Showing posts with label Entertainment Law. Show all posts
Showing posts with label Entertainment Law. Show all posts

Wednesday, May 13, 2009

HR 848 passes committee

Rep. John Conyers, Chair of the House Judiciary Committee brought the Performance Rights Act (HR 848) up for markup this morniJohn Conyersng. 

HR 848 created no small amount of disagreement among radio broadcasters, minority broadcasters, trade unions and civil rights groups.  However, a group  of minority artists, including Duke Fakir of the Four Tops, Dionne Farris and Jon Secada, recently sent a letter indicating support for Rep. Conyers and this legislation.  The letters stated in part: 

As minority artists, we support a strong and vibrant local radio industry. We know that minority broadcasters play a vital role in our communities. And we support efforts to create accommodations in the legislation for small, minority-owned stations. But the creation of a fair performance right cannot be delayed further. We have already waited far too long. “Not now” is not an acceptable answer.

To address the concerns of minority broadcasters, Conyers offered the following amendments at today’s markup:

Affordable payment for small, rural, nonprofit, minority, religious and educational broadcasters

· Any station that makes less than $100,000 annually will pay only $500 annually for unlimited use of music

· Any station that makes less than $500,000 but more than $100,000 annually will pay only $2500 (half of the amount in introduced bill) annually for unlimited use of music

· Any station that makes less than $1,250,000 but more than $500,000 annually will pay only $5000 (the amount in introduced bill) annually for unlimited use of music

Relief for current economic situation

· No payment for 2 years by any station that makes less than $5,000,000 annually

· No payment for 1 year by any station that makes more than $5,000,000 annually

Parity for all radio services

· Establishes a “placeholder” standard to determine a fair rate for all radio services that will encourage negotiations between the stakeholders

Cannot hurt local communities

· Assures that this legislation cannot affect broadcasters public interest obligations to serve the local community

Assures consideration of relevant evidence

· Evidence relevant to small, noncommercial, minority, and religious broadcasters and religious and minority royalty recipients must be considered by the Copyright Royalty Judges

Other minority and civil rights groups that sent letters expressing support for the act included the Leadership Conference on Civil Rights, Pennsylvania Legislative Black Caucus, Rhythm and Blues Foundation and the A. Phillip Randolph Institute.

The executive director of the musicFIRST Coalition, Jennifer Bendall, supported the committee’s decision:

“We applaud Chairman Conyers and Committee members for their work on the Performance Rights Act and for supporting artists, musicians and rights holders in their fight for fair compensation when their music is used by AM and FM radio stations.

The Performance Rights Act will bring fairness to artists, musicians and rights holders and one that’s fair to radio and its counterparts. It also includes accommodations for small and minority-owned broadcasters. musicFIRST looks forward to the next chapter and to Congress to ensure that U.S. artists and musicians receive the performance right they deserve.”

Now that HR 848 has cleared the committee, it will be brought in front of the entire House for debate and vote. 

Friday, April 10, 2009

Law on the “ROAD”

Starting in June, the author of this blog, Law on the Row  - 20-year entertainment attorney veteran Barry Neil Shrum - will be taking the show on the road!  On June 5, 2009, Mr. Shrum will conduct the first of a series of national seminars called MBA, Music Business Academy. 

Mr. Shrum initiated this series of seminars to address a perceived need in the industry: that a growing number of artists, entertainers and songwriters who might benefit from the expertise of an entertainment attorney, could not afford to retain an attorney and get the help they need due to upfront fees and retainers.  To this end, the mission statement for MBA is “music business education for the do-it-yourself generation!”  This unique series of one-day sessions will provide the upcoming and established mid-tier artist, musician, MBA Logo 48ox25o songwriter and other music industry professionals with a cost-effective method of obtaining an essential legal foundation for day-to-day music industry survival. 

The goal of the seminar is to create a sense of being in the client chair, Mr. Shrum will unravel the essential provisions of various industry-specific agreements  - bringing clarity to the legalese and identifying red flags in the “small print.”  Some specific agreements covered in the MBA session are:

*    the exclusive recording agreement (and the new 360 deal)
*    the exclusive songwriting agreement
*    the personal management agreement

For the do-it-yourself generation, Mr. Shrum will also explain the details and implications of guerilla marketing on the web.  He will explore the typical iTunes deal as well as other online distribution issues relevant to today’s guerilla marketers.

When asked about the seminar, Riq Lazarus, of Lazarus Management Group, said:

"Barry Shrum gets it!  The music business is undergoing radical change.  It is absolutely essential that today's artists have an understanding of the legal issues facing them in this new era of "do-it-yourself" broadcasting.  And because he has the heart of a teacher, Barry's immense knowledge and experience enables him to empower you with the understanding you need to protect your creations."

It is Mr. Shrum’s goal that attendees walk away from the seminar with a functional understanding of basic copyright, trademark and contract law — a virtual “MBA” in the music business!  Attendees will also receive specialized written materials as a continuing reference and valuable resource and are given the opportunity to purchase reduced rate legal services from Mr. Shrum.

The date of June 5, 2009 has been set for Chattanooga – the day before the Riverbend Festival - and plans are in the works for seminars in Denver, Colorado and Charlotte, West Virginia.   Other cities under consideration are Austin, Texas, Baltimore, Maryland, Boston, Massachusetts, Atlanta, Georgia, Philadelphia, Pennsylvania.  To see if your city is being considered, or to vote for your city, take the online poll.

General information about the seminars can be found here.  A detailed agenda of the Chattanooga seminar can be found at the event website:  www.musicbusinessacademy.info

 

Monday, March 9, 2009

Judiciary Committee holds hearings on HR 848, the “Performance Rights Act”

The House Judiciary Committee will hold hearings on H.R. 848 (this year’s version of HR 4789) tomorrow morning at 10:00 a.m.  Although the Committee’s website does not identify any witnesses at this time, I am informed by musicFIRST that Smashing Pumpkins’ founder Billy Corgan and Mitch Bainwol, chairman and CEO of the RIAA will be speaking on their behalf at the hearing.

Billy Corgan H.R. 848 was introduced to the 111th Congress by Rep. John Conyers on February 4, 2009 then referred to committee on the same day.  It was co-sponsored by Tennessee representative, Marsha Blackburn.  If passed, HR 848 would amend The Copyright Act (specifically Title 17) to provide “parity in radio performance rights” under the Copyright Act.  In other words, the Bill would grant a performance rights in sound recordings performed over terrestrial broadcasts (i.e., traditional radio broadcasts, not satellite).   S. 379 is the Senate’s complimentary bill, introduced by Senator Patrick Leahy.

The act has certain provisions to accommodate concerns by the broadcast industry, such as the provision which establishes a flat annual fee in lieu of payment of royalties for individual terrestrial broadcast stations with gross revenues of less than $1.25 million and for non-commercial, public broadcast stations; the provision which grants an exemption from royalty payments for broadcasts of religious services and for incidental uses of musical sound recordings; and the provision which grants terrestrial broadcast stations that make limited feature uses of sound recordings the option to obtain per program licenses. 

The Act specifically states that it will not adversely affect the public performance rights or royalties payable to songwriters or copyright owners of musical works.   In particular, the Act prohibits taking into account the rates established by the Copyright Royalty Judges in any proceeding to reduce or adversely affect the license fees payable for public performances by terrestrial broadcast stations. Requires that such license fees for the public performance of musical works be independent of license fees paid for the public performance of sound recordings.

The full text of the bill can be found at govtrack.us.

One provision I found interesting was Section 6, (1)(A), regarding payment of certain royalties, that states, in full:

A featured recording artist who performs on a sound recording that has been licensed for public performance by means of a digital audio transmission shall be entitled to receive payments from the copyright owner of the sound recording in accordance with the terms of the artist's contract.

Emphasis added.  This last clause intrigues me.  What I find interesting about it is that under the current structure, the record labels own most, if not all, of the commercial sound recording masters, i.e., they are the “copyright owner of the sound recording.”  This clause entitles the “featured recording artist,” e.g., Madonna, Michael Jackson, etc., to receive payments from the owner “in accordance with the terms of the artist’s contract.” 

In most artists’ contracts, payments are based on a percentage of the gross revenues from sales of physical units – current artist contracts do not have provision for payment of performance royalties on the sound recording.  It would seem that under the Act as written, there is silence as to what happens in this instance where these specific payments of performance royalties are not addressed in the artist’s contract.  One possible remedy would be for the legislators to draft language that would apply, such as what they have done with regard to the “non-featured artists in subsection (B) of the same Section 6.   This Section 6 is not found in the Senate’s version of the legislation.

All of this makes me curious about what will happen to performance royalties that are paid under this Act to the owners of the sound recording copyrights, i.e. the record labels if there is no language in the artists’ recording agreements to specify as to what percentage the artist is entitled?  One thing is certain:  an artist who is not recouped under his artist recording agreement will never see any of these performance royalties under such time as his balance is recouped.

One proposal you might suggest to your representatives is that they consider a payment structure similar to that of the current performance rights organizations that collect and pay performance royalties for musical compositions, wherein one half of the royalties go directly to the songwriter and the other half directly to the publisher.  If this were the case under the new Act, half of the royalty payments would filter directly to the artist and the other half would go to the record labels.  If there truly is a concern about the recording artists not getting paid for his or her performances, this is the only method that would assure this happens.

If you are a recording artist whose performances are being playing on local FM and AM radios, you should investigate the impact this legislation will have on you.  Call you Senators and Representatives and ask them to keep you updated.

Thursday, July 10, 2008

Barry Shrum's interview with DigiMusicTV.com

I was surfing around yesterday and discovered that my interview with DigiMusicTV.com, recorded in 2007, was recently posted on brightcove.  Here it is in all it's glory:

Tuesday, May 20, 2008

Why "Freeconomics" - and the Music Industry's Five Point Plan - won't work in the long term

There is a great deal of talk these days about the concept of "freeconomics," spurned by the fact that most teenagers and college students are still ripping music and sharing it online.  Most recently, the major record labels commissioned a study from two think tanks, The Leading Question and Music Ally, which resulted in a five recommendations for the music industry, including "bundling" of product.  Another of the points was "Free doesn't mean no money."  How original.  And oh, by the way, IT DOES ACTUALLY MEAN THAT!  You can read the full article about the study here.

Dollar Bill Let me start out by observing an old adage, which still holds true in life, that you tend to "get what you pay for."  I've always believed in that adage.  There is generally a direct correlation in the amount of sawbucks you shell out to the quality of the product you receive.   When I cook, for example, I use the freshest ingredients.  I spare little expense.  Sure, I try to find bargains, but if you skimp on the quality of your ingredients, you always skimp on taste.  I have always resisted the impulse to buy meat on clearance!

What about "free" goods?  Just think about how many junk e-mails you receive every day offering you a "free" iPhone, or a "free" laptop, or a free whatever. . . the list goes on and on.  Don't you automatically just delete those?  Of course you do -- because everyone knows these types of things are given out for free:  first, someone is actually paying for those goods; secondly, you have to subscribe to a certain number of paying offers in order to actually receive the "free" iPhone or laptop.  There is another adage:  nothing is life is free.   Fact of the matter is, if I wanted an iPhone, I'd go out and buy it.

Now, let's turn our attention to "freeconomics" and honestly call it what it really is:  freakenomics!  Again, nothing in life is free. 

Nonetheless, we are lead by these researchers to examine Google and its model of giving out free software as an example of how the music industry can give away music and still achieve a profit.  This analogy is wrong on so many levels, but I'll just point out one basic incongruity:  the software developers that are writing software for Google work for the conglomerate under a work for hire agreement - Google does not have to compensate multiple rights owners.  It owns the entire product. 

This is not so with a musical composition/sound recording combination.  That is bundle that is not so readily united.  The record label generally owns the sound recording of a musical composition, but does not always own the underlying music compositions.  There may be multiple owners of the underlying compositions which have to be compensated - multiple songwriters and multiple publishers.  The producer also must be compensated.  The musicians who play on the record have to be compensated, not to mention their union fees and retirement fund.  The engineers who work on the project are compensated. The artist has to be compensated for their performance.  The people who master the product must be compensated. 

What the simplistic - dare I say naive - five point plan laid out by the record "think tank" overlooks is that in order to accomplish the equivalent of something like a Google in the music industry, one has to completely rewrite the industry.  While this is not a new idea, it is also not an idea that can be accomplished in today's copyright structure nor within the current orientation of the music industry.  Hundreds of years of practice have to be completed abolished for the Google model to work in the music industry.

Let's look an entity that has actually tried to make such a paradigm shift:  MySpace.  It is most definitely the place where independent artists go to get their music heard.  The music is generally free.  How many artists have you listened to on MySpace in the last month?  I'm in the industry, and I have listened to maybe two, but only because I received a specific request to do so. 

How many artists on MySpace actually make a lucrative living doing what they are doing there?  Again, the music is free isn't it?  Freecomonics will get us something akin to the quality of music that you find on MySpace in general.  There is no realistic way to sift the wheat from the chaff. 

The instant you stop rewarding the songwriters and artists that create the music -- removing a real incentive for creating their art full time -- the sooner you'll find a void in the really high quality music.  Yes, there are some who say that artists will produce art regardless of whether they receive compensation, because that is what they do.  However, this is not historically accurate in music or any of the arts.  If you find an artist who is thriving, you will generally find a source of money, whether it be selling the artwork to a famous benefactor or having financial muscle behind him or her. 

In music, the major labels have historically been the finders and funders of the talent.  They spend a lot of money discovering, developing and marketing the talent.  For the most part, it is the major label product that gets traded on the P2P networks.  That is one factor that is often overlooked.  What the general public wants to hear, and shares on P2P, is generally the music that is marketed heavily - generally by the major labels.  That will not change until someone constructs a better way to get music heard by the public in general. 

So, I believe if you remove the economic component of music, you will ultimately eliminate the talent altogether.  Otherwise, the talented will have to get day jobs to support their art and the art will most certainly diminish and/or suffer.

Let's turn to some of the other suggestions made by The Leading Question and Music Ally:

(1)  Music needs to be bundled with other products and entertainment packages.  They conclude that "music needs to move away from per unit sales and become more of a service than a product."  Can we say YAWN class?  The record labels cannot break themselves of the idea that people want a package deal.  We don't.  We want ala carte!  The sooner that the industry comes to this realization, the better off they will be.  Isn't this what the labels have been feeding us for years?  This is but the "record album" in another iteration.  Buy this collection of 10 songs, 2 of which are what you actually want and 8 of which bite!  Come on guys, hasn't the digital revolution taught you anything?  Wake up and smell the single downloads.  That IS what the consumer wants.  Build a model that incorporates the single download.  Don't build a model that ignores it.

(2)  Labels needs to experiment with new release schedules and formats.  Seriously?  Again, the think tanks suggest that "single . . . releases have run [their] course."  Ditto what I said above.  Check out the success of iTunes, emusic, Amazon, etc. etc.  Check out what happens on P2P networks when a new digital single is released.  The single is NOT a thing of the past.  Now, granted, I agree that digital only releases and new pricing models are going to be part of the new model -- couldn't any fourth graders could tell you that?  But again, people want their music ala carte.  They want good music.  They don't want the bundles, the fillers, the parasitical crap that the industry wants to latch onto what they really want.

(3)  Change the charts.  Yes, people actually get paid to say this stuff!  The conclusion is that the charts don't make sense anymore because fewer people are buying music.  In fairness, I understand this one to some degree. But, has anyone noticed that Billboard already tracks digital downloads?  Has anyone noticed any of the other p2p tracking devices, such as Big Champagne, just to name one.  Sure they have and so have the major labels.  In fact, that is in part where many of the researchers get their data.  No doubt, the tracking of general overall consumption should be an important factor in consideration.  While we are at it, why not pay more attention to the portion of the market called baby boomers.  The older generation that buys music, but rarely gets consulted when discussing these issues.

(4)  Trust the DJ.  Next to the CD format, the other big thing the record industry has a hard time letting go of is the radio format.  The record industry likes to control the advise given about music so that they control what the listener "wants" to hear.  The think tanks concludes that "the instant and massive availability of music on demand means you need a trusted guide like John Peel more than ever."  I disagree with this conclusion because I believe that this "advisor model" is antiquated.   These days, most people rely more on social networking - either virtual or real -- and trending algorythms to determine what music they enjoy.  I don't know of any teenager that listens to terrestrial radio any more.  For them, a DJ is someone at a wedding reception and they are not likely to take advise from that person. 

Yet, the file sharing continues and, more importantly, so does the need for change.  Now that I have ranted a little about the suggestions made by these industry think tanks, let me say that I do, in fact, appreciate their efforts to come up with solutions to the declining music industry.  I wholly agree with what the managing director of Music Ally, Paul Brindley says in the article, that the

"business models need to change radically if the music business is to stand any chance of halting the current decline in sales."  Without a doubt, something truly has to be done or the industry will fail.

As I heard one venture capitalist put it, for him to consider an investment in the music industry, it must be a paradigm shifting, industry changing business model.  These suggestions by The Leading Question and Music Ally just don't quite rise to that level, in my humble opinion.  In my opinion, the ultimate solution will be a fair priced - but not free - digital download model.  The most important component that is missing thus far, and that is critical, is a means of getting the music heard by the general population.  We have many services which may be close, but as of yet, we are not quite there.

Wednesday, April 2, 2008

You Say You Want A REVOLUTION?

You say you want a revolution

Well, you know

We all want to change the world . . .

 

You say you've got a real solution

Well, you know

We'd all love to see the plan

You ask me for a contribution

Well, you know

We are doing what we can

 

But if you want money

for people with minds that hate

All I can tell is, brother, you'll have to wait

 

Don't you know it's gonna be alright?

 

-John Lennon

Perhaps John Lennon said it best:  if you push people hard enough and long enough, they will revolt.  The question is, has the RIAA gone too far for too long? A recent motion filed in their case against students at the University of Maine may very well answer that question.

The RIAA named numerous "John Doe" students in their complaint in Arista Records v. Does 1-27, as is their practice in all of their lawsuits.   The RIAA's purpose of naming the John Doe defendants is so that they may obtain an ex parte (i.e., without the other party being notified) order from the Judge requiring the targeted university to provide the various students' name, address, and, particularly, their IP address.

Student lawyers at the University school of law Cumberland Legal Clinic have filed a motion for Rule 11 sanctions against the RIAA claiming that this practice improperly seeks to circumvent the student's rights under the Family Educational Rights and Privacy Act, §1232g(b)(2)(B) ("FERPA"), gain publicity for its cause, and coerce students into settling for "nominal" amounts in the $3-5000 range.

Rule 11 of the Federal Rules of Civil Procedure allows sanctions against an attorney who signs a pleading without properly investigating the facts and the law and does so with an improper purpose.

The motion also questions whether the joinder of plaintiffs and defendants under the RIAA-type lawsuits is proper because the actions do not, in fact, arise out of the same transaction.  Rule 20 of the Federal Rules of Procedure provides that multiple plaintiffs can join in one action if “they assert any right to relief jointly, severally, or in the alternative with respect or arising out of the same transaction, occurrence, or series of transactions or occurrences…and any question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a).  Similarly, multiple defendants can be joined in one action if “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transaction or occurrences . . . and any question of law or fact common to all defendants will arise in the action.” Id.  The student motion alleges that the RIAA does not, in fact, believe that all of these copyright infringements arise out of the same facts, but join together against multiple defendants for the sole purpose of trimming litigation and discovery costs.

In this case, the student lawyers are seeking more than just monetary damages under this Rule 11 motion:  they also seek dismissal of the complaint and a permanent injunction preventing the RIAA from filing "fishing expedition" type complaints against "unconnected" defendants in the future.  These types of injunctions may be applied in jurisdictions other than the one in which it was issued, so in theory such an order may be applied to thwart lawsuits in other Federal courts across the country.

This in one ruling that should be very interesting.

 

Thursday, March 13, 2008

Fair is not always "Fair Use"

The concept of “fair use” is a very misunderstood concept.  The first common misunderstanding that people espouse is that the concept of “fair use” is a right or privilege granted by copyright law.  It is not.  Secondly, many people mistakenly believe that so long as they do not make any money from an infringing use of copyrighted material, then the use is a fair use.  This is also an incorrect assumption. 

Fair use is not a right or a privilege to be exercised at one’s whim.  Rather, the doctrine is an “equitable rule of reason” that may be used as an affirmative d

efense in a copyright infringement action.  The purpose of the rule is to balance the equities between the desire to protect and therefore encourage the creation of new ideas and the desire to encourage the free exchange of speech in the marketplace of ideas.  The tension was described by Justice Souter as “simultaneously protect[ing] copyrighted material and allow[ing] others to build upon it.”  Nonetheless, the thing to remember is that application of the fair use defense is declared by judicial fiat in the context of a copyright infringement action.  It is applied on a case-by-case analysis of the factual situation.  Thus, fair use is not a presumptive right or privilege that may be exercised by the infringing party.

There are four factors weighed by the Supreme Court in making a determination of whether a derivative work constitutes a “fair use.”  These factors are (1) the nature of the work itself; (2) whether or not the work is commercial in nature; (3) the amount of the copyright work that is used; and (4) the effect of the use on the potential market or value of the copyright at issue. Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841), codified at §107 of the 1976 Copyright Act.

The nature of the work refers to the “nature” of the unauthorized derivative work, not the original copyright work.  In order for such an unauthorized use of copyrighted material to be entitled to the“fair use” defense, the new creation must transform the original copyrighted material.  A “transformative work” is defined by the U.S. Supreme Court as one that “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”  See, Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994).   While all factors must be considered, this is perhaps one of the more critical factors in the analysis.  Merely modulating the pitch of a song or inverting the sequence of a chord progression would probably not be considered transformative.   A very good example of a derivative work that is transformative in nature is Alice Randall’s The Wind Done Gone, the same story as Margaret Mitchell’s Gone with the Wind, but told from the perspective of a mulatto slave who is the half-sister of Scarlet O’Hara, the main character in the original work.  See Suntrust v. Houghton Mifflin Co., 252 F.3d 1165 (11th Cir 2001) per curiam, opinion at 268 F.3d 1257.  In that case, the Eleventh Circuit extended the protection of a musical parody in Acuff Rose to the novel.

With regard to the second factor as to whether a use is commercial in nature, it should be noted that this does not necessarily mean that the new creation has to generate profits.  If the new work create a significant fan, donor and/or advertiser base, those factors tend to lead to a conclusion that it is commercial in nature.  A person simply does not have the “right” to use copyrighted works in any manner as long as no profit is generated from the use.   It is also evident that this factor does not mean that simply because a derivative use does in fact generate profits, that it is by default not a fair use.  In Acuff Rose, 2 Live Crew’s parody version of Roy Orbison’s Oh Pretty Woman had sold over 250,000 copies, yet was still considered a “fair use.”  The thing to be remembered is that this is but one of the factors.

The third factor is fairly easy to evaluate: the more material “borrowed” from the copyrighted source, the less likely the infringer is to have a “fair use” defense.  Again, another misconception is that there is a bright line test for fair use:  that a few measures of a song, a couple of lines from a poem, a few hundred words of a paragraph, or a few paragraphs from a book, are considered fair use.  This misconception has no basis in either the Copyright Act or the case law interpreting it.  It is merely folklore.  The factor, as used by the courts, is more of a sliding scale based, again, on the quantity of the material used from the copyrighted work as compared to the total material.

Finally, the last factor weighs the impact on the infringing use on the potential market and value of the copyright.  This was an integral part of the Supreme Court’s ruling in Acuff Rose that 2 Live Crew’s parody of Roy Orbison’s Oh Pretty Woman did not impact the potential market for the original.   The more a derivative work negatively impacts the potential market for and value of the copyright, the less likely it will a "fair use."

In summary, as you may have noticed, the fair use doctrine is by no means a bright line test.  Each “fair use” defense is, by its very nature, evaluated on a case by case analysis in the context of a copyright infringement action.  Fair use is not something to be relied on as a presumptive right.

Wednesday, March 5, 2008

"More than a Feeling" - Momma, look what they've done to my song!

I received a call from one of my readers to address the topic of whether a songwriter has the ability to restrict the use of his or her composition in the instance it is being used in advancing a cause opposite to that espoused by the songwriter.  This was spawned, of course, by the recent allegations of Tom Scholz, lead member of the group Boston, that his 1970's mega-smash "More than a Feeling" was being used by Mike Huckabee, whose views were oppBostonosite those held by Scholz.  It is an interesting inquiry, and one that has simple solutions, mostly based in contract law.

There are two contract concepts that are usually incorporated into standard music publishing agreements which impact this issue:  one is the concept of droit or moral rights and two is the restrictions on exploitation.  I'll address them in reverse order.

Grant of Rights

Typically, when a songwriter assigns his copyright in a song to a music publisher, there is grant language contained in the agreement expressly establishing the rights he or she is granting to the music publisher.  In that contract language, there is typically a clause that reads something like this:

The Publisher shall have the right to administer, use and exploit all interests in the Compositions . . . provided, however, that the approval of Writer shall be required for the use of any Composition:

             (i)    in any motion picture which Publisher has actual knowledge of an "X" or equivalent rating; 

             (ii)    in any advertisement or other promotion for  tobacco, firearms or personal hygiene products; or

             (iii)    in connection with religious or political purposes.

As you can plainly see, in this instance at least, the music publisher would be contractually required to obtain the approval of the writer prior to authorizing the use of the composition in a political rally, among other things. 

If this type of language is not included in the songwriter agreement, or if the grant language included in the songwriter's agreement is, in general, more broadly worded, then the rights of the songwriter to restrict the use of the song would be greatly impaired.

Droit or Moral Rights

The other legal concept which comes in to play, both from an historic perspective and contractually, is the concept of droit or "moral" rights, although it is important to realize up front that this concept is most often applied, in the U.S. at least, to works of visual art, not musical compositions. 

First, in connection to the copyright concept, don't infuse the the word "moral" with the ethical connotations generally associated with in in the United States.  The use in this concept is much more in the sense of an embodiment of a type of something, i.e., the Monet painting is the moral equivalent of impressionist art.  As used in this sense, it refers to the ability of the creator of a copyright to control the "embodiment" of his work, or its "integrity."  The French-derived word "Droit" is, perhaps, more to the point when discussing copyright:  it means "a legal right." 

So, in the United States at least, the phrase "droit" or "moral rights" generally refers to the right of the copyright creator to prevent third parties from taking credit for, revising, altering, or distorting his or her creation, regardless of who owns the work, i.e., regardless of whether the copyright has been assigned or transferred. 

In contrast, the concept has generally received much broader application in European states.  France, for example, recognizes four moral rights: 

  1. the right of disclosure;
  2. the right to correct or withdraw works previously disclosed to the public;
  3. the right of attribution; and
  4. the right of integrity (the right to "respect" the work).

When the U.S. joined the Berne Convention, Congress attempted to bring its copyright laws into line with those of the other signatory companies by passing Visual Artists Rights Act of 1990 (VARA) codified generally at 17 U.S.C. §§106, 106A, and 113.   As implied earlier, however, this statute applies solely to visual arts and not musical compositions.  Nonetheless, the concept of droit or moral rights may be invoked when dealing with the misappropriation of a songwriter's musical composition.

In addition to copyright law, there a several other legal concepts which may be implicated in this situation.  For example, if a person is somehow giving false attribution to a creative work, e.g., attempting to pass off an creator's work as his or her own, that person may be liable under the concept of "unfair competition," which is barred by the Lanham Act (15 U.S.C. §1051).  Or, if the creation is widely recognized as a work of the creator, any distortion or alteration of the creation may constitute trademark "dilution" under trade dress laws and statutes.   More generally, if authorship of a work is somehow falsely attributed, the creator may have a state action for defamation against the person responsible for the false attribution.  If a person uses the identity of an songwriter, or the compositions, for his or her own benefit without permission, a violation the songwriter's right of publicity may have occurred.  Thus, there may be several remedies available in this type of situation.

In the US, however, it is accepted practice that if a person can waive a right, such a waiver will be in a contract.  This is no exception.  Again, there is language in most songwriting agreements which "waives all droit or moral rights" in the copyright.  Such a waiver would likely nullify any of these general legal remedies available to the songwriter.

As always, I highly recommend that any songwriter contemplating a deal with a music publisher contact a reputable entertainment attorney.

Tuesday, February 26, 2008

Atlantic Records et al. v. Brennan: Federal Judge Denies Default Judgment for RIAA

U.S. District Judge for the District of Connecticut  Justice Janet Bond Arterton, handed down a very pointed and decisive opinion hammering the RIAAR.I.A.A. for its boilerplate style of pleading in the nationwide wide campaign against illegal file sharing.   Justice Arterton was appointed by President Clinton in 1995.  The full decision is here:  Decision.  At several key junctures in the opinion, Justice Arterton based her opinion on the fact that the Plaintiff's complaint was based on "information and belief" rather than direct evidence.

The two areas of concern in the opinion, one is whether to grant a default judgment under Federal Rule of Civil Procedure 55(b)(2) and the second is whether the complaint fails to state a claim for which relief can be granted under Rule 12(b).

Default Judgment Analysis under Rule 55(b)(2)

The granting of default judgment is generally almost a "rubber stamp" kind of process.  If the defendant is properly served and fails to respond to the complaint, a default judgment is almost always automatic.  If the complaint demands an exact amount as judgment, the default judgment can even be entered by the court's clerk under Rule 55(b)(1).  If not, then the court holds a hearing to determine the amount of damages under Rule 55(b)(2).  In this instance, however, the court stepped in and took it upon herself to examine the validity of the claims.

Reasoning from a 2nd Circuit case, Au Bon Pain Corp.v. Artect, Inc., 653 F.2d 61 (2d Cir. 1981), the court found that the default judgment process is not, in fact, automatic, but that “a district court has discretion . . . to require proof of necessary facts and need not agree that the alleged facts constitute a valid cause of action.”  Artect, at 65, citing Wright & Miller, a well known legal treatise on procedure. 

Looking a another legal treatise, Moore's Federal Practice, Justice Arterton reasoned that the analysis should combine elements from Rule 55(c), the rule allowing the setting aside of a default judgment, and Rule 60(b), a more generic rule allowing  a court to set aside judgments.  Finding support for this analysis in 2nd Circuit case law, the court held that three factors arose in determining whether to set aside a judgment under either of the two rules:  (1) “the willfulness of default”; (2) “the existence of a meritorious defense”; and (3) “the possibility of prejudice to the plaintiffs should the default judgment be vacated.”

In weighing these factors, the judge determined that the latter two factors shifted in favor of the defendant, i.e., there were abundant meritorious defenses raised in similar cases filed by the RIAA across the country, and the Plaintiff would not be prejudiced by being required to produce more specific evidence.  In both instances, the court again mentioned the language that the Plaintiff's complaint was based on "information and belief."

Failure to State a Claim Upon Which Relief Can be Granted under Rule 12(b)(6)

The more telling section of the opinion is the court's ostensibly sua sponte (i.e., of its own accord) analysis of whether the Plaintiff's complaint failed to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.  This rule generally givesscales5 the defendant a right to raise this defense in a response to a complaint.   Ostensibly, the court raised this issue in the context of possible meritorious defenses.

Justice Arterton cites the recent Supreme Court opinion that a complaint “does not need detailed factual allegations, [but] a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions.”  Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964–65 (2007).  She then observed that Plaintiff's complaint in this case was almost identical to the one filed in Interscope Records v. Rodriguez, where the court held:

Plaintiff here must present at least some facts to show the plausibility of their allegations of copyright infringement against the Defendant. However, other than the bare conclusory statement that on “information and belief” Defendant has downloaded, distributed and/or made available for distribution to the public copyrighted works, Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation. The complaint is simply a boilerplate listing of the elements of copyright infringement without any facts pertaining specifically to the instant Defendant. The Court therefore finds that the complaint fails to sufficiently state a claim upon which relief can be granted and entry of default judgment is not warranted.

Rodriguez, No. 06-2485, 2007 WL 2408484, at *1 (S.D. Cal. Aug. 17, 2007).  Citing the Second Circuit case Greyhound Exhibit Group, Inc. v. E.L.U.L. Realty
Corp., 973 F.2d 155, 158 (2d Cir. 1992), which held that the entry of default “constitute[s] a concession of all well pleaded allegations of liability," Justice Arterton ruled that Plaintiff's complaint was "speculative" and "inadequate."

Eric Bangeman, of Ars Technica reports that the RIAA plans to file a brief, probably accompanying a motion for reconsideration, and possible an amended complaint, as they did in Interscope v. Rodriguez.  The amended complaint provided additional details about dates, times, and IP addresses.  Whether the additional details of that amendment will alter the application of Rule 12(b)(6) is still unknown, as the judge in that case has since retired.

Friday, February 22, 2008

New Copyright Legislation, H.R. 4279, being considered by House Committee on the Judiciary

The U.S. House of Representatives introduced a 69-page bill entitled the "Prioritizing Resources and Organization for Intellectual Property Act of 2007."  The legislation is significant in that it increases civil penalties for copyright infringement, expands criminal enforcement, and creates both a new federal agency and a new division of the Attorney General's office of the Department of Justice.   The full text of the proposed legislation is here:  H.R. 4279.  I have established an RSS feed in the column of my blog for tracking purposes. 

copyright_symbol It is important to realize that, up front, that this is proposed legislation.  This is the first step in the legislative process. The first step in the life of a bill, if you recall your Schoolhouse Rock song, I'm Just a Bill, is referral to a committees that deliberates, investigates, and revises the proposed legislation before it is recommended that it proceed to general debate by the full House of Representatives.  This process can take a long time, or get stalled.  In fact, the majority of bills never make it out of committee.  The ones that do often do not resemble the proposed legislation very much at all, as sometimes the text goes through numerous iterations before it gets recommended, if at all. Other times, sections of a proposed bill may be incorporated into another bill, and in those cases the original bill, as it was introduced, is abandoned.  That is say that a lot can happen before this process ends.  Once a bill is approved by the House of Representatives, the process starts all over again in the Senate!

The major sections of the proposed legislation are:

* TITLE I—Enhancements to Civil Intellectual Property Laws  One of the more significant amendments to Section 104 of the Copyright Act, pursuant to this proposed legislation, is that it would allow courts to make "multiple awards of statutory damages" when compilations are infringed or when both derivatives and the original are infringed.  

 

TITLE II—Enhancements to Criminal Intellectual Property Laws   This is one of the more extensive expansions of the proposed legislation, allowing for stricter enforcement of willful, criminal infringement. 

TITLE III—Coordination and Strategic Planning of Federal Effort Against Counterfeiting and Piracy

This title is perhaps the most sweeping part of the proposed legislation.  The effect would be the creation of a new federal bureaucracy called the United States Intellectual Property Enforcement Representative (other reports state that is it called the "White House Intellectual Property Enforcement Representative, or WHIPER, but that designation does not appear in the proposed legislation). The head of this new agency would be a member of the Executive Branch and, therefore, would be appointed by the president and confirmed by the Senate.

The new post would report directly to the president and serve as his or her principal advisor and spokesman regarding intellectual property matters, including, for example, identifying countries that don't adequately protect IP rights or are not in compliance with international treaties.

As part of this new agency, a new "interagency" committee would be established for the purpose of intellectual property enforcement.  The new committee would be composed of the enforcement representative, who would chair the committee, and senior representatives of various departments and agencies involved in intellectual property enforcement, appointed by the respective heads of those departments and agencies.  Those agencies include the DOJ, the Trademark Office, the Copyright Office and Homeland Security, just to name a few.

TITLE IV—International Enforcement and Coordination

Under this section, the Trademark Office will appoint 10 intellectual property attachés to serve in United States embassies. The 10 appointments shall be in addition to personnel serving in the capacity of intellectual property attaché at United States embassies or other diplomatic missions on the date of the enactment of this Act.

TITLE V—Department of Justice Programs

In this section, the proposed legislation would created within the U.S. Justice Department's an "Intellectual Property Enforcement Division" to subsume the IP-related functions that the department's computer crime section in the criminal division currently performs. The new division would receive $25 million per year to start with.

This is by no means an exhaustive analysis of this proposed legislation, so take the time to read it for yourself and, if appropriate, contact you local representative to comment on the proposed legislation.

 

Tuesday, December 4, 2007

Expert Witness Fund established to defend against RIAA Lawsuits

The Recording Industry v. the People, an anti-RIAA blog operatRIAA ed by New York attorney, Ray Beckerman, is cooperating with the Boston-based non-profit, The Free Software Foundation, to establish "a fund to help provide computer expert witnesses to combat RIAA's ongoing lawsuits, and to defend against the RIAA's attempt to redefine copyright law."

The Free Software Foundation was established to promote the development and use of free software.  It manages several campaigns to achieve that goal, including one called "BadVista.org," fighting the adoption of Microsoft Vista, and "DefectivebyDesign.org" which was established for the purpose of eliminating digital rights management in music and movies from "Big Media."

As of the end of November, the fund had raised over $4,000.  The fund will be administered by Mr. Beckerman and will be disbursed to technical witnesses hired by RIAA litigation defense teams on a variety of criteria, including the basis of the importance of the case to critical legal issues.

To donate to the fund, click here.