far only notifying a mere 2,000 IP addresses per day – just  4% of what the music hoped for. The Ministry of Culture had said that it hopes to send at least 10,000 warning letters per day. http://www.zeropaid.com/news/91562/french-three-strikes-warnings-far-below-music-industry-hopes/

Music fans – purchasers or parasites? The BPI decides
Copyright , Internet , Record Labels / January 2011
UK

COPYRIGHT Record labels, Internet Around 7.7m people have illegally downloaded music this year in the United Kingdom according to research commissioned by the BPI, the British record industry’s trade association. Its latest report suggests more than 1.2bn tracks were pirated or shared, costing the industry £219m. The BPI’s research, based on internet users’ habits, claims that more than three quarters of music downloaded in the UK is illegally obtained, with no payment to the musicians, songwriters or music companies producing it. The research shows that 28.8% of the UK online population are involved in illegal downloading although I suspect from my own research that with the under 25 age group this is probably more like 90% – although getting music for ‘free’ is just one of a myriad of reason people use illegal sites and swap files – sometimes they just want to sample new music before buying, sometimes they are finding new bands, some support bands through paying for live shows and merchandise etc. Geoff Taylor, Chief Executive of the BPI said illegal downloading was becoming a “parasite” despite a digital music market in the UK which is served by 67 legal downloading services. The report said that illegal…

Bluebeat’s Beatles ‘simulations’ infringe copyright
Copyright , Internet , Record Labels / January 2011
USA

COPYRIGHT Record labels, internet A US federal judge has found that BlueBeat.com, the website that began selling Beatles songs online for 25 cents each in 2009, guilty of copyright infringement. BlueBeat, which is also home to a streaming service, had argued that it actually owned new copyrights as they had created “psycho-acoustic simulation” versions of the Beatles recordings but U.S. District Judge Josephine Staton Tucker rejected this claim in her ruling last week saying “[The] obscure and undefined pseudo-scientific language appears to be a long-winded way of describing ‘sampling,’ i.e. copying, and fails to provide any concrete evidence of independent creation”. It is expected that the owners of the Beatles’ copyrights, including EMI and others will now seek monetary damages on those illegal distributions – Bluebeat said that 67,000 tracks had been downloaded before the court ordered a stop. The Beatles’ catalogue is now (finally) available for legal digital purchase on Apple’s. http://www.rollingstone.com/culture/gear-up/blogs/November29/241500/238012

Pink Floyd has ringtone decision affirmed on appeal
Artists , Contract , Record Labels / January 2011
UK

CONTRACT Artists, record labels The Court Of Appeal has upheld a High Court ruling against EMI which will determine the way Pink Floyds is sold online and how the label should account to the band. Pink Floyd had objected to the   sale of the band’s albums on a track-by-track basis on digital services like iTunes and claimed that their 1967 contract with EMI prohibited the record company from selling their music in this way. The dispute focused on a clause in that contract which referred to EMI not selling any Pink Floyd records as ‘single records’ without the band’s permission. EMI’s legal team (perhaps optimistically) argued that the use of the word “records” in that clause only referred to physical records – ie vinyl or CDs – and not digital albums or singles. The Floyd’s lawyers argued that that was not in the spirit of the original agreement, and that the clause referred to the sale of all of the band’s recordings, not just those on physical products. In March a High Court judge sided with Pink Floyd (at a private hearing). EMI sought to appeal that judgment, but the Court Of Appeal yesterday dismissed their case meaning the earlier…

Jamie Thomas-Rasset file-sharing damages back up to $1.5 million
Copyright , Internet , Record Labels / December 2010
USA

COPYRIGHT Record labels, internet In her third trial on copyright infringement charges for sharing 24 songs online, a US jury has ordered Jammie Thomas-Rassett pay $1.5 million in damages, or $62,500 per song. In the previous trial, the judge reduced a jury award from $1.92 million to $54,000. Both sides appealed that amount, which eventually led to a third trial solely on the matter of damages. Thomas was one of the thousands of people sued by the Recording Industry Association of America for file-sharing but unlike many who settled, she chose to fight her case in court, but lost twice but the question pf the quantum of damages remains.  US copyright law allows infringement damages of  between $750 and $150,000 per infringement. In the first trial Thomas was ordered to pay $9,250 per song, or $222,000 in total. After the trial judge held that he may have erred in law, a second jury awarded the record industry $1.92 million in damages. But Judge Michael Davis said that level of damages was totally inappropriate for the sharing of 24 songs on the internet and he cut the payment to a total of $54,000. The RIAA, while rejecting Davis’s damages ruling, offered…

Pirate Bay four resentenced on appeal – fines up, but custody down
Copyright , Internet , Record Labels / December 2010
Sweden

COPYRIGHT Internet, record labels Three of the four defendants in the Pirate Bay trial have had their custodial sentences reduced; Fredrik Neij will now serve ten months, Peter Sunde eight months and Carl Lundstrom four months (all reduced from original sentences of twelve months). Gottfrid Svartholm who claimed he was too ill at the time of hearing will have his sentence reviewed at a later date. The fines payable have been have been raised from 30 million kronor to 46 million Kroner (US $6.4m). The Pirate Bay website is still functioning. http://www.bbc.co.uk/news/technology-11847200

EMI dispute George Martin royalty for Fab Four Rock Band video game
Copyright , Record Labels / December 2010
UK

COPYRIGHT Record labels According to the Daily Mail, EMI and Chrysalis could be about to commenced battle in court over whether legendary Beatle’s producer George Martin is due his usual 1.5% producer royalty on The Beatles catalogue in relation to the Fab Four edition of video game ‘Rock Band’, which released last year. Music publisher Chrysalis represents Martin’s producer Martin’s copyrights, including the 1.5% record sales royalty he is due, a right stemming from a 1965 agreement. However, it seems that EMI is arguing that its 1965 royalty agreement with Martin doesn’t apply in the case of the ‘Rock Band’ video game, because such a product does not come under the definition of ‘record’ in that contract. Needless to say, Chrysalis does not concur. In a letter included in a High Court submission, seen by the Mail, EMI’s legal beagles claim “[The] concept of a music video game neither then existed nor could be said to be in the contemplation of the parties”, and therefore the royalty payment did not cover such things. But Chrysalis argues that is irrelevant because “it was plainly the parties’ intention that the 1965 agreement would extend to cover formats and technologies which had not…

Terra Firma lose Citigroup claim
Contract , General , Record Labels / December 2010
USA

CONTRACT Record labels The Wall Street Journal report that EMI’s parent company Terra Firma has lost its legal dispute with Citigroup, in which it had alleged the bank misled it into paying too much to acquire the label.  Citigroup was found not guilty of fraud in a federal court in New York, after Terra Firma founder Guy Hands had alleged he was misled by Citi about competing bids for EMI. Terra Firma acquired the major label and music publisher for $6.3 billion in 2007 and the label has carried a heavy debt and Terra Firma has struggled to meet loan repayments to Citigroup. After the jury had revealed its conclusion, Citigroup’s legal representative Ted Wells criticised Terra Firma for pursuing the litigation. He told reporters: “I think Mr Wormsley was put through a terrible ordeal. He was totally innocent, he did nothing wrong. He is a man of honesty and integrity”.  EMI chief Roger Faxon insisted that the major was unaffected by the ruling, telling reporters: “EMI has had a solid operational performance over the last six months, driven by considerable success in both recorded music and music publishing. We are wholly focused on further developing our business, and on…

“Music labels lose downloads case” as Irish High Court reverses its earlier decision
Copyright , Internet , Record Labels / November 2010
Ireland

COPYRIGHT Record labels, internet The extraordinary and wonderful IPKat reports in detail on an article in the Irish Times (11/10/2010). The story is a sequel to the efforts made in Ireland to get a “three strikes” policy up and running in the Emerald Isle in respect of unauthorised copying and file-sharing by internet users. Big-name recording companies Warner Music, Universal Music, Sony BMG and EMI Records brought an action in which they sought to have unauthorised internet copyists identified and then cut off, but in today’s High Court judgment Mr Justice Peter Charleton held that there was no legal basis for such relief in Ireland. According to the press report, the judge agreed that online infringement not only undermined the recording companies’ business but “ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry”. However, there were no laws in place in Ireland to enforce disconnections over illegal downloads despite the record companies’ complaints being merited. He also said this gap in legislation meant Ireland was not complying with European law. Meanwhile defendant internet service provider UPC predictably said it would work to identify and address the main areas of concern…

Google could fix record label piracy concerns – at a price
Copyright , Internet , Record Labels / November 2010
USA

COPYRIGHT Record labels, internet Google has offered the US record industry a new tool to help it more easily find links to infringing content that appear on the search engine – but wants to charge a fee for the tool. CNet reports that a letter sent to the Recording Industry Association of America (RIAA) and the International Federation of Phonographic Industries (IFPI), a Google executive advised that his company is making a number of new web search ‘API products’ available, one of which would be useful for content owners trying to keep track of illegal content sources appearing in Google searches and once the content owner has found an illegal source they can use the take-down system that exists under America’s Digital Millennium Copyright Act to ask Google to remove the offending content link. So it seems that a search of the site costs, but a take down is free. The cost of using the new service, Site Search, will be five dollars per 1000 queries. CNet cite a music industry source who estimated that such charges could add up to several million dollars a year and this has ‘raised eyebrows’ in the music industry. CNet says that at a…

Judge Tells LimeWire to Disable Its Software
Copyright , Internet , Record Labels / November 2010
USA

COPYRIGHT Internet, record labels Judge Kimba M Wood in the Federal District Court in Manhattan has issued an injunction that will essentially shut down LimeWire, the music file-sharing service that has been embroiled in a four-year legal struggle with the music industry. The case has already resulted in the company and its founder being found liable for potentially hundreds of millions of dollars in damages (see Music Law Updates August 2010). The company says that it will continue negotiations with the major music companies in an effort to offer music legally for sale with a subscription service but in her ruling, the Judge forced the company to disable “searching, downloading, uploading, file trading and/or file distribution functionality” of the company’s file-sharing software. Visitors to LimeWire’s Web site were greeted with a legal notice and the words, “downloading or sharing copyrighted content without authorization is illegal.” In a statement the Recording Industry Association of America, the music industry’s trade group that had led the suit, said: “For the better part of the last decade, LimeWire and [founder Mark] Gorton have violated the law. The court has now signed an injunction that will start to unwind the massive piracy machine that LimeWire…

Eminen dispute goes back to court
Contract , Copyright , Internet , Record Labels / November 2010
USA

CONTRACT / COPYRIGHT Internet, record labels Last month we reported on FBT’s success in challenging royalty rates calculated by Universal. FBT were Eminen’s production company – and now the rapper himself has begun an action – or rather re-commenced an action – again against Universal. Last year Eminem’s company Eight Mile Style sued Universal, UMG’s label Aftermath and Apple Inc over the sale of Slim Shady’s track on iTunes, it appears on the grounds that Universal did not have the rights to licence Eminem’s music for download. Based on that claim, Eight Mile Style said it was due millions in damages but the case was settled by Universal and/or Apple and a promised payment in damages of over $2 million was agreed. Now it seems that Universal and/or Apple have not made good on that promise and, according to DetroitNews.com, Eight Mile Style has now filed a new lawsuit at the Detroit District court requesting a judge enforce the earlier settlement. Should this get to court this time round, it’s not clear if the case would centre on the contractual agreement made last October or on Eight Mile Style’s original claim regarding the download rights in Eminem’s music. In related…

“Eminen” digital royalty judgment ‘no legal precedent’ says UMG
Copyright , Record Labels / October 2010
USA

COPYRIGHT Record labels A US federal appeals court has sided with FBT Productions, the production team who helped launch Eminem’s career, in a dispute with Aftermath and its parent company, the Universal Music Group over digital music royalties. The U.S. Ninth Circuit Court of Appeals in San Francisco overturned a decision in the lower court, and has ruled  that the record label had to pay the producers FBT Production, a bigger cut for music sold online through downloads and mobile-phone ring tones than for the same music sold in stores. FBT had argued they had a right to a 50/50 split of profits with Universal on sales of digital music and ring tones through online retailers such as iTunes and Sprint as these ‘Master Licensing’ deals attracting the higher royalty. The contract did not specifically mention income from download stores like iTunes, or what share the artist (and therefore FBT) should get from such sales but Universal have been treating download sales as being equivalent to CD sales paying a lower rate of 12-20%% as if these were physical sales. FBT sued, moved for summary judgment, arguing that the Master Licensing provision should apply. The district court refused summary judgment,…

Bob Marley copyright claim against UMG dismissed – but digital royalty claim left open.
Artists , Contract , Copyright , Record Labels / October 2010
USA

CONTRACT / COPYRIGHT Artists, record labels This dispute concerned the ownership of the renewal term copyrights in certain pre-1978 sound recordings embodying the performances of Jamaican reggae artist, Bob Marley. The Sound Recordings were created pursuant to exclusive recording agreements between Bob Marley and the predecessor-in-interest (Island Records, now owned by UMG) to defendant UMG Recordings, Inc. The Plaintiffs argued that the renewal term copyrights in the Sound Recordings reverted to them under the Copyright Act of 1909 upon Bob. Marley’s death in 1981. The Plaintiffs also asserted claims for underpayment of royalties against UMG. But District Judge Denise Cote ruled that Universal Music holds the rights to Marley’s music, because Marley’s work was done on a “work for hire” basis: Judge Cote concluded that Marley’s recordings were “works made for hire” as defined under U.S. copyright law, entitling UMG to be designated the statutory owner and “author” of those recordings, for both the initial 28-year copyright terms and for renewals. Marley signed a number of agreements with Island including agreements in 1972,1974,1975 and 1992.  The 1972 Agreement states  “ The Artist shall during the period attend at such places and times as the Company shall reasonably require and shall render to the…

Plastic Bertrand never sang on his biggest hit
Artists , Copyright , Record Labels / September 2010
Belgium

COPYRIGHT Record labels, artists Belgian performer Plastic Bertrand, whose real name is Roger Jouret, has admitted that he was not the singer on his 1977 hit ‘Ça Plane Pour Moi’. French composer and producer Lou Deprijck has long claimed that his was actually the voice on the track and now expert evidence presented to a Belgian court has confirmed this – with a linguist commissioned by the judge saying that the person who sang the song did so in a specific regional accent of northern France (where Deprijck comes) which could not have been replicated by Belgian-born Jouret. The judgement read: “The way the phrases end on each record show that the song could only have been sung by a Ch’ti – otherwise known as someone from the Picard region of France. It could therefore not have been Plastic Bertrand – who was born in Brussels – and was surely Mr Deprijck”. That said, it appears that in 2006, the Brussels Court of Appeal had already ruled that, although Deprijck may indeed have been the person who sang the vocals, Jouret was the “legal performer” of the song because his face had appeared on the single’s artwork and he signed the…

Convicted pirate ordered to pay up
Copyright , Record Labels / September 2010
UK

COPYRIGHT Record labels A judge at Snaresbrook Crown Court has ordered a convicted music pirate to pay record label trade body the BPI £170,000.  Farrah Nissa was jailed for copyright crimes in 2008 for his role in running a counterfeit CD operation which sold an estimated 1.2 million bootleg discs. The order was made under the Proceeds of Crime Act 2002. Nissa’s partner in crime had already been ordered to pay £70,000 following similar proceedings last year. The money will be shared out between the BPI’s members. http://www.ifpi.org/content/section_news/20100726.html

Amazon prices “devalue” music
Artists , Copyright , Record Labels / September 2010
USA

COPYRIGHT Record labels, artists, retail Laura Ballance, the co-founder of Arcade Fire’s US label, Merge Records, has accused Amazon of “devaluing music” after the e-tailer decided to sell the download version of the band’s new album, ‘The Suburbs’, for just $3.99. The album, which shifted 156,000 copies in its first week, went to number one in the USA but Ballance says that 97,000 units were sold  at the $3.99 price point which Balance says “devalues”. ‘The Suburbs’ went to number one in the UK as well and Amazon UK also sold the album at a discounted price of £3.99 during its first week of release. http://www.thedailyswarm.com/headlines/merge-amazons-399-arcade-fire-price-s-not-us/

RIAA vs The Radio Industry – what’s phones got 2 do with it?
Copyright , Record Labels / September 2010
USA

COPYRIGHT Broadcasting, record labels The long-running dispute between US radio broadcasters and the recording industry over the royalties broadcasters should have to pay to use recorded music has taken an unexpected turn with a proposed settlement where a proposed new federal mandate would require all new mobile phones to come with a built-in FM radio chip. The National Association of Broadcasters (NAB) has long been fighting any proposals that would require radio stations to pay  royalties to record labels and performers for the right to play their sound recordings on the air. The US unusually has no current legal requirement for a royalty for the use of recordings for FM stations – although now in the US internet, cable and satellite radio services and stations do have to pay an equivalent of the UK’s PPL royalty: Broadcasters have long argued that airplay provides free promotion and drives music purchases and concert ticket sales. The new idea is to push forward a proposed settlement that would establish a tiered system of royalty payments that would bring in a total of roughly $100 million for the music industry. Commercial radio stations with more than $1.25 million in annual revenue would pay royalties…

US labels say that copyright law “isn’t working”
Copyright , Internet , Record Labels / September 2010
USA

COPYRIGHT Internet, record labels Speaking at the Technology Policy Institute’s Aspen Forum, The President of the Recording Industry Association of America, Cary Sherman, has said that the current U.S. copyright law “isn’t working” for content owners and contains a number of loopholes – the main one he objected to is, of course, the safe harbour protection given to internet service provides (ISPs), web companies and telecomms providers. According to CNet, Sherman said the 1998 Digital Millennium Copyright Act “isn’t working for content people at all,” saying “You cannot monitor all the infringements on the Internet. It’s simply not possible. We don’t have the ability to search all the places infringing content appears, such as cyberlockers like [file-hosting firm] RapidShare.” Sherman added that YouTube is doing a good job of filtering and removing copyright-infringing videos but added that Google could do much more than simply having YouTube remove videos making the example that “If you enter in “Beyoncé MP3” as a Google search the “the chances are, the first thing you’ll see is illegal sites.” In response Lance Kavanaugh for YouTube, said that the DCMA is working exactly as Congress intended it to. “There’s legal plumbing to allow that to happen,…

Tenenbaum damages reduced by 90%
Copyright , Internet , Record Labels / August 2010
USA

COPYRIGHT Internet, record labels US District Judge Nancy Gertner has slashed the federal jury award made against convicted file sharer Joel Tenenbaum by 90 percent, ruling that the award of $22,250 per infringed work could not withstand scrutiny under the Due Process Clause and was “unconstitutionally excessive’’ in light of what she described as the modest harm caused to the record labels whose works were infringed. She cut the award to from $675,000 to $67,500, one-tenth of the original sum. Judge Gertner said “There is no question that this reduced award is still severe, even harsh …. It not only adequately compensates the plaintiffs for the relatively minor harm that Tenenbaum caused them; it sends a strong message that those who exploit peer-to-peer networks to unlawfully download and distribute copyrighted works run the risk of incurring substantial damages awards.’’ Judge Gertner’s maths to get to a figure of $22,250 damages for each act of infringement went like this statutory damages must bear a reasonable relationship to the actual damages the actual damages sustained by plaintiffs was no more than $30 the benefit to the defendant was in the neighborhood of $1500 it was permissible to treble the minimum statutory damages…

Juke Box pirates get custodial sentences
Copyright , Record Labels / August 2010
UK

COPYRIGHT Record labels Record label trade body the BPI and collecting society PPL have welcomed the custodial sentences handed down to the three men who ran that previously reported jukebox racket in the North East. Malcolm Wylie, his son Peter Wylie and William Ross, were arrested in 2008 for their role in running an unlicensed jukebox company operating in the Newcastle area called Access All Areas. For seven years the three men implied to their clients that they ran a legit jukebox service, but they pocketed over half of million in revenues that should have gone to PPL and onto the owners of the sound recordings being played. They were found guilty of copyright crimes in March and sentenced for those crimes last week. Malcolm Wylie got three years and was banned from being a company director for ten. His son Peter will spend fifteen months in prison, while Ross got 36 weeks. When sentencing, Judge Guy Whitburn reportedly said that “a clearer more flagrant breach of copyright law is hard to find”.http://www.hollywoodreporter.com/hr/content_display/news/e3if93da65e51c14c3db4702feb44978573

Univision settles payola charges with $1 million payment
Competition , Record Labels / August 2010
USA

COMPETITION Radio, record labels The three-year criminal investigation into a pay-for-play scandal at Univison Communications in which Latin-music executives were said to have bribed radio station managers with briefcases stuffed with cash has ended after Univision agreed to pay $1 million in penalties to federal authorities. Somewhat bizarrely, in many cases the bribes were from Univision’s labels to executives at Univision’s radio stations. As part of an agreement with the US Justice Department the Spanish-language media giant Univision pleaded guilty to one count of conspiracy to commit mail fraud. During the four-year scheme, executives and music promoters at the now-defunct Univision Music Group paid thousands of dollars to radio station programmers in exchange for increased radio air time for Univision’s songs. The LA Times report that in one instance, a Los Angeles-based Univision executive in February 2006 sent a Federal Express package that contained $157,800 to a New York radio station programmer, according. Program managers in California and Texas also received bribes. Univision executives and the record promoters then concocted phony contract invoices and payments to hide the true purpose of the payments, documents filed by the U.S. Justice Department said, The cash payments violate federal laws because they were…

Whilst the UK shows a small improvement, new figures show a slump in global record sales
EU
Japan
UK
USA

COPYRIGHT Record Labels, Music Publishing Global recorded music sales fell 7.2% in 2009, led by significant falls in the world’s two biggest markets, the US and Japan. According to the IFPI’s Recording Industry In Numbers 2010 report global recorded music trade revenues totalled $17.0bn (£11.1bn) in 2009, with physical sales down 12.7%. Digital revenue rose 9.2% in 2009 to $4.3bn (£2.8bn). Digital channels now account for about 25.3% of all music sales. Performance rights revenues from recorded music also rose, up 7.6% to $0.8bn (£0.5bn). However, globally the results were very mixed: US sales fell 10.7% to $4.6bn (£3.0bn), while sales in Japan plunged 10.8% to $4.0bn (£2.6bn). Excluding these two markets, recorded music sales fell just 3.2% in 2009. Mirroring the UK figures from the BPI, IFPI figures indicate that music sales in the UK rose 1.9% to £1.0bn last year. Other music markets that experienced an increase in trade value were Australia (up 4.3%); Brazil (up 0.5%); South Korea (up 10.4%), Sweden (up 11.9%), India (up 2.0%) and Mexico (up 0.2%). The IFPI says that the increases in South Korea and Sweden are particularly significant, as these two countries have put in place legislation to fight online piracy. Another country that…

ECJ reference on dental surgery music could set important precedent
EU

COPYRIGHT Collection societies, record labels, music publishers The Corte di Appello di Torino has made a reference to the European Court of Justice by in Case C-135/10 SCF Consorzio Fonografici v Marco Del Corso. Here the questions, involving copyright, arepossibly of great interest to collection societies across Europe, not least in the Uk where the PRS have adopted an fairly aggressive approach to contacting businesses to ask for payment for the use of music. “1. Are the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations …, the TRIPs Agreement … and the WIPO … Treaty on Performances and Phonograms … directly applicable within the Community legal order? 2. Are the abovementioned sources of uniform international law also directly effective within the context of private-law relationships? 3. Do the concepts of ‘communication to the public’ contained in the abovementioned treaty-law texts mirror the Community concepts contained in Directives 92/100 [on rental and lending rights] and 2001/29 [on the Information Society] and, if not, which source should take precedence? 4. Does the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, for the benefit of patients of those practices and enjoyed by them without any active choice on their…

SXSW panel looks at music sampling: Why Hasn’t The Record Industry Sued Girl Talk?
USA

COPYRIGHT Record labels, music publishing, artists There have been many defining records that were released without the artist first legally “clearing” the samples contained within.  Take for instance two coveted 1989 hip hop releases, Paul’s Boutique by the Beastie Boys and De La Soul’s 3 Feet High and Rising, or Biz Markie’s precedent-setting 1991 release, I Need A Haircut.  These blatantly sample-heavy yet genius-laden works have helped to define hip-hop. and global culture at large for decades after their initial release, but have brought about an onslaught of lawsuits and hurt feelings along the way. Read more here  http://www.womensradio.com/articles/SXSW-2010:-Why-Hasnt-The-Record-Industry-Sued-Girl-Talk%3F/4946.html

LA court dismissed Carly’s coffee claim
Artists , Contract , Record Labels / May 2010
USA

CONTRACT Record labels, artists A judge in Los Angeles has rejected a lawsuit from singer Carly Simon against coffee shifters Starbucks. Simon signed up to release an album via Starbucks’ short lived record company venture, Hear Music. ‘This Kind Of Love’, was released just as the coffee firm decided to bring the label project to an end, and Simon alleged that this  had a negative impact on the way her record was promoted and indeed sales of the album were disappointing, Simon accused the coffee firm of failing to fulfil its promises to market and promote the long player. She also said that bosses at the coffee giant had misled her when negotiating her record deal because they must have known the Hear Music venture was about to be scaled down, but they failed to share that information with her. Simon also argued that the coffee firm’s subsequent decision to discount her album in their own stores damaged her reputation. Starbucks refuted the allegations and said the main problem with the record release was that people just didn’t like the singer’s Brazilian-influenced fourteen track album. District Court Judge George Wu dismissed the case saying the singer’s contract with Starbucks said…

Pink Floyd win important battle with EMI
Internet , Record Labels / April 2010
UK
USA

COPYRIGHT Internet, record labels In what looks like an interesting decision, the High Court has upheld a claim by Pink Floyd that their label EMI had no right to allow iTunes to sell individual tracks from the band’s albums – and that the label had to adhere to a contract that prohibited single track sales in any format – physical or digital. The label had argued that a 19667 (renewed in 1999) contract clause between the artist and the label which prohibited single track sales was clearly limited to the physical realm as it referred to “records”. The argument that the 1999 contract predated the digital market in some way was something the band, famed for their ‘concept’ albums such as Dark Side of the Moon and The Wall were strongly opposed to  and the High Court agreed that EMI’s argument was clearly nonsensical with Sir Andrew Morritt VC granting the band a declaration saying that the contract meant that EMI is not entitled to exploit recordings by online distribution or by any other means other than as the complete original album without Pink Floyd’s consent, accepting that the purpose of a clause in the contract, drawn up more than a decade ago, was…

Kookaburra wins down under
Australia

COPYRIGHT Music publishing, record labels More of the same – An Australian Court has found that Men at Work did copy Larrikin Music’s  song Kookaburra Sits in the Old Gum Tree, written by Marion Sinclair in 1934, in their composition and recording Down Under. Down Underrecord company Sony BMG and publisher EMI Songs Australia had disputed the claim but today the Federal Court ruled in Larrikin’s favour and Larrikin Music’s lawyer Adam Simpson welcomed his win saying it was yet to be decided what percentage of earnings from the song they’d be seeking commenting “It depends. I mean anything from what we have claimed which is between 40% and 60% and what they suggest which is considerably less”. The judge also ruled that a Qantas advertisement which used a small similar section of the riff was not in breach of copyright laws. EMI said it was pleased with this decision but Larrikin Music’s has said that it wasn’t ruling out further legal action. In an interview with ABC Australia’s The World Today programme music lawyer Stephen Digby said he was surprised by the court’s decision saying “ think it could have gone either way but my initial reaction and also looking at this case…

Jammie Thomas faces third trial
Copyright , Internet , Record Labels / March 2010
USA

COPYRIGHT Internet, record labels I imagine the mention of the names Joel Tenenbaum and Jammie Thomas-Rasset, the two high profile and currently convicted file swappers in the USA, probably drum up nothing but despair in the offices of the Recording Industry Association of America (RIAA) in light of the ongoing negative press the record labels face for ‘suing their own customers’ etc etc. Even so, the RIAA has rejected a judge’s order reducing the damages awarded against convicted file-swapper Jammie Thomas-Rasset from $1.92 million to $54,000, meaning that the Minnesota single mum will now face a third trial on the issue of damages In her first trial, a jury found Thomas-Rasset guilty and ordered her to pay $222,000 in damages for copyright infringement. However, the judge later said he had erred in his instructions to the jury and ordered a new trial. In the second trial the jury again found Thomas-Rasset guilty, but this time awarded $1.92 million in damages. Then last month the judge from the second trial, Judge Michael Davis, sided with Thomas-Rasset’s attorneys and reduced that  jury award to $54,000, representing $2,250 for each song that Thomas-Rasset was found guilty of sharing – triple the statutory minimum…

Tenenbaum appeals too!
Copyright , Internet , Record Labels / March 2010
UK

COPYRIGHT Internet, record labels Harvard Law School professor Charles Nesson, who along with a team of his students is defending Joel Tenenbaum, the post graduate student ordered to pay the recorded music industry the combined sum of $675,000 for downloading and sharing songs online has asked a federal judge to reduce the penalty or order a new trial. Nesson’s latest argument is that Tenenbaum only caused the companies to lose a total of $21 when he failed to pay 99 cents charged online for each of the 30 songs in question – and this should be the limit of his damages. Tenenbaum, a Boston University student admitted to downloading music and was penalised in July after being found guilty of violating copyright rules for downloading songs between 1999 and 2007 (see previous blogs on this site). His lawyers have appealed against the “severe” and “oppressive” damage award, asking that it be reduced to 99 cents for each song. The recording labels have described Tenenbaum as a “hardcore” infringer. Interestingly I asked my own students about the latest appeal and a straw poll revealed that sympathy had actually swung to the record labels! The idea of a ‘infringe now, pay iTunes…

High Court rejects PPL tariff appeal
UK

COPYRIGHT Live events industry, record labels Last October the Copyright Tribunal rejected new rates that Phonographic Performance Limited (PPL) wanted to bring in, siding with the British Beer and Pub Association and the British Hospitality Association who were fighting three new tariffs. Somewhat understandably, the collecting society had argued that larger premises should more than smaller ones for use of music. Where PPL had been asking for a hotel or pub of under 400 sq metres to pay a tariff of £464.80 for a licence, the Tribunal stuck at a rate of around £110. Unhappy with that decision, PPL asked the High Court to review and overturn the Tribunal.  Mr Justice Arnold has now rejected PPL’s appeal prompting a short statement from PPL which states as follows: “On the appeal, the Judge was limited to considering whether the Copyright Tribunal had erred in law, not whether the decision was one he would have made based on the evidence. Naturally the company is extremely disappointed that the Judge found there was no error of law although he identified some problems with the decision of the Tribunal. This leaves PPL with tariffs that it believes substantially undervalue the rights of its performer…

Tenenbaum appeals, Bono appeals …… who should pay for what in the digital age … if anyone should pay at all?
Copyright , Internet , Record Labels / February 2010
EU
USA

COPYRIGHT Internet, record labels Joel Tenenbaum, who was ordered to pay $675,000 for illegally downloading 30 sound recordings after his jury trial in the USA, is to ask for a re-trial. Among other claims, lawyers for Tenenbaum say that the verdict was unconstitutionally excessive –  the argument being that a penalty of $22,500 a song is “obviously unreasonable” – although it is (of course) well within statutory limits. Tenebaum’s lawyer, Charles Nesson, the Harvard academic, is using an argument from the ninety year old Supreme Court decision in St. Louis, I.M. & Sou. Ry. Co. v. Williams, 251 U.S. 63 (1919) to support the appeal. The US Copyright Act allows penalties ranging from $750 to $150,000 per infringement at the jury’s discretion. Indeed the jury’s decision in the Tenenbaum case is not without precedent: in the USA’s first major file sharing claim, single mum Jammie Thomas-Rasset was ordered by a Minnesota court to pay $1.92 million for file sharing 24 songs. But remarkably, the Thomas-Rasset’s jury damages have been reduced – by 97%, with US District Judge Michael Davis calling the jury’s penalty “monstrous and shocking” and reducing the $1.92 million to $2,250 per song, or about $54,000 saying “The need…

Despite piracy, digital sales now represent 27% of label’s revenue
Copyright , Internet , Record Labels / February 2010
Brazil
South Korea
Spain
UK

COPYRIGHT Internet, record labels The IFPI’s Digital Music Report 2010 shows that global digital music trade revenues reach US$4.2 billion, up 12% in 2009 are representing over a quarter of all recorded music revenue worldwide. Over over  400 services are licensed worldwide. The Report outlines how music companies are diversifying their revenue streams, offering new ways for consumers to buy and access music. These include: subscription services; music services bundled with devices and broadband subscriptions; streaming services with applications for mobile devices; advertising-supported services that offer premium services; and online music video services. However the IFPI says that despite the continuing growth of the digital music business –illegal file-sharing and other forms of online piracy are eroding investment and sales of local music in major markets.  In particular, three countries known for the historic vibrancy and influence of their music and musicians – Spain, France, Brazil – are suffering acutely, with local artist album sales or the number of releases plummeting. The IFPI say that governments are gradually moving towards legislation requiring ISPs to curb digital piracy but adds that progress needs to be much quicker.  In 2009, France, South Korea and Taiwan adopted new laws to address the label’s crisis. Other…

Oink’s Ellis found not guilty
UK

COPYRIGHT Internet, record labels, music publishing The trial of the Alan Ellis, one of the main people behind the infamous ‘Oink’ Peer-2-Peer invite only file swapping site has ended at Teeside Crown Court. The file-sharing community had just under 200,000 users when it was closed down in 2007, who between them had downloaded some 21 million illegal songs. Six men were arrested in raids in the UK and Amsterdam, four of whom pleaded guilty to copyright infringement in late 2008, receiving community service and fines for their crimes. Two cases remained and the first heard was against Ellis, aged 26, who founded the community. He was charged with conspiracy to defraud. Ellis had denied liability for copyright infringement, using the (classic) defence that the Oink website and server did not, in themselves, host any unlicensed content, saying that it merely provided a forum through which others could share music. As the case centered on an accusation of fraud, and prosecutors also had to prove Ellis made a profit and prosecutors moved to show the amount of money made by Ellis by operating the venture. It appeared from evidence given that there wasn’t a subscription fee as such for using Oink,…