Now BMI takes on the US Radio industry

Last month, Irving Azoff’s US collection society, Global Music Rights (GMR), launched a legal attack on the Radio Music License Committee (RMLC), which represents over 10,000 commercial radio stations in the United States. The suit followed an action by the RMLC that moved that GMR be enjoined from licensing its catalogue of songs for more than a rate that represented the pro-rata share of its catalogue against those of the other PROs (primarily BMI and ASCAP, and SESAC) while its broader antitrust action is aimed at establishing an appropriate mechanism for determining those rates in the future - and forcing the rights agency to submit to independent arbitration to set the rates broadcasters must pay to play the songs it represents. Azoff formed GMR in 2013 to compete with ASCAP and BMI, which together control approximately 95% of music copyrights. The other independent and privately owned PRO in the USA, SESAC, recently entered into a settlement of with RMLC, following an antitrust action similar to the one filed against GMR.

Against a background of many songwriters and music publishers believing that commercial radio stations in the USA and elsewhere are paying far too little to use their work, GMR's lawsuit accused the RMLC of operating a ‘cartel’ which deliberately suppressed royalty payments to songwriters for music used across its network and targeted over 10,000 radio stations with an action that would have forced the stations to acquire a license in order to play music associated with any GMR songwriter artist (GMR have published a roster that includes Jay Z, The Eagles, Pharrell Williams, Adele, Daft Punk and hundreds more). One blip was that in response, heavy metal band Anthrax penned an open letter to Azoff for mistakenly including the band in the GMR "fair pay for fair play" lawsuit against the radio stations. The band suggested that whilst they have performed one song which is a composition by members of Metallica and Megadeth (the latter being represented by GMR) they are not represented by GMR and the error could discourage radio stations from playing Anthrax songs. 

On December 24th, GMR offered RMLC stations a temporary license to play songs by its clients. In a statement GWR said

"Today, GMR has offered a license to all radio stations represented by the RMLC allowing the stations to play GMR's repertoire in exchange for specified license fees. This license extends ‪through September 30th, 2017 and gives everyone additional time to negotiate long-term licenses with GMR. GMR offered this license to the RMLC last month, but the RMLC refused it and, instead, chose to sue and seek an injunction. With today's agreement, the RMLC has withdrawn its request for an injunction and radio stations across the country will have the opportunity to offer their listeners GMR's quality music."

Elsewhere, fellow PRO ASCAP has since re-signed a deal with RMLC for the next five years, covering its repertoire at a mutually agreed rate.

But the other major (and regulated) PRO BMI hasn't been so amenable.  The society has now filed an action in Federal Rate Court to set interim fees for radio stations represented by the RMLC – while BMI and the RMLC negotiate the terms of a new five-year deal beginning in 2017.

BMI said that the RMLC had "proposed an interim rate well below BMI‘s previous deal, the effect of which would have a significant impact on the royalties BMI pays to its songwriters, composers and music publishers" saying "The RMLC has justified its proposed rate based upon incomplete and incorrect information regarding BMI‘s radio performances. BMI disagrees fundamentally with the RMLC’s proposal and, consistent with past practices, is asking the Court to maintain its most recent rate while new terms are negotiated."

Mike Steinberg, Senior Vice President of Licensing for BMI, told reporters: “We attempted to negotiate in good faith with the RMLC for many months, and just before the end of the year, the RMLC presented an interim rate that significantly undervalues the work of BMI’s songwriters. Given the unmatched caliber of BMI‘s repertoire, our superior market share on radio, and the ever-increasing value that BMI music brings to the radio industry across all its platforms, we believe the RMLC’s proposal falls well short of what is in the best interests of our affiliates."

In an extreme version of a similar situation,  albeit here with a public service broadcaster, Bulgarian press reports said that as of 00.01 on January 1, 2017, Musicautor, Bulgaria’s non-profit society of composers, lyricists and music publishers, took action that has forced the country's national radio to play only music produced before 1945:  indeed, instead of hearing the official Bulgarian anthem at midnight, as they do every year, listeners to Bulgarian National Radio (BNR) heard an alternative version performed by BNR’s own choir and symphonic orchestra - and now have a diet of folk, classical and some jazz music. Musicautor, which hold the copyright to over 14,000,000 songs from Bulgarian and worldwide artists, suspended its contract with BNR and BNR is prevented from playing much contemporary Bulgarian and foreign music until the fee issue is resolved. The PRO has asked for a threefold increase in its payments, saying this would bring payments into line with those made by other European public radio broadcasters to use music.

http://www.balkaninsight.com/en/article/bulgarians-listen-to-classics-thanks-to-copyright-war-01-04-2017

http://www.musicbusinessworldwide.com/bmi-files-legal-action-radio-music-license-committee-royalty-rates/

http://www.rollingstone.com/music/news/anthrax-pen-open-letter-to-irving-azoff-over-licensing-w456455

http://variety.com/2016/music/news/global-music-rights-radio-rmlc-cartel-lawsuit-1201936083/

http://www.prnewswire.com/news-releases/global-music-rights-announces-license-extension-deal-with-radio-music-license-committee-300383532.html

US radio industry accuses Global Music Rights of monopoly abuse http://www.musiclawupdates.com/?p=7048

New Music Put the Seal on US Collective Management

Matthew Billy, who hosts a podcasts called Between the Liner Notes, contacted the 1709 Blog to inform us about a podcast episode on the turf battles between BMI and ASCAP.  Explains Matthew:

"It details the events that led up to the great radio boycott of 1941 and how that event impacted the development of American popular music for the rest of the century. It dives into the history of the 1909 Copyright Act and the resulting Herbert v Shanley Co. Supreme Court case. It also makes clear what the differences between ASCAP and BMI are". 

Fellow copyright enthusiast and 1709 founder-blogger Amanda Harcourt kindly listened to the podcast and has written the following review:

Bills, bars and Bourget 

If I had a pound (even a Euro) for every time I have told students the story of the French composer (Ernest Bourget) arguing with the patron of the café concert Ambassadeurs over his bill (as opposed to his public performance fees) and the consequent founding of collective management organisation SACEM, I wouldn’t need to work. It was fun to learn that ASCAP’s foundation was similarly triggered by a row in a bar. What is it with songwriters and composers? Spending inordinate amounts of time in bars seems to be a sine qua non for creation.

Sidebar: In the mid-1990s, the USA came full circle in this respect – restaurants and bars got their own back with the passing of the US act exempting certain shops, bars and restaurants from paying public performance fees.

There are similarities. Bourget’s music was being performed at the Paris Opera Comique when the row erupted over the bill. In parallel, , shortly after the founding of ASCAP, the American composer, Victor Herbert challenged the use of his song “Sweetheart” in the fashionable Times Square restaurant Shanleys (where Herbert was dining with Puccini). Composers should thank famed jurist Oliver Wendell Holmes who delivered the majority opinion (he did not recuse himself , which maybe, as his father made a living from copyright, he should have done). The right to be paid for public performance of a copyright work, was set, in circumstances where those supplying the music did so for profit – a condition that became a key plank in challenges to ASCAP’s desire for fees.

The podcast coverage of the 1909 Copyright Act is brief but Sharkey, a performing seal, takes centre stage in the story.

The rise of radio in the US led to case after case being brought by ASCAP, as stations sought to demonstrate they were not using music “for profit”. They also argued they were not broadcasting “music” but that “particles of the air” were being stimulated! They argued they were a “public service” and that they were helping citizens ease their “pain” by distracting them. Fortunately, we have yet to see a variation of those arguments coming from today’s streaming services. ASCAP won in lower courts and the US Supreme Court supported the lower court’s decision. Licence fees were negotiated and, reluctantly, paid by the radio stations. As the profits from radio grew, so ASCAP got bolder and at the end of the 1930s sought to double their radio licence fees.

The broadcasters looked for a way to challenge what they saw as an abuse of ASCAP’S monopoly power and found what they believed to be the society’s Achilles Heel. ASCAP membership was not open to all – the society had rules about a potential members catalogue size, value and even, whether the works were recent. Most members were white males who wrote Broadway successes or music for Hollywood. They were “skimming the cream” and there were scores (no pun intended) of US songwriters who could not collect.

BMI is born 

In 1939, at the radio industry’s annual meeting ,the broadcasters founded a new collective management organisation, Broadcast Music Inc or BMI. In what proved to be a key move for the future of music, BMI signed writers of roots music, blues, country, jazz and the aspiring writers ruled too young and unproven to belong to the ASCAP “club”.

Confident in the quality of their repertoire and sure of their hold on the public’s taste, in 1940 ASCAP put the broadcasters on notice that, if they refused the increased licence fee, they would not be permitted to broadcast the ASCAP catalogue past the end of the year. One radio station in Montana brought felony extortion charges against the President of ASCAP, and he was arrested and jailed in Arizona – though the charges were not pursued.

As the year and the argument dragged on, fewer and fewer ASCAP songs were being broadcast and by December 1940 radio bandleaders were instructed to stop playing music in the ASCAP catalogue. At midnight on December 31st 1940 the ASCAP licences expired.

To the astonishment of ASCAP the public were not as upset as ASCAP expected, the new music captured the public’s heart and revenues from the ASCAP songs plummeted . This was a row that, with a PhD in hindsight, by briefly changing the landscape of American music being broadcast, may have fundamentally influenced the country’s public taste and the longer term strength and popularity of the genres added to the BMI repertoire. Maybe even the birth of rock and roll with this change in America’s “collective musical ear”.

Enter the seal.

An animal trainer, who had lost all but two of his performing seals in a devastating fire, opened a nightclub in Kingston, New York state. But by the time of the radio boycott he was determined to re-establish himself in the work he loved and built a large seal training facility – a Seal College. The scout for talented “pupils” began and Sharkey was discovered. He was an intelligent pinniped, was trained and learned to play a homemade instrument. Guided by a conductor, Sharkey pressed levers to create the musical notes and “Where the River Shannon Flows” became his standout performance. It was an ASCAP tune. On a national tour in 1941 Sharkey was booked to perform on a radio station in New Orleans. On March 5th, with the boycott still in place, the station contacted the ASCAP lawyers asking for an exception. They refused and the press, instead of the crowd, went wild.

The public outcry that had failed to materialise with the boycott now kicked in over Sharkey the seal and his heartless Louisiana legal ban. The radio boycott endured for 10 months and by November 1st 1941 a new ASCAP national radio rate was agreed, nearly identical to that which had applied before the radios went silent on ASCAP’s repertoire. But it was 1949 before Sharkey was completely exonerated. Sharkey finally got his chance to perform on the networked Ed Sullivan Show, juggling, playing Frisbee and…..performing “Where the River Shannon Flows”.

The podcast goes on to explore the flawed membership policies of both societies in a fast changing music landscape. It highlights the link between broadcasters, record labels and the BMI repertoire and ASCAP’S misguided attempts to clip BMI’s wings on anti-trust and collusion grounds. BMI embraced African Americans as members but the integration was limited – publishers would be signed up but often it was left to the publishers’ discretion about whether the songwriters were sharing revenues. ASCAP was slow to recognise the “new” music until the 1960s when new leadership led to a change in policy that ultimately meant that ASCAP and BMI became equivalent – so-called “parity products” – save for the Board composition at the two societies.

You can listen to the podcast yourself by following this link.

The CopyKat goes ape

In its submission to the US Department Of Justice's review of collective licensing in America, music collecting society BMI has said that it believes that music publishers should be allowed to choose which rights they allow it to administer.  It also says that BMI should be able to represent all rights in a musical work, including the mechanical right, not just the performing right, in order to create a "one-stop" licensing option and wats to see a new way for royalty rate disputes to be resolved. Just twenty four hours later the other big US song collection society ASCAP echoed those proposals, saying that allowing its members to pick and choose which specific performing rights it handed over to the collecting society to administer was "necessary to hold the system together". It also argued that being able to license mechanical as well as performing rights is "something that ASCAP's competitors are already free to do".

The BBC reports that the City of London Police's IP crime unit (PIPCU), which has been targetting web-block circumventing proxies, have now forced a number of these proxies offline and that one man has reportedly been arrested in connection with running a proxy server.

Sofie Gråbøl in The Killing

Sarah Lund, the star of the Scandanavian hot TV detective series The Killing, did an awful lot to promote chunky jumpers - the sweaters worn by actress Sofie Gråbøl became almost as famous as the cast of the Danish drama and Gråbøl admitted that her character had become dependent on her jumper and plans to scrap the woollen bound image were themselves scrapped by TV bosses. The show also prompted huge demand for the distinctive design - and now a lawsuit. The Faroese designers of Lund's original sweater, Gudrun & Gudrun, took legal action against Danish company Stof og Sy, which had made a considerably less expensive version of the "Lund" sweater - albeit one you had to knit yourself - retailing at 372 kroner (£40) rather than 2,887.50 kroner (£310) for a Gudrun sweater. But the claim for copyright infringement has failed - with a Horsens court in Denmark deciding that Stof og Sy can continue selling jumpers that resemble those from the acclaimed television series after Stof og Sy convinced the court that the star pattern used on the Lund jumper is an ancient and traditional Faroe Isles pattern - and the design of the jumper itself is based on the Faroese fisherman's sweater - both and hundreds of years old - so no violation of any copyright (or marketing laws) had taken place. More here and here. 

The Nigerian Copyright Commission (NCC) said it had seized pirated books, worth over N10 million, after a raid of markets and book shops, the Mile I Market and His Grace Bible House, Rumuowuta, all in Port Harcourt. The Commission disclosed that it has impounded 19 containers, suspected to be loaded with pirated books, at seaports and borders across the country. 

The U.S. Court of Appeals for the Sixth Circuit has confirmed that a party claiming infringement of copyrighted computer software must identify those components of the software that are protectable under copyright law before a jury can determine the substantial similarity of the defendant’s software.  Automated Solutions Corporation v. Paragon Data Systems, Inc., Case No. 12-3025; -3058 (6th Cir., June 25, 2014) (Cleland, J., sitting by designation). More here at the National Law Review website.

Re/Code reports that videogame streaming site Twitch's announcement that videos in its archives with unlicensed music will be flagged and partially muted has been met with some consternation and anger by users: Twitch has now admitted that it “screwed up” the announcement and has promised to add an “appeal” button for music that users think was flagged in error. But the actual act of cracking down on that unlicensed music, a seemingly necessary move to "avoid trouble from the litigious music industry", is here to stay.

Ronald Reagan: Official Portrait, 1981

Author Craig Shirely, an expert on former US president Ronald Reagan, is threatening to sue another author and biographer, Rick Perlstein, for copyright infringement for  his new Reagan book, The Invisible Bridge, seeking that the publisher of Perlstein's book pulp all copies, pay $25 million in damages, and take out adverts apologising to Shirley in The New York Times, The Washington Post, Newsweek, The Nation, The New Republic, Slate, and Salon. TechDirt suggests that Shiley's claim is rather unfounded saying "what he does have is the ability to point out where Perlstein relayed the same facts Shirley had previously recounted and a few minor sections which use Shirley's previous work as source material and paraphrase it. There are a couple of rather specific words retained in the paraphrasing, but that's about it, and most of those sections are recounting a setting or happening in history" adding "And it's not as though Perlstein is attempting to hide his use of Shirley's books as source material. The book-in-print directs those interested in the source material to Perlstein's website where he lists them out, including several of Shirley's books. He further credits Shirley's work in his source notes, talking about how useful it was. He further had reached out to Shirley to discuss some of his sources earlier.". Expect quills at dawn. 

Music Publisher EMI  has asked the Second Circuit to affirm it's victory in the battle with the heirs of songwriter John Frederick Coots over the ownership of the copyright in the song "Santa Claus Is Comin' to Town," asking the appellate court to confirm the lower court decision that company owns the song's rights until 2029. In a brief to the appeals court, EMI urged the Second Circuit to uphold U.S. District Judge Shira Scheindlin's ruling that Coots' heirs couldn't use the termination provisions under the Copyright Act of 1976 to regain the rights.

One of the disputed 'selfies'

Over on the IPKat Jeremy has posted a guest blog from Estelle Derclaye which re-examines the Case of the Black Macaque - the dispute between Wikipedia and British phorographer David Slater about some monkey business.- the snaps taken when the photographer's camera was stolen by a monkey (a crested black macaque) while he was on a trip to Indonesia in 2011 - and the monkey took a few shots of herself. Back in 2011 Aurelia J. Schultz posted an article on the 1709 Blog looking at this from the perspective of UK law and Indonesian law - as that is where the photo was taken - and the Daily Mail published the pictures here in the UK and online - and one of the thtee published 'selfies' had (C) Caters News Agency embedded in the shot with Mr Slater explaining "One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy" and "At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection. They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button. The sound got his attention and he kept pressing it". There is no mention of Slater amending the shot at that time although the three shots do look beautifully positioned and cropped in the Mail. Aurelia's opinion on the then known facts - "it appears under UK law, the photos are in the public domain. Under Indonesian law, the matter is less clear."  Slater is now looking to have the photos removed from Wikipedia: Wikipedia believes that although the photos were taken on the photographer's camera, he does not own the copyright because he did not take the photos. The Wikimedia Foundation spokeswoman, Katherine Maher, said that under US law no one owns the copyright and a message on its site states: "This file is in the public domain because as the work of a non-human animal, it has no human author in whom copyright is vested." Slater believes that Wikipedia's refusal to remove the article and a link to a free download of the images has negatively effected his livelihood and earnings. Estelle's view - "So is there copyright in the photograph? It seems

like this will be an evidential issue. If the photographer did indeed adjust the camera settings and the monkey stole the camera, then the monkey just pressed a button and is not the author, but the photographer is" and asks whether amendments such as cropping can "qualify the photograph as a derivative work made by the photographer?" concluding

 "The photographer may have a case -- and he actually wants a court to decide the issue." There were ten comments last time I looked - a couple of which are well worth a read. And with all this monkeying about, why not take a look at Eleonora's blog on the infamous 'Oscars' selfie - another copyright conundrum - but this one caused by actors rather than apes! And here's what hapens when you put a camera amongst a pride of lions ........ something that actors would NEVER do! And an interesting blog on this from Andrew Charlesworth, Reader in IT & Law at the University of Bristol, looking at both the concept of who can be a person and who might own the copyrights - and which jurisdiciton might apply here - and from an Australian perspective (what if a Koala took the selfie) see much more here.

That Oscars selfie and an automated snap of lions

And finally (and as you enjoy these various selfies) the CopyKat came accross a rather well written article about "common copyright myths related to fan fiction". The blog, A Fresh Look at Copyright and Fan Fiction by non lawyer Deb McAlister-Holland was actually an update of an earlier blog about fan ficiton and the author had been contacted by attorney Heidi Tandy who then helped McAlister-Holland through this tricky area - recently thrust into the public eye with Conan Doyle Estate's unsuccessful attempt to protect an expired copyright in many of the Sherlock Holmes stories and the characters of Holmes and Dr Watson. This new article is a good read and looks at transformative works under US law, The Supreme Court's decision in Campbell v. Acuff-Rose Music, the "Harry Potter Lexicon" case, and commercial and non-commercial uses in the USA in the context of fan fiction. If you have a burning urge to write the next sequel or prequel to Lord of the Rings, or deveop your own 'Harry Potter' characters or bring new tales of vampiric delight with your own Twlighight Saga you can find the original article here and the updated article here.

The CopyKat - Pirate Bay founder sails into an unsafe Swedish harbour

Peter Sunde , co-founder of file-sharing website The Pirate Bay, has been arrested in southern Sweden and is now expected to serve an outstanding sentence for copyright violations after being on the run for nearly two years. Sunde had been wanted by Interpol since 2012 after being sentenced in Sweden to one year in prison and fined for breaching copyright laws. "We have been looking for him since 2012," said Carolina Ekeus, spokeswoman at the Swedish National Police Board. "He was given eight months in jail [the sentence was reduced on appeal although the fines increased] so he has to serve his sentence." Sunde had been living in Berlin, Germany, but returned to Sweden at times due to having family there.His final appeal against his sentence failed when his request for another appeal was denied by Sweden’s Supreme Court.

In the U.S. the Department of Justice is conducting a review of the consent decrees governing the nation’s largest music performance rights organisations, which many see as a critical development amid the ongoing debate over copyright reform. ASCAP last had its consent decree, which governs how the collection society collects and distributes royalties, updated in 2001, while BMI’s has not been updated since the 1990s - and boy oh boy, has technology moved on since then! Both songwriters and publishing companies have suggested that the consent decrees need serious revision, with some even arguing they should be abolished - and ASCAP have already publicised some suggested changes. But the push for updates grew louder earlier this year when a federal rate court gave an unfavorable ruling to ASCAP in its royalty rate dispute with Pandora. Review of the consent decrees will trigger a 60-day public comment period, which is sure to draw in stakeholders ranging from songwriters and publishing companies, to broadcasters and record labels.

Colin Kaepernick

The arm tattoos on San Francisco 49ers quarterback Colin Kaepernick will be duplicated on his digital avatar in the next “Madden” video game: According to ESPN, Kaepernick secured copyright waivers from the two tattoo artists who inked the biblical psalms and other religious references and which were copied into the biceps of the virtual Kaepernic and so, and as the NFL Players Association suggests, he has their permission to include their work in the game. More here.

Just as Shakespeare could not copyright iambic pentameter, an architect can't claim clapboard siding on colonial houses as his intellectual property, the 2nd Circuit Appeals Court has ruled, saying "Shakespeare wrote his sonnets; Brahms composed his Hungarian dances; and plaintiff designed his colonial houses"  ...... "Because we must preserve these forms for future artists, neither iambic pentameter, nor European folk motifs, nor clapboard siding are copyrightable." in a case brought by architect  James Zalewski and his firm Draftics Ltd. against construction companies T.P. Builders and Cillis Builders, the court held that the similarities Zalewski spied between his designs and the defendants' buildings "are features of all colonial homes, or houses generally" and not protected.

The Beastie Boys have won $1.7m (£1m) in a copyright violation case against the Monster Energy Co who produce the energy drink.of the same name. The case was for copyright infringement and implied endorsement. Monster had used a montage of Beastie Boys tracks in a promotional video relating to a snowboarding event the brand sponsored, which was posted shortly after the passing of Beastie Boy Adam Yauch, who had included a clause in his will prohibiting his name, image or music being used in advertising or marketing materials. Monster conceded that it had used the music without permission, but said that it had done so by mistake, after one of its marketeers mistakenly inferred from Z-Trip, the DJ the company had worked with on the party in the promotional video, that the music had been cleared. The beverage maker had insisted it should owe no more than $125,000 (£74,000). The Beastie Boys had sought $2m (£1.1m) - and got most if it. 

China is considering raising penalties for copyright infringement, according to a draft amendment. The draft amendment to the Copyright Law will see miscreants face fines of five times their illegal gains, or up to 250,000 yuan when the exact sum cannot be established. Previously the figures were three times and 100,000 yuan. The draft document was published by the Legislative Affairs Office of China's State Council to solicit public opinion, (which must be submitted before July 5th).