Music

A Closer Look: Senate Passes Music Modernization Act

On September 18, 2018, after months of intense negotiations with various music industry groups and lobbying interests, the United States Senate unanimously approved the Music Modernization Act (now renamed the Orrin G. Hatch Music Modernization Act, “MMA”), clearing what many believe to be the last major hurdle required for the MMA to become the most significant piece of music copyright legislation to be signed into law in almost two decades.  The Senate version of the MMA will now be sent back down to the House for reconsideration (the House approved an earlier version back in April 2018 and is expected to approve the Senate version) before being signed into law by the President.

As with the House version, the Senate version of the MMA combines three main pieces of legislation, which accomplish the following: Continue reading

Update – Three Music Industry Reform Bills to Watch: Congress Introduces Legislation to Modernize Music in the Digital Age

On September 18, 2018, the Senate unanimously approved the Music Modernization Act, now renamed the Orrin G. Hatch Music Modernization Act, in honor of the retiring Utah Senator – an avid songwriter who spearheaded the bill.  This approval follows its unanimous passing by the House of Representatives in April.  Due to changes made by the Senate, the bill will now return to the House for approval before it can be signed by President Trump to become law.  Public praise of this significant step has poured out from a variety of major industry players including the NMPA, the RIAA, BMI, ASCAP, the Recording Academy, and SoundExchange.  The bill’s supporters have uniformly expressed that such legislation is crucial in the fight for fairness for music creators and that it will also confer benefits on consumers and copyright holders.  While the precise details of the alterations that were made to the Act are not yet clear, many changes appear to have influenced by holdouts from satellite and digital broadcasting services, including a compromise proposal from SiriusXM to pay half of the performance royalties for pre-1972 recordings under the CLASSICS Act.  As of this writing, it is expected that the bill will pass within the next few weeks, marking the first music licensing reform in over two decades. Continue reading

Three Music Industry Reform Bills to Watch: Congress Introduces Legislation to Modernize Music in the Digital Age

In a rare show of bipartisanship, Congress has proposed legislation that would financially benefit music creators who have either been overlooked in the past or are compensated on inconsistent terms.  Three bills –  the Fair Play, Fair Pay Act, the CLASSICS Act and the Music Modernization Act (all of which have bipartisan support) – were introduced in 2017 to reform Copyright laws and bring balance to the music industry.  As copyright reform has gained much traction in the past month, with a House Judiciary field hearing that took place in New York City on January 26, 2018, the three bills represent hope for change and needed updates in the digital music era.

Fair Play, Fair Pay Act

The Fair Play, Fair Pay Act, introduced March 2017, aims to extend a copyright owner’s rights to include the right to perform a sound recording publicly by means of any transmission – including traditional broadcast.  Currently, the Copyright Act affords the owners of musical compositions (the underlying music and lyrics) the right to perform a sound recording publicly, but only provides a much narrower public performance right for owners of sound recordings, limited to performance by means of digital transmissions by cable, satellite, and internet radio stations.  For instance, when an internet radio station such as Pandora streams a song, the artist and record label receive a statutory royalty for the performance of the sound recording, but when that same song is played on terrestrial AM/FM radio, the artist and record label are not compensated (in both scenarios the writer and/or publisher of the song is paid for the performance of the composition, though).  The radio industry has consistently defended the lack of monetary compensation for radio air play, citing the promotional value that radio uniquely brings an artist and record label. Continue reading

Copyright Royalty Board Announces Compulsory Mechanical License Rate Hike for Interactive Streaming/Limited Download Services

On January 26, 2018, the United States Copyright Royalty Board (the “CRB”) released its initial determination regarding the royalty rates and terms of use that will apply over the next five years to the compulsory license of musical compositions in connection with the distribution of physical and digital phonorecords (sound recordings not accompanying an audio-visual work).  The highly anticipated ruling is the result of a CRB rate hearing that was initiated by the National Music Publishers’ Association and the Nashville Songwriters Association International and that took place between March and June of last year.  The new rules will become effective as of the date the CRB releases its final determination, which amongst other things, will include the CRB’s rate determinations for physical phonorecord deliveries and permanent downloads not yet addressed in the initial CRB announcement.  The final determination will result in a substantial increase to the mechanical royalty rate to be paid by interactive streaming/limited download services such as Spotify, Apple, Amazon, and Google. Continue reading

In re: Tam Take Two: Federal Circuit Strikes Down Disparagement Provision of Lanham Act § 2(a)

In May we reported that a panel of the U.S. Court of Appeals for the Federal Circuit had affirmed the USPTO’s denial of a registration for the trademark “THE SLANTS” to refer to an all-Asian-American rock band, but had, in a prescient “additional views” opinion, prompted en banc reconsideration.  A majority of the full Federal Circuit held last week that the provision of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a) (“Section 2(a)”) which prohibits the registration of “disparaging” trademarks violates of the First Amendment, and vacated the USPTO’s holding that Simon Shiao Tam’s mark was unregisterable.

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Redskins Redux: In re: Simon Shiao Tam and the Fate of “Disparaging” Trademarks

Last year we reported on the hotly debated ruling of the U.S. Patent and Trademark Office’s (“USPTO”) Trademark Trial and Appeal Board (“TTAB”) in Blackhorse v. Pro Football, Inc., which cancelled six trademarks belonging to the Washington Redskins football team on the grounds that those marks were disparaging to Native Americans.  While the district court appeal of that decision remains pending in the summary judgment phase, a new dispute concerning another racially charged trademark has paved the way for a potentially significant ruling by the full U.S. Court of Appeals for the Federal Circuit on the key underpinning of the Blackhorse case: the constitutionality of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a) (“Section 2(a)”).

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Stark Victory: Sony Music Successfully Defends Iron Man Copyright Infringement Suit Based on Third-Party Work for Hire Challenge

When composer Jack Urbont brought suit for copyright infringement against rapper Dennis Coles (popularly known as Ghostface Killah), Urbont likely thought he had a straight-forward case. Urbont claimed that Coles’ had improperly sampled Urbont’s “Iron Man Theme” on Coles’ album, Supreme Clientele. Written for the Marvel television program Marvel Super Heroes, the Iron Man Theme served as the theme song for the “Iron Man” portion of the program. Urbont alleged that Coles, along with Sony Music Entertainment and Razor Sharp Records, infringed Urbont’s copyright in both the Iron Man musical composition and sound recording. In order to prove infringement, Urbont needed to demonstrate both ownership of a valid copyright, and copying of the original elements of his work. Urbont seemed to easily satisfy the first requirement: he owned both the initial and renewal copyright registrations in the Iron Man Theme musical composition and, as further proof of ownership, Urbont and Marvel had entered into a licensing agreement in which Urbont is referred to as the “owner,” and Marvel the “licensee,” of the work. According to Sony, however, Urbont composed the Iron Man Theme as a “work for hire,” placing copyright ownership in Marvel, and not Urbont. U.S. District Judge Naomi R. Buchwald agreed, undertaking an analysis focused on the original intent of Urbont and Marvel as to copyright ownership. Continue reading

Inside Counsel’s Five-Part Series, “Where Former Entertainment GCs Go Next”, Provides Firm Profile of CDAS

Inside Counsel’s Senior Editor & Community Manager, Rich Steeves, published a five-part series titled “Where Former Entertainment GCs Go Next” last week, which was prominently featured on the Inside Counsel website.

The series, which discussed the so called “third act” for successful general counsel, provided a comprehensive profile of CDAS and the services the firm provides to clients, while also discussing the appeal the firm has had for former GCs in their transition to a new environment.

CDAS Partners Aileen Atkins, Frederick Bimbler, Douglas Jacobs, Eleanor Lackman, Marc Simon and Stephen Sheppard were interviewed for the series. You can find a link to each part of the series below.

PART 1: http://www.insidecounsel.com/2015/04/27/third-act-where-former-entertainment-gcs-go-next-p
PART 2: http://www.insidecounsel.com/2015/04/28/third-act-where-former-entertainment-gcs-go-next-p
PART 3: http://www.insidecounsel.com/2015/04/29/third-act-where-former-entertainment-gcs-go-next-p
PART 4: http://www.insidecounsel.com/2015/04/30/third-act-where-former-entertainment-gcs-go-next-p
PART 5: http://www.insidecounsel.com/2015/05/01/third-act-where-former-entertainment-gcs-go-next-p

Musical Composition Copyright Infringement Cases Back in Vogue

Music “plagiarism” copyright infringement cases are not uncommon, and have made a comeback in recent years.  Artists from Led Zeppelin (Randy Craig Wolfe Trust v. Led Zeppelin (“Stairway to Heaven”)), to Avril Lavigne (Dunbar v. Gottwald (Lavigne’s “Girlfriend”)), to Jessie J (Loomis v. Cornish (Jessie J’s “Domino”)) have lately become embroiled in legal battles over allegedly pilfered music.  And no case is more notorious nowadays than Williams v. Bridgeport Music, Inc., the gossip-column-worthy lawsuit between the Marvin Gaye Estate and pop stars Robin Thicke and Pharrell Williams over the pop/dance/R&B hit “Blurred Lines.”  Continue reading

Toto Can’t “Hold the Line”: Sony Prevails in Digital Royalty Dispute with Classic Rockers

Toto, Inc. v. Sony Music Entertainment, No. 12-cv-1434 (RJS) (S.D.N.Y. 2014)

A New York federal judge recently ruled in favor of Sony Music Entertainment (“SME”) in the latest dispute over the proper characterization of artist royalties on digital music sales, dismissing a breach of contract claim brought by rock group Toto (best known for the hits “Africa” and “Rosanna”). Ever since the Ninth Circuit’s 2010 decision in favor of Eminem’s former production company in FBT Productions LLC v. Aftermath Records, artists such as Toto – whose recording contracts predated digital music sales – have taken to the courts arguing that they were underpaid on digital record royalties. Toto’s claims, like FBT’s and many other plaintiffs’ claims, focus on whether, under recording contracts, digital purchases are “sales” as opposed to higher-paying “licenses” or “leases.” Continue reading

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