La-la-lawsuits: A look back at October & November’s most litigious moments

November 30th, 2011

The Supreme Court has refused to hear an appeal from ASCAP of an earlier court decision that digital downloads are not performances.  The earlier, lower court ruling stands.

Adam Lambert is being sued by Colwel Platinum Entertainment.  The company claims that Lambert signed a Music Services Agreement and a Co-publishing Agreement with Colwel Platinum prior to auditioning for American Idol.  Colwel Platinum eventually released an Adam Lambert album following his success on the show.  The album, Beg for Mercy, was originally available for purchase on Amazon but was made unavailable following take down notices sent to Amazon from Lambert’s reps.  Colwel Platinum is suing Lambert for making a false claim under the Digital Millenium Copyright Act and seeking declaratory relief that it owns a 50% publishing share of the recordings, that it has an unconditional right to promote and sell the recordings, that neither the Music Services Agreement nor the Co-Publishing Agreement was validly rescinded, and that these agreements remain in effect.  If the agreements were in effect at the time Lambert auditioned for Idol, Lambert could have been disqualified from the program as the agreements’ existence would be a violation of Idol’s rule that contestants not be subject to a recording or similar contract.

Classic Media, the owner of the fictional lovable canine character Lassie, is suing financial services firm J.G. Wentworth in a New York court for $1 million plus gains, alleging that the firm’s commercial featuring a similar look pup is copyright infringement.  THR published a thorough review of the case and discussion of relevant caselaw.

Kanye West is fighting an appeal of a case that was dismissed earlier this year, which alleged that West’s Grammy-winning song “Stronger” infringes the copyright of Vincent Peters.  The songs have some similar lyrics, both rhyming “stronger” with “wronger” and the underlying message is the same, but West argues that his inspiration for the theme actually came from 19th century German philosopher Friedrich Nietzsche‘s maxim “That which does not kill us makes us stronger.” Peters argues that he gave a copy of his song to West’s manager, who passed it on to West. The case was dismissed earlier this year when a judge found that there was not substantial similarity between the two works.

Universal Music Group has sued Grooveshark for copyright infringement, alleging that Grooveshark employees illegally uploaded over 100,000 UMG song files.  It hasn’t been an easy road for the music streaming service. THR reports on Grooveshark’s recent legal issues:

UMG previously sued its owner, Escape Media Group, for providing access to the label’s pre-1972 songs. The company was also recently sued by a Danish coalition of rights holders and has been the subject of complaints by some artists such as King Crimson. Earlier this year, Google pulled Grooveshark from its Android market because of copyright concerns, and the company, based in Florida, only has a deal with one major record label, EMI.

In this most recent case, UMG is seeking maximum statutory damages of up to $150,000 per infringement.   Grooveshark general counsel Marshall Custer commented:

“We have reviewed the Complaint that Universal Music Group filed  last Friday against Grooveshark in U.S. District Court in  Manhattan. Universal’s claims rest almost entirely on an anonymous, blatantly false internet blog comment and Universal’s gross mischaracterization of information that Grooveshark itself provided to Universal. While Universal has deliberately engaged the media prior to serving a copy of the Complaint on Grooveshark, Grooveshark intends to fight this battle before the Court, not in the press.  Grooveshark welcomes the opportunity to present the facts to the Court and has full confidence that it will prevail in the litigation.”

The Songwriters Guild of America has asked permission to file an amicus brief to be considered by the judge reviewing the copyright grant termination lawsuit surrounding The Village People‘s catalog of music, including hit song “Y.M.C.A.”  The issue in the case is whether the lead singer, one of many co-writers of the songs, can terminate the copyright grants without involvement from the other writers.

November’s Notable Hirings, Firings & Promotions

November 29th, 2011

Kei Ishizaka is the new Chairman & CEO of Warner Music Japan.

Senior Vice President of Marketing & Product Development Mitch Rotter left Universal Music Group.

Former MySpace Music head Courtney Holt is now COO of YouTube content Maker Studios.

AOL SVP of Business Development and Chief of Strategy Jared Grusd is moving to Spotify.

Ivan Gavin is now COO at Universal Republic & Island Def Jam

Some changes at Universal Music Publishing Group: Monti Olson moves to EVP and head of Pop & Rock Music and Creative.  David Kokakis is now SVP, Head of Business & Legal Affairs and Business Development.  Leaving the company are Tom Sturges (EVP/head of Creative) and Robert Allen (SVP, head of Business & Legal Affairs).

Warner/Chappell CFO Brian Roberts is promoted to EVP/CFO at the broader WMG, replacing Steve Macri.

Big moves at Billboard: Howard Appelbaum, president of Brand Development, leaves the company to return to Nielsen as president of Entertainment Group. Billboard owner Prometheus Media Group lost Debi Chirichella, COO, two weeks ago to become CFO of Hearst. Before that, another Billboard alum, Josh Engroff, departed in September to join mobile ad exchange startup Everyscreen Media.

 

 

Emails Create Binding Transfer of Copyright Interest, Court Finds

November 18th, 2011

Earlier this month, in Rafael Vergara Hermosilla v. The Coca-Coca Company, the 11th Circuit held that a chain of email correspondence created a valid and binding contract of copyright assignment.

The facts begin in 2009.  Coca-Cola created an advertising campaign for the 2010 FIFA World Cup soccer tournament, which featured a new version of the K’naan song “Wavin’ Flag,” the “Celebration Mix,” sung in different languages.  To produce the Spanish version of the Celebration Mix, Coca-Cola enlisted Jose Puig of Universal Music Latin America.  Puig, based on a recommendation from Rafael Artero of Universal Music Publishing Group, reached out to the plaintiff, Vergara, to adapt the lyrics of the song to Spanish.  Vergara knew he would need to negotiate his interest in the adaptation but assumed this would happen after the adaptation was completely.

Vergara adapted the Celebration Mix into Spanish and sent Puig the lyrics and a demo of the song with the Spanish lyrics.  Following Coca-Cola’s approval, Vergara created and delivered to Puig the final production of the song in December 2009.

The following month, Vergara invoiced UMP $6,000 for his production work and UMP began negotiating with the owners of the composition for an “adapter’s share” of the profits for Vergara.  In February 2010, iTunes Mexico began selling the Spanish Celebration Mix without any credit to Vergara for the Spanish adaptation.  The composition owners refused to grant an adapter’s share to Vergara, at which point Vergara threatened to file a lawsuit.

Puig and Vergara negotiated a settlement and confirmed the details via email.  Vergara stated in an email on March 4, 2010 to Puig and Artero that his “only demand” was that his “name as an adapter . . . [was listed] every time the name of any composer of [the Spanish Celebration Mix] [was] shown, . . . along with . . . production credits.” Vergara further wrote that Puig should “consider [the adaptation] a Work for Hire with no economic compensation” other than “one dollar.”  Puig emailed a response the next day, telling Vergara that he could “count on the credits on the track” and that he was resending the contract to Vergara.

The contract Puig sent Vergara did not comply with Vergara’s credit requests, so Vergara sent an email to Puig “revok[ing]” his “proposal” of March 4, 2010. Puig agreed to review the contract and make the necessary changes to the credit provisions.  Universal assigned all of its rights, including Vergara’s assigned copyright interest, to Coca-Cola on March 4, 2010.

In May 2010, Vergara filed a lawsuit against Coca-Cola.  After issuing a preliminary injunction against Coca-Cola from using the song unless it attributed proper credit to Vergara, the district court later granted summary judgment in favor of Coca-Cola.  The court ruled that the email exchange was a contract entered into by Vergara to assign his copyright interest in the adaptation to Universal.

Upon review, the Court of Appeals affirmed the district court decision of summary judgment in favor of Coca-Cola.  It held that the email exchange fulfilled the requirements under Florida law to form a binding contract.  Vergara set forth his “definite proposal” and Puig “unconditionally accepted,” matching the terms of the offer.  The court found that “[t]he two emails were ‘so connected with each other that they may be fairly said to constitute . . . a complete contract.” (quoting Webster Lumber Co.  v. Lincoln , 115 So. at 502).

Even though the parties intended to later execute a formal written contract, the court held that they still intended to be bound immediately by the written negotiations.

iTunes Match Launches

November 15th, 2011

Big changes are happening in iTunes.  iTunes in the Cloud automatically pushes iTunes Store purchased downloads to all of your devices without syncing or plugging in.  Now, with iTunes Match, even songs uploaded from CDs or purchased from other sites can be sent to iCloud wirelessly and accessed by your mobile devices for $24.99 a year.  Because iTunes in the Cloud is a free service, iTunes match makes the most sense for people who get their music outside of the iTunes store.

It is called iTunes Match because not all of your tracks are actually uploaded to the cloud.  First, it looks to its library of 20 million tunes to “match” up your track with one already in the cloud.  If it’s there, you stream those tracks to your devices; if the song isn’t already in the cloud, it will be uploaded and available for streaming.  Another plus – according to Apple, “all the music iTunes matches plays back from iCloud at 256-Kbps AAC DRM-free quality – even if your original copy was of lower quality.”

Sounds great? Maybe not. Jared Newman at PC World brings up some of the downsides to the service:

First, the matching process takes a long time–especially right now, as there is a rush of new users putting a strain on Apple’s servers. My 15GB library, most of which comes from ripped CDs, took about an hour to match. Uploading unmatched songs takes much longer–after a half-hour of uploading, I was only through about 20 percent of my 1100 upload items.

The bigger issue, however, is how iOS devices manage your newly matched library. Activating iTunes Match on an iPhone, iPad, or iPod Touch erases all of your locally-stored music (so it’s a bad idea to turn on the service if you’re about to hop on a long flight).

(UPDATE: According to Macworld, iTunes Match does not delete your local music library right away, despite Apple’s warnings. To double check, I tried this on my iPhone and found that all my local music was available even after disconnecting Wi-Fi. On the iPad, however, roughly half of my library is unavailable when Wi-Fi is turned off, because the songs haven’t finished re-downloading through iTunes Match. I’m not sure why my two devices behaved differently, but I’d warn against switching on iTunes Match until you have enough time to deal with any snafus.)

Songs are downloaded to your device automatically as you play them, and you can download entire playlists or individual albums with one tap, but there’s no “Download All” button for grabbing your entire library. The workaround, of course, is to create a playlist that consists of your entire library, but I wish Apple had come up with a better solution, including a way to keep locally-stored files on the device until they’ve been replaced by their iTunes copies.

Furthermore, once you’ve downloaded songs to an iOS device, deleting them can be a hassle. You can either swipe over individual tracks to remove them, or you can delete entire albums by pressing and holding on them, then hitting the “X.”

Neither solution is obvious, and if you try latter method on a playlist, it’ll delete the track list itself, not just the downloads within them. Apple needs to make bulk song management clearer and easier for users who want to swap playlists in and out.

 

EMI Sold! Universal, SONY/ATV Buy for $4.1 Billion

November 11th, 2011

Universal Music Group owner Vivendi has agreed to buy the recording side of EMI for $1.9 billion, much higher than the $1.2 – $1.5 billion estimated price.

Sony/ATV will acquire the publishing side for $2.2 billion.

Universal is already of the largest of the major labels, so this acquisition may receive scrutiny from regulators. Impala has already expressed its intention to fight the combination of companies.

Rappy Heavy D Dead at 44

November 9th, 2011

Rap legend Heavy D collapsed in his Los Angeles condo yesterday.  Heavy D, real name Dwight Arrington Myers, was having difficulty breathing as he was transported to the hospital.  Heavy D died 90 minutes later.

Heavy D rose to hip hop stardom int he 1990′s as frontman for the group Heavy D & the Boys.  Hit songs include “Nuttin But Love” and “Now That We Found Love.”

Heavy D had been recently struggling with pneumonia, but the actual cause of death is pending an autopsy.

US Copyright Office Announces Priorities for Next Two Years

November 8th, 2011

On October 25, the US Copyright Office released a document which summarizes the priorities of the Copyright Office for the next two years.

Here is a list of the top priorities.  For more detail, the full document is available for download here.

Studies

  • Small claims solutions for copyright owners
  • Legal treatment of pre-1972 sound recordings
  • Mass book digitization

Legislative Work

  • Rogue websites
  • Illegal streaming
  • Public performance right in sound recordings
  • Orphan works
  • Copyright exceptions for libraries
  • Market-based licensing for cable and satellite retransmission

Trade and Foreign Relations

  • World intellectual property organization (WIPO)
  • Trans-pacific partnership and other trade priorities

Administrative Law Practice

  • Prohibition on circumvention of measures controlling access to copyrighted works
  • Electronic system for the designation of agents under the DMCA
  • Review of group registration options
  • Registration options for websites and other forms of digital authorship
  • Electronic administration of the statutory licenses
  • Recording notices of termination of copyright transfers

Special Projects

  • Study of fees and services
  • Revision of the compendium of Copyright Office practices
  • Technical upgrades to electronic registration
  • Dialogues and roundtables with copyright community
  • Research partnerships with academic community
  • Revision of Copyright Office website
  • Public outreach and copyright education
  • Business process reengineering of recordation division
  • Public access to historical records
  • Skills training for Copyright Office staff

Do you think the priority list is addressing the most pressing current issues in copyright law?  In the coming weeks, I plan on exploring some of these topics through blog posts that will address them individually in detail.

Master Class in Los Angeles: The Music Business NOW – How It Really Works and the People and Events that Influence It

November 2nd, 2011

This master class series brings together top executives in the music industry and is open to anyone (i.e., you don’t have to be a student to sign up). Details as follows from http://clivedavisinst.tisch.nyu.edu/object/musicbusinessnow:

 The Music Business NOW: How It Really Works and the People and Events that Influence It

musicbusinessnow_banner.jpg

The Clive Davis Institute of Recorded Music | Tisch School of the Arts | New York University and The Recording Academy ® presents The Music Business NOW: How It Really Works and the People and Events that Influence It.

The Clive Davis Institute of Recorded Music | Tisch School of the Arts | New York University and The Recording Academy ® join together to connect the best and the brightest executives in our business with the next generation of artists, managers, and marketers of recorded and live entertainment. The digital age has forced massive changes on the entertainment industry; how do you develop, distribute, and market artists and their work in this brave new world? This in-depth master class series provides perspectives on this and other vital questions from some of the most influential people in the business, as they directly address new artists’ development; branding and marketing; building and maintaining a fan base; new strategies for the Internet and wireless technologies; online and digital marketing; touring and merchandising; retail sales; music publishing; film, television, and games; radio and video promotion; and much more. It’s a basic tenet that personal relationships are crucial in any business, and this is especially true in the music industry, which is vastly influenced by a handful of key executives.

This master class series features an extensive list of guest speakers, panelists, and lecturers, enabling students to meet and interact with major players in the business. Courses will be hosted in the private, 200+-seat Ray Kurtzman Theater at Creative Artists Agency in Los Angeles, CA.

DETAILS ON THE MASTER CLASS SERIES:

WHEN IS IT – Wednesdays, 7PM-10PM – from January 25, 2012 to April 25, 2012

WHERE IS IT - hosted in the 200+ seat Ray Kurtzman Theater at Creative Artists Agency, 2000 Avenue of the Stars, Los Angeles, CA 90067

WHO IS ELIGIBLE - This master class series is not for college credit; therefore, it is open to anyone with an interest in the music industry!

HOW MUCH DOES IT COST - $680 (*Current members in good standing with The Recording Academy® are eligible for a $100 discount on the registration fee. All Academy members claiming the promo discount will need the code provided by The Recording Academy®.)

PRIORITY REGISTRATION DEADLINE - January 18; rolling registration after January 18, pending space available

SCHEDULED GUEST SPEAKERS:

  • Irving Azoff , CEO, TicketMaster/LiveNation, manager of Christina Aguilera, Van Halen, The Eagles
  • Michael Rapino , CEO, LiveNation
  • John Branca , Senior Partner, Ziffren Brittenham & Branca, LLP, Co-Executor of the Estate of Michael Jackson
  • Rob Cavallo , CEO, Warner Bros Records, Chief Creative Officer, Warner Music Group
  • Steve Berman , Vice Chairman and President of Sales and Marketing, Interscope Records
  • Jody Gerson , Co-President, Sony/ATV Music
  • Jon Platt , President, Urban Music, EMI Music Publishing
  • Cameron Strang , President and CEO, Warner/Chappell Music
  • Tom Sturges , Executive VP, Creative, Universal Music Publishing Group
  • Gregg Sowders , Senior Vice President, Warner/Chappell Music
  • Kevin Weatherly , Program Director, KROQ and JACK-FM
  • Neil Portnow , President/CEO, The Recording Academy (GRAMMY Awards)
  • Nic Harcourt , Editor at Large, Music & Culture, Los Angeles Times
  • Rob Light , Managing Partner/Head of Music, CAA
  • Amy Doyle , Senior Vice President, Music and Talent, MTV
  • Mark Williams , Senior Vice President, A&R, Columbia Records
  • Ian Montone , CEO, Monotone Management (Jack White, The Shins, Foster The People,
  • Jim Guerinot , President, Rebel Waltz Management (No Doubt, Gwen Stefani, Social Distortion, The Offspring, Trent Reznor, Hot Hot Heat)
  • Steve Schnur , Worldwide Head Of Music, EA Videogames
  • Mark Shimmel , Head of Music, Turner Networks, Music Consultant, Kennedy Center Honors

…and more to be confirmed!

INSTRUCTORS:

Jampol_web.jpg JEFFREY JAMPOL, President of JAM, Inc., manages rock legends The Doors, and the Estates of Jim Morrison, Janis Joplin, Peter Tosh, and Rick James. Mr. Jampol won the 2011 GRAMMY® Award, along with Dick Wolf, as a producer of The Doors’ theatrical documentary narrated by Johnny Depp, When You’re Strange – A Film About The Doors, and was nominated for an Emmy® Award in 2010. Mr. Jampol also serves as a consultant to the Estate of Michael Jackson, and counsels managers, publishers, labels, and artists’ estates on catalog, publishing, licensing, branding, merchandise and marketing. He is a voting member of The Recording Academy®, where he sat on the Board of Governors of the Los Angeles Chapter from 2007-09, and is also a member of the Academy of Television Arts & Sciences®.

Beer_web.jpg LENNY BEER is co-founder and Editor-in-Chief of HITS Magazine and HitsDailyDouble.com, the music industry’s most widely read trade publication. He’s also a co-founder and principal of The MGMT Company, which guides the careers of 30 Seconds to Mars, Bush, Andrew W.K., The Airborne Toxic Event, The Bravery and other acts. The Bronx native received his BA from Carnegie-Mellon and his MBA/ from NYU. Lenny has also served as producer on several theatrical productions, notably Suzan Lori-Parks’ Pulitzer-winning, Tony ®-nominated Topdog/Underdog, starring Jeffrey Wright and Mos Def, and is an active member of The Recording Academy®. An avid golfer, he lives in Los Angeles with his wife, noted producer Suzi Dietz; they have two children and two grandsons.

Rogers_web.jpg IAN ROGERS, CEO, Topspin, has been building digital media applications since 1992.  Prior to Topspin, Rogers was VP Music and Video for Yahoo, President/CTO of Mediacode, creators of an early “music in the cloud” service, President of New Media for the Beastie Boys and their Grand Royal label, and part of the Nullsoft team who created Winamp, SHOUTcast, and Gnutella.

BRUCE RESNIKOFF, President & CEO, Universal Resnikoff_web.jpgMusic Enterprises. the U.S. catalog and ancillary marketing entity for the Universal Music Group, oversees integrated marketing campaigns, direct to consumer programs, brand management initiatives and strategic partnerships. He is also one of the founders of NOW! That’s What I Call Music, the most successful U.S. music compilation series in history. Resnikoff is a member of the Executive Board of the City Of Hope’s Music & Entertainment Division and is on the Board of Directors of the Rhythm & Blues Foundation.

Dorn_web.jpg DAVID DORN, Senior Vice President, Global Sales & Digital Strategy, Rhino Entertainment (a Warner Music Group Company). Mr. Dorn oversees the digital future of Rhino’s vast and historically rich catalog of recorded masters (Aretha Franklin, Ramones, Frank Sinatra, and Led Zeppelin, among numerous others). He also oversees Rhino’s International business and is a voting member of The Recording Academy®.

MUSIC BUSINESS NOW – HOW TO REGISTER!

Go to NYU Ticket Central, and Register NOW!

FOR MORE INFORMATION:

Facebook | http://www.facebook.com/musicbiznow

Twitter | http://www.twitter.com/musicbiznow

Email | musicbusinessnow@nyu.edu