Tuesday, March 7, 2017

Sir Paul Sues Sony/ATV

Fake news.  That is my characterization of most news stories that report on entertainment and copyright litigation.  Witness the reporting of Paul McCartney's recent lawsuit against music publisher Sony/ATV.  It was reported that McCartney had sued Sony/ATV to recover the copyrights to his Beatles era compensations.

            Paul McCartney did not need to sue anyone to recover his U.S. copyrights.  Section 304(c) of the Copyright Act gives McCartney the right to terminate the assignment of these copyrights after (a mere) 56 years (these songs were all created prior to January 1, 1978; there is a different section that applies to post 1978 copyrights).

            The story of how Sony/ATV ended up with these copyrights to most of the Lennon/McCartney catalog has been detailed elsewhere. Beginning in October 2008, McCartney began serving termination notices on Sony/ATV and according to the complaint, the terminations will begin vesting in October 2018.  Sony has acknowledged that these terminations are valid.  The purpose of McCartney's lawsuit is to seek a declaratory judgment that not only are the terminations valid but that the terminations themselves do not give rise to a breach of contract claim against McCartney by the publisher.

            This may seem somewhat odd since it is well settled that the Copyright Act gives authors the right to terminate assignments of copyright despite any prior agreement to the contrary.  The problem is that this is U.S. law.  There is no corresponding British law.  Last year, when the member of the band Duran Duran attempted to terminate the U.S. assignment of copyright to their works, Sony's affiliate in the United Kingdom sued the band for breach of contract.  The court in that case ruled in favor of Sony/ATV.  This sounds crazy but the court found that Duran Duran did not present expert evidence of U.S. law so the British court did not take U.S. law into consideration.  It seems as if the Duran Duran decision should ultimately be remedied but if it is not, this does put songwriters like McCartney in an untenable position.  How can they exercise their statutory rights in one country only to be sued for breach of contract in another country?  For this reason, McCartney may be taking a stand for similarly situated creators ( i.e. British songwriters who signed UK publishing deals and had success in America) asking the U.S. court to rule that the exercise of his termination rights does not represent a breach of his publishing agreement and/or that the agreements cannot be enforced against him to the extent that they interfere with the exercise of his termination rights.  The unspoken third claim of this declaratory judgment is most likely:  take that Michael Jackson.

            It will be interesting to see how this plays out

Sunday, November 27, 2016

Copyright Trolls

            We tend to want to think of Copyright Law as a dignified business.  Therefore I was shocked recently to discover that nearly forty percent (40 percent) of the copyright infringement litigation in this country involves the adult entertainment industry. 

            From my research (honestly) I see that companies such as Malibu Media (perhaps the largest player in this game) offer their videos for sale on the Internet.  Some unscrupulous users then employ file-sharing software to copy and share their films (does this sound familiar to the music industry?).  Much like the RIAA litigation of several years ago these companies have found ways to trace the infringements to various ISP addresses.  They then file copyright infringement lawsuits against the owners of these IP addresses (identified as John Doe in the complaint).  The defendants are then given the option to pay statutory damages (which can range from $750.00 to $30,000 or defend the claim in court.  Of course the next step is discovery in which the John Doe's real name gets revealed, leading to the possibility that the hapless defendant gets named in a federal lawsuit for downloading porn. 

            This really is a moral dilemma.  On the one hand copyright infringement is stealing, whether you're talking about an artist's life work or pornography and the adult film industry certainly has a right to protect its assets.  But the fact that the Copyright Act allows for the collection of statutory damages (at a minimum of $750.00 per title) and attorneys fees means that the plaintiffs are getting something of a windfall each time they are successful in these suits.  Some judges have taken note of this and there seems to be a new niche developing in defending against these suits. Of course even though they're not always victorious, litigating the claim for an innocent defendant (i.e. a grandparent or someone with an unsecure Wi-Fi connection) can be expensive.  The worst part to me is that these plaintiffs are holding this extra leverage over the defendants (pay up or suffer public humiliation. 

            These copyright owners have been called "copyright trolls" (defined as “an owner of a valid copyright who brings a copyright infringement action not to be made whole but rather as a primary or supplemental revenue stream") (see DeBriyn – Shedding Light on Copyright Trolls, 19 U.C.L.A. Ent. L. Rev. 79 (2012). I don't know if I would necessarily go that far.  Certainly no one accused the record companies of being trolls when they unleashed their torrent of lawsuits against file sharers (they were accused of many things but I don’t recall the word “trolls” being used.   But for some reason I find it shocking that this type of litigation constitutes so much of the federal court's docket.  However, it does demonstrate that there are a lot of ways to make money in the entertainment business. 

Wednesday, October 5, 2016

Music and Political Campaigns: The Song Remains The Same

I was interviewed yesterday by local television station WSMV on the subject of the legality of political campaign's use of music. The reporter Liz Lohuis was able to edit my ramblings to make me sound vaguely coherent.

Anyway, its an interesting piece and it really does amaze me that politicians find themselves in trouble every four years for the same offense.


Wednesday, August 24, 2016

Book Report: Baby You're a Rich Man: Suing the Beatles for Fun and Profit

            Stan Soocher has written the Beatles' book that I have been waiting for. is a detailed examination of nearly all the important litigation surrounding the Beatles from the unraveling of Brian Epstein's ill‑advised early merchandising deals to their deep, complicated and litigious relationship with Allen Klein.  Don't be put off by the "legal" nature of this book.  Soocher is an entertaining writer and he has a gift for bringing out the personalities of many of the people who previously served as mere footnotes in Beatles history (like Pete Bennett, David Jacobs, Nicky Byrne, Nat Weiss, John and Lee Eastman and Walter Hofer).  As an aside, Soocher's first book They Fought the Law:  Rock Music Goes to Court is also a must-read. 
Baby You're a Rich Man:  Suing the Beatles for Fun and Profit

            Soocher goes into great detail about topics that I have always been curious about.  For example, the aforementioned merchandise debacle, the fight over Northern Songs, the IRS problems surrounding the  Bangla Desh concert, Paul McCartney's suit to end the Beatles partnership, the crazy dispute between John Lennon and Morris Levy which resulted in the Roots album, Lennon’s immigration struggle   and even the tragic battle between George Harrison and Dennis O'Brien which resulted in a St. Louis bankruptcy court punishing Harrison for his inability to attend a deposition, mere weeks before his death. 

            The real paradoxical character in the whole Beatles saga remains Allen Klein.  What would cause him to purchase the copyright to "He's So Fine" and litigate against his former management client – a clear breach of fiduciary duty?  Even more astonishing what would motivate a man who as manager for both the Beatles and the Rolling Stones (among other top artists) was privy to some of the most spectacular music industry deals of the era – to run a side business selling promo copies of his artists' records for a few extra bucks?  (There is a new Allen Klein biography by Fred Goodman which I really need to read). 

            I already thought highly of Stan Soocher as an attorney and a journalist before I read this book.  I am really pleased that he tackled this complicated topic with great skill.  I hope we can convince him to take up the challenge of writing about the Beach Boys' litigious career next. 

Thursday, July 14, 2016

Another Reason to Hate Texting

I am not a fan of texting.  I am also well aware of the fact that nobody cares about my opinion.  However, I am often appalled at the amount of information that I have seen normally prudent people convey in text messages.  It is almost as if the convenience and ephemeral nature of the medium somehow makes a person less careful than they would be in ordinary communication. 

            Therefore, I am not surprised that a Massachusetts court recently found that a string of text messages constituted an enforceable real estate contract between a buyer and a seller.  We all remember the Statute of Frauds from law school and the fact that in order to be enforceable, a contract to sell real estate must be in writing.  This case, Saint John Holdings, LLC v. Two Electronics, LLC found that the text messages sent between two parties did in fact constitute writings and when taken together formed an enforceable contract.

            Although this case deals with real estate the analogies  to other areas of contract law are obvious.  One needs  to be careful when sending text messages (or emails for that matter) regarding any kind of transaction or dispute.  Don’t put a statement in writing unless you intend to be bound by it or unless you qualify it accordingly. Now… put down that phone and drive.