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Harry Fox Agency In The Crosshairs

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Techdirt:

One of the key questions that came up following the reporting on {Spotify’s royalty lawsuit crisis} is the Harry Fox Agency’s role in all of this. HFA, an organization that was set up by the publishers themselves is supposed to be responsible for managing compulsory licensing for the vast majority (though not all) of popular songwriters (remember, HFA is about compositions/publishing, not sound recordings). But it’s beginning to look seriously like HFA just fell asleep on the job and didn’t bother to do the one key thing it was supposed to do for all these music services: file Section 115 NOIs.

So, given that, it sure looks like HFA didn’t do the one thing that it was supposed to be doing all along, and that’s… going to be bad news for someone. The big question is who? All of the lawsuits have been against the various music services, but without being privy to the contracts between HFA and the music services themselves, I’d be shocked if they didn’t include some sort of indemnity clauses, basically saying that if music isn’t licensed because of HFA’s own failures to do its job that any liability falls back on HFA.

And, if that’s the case, HFA could be on the hook for a ton of copyright infringement. If it’s true that it’s basically been ignoring the fairly simple NOI process for a lot of artists, then that’s going to be a major scandal – but one that seems a lot harder to pin on the music services themselves.

Digital Music News:

Sources {have} pointed to an effort by Music Reports to ‘seize the moment of incompetence‘ at Harry Fox Agency, or HFA, a staunch Music Reports competitor in the mechanical licensing space.  As the mechanical licensing agency for Spotify, HFA has been receiving heavy blame for the current Spotify royalty crisis, specifically for failing to send proper paperwork to artists, maintain a robust rights database, or create a system to fix its existing database issues.

The Music Reports ‘claims database’ would offer a possible solution to that mess, at least as it relates to this specific license.  More importantly, it would save Spotify from having to build the damn database: according to details tipped to Digital Music News, an out-of-court solution forged by the National Music Publishers’ Association (NMPA) would see Spotify paying a one-time penalty for the non-payments, while also creating an interface for artists that would match all mechanical royalties to their rightful owners.  And, share that data back to HFA.

As details of the NMPA resolution emerged, a number of industry executives wondered why Harry Fox would be exonerated, while leveraging Spotify to build its core database.  HFA’s former ownership by the NMPA has also drawn criticisms of cronyism, and Apple has already started to move away from the company (and towards Music Reports).  Meanwhile, the Agency’s lowball $20 million purchase by SESAC is now being viewed a bit differently: according to some insiders, the soggy price tag carried serious liability costs, the worst of which may lie ahead.

“Happy Birthday” Copyright Ruled to Be Invalid

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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

The Twisted History Of The Happy Birthday Song And The Copyright Shenanigans That Keep It Profitable

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Here’s more on “Happy Birthday”, via Boing Boing:

This suit was nearing its conclusion when a thrilling last-minute piece of evidence emerged from Warner/Chappell: an excerpt of a 1927 title called The Everyday Song Book produced by the piano-making firm, The Cable Company. The song, numbered 16, is called “Good Morning and Birthday Song” with the main lyrics under the score, and “optional” words below for “Happy Birthday.” The ostensible copyright notice was blurred in the version supplied by the music company.



Nelson’s lawyer noted it was not the first edition, and were able to get a library to dig up the 1922 version. The same version appears there without a legally required statement of copyright.



This would seem to be the end of the line for “Happy Birthday.” The (plaintiff) should prevail; fees collected starting in 2009, within the statute of limitations at the time the suit was filed, should be refunded; and a clear future would be established for public-domain use. But copyright is a crooked path.



It would be nice to close the book on “Happy Birthday,” but it doesn’t close the book on copyright absurdity. An abundance of material from 1923 is poised to enter the public domain in 2019 unless a further taking of the public interest occurs, as the Sonny Bono Copyright Term Extension Act did in 1998, adding an unnecessary 20 years to the existing 50 years’ protection past an authors’ death.


I’ve been following this convoluted case for a while, and the article on Boing Boing quoted above is perhaps the best summation of the whole thing that I’ve seen. It also includes background on the sisters who wrote “Happy Birthday” … their story, which I didn’t really know, is fascinating.

Music Library Warning Bells

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The DIY Musician on the controversial practice of retitling:

When you sign a non-exclusive agreement, you may have multiple parties wanting to collect public performance royalties on their specific placements only. The way to achieve this is by registering the song with the performing rights organization under a new title.

(This) usually means that the licensing company collects royalties for those placements in perpetuity (forever). If these royalties are theirs to collect forever, this could impact the value of your publishing catalog in the future, if you enter into a traditional publishing or co-publishing deal. It also causes confusion for music supervisors, studios, and the performing rights organizations when multiple parties are claiming ownership over the same work, which can often lead to content providers not receiving royalties they’re owed.


Before signing any catalog to a music library always specifically ask if they retitle. A lot of libraries have sneaky ways to insert retitling rights into their agreements that you may miss if you’re not used to looking for these sorts of provisions. If you think a ‘non-exclusive’ agreement means the library isn’t retitling then know that you’re probably wrong.

Retitling is messy business. It may be on its way out of favor thanks to audio identification software getting better and starting to be used by PROs for royalty tracking. If you have a lot of retitled songs in your repetoire then the emergence of audio royalty tracking could make your life hell … the retitled ‘versions’ of your songs could be the ones getting identified, which means the library owning that title will be getting the royalties whether they are responsible for the license or not.

A friend had his tracks retitled by a library that ended up submitting the new titles to a bunch of third parties (something else he overlooked as allowed in the agreement). Somehow these ended up at Shazam. My friend had a semi-popular song that this library retitled, and any time someone would ‘Shazam’ it, the re-title came up rather than the actual title that could be found in stores. He was able to contact Shazam and get this fixed but what a nightmare.

So, yeah … avoid any deals that involve retitling.

The DIY Musician article has a lot of other useful advice for things to look out for when signing catalog to music libraries. I’d also pay close attnetion to #5, “Limit the number of non-exclusive licensing partners you work with.”

The Dept. of Justice Said to Be Considering a Baffling New Rule Change for Song Licensing

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Billboard Biz:

According to numerous sources, the DoJ has sent a letter to the two performance rights societies governed by the consent decree, telling them that on “split works” songs — songs written by multiple writers — any writer or rights holder can issue a license for 100 percent of the song. In other words, the long-established industry practice of each rights owner greenlighting their particular portion of a song in order to establish a license — also known as fractional licensing — may no longer be allowed.



The DoJ has, somehow, become convinced that it is common practice in the music industry for any rights holder to license an entire song, not just the share they own.



I can’t see this going through as it only takes some simple explaining to realize the tumult it would create, but its consideration illustrates the growing political influence of tech — the Pandoras, etc — versus that of the PROs in our present climate.

Happy Birthday Copyright Bombshell: New Evidence Warner Music Previously Hid Shows Song Is Public Domain

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Ars Technica:

Further investigation showed that the song appeared in editions stretching back to 1922, which in the plaintiffs’ view “proves conclusively” that “Happy Birthday” entered the public domain no later than that year. The song was printed without a copyright notice unlike other songs in the book. Rather, it included a notice that read “Special permission through courtesy of The Clayton F. Summy Co.”



That important line of text published underneath the song’s lyrics was “blurred almost beyond legibility” in the copy that Warner/Chappell handed over in discovery. Plaintiffs’ lawyers note that it’s “the only line of the entire PDF that is blurred in that manner.”

Techdirt:

If you haven’t been following the issue closely, there is actually a lot of evidence, much of it put together by Robert Brauneis, that the song really should be in the public domain. There are all sorts of questions raised about how it became covered by copyright in the first place. Everyone agrees the song was originally written as “Good Morning to All” in the late 1800s, but from there, there’s lots of confusion and speculation as to how it eventually was given a copyright in 1935, granted to the Clayton F. Summy company. People have argued that the 1935 copyright was really just on a particular piano arrangement, but not the melody or lyrics to Happy Birthday To You — which had both been around long before 1935.



This latest finding at least calls into question how honest Warner/Chappel has been for decades in arguing that everyone needs to pay the company to license “Happy Birthday” even as the song was almost certainly in the public domain.



This would be a pretty big shake-up, especially if Warner/Chappel were ordered to retroactively pay back license fees if it’s proven they had knowledge of all this. Regardless, the fight over “Happy Birthday” is becoming the music publishing world’s equivalent to a juicy detective novel.