1709 Blog: for all the copyright community

Thursday, 13 February 2014

The CopyKat


You will probably remember the fact that 'Happy Birthday to You” is now the subject of a lawsuit brought against the publishing arm of Warner Music Group, which claims copyright ownership in the song, which was registered in 1935. The complaint, from a disgruntled film producer who had to cough up $1,500 to use the track, was filed in federal court in Manhattan and claims that “Happy Birthday to You” has been in the public domain since at least 1921. The suit seeks class action status on behalf of anyone who paid a royalty to use “Happy Birthday to You” in the past four years. The song allegedly generates at least $2 million a year in licensing fees for Warner/Chappell Music, Inc. In their last filing, the plaintiffs  claimed that the words were published in a variety of formats pre-1935, going back to 1893.  Well, Warners have now filed a status update which offers the first glimpse of some of the defences Warner may use. In it's brief statement, Warner's lawyers explain it's on the plaintiffs to prove that the 1935 copyright registration "was not intended to cover the lyrics to Happy Birthday to You" saying: "Certificate E51990 applies on its face to a "published musical composition" entitled "Happy Birthday to You" and the listing under the byline is as follows: "By Mildred J. Hill, arr. by Preston Ware Orem; with words." The certificate further states: “(© is claimed on arrangement as easy piano solo with text).” ... All of this, as well as the validity of the copyright, is prima facie presumed true in this litigation. The parties have agreed to a schedule that has discovery on the copyright issue continuing through to September 2014. Once evidence is collected, the two sides will submit motions arguing their case in November. ArtsTechnica say that the parties appear to have agreed to litigate the copyright validity issue on the papers, without a trial.


Currently sound recordings in the USA created before February 15th 1972 fall outside of the federal Copyright Act. And now the owners of sound recordings CAN collect royalties for their use on satellite radio and Internet radio services like SiriusXM, this matters - and collection society Sound Exchange estimated that it could collect 15% or so more than the $590 million it collected in 2013 if the recordings were covered. In 2011, the U.S Copyright Office issued a report recommending Congress take action to change this, but so far, nothing’s happened. Except in Tennessee! State Senator Stacey Campfield decided to act, saying “The music industry—they came to me and said, ‘We’re not getting our royalties.’ They said it’s something that could have a big impact,” who has now introduced the “Legacy Sound Recording Protection Act” (SB/HB 2187) with Rep. G.A. Hardaway (D-Memphis) to close the federal loophole in Tennessee. 
Whilst on first reading "The bill seems quite reasonable" and it seems most of its language is copied directly from federal copyright law, there have been some comments on the narrowness of the bill. Attorney Brandon Butler told Metro Pulse “The bill is strikingly one-sided. It gives rights-holders even more power than they have under federal law, but it gives the public, including libraries, journalists, and even other artists, none of the reuse rights that federal law includes” adding “The law is likely unconstitutional because it lacks fair-use protections” . The Bill also fails to include any provisions related to the first sale doctrine, which might mean that the musical state becomes the only place in the USA where record shops cannot re-sell second hand LPs, with University of Tennessee Law School professor Gary Pulsinelli saying that if the Bill is passed as is, “It’s entirely possible a court would say that you can’t sell music recorded before 1972”. The draft Bill was provided to Senator Campfield by 'sometime' music industry lobbyist and copyright owner Tony Gottlieb, and has yet to reach a committee in either the House or the Senate in Tennessee.

Back to Trinidad and Tobago - whose rival collection societies graced these web pages not two weeks ago. Now it seems the newer of the two music collection societies, the Trinidad and Tobago Copyright Collection Organisation (TTCO), has threatened legal action against the National Carnival Commission (NCC) for $6 million worth of outstanding royalties owed to its members over the past six years. Speaking to the Trinidad Express, NCC chairman Allison Demas said her organisation, through attorneys, had written to the TTCO on the matter back in February 2013 but to date no response has been forthcoming. “They still have not answered all the questions posed. Our attorney requested a meeting last year. They never responded, and again we await to get a response this year from the TTCO” Demas said.


Joe Walsh
An eclectic 'supergroup' of Sting, Steven Tyler and Britney Spears , Don Henley, Ozzy Osbourne, deadmau5, Mick Fleetwood and Joe Walsh are among artists fighting copyright law reforms that would allow mashups without their permission. The may represent different music styles, but they are united in telling the U.S. Patent and Trade Office that artists, who write and make music, not copyright law, should determine who has rights to make remixes, sampling and mashups that include their songs. 
deadmau5
The artists were joined by letters filed in support of copyright stakeholder groups including the Copyright Alliance, ASCAP, BMI, the National Music Publishers Association, Writers Guild of America West and the Motion Pictures Association of America. The Eagle's Henley said: "As a songwriter and recording artist, I can tell you that approval over how my music is used is very important to me," adding "Every song I write is personal and has meaning to me. A sample or a remix takes a piece of art, cuts it up and then either reassembles it into something different or combines it with another person's work." The USPTO questioned whether existing copyright law needed to be updated to reflect innovation in the digital economy in a task force report last year and asked for comments on a large number of different copyright issues, including the question of mashups.


Mike Weatherley MP
If you wondered what the UK Prime Minister's advisor on IP thinks about online piracy, web blocking, the role of Google in protecting the interests of copyright owners, and custodial sentences for online piracy, Mike Weatherley, the conservative MP for Hove, has given an interview to CMU Daily's Business Editor Chris Cooke and you can read it all here.

Further to John's very clear report on the breaking news in the Svensson decision, over on the IPKat Eleonora has been having more of a ponder, and has now posted her "Early Thoughts On Svensson: communication/making available, new public,altering the scope of exclusive rights" - all this  - AND a great presentation for the joined BLACA and IPKat (very busy) copyright seminar chaired by Sir Colin Birss with Bird & Birds' Graham Smith on Wednesday night- Are Moral Rights Human Rights? - something this blogger now knows more about - but still doesn't know the answer to! Anyway, I digress, Eleonora on Svensson is well worth a read. 


And finally - shame on London: Viviane Reding, the EU's Justice Commissioner, has had clothing, jewellery and a cottage pie stolen from a locked official car in Mayfair after she attended debate at the Royal Institution. The cottage pie, apparently purchased to show European colleagues just how good British cooking can be, seems to have been judged the greatest loss. And the fact that rather important EU paperwork was completely ignored and was the only thing left behind by the thief brings a smug British grin on my face and can I ask - what does that say about the UK's views on the EU?! Eeeek.

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