What’s one way to protect yourself against frivolous lawsuits? Set a brutal example against a flimsy case, with fines and penalties that seriously scare away the next half-baked litigant.
Enter Warner/Chappell, the publisher of Led Zeppelin’s iconic ‘Stairway to Heaven’ song. The company is now seeking $800,000 in restitution after winning their copyright infringement case against Michael Skidmore, the trustee of Spirit band member Rande Wolfe. The fees include $613,471 in attorney’s fees, with the rest of the costs coming from experts and witnesses.
Of course, Zeppelin prevailed in their case, but wasted a lot of time and money in the process. On June 23rd, a California federal Jury officially rejected claims that Led Zeppelin stole the opening riff to their hit song ‘Stairway To Heaven,’ while referencing endless examples of the same progression in earlier examples. Slam dunk case, but one that also opened a potential Pandora’s Box of future, frivolous cases, especially given the band’s known history of plagiarism and reliance on common chord structures and rhythms.
The accusation was that Zeppelin blatantly lifted the critical guitar progression in ‘Stairway’ from a song called ‘Taurus,’ originally composed and performed by the rock band Spirit. Warner/Chappell says that it “successfully defended plaintiff’s attempt to wipe Stairway to Heaven off the map and, in doing so, defendants furthered the important copyright purpose of enriching the general public through access to creative works.”
Adding to the problematic defense was Francis Malofiy, the attorney for the Michael Skidmore behaved in an unruly manner during the case. Throughout the six-day trial, Malofiy had over one hundred sustained objections from Judge R. Gary Klausner, and also showed a video that was not previously approved to be played during trial. Malofiy ultimately got suspended after the trial’s conclusion, but suspicions were raised as to what the true intentions of the case were.
The chilling effect begins.
“Led Zeppelin won their ‘Stairway to Heaven’ suit. What happens next could have chilling effect on future, frivolous copyright challenges.”
Totally agree!
This somehow brings us back to the time before George Harrison f*cked up (or was f*cked up) in court, with huge consequences for the next generations of songwriters.
Outright stealing is a very serious crime, but this has gone way too far.
“The company is now seeking $800,000 in restitution after winning their copyright infringement case against Michael Skidmore”
And they deserve every cent.
“the attorney ultimately filed a lawsuit over a guitar progression that is knowingly in the public domain.”
No, a case like that would’ve been dismissed.
There’s certainly a melodic component as well, it just happens to be in the Public Domain, too.
That could easily have been argued in Harrison’s case, as well. And without Harrison’s case, we’d never have seen this.
Relevant perhaps, perhaps not, but as I could not find an article on topic this one seemed as good as any!!!
ASCAP, ASCAP, ASCAP so the headlines read, but is there more to the story than meets the eye? The years 2014 and 2015 have been very profitable for the performance collection rights society with total receipts in 2014 amounting to $1.002 billion and $1.015 billion in 2015, respectively.
It appears that everything is looking up for ASCAP as it is currently awaiting settlement and approval of a proposed agreement, among other things, that “resolves” the government investigation as to whether or not ASCAP violated a consent decree. Significantly, though it is not admitting any wrongdoing, it will be paying $1.75 million dollars.
$2.017 billion in revenues collected in just two years, with only a $1.75 million dollar payment to resolve a government investigation (kind of smacks like the NMPA/Spotify agreement, don’t you think).
Apparently, as reported by the Hollywood Reporter, the DOJ investigation centered on the collusion between ASCAP, its board members composed of major label publishers such as Universal Music Publishing Group and Sony/ATV, and various elected officials (songwriters and composers) [all of whom were entrusted by the ASCAP membership to act in their best interest], and that the DOJ was concerned that publishers were possibly receiving payments from ASCAP for exclusive rights to license “works” (not to be confused with compositions). Moreover, that ASCAP entered into approximately 150 contracts with its songwriters [,composers] and publishers granting ASCAP exclusive rights.
http://www.hollywoodreporter.com/thr-esq/ascap-pays-175-million-settle-893162
I have previously directed attention to, among other things [1], and more recently, the plethora of artist exclusives sought by streaming companies such as Apple Music and Tidal as well as the “transfer of copyright ownership” definition found in the copyright act, which, for ease of reference, I again set out below:
“A ‘transfer of copyright ownership’ is an assignment, mortgage, EXCLUSIVE LICENSE, or any other conveyance, alienation, or hypothecation of a copyright OR ANY OF THE EXCLUSIVE RIGHTS COMPRISED IN A COPYRIGHT, whether or not it is limited in time or place of effect, but not including a non-exclusive license.” (Emphasis added.)
Though I am not certain of the identities of the songwriters, composers, and publishers that entered into the 150 contracts with granting exclusive rights to ASCAP, perhaps the DMN readership, and others such as the recording artists, will at least know whether or not they (or their record labels) licensed any of the compositions from the ASCAP songwriters and publishers that entered into those contracts with exclusivity clauses, and subsequently recorded works based on those compositions.
Why would that be relevant you ask, well, as shown above, it was reported that one of the “concerns” of the DOJ was that ASCAP may have been making advance payments to publishers in return for exclusive rights to license THOSE WORKS.
Significantly, most, if not all major labels have a “sister” publishing company which, as will soon be seen, shows exactly how much respect the major labels actually have for their recording artists (assuming, of course, that the record labels licensed the compositions from their “sister” publishing company so that their recording artists could record those compositions and base the works on those compositions).
In order to garner a more complete understanding of that to which I speak as well as understand the reason why the DOJ decided not to amend the antitrust consent decree, why it decided to interpret them so that both ASCAP and BMI will now have to offer 100 percent licensing, and gain further insight into the distinction between “compositions” and “works” it will be necessary to read, United States v. Am. Soc’y of Composers, Authors & Publishers, Civ. No. 41-CV-1395 (S.D.N.Y. June 11, 2001) and, in particular, pp. 11-17, which explains “The Meaning of ‘works in the ASCAP repertory’ in AFJ2.”
http://www.digitalmusicnews.com/wp-content/uploads/2013/11/pandoravascap1.pdf
Importantly, a close reading of this case makes clear that even if a major label’s “sister” publisher, for example, were to withdraw all of its compositions from ASCAP, ASCAP could nevertheless, and indeed, must grant a non-exclusive license to perform all of the works (i.e., “any copyrighted musical composition”) in the ASCAP repertory to “any music user making a written request therefor.” That is so because the “’ASCAP repertory’ is a defined term articulated in terms of ‘works’ or ‘compositions,’ as opposed to in terms of a gerrymandered parcel of ‘rights.’” The learned judge further explained that, “[a]pplying these principles to the question at hand, it is clear that the ‘ASCAP repertory’ is defined in terms of ‘works’ and not ‘individual rights’ in works with respect of potential licenses.” Furthermore, that “[a] blanket license is a license that gives the licensee the right to perform all of the works in the repertory;” that “the natural reading of Section II(C)’s definition of ‘ASCAP repertory’ as consisting of ‘works the right of performance ASCAP has . . . the right to license’ is that it means that the ASCAP repertory consists of works the right to which ASCAP has the ability to license at all;” and, that “[t]his natural reading of the term ‘ASCAP repertory’ is entirely consistent with Second Circuit ASCAP and Copyright caselaw.”
[Part I of III]
If the compositions of a publisher (obtained either through a valid contract or work-for-hire) as well as the compositions of a songwriter or composer (who have granted to ASCAP exclusive rights to license the rights of public performance in the musical works of certain songwriters, composers or publishers) are licensed by a recording artist (either directly or through their record label) and that recording artist records a work based on those compositions licensed through ASCAP, such works are “musical compositions in the ASCAP repertory.” Accordingly, even if that publisher, songwriter or composer were to withdraw their compositions from ASCAP, the works based on those licensed compositions (i.e., the songs) would still remain.
Interestingly, the learned judge notes that “[a] remaining question is whether the term ‘works,’ as used in Section II (C), and in Sections VI’s and IX(E)’s uses of the term ‘works in the ASCAP repertory,’ is susceptible of an interpretation defining it in terms of ‘rights’ within compositions rather than the ‘compositions’ themselves. But Pandora is correct that ‘works’ means musical compositions and not rights with respect to those compositions.”
Critically, the learned judge elucidates the following: “Section § II(U) of AFJ2 defines “work” as “any copyrighted musical composition.” This definition is express and conclusive. There is no reference to “rights in works” within the four corners of the consent decree. The meaning of “works” in AFJ2 is not ambiguous and it is consequently unnecessary to look beyond the text to extrinsic evidence. See E.E.O.C. v. Local 40, Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, 76 F.3d 76, 80 (2d Cir. 1996) (“Extrinsic evidence should only be considered when the decree itself is ambiguous”).
The origin of this definition is not hard to discern. In ordinary usage the word “work” in the musical context means a composition and not a right in a composition. See e.g., Webster’s II New Riverside Dictionary 1327 (1984) (defining “work” as “[s]omething that has been done, made, or performed as a result of one’s occupation, effort, or activity”). The term “works” in AFJ2 has its origin in Copyright law, and it is clear from Copyright caselaw that works means “compositions” in that
context. And “where contracting parties use terms and concepts [*15] that are firmly rooted in federal law, and where there are no explicit signals to the contrary, we can presume that the prevailing federal definition controls.” CGS Indus., Inc. v. Charter Oak Fire Ins. Co., 720 F.3d 71, 78 (2d Cir. 2013) (citation omitted). Section 102 of the Copyright Act refers to “works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). This definition is inconsistent with a reading of works that defines the word in terms of “rights.” And the Supreme Court has referred to a “work” as the
“translat[ion] [of] an idea into a fixed, tangible expression.” Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989). [2] Compositions, but not rights in compositions, are able to be “fixed” in “tangible medium[s] of expression.” ASCAP
conceded this definition of “works” at oral argument.
Because “works” in AFJ2 means “composition[s]” and not “rights in compositions”, and because it is undisputed that the terms of ASCAP’s Compendium Modification of April 2011 permit ASCAP to retain the right to license the works of the withdrawing publishers for non–New Media purposes, those compositions remain “works in the ASCAP repertory” within the meaning of Sections VI and IX(E) of AFJ2. In fact, ASCAP retains the right under the “Standard Services” agreement to license the works of withdrawing [*16] publishers even to certain smaller New Media licensees. Thus, the works remain in every facet of the ASCAP repertory.”
Under the next heading, Section C., the learned judge makes clear that, “[h]aving determined that “works” in AFJ2 means musical compositions, and that those musical compositions remain “in the ASCAP repertory” so long as ASCAP retains any licensing rights for them, it remains only to apply the clear language of Sections VI and IX(E) of AFJ2 to decide this motion.”
The determination “that ‘works’ in AFJ2 means musical compositions, and that those musical compositions remain ‘in the ASCAP repertory’ so long as ASCAP retains any licensing rights for them” brings me back to The Hollywood Reporter article previously referred to that reported, among other things, that the publishers were possibly receiving payments from ASCAP for exclusive rights to license works, and the fact that ASCAP entered into approximately 150 contracts with its songwriters [,composers] and publishers granting ASCAP exclusive rights.
At first blush, it appears that the recording artists who licensed compositions through ASCAP and recorded songs based on those compositions could, if they decided to withdraw from ASCAP, simply take control of the licensing of those works like the publishers do when they withdraw their compositions from ASCAP and enter into direct licensing agreements with, say, a streaming service(s). However, it might not be as easy at it seems in that the publishers were possibly receiving payments from ASCAP for exclusive rights to license works, and the fact that “ASCAP entered into approximately 150 contracts with its songwriter and publisher members with exclusivity clauses.” Contracts and work-for-hires notwithstanding, in view of those exclusivity clauses per se, given that a “transfer of copyright ownership” includes, among other things, an “exclusive license,” “or of any of the exclusive rights comprised in a copyright,” and “whether or not it is limited in time or place of effect,” it seems quite certain in view of the copyright act that those recording artists could not do so as they have assigned their performance copyrights to ASCAP through those contracts with exclusivity clauses. Thus, “those musical compositions remain ‘in the ASCAP repertory’ so long as ASCAP retains any licensing rights for them,” in other words, so long as ASCAP retains the right of performance to those works.
It is noteworthy that though ASCAP as well as major publishers and record labels may be subject to antitrust concerns, if all of the songwriters and composers were to resign from ASCAP, that would nary be a concern.
[Part II of III]
As I said previously, I am not certain of the identities of either the songwriter and publisher members who signed those contracts (though I have a pretty good idea), but the DOJ, ASCAP, as well as the parties to those contracts surely know.
Indeed, the [Proposed] Settlement Agreement And Order between the Plaintiff, United States of America and Defendant, American Society of Composers, Authors and Publishers states as follows, in pertinent part: “AND WHEREAS, ASCAP entered into approximately 150 agreements that, by their terms, granted to ASCAP exclusive rights to license the rights of public performance in the musical works of certain songwriters, composers, or music publishers….”
https://www.scribd.com/doc/312417578/Ascap-Proposed-Order#download&from_embed
Billboard article “The Only Certainty Is Uncertainty: What the Dept. of Justice’s Decision Means for Music Publishing,” dated July 08, 2016, notes that “[o]n the most basic level, ASCAP and BMI might have to figure out how to license songs they own parts of….”
http://www.billboard.com/biz/articles/news/legal-and-management/7431113/the-only-certainty-is-uncertainty-what-the-dept-of?utm_source=twitter
It is noteworthy that AFJ2 § IV’s (“Section IV”) prohibition on ASCAP acquiring exclusive rights in a composition does not make mention of a prohibition on ASCAP acquiring exclusive rights in a work.
In anticipation that it will be argued that it was only the exclusive right to license the rights of public performance in the musical works, but if those certain songwriters, composers, or music publishers, and the recording artists who licensed compositions through ASCAP and recorded works based on those compositions do not have a license from ASCAP, ask yourself whether or not they have the right to perform them, and otherwise to license the rights of public performance in those musical works, but I could be mistaken in that a “transfer of copyright ownership” may not accomplish what I think it does and therefore any “transfer of copyright ownership” provided for in the copyright act is merely discretionary and can be disregarded on a whim; that the exclusives signed with streaming services such as Tidal and Apple Music (and perhaps VEVO, I am not certain whether or not VEVO requires or required an exclusive from the recording artists – but I have a pretty good idea) did not assign any exclusive rights to those streaming companies or video streaming companies.
In anticipation that it will be argued that “each of those approximately 150 agreements has expired or ASCAP has expressly rescinded the exclusivity provisions contained therein” or that ASCAP never enforced the exclusivity clauses, that ASCAP will not enter into any agreement under which a songwriter, composer, or music publisher grants ASCAP the exclusive right to license the right of public performances in musical works in the future, I draw attention to the fact that the [Proposed] Settlement Agreement And Order contains no provision whatsoever regarding the “transfer of copyright ownership” to ASCAP that resulted in consequence of the previous contracts granting “ASCAP exclusive rights to license the rights of public performance in the musical works of certain songwriters, composers, or music publishers….” It is also noteworthy that though there will be a payment of $1.75 million there was neither a finding of nor an admission by ASCAP of any wrongdoing.
Furthermore, the question that begs to be asked is who is actually paying the $1.75 million to the United States of America? Is the $1.75 million being paid from the personal finances of the songwriters, composers and publishers that were the subject of the DOJ investigation, or is the $1.75 million being paid from the performance royalties of the innocent ASCAP members? With all of the reports of composers and songwriters barely getting by as they are receiving so little over the years passed that would be quite unfair to say the least.
I have tried to keep this particular comment as short as possible in the circumstances, but then again, I am just warming up – more to follow.
[1] See, for example:
http://www.digitalmusicnews.com/2016/06/13/13-biggest-lies-streaming-music/
http://www.digitalmusicnews.com/2016/06/20/180-music-artists-appeal-urgent-dmca-reform/
http://www.digitalmusicnews.com/2016/06/15/youtube-built-backs-free-stolen-music/
http://www.digitalmusicnews.com/2016/06/24/snoop-dog-battles-toronto-maple-leafs-over-marijuana-logo/
[2] Community for Creative Non-Violence v. Reid, the Supreme Court determined that employees for purposes of work-for-hire are defined under “the conventional master-servant [slave] relationship as understood by common law agency doctrine…. Agency requires agreement and consent between parties that one will act on behalf of another and subject to another’s control.
[Part III of III]
Having scoured through numerous cases, significantly, this revelation was found in USA v. ASCAP, 627 F.3d 64 (2d Cir. 2010):
“ASCAP misreads our opinion in NFL v. PrimeTime 24 Joint Venture, 211 F.3d 10, 11-13 (2d Cir. 2000), to hold that the Copyright Act does not, in fact, require a contemporaneously perceptible performance to infringe on the public performance right.”
A full reading of this case will bring greater insight to the reader, still warming up.
VC’s, investors, think Pandora Internet Radio, Apple Music Radio, et cetera.