Music Performing Rights Organizations and the “Full-Work” vs. “Fractional” Licensing Dispute: Government Seeks to Overturn Fractional Licensing Decision

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”

Are Jokes Protected by Copyright? Court Allows Case Against Conan O’Brien To Proceed

The US District Court for the Southern District of California has allowed a case to proceed against Conan O’Brien and others for alleged infringement of jokes.

One of the issues in dispute was the extent to which jokes are entitled to copyright protection.  The Court noted that “there is little doubt that the jokes at issue merit copyright protection.”   However, such protection is limited by the nature of the jokes.   “Each joke begins with a factual sentence and then immediately concludes with another sentence providing humorous commentary on the preceding facts.”  Facts are not protected by copyright.  So, protection is generally limited to the way the punchline is expressed.  Therefore, the Court concluded that the jokes at issue were entitled to only “thin” copyright protection.

The Court rejected protection for one of the jokes at issue because, while the facts were the same, the punchlines were expressed differently.  However, the Court allowed the case to continue with respect to the other jokes, where the Court found similarities in the way the punchlines were expressed.

Want to see the jokes?  Check out the Court’s decision here.

 

Lil’ Jon and DJ Snake Sued for “Turn Down for What”

Earlier this month recording artists Lil’ Jon and DJ Snake were sued for copyright infringement over the international hit song “Turn Down for What.”

The complaint, which was filed by the publisher of a song also titled “Turn Down for What” as recorded by the artist Freddie GZ, alleges that the Lil’ Jon song intentionally infringed the Freddie GZ song.

In addition to having the same title and among other things, the complaint states that both songs contain a steadily/slowly rising synth line, that the phrase “Turn Down For What” starts on the same beat and uses the same rhythm in both songs, that the instrumental hooks are substantially similar, and that both songs contain the use of a short vocal on similar beats.

A copy of the complaint is available here.

Here’s the Freddie GZ version:

And here’s the Lil’ Jon – DJ Snake version:

What do you think?

MusicFIRST Urges Congress To Address Music Licensing In Copyright Reform

In a letter dated May 4, 2017, members of the musicFIRST Coalition urged the leadership of the Senate Committee on the Judiciary and the House Committee on the Judiciary to support the Fair Play Fair Pay Act.

The Fair Play Fair Pay Act would establish a performance right for AM/FM radio, change the standard for determining satellite radio royalties, and require royalties for the performance of pre-1972 sound recordings. The letter notes that “[t]he U.S. stands alongside just a few other countries, including China, Iran and North Korea, in not recognizing a performance right” for sound recordings.

Members of the musicFIRST Coalition include: A2IM (American Association of Independent Music), American Federation of Musicians, RIAA, The Recording Academy, SAG-AFTRA, and SoundExchange.

INDEPENDENT LABELS SUE LIMEWIRE FOR THEIR SHARE OF SETTLEMENT

Earlier this year, the RIAA claimed a victory against LimeWire for a $105 million settlement of its copyright infringement case against the late P2P giant.  In the highly publicized copyright infringement case, LimeWire agreed to pay up to settle the claims of major record labels that it was responsible for widespread music piracy.  Now, smaller independent record labels are seeking an equivalent share.

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Jury Awards DJ A Million Dollar Verdict Over “My Humps”

Earlier this month, a New York jury awarded nearly $1.2 Million to former DJ Orrin Lynn Tolliver, Jr. in a dispute over a sample used in The Black Eyed Peas’ hit song “My Humps.”

Tolliver, who formed an early hip-hop group in the 80’s called Sexual Harassment, collaborated with his friend and producer James McCants to record a song called “I Need A Freak” at McCants’ studio in Cleveland.  Tolliver composed the music and lyrics for the song, but worked with McCants at his studio to record the song.  McCants registered the song with BMI, giving songwriter credit to Tolliver.  Years later, McCants granted licenses for use of the song, infringing on Tolliver’s copyright as songwriter and denying him his share of the royalties. Continue reading “Jury Awards DJ A Million Dollar Verdict Over “My Humps””

ISPs Agree to Alert Piraters in New Copyright Enforcement Plan

Last week, a group of major internet service providers (ISPs)—including AT&T, Verizon, Comcast, Cablevision, and Time Warner Cable—all agreed to a new enforcement plan against music and movie piracy. The internet giants signed a voluntary “Memorandum of Understanding” with content owner representatives (including the RIAA and MPAA) to create standard practices of “copyright alerts” directed at users flagged for possible infringement.

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Beach Boys vs. “California Gurls”

Singer Katy Perry, of “I kissed a girl, and I liked it” fame, has been threatened with a lawsuit over her use of the Beach Boys’ timeless line, “I wish they all could be California Girls,” in her hit song “California Gurls.” Rapper Snoop Dogg recites the Beach Boys’ classic lyric at the end of Perry’s summer anthem, which has sold more than 3 million copies to date.

Rondor Music, who owns the rights to the Beach Boys’ “California Girls,” has sent a letter to Capitol Records, Perry’s record label, demanding that Mike Love and Brian Wilson – the two Beach Boys who actually scribed the 1965 Billboard hit – be given a writing credit and a portion of the royalties for Perry’s chart topper.

In a recent E! News interview, a spokesperson for Rondor Music chastised Katy Perry, as well as the writers and publishers of “California Gurls,” saying, “Using the words or melody in a new song taken from an original work is not appropriate under any circumstances, particularly one as well-known and iconic as ‘California Girls.’” The spokesperson elaborated, stating that “Rondor Music…is committed to protecting the rights of its artists and songwriters, and with the support of the writers, that is exactly what we are doing.”

The Beach Boys, however, are singing a decidedly different tune. When asked for his thoughts on “California Gurls,” Mike Love insisted that “[t]he Beach Boys are definitely not suing Katy Perry, in fact we are flattered that her fantastically successful song is bringing to mind to millions of people our 1965 recording of the Beach Boys’ ‘California Girls.’” In harmony with his co-writer and band mate, Brian Wilson similarly stated, “We think her song is great and wish her all the success in the world.”

As with any copyright infringement case, the legal issues that would need to be addressed if this case were to proceed include whether the lyrics “I wish they all could be California Girls” are sufficiently original to be entitled to copyright protection.

Jeopardy Facts about the Beach Boys’
“California Girls”

“California Girls” is part of the The Rock and Roll Hall of Fame’s list of the “500 Songs that Shaped Rock and Roll.”

In 2004, “California Girls” was ranked #71 on Rolling Stone’s list of “The 500 Greatest Songs of All Time.”

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Copyright 101: Summary of Common Music Licenses

Like any other property, music copyrights and the individual exclusive rights thereof, can be transferred, sold, licensed, and divided among several owners.  In general, to use recorded copyrighted music, you will need permission from both the musical work owner (typically a publisher) and the sound recording owner (typically a record company).  Note, however, if you re-record a song (instead of using a pre-recorded version), permission is only required from the musical work owner (since you are not using someone else’s sound recording). 

Following are descriptions of common music licensing agreements.  In a later post,  I will discuss some of the specific ways in which music is used on the Internet and the types of licenses required.  Continue reading “Copyright 101: Summary of Common Music Licenses”