the scene celebrates itself
by M Donaldson // Leave a Comment
This recent episode of the CMU Podcast contains an excellent explanation of David Lowery’s lawsuit against Spotify and how the US’s fuzzy mechanical royalty policy created the fuel for the fire. The discussion of this issue starts at 39:46.
Previously and Previously.
by M Donaldson // Leave a Comment
For publishers, purchases result in mechanical royalties that are paid by record labels, which must match their recordings to the associated songwriters and pay the publishers accordingly. In contrast, streaming royalties are paid by the streaming service, shifting the administrative burden to companies like Spotify. Both purchases and on-demand streams require mechanical licenses to be obtained from publishers. This is where Spotify appears to have problems — it does not have publishing licenses for all the songs it streams.
A key problem is the compulsory license used by subscription services. A subscription service doesn’t need to secure mechanical licenses from publishers in advance of adding their musical works to its catalog. It can send what’s called a notice of intent and simply pay the appropriate royalties. But it’s not quite that easy in practice.
Because record labels are not required to provide publishing information associated with their sound recordings, services don’t always know which publishers they’re supposed to contact and pay. The end result is an incomplete record of songwriting credits and publishers for tens of millions of tracks.
Major music companies, which have equity in Spotify, want the streaming space to grow and believe imposing damages “could trigger mutually assured destruction,” one industry participant told Billboard. That could explain why some publishers are trying to reach a resolution with Spotify through the NMPA that would deliver back royalties in return for foregoing legal action.
Here’s the thing about copyright law: historically, as new technologies come along, copyright has a lot of trouble dealing with them. And, typically, the pattern is that the industry freaks out and tries to stop the new technology, but eventually someone duct tapes on a new bit of copyright law to cover it. Unfortunately, this means that there are all these weird periphery sections of copyright law that are supposed to apply to specific circumstances, which then get made obsolete by later technological situations, and it leads to lots of confusion and anger… and lawsuits.
There is also a complex bit of copyright law, known as Section 115, which gives the specifics on compulsory licensing of mechanical licenses in certain circumstances, if certain rules are followed. But here’s the crazy thing: it’s 2016 now, streaming services have been around for years, and still no one’s entirely sure if Section 115 compulsories actually apply to them. It’s never actually been tested and many services (including Spotify) assume they do, but a potentially big question is whether or not they really do.
Spotify can (and likely will) argue that it complied with the rules required in Section 115(b) for a “notice of intention” in order to get the compulsory mechanical license. Basically, Spotify would argue that it did what is necessary to get a compulsory mechanical license when it was unsure of who held the publishing/songwriting rights on a song. If it actually did do this, {David} Lowery’s case may be dead in the water — though I’m guessing Lowery’s lawyers will argue that it failed in some aspect of properly using Section 115 — or, as mentioned above, that Section 115 doesn’t actually apply to streaming services. If Spotify did not actually follow Section 115’s rules, then Lowery’s case suddenly is a lot stronger. Similarly, if a court suddenly determines that Section 115 doesn’t apply… well, then a lot of streaming services are in serious trouble.
Make no mistake, people … we – the music industry – are at fault here. Our data is fucked and in some cases non-existent. We all know it.
Some labels / distributors don’t upload the relevant meta or do and it’s corrupt and thus this situation arises. We need a global rights database … we’ve needed one for years. It’s time for this to be actioned properly with full support from every corner of the business. Until now much of the industry has been a bunch of lazy bastards cutting corners or uploading bad data at the expense of our life blood – the artists. That is unacceptable. If the meta was there Spotify would pay.
And despite having blanket licenses in place we are letting the services we deliver to take the blame for our industry-wide tardy incompetence. It actually saddens me that of all the digital service providers {David Lowrey} could have chosen to go after he’s going after one that actually recognizes this fact and are actively trying to build one. If Spotify are found to be at fault here every DSP will be guilty of this without exception. But I believe the fundamental fault here lies with us, the industry. Not the service … and we have a collective responsibility to sort this out.
by M Donaldson // Leave a Comment
Camper Van Beethoven and Cracker frontman David Lowery, retaining the law firm of Michelman & Robinson, LLP, has filed a class action lawsuit seeking at least $150 million in damages against Spotify, alleging it knowingly, willingly, and unlawfully reproduces and distributes copyrighted compositions without obtaining mechanical licenses.
The lawsuit comes amidst ongoing settlement negotiations between Spotify and the National Music Publishers Assn. over the alleged use of allowing users to play music that hasn’t been properly licensed, and also without making mechanical royalty payments to music publishers and songwriters. According to sources, Spotify has created a $17 million to $25 million reserve fund to pay royalties for pending and unmatched song use.
The complaint states that Spotify has “publicly” admitted its failure to obtain licenses and created a reserve fund of millions of dollars for royalty payments which have been “wrongfully withheld from artists.” The complaint further notes that statutory penalties allow for judgments between $750-30,000 for each infringed work, and up to $150,000 per song for willful infringement.
I admit I’m not the biggest David Lowrey fan in this sphere, but any eyeglass pointed at artist royalty in these early days of streaming is important as it may help interpret and set future policy. If Spotify is knowingly withholding royalty that can be remitted then most certainly they should pay up. However, I’ve heard of reserve funds being held by other services until rightsholders can be identified, most notably by SoundExchange (though they aren’t actually transmiting the compositions themselves), so the practice may not be as outlandish as the suit implies. One can also assume that if Spotify is doing this with regards to mechanical licensing then Apple Music, Tidal, etc. are probably doing the same … ?
Update:
Spotify is currently in the middle of a settlement with the National Music Publishers Association, after being sued for failing to accurately keep track of royalty payments. In a blog post last week Spotify admitted that it had a problem managing royalties, and that it would work with the NMPA to build a “comprehensive publishing administration system” to ensure artists and publishers are properly compensated.
If the NMPA opts into the settlement, which allows publishers to request royalty payments in exchange for dropping legal claims over licensing fees, it will likely weaken Lowery’s case.
by M Donaldson // Leave a Comment
Music streaming service SoundCloud has struck a licensing deal with UK-based music rights group PRS for Music, settling a lawsuit and in turn clearing an important hurdle on its way to launch a full-fledged music subscription service. Now, the company just has to get other rights holders back to the table.
SoundCloud has been working for some time on launching a paid subscription service similar to Spotify or Apple Music. However, the company also wants to keep user-generated uploads, remixes and DJ sets on its platform. To this end, it has been looking to offer rights holders the ability to monetize user-generated uploads, similar to the way YouTube has been doing it in the video space.
MBW: Do you get a genuine sense from SoundCloud’s side that they have a business ambition to succeed with a subscription platform – and that they’ll remain solvent long enough to do so?
Robert Ashcroft (PRS CEO): It’s clear from our discussions with them that is their intent. I know they have good financial backing. We’re very hopeful that this will be a major service. It has its own particular personality and there’s room in the market for lots of different takes on music services. We do believe that they’re sincere in the evolution of their business.
MBW: Vevo’s looking at a subscription service, Apple Music is already one; Spotify’s conceding ground on the ‘everything free’ rule; YouTube’s even launched Red – a paid-for tier. Now SoundCloud is starting to behave itself. Is there something in the air?
Robert Ashcroft: We very much hope so. We’ve been very public about our feeling that the playing field has not been level between the different kinds of services. We’ve called on the European Commission to examine the boundaries of who can benefit from the hosting defence under safe harbour legislation and who cannot. We’ve called for a clear distinction between those services that are purely passive, like DropBox, and those that are active in that they provide search, curation and various other means of accessing music. We’re in similar discussions with YouTube. My aim is to create a climate were copyright is valued on the internet, and where all of these services can compete with each other on a level playing field.
by M Donaldson // Leave a Comment
Before the digital age, royalties were difficult to track, but there were fewer platforms to consume music, so there were far fewer royalty streams to worry about.
With physical sales plummeting, and people shifting from downloading to streaming (like Spotify and Apple Music) and the rise of digital radio (like Pandora and Sirius/XM), there are many more royalties out there, but they can be tracked much easier through sonic recognition and content ID software.
We’re not quite there yet, but we’re getting closer every day.
For indie artists without a label or a publisher, you have to know what these royalties are and know where and how to get them.
Ari Herstand has done a noble service with this informative list of revenue streams for the new-to-it-all artist and songwriter (and it’s a good refresher to those who have been around the block, too). I love pieces like this as they are useful to bookmark and pass on when I encounter an friend or client who wants to learn more about how the sausage is made.
If you’d like to continue your studies, here’s an article titled Now You Know Everything About Music Publishing, as well as a second, completely different article also titled Now You Know Everything About Music Publishing, both hosted by Digital Music News. Now that’s unnecessarily confusing, but appropriately a metaphor for music rights management itself.
by M Donaldson // Leave a Comment
The [“Blurred Lines”] verdict has, perhaps unintentionally, shifted the interpretation of music copyright beyond composition, towards sound itself. This poses an interesting problem for electronic music producers whose personas are, through hours spent toiling over oscillators and EQs, often linked to intentionally crafted sonic characteristics. How much can these artists legally grasp for to protect the sound that they have created from a deluge of imitators?
In this piece Thump speaks with UK Music Lawyer Ben Challis who, like me, feels this verdict was wrong-headed and has troubling implications for creators (and not just in music, or dance music, when you really think about it).
Ben Challis: My personal opinion was that the jury got it wrong. It’s a very grey area and everyone made those puns about “blurred lines,” but it is a very grey area and judges have always struggled to define what is inspiration and what’s appropriation. Yes, the two recordings sound pretty similar, but the whole case is about the song, and in my own personal opinion the songs are not similar. If the case had been brought by the company that owned the sound recording I might have supported the decision.
Thump: What’s the difference between an electronic musician hearing another contemporary track and saying “I want to make that sound,” and Pharrell Williams saying “I really like that aural quality, that sound that Marvin Gaye had.” In both cases, you are trying to replicate a specific quality, a specific sound, correct?
Ben Challis: Correct. I don’t think there is a difference in what you’re saying or the question you’re asking. It’s the same question and of course again you can be influenced by someone, you can be inspired by someone, that’s fine in legal terms. What you can’t do is appropriate someone else’s work or copy their work, or at least copy a substantial amount of their work.
Update: I also ran across this fine article for WIPO Magazine by Ben Challis that goes into greater detail about the “Blurred Lines” verdict and gives some historical, legal background.
As Time Magazine put it, the decision would have a “chilling effect” on future song writing. Some went further, arguing that sampling should be recognized as an integral part of modern music creation, and that the case showed that copyright law was out of touch with current methods of music production. There are only a limited number of notes on the standard musical scale and surely it was now generally accepted that certain expressions cannot be subject to copyright, they said. Others argued that one of the purposes of copyright is to encourage creativity, not stifle it – hence the position that copyright only protects the expression of ideas, not ideas themselves. And yet others contended that transformative use can, at least in the United States, be protected as fair use. The general feeling seemed to be: “some protection is good – too much protection is not good”. As ever, it’s all down to where you draw the line.
Unsurprisingly, an appeal in the Blurred Lines case has already been formally announced.
by M Donaldson // Leave a Comment
The Hollywood Reporter:
According to the opinion on Tuesday from U.S. District Judge George H. King, “Because Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.”
The ruling means that Warner/Chappell will lose out on $2 million a year in reported revenue on the song. Unless something happens at an appellate court or unless someone else comes forward with a valid claim of ownership to the song, filmmakers like director Jennifer Nelson — who sued in 2013 over demands as much as six figures to license — will no longer have to pay to feature “Happy Birthday” in motion pictures and television shows.
This dispute is hardly over. Among other things, the plaintiffs represented by attorneys including Randall Newman and Mark Rifkin are contending that Warner should have to return millions of dollars in licensing fees. The issue of damages will come later.
Whoa … though based on our previous posts on this case, we could’ve seen it coming.
If you make music specifically for film / TV licensing, then it might be a smart move to immediately start working on versions of “Happy Birthday” in different styles and genres. Just sayin’.
Update: ARS Technica goes into greater detail about the decision. This isn’t a done deal just yet … apparently it ain’t over until the fat lady sings “Happy Birthday”. (sorry)
Update 2: Four Ways Musicians Can Make Money With Happy Birthday Now That It’s In The Public Domain
by M Donaldson // Leave a Comment
Here’s some more on this subject, as it seems to be quite the hot topic in my social media circles. The Future Of Music Coalition has released a factsheet on music licensing and political campaigns that explains a songwriter’s rights much clearer than I was able to in my previous post. One thing I was unsure about was whether a politician’s campaign could have a compulsory license that travels with them … the factsheet clarifies:
Anytime a campaign plays a song at a rally, they must ensure that they have a public performance license covering the composition’s use. Most major public venues such as convention centers and arenas typically purchase blanket licenses from performance rights organizations or PROS (ASCAP, BMI, SESAC) allowing campaigns to “publicly perform” any song in their repertoire, which includes the vast majority of compositions. However, these licenses may not cover all uses, so most national campaigns also purchase their own blanket licenses covering all campaign events; an additional benefit is that if they have a whistlestop event on the campaign trail at a factory or in a park and they throw a playlist on the P.A., they’d still be covered.
An ASCAP document specifically concerning music use in political events is linked, which is quite useful. That document also details other avenues that a songwriter could pursue to seek retribution, including a claim of ‘false endorsement.’ I’d like to know if that has been successfully used in a lawsuit against a political campaign under circumstances similar to the recent R.E.M. and Survivor cases. I bet it hasn’t. A judge would have a certain regard for the intelligence of the public … it would be seen as pretty obvious, from a legal standpoint, that playing an R.E.M. song as walk-on music doesn’t equate endorsement of a candidate.
by M Donaldson // Leave a Comment
The political season is revving up, so once again there’s a lot of talk about a song used without an artist’s permission at a political event. A lot of my friends have asked if a songwriter has any chance of retribution when this happens. With regards to a recent public rally, the talk being thrown around is that Survivor or their label should sue the organizers, or has sued (as many fake clickbait news stories are purporting). How can their song be used against their will at a large event in a public setting? And, it’s not like it was in a nightclub or coffeehouse that has an ASCAP / BMI / SESAC compulsory license, right?
Sorry to disappoint, but it is possible the use of the music was on the up-and-up. First of all, one can purchase a temporary compulsory license for music played at an outdoor event. It’s not difficult to do … I believe it can even be done through the PRO’s website. In Survivor’s case, this would be ASCAP, and the band would have allowed this by registering their music with the company. Anyway, this is basically a temporary version of the type of license that, say, a nightclub would purchase where the songs played in the establishment wouldn’t have to be ‘cleared’ in advance.
Furthermore, a songwriter cannot bar his or her music from being played at a public event, even if the writer feels the political message being presented is abhorrent. That’s the ‘compulsory’ part of the license. It would be the same if Survivor hated this one coffeehouse that had an ASCAP license and didn’t want their music played there … there’s nothing they can do as a member of the PRO. The exception is a synchronization license – that is, if the music is synced with video (a live TV broadcast of the public event doesn’t count). John McCain got into hot water for using a Foo Fighters song at an event in 2008, but this was due to the fact that he showed a video that had the music as its soundtrack. That’s a totally different type of license than the compulsory one that an organizer obtains for music just coming out of speakers, and the songwriters and publishers have a lot more control when the song is embedded with video.
I don’t know if the parties in question obtained the necessary license to play the music at the recent event, but I’m feeling they might have. It’s not exactly the ‘first rodeo’ for the politician who was involved. In that case, Survivor can only really do what they’ve been doing … publicly speaking out against the use of their song and the politics it has been unfortunately attached with.
Update: R.E.M. just got trolled, too.
Update 3: Whoa. I guess Huckabee didn’t have his compulsory license in order after all.
by M Donaldson // Leave a Comment
NPR:
Where do you draw the line between inspiration and appropriation when it comes to musical compositions? That question is at the heart of several high-profile court cases, including the recent “Blurred Lines” trial and a current copyright-infringement lawsuit involving “Stairway to Heaven.” But it isn’t always easy to prove a song is yours – particularly when you’re up against one of the biggest rock and roll bands of all time.
But proving a song is yours isn’t always easy, says leading music attorney Ken Anderson. “The first step is establishing ownership,” Anderson says. “That means that the material is original to you, meaning you’re the one who created the material.” [He] says you also have to show that the accused had access to your material.
“We listen to the music if it’s recorded, or we study it if it’s only in written form,” says [musicologist Judith Finell, who has testified in many high-profile cases]. “And usually, we transcribe any section of that music if it sounds similar to the other music we’re comparing it to. Then we start to determine if they have similar pitches in common, similar rhythms. What is it that makes them sound related?”
This is a fun radio piece from NPR, which does focus mostly on Led Zeppelin’s infamous ‘appropriations.’ I wouldn’t put the “Blurred Lines” case in the same category as “Stairway To Heaven”, though … I see some merit in the latter, but, personally, not much in the former. (As I tweeted to a friend the week that the “Blurred Lines” lawsuit went for the plaintiff, “I wonder what the Bob Marley estate is thinking right now.”)
I’ve recently been doing some consulting work for a well-known songwriter, and a recent top 40 hit by an unrelated artist contains a melody line that is suspiciously similar to one of hers. The artist in question (or, more likely, his label) was proactive in that he gave my client shared songwriting credit, but without contacting her. We found out through online press that the song received. No one here is upset – the similar part is brief, and my client is happy for the extra royalty that should come in – but this practice of preventively crediting songwriters that may or may not have been intentionally appropriated is new to me. It’s probably a lot more common than I know, mainly due to the issues raised in the NPR piece.