Music Licensing Databases? The Transparency in Music Licensing Ownership Act and ASCAP/BMI

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.

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U2 Seeks Dismissal of “The Fly” Infringement Suit

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.

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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.

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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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