Taylor’s Version of copyright; Harvard Law School, April 3, 2024

Brett Milano, Harvard Law School ; Taylor’s Version of copyright

"When Taylor Swift began re-recording her old albums and releasing the new, improved “Taylor’s Version,” she did more than delight a nation of Swifties. She also opened significant questions about the role of intellectual property in contract law, and possibly tipped the balance toward artists.

According to Gary R. Greenstein, a technology transactions partner at Wilson Sonsini, the Swift affair is one of many that makes these times especially interesting for copyright law. Greenstein’s current practice focuses on intellectual property, licensing, and commercial transactions, with specialized expertise in the digital exploitation of intellectual property. He appeared at Harvard Law School on March 28 for a lunchtime talk, which was presented and introduced by Chris Bavitz, the WilmerHale Clinical Professor of Law and managing director of the law school’s Cyberlaw Clinic. “I have been doing this for 28 years now and there is never a dull moment,” Greenstein said.

Greenstein placed the Swift story in the larger context of music copyrights. In music, he explained, there are always two copyrights. The first is for the musical work itself, and this is usually controlled by the composer/songwriter, or by a publishing company acting on their behalf. The second is the “master,” the recorded performance of the work, and this is usually controlled by the label."

On Copyright, Creativity, and Compensation; Reason, February 12, 2024

DAVID POST, Reason; On Copyright, Creativity, and Compensation

"Some of you may have seen the article by David Segal in the Sunday NY Times several weeks ago [available here] about a rather sordid copyright fracas in which I have been embroiled over the past few months...

What to make of all this? I am not oblivious to the irony of being confronted with this problem after having spent 30 years or so, as a lawyer and law professor, reflecting on and writing about the many mysteries of copyright policy and copyright law in the Internet Age.

Here are a few things that strike me as interesting (and possibly important) in this episode."

Jackson Slide and Ride sued over copyright infringement violations for the second time; Jackson Sun, December 4, 2023

Sarah Best, Jackson Sun; Jackson Slide and Ride sued over copyright infringement violations for the second time

"How licensing works

With an ASCAP license, owners then possess the legal right to use any and all of the more than 18 million works protected by ASCAP, according to Wagener.

The necessity of an ASCAP license extends to nightclubs, bars, restaurants and any venue where music will be played. However, failure to obtain a license results in legal fines whose financial detriments can cost triple or more than the yearly fee for an ASCAP license.

In a press release on Oct. 18, it was disclosed that for average restaurants and bars, licensing fees amount to an average of less than $2 per day. Licensing fees occur yearly and are determined based on an establishment's following characteristics:

• Size/capacity (the larger the venue, the more valuable the performance is and the higher the licensing fee)
• Type of music being performed (differentiated by live music, background music, karaoke, etc)
• Occurrence of live music (distinguished by its playing three nights or less and four nights or more)"

Her Music Fell Into Obscurity. Now It’s Back at the Philharmonic.; The New York Times, November 20, 2023

Garrett Schumann, The New York Times; Her Music Fell Into Obscurity. Now It’s Back at the Philharmonic.

"When Perry died, she had no children and only a few published works. Although scholars have identified about 100 of her manuscripts and scores, dozens cannot be performed or recorded because there is no established copyright holder. As Christopher Wilkins, the music director of the Akron Symphony, said, “all the work is protected; it just hasn’t been licensed, and can’t be until whoever controls it negotiates that.”

Wilkins first found Perry’s compositions in 2020, and marveled at what he saw. She, he said, “may be the most accomplished and celebrated composer ever to emerge from Akron.” He then asked the soprano and scholar Louise Toppin, who leads the African Diaspora Music Project, to help him explore Perry’s output and edit some of her manuscripts...

The Akron Symphony has also engaged a local lawyer to help resolve the copyright ambiguities that ensnare many of Perry’s compositions — a barrier to overcome for those interested in her music, beyond historical practices of exclusion among American institutions."

Blue Moose in Topeka is among a dozen bars and restaurants being sued. Here's why.; The Topeka Capital-Journal, November 7, 2023

Keishera Lately , The Topeka Capital-Journal; Blue Moose in Topeka is among a dozen bars and restaurants being sued. Here's why.

"What other restaurants and bars are being filed against?

Among The Blue Moose Bar & Grill, 11 other restaurants and bars nationwide have been filed against by the ASCAP for copyright infringement.

Those restaurants and bars include Commonwealth (Las Vegas), Dublin Square (East Lansing, Michigan), Fable Lounge (Nashville, Tennessee), Hennessy Tavern (Laguna Beach, California), Liquid Joe's (Salt Lake City, Utah), Lonerider Brewery (Raleigh, North Carolina), Olympix Sports Bar (Houston, Texas), Slide & Ride 2 (Jackson, Tennesse), The Stetson Bar (San Antonio, Texas), The Tonidale Pub (Oakdale, Pennsylvania), and Xpose (Beaverton, Oregon)."

Famous Music Copyright Cases Revisited: Ed Sheeran, Led Zeppelin, Katy Perry and More; Variety, April 27, 2023

 Thania Garcia, Variety; Famous Music Copyright Cases Revisited: Ed Sheeran, Led Zeppelin, Katy Perry and More

"To help better understand the nuances of a copyright infringement trial, Variety revisits five of the most talked-about intellectual property lawsuits against musicians and songwriters that actually went all the way to a verdict… (and, in the case of appeals and judicial reversals, sometimes much further still)."

Stolen or Original? Hear Songs From 7 Landmark Copyright Cases.; The New York Times, April 27, 2023

Ben Sisario, The New York Times ; Stolen or Original? Hear Songs From 7 Landmark Copyright Cases.

"Here is a guide to some of the most consequential music copyright cases in recent decades, along with excerpts from their recordings.

But remember: It can be tricky, and even misleading, to compare recordings alone. In cases like these, the only material in question are the songs’ underlying compositions: the melodies, chords and lyrics that can be notated on paper. Elements specific to the performance captured in a particular recording — like the tempo, or the timbre of an instrument — are irrelevant.

Juries must decide not only if one song copies another, but whether the earlier song was original and distinctive enough to be protected by copyright.

“The problem with cases like this is that people ask the wrong question,” said Joe Bennett, a professor at the Berklee College of Music who works as a forensic musicologist in legal cases. “They ask the question, ‘How similar is song B to song A,’ whereas what they should be asking is how original is song A.”

Got that? In that case, put your headphones on and judge for yourself."

Ed Sheeran Trial: Did He Copy Marvin Gaye? Here’s What to Know.; The New York Times, April 24, 2023

Ben Sisario, The New York Times; Ed Sheeran Trial: Did He Copy Marvin Gaye? Here’s What to Know.

"A closely watched music copyright trial is set to begin Monday in federal court in Manhattan, where a jury will decide a lawsuit accusing Ed Sheeran of copying his Grammy-winning ballad “Thinking Out Loud” from Marvin Gaye’s soul classic “Let’s Get It On.”...

The music industry is keenly interested in the outcome. Over the last decade, the business has been rocked by a series of infringement suits that have involved questions of just how much or how little of the work of pop songwriters can be protected by copyright, and how vulnerable they are to legal challenges."

Who Owns a Song Created by A.I.?; The New York Times, April 15, 2023

Ephrat Livni, Lauren Hirsch and Sarah Kessler The New York Times; Who Owns a Song Created by A.I.?

"Who owns the output of generative A.I.? For now, only a human’s work can be copyrighted, but what about work that partly relies on generative A.I.? Some tool developers have said they won’t assert copyright over content generated by their machines. In February, the Copyright Office rejected a copyright for A.I.-generated images in a graphic novel, though the writer argued that she had made the images via “a creative, iterative process” that involved “composition, selection, arrangement, cropping and editing for each image.” The government compared use of the A.I. tool to hiring an artist. But the lines may blur as the use of such tools becomes more common. Like the tools, the intellectual property issues are a work in progress that will only get more complex."

Can you copyright a rhythm? Inside the reggaeton lawsuit that could shake the pop world; The Guardian, March 22, 2023

Saxon Baird, The Guardian; Can you copyright a rhythm? Inside the reggaeton lawsuit that could shake the pop world

"While rhythms are not generally protected under copyright law in the US, a rhythm may be copyrighted if it can be proved that it is substantially unique or original."

Cher’s Royalties Lawsuit Against Sonny Bono’s Widow Can Move Forward, Judge Says; Billboard, March 17, 2023

BILL DONAHUE, Billboard; Cher’s Royalties Lawsuit Against Sonny Bono’s Widow Can Move Forward, Judge Says

"Sonny and Cher started performing together in 1964 and married in 1967, rising to fame with major hits like “I Got You Babe,” “The Beat Goes On” and “Baby Don’t Go.” But the pair split up in 1974, finalizing their divorce with a settlement agreement in 1978. Under that deal, Sonny retained ownership of their music rights, but Cher was granted a half-share of all royalties.

Bono died in 1998 as the result of a skiing accident, leaving Mary in control of those copyrights. And in 2016, she invoked the termination right — a provision of the federal Copyright Act that allows creators or their heirs to win back control of rights they signed away decades prior. Mary sent such notices to Sonny and Cher’s publishers, taking back full control of those copyrights.

Five years later, Cher filed her lawsuit — seeking a ruling that the divorce agreement was still in effect and that she was still owed her 50% cut of royalties, regardless of who owns the copyrights now. Mary then fired back a few months later, arguing that the case should be dismissed. Her lawyers said that termination rights were designed to trump all preexisting agreements, including a divorce agreement.

“Cher’s position would subvert Congress’ intent in enacting the copyright termination provisions: to ensure that authors and authors’ heirs, not grantees or ex-spouses, would benefit from the extended term of copyright,” Bono’s attorneys wrote in December 2021."

When Songs Sound Similar, Courts Look for Musical DNA; The New York Times, March 1, 2023

 Ben Sisario, The New York Times; When Songs Sound Similar, Courts Look for Musical DNA

"But are they close enough that Sheeran should be liable for copyright infringement? Or is their overlap limited to fundamental musical building blocks that are part of the public domain?"...

“All of these cases are about the question of how similar is too similar,” said Joseph P. Fishman, a professor at Vanderbilt Law School in Nashville. “The Copyright Act that Congress passed says nothing whatsoever about that question. In the U.S. copyright system, the rules for how that question gets answered are entirely developed by federal judges.”"

Column: How Trump tried to trademark and profit off the phrase ‘Rigged Election!’; Los Angeles Times, February 2, 2023

NICHOLAS GOLDBERG, Los Angeles Times; Column: How Trump tried to trademark and profit off the phrase ‘Rigged Election!’

"Lehrer released records, played the Cambridge coffee shop scene and San Francisco nightclubs and became world famous before mostly disappearing from public view and going back to being a math teacher, much of the time at UC Santa Cruz. About songwriting, he told the Washington Post: “My head just isn’t there anymore.”

But his songs remained popular and he presumably continued to make money from them.

Then, late in life, he decided he was done profiting from his work. A couple of years ago he announced that he intended to put all his music into the public domain. In late November, he posted another note on his website saying that “all copyrights to lyrics or music written or composed by me have been permanently and irrevocably relinquished.” 

“In short,” he wrote, “I no longer retain any rights to any of my songs. So help yourselves and don’t send me any money.”

OK, I’ll admit I found this moving, an example of a well-known person putting the public good over the private good, at some financial cost to himself. It’s true that Lehrer is in his 90s and, as far as I can tell, has no children, although surely he’s got heirs of one sort or another. Admittedly, this is not as big a deal as if we heard that the songs of Bob Dylan or Paul McCartney were suddenly free for public use (which they aren’t). But Lehrer’s gesture is generous and selfless nevertheless, because the public domain is, in the end, the public domain. 

People who want to use or perform or record or rearrange or tinker with his songs may now do so “without payment or fear of legal action,” Lehrer wrote."

Sound familiar? Taking songwriters to court; CBS News, April 3, 2022

CBS News; Sound familiar? Taking songwriters to court

"Sound familiar? Taking songwriters to court

When two songs share a melody, some chords, or even just a vibe, can the songwriter be taken to court? Correspondent David Pogue looks at how music copyrights have become an increasingly disharmonious area of litigation."

Sonny Bono’s Widow Strikes Back in Cher Copyright Fight; Billboard, December 9, 2021

Bill Donahue, Billboard; Sonny Bono’s Widow Strikes Back in Cher Copyright Fight

"Cher’s legal battle with Sonny Bono’s widow is heating up, with Mary Bono arguing that the legendary singer should not be allowed to claim that her divorce agreement trumps important provisions of federal copyright law.

Cher sued Mary Bono last month, seeking to block her from taking control of Sonny’s music. The case is one of several closely-watched music lawsuits over copyright law’s “termination right” — a provision that allows creators or their heirs to win back control of rights they signed away decades prior."

Peloton owners are pissed about bad music after copyright lawsuit; The Verge, April 24, 2019

Natt Auran, The Verge; Peloton owners are pissed about bad music after copyright lawsuit

"The changes in music selections resulted from a lawsuit Peloton faced last month, when the company was sued by members of the National Music Publishers Association (NMPA) for failing to obtain a sync license to use some labels’ musical work in their exercise videos. Peloton customers now say they have noticed a significant downgrade in music quality, with remixed versions of a popular song instead of an original, or limited song variety from an artist. Users also note that classes they’ve favorited have disappeared from the catalog, since they contain songs that were named by the lawsuit as having violated copyrights...

It may seem silly to lament over music selections in an exercise class, but it’s an issue that fitness companies may increasingly face as they transform from traditional health companies into media publishers. Let’s face it: working out can be boring, and people are willing to pay top dollar to have someone yell at us while sweating to the latest Migos track. Combine that with the flexibility to exercise in your own home on your own time and it’s a revenue strategy that has helped brands like Equinox, Pure Barre, SoulCycle, and Physique 57 tap into a demographic that previously found the studios inaccessible. Even companies like ClassPass and Fitbit have also expanded beyond their initial product of a subscription service and fitness trackers, offering their own guided fitness sessions for $8 to $15 a month.

But as fitness companies dabble in media creation, they’re also navigating into the pains of becoming an entertainment company."

Music Law 101: Who Owns the Copyright in a Song?; Lexology, August 29, 2018

Brooks Pierce McLendon Humphrey & Leonard LLP - Coe W. Ramsey, Lexology; Music Law 101: Who Owns the Copyright in a Song?

"After your band has written and recorded a song, who actually owns the song? This simple question does not necessarily have a simple answer. How many people were involved in the writing process? Were there other people involved in the recording process? Did you hire a producer? Did you use other background vocalists or musicians in the studio? Did you use “work made for hire” agreements with individuals involved in the process? Do you have a band agreement? The answers to these and other important questions help determine who actually owns the copyrights in any given song."

The Key to the Sharp Objects Mystery Is in the Music; Esquire, August 12, 2018

Matt Miller, Esquire; The Key to the Sharp Objects Mystery Is in the Music

[Kip Currier: HBO's 8-episode "Sharp Objects" is a thought-stirring, unflinching exhumation on the roles of "memory" and "place" in people's lives, as witnessed via the POV of childhood trauma survivor-cum-journalist Amy Adams' tragi-heroine. Music plays an inseparable role in the show's haunting story-telling and this Esquire article sheds fascinating light on the creative, collaborative spirit between director Jean-Marc Vallée and rock music icon band Led Zeppelin, whose songs stand out memorably in some key episodes.]

"Miraculously, [Led Zeppelin] liked the idea so much they approved not one but four songs; they also gave Vallée free reign to play as much of the tracks as he wanted and even layer them over each other to make his own atmosphere. “I think I fell on the floor,” Jacobs says of when she got the call, hearing that the songs had been approved. “Like, wow, this was so unprecedented, because they rarely ever let you use more than one song, and [we could] use the songs multiple times.”

The difference with Sharp Objects was Vallée’s approach to his soundtracks, which isn’t music as background music, but rather an integral part of the story and characterization."

Anka Given Credit for Jackson Song; New York Times, 10/13/09

Ben Sisario, New York Times; Anka Given Credit for Jackson Song:

"When Michael Jackson’s new single, “This Is It,” was released on Sunday night, many listeners were surprised by its resemblance to “I Never Heard,” a 1991 track by the R&B singer Safire, which gave songwriting credit to Mr. Jackson and Paul Anka.

But no one was more surprised than Mr. Anka, who said in an interview on early in the day on Monday that he had not been contacted about the use of the song and that he was not given proper writing credit for the single, which now credits only Mr. Jackson as a writer.

“They have a major, major problem on their hands,” he said. “They will be sued if they don’t correct it."

For Mr. Anka, the song has a long and painful history. He said in an interview that he and Mr. Jackson wrote and recorded it in 1983 in Mr. Anka’s studio in Carmel, Calif., and that it was intended as a duet for Mr. Anka’s album “Walk a Fine Line.” But shortly after it was recorded, Mr. Jackson took the tapes, Mr. Anka said. He threatened to sue to get them back, he said, and now has the original multitrack tapes in his possession, along with documentation that the copyright for the song was held by both."

http://www.nytimes.com/2009/10/13/arts/music/13anka.html?_r=1&scp=1&sq=anka&st=cse

Jackson Browne, Republicans Settle Copyright Case; Billboard, 7/21/09

Gary Graff via Billboard; Jackson Browne, Republicans Settle Copyright Case:

"Jackson Browne is hopeful that the protection of music copyrights will be bolstered by the settlement of his lawsuit against U.S. Sen. John McCain and the Republican Party over unauthorized use of one of his songs in the 2008 U.S. presidential campaign.

Last August Browne sued McCain, the Ohio Republican Party and the Republican National Committee for copyright infringement, false endorsement and violating his right of publicity after his 1977 hit "Running On Empty" was used without permission in a McCain campaign ad that aired on TV and the Internet."

http://www.billboard.com/bbcom/news/jackson-browne-republicans-settle-copyright-1003995650.story