Jim Fogelsong

I feel compelled to write something about my friend, Jim Fogelsong, who died a few weeks ago at the age of 90.  Although I certainly knew who he was, I did not know Jim when he ran MCA Records or Capitol Records in Nashville in the 1980's.  I got to know Jim when he took on running the music business program at Trevecca Nazarene University.  I think that I had already been teaching there as an adjunct  for a few years when he arrived.

Jim made a point of spending time with each faculty member, meaning, in my case, he would take me to lunch each semester.  I grew to really enjoy these lunches. Later, when he started teaching a music business survey course at Vanderbilt's Blair School of Music, he would invite me to come speak to his class each semester ‑ an offer which always included an early dinner at Noshville.

  During our meals,  Jim would tell me stories about working for RCA Records and Columbia Records in New York.  He once told me a great story involving Doug Sahm and another one about trying out for a major league baseball farm team.  I am a student of the history of the music business and I was fascinated when Jim told me that he thought  he knew the guy who invented the controlled composition clause.  I told him that he should write a book.  I think he said that he was too busy. I think he was 86 at the time.  It's a shame that he couldn't share his vast institutional knowledge with the world.

  Honestly, what impressed me most about Jim was his awareness and concern for his Trevecca students ‑ he knew their strengths, weaknesses, passions, family situations,etc.   He cared deeply about them and I found this remarkable.  As my friend, Kay West wrote about him last week , "the good in Jim Fogelsong was there for all to see."  It really was.  I feel lucky to have known him and I  will miss those dinners at Noshville.

The Lesson of EMI Entertainment World, Inc. v. Karen Records, Inc.

A somewhat obscure case in the second circuit should serve as an important reminder for those who handle copyright infringement cases.  In early June, the United States District Court for the Southern District of New York vacated a prior judgment of copyright infringement against a company called Karen Records, Inc. leaving plaintiff EMI Entertainment World Inc. empty handed.

The reason?  The defendant learned after the fact that EMI had no direct ownership interest in the copyrights over which it had filed suit.  In this case, the copyrights were owned by an EMI subsidiary and  at least in the second circuit “a parent company lacks standing to bring claims on behalf of its subsidiary”.

 

The scary part of the decision lies in the fact that the problem could have been remedied by joining the subsidiary companies in the lawsuit but EMI chose not to do so, perhaps  assuming it was enough to suggest that it had authority to act on behalf of its subsidiaries.

This is an important case for anyone who represents publishers or publishing administrators.  When filing copyright infringement suits like this,  it is important to review the underlying registrations and agreements to make sure that there is no question as to the plaintiff’s standing to sue.  This can sometimes be an issue in the publishing world where back catalogs are bought and sold and publishers occasionally change administrators.  Sometimes, incorrect assumptions can be made.  It seems obvious,  but it is a good reminder to make sure your documents are in order before filing suit.

Steal This Music

I ran into a friend of mine at a local used record store last week.  I was going on and on about a Rickie Lee Jones EP but his mind was clearly somewhere else.  He had just seen the picture of David Lowery's performing rights royalty statement on the Internet; the one where Lowery demonstrated he had received $16.89 for one million plus  plays of his song "Low" on Pandora. 

             My friend is a music aficionado with refined tastes and leftist leanings and he was clearly pissed. "If the artists are making so little money why don't we just steal their music?” he asked. 

            My response to this question usually depends on how cranky I am.  I basically have three answers. 

            First: right, why don't we just steal the music?  That cat escaped the bag a long time ago.  Everything is available on the Internet and if you don't know how to find it, your teenager does.  Despite the fact that stealing music in 2013 is morally no different than when I walked out of a drugstore in 1967 with the latest 45s tucked under my shirt, it's certainly a lot easier. 

            Second: send the RIAA and their army of lawyers out to sue everybody.  Hell, given the kind of month I've had financially I might even sign up.  Despite the ludicrousness of suing college students and single mothers and despite the fact that even the RIAA seems to have stopped pursuing this strategy, until technology develops an effective way to stop illegal file sharing, mass lawsuits or the government taking down Internet empires like that which belonged to Kim Dotcom  (Megaupload)  may be the only truly effective way to stop spreading illegal music.  

            Third, the real answer is that the music business is now on the honor system and whether we like it or not streaming and similar services are not just the future, they are the present.  I don't particularly like this model.  I'm a dinosaur and like to own physical records but I can't ignore reality.  I wrote about this same subject a while back (http://tripaldredgelaw.blogspot.com/2012/07/in-defense-of-emily-white.html.)

            It’s a turf war and a number of battles are being fought right now over the issues between performing rights organizations, publishers, record companies and artists.  The field is a mess but the royalty situation may improve over time as these different battles shake out.  Everybody's fighting for a bigger piece of an ever-shrinking pie, but I can tell you from some of the recent talks I have heard on the subject, the fights are very serious and they are very real. 

            Artists like Lowery, who presumably were at one time signed to major record deals and major publishing deals really don't have much say in the matter, if they signed away their rights to their master recordings and musical compositions.  I could point out that Lowery just displayed his BMI statement which is just one piece of the pie. He should also be credited with royalties from his record label and his publisher but the fact remains, its still not a lot of money. Truly independent artists, those who still own the rights to administer their masters and their publishing interests can choose to avoid being on these sites (if they are careful in selecting their distribution methods).  The downside to this is that they risk losing exposure to a rapidly expanding audience. 

            It is all daunting but it really does feel like the beginning of a major technological shift. Should artists and songwriters be patient? No, of course not; they need to keep up the fight on all fronts…but we’re not helping them or ourselves by stealing.  

Ace Arts LLC v. Sony/ATV and Apple Corps: The Beatles, Synchronization Licenses and Misuse of Coprights

For my fellow sufferers of Beatlemania, here's the scoop on the latest Beatles lawsuit.  Fans may remember last year that there were some advertisements for an exclusive in-theater documentary called The Beatles: the Lost Concert which focused on  the Beatles’ February 11, 1964 concert at the Washington D.C. coliseum, their  first concert in America.  Everyone has seen the film, it's notable not only for its kinetic energy but for the fact that the band had to stop after every few songs and rotate their equipment so that fans on all sides of the arena could see them.

            The film was shown on closed circuit television in 1964 and has been  available on a variety of formats from 8-millimeter film to laser disc; it was released as part of Apple's First U.S. Visit documentary in the 1980s and was featured in The Beatles Anthology. It seems from reading the reports that the original film was never registered for copyright and may have become part of the public domain.  There were apparently several master copies of the film one of which Apple purchased in 1995.  (Another copy was sold at auction in 2005).

            In 2009 a copy of the film was acquired by a company associated with the Plaintiff, Ace Arts LLC which made plans to add some documentary footage and interviews to the concert film and then distribute it for exclusive theatrical release.   The company went to Sony /ATV, the company which controls the majority of the Beatles' music publishing rights, to acquire synchronization licenses for the right to use the Beatles' songs in the film.  A synchronization license is required anytime one wishes to use a copyrighted musical composition in "synchronization" with a visual image.  It is not clear from reading the complaint whether the distributor successfully negotiated a synchronization license with Sony /ATV or simply agreed upon terms.

            Here's where it gets strange.  It appears that Apple then decided that it was going to release its own version of the concert on (the other Apple's) iTunes and somehow negotiated an exclusive  synchronization license with Sony ATV for 8 of the 12 songs in the film. As the complaint points out, the issuance of any kind of exclusive synchronization license is unusual.

            Sony/ ATV then apparently filed suit in England to enjoin the film's release and sent cease and desist letters to each of the theaters  in this country that were planning to exhibit the film.

            Ace Arts the distributor has now sued Sony/ ATV and Apple Corps in California federal court for antitrust -alleging a conspiracy between the two companies to block distribution of the film, as well as tortuous interference with its contracts and unfair competition.  It is also suing on the very interesting ground of misuse of copyrights.  There is a lot going on here – the most interesting elements concern the issuance of the synchronization licenses.  Did Sony /ATV issue the licenses and then renege on them?  Was this based on strong-arming from Apple?  Did Michael Jackson have anything to do with it?

            If the lawsuit goes forward it may shed light on the very interesting relationship between Apple and Sony ATV which controls the one aspect of the Beatles legacy that is outside of their grasp, their music publishing rights.  It might also provide information on the economics of synchronization licenses on this level and finally, it might shed light on how such an important historical film could have become part of the public domain.  This will be a very interesting lawsuit to watch.