THE COPYKAT - in the wake of "Blurred Lines" - more blurred lines

There have been two major US decisions in the word of music and sound recordings with a win for Kraftwerk and a loss for Katy Perry, and in the background a third (the Led Zepplin "Stairway to Heaven" case waits for an upcoming an en banc appeal in the Ninth Circuit, and a fourth involving Ed Sheerhan in turn waiting for that decision (Sheerhan v Townsend) with Judge Louis L Stanton acknowledging that as the appeal judges will be considering some copyright technicalities that are very relevant to the 'Thinking Out Loud' action, even if not binding, to proceed with Sheerhan case in "wilful ignorance" of their conclusions would be "folly". 

First off - sampling: The European Court of Justice sided with German electronic music pioneers Kraftwerk, ruling that unauthorised sampling of even brief clips of a sound recording can constitute copyright infringement as long as they are recognisable, in a long running case that has added some clarity to how sampling should be treated in the European Union. Kraftwerk brought the action against hip-hop producers Moses Pelham and Martin Haas in 1999 over the Sabrina Setlur track “Nur Mir”, which revolves around a two-second snippet of Kratfwerk's “Metall auf Metall” used as a loop.

In 2012, Germany's Federal Court Of Justice found in favour of Kraftwerk, in part on the basis that Pelham could have easily recreated the sound he sampled, so clipping the snippet out of 'Metal On Metal' was just laziness. Four years later the German Constitutional Court overturned that judgement, deciding Pelham's "artistic freedom" had to be considered - and that the negative impact on Kraftwerk caused by the uncleared sample wasn't sufficient to outweigh the sampler's artistic rights. The case was then referred to the CJEU.

Making clear the difference between sampling a recording and copying part (or all) of a song, Advocate General Maciej Szpunar wrote in his opinion "A phonogram is not an intellectual creation consisting of a composition of elements such as words, sounds, colours etc. A phonogram is a fixation of sounds which is protected, not by virtue of the arrangement of those sounds, but rather on account of the fixation itself" adding "Consequently, although, in the case of [other creative works], it is possible to distinguish the elements which may not be protected, such as words, sounds, colours etc, from the subject-matter which may be protected in the form of the original arrangement of those elements, such a distinction is not, however, possible in the case of a phonogram".

In the second major case, a jury has now ruled that the Katy Perry song Dark Horse does plagiarise a Christian rap song. After two days of deliberations, the jurors concluded that Perry's team had likely heard 2008 release 'Joyful Noise' before writing 'Dark Horse', and that the latter was sufficiently similar to the former to constitute copyright infringement.

Both producer Dr Luke, a co-writer on Perry's hit and Perry herself said they had never heard of 'Joyful Noise' nor heard of the artist behind it, the rapper Flame, real name Marcus Gray - before they started work on their song and recording. Gray's team argued that there had been many opportunities for Perry and her co-writers to to have heard 'Joyful Noise' and argued that whilst the copying may not have been deliberate,  her team had subconsciously infringed the earlier work. Gray's legal team also also pointed to the similarities between the two songs - each share a distinct musical phrase consisting of four C notes followed by two B notes. Perry's legal team argued that this was a very common musical phrase that couldn't possibly be protected by copyright. Luke added that if the court did indeed decide that a musical phrase of this kind enjoyed copyright protection, it could set a dangerous precedent that would impede the music making process.

They're trying to own basic building blocks of music, the alphabet of music that should be available to everyone," said Katy's lawyer Christine Lepera during her closing arguments in court last week, but the jury has accepted that this was copyright infringement. The case now goes to a penalty phase, where the jury will decide how much Perry and other defendants owe for copyright infringement.  Jurors found all six songwriters and all four corporations that released and distributed the songs were liable, including Perry and Sarah Hudson, who wrote the song’s words, Juicy J, who wrote the rap he provided for the song. Other defendants found liable included Capitol Records as well as Perry’s producers: Dr. Luke, Max Martin and Cirkut, who came up with the song’s beat.

A wide array of artists – including Korn, Tool, Sean Lennon, Linkin Park and  Jason Mraz have joined the amicus brief submitted in the ongoing ‘Stairway To Heaven’ case, supporting the British rock band in their arguments and calling on the judges in the Ninth Circuit appeals court to uphold the earlier ruling that Led Zeppelin did copy ‘Taurus’ when they wrote their 1971 classic. In total 123 artists support the amicus brief saying that if the original ruling in the ‘Stairway to Heaven’ case is overturned it could create a dangerous precedent that would be hugely detrimental to songwriting and an assumption that “trivial and commonplace similarities between two songs could be considered to constitute the basis for a finding of infringement” and that this would confuse artists, stifle creativity, and result in “excessive and unwarranted” litigation by artists and lawyers seeking to profit from ambiguities in the law.

Rolling Stone magazine published the article Why All Your Favorite Songs Are Suddenly Being Sued? asking asking why is so much music being hit with lawsuits, in a trend a trend that shows no sign of slowing. You can find that here and more comment and analysis here (from Professor Edward Lee in the Washington Post) 

Major US broadcasters ABC, CBS, Fox and NBC Universal have filed a lawsuit against an upstart online TV service offering free over-the-air digital TV service. The suit filed in U.S. District Court in New York alleges Locast owner, New York-based non-profit advocacy group Sports Fans Coalition violates broadcaster copyrights streaming content to users for free. The suit is similar to 2013 litigation brought by studios against Aereo, the defunct OTT service that transmitted digital signals to subscribers via over-the-air antennas. The litigation also pits broadcasters against AT&T, which owns and operates WarnerMedia — although the telecom is not party to the lawsuit. More here and here. 

And more from the US: Bloomberg Law reports that a battle over banana costumes continues in federal court with one manufacturer under order to stop selling full-body banana suits because they likely infringe another’s valid copyright.  The U.S. Court of Appeals for the Third Circuit affirmed a lower court’s order stopping Kangaroo Manufacturing Inc. from selling banana costumes that are confusingly similar to plaintiff Rasta Imposta’s copyrighted design. Rasta’s copyright is valid because it didn’t “monopolize the underlying idea” of a banana, the court said. More here. 

And finally - copyright notices - serious business yes? It seems not always! Techdirt have been doing some digging and have found some very amusing notices that certainly do not fit in with the prescribed formats: How about ""No part of this publication may be reproduced, stored in a retrieval system, cookie jar or spare room... Unless you want to write the whole thing out in green crayon, in which case feel free." and "This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, carried across the country by relay, fired into space, turned upside down, eaten... On pain of death."

Kraftwerk Image Nigel Hardy https://www.flickr.com/photos/92352391@N00/35441036106

THE COPYKAT

STORING INFRINGING GOODS IN WAREHOUSES, CRIMINALLY ACTIONABLE- RULES SWEDISH SC

The Supreme Court of Sweden has reportedly, post a CJEU referral, confirmed in a recent case that storage of infringing goods with a view to selling the same may pave the way for both kinds of liabilities- civil as well as criminal. This case has been reported in detail by IPKat. The CJEU had, having established that storing counterfeit goods falls within the scope of Article 4(1) of the InfoSoc Directive, left it for the Swedish courts to determine the question of criminal liability. Due to this clarification, the Swedish SC held the scope of Section 2 and 53 of the Copyright Act to include storage of goods, for commercial purposes within the scope of the distribution right. Hence, an intention to distribute has been held to be sufficient to establish Criminal Liability. More can be read upon this here, here and here.

STAIRWAY TO HEAVEN COPYRIGHT CASE TO BE REHEARD BY THE APPEALS COURT!!

Very interestingly, it has been reported by The Rolling Stones magazine that Led Zeppelin’s Stairway to Heaven will be reheard by an 11-judge panel in the 9^th US Circuit Court of Appeals. The question raised all importantly in this dispute is whether the rock and roll band plagiarized its opening riff from Spirit’s 1968 song called “Taurus”. Last year, a decision was given by the US court of appeals, wherein the case was remanded for a new re-trial due to erroneous instructions given to the jury – which had decided in favor of the defendant. Due to sufficient proof of “substantial access” to Spirit’s work, it was held that jury instruction on the inverse-ratio rule was inappropriate. For a detailed analysis of this, one can read this informative post on Spicy IP. Holding a lack of substantial similarity, the jury had in 2016, ruled that there was no Copyright infringement. This re-trial will bring a number of important issues, regarding Copyright Infringement in musical works in light. The legality and viability of the inverse ratio rule is hopeful to be discussed at length in this trial.

PEPE THE FROG COPYRIGHT DISPUTE SETTLED!!

As covered in the last edition of the CopyKat, the Pepe the frog Copyright infringement suit has been doing the rounds for a while. However, Infowars has agreed to settle this dispute by paying $15,000 to the creator of the cartoon. The creator of Pepe the Frog – Matt Furie, had sued Infowars over alleged similarity and use of this character. The lawyer for InfoWars has reportedly stated that they were sued for millions initially, but they have agreed to settle the matter upon payment of an honest licensing fee which has been determined to be $15000. More can be read upon this on the reporting website Channel 3000.

TEXAS APPEALS COURT HOLDS THAT COPYRIGHT INFRINGEMENT IS NOT “PROPERTY TAKING”

As the government is immune from copyright infringement claims in the United States, Jim Olive a photographer, intending to claim compensation for the use of his photograph, argued in the Texas district court that infringing his copyright amounted to taking away his property which is actionable. Olive had sued The University of Houston, for the alleged taking, under the US constitution. The claim was concerned with a photograph clicked by Olive from a helicopter in 2005. Such use by the University was discovered 3 years later by Olive who was seeking just compensation for the unlawful taking. The question of enforcement of Copyright against government enterprises is an issue, wherein the legal authority is divided and scant. The federal district court, however, had held in a patent infringement suit that such infringement does not amount to property taking. No constitutional right has been established to be violated in this case – was held by the court. Not only does this gives the state complete immunity against Copyright infringement claims, it creates a bizarre situation wherein the State can infringe any person’s work without a claim for compensation being available. It will be interesting to see how the further Appeals court takes on this decision. More on this can be read here. The ruling can be found here.

COPYRIGHT DISPUTE OVER ABORIGINAL FLAG

As reported by the World IP review, the exclusive rights holder for the flag had issued a cease and desist notice to aboriginal-owned businesses using the flag sign and design on their products for commercial purposes. The flag in question has been designed by artist Harold Thomas, to recognize and protest for land rights and as a symbol of the race of the Australian aboriginals. A copyright was granted for the same in 1997. Normally, a flag representing a community is held to be in the public domain, however, an exclusive right has been granted herein. There is a worldwide discussion on who is to be given the ownership of the flag and the community members are actively involving themselves in this discussion. A change.org petition started by Spark Health, whose brand Clothing the Gap raises money for Aboriginal health, states: “This is not a question of who owns the copyright of the Flag. This is a question of control.” It will be interesting to see how the government and the court take this matter ahead.

This CopyKat by Akshat Agrawal

THE COPYKAT

The fallout from the BMG v Cox case in the USA continues, with a court denying ISP Grande Communications the benefit of safe harbour protection in a case brought by the Recording Industry Association Of America (RIAA). In the earlier case, BMG had accused ISP Cox Communications of running a deliberately ineffective system for dealing with repeat infringers,  At first instance the jury awarded $25 million against Cox when they found the broadband carrier liable for piracy by its subscribers. The US appellate court reversed that verdict in what might have been seen as a defeat for the record label - but many said at the time that a careful look at the judgment, decided on a technicality, was actually a win in the battle against piracy. The 4th Circuit took a long hard look at how and why Cox would be protected by US  "safe harbor" provisions that protect service providers from liability when users infringe copyright. - and here the Court ruled against Cox on a key point. The DMCA provides a degree of protection to ISPs and other platforms that respond expeditiously to takedown requests. But one of the requirements is that the ISP and other intermediaries to have "adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers." The appeals court said that as it stood, Cox wasn't entitled to rely on safe harbor because it did very little if anything even when told about repeat offenders - an important precedent. Grande had been accused of operating a similarly ineffective system for dealing with infringers and infringement, and the RIAA pursued the ISP arguing that Grande should be liable for its users' infringement. Now a US Court has agreed with that position in a summary judgement that quotes BMG v Cox and affirms that those seeking safe harbour protection in the US must "reasonably implement" a policy for disconnecting repeat infringers or they will lose safe harbour protection in circumstances where the "ISP has not 'reasonably implemented' a repeat infringer policy if the ISP fails to enforce the terms of its policy in any meaningful fashion". The new decision noted the December Magistrate Judge's opinion in this case, which concluded that the "undisputed evidence shows that though Grande may have adopted a policy permitting it to terminate a customer's internet access for repeat infringement, Grande affirmatively decided in 2010 that it would not enforce the policy at all, and that it would not terminate any customer's account regardless of how many notices of infringement that customer accumulated, regardless of the source of the notices, and regardless of the content of a notice". The court agreed, saying Grande's systems were even worse that Cox's:  "Grande thus did even less than Cox to 'reasonably implement' the kind of policy required for the protections of ... safe harbour ..... if lax enforcement and frequent circumvention of existent procedures disqualifies a defendant from the safe harbour's protections, the complete nonexistence of such procedures surely must do likewise"

A federal appeals court has partially sided with real estate giant Zillow in important decision involving the long-running copyright battle with photography company VHT over how property photos can be used online. The 9th U.S. Circuit Court of Appeals ruled that Zillow did not willfully infringe on copyrights for 28,000 real estate photos for its home improvement section, now known as Zillow Porchlight in a turnaround in the case from when Zillow lost a jury trial in 2017 and was ordered to pay $8.3 million in damages to VHT. U.S. District Judge James L. Robart had already reviewed the Seattle jury's decision and had ruled that “the jury had no rational basis on which to conclude” that 22,109 of those photos violated VHT’s copyright and reduced the damages award down to a little over $4 million. However Judge Robart upheld a piece of the original verdict that held Zillow liable for willfully infringing on 2,700 photographs, a key victory for VHT and the basis for keeping the damages at around $4 million: the appeals court also sided with VHT when it maintained the prior ruling that several thousand tagged, searchable photos displayed on Zillow did not constitute a “fair use” but criticised VHT's methods of dealing with the infringements before filing their suit.   “We are pleased with the results of this appeal,” Zillow said in a statement. “We take copyright protection and enforcement seriously and will continue to respect copyright permissions across our platforms.” One final consideration is whether the infringing use is as a 'compilation' - so one infringement - or multiple infringements of each image used with the appellate court saying:  “If the VHT photo database is a ‘compilation,’ and therefore one ‘work’ for the purposes of the Copyright Act, then VHT would be limited to a single award of statutory damages for Zillow’s use of thousands of photos on Digs. But if the database is not a compilation, then VHT could seek damages for each photo that Zillow used.

A real peloton (Ben Challis, (C) 2018)

Have you seen the Peloton advert? A 'committed' female cyclist called Rachael pedalling at her home, alone, on a fixed bike being encouraged along to greatness and success by a video simulator. Yeah, great job, you smashed it. Well now a group of music publishers have brought a legal action against the streaming-exercise-class company Peloton for using music from artists like Katy Perry and Drake in thousands of exercise videos without the proper permissions - and are seeking more than $150 million in damages alleging that the uses lack the necessary synchronisation licences.  “Unfortunately, instead of recognizing the integral role of songwriters to its company, Peloton has built its business by using their work without their permission or fair compensation for years,” said David Israelite, president and CEO of the National Music Publishers’ Association adding “It is frankly unimaginable that a company of this size and sophistication would think it could exploit music in this way without the proper licenses for this long, and we look forward to getting music creators what they deserve.”

It seems there is an ever growing list of comedians, artists and other creators who want to take a pop at @FuckJerry and owner Elliot Tebele , the wildly popular Instagram meme account that does seem to be very good at finding material for its users, but doesn't seem to be very good at crediting or compensating people when they use their works. First in line with a complaint about alleged violations is a complaint filed in the Southern District of New York on behalf of Nigerian-based Twitter user and Instagrammer Olorunfemi Coker, who has 133,000 followers on Twitter and over 62,000 followers on Instagram. The lawsuit alleges that FuckJerry posted a screenshot of a January tweet by Coker to its Instagram account without Coker’s permission and used it to advertise its JAJA tequila brand. (The post no longer appears to be on the FuckJerry Instagram page.) According to Coker’s lawyer, this is the first case of its kind brought against FuckJerry. But it's not as simple as it seems - jokes are a thorny issue when it comes to proving appropriation - especially when the 'idea' of a joke has been borrowed - but expressed in a new way. This one could be interesting! Jerry Media took some flak for its role in promoting the disastrous Fyre Festival and, after controversy over how the @fuckjerry account was crediting third party works, Tebele said that the account would no longer post images if the original creator couldn’t be identified saying: “In the past few years, I have made a concerted, proactive effort to properly credit creators for their work ..... [W]e have also updated our policies to make sure we are responsive to creators whenever they have reached out to us about posts.”

The EU Parliament will vote next Tuesday (March 26th) on whether to endorse an overhaul of the EU’s two-decade old copyright rules as Google and internet activists stepped up their criticism of a requirement to install copyright filters. Websites and businesses across Europe are protesting controversial changes to online copyright being introduced by the European Union. Ahead of a final vote  a number of European Wikipedia sites are going dark for a day, blocking all access and directing users to contact their local EU representative to protest the laws. Other major sites, such as Twitch and PornHub, are showing protest banners on their homepages and social media. Meanwhile, any users uploading content to Reddit will be shown a #saveyourinternet message.

Music Modernization Act launched in the US

COPYRIGHT: Two US Congressmen have launched a proposed new statute that has the support of both music owners and music users in an effort to overhaul of the mechanical royalties system in the US. Doug Collins and Hakeem Jeffries say that the Music Modernization Act would "bring music licensing its first meaningful update in almost 20 years".

With no collecting society offering a blanket licence covering the so called 'mechanical rights' in songs, music users must identify the owners of every song they copy, and make sure those owners receive the licensing paperwork and fixed royalty rate set out in American copyright law. Its not easy - the streaming platforms, which concurrently exploit both the performing right and mechanical right elements of the song copyright. Last May, Spotify came to a proposed $43 million settlement to resolve a class action from songwriters led by David Lowery and Melissa Ferrick. The plaintiffs in that case had alleged that Spotify hasn't adequately paid mechanical licenses for song compositions. In July, Spotify was hit with two lawsuits, including one from Bob Gaudio, a songwriter and founding member of the group Frankie Valli and the Four Seasons. Now Spotify has been hit with a $1.6 Billion copyright lawsuit from Wixen Music, publisher of songs by Tom Petty and Neil Young amongst others, which amongst other claims argues that the Lowery/Ferrick settlement was far too low. Apple Music has faced similar claims. 

The proposed legislation will be an overhaul of the compulsory licence system that governs mechanicals in the US, with Collins and Jeffries saying: "Under the Music Modernization Act, the digital services would fund a Mechanical Licensing Collective, and, in turn, be granted blanket mechanical licenses for interactive streaming or digital downloads of musical works". Although paid for by the digital services, the new collecting society would be run by music publishers and (self-published) songwriters. The law would also: change the way the statutory boards and courts that regulate US collective licensing are organised; the way judges are selected to consider the royalty rates would be changed; and the criteria employed when setting rates would be altered to reflect market realities.

With Wixen's claim against Spotify alleging that Spotify outsourced its work to a third party, licensing and royalty services provider the Harry Fox Agency, which was "ill-equipped to obtain all the necessary mechanical licenses", surely this proposed legislation is much needed? Some say yes, some say maybe!

The Digital Media Association (which includes Apple, Spotify, YouTube, Pandora, Amazon, Napster and Microsoft as members) is backing the proposals, as are the US music publishing and songwriter community. David Israelite for the National Music Publishers Association said "The Music Modernization Act brings the laws that govern songwriters into the modern age. This legislation will lead to improved rates for songwriters and will streamline digital music companies' ability to license music. While there is still more to do to free songwriters from oppressive government regulation, this is a major step forward". The NMPA also put its name to a joint statement alongside collecting societies BMI and ASCAP, plus Songwriters Of North America and Nashville Songwriters Association International. Together they declared that the Music Modernization Act represents "months of collaboration and compromise between the songwriting and tech industries". However the National Association of Broadcasters (NAB) said it has serious concerns about unrelated provisions in the bill that may unjustifiably increase costs for many music licensees, including local radio and TV broadcasters, who otherwise receive no benefit from the legislation” the organisation said in its statement adding “NAB looks forward to working with the bill sponsors and impacted parties to resolve our outstanding concerns” and  the Songwriters Guild of America said that while the proposed legislation has many good points, it also has a “number of serious problems” that will need to be addressed before SGA and thousands of its members can support the bill. 

Other proposed music sector focussed legislation in the US includes moves to ensure AM/FM radio stations to pay royalties to artists and labels as well as songwriters and publishers (the Fair Play Fair Pay Act), and moves to sort out the pre-1972 'quirk' in US copyright law (the CLASSICS Act), and the Transparency In Music Licensing & Ownership Act proposed by Congressman Jim Sensenbrenner earlier this year. That proposal also seeks to overcome some of the issues around digital licensing and the problems caused by the lack of a workable publicly accessible database detailing accessible music rights ownership information.

An interesting take on how this may have influenced Wixen Music's recent filing of it's $1.6 billion lawsuit against Spotify (and how this might impact on Spotify's planned IPO) here
https://www.npr.org/sections/therecord/2018/01/03/575368674/sweeping-new-music-law-expedites-a-1-6-billion-lawsuit-against-spotify and here  https://musicindustryblog.wordpress.com/tag/spotify-law-suit/

https://www.billboard.com/articles/business/8078543/music-modernization-act-house-of-representatives-licensing-reform

https://www.billboard.com/biz/articles/news/legal-and-management/8085840/spotify-hit-with-16-billion-copyright-lawsuit-over

http://musiclawupdates.blogspot.co.uk/2017/12/apple-music-in-hot-water-over-unpaid.html

http://www.theweek.co.uk/90715/spotify-hit-with-billion-dollar-copyright-lawsuit

The CopyKat - gazing across the pond

A U.S. judge in California has allowed a class action lawsuit to proceed against satellite-radio company Sirius XM Holdings Inc over the payment of royalties for pre-1972 tracks. The ruling by U.S. District Judge Philip Gutierrez marks another win for members of the 1960s band the Turtles, known for the hit "Happy Together," and means the company could face claims from a broader group of artists. "Sirius XM treats every single owner of a pre-1972 song the same, namely it doesn't pay them, so it was appropriate for this court to grant class certification," said Henry Gradstein, attorney for Flo & Eddie Inc, a company controlled by founding Turtles members Howard Kaylan and Mark Volman. Sirius XM had argued against certification because it said damages would be difficult to calculate accurately for different members of the class. Gutierrez rejected that argument saying "a class action is superior to individual litigation to the fair and efficient adjudication of the present controversy." More here.

In Jamaica, The House of Representatives has started to debate amendments to the Copyright Act to strengthen legal protection for creators of intellectual property.  Investment, Industry and Commerce Minister, Anthony Hylton opened the debate on the Copyright (Amendment) Act, 2015. Among some of the proposed changes is the extension of the rights of companies to their work from 50 to 95 years. the proposed amendments also seek to provide certain exemptions that will give blind and visually impaired people greater access to copyrighted work. More from the Gleaner here.

Back in the USA, Techdirt has a fairly damning review of the actions of 'copyright troll' Malibu Media. Techdirt tells us "Federal district court judge Timothy Black appears to have had enough of Malibu Media and its copyright trolling practices. In two separate cases this week, Judge Black issued "orders to show cause" (more or less judicial language for "I think you've done something really bad and here's your last chance to show me otherwise) that go beyond the usual level of "Hey, it appears you've been acting naughty" to a full blown recitation of all of Malibu Media's questionable practices". Much more here.

The U.S. National Music Publishers' Association (NMPA) has filed a lawsuit in the US District Court for the Southern District of New York, alleging copyright infringement against Wolfgang’s Vault, which hosts many thousands of hours of live concert recordings which it disseminates on websites such as YouTube, Music Vault, Concert Vault and Daytrotter. The NMPA claims the online live concert audio and video platform does not have proper licensing in place for the content it hosts. The NMPA says "Hopefully, this lawsuit will bring publishers and many iconic songwriters the revenue they deserve for the use of their music.”


And finally, US music collection society BMI has published an analysis of Judge Louis L Stanton's recent decision in the rate court which raised the royalty Pandora had to pay BMI members, noting that the ruling judge clearly stated that, even though the directly negotiated deals between publishers and broadcasters were put on hold by the courts, the "direct licenses between Pandora and Sony and Universal for the 2014 calendar year were the best benchmarks because they are the most recent indices of competitive market rates". The big publishers wanted to pull from the collective licensing system in the USA for digital rights but the courts decided their relationship with ASCAP and BMI was 'all or nothing' - all in or all out. Judge Stanton decided that Pandora, the digital radio service, must pay 2.5 percent of its revenue to BMI, which collects public performance royalties on behalf of songwriters and publishers. More from the Hollywood Reporter here.

The CopyKat - tickling Wednesday's whiskers

Live video streaming is nothing new – services have been around since the early 2000s – but Meerkat and Periscope have made it easier to broadcast our lives on the go and shifted the appeal near to the mainstream as our earlier blog about the potential loss to broadcasters incliuding HBO and Showtime from the Floyd Mayweather and Manny Pacquiqao fight explained. Ever since they launched, however, speculation has followed over the potential legal liability for content delivered on their platforms .... and the Guardian has taken te time to speculate.

its all here http://www.theguardian.com/technology/2015/may/11/periscope-meerkat-broadcast-copyright-premier-league

Rightscorp and their clients Warner Bros and BMG Rights Management have escaped a claim that they abused the U.S. DMCA legal process by exploiting subpoenas. The class action lawsuit attacked "Defendants’ right to petition courts in the Ninth Circuit to issue DMCA subpoenas to identify copyright infringers" accprding to the rihts owners, and District Judge Dale Fischer agreed that there was no abuse of process saying "The first fatal deficiency in Plaintiff’s abuse of process claim is that Plaintiff raises no ulterior motive in Defendants’ use of the subpoenas" adding  "Whether or not § 512(h) subpoenas should validly be issued under the circumstances in which Defendants sought them, there is no allegation and no evidence that Defendants sought to do anything other than what their subpoena requests indicated — identify potential copyright infringers for the purpose of pursuing Defendants’ rights under the Copyright Act." More from the Hollywood Reporter here.

However a small U.S. ISP by the name of Birch Communications has issued a press release which says that the U.S. District Court for the Northern District of Georgia has sided with the ISP and quashed Rightscorp's latest DMCA subpoeana for user information. “Our first order of business when anyone requests access to a customer’s private information is to refuse, absent a valid subpoena or court order, which we then scrutinize as we did with Rightscorp’s illegal subpoena in this matter," said Christopher Bunce, Senior Vice President and General Counsel for Birch. "Rightscorp’s attempt to gain access to our customers’ data was in essence a piracy fishing expedition.”

Universal had posted an 8% rise in digital music income in the first quarter of this year (Q1 2015) to €459m. UMG said recorded music revenues grew 2.4%  and the growth in subscription and streaming revenues more than offset a decline in both digital download sales and physical sales. Music publishing revenues (at UMPG) grew 3% (13% in actual terms) to €184m, also driven by ‘increasing subscription and streaming revenues’. UMG’s overall revenues – across recorded music, publishing, merchandise and more – were up 11.6% year-on-year in Q1 to €1.1bn.

Interestingly given the news that Apple has allegedly been pushing the major labels to clamp down on 'freemium' streaming services - Warner Music Group’s CEO Stephen Cooper (pictured, right) broke ranks with Sony and UMG to encourage the recorded music industry to exercise caution when it comes to dismissing the value of ad-funded music services saying "First of all, there are a lot of models out there, and all of those models — ad-based, subscription-based, or with both — are better than piracy" addng “You know to be crystal clear, piracy is zero revenue, it’s the theft of intellectual property, and it’s not good for anyone. So all of these models are better than piracy, that’s number one" and “Number two, the freemium models, if they encourage the adoption of subscribers… form ad-based [paths] to subscription-based models over time. We at Warner believe that’s good news". Cooper went on to say he would like to see the move from ad based streaming to subscriptions models to be 'turbo charged'. 

The UK has a new Culture Secretary in the person of John Whittingdale MP. The new Secretary Of State For Culture, Media And Sport has been the long-term chair of Parliament's Culture, Media And Sport Select Committee, and he has been supportive of the creative industries in the past, and pushed for the provisions to prevent illegal file-sharing to be included in the 2010 Digital Economy Act. However, its no secret he is not a big fan of the BBC, with the Telegraph leading with "Tories 'declare war on BBC' with John Whittingdale appointment" and the Guardian noted "In October, he described the BBC licence fee as “worse than poll tax” and said the £145.50 charge was unsustainable in the long term." He has said that the licence fee does need to be “tweaked” to take into account of on-demand viewing via the BBC’s iPlayer, and he has said that licence fee evasion should be decriminalised. Record industry trade group the BPI welcomed the appointment of Whittingdale and tahat of his predecessor Sajid Javid MP who becomes Business Secretary in David Cameron's new government.

U.S. Copyright Office Releases Comprehensive Music Licensing Study

The xx by Bea Gibson (2013)

A CopyKat pat on the back to our friend Amanda Harcourt (who knows a thing or two about music and copyright) for alerting us to a new study from the U.S.A. 

The U.S. Copyright Office has released a comprehensive study, “Copyright and the Music Marketplace,” detailing the ageing music licensing framework as well as the ever-evolving needs of those who create and invest in music in the twenty-first century. In addition to providing an exhaustive review of the existing system, the report makes a number of recommendations that would bring both clarity and relief to songwriters, artists, publishers, record labels, and digital delivery services.  

“Few would dispute that music is culturally essential and economically important to the world we live in,” said Maria A. Pallante, Register of Copyrights, “but the reality is that both music creators and the innovators who support them are increasingly doing business in legal quicksand. As this report makes clear, this state of affairs neither furthers the copyright law nor befits a nation as creative as the United States.”

There is broad consensus across the music industry on a number of key points: (1) creators should be fairly compensated; (2) the licensing process should be more efficient; (3) market participants should have access to authoritative data to identify and license sound recordings and musical works; and (4) payment and usage information should be transparently available to rightsholders. But there is less agreement as to how best to move forward.

"The Copyright Office’s recommendations address almost every aspect of the music landscape, including the existing statutory licenses, the role of performing rights organizations, terrestrial performance rights for sound recordings, federal protection for pre-1972 sound recordings, access to music ownership data, and the concerns of songwriters and recording artists. These recommendations present a series of balanced tradeoffs designed to create a more rational music licensing system for all."

Some , in particular the actual creators of songs and sound recordings, may be disappointed by the study; whilst it rightly tackles music licensing in an ever changing market place and acknowledges that "Music creators should be fairly compensated for their contributions" - it doesn't really tackle one of the main 'elephants in the room' here - the share of digital revenues that actually make it back to recording artistes (in particular) from their record labels - although songwriters will be encouraged that the report does focus on the disparate treatment of analogous works - in particular the looking at why the lions share of the royalty pot from streaming goes to the owners of sound recordings rather than music publishers and songwriters and what might be done to rectify this.

The full report and executive summary are available on the Copyright Office’s website at http://copyright.gov/docs/musiclicensingstudy/ and there is a useful summary and some pithy comments over on the CMU Daily here

UPDATE

BASCA, The British Academy Of Songwriters, Composers And Authors, the association that represents composers and songwriters has  announced a new campaign called The Day The Music Died, which aims to give a louder voice to concerns in the songwriter community about the changes occurring as the music business shifts from CD to digital, and from downloading to streams - not least from songwriters and composers who are not performers so cannot directly from newer revenue streams such as sponsorship or the growth in live music sector - and many writers and music publishers have the growing belief that split in revenues generated by recorded music consumption in the digital sphere - where the vast majority goes to the label - is no longer fair or sustainable. 

Announcing the project, BASCA boss Vick Bain said: "Without songwriters and composers there is no music industry and it is, therefore, scarcely believable that writers are almost an afterthought when it comes to getting paid for their work from digital sources. It is not an exaggeration to say that unless things change and change soon the incredible legacy and future health of British songwriting is at real and immediate risk. They need better protection and better remuneration and action needs to happen swiftly".

On bold infringement or unauthorised use of hit singles for commercials

Über-cool US rock duo The Black Keys are composed of Dan Auerbach and Patrick Carney and, during their careers, have already attracted some attention, among the other things, in the general discussion concerning fully-licensed online music services. A while ago, they indeed joined those (such as Coldplay) who have decided not to make their works available on music-streaming services, such as Spotify, MOG, Rdio or Rhapsody, on fear that, as argued by Billboard, these services detract from already declining music sales. 

The band has recently released their seventh album, entitled El Camino. According to Wikipedia, this has been very successful so far and received positive reviews, being also ranked by many music publications as one of the best albums of the year. In the US, it debuted at number two on the Billboard 200 and sold 206,000 copies in its first week, the highest charting position and single-week sales. 

Apparently the success of the album has been so great that its first two singles are already at the centre of some copyright litigation.

A few days ago the duo, together with music producer Danger Mouse (copyright enthusiasts will promptly recall that there was a time when Danger Mouse was on the other side of the courtroom, being the defendant in the well-known Grey Album case), brought two distinct proceedings against The Home Depot and Pizza Hut for copyright infringement (you can read the lawsuit which has been filed against The Home Depot here. However, this blogger has not been able to find a copy of the suit against Pizza Hut: can any reader help?). 

As mentioned, these concern unauthorised use of the two first single of The Black Keys' El Camino, these being Lonely Boy (which was released last October) and Gold on the Ceiling (which was released in February last).

The Black Keys appalled
by news of shameless infringers

As regards the first lawsuit, which was filed before the US District Court for the Central District of California, plaintiffs claim that commercial advertisement for "Ryobi" brand power tools prominently features significant portions of Lonely Boy, without any authorisation from The Black Keys, thus infringing 17 USC §§ 106 and 501.

As to the Pizza Hut commercial for Cheesy Bites Pizza, this is said to include a (highly) significant part of Gold on the Ceiling.

We'll see what happens next. It may be likely that all this ends up with a settlement, as was eventually the fate of the commercial for Dannon's Oikos Greek Yoghurt, which was first aired during last Super Bowl (see here and here).

In any case, it is not that difficult to realise that unauthorised use of third parties' music for commercials is not an activity which may go unnoticed and not upset anyone ... Is this the place where copyright infringement meets boldness?

YouTube needs a Monitor

YouTube today lost a dispute before the Regional Court of Hamburg (LG Hamburg) against German collecting society GEMA (court press release here, and some media reports here, here, here). YouTube was held liable under the principle of 'Störerhaftung' ('disturbance liability' - secondary liability for contributing to someone else's breach of a third party's rights) and was issued with a permanent injunction to take down a number of songs in which GEMA administers the making available rights, and to ensure that the songs in question do not reappear on the platform in the future. 

At the preliminary stage of the proceedings in 2010, the court had refused to issue an injunction. The only reason for that was lack of urgency, though, so today's judgment is hardly surprising. What is interesting, however, is the rhetoric surrounding the case. Apparently, GEMA, YouTube and the Bundesverband Musikindustrie (Federal Association of the Music Industry) all expected great things from the judges.  According to an article in the FAZ (here), they were all hoping for clarification of the complex legal area of copyright, collecting societies and the Internet. What the court did do was point out that, upon being informed of a particular infringement, YouTube not only had to take down the file in question, but also use its Content-ID program and a word filter to monitor possible future reappearances of the respective song and take them down as well. Simply telling the copyright owners to do their own monitoring for repeat infringements did not suffice to avert liability.

To my mind, the judgment is fair enough, but Internet forum reactions to the judgment of course display the usual mix of cries over going back to the digital stone age, Internet censorship, content mafia, etc. Personally, while I admit to feeling a bit miffed when I want to watch a video on YouTube and cannot because 'this content is not available in your country', I have never had the impression that the ready availability of pop songs on YouTube is a precondition for the pursuit of happiness in general and freedom of speech and information in particular - but maybe I'm just weird that way...

In any case, it will be interesting to see whether YouTube and GEMA will resume negotiations now and finally come to a sensible agreement, with or without the help of the Arbitration Board under the Copyright Administration Act (see here), or continue their dispute through the instances for the next two to five years - after which they will probably need to go to the Arbitration Board anyway, which will then decide what a reasonable payment scheme would be. Intriguingly, GEMA does have per-click payment schemes agreed with streaming services Simfy and Deezer (see FAZ article here), which makes the assertions by YouTube/Google representatives that GEMA's claims are ludicrously overpriced a bit less easy to believe.