The Second Circuit Court of Appeals ruled this week that the ASCAP and BMI antitrust consent decrees do not prohibit “fractional licensing” of songs. Fractional licensing means that if there are non-ASCAP or non-BMI songwriters who have partial rights in a particular song, ASCAP and BMI can license only the fraction of the song attributable to the ASCAP or BMI songwriters. The other fractional interests of the song would have to be licensed elsewhere (for example, from SESAC or GMR).
Particularly with the recent advent of Global Music Rights (GMR), music licensees (such as broadcasters, websites, restaurants, bars, retail establishments, fitness clubs, and etc.) are concerned that the ruling could lead to additional performance rights licensing organizations (“PROs”), and in turn higher collective licensing fees (and exposure to potential copyright infringement claims to the extent such additional licenses are not secured).
It’s too early to tell what the practical effect of this ruling may be in the music licensing marketplace.
On September 18, 2017, songwriters Sean Hall and Nathan Butler filed a lawsuit against Taylor Swift in the United States District Court for the Central District of California.
Hall and Butler are the co-authors of the 2000 song “Playas Gon’ Play” which was recorded by the girl group 3LW. Their complaint alleges that Taylor Swift’s 2014 hit song “Shake it Off” copied “Playas Gon’ Play.”
A copy of the complaint is available here.
Unlike the recent barrage of music copyright lawsuits, this lawsuit does not claim that the melody, “hook,” or other musical elements were copied. Rather, this lawsuit claims that Swift’s song copied the plaintiffs’ lyrics.
“Playas Gon’ Play” contains the following lyrical phrase:
“Playas, they gonna play / And haters, they gonna hate.”
The plaintiffs claim that Taylor Swift infringed their song by using the following lyrical phrase in “Shake it Off”:
“Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.”
Continue reading ““Haters Gonna Hate, Hate . . . .” Can Taylor Swift “Shake it Off”?”
On September 12, 2017, the publisher of the legendary song “More Bounce to the Ounce” filed a copyright infringement lawsuit against music producer Mark Ronson. The suit alleges that Ronson’s hit song “Uptown Funk,” which has been certified 11 times platinum and held the number 1 position on Billboard’s Hot 100 for fourteen consecutive weeks, infringes Roger Troutman’s and the funk group Zapp’s 1980 song “More Bounce to the Ounce.”
Specifically, the lawsuit claims that “Uptown Funk” copied elements from an extended passage of “More Bounce” that constitutes more than one half, and is the “heart,” of “More Bounce.” The suit claims that “virtually the entire guitar part, bass melody and vocoder part of Uptown Funk, (as well as the combination and sequence of these elements in Uptown Funk), is copied from this continuous passage of “More Bounce to the Ounce.”
Continue reading “Mark Ronson Sued For Infringing 80’s Funk “Masterpiece””
Frank “Knuckles” Walker, a musician and percussionist best known as a former member of the band The Roots, recently filed a lawsuit against his former band members and others.
A copy of the complaint is available here.
According to Walker’s complaint, he was a member of The Roots for 17 years and was terminated from the band in May 2017. Walker alleges that he was unfairly compensated and that the other band members terminated him from the band in order to exclude him from future income. Walker also alleges that after expelling him from The Roots, the band continued to use his likeness and images in concert posters and on the band’s website and social media without Walker’s permission.
Continue reading “Former Band Member Sues The Roots”
On October 27, 2016, North Carolina songwriter Timothy Arnett sued the legendary country star Alan Jackson in the Eastern District of North Carolina for alleged copyright infringement. Arnett claimed that Jackson’s song “Remember When” infringed Arnett’s song “Remember Me.”
Yesterday, August 14, 2017, the Court dismissed Arnett’s lawsuit. A copy of the Court’s order is available here.
Continue reading “Court Rejects Infringement Claim Against Alan Jackson”
Ed Sheeran has had plenty of court troubles recently. After reportedly reaching a settlement over his song “Photograph” earlier this year, he was recently sued (a second time) for his song “Thinking Out Loud.”
The lawsuit alleges that “Thinking Out Loud” copied Marvin Gaye’s song “Let’s Get it On.”
The lawsuit, which was brought by the heirs of Gaye’s co-writer Ed Townsend, was first filed in August 2016 and later dismissed in February 2017 on the grounds that Sheeran (and others in the UK) were not served within the required time frame. Apparently the plaintiffs struggled to serve Sheeran due to the refusal of defendants’ counsel to accept service on behalf of the defendants, confusion over international service procedures under the Hague Convention, and the inability of the plaintiffs to personally locate Sheeran to hand-deliver service.
Presumably in anticipation of the opportunity to locate and personally serve Sheeran in the US during his upcoming 2017 US tour, the new complaint was filed on July 11, 2017. It worked this time, as the defendants’ counsel has accepted service for Sheeran.
The new complaint is virtually identical to the August 2016 complaint. A copy of the new complaint, which was filed in the Southern District of New York is available here.
Continue reading ““Thinking Out Loud” About Copyright Infringement (Again)”
On July 20, US Congressman Jim Sensenbrenner (R-WI) introduced the Transparency in Music Licensing Ownership Act. The legislation would create a database of music copyright ownership and licensing information. The database would cover both musical works and sound recordings.
A copy of the legislation is available here.
According to Representative Sensenbrenner’s press release, the legislation would:
- Require the Register of Copyrights to establish and maintain a current informational database of musical works and sound recordings while granting the Register authority to hire employees and contractors, promulgate regulations, and spend appropriated funds necessary and appropriate to carry out these functions.
- Ensure that the database is made publicly accessible by the Copyright Office, in its entirety and without charge, and in a format that reflects current technological practices, and that is updated on a real-time basis.
- Limit the remedies available to a copyright owner or authorized party to bring an infringement action for violation of the exclusive right to perform publicly, reproduce or distribute a musical work or sound recording if that owner/ authorized party has failed to provide or maintain the minimum information required in the database.
The legislation is cosponsored by Representatives Suzan DelBene (D-WA), Blake Farenthold (R-TX), and Steve Chabot (R-OH).
Shortly after the introduction of the legislation, BMI and ASCAP announced that they have been separately creating a similar database by combining their repertories. The BMI/ASCAP database is set to launch in the fourth quarter of 2018.
Continue reading “Music Licensing Databases? The Transparency in Music Licensing Ownership Act and ASCAP/BMI”
Earlier this year, a songwriter sued the members of U2, claiming that the U2 song, “The Fly” from the 1991 album “Achtung Baby,” infringed the songwriter’s 1989 song “Nae Slappin.”
The plaintiff songwriter, Paul Rose, claims that he sent a demo of his song to U2’s record label, that an undisclosed witness said that the members of U2 were often in the record label offices where the demo was played, and that there are numerous similarities between the two songs, including an “elaborate and distinctive guitar solo,” the “guitar hook,” the percussion accents, and the “dimensions of sound.”
On July 18, 2017, the members of U2 moved to dismiss the case.
Continue reading “U2 Seeks Dismissal of “The Fly” Infringement Suit”
The Fair Play Fair Pay Act of 2017 currently pending in the House of Representatives would amend the Copyright Act to extend the public performance right for sound recordings to any audio transmission. Currently, the sound recording public performance right applies only to digital audio transmissions (e.g., Pandora, SiriusXM, etc.). The new public performance right would mean that AM/FM broadcast stations would be required to pay royalties for terrestrial/over-the-air broadcast transmissions of sound recordings. Currently, 21 Representatives have co-sponsored The Fair Play Fair Pay Act.
Opposition to the Fair Play Fair Pay Act continues to grow. The Local Radio Freedom Act proposes a resolution providing that:
Congress should not impose any new performance fee, tax, royalty, or other charge relating to the public performance of sound recordings on a local radio station for broadcasting sound recordings over-the-air, or on any business for such public performance of sound recordings.
Currently, 191 Representatives have co-sponsored the Local Radio Freedom Act, and 22 Senators have co-sponsored the companion bill in the Senate.
On Thursday, the United States filed its brief in its appeal of a decision by the district court for the Southern District of New York, which rejected the US Department of Justice’s earlier determination that a longstanding DOJ consent decree governing BMI requires “full-work” (or “100%”) licensing. Rather, the district court held that BMI can engage in “fractional licensing.”
BMI is a performing rights organization (a “PRO”), which aggregates its members’ rights for the public performance of copyrighted musical works and collectively licenses those rights to music users, such as radio and television stations, internet radio stations (e.g. Pandora), interactive streaming services (e.g., Spotify), websites, bars, restaurants, and fitness clubs. BMI and ASCAP are the two largest PROs in the United States, and each are governed by DOJ consent decrees, which were first entered into in 1941. SESAC and the recently-established Global Music Rights (GMR) are the two other PROs in the United States. SESAC and GMR are not subject to DOJ consent decrees.
The district court’s September 2016 decision was applauded by BMI and the other PROs, as well as other songwriter and music publishing stakeholders. Licensees of music public performance rights, such as radio and television stations, however, decried the district court’s decision.
Continue reading “Music Performing Rights Organizations and the “Full-Work” vs. “Fractional” Licensing Dispute: Government Seeks to Overturn Fractional Licensing Decision”