Will Turtles’ win be a rights game-changer?

Who says the old guys can’t rock still? The not always so happy Flo & Eddie have sent a tremor rolling through digital radio land recently, winning on summary judgment against Sirius XM Radio for broadcasting and streaming their music without permission. Flo & Eddie is a corporation owned by the two founding members of the music group The Turtles, best known for once crooning about the pleasure of their shared company (see above).

Flo & Eddie sued Sirius for the unauthorized (1) public performances and (2) reproduction of its sound records by broadcasting and streaming content to end consumers and operating its satellite and Internet radio services. After considering both arguments, a federal judge in Los Angeles granted Flo & Eddie’s motion for summary judgment for all claims pertaining to Sirius XM’s public performance, but not the reproduction claims.

This is an important case because it shows how the courts will treat copyright claims pertaining to pre-1972 works as their copyright protection periods expire, and the work falls into the public domain. The court ruling will likely bring more litigation from performers like The Turtles. Moreover, similar rulings may encourage SiriusXM, Pandora, and other similar companies to lobby Congress for new copyright laws covering pre-1972 music.

Though this is a decision in just one case, analysts have pointed out that the Turtles’ judgment provides important insight as to how courts might resolve unanswered questions about the pre-1972 copyrights and whether federal or state law holds sway, and there’s another closely watched case in the dockets involving similar arguments involving Capital Records and Pandora. It’s also unclear whether the judge’s ruling could be viewed as broad enough to affect not just digital radio but also good old AM-FM.

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Why do U.S. TV networks kick up the costs for the rights to World Cup, other global sports?

grimesmugAs faculty adviser to Southwestern’s International Law Society, Professor Robert E. Lutz (right and below) has encouraged a fun discussion for students, faculty and practicing attorneys called Stammtisch, which is German for “main table” and connotes an informal, friendly group meeting held regularly. At the Sept. 17 Stammtisch, Professor Warren S. Grimes (left) of the law school sparked an invigorating discussion on his work concerning the cost of FIFA’s World Cup viewership rights internationally.

ESPN_Logo_CLR_PosNBC_2014_Indent_StyleIn the 2014 World Cup, the United States television networks, specifically, ABC/ESPN and Univision, paid roughly $212.5 million for broadcast rights. This compares to an estimated $205 million to $246 million paid by the German networks and $150 million paid by the French networks. It is estimated that for the next two World Cups, U.S. networks will pay an average of more than $500 million for broadcasting rights. The U.S. will be paying 2.3 times the former amount and likely will be the highest paying nation for broadcasting rights, by a wide margin. These high payments by the U.S. are not unique to soccer, as, for the last few Olympics, a U.S. network (NBC) has paid on average twice as much per resident as Canadian broadcasters. ‬

robertelutz00During the Stammtisch, the group discussed why the process leads to overpayment by U.S. networks, and how that cost is passed on to TV viewers in the form of cable fees and advertising. One likely reason for the high cost is American cable bundles provided by TV programmers, which force U.S. consumers to pay the cost of many channels they may not wish to watch. For those interested, Grimes has published in the Journal of International Media and Entertainment Law, The Distribution of Pay Television in the United States: Let an Unshackled Marketplace Decide, 5 J. International Media & Entertainment Law 1 (2014). He also has a forthcoming piece with particular reference to the World Cup in the Southwestern Journal of International Law. And if you are interested in joining ILS, please email ilsswlawedu@gmail.com.


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Netflix urges FCC to block net mega-merger

Comcast-and-Time-WarnerNetflix-LogoMergers are like marriages and sometimes all the related parties do not agree with the union. Since Comcast and Time Warner announced their proposed merger early last year, Netflix has publicly opposed this deal, calling the Comcast-Time Warner merger “anti-competitive.” Netflix has recently taken a more official step by submitting a Petition to Deny with the Federal Communications Commission (FCC). Also, sixty-five other organizations representing consumers and content producers have submitted similar notices of opposition.

In its petition, Netflix — which many industry watchers note already has created its own revolution in the broadcast world — argues that the merger would provide the proposed giant company monopolistic power with control over half the U.S. broadband in households. The proposed merger, Netflix also contends, would allow the new company to dominate the cable television industry, turning “a consumer’s experience into something that more closely resembles cable television.”

Moreover, Netflix says that streaming services (including it), will lose their negotiation power to pay for better streaming quality for its subscribers. Netflix is already engaged in contracts with the four biggest Internet Service Providers  including Comcast, Verizon, and AT&T, and recently a new deal was signed with Time Warner Cable for faster streaming after a kerfuffle over slowing of streaming content. But, Netflix claims the merger will allow the ISPs to impose higher prices for better Internet speeds.

Comcast and Time Warner, of course, have their own view about how their union would be favorable, arguing on a tailored corporate website that the joining of the two giant firms will bring customers “faster Internet speeds, a more reliable and more secure network, net neutrality protection, low-cost Internet access, and programming diversity to millions of new customers across the country.”

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Eminem raps are OK but Facebook posts aren’t?

EminemThe world has heard an earful from Marshall Bruce Mathers, the recording artist also known as Eminem aka Slim Shady. Since he broke out in the rap and hip hop scene as a pale poet from Motown with lots to say, Mathers also has done his share of aggravating audiences with his pointed and profane views, which women and gays have found hateful and offensive. Look online and it’s also clear that Eminem’s lyrics lean far out on themes of violence and harm to others. As with others in his genre, however, no one has ever suggested stuffing a sock in his utterances, legally speaking, no matter how disturbing his words. It’s music and free speech and protected, right? Well, what happens when those very same lyrics get put to page, on Facebook specifically, and they’re thrown in with other messages targeted at an individual? What happens then? That issue has made its way through an appellate court and heads to the U.S. Supreme Court this fall. (more…)

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In limbo: ‘Ohio Players’ financial legacy

The entertainment scene seems to feed a tabloid-style world enmeshed in divorce, bankruptcy, and scandal — and the complicated, troubling nature of the scene may be underscored when its business heads to the court room: The U.S. Court of Appeals for the Fifth Circuit recently reversed a federal bankruptcy court’s decision favoring debtor Lisa Ann Galaz over her  former husband Raul, who had worked with music producer Julian Jackson and eventually created a Texas limited-liability company  to collect royalties from the music of the famed funk band, the Ohio Players. During the couple’s marriage, the royalties did not generate any revenue. But as soon as they divorced, the royalties began to tally again, totaling nearly $1 million. Lisa Ann Galaz sought her share, and recently filed bankruptcy, hoping this would help her collect. However, rapidly evolving case law has limited bankruptcy courts’ jurisdiction, the appellate court noted. Raul Galaz appealed the decision, which the appellate court vacated and remanded for further proceedings involving both the U.S. district court and bankruptcy court that had handled the matter earlier. Meantime, the royalties for the Ohio Players’ remain in limbo — a sad state for a pioneering group, most of whose members are deceased and whose seven, No. 1 single hits include, Fire. In case the flashy clothes and deep bass groove don’t hit a familiar note:

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Tips on keeping in synch with music contracts

synch-01Evolving technologies such as synchronization — matching music-sound to visuals, such as multimedia or video — are further pushing change for the music industry: Multimedia music production now has become easier, faster, and snappier. This also means that musicians and Entertainment lawyers must know more about important elements in draft license agreements and rights in synchronization of music. Hypebot.com, a blog-website dedicated to music business news, has put up some helpful suggestions and a scan of some case law highlights the challenges that musicians may confront if they fail to protect their rights.  (more…)

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As the blog turns three, time for a refresh

Biederman Blog - Law School Online Journal 2014-09-01 11-08-54 Biederman Blog 2014-08-24 18-58-20With great thanks and appreciation to all the students, faculty, administration, and others in the community who have supported the Biederman Blog since its outset, now that the site has turned three years old and our hard-working editors have produced more than 500 posts, it was time for a refresh. This is still a work in progress. But as the blog has duly recorded, technology races ahead on us all, and our audiences may be accessing our content in evolving, robust ways — no longer just on a desktop computer, but likely on a tablet or hand-held mobile device. So the blog now incorporates responsive views, meaning this site should adjust and adapt for easy viewing on different browsers and web-enabled devices. If you detect bugs or gremlins in the site and think we may have missed them, please email us at: swlawblog@gmail.com.

Our 2014 technology upgrade also allows the blog to resume its push to provide calendar and events listings to the Entertainment Law community. The many local bar associations, schools and universities, industry groups, and others conduct many and intriguing programs, conferences, and other events about Entertainment Law matters — and the site offers a forum to let other appropriate parties know about these. If you wish your event to be considered for the Biederman Blog Entertainment Law calendar, please send complete information, especially including a contact person, with plenty of advance time to: swlawblog@gmail.com . Keep watching this space to see how the outstanding law students who serve as the blog’s Editorial Board advance this project.

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Aereo decision: a ‘narrow textual analysis?’

grimesProfessor Warren S. Grimes, who helped write an amicus brief in support of defendant Aereo in American Broadcasting Cos. et al v. Aereo Inc., kindly  followed up on his recent Q-and-A with  Biederman Blog editor Brittany A. Stone about the U.S. Supreme Court ruling in this much-watched, much-discussed case:

BB: I understand you were involved in filing an amicus brief in the Aereo case, on the side of Aereo.  Were you surprised at the result?

WG: As part of the Southwestern Amicus Project headed by Prof. Michael Epstein, I assisted third-year law student Andrew Pletcher in drafting an amicus.  Pletcher was the primary draftsman, but he received guidance from me, from Prof. Epstein, and from others. [See video below] 

We were disappointed in the result, but there is never any certainty in litigation, particularly in a hotly contested case of this sort.  One surprise for me was that in the 6-3 decision, the three justices who dissented were [Antonin] Scalia, [Samuel] Alito, and [Clarence] Thomas, justices that I would not necessarily have predicted would side with Aereo.  Both the majority and the dissent, however, were focused on a narrow textual analysis of copyright legislation, not on the broader competition and policy issues addressed in our amicus brief. Essentially, the majority opinion conceded some ambiguity in the statutory language, but sought to discern what Congress would have intended had they confronted the precise issue raised in the Aereo case.  The dissent took a narrower view of the language, with Scalia suggesting that what is not expressly addressed in the statute is not covered.   (more…)

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Pay that funky law bill, appellate court decrees

A botique Seattle law firm that provided considerable legal representation for musician George Clinton now also has brought the funk, winning an appellate decision that will see masters of the song writer’s recordings sold to satisfy big debts he owes to his one-time counsel.

After long battles among Clinton, Hendricks & Lewis, and Warner Bros. Music, the U.S. Court of Appeals for the Ninth Circuit has affirmed a ruling allowing for the sale of the masters, resolving one of the main issues in the case: the decision to allow works made-for-hire to be sold to pay debt.

This was permitted only because the copyright had been voluntarily transferred by Warner Bros. prior to this battle. Because Hendricks & Lewis showed that Clinton owed $1.7 million, the firm asked the court to force the sale of his recordings: One Nation Under a Groove, Hardcore Jollies, Uncle Jam Wants You, and The Electric Spanking of War Babies, to pay up his account.

The appellate judges obliged this, reckoning that it might not have under others circumstances. Appellate Judge Morgan Christen, writing for the three-member panel, allowed the sale under Section 201(e) protection of U.S. copyright law, deeming a work that previously has been voluntarily transferred is not accorded protection of involuntary transfer of protected works. Further, because Clinton wrote these pieces while working for Warner Bros., the company, in fact, is the initial author and owner of the work, making Section 201 protection unavailable to Clinton, the appellate court said.

What does this mean for work-for-hire copyright law? This created a newly carved out realm of litigation for entertainment lawyers, copyrighted properties usually cannot be forcibly transferred. But considering the works made-for-hire may have been transferred once already, this may affect future lawsuits by artists who have copyright to their works transferred to them at some point in their career. Where will that leave the industry now, as this landmark decision could change many future cases regarding the sale of copyrighted properties?

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‘Beasties’ win battle to preserve a legacy

beastiesThe Beastie Boys recently won a $1.7 million lawsuit against Monster Energy drinks for the company’s 2012 use of a mash-up consisting of five Beastie Boys songs. DJ Z-Trip gave Monster permission to use his mix, which contained the copyrighted songs. Although there have been many music infringement cases that specify how many bars can be “borrowed” legally (which really is not accurate, and the higher the similarity, the more likely an infringement will be found), this litigation boils down to a key fact: DJ Z-Trip had no authority to sell a mix of copyrighted material without consulting the band for permission to use their music further.

Beside infringing on the Boys’ music, the energy drinks’ music video at the end projected an image that said “RIP MCA,” looking very similar to Monster’s logo, which the band felt qualified as an endorsement by the late artist. But  Adam “MCA” Yauch in his will specified that his name could not be used for promotional purposes. His following was great and his legacy was cherished by many. Two members of the band, Adam “Ad Rock” Horovitz and Michael “Mike D” Diamond filed suit for $1 million each in damages as well as $1 million for the purported endorsement. (more…)

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