What They'll Never Tell You About the Music Business

by Peter M Thall

  • In 2006, a group of Canadian musicians, including the Barenaked Ladies and Avril Lavigne, formed the Canadian Music Creators Coalition to keep the Canadian Recording Industry Association from adopting, in Canada, the practice initiated by RIAA of suing those who share digital music for noncommercial purposes. The headline? “Recording its members’ rights to license ringtones; it was pilloried by headlines such as “ASCAP Wants to be Paid When Your Phone Rings.” The proponents of this attack forgot that AT&T was paid every time the phone rang with songwriters’ intellectual property forming the sound.

  • In 2012, ASCAP and BMI suffered more indignation when the Pacific Coast Farmers Market Association (whose executives thrived on salaries generated by their markets’ fees) complained bitterly that the PROs wanted to charge fees to those markets which presented live performances. The cost of a BMI license, by the way, for one of these markets, was $165 per year. One gets the impression that whatever the cost, the concept of private copyright creators and owners receiving money for the exploitation of their works was anathema to these users. Their philosophy is really not all that different from the points of view of others, described later in this chapter and in chapter 24, who simply cannot accept the fact that a culture’s intellectual property is not, and should not be, free. Of course, in this situation, the markets had no objection to paying the local electric company for electricity for lights, sound, public address, and power for the food and other vendors (from onion ring stands to game booths and booths selling clothes, generators, roofing services, etc.) that many of the farm markets provided to their attendees. So everyone could make money from their professions, but not the songwriters. Described this way, the songwriters and their PROs don’t seem so selfish after all, do they?

  • In 2013, Jennifer Nelson, an independent filmmaker, sued Warner/Chappell Music Publishing Company to establish once and for all that the venerable song, “Happy Birthday,” was actually in the public domain. She, along with every other filmmaker who wanted to use the song in a film, customarily had been charged a license fee for synchronizing the song in their films. This displeased her sufficiently that she did what thousands of other users of the song wanted to do for years, but either did not have the resources to do so, or did not wish to pursue a litigation that for the most part would only serve to relieve countless other parties of the obligation to pay license fees for the use of the song. For decades, the saga of “Happy Birthday” has seen law review articles, Copyright Society analyses, even lawsuits. But in 2015, new evidence of the song’s public domain status may have brought Warner/Chappell’s copyright defense to its knees. The Second Circuit Court of Appeals postponed decision until it could examine the new evidence that the song was published, with the authorization of the copyright owner, without a proper copyright notice—at a time when copyright notices were obligatory to avoid having a work enter the public domain. If true, those few remaining years of copyright protection claimed by Warner/Chappell will end and Warner/Chappell might even have to repay those from whom it sought and obtained license fees for years past. The only claim that Warner/Chappell made with respect to the song was that the lyrics—not the music—were protected intellectual property. The music itself was not the issue. This case has now been decided in favor of the public domain point of view. Decisions of the Federal Court of Appeals can be subject to rehearings, reviews, and, of course, appeals to the US Supreme Court. The income to Warner/Chappell derived from this legendary work was sufficiently large to justify that they pull out all stops until they ran out of options. Warner/Chappell will now have to return much that it has received from the exploitation of this seminal work. “Happy Birthday” is now clearly a public domain song.

  Copyright Kids is aimed at junior high school–aged children and older. It teaches copyright basics and registration procedures. It provides sample permission letters for school kids to request authorization to reprint, say, lyrics, in a yearbook, or to use recorded music in a video yearbook. Schools welcome this education aid, and some teachers use the tools offered by these sites to assist their students, individually or as a group, to create a work and to register it.

  What can copyright interests do to improve their image? One answer is to educate young people so that along with learning about music, and how to create enduring music, they also learn how important it is that the music be protected. The Copyright Society of the United States of America (www​.CSUSA.​org) has set up, as part of its FACE (Friends of Active Copyright Education) program, a section of its Website called Copyright Kids (www.​law.​duke.​edu/​copyright). The basic message is that the copyright laws of the United States and of other countries are necessary and, basically, fair: they protect creators’ (including the kids’) works; they protect the music and literature that the kids love; and they encourage creation.

  Even YouTube has gotten into the act. This Google-owned company does not appear to have been dissuaded in its efforts to teach the parameters of copyright protection, fair use, and copyright compliance/infringement by its parent’s total annihilation of the PIPA and SOPA bills. Now this juggernaut of online video has established Copyright School. It’s really just a video, but whatever works, I guess.

  The Music Publishers Association is developing a unique educational curriculum called the COPY-FREE ZONE targeted specifically at school music programs. It fosters a commitment to copyright recognition and compliance and guides schools and their students away from inadvertent copyright infringement as well. Hundreds of secondary schools throughout the country are participating. Sounds like something that should be applied to corporations that infringe music wholesale (see this page).

  SOPA (Stop Online Piracy Act) and PIPA (Protect Intellectual Property Act) were two acronyms given to what were originally perceived to be rather innocuous, though necessary, bills in Congress to control and stop online piracy. Mozilla and Google, early supporters, killed the bill with a public relations onslaught that totally ambushed the copyright interests. They felt that protections against foreign websites might result in limitations on their own businesses. Freedom of speech is once again invoked on behalf of the interests who would not exist but for the protections afforded intellectual property. The more things change, the more they stay the same.

  COPYRIGHT INFRINGEMENT

  A word about infringing others’ songs. Don’t. A copyright owner wronged ranks right up there with the proverbial scorned woman as among the most fearsome adversaries that one might have to face. And do not think that even a small incursion into someone else’s private property will not be noticed. It will. The copyright owner is likely to find you out even if your song is a hit only in Timbuktu. And he or she will use every tool in the book—national laws, international treaties, courts up to and including the Supreme Court—to make you pay.

  Under the Copyright Act, anyone who violates any of the exclusive rights of the copyright owner or author is an infringer of the copyright or right of the author, as the case may be. Period. The remedies (if you are interested, and you should be) available to a successful copyright owner, or author, are impressive: injunction; minimum damages (in cases in which the author or copyright owner cannot prove the actual financial extent of the damage) of from $750 to $150,000; in many cases, costs and attorneys’ fees; impoundment and “disposition” of the “infringing articles”; and, in some cases, seizure, forfeiture, and imprisonment. Not a pretty picture.

  There are two basic types of infringement: plagiarism (that is, copying another’s creation and representing it as one’s own) and more traditional violations of copyright, such as recording another’s song without permission (whether or not with the intention to call it one’s own creation); performing another’s song on the radio or in a club without the broadcast station or club having obtained permission; or printing, selling, or merely sharing copies of another’s song without permission. (The Internet has provided new and imaginative ways to accomplish this kind of infringement.) True, many infring
ements are unintentional, but that does not matter. Nor does it matter if the infringements are unconscious. All that matters is that the two works being compared are strikingly similar and that the defendant had access to the work of the plaintiff. And let me state right here that the broadly held belief that copying a maximum of eight notes does not constitute infringement is a myth. Nowhere is there any statute or case law that supports this contention.

  As noted earlier in chapter 17, one California federal court has ruled that the copyright law’s three-year statute of limitations bar to copyright infringement claims might only apply to the actual period during which claims are sought (that is, the three years preceding the lawsuit) so that an infringement that began decades earlier continues well beyond the end of what was always considered the end of the three years after publication. The only thing that is limited is ability of the copyright claimant to sue for infringements preceding the three years prior to bringing their lawsuit. If this ruling is upheld, the defendant in an infringement action will be susceptible of being liable for profits during the three years prior to the commencement of the lawsuit in addition, of course, to having to face all of the usual remedies afforded by the Copyright Act such as alternative statutory damages, an injunction, and all of the other remedies provided for by the Copyright Act.

  Access and Substantial Similarity

  Access to others’ recordings and musical compositions is the key to copyright infringement lawsuits involving plagiarism. And, believe me, the intellectual property community—from Disney to Mattel, from music lawyers to Atlantic Records—understands this full well.

  As you can imagine, millions of CDs—mostly demos—are mailed or messengered into music companies’ offices every year. Most sophisticated companies—record and music publishing companies, law firms, and management firms—take steps to ensure that they cannot successfully be sued for copyright infringement when a product is released that may (or may not) bear some resemblance to the unsolicited material. These companies routinely choose to not open—and, in fact, immediately return to the sender—the material they receive which has the appearance of including an unsolicited tape or CD, or which comes from a person or company with whom they are not familiar. Recent court cases have bolstered these companies’ confidence in that they have held that unsolicited materials received by these companies do not constitute such “constructive corporate receipt” as to render them liable if it turns out that something they are subsequently involved with “sounds like” the product that was sent to them without their solicitation. (We shall have to wait to see whether unsolicited MP3 files sent via email to these same companies will be regarded in the same way by the courts.)

  It is, of course, quite within the range of possibility that a musical work substantially similar to or even identical to another work can be the result of independent creation. A finding of “access” is a damaging, although not necessarily fatal, blow to the defendant in a situation like this just as a finding of lack of access may not deal a fatal blow to the plaintiff. “Substantial similarity” in and of itself might give rise to an inference that there was access to the plaintiff’s work. But, in the lingo of the federal district courts, the courts now require “significant, affirmative, and probative evidence” of access, and, as noted above, it no longer appears that the mere sending of a demo to the defendant’s record company will meet this criterion.

  Yet, whenever one gets into a courtroom—and ends up staying a while—anything is possible. The Isley Brothers’ claim against Michael Bolton and his song “Love Is a Wonderful Thing” regarding the claimed infringement of their song of the same title survived the district court and appellate court and was, in effect, upheld by the US Supreme Court when it declined to consider the case on appeal—even though there was no proof whatsoever that Mr. Bolton ever heard the plaintiff’s song and even though the songs of the two litigants were really not so similar after all.

  Five million dollars in judgments and lots of legal fees later and you can begin to appreciate the paranoia that is rampant among music business companies when it comes to opening that envelope that looks so enticing. Okay, it is not so enticing to those of us who receive loads of them, but sometimes the package gets through (perhaps a temporary secretary is opening the mail, or there is a particularly inviting cover).

  An earlier Michael Bolton case involving “How Am I Supposed to Live Without You?” had a more favorable result for Bolton. Even though the plaintiff had recorded a demo of his musical work featuring the very artist that Atlantic Records used to make the song a worldwide hit, Laura Branigan, the court held that the lack of substantial similarity in itself was enough to negate the plaintiff’s claim. But the proof of access in that case must have taken the breath away from Mr. Bolton’s litigator.

  Then there was the claim against Ric Ocasek of The Cars in which the plaintiff had sent his “substantially similar” song in demo form to the very A&R person who acted on behalf of The Cars for its record company, Elektra Records, a full year before The Cars’ version was released and became a hit. Curious timing, one would think. But this particular plaintiff’s argument had a problem—one that was fatal to his case. The Cars and their principal writer were able to prove that their song was actually written and recorded two years before the plaintiff’s song was sent to The Cars’ record company! Luckily they had saved the tape and it was computer dated! The plaintiffs slunk away from this one.

  How Can Similarity Be Blurred and Still Be Substantial?

  I will not go into the details of the lawsuit regarding the claim that Pharrell Williams and Robin Thicke’s “Blurred Lines” infringed the Marvin Gaye song “Got to Give it Up.” This lawsuit received exhausting international attention. But I do want to discuss the consequence of the jury verdict which has yet to be affirmed or reversed on appeal.

  Because of the basis on which the jury made their decision—which revolved around the “feel” of the recordings of the two works as opposed to the substantial similarity of the notations—the graph that defines the songs—musicians are now beginning to think that they can claim infringement for reasons that never existed before. And contrarily, composers and producers who always felt it was artistically valid and even exemplary to “quote” or “refer” to prior art in their original works are now beginning to worry that they risk copyright infringement lawsuits if they continue to follow this practice.

  In this case, similarities of orchestration that have nothing to do with compositional elements of the copyright (which after all are the essence of the copyright) led the jury to consider the two songs to be too close to have existed without one copying the other. That one was inspired by the other was acknowledged at the beginning of the case. Both Thicke and Williams were fans of Marvin Gaye’s music and “sound” and sought not so much to replicate it, but rather to “reference” it in their original work “Blurred Lines.” In fact, Thick and Williams initiated the lawsuit in the first place to seek a declaration by a relevant court that their work did not infringe the Gaye song. (This technique—of a potential defendant initiating a lawsuit as a plaintiff—is a fairly recent gimmick of lawyers from California and Texas—(and presumably other states as well now—in order to gain some one-upmanship on an unsuspecting party—and at the same time, not coincidentally, establishing the venue of a lawsuit more favorable to the initiating party than the one where it would have had to litigate had it waited to be sued by the party who was actually damaged.)

  So, now a jury has been allowed to consider the “total concept and feel” of a recording as having equivalent (if not more) weight as that of experts’ analysis in determining whether the actual notes, their relationship, place in time, etc. of the two works make them substantially (or strikingly) similar. The “Blurred Lines” case suggests that external “vibes” have a role to play even though those elements usually come via the recording and not the literary expression found in the notes themselves.

  Compare the wisdom (or
lack of it) of the Blurred Lines judge compared with Shakespeare. Yes, Shakespeare. When attending his play Richard III a few years ago, I heard something that bowled me over. Whatever the bard’s background was in music or music education, and I do not believe it was significant, or even present, at all in his life, he so totally comprehended the essence of music that it is a wonder that five hundred years later well-educated judges, most of whom one would think had some musical training, could get it so wrong. Shakespeare’s words: How sour sweet music is when time is broke and no proportion kept. He understood the essential relationship between notes on a staff (the graph that gives structure to the musical code forming a song), and time, which together differentiates one piece of music from another. When a court allows a jury to consider the “feel” of a piece of music, it is denying the very essence of musical expression that constitutes a song: the relationship of notes within a time signature on the staff.

  Infringement Via Another Form of Intellectual Property: The Droit Morale

  The tendancy toward creative, though ill-advised, theories are challenging other long-established concepts of infringement. The European Union has come up with a blockbuster: trademark infringement by iPhone.

  I am one of many attorneys who have had clients perform at Carnegie Hall in New York. When they sought to title their CD: “Live at Carnegie Hall”—with photo of course—they were dismayed at the voracious response of the trustees of that renowned institution: they were told that they would be infringing not just the trademark “Carnegie Hall,” but also the façade of the building which they claim is protected by copyright. Fast-forward to 2015: the European Parliament is debating whether to adopt an exemption to copyright called the Panorama Exception. Essentially, this new rule/law would protect the “moral right” or the “droit morale” of the architects of public buildings from unauthorized reproduction. This “right” has no expiration. It lasts forever. Thus, a photo of your best friend standing in front of the Eiffel Tower would infringe the rights of the heirs of Gustave Eiffel who died almost a hundred years earlier in 1923. To be violative of this law, the use of the photograph need not be anything more than one more addition to the tourist’s photo diary of a trip to Paris. The concern over the Panorama Exception, of course, is that this law, if passed, will presage similar laws that might also affect the reproduction of music—whether public domain or not. The United States is one of the few countries in the world that does not recognize the droit morale; but the concern now is that the concept will be expanded well beyond how it has been interpreted and applied for hundreds of years. The result would impede the free flow of information. Beware those who might want to turn John Philip Sousa’s marches into a rap opera. Oh wait: isn’t there a hit Broadway hip-hop musical based on the life of Alexander Hamilton?