On October 11, 2018, the President signed the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (H.R. 1551). After years of calls for reform to music licensing by virtually all interests in the music industry, the MMA ushers in significant changes to the Copyright Act.
Among other things, the MMA creates a new entity—the Mechanical Licensing Collective—to “modernize” and administer the compulsory mechanical licensing process for interactive streaming services like Spotify and Apple Music. It is crucial that musicians, in particular independent songwriters, understand the changes, the critical deadlines, and the new processes in the MMA to protect their rights to unclaimed and future royalties.
The following are the key changes created by the MMA:
As we have previously discussed, the owner of the copyright in a work has certain exclusive rights in that work. Anyone who violates the exclusive rights of the copyright owner is an infringer of that copyright.
To establish copyright infringement, you must establish that you own a valid copyright in the work and that:
The work has been copied; and
The copy is “substantially similar” to the protectable elements of the original work.
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.”
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.”
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.
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.”
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.
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.
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.
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””
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.