Saturday, December 27, 2014

Let Us Now Praise Flo and Eddie

I have been thinking a lot about Flo and Eddie (Mark Volman and Howard Kaylan a/k/a the Turtles) and their recent victories over Sirius XM Radio in California and New York.  Although subject to appeal, both these cases have established the principle of a digital public performance royalty available to the owners of sound recordings in those states which recognize these rights fixed in sound recordings prior to February 15, 1972. 

            What does this mean? 

            The U.S. Copyright Act provides for a public performance royalty (from digital transmission) to be paid to owners of sound recordings created after February 15, 1972.  This right led to the creation of Sound Exchange and all of those current arguments about how little Spotify, Pandora and the other streaming services are paying to recording artists..  For reasons that I cannot recall, the Act excluded those recordings created prior to February 15, 1972 but allowed the owners of those recordings to pursue common law remedies under state law against infringers.  This is one of the few areas not preempted by federal law under the Copyright Act.

            Historical trivia:  Neil Young's "Harvest" was released on February 14, 1972 – (one day before the law went into effect).

            Several states such as California, New York and Florida have laws on the books that give protection to owners of sound recordings (Tennessee is currently looking at updating its law).  California law is pretty clear.  The relevant section of California Civil Code § 980(a)(2) reads as follows:

                        The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972 has an exclusive ownership interest therein until February 15, 2047 as against all persons except one who independently makes or duplicates another sound recording that does not directly or indirectly capture the actual sounds fixed in such prior recording, but consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate the sounds contained in the prior sound recording. 
            The court in the California case agreed that the language gave Flo and Eddie the right to pursue an infringement action against Sirius Radio for digitally transmitting the Turtles' recordings and accordingly gave them a summary judgment on this particular issue. 

            Note that this judgment applies to the State of California.  How that judgment works out on a national basis in practice is open to debate.  The plaintiffs have won a similar case in New York and my understanding is that they are pursuing a case in Florida as well.

            Shortly after the decision a friend of mine asked what ramifications this decision would have for other "heritage" artists such as classic country artists whose  recordings are played on other Sirius XM stations.  Ultimately, my gut feeling is that the effect will be minimal for the reason that the Turtles (unlike the vast majority of recording artists from that era) own their master recordings.  The master recordings of most other artists are owned by record companies – major labels and/or once independent companies who were absorbed by major labels.  I have no idea what is going on behind closed doors but I am going to assume that the majors don't have any interest in suing satellite radio – one of their de facto partners in promoting music.  The smaller independents or artists who might own their own back catalogs may not have the resources to take on such a battle on their own.

            Nonetheless, Flo and Eddie have won an impressive and important battle because they addressed  an issue that everyone knew was blatantly unfair and they have claimed a moral and economic victory.This is not the first time they have gone to Court  to take a stand for artist’s rights and we all owe them a debt of gratitude.  It seems absurd to treat artists and the owners of sound recordings different due to an arbitrary date.  I don't know if this will ultimately be resolved through Congress, the courts or a grand compromise but the issue is now unavoidable.  Congratulations to  Flo and Eddie for taking it on. 

Tuesday, November 18, 2014

Advice for Corporate Citizens: Those Forms You Get in the Mail

Last week I had lunch with my friend and client Mark Linn.  He wanted to discuss a form he had received in the mail in connection with his Tennessee corporation.  I confidently told him that it had to be the Annual Report from the Tennessee Secretary of State and that all he needed to do was to send it back with a check for $20.00. 

            Mark told me that he thought this was something different and proceeded to pull out a document  called "2014-Annual Minutes Form – Shareholders, Directors and Officers (Tennessee Corporation)".  The document asked you to provide information regarding the name and title of various people associated with the corporation and then asked you  to send $125.00 to a company called Annual Business Services.  In consideration for this payment the company would prepare minutes for said corporation. 

            I am not going to say that this is a scam (like the Trademark scam I wrote about here: but I will say it is completely unnecessary.  While the Tennessee Code does require corporations to hold annual meetings (or take action by consent in lieu of said meeting) the statute does not require that the minutes be filed with the state.  Further, the form promulgated by this company looks almost exactly like the Annual Report form used by the Tennessee Secretary of State's Office (I can't reproduce it here because Annual Business Services has claimed a copyright in it's form).  To be fair, the company does provide three disclaimers between the form and the instructions and they do state "you can engage an attorney to prepare (the minutes) prepare them yourself, use some other service company or use our service." 

            Nonetheless, and despite the disclaimers, I am  sure that many people believe that filling out such forms and paying these unnecessary fees are a required part of corporate compliance.  This is simply not the case and I hate to see any small business pay unnecessary fees.  If you receive a form in the mail and you are not certain what to do about it, call your lawyer.  We live for this stuff

Friday, November 7, 2014

Book Report: Unfair To Genius

Anyone who has been around the music business for any length of time begins to assume that certain things are immutable and it shakes our foundations when their existence is threatened.  For example, the recent   We may all grumble about these organizations but it feels strange to look at a future where their relevance is diminished.  Of course,  in the grand scheme of things these are relatively recent institutions. ASCAP was founded in 1914, BMI followed in 1939.  The history of both organizations-their early competition and their interaction with the US Department of Justice is fascinating.
attacks on BMI, ASCAP and SESAC.

            This is just one reason why I recommend Gary A. Rosen's book Unfair  to Genius (Oxford 2012).  On the surface, the book is about (as its subtitle states) "The Strange and Litigious Career of Ira B. Arnstein."  Arnstein was a little-known Russian-born composer who with some sense of self-delusion and bravado waged a one‑man war against some of the most famous composers of the 20th century (such as Irving Berlin and Cole Porter) together with their publishers, as well as BMI and ASCAP.  Arnstein literally believed that everyone was either infringing upon his work or conspiring to cover up the infringement. He filed countless lawsuits, many pro se, including one which counted 23 defendants.

            From a legal history standpoint,  this book is compelling in its exploration of  the early history of modern copyright infringement litigation in this country.  That sounds like a dry premise but in reality, many of the concepts that define copyright infringement litigation were developed in these cases and in the judge’s opinions. The bonus is that the book also chronicles the beginnings of the music publishing world as a big business, shows in captivating detail the early rivalry between ASCAP and BMI and brings such characters as Edward B. Marks, David Sarnoff, Judges Jerome Frank and Learned Hand to life.  One of the most colorful characters in the book is Sigmund Spaeth a self-described musical detective and a name I remember dimly from my childhood. Who knew that he was the first celebrity expert witness?

            I have yet to read a better account of the music business in the early 20th century and like all good histories, the book provides perspective to some of the current problems facing the music industry.

Sunday, October 26, 2014

News for Notary Publics

Like many other attorneys I know, I became a notary public purely as a convenience to my clients (and myself) to aid in the execution of such documents as wills, copyright assignments, Marital Dissolution Agreements, etc.  I was never very formal in my notary recordkeeping for the specific reason that I have never notarized a document where I did not know the person executing that document personally.  That has all changed.  The Tennessee Legislature recently passed an amendment to the notary public statute which reads:

            Notaries public are entitled to demand and receive reasonable fees and compensation for the notary public's services.  The notaries public shall keep a record in a well-bound book of each of the notaries public's acts, attestations, protestations, and other instruments of publications. 

            Although I have never charged for these services, the part that is currently important  is the requirement to keep a record in a "well-bound book" of each document notarized.  This may be relevant information for some of my fellow notaries; it was to me.   For what it's worth, the attorney general has issued an opinion stating that the required information may be stored in electronic form rather than in a "well-bound book" but I am partial to the well-bound book myself

Tuesday, September 16, 2014

Let Us Now Praise Mike Farris and Shine For All The People

I have known Mike Farris for more than 20 years, since he was the lead singer of the Screamin’ Cheetah Wheelies, a kick‑ass blues rock band that emerged at the tail end of the late 1980s early 1990s Nashville rock scene.  All five members of the band were tremendously talented but it was Mike’s voice that grabbed you on first listen.  I remember spending time with the band early on and being impressed by the fact that they all had a deep knowledge of music.

The Wheelies had some success but never had a breakthrough hit and ended up running out of gas.  After the band broke up, I kept in touch with Mike and helped him with some projects but I didn’t really know what sort of personal demons he was wrestling with.  What I do know is that he overcame his struggles and I was happy to see him re‑emerge in a new Nashville music era where he was recognized by his peers and won awards from the Americana Music Association and the Gospel Music Association.

None of this prepared me for how good his new album is. Shine For All The People is the best example of the uplifting and transformative power of music that I’ve heard since Al Green became a reverend.  This is a big sounding joyful gospel album. Mike has made a bunch of albums and his skills as a producer are evident on this record. Every song on the album is good but the standout track to me is Mike’s re-working of Mary Gauthier’s “Mercy Now”.  In another time, the music press would be all over this record but in my experience, it’s getting harder and harder to find the good stuff these days.  This album, released today is worth searching out.  I am really proud of Mike’s accomplishment and the work that he and Tyler Pittman did to get this out there. It’s also nice to see the record coming out on Compass.