Legislative Efforts on Performance Royalty: Current Tally

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.

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”

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””

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”

Whoomp! (There It Is): The Importance of Contract Drafting

People often assume lawyers just use “form books” for contracts. I’m sometimes asked questions like: Don’t you just have a form for that? Can’t you just send me the standard form agreement? Can you quickly look over this agreement I did myself on the internet?

The fact is that virtually every contract involves unique circumstances. In the case of copyright transfers and licensing, contractual language can be critical. Under the Copyright Act, a written and signed document is required to transfer ownership of a copyright or to transfer exclusive rights to a copyright.

A recent case from the Fifth Circuit Court of Appeals demonstrates the pitfalls of an ambiguously drafted copyright transfer. Continue reading “Whoomp! (There It Is): The Importance of Contract Drafting”

Court Rules No Public Performance Fees for Ringtones

blackberry-storm-9530Recently, the United States District Court for the Southern District of New York ruled that publishers are not entitled to public performance royalties for mobile phone ringtones.  See In re Cellco Partnership, 2009 WL 3294861 (2009).  For the past few years, publishers have argued that mobile phone carriers should pay copyright performance royalties when ringtones are downloaded and used by mobile phone customers.  Continue reading “Court Rules No Public Performance Fees for Ringtones”

Is “Promotional Use Only” A Defense?

So, here’s an interesting case pending in Federal Court in Texas:  EsNtion, a dance music record label, has sued TM Studios, the maker and distributor of PrimeCuts, HitDisc, and other “Promotional Use Only” CDs, alleging copyright infringement for copying and distributing EsNtion’s songs (US District Court, Northern District of Texas, Dallas Division, Civil Case No. 07-CV-2027-L). Continue reading “Is “Promotional Use Only” A Defense?”