After a recent court victory, Madonna is likely to be thanking her lucky stars. On June 2nd, the U.S. Ninth Circuit Court of Appeals ruled 2-1 in favor of the dance-pop diva and producer Shep Pettibone, who had been sued by VMG Salsoul LLC over her alleged use of a .23-second snippet of the Salsoul Orchestra song Love Break in her 1990 hit Vogue. The court ruled that the use (purported to be a single horn stab) was de minimis, meaning such a small use as to be trivial and not a copyright infringement.
The Ninth Circuit ruling is at odds with a 2005 ruling from the Sixth Circuit, Bridgeport Music Inc.. v. Dimension Films. In that case, the court looked at whether N.W.A., in two of their songs, infringed the copyright of a Funkadelic song by sampling a two-second guitar riff. In that case, the Appeals Court, reversing the lower court, ruled that de minimis did not apply in cases of sampling of a sound recording (while leaving the door open to the possibility of fair use claims.)
This split between the two circuits could even ultimately set the issue on the path to the Supreme Court, though it could be a long time before such a hearing takes place. Still, the case once again raises the issue of whether very short samples are not only not copyright infringements, but are too trivial to weigh.
Though mechanical royalties are covered by a compulsory license, Lowery argues that Spotify did not live up to the terms of that license, failing both to inform him of the use of his music or to pay the government-set royalty required by federal statue. For its part, Spotify claims that it never intentionally played music without compensating songwriters and publishers, but was sometimes unable to determine what parties to pay.
However, this agreement has turned out to be anything but a slam dunk for the two sides, with its terms generating immediate criticism from a number of songwriters and independent publishers. Some of the strongest pushback came from Lowery himself, who when presented with the opportunity to settle, balked at the offer on his blog.
Nevertheless, songwriters and publishers have to decide whether or not to join this settlement (and waive their rights to join the other class action lawsuits against Spotify). Unfortunately, the concerns over the settlement are very serious and worth pondering before signing your name on the dotted line (or Survey Monkey form).
As such, here are the key concerns that are raised by the settlement and what they mean to those considering signing on.
Whenever YouTube describes its efforts to fight back against copyright infringement and discourage misuse, it’s always quick to point to its Content ID system.
Content ID is the system, first rolled out in 2008 and extended to music in 2010, through which rightsholders are able to upload their content to a database that YouTube then uses to match against works uploaded to the site by third-party users. When the system detects a match, the rightsholder can then choose what to do with it, including simply tracking the content, monetizing the claim or, if desired, blocking the video outright. read more
In the United States, most copyright law deals exclusively with “economic rights”, or rights associated with the money and the economic value of creative work. These rights are incredibly important as they allow creators to prevent others copying/distributing their works, making new works based upon their creation and publicly performing it without a license.
These rights are why rightsholders can sue to block unlicensed CDs from being printed and why songs can’t be covered without a license fee to the songwriter.
But money isn’t everything. Elsewhere in the world, creators may enjoy a separate set of rights known as “moral rights.” The term comes from the French language and might actually be better translated as “personality rights”; this set of rights ensures that artists are able to protect their reputation by ensuring that they receive attribution when their work is used and that they can object to uses that they see as harmful to their name.
The internet is the channel used to keep an open flow of communication between artists and their audiences worldwide. For musicians, access to a level playing field online is crucial for both free expression and making a living. They can’t afford to get stuck in the slow lane because they don’t have the right deals with corporate partner. That’s why so many musicians fought hard for strong Net Neutrality protections, joining with civil rights groups, consumer advocates and media activists, and it’s the reason they pledged to defend the FCC against attacks on these protections.
But some in Congress take a different view. On Friday morning, the House will vote on another misguided attempt to roll back the net neutrality rules adopted by the FCC in February of 2015.
Last week, SoundCloud launched their new paid subscription service—yes, another on-demand streaming site. SoundCloud Go, as they’ve named it, promises many things such as a larger catalogue and maintaining the user-friendly interface they’re popular for, but when it comes to the details of artist compensation, it leaves much to the imagination. In other words they’ve decided not to disclose much information or have not yet figured everything out yet. read more
Canadian musicians have long expressed their frustration with the process of obtaining visas to cross the border and legally tour in the United States. But that may soon change, thanks to the introduction of new bipartisan legislation intended to streamline the process.
The proposed “Bringing Entertainment Artists to the States” (BEATS) Act, introduced by representatives Dave Trott (R-MI), Chris Collins (D-NY) and Peter Welch (D-VT) would speed up the process of obtaining a P-2 visa for Canadian musicians. Right now ,a touring musician typically must acquire a petition from a United States organization to obtain a visa. The petioner is usually a venue, presenting organization, booking agent, management company, etc, and the petition includes a list of dates and venues of performances. These petitions are processed in advance by mail, and can involve unexpected delays.
But under the BEATS act, musicians would be able to file an application for admission into the United States with an immigration officer at any Class A port of entry located on the border of the United States and Canada, or at any pre-clearance station at a canadian airport, right on their way into the US. They’d just need to have the paperwork with the signature of the petitioner and the appropriate supporting documentation ready.
Since then there have been several lawsuits—first with a case against Spotify from David Lowery of the bands Cracker and Camper Van Beethoven, followed by Flo & Eddie of vintage pop act The Turtles, who earlier sued digital radio services for not paying royalties on pre-’72 sound recordings. Then came a suit against Spotify by singer-songwriter Melissa Ferrick. And just this week saw an infringement claim from Yesh Music LLC and John Emanuele, who allege nonpayment from several music services, including Tidal, Beats Music (now Apple Music), Google Play, Slacker, Deezer, Microsoft and Rdio (the latter’s assets now owned by Pandora, pending successful Rdio bankruptcy).
What the heck is going on here?
To answer that question, we’ll need to back up a bit. First, you should probably check out our original post. If you don’t have time for that, here are a few basic points to understand:
1. There are two copyrights in a piece of music: the sound recording (imagine performances captured on tape or hard drive) and the musical work (imagine notes on paper and lyrics). A music service like Spotify must license both “sides” of the musical copyright in order to run their business.
2. Under U.S. law, anyone can obtain a license to make a reproduction or distribution of an underlying composition without having to directly negotiate permission with the copyright owner(s), provided they follow the guidelines laid out in Section 115 of the Copyright Act. To be eligible for a compulsory license, a user has to send a Notice of Intent (NOI) to at least one of the publishers of a musical work no later than 30 days before making the reproduction/distribution (for streaming, the understanding is that the reproduction and distribution happens at the time of transmission). The compulsory license—which you may hear people refer to as just “the compulsory”—also lays out specifics for reporting and royalty distribution. The user has to send monthly accounting statements and pay on a 30-day schedule. If a user cannot locate one of the publishers to serve, they can file notice with the US Copyright Office, which, for a small fee, will publish the until a publisher comes forward. Failure of a licensee to comply with any of these provisions renders them ineligible for the license and potentially liable for infringement.
It has come to light that not all of the mechanical royalties owed for songs played on digital music services like Spotify have been paid out to rights holders, a fact uncontested by several of the services. In Spotify’s case, the amount owed is allegedly anywhere from 16 to 25 million dollars. Lowery had been pointing to discrepancies in licensing and royalty distribution well before it came to the attention of NMPA, the trade industry group that representing music publishers. Rather than waiting around for the matter to be settled by the large corporate players, on December 28, 2015, Lowery filed a lawsuit against Spotify seeking class status so that other songwriters could be awarded damages should the case for infringement prevail. Since then, we’ve seen a flurry of litigation, though it remains to be seen where these cases end up.