Decades after the fact, a famous musician is finding that he may not own rights to his songs — and a federal court in Michigan has just ruled that a legal effort to sort out who does will be more complex than the parties may have first believed. This latest court rumba rang out with the release of the 2012 Oscar-winning documentary Searching for Sugar Man. The documentary featured Sixto Rodriguez’s music and career and the curious twist as to how the Michigan-born songwriter saw his flicker of fame wane before he became a huge star in South Africa late in his life. But the movie also led to a reexamination of ownership of the rights to some of Rodriguez’s tunes — and, oh, the music got complicated then. Harry Balk, who composed the songs with Rodriguez, had believed the musical rights were covered in an exclusive song-writing agreement between Rodriguez and Balk’s company, Gomba Music. On behalf of Gomba Music Inc., Balk sued Clarence Avant, a Motown big, and Interior Music Corp. in federal court in Detroit for copyright infringement, fraudulent concealment, tortious interference with copyright and fraud. Interior sued against Rodriguez alleging that he had entered into a deal with it in the 1970’s and that he had represented that he owned all rights free and clear to the songs. The suit continued, as Balk believed he had been defrauded; it was only with the release of Searching that this was realized. In late November, the federal court in Detroit ruled that all the parties had a lot to sort out with their litigation for it all to proceed.
The holiday cheer arrived early at the blog, as we got some great news for our student editors — whom we’ll ask our kind readers to assist in just a second. First this heartening information: The ABA Journal, the website of the flagship magazine of the American Bar Association, has put the Biederman Blog on its Top 100 legal sites list for a second year. The journal, seen by half the nation’s 1 million practicing lawyers each month, says it scans more than 4,000 legal blogs by attorneys and others as part of its reporting on the field, and, each year, it picks a handful of online sources that its editors say they remember, because these blogs “have tipped us off to breaking news and the bloggers who have compelled us to write about their innovative ideas.” It’s an honor to be part of this elite, whose members include top scholars, practitioners, and analysts whose names and work are instantly recognizable because they’re both cited in the law and they daily shape public opinion, especially through the news media.
Now, if you’ve generously taken the time to read this article, would you do one more thing: Would you please before Dec. 19 click on this link, take a few moments to register with the ABA (they don’t spam you or use the data — they say it is to prevent, gasp, ballot box stuffing) and to let the journal know that you, as we do, appreciate the hard, consistent, excellent work of Southwestern’s bloggers? Thank you to them and to you.
Even as consumers have focused ever more on the prospects of “cord cutting” — ditching pricey monthly cable fees for a carousel of online, cheaper services — a hush had settled over a potential mega media merger, this all occurring since back in October when the Federal Communications Commission (FCC) paused the unofficial 180-day clock on the review of the proposed merger between Comcast and Time Warner Cable. A federal appeals court, however, recently blocked the FCC from ordering the public disclosure of programming contracts. As part of the U.S. government’s review of the Comcast Corp. takeover of Time Warner Cable Inc., the FCC claimed it needed the media companies to publicly release such information showing fees paid by cable providers to the media companies that provide programming. CBS Corp. and other media companies sued in Washington, and the FCC’s disclosure was put on hold pending court review. The court sided with the media companies that such making such information publicly available would put media companies at a disadvantage, stating that “the agency has access to the relevant documents at issue in this matter and can continue to evaluate the proposed merger during the stay.” Meantime, the review of the Comcast-Time Warner merger continues.
You paid a nice chunk of change and you do own that Entertainment-related intellectual property, right? It may sound familiar to fans of digital music who sought to resell their “used” collections through the online marketplace ReDigi, but a new battle has erupted regarding some of the coolest video games — products that these days have become as big an Entertainment cash-register ringer as the movies. Many video game publishers increasingly require their customers-buyers to connect into publishers’ servers to unlock a game for playing. But here’s the twist: publishers often take those servers offline as soon as they are no longer economical to run. The Electronic Frontier Foundation says this leaves gamers unable to play the lawfully purchased video game. In response, the EFF has petitioned the Copyright office and Librarian of Congress seeking an exemption to the Digital Millennium Copyright Act’s (DMCA) anti-circumvention provision. This exemption would allow video gamers to circumvent the authentication checks and connections to the servers so that they could continue playing their games after they officially end. (more…)
It’s suddenly legal deja vu all over again:
Another legal defeat for SiriusXM, a win for Flo & Eddie
- SiriusXM has received another adverse ruling for its unauthorized public performance and reproduction of The Turtles sound recordings, and specifically their ever-popular and hit song “Happy Together.” As mentioned in a previous post, the two artists of the Turtles, Flo & Eddie, sued Sirius in California and were grated summary judgment. Then, last week a federal judge in New York also denied Sirius XM’s motion for summary judgment in a second lawsuit brought by Flo & Eddie, who are suing in different states because state laws protect sound recording authored before 1972. The rulings suggest that pre-1972 sound recordings include an exclusive right to publicly perform the song, so the artist has the say if these services such as SiriusXM or Pandora want to stream their music.
Ninth Circuit to reconsider ‘Innocence’ ruling en banc
- The U.S. Court of Appeals for the Ninth Circuit has agreed to meet en banc to reconsider an earlier, 2-1 decision involving the now-infamous Innocence of Muslims movie. As an earlier post describes, the appellate decision ordering Google to yank all copies of the film, including from YouTube, was greeted with legal consternation. Yes, the film itself proved to be a notorious, and some say blasphemous, mess, linked to mass protests globally and the deaths of several dozen people. But actress Cindy Lee Garcia got a twin surprise — she asserted she was duped into starring in the film, then, to the shock of many legal analysts, the appellate court found that an actor’s fixed performance may be copyrighted if it meets a minimum level of creativity and rejected the possibility that Garcia’s performance was a work for hire. The case has attracted sufficient attention so that the Ninth Circuit not only is reconsidering the matter, it also has created a special web page for those tracking this case.
Appellate court will re-review artists’ rights case en banc
- And while the judges in the Ninth were in the mood or mind: The appellate court also has agreed to meet en banc to reconsider a case that has the art community abuzz. It’s all complicated and involves fees that artists under state law are entitled to collect on resale of their works. There are some big names involved, including the art auction houses Christie’s and Sotheby’s, and the estates of Sam Francis, a renowned California abstract painter and printmaker, and Robert Graham, a California sculptor. Whether the so-called droit de suite allowed under California law is enforceable outside the Golden State, got the appellate judges in a twist that led to legal appeals and the reconsideration.
Southwestern Law School has honored three attorneys for their contributions to the entertainment and media industries, the legal profession and legal education at the Donald E. Biederman Entertainment & Media Law Institute Awards Reception. Daniel M. Petrocelli ’80 received the award for Outstanding Alumnus in Entertainment and Media Law; Jared Jussim was recognized as Outstanding Adjunct Professor in Entertainment and Media Law; and the late Ed Hookstratten ‘57 received the Donald E. Biederman Legacy Award. The reception was hosted by the Biederman Institute and Southwestern’s Entertainment and Intellectual Property Alumni Association. Sponsors included O’Melveny & Myers LLP, Warner Bros., and Early Sullivan Wright Gizer & McRae LLP and Howard Kurtzman ’79.
“This year’s slate of honorees is a testament to the superb quality and extraordinary accomplishments of our alumni and our adjunct faculty,” said Professor Steven Krone, Director of the Biederman Institute. “Dan and Jared have both risen to the highest levels in their professional career while finding time to also contribute mightily to the profession and the community at large, as did Ed before his passing. We are very proud to have them as members of the Southwestern family.”
What is an artist worth? Well everything, if one is trying to profit off her intellectual property, as Entertainment lawyers well know. Taylor Swift has reminded the music industry of the artistic preminum by pulling her music off Spotify — a reported $6 million move. This sent a message to streaming services, some analysts contended, that songwriters have the right to do what they want with their intellectual property and the services must value their creations, not the other way around. (more…)
Pharrell Williams, Robin Thicke, and Clifford Harris, Jr. (a/k/a T.I.) have taken Marvin Gaye’s family to court after receiving threats from the family that the hit song Blurred Lines was a knockoff of Gaye’s Got to Give It Up. The contemporary crooning trio filed a motion for summary judgment hoping this would settle the dispute. But U.S. District Judge John A. Kronstadt has written that he is likely to deny the motion, finding genuine issues of material fact that the songs were substantially similar as to protected elements. The ruling is not a full-on defeat, and it is unclear if the case proceeds to trial, though Kronstadt also has ruled on other case motions to compel further responses. The case has attracted considerable attention, with both sides using musicologists and mashups to debate copyright law. Gayes’s family accuses Thicke of having a “Marvin Gaye fixation.” What’s at legal issue? Give a listen and compare the songs in dispute:
In a world in which consumers can access movies in multiple ways — including with on-demand streaming services like Netflix or through cable or satellite providers and on an array of devices and locations –movie theaters will continue to thrive for now, despite some troubling long-term audience and revenue trends, a panel of experts told a recent, major gathering of Entertainment Law practitioners. (more…)
Although Aereo has said it is taking “just a pause” from providing customers Internet-based streaming of broadcast television — a service that has relied on the notion that thousands of tiny antennas are each dedicated to capturing and singularly transmitting a live public signal to customers — a federal judge in New York has issued a preliminary injunction that many industry analysts see as a potential legal terminus for the company and its vaunted high-tech end-around copyright laws. U.S. District Judge Alison Nathan in Manhattan issued the order last week barring Aereo from “streaming, transmitting, retransmitting, or otherwise publicly performing any Copyrighted Program over the Internet (through websites such as aereo.com), or by means of any device or process throughout the United States of America, while the Copyrighted Programming is still being broadcast.” He effectively shut the door on Aereo’s latest gambit to deem itself akin to a cable company and to seek to pay providers for their content. Aereo had claimed it did not need to fork over broadcast fees because its novel technology pulled in publicly available programming and it should be free, in keeping with copyright laws. In June, the U.S. Supreme Court rejected that argument, finding the Aereo service violated the Copyright Act of 1976’s Transmit Clause. The High Court remanded the case back to the lower federal court in New York. Based on the case’s current trajectory, Nathan said he could issue his injunction because the broadcasters who sought the order likely would prevail in the case.