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. 

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.

http://www.wsmv.com/story/33318425/white-stripes-condemn-use-of-song-in-pro-trump-video

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. 

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.

We Shall Overcome

I have been so wrapped up in the “Stairway to Heaven” drama that I was not aware of the controversy surrounding the copyright to  the song “We Shall Overcome”. However, One of my students in my Music Industry Law class at Trevecca Nazarene University in Nashville, Christopher Thiessen, just wrote an excellent paper on the subject and  with his permission, I am reprinting his work here. It’s pretty interesting.

Late last year, attorneys Mark Rifkin and Randall Newman helped release the forever-famous tune “Happy Birthday To You” to the public domain. After years of collecting around $2 million a year on royalties, Warner/Chappell music was finally brought to justice for the unlawful collections of monies that did not belong to them. Rifkin and Newman were able to prove over the course of the case that the song was public domain and that all that Warner owned were specific derivative renditions of a song that has transcended time and tradition. Now they are trying to accomplish the same feat with another song that has had an incredible cultural impact for over a century.

            “We Shall Overcome” is a song that has its earliest roots in 19^th century gospel and African-American folk music. It is highly disputed where and by whom the song was first originally written, performed, and recorded. However, over the course of the 20^th century it has become the theme song of civil rights and has had incredible historical significance. With such high significance in the history of African-American liberation from injustice, Rifkin and Newman are trying to overcome the injustice done by the The Richmond Organization and Ludlow Music’s misuse of copyright.

            The legal complaint has been filed by the We Shall Overcome Foundation as a class action complaint on behalf of all those that have been affected by the unlawful copyright ownership by TRO-Ludlow Music, Inc. The We Shall Overcome Foundation (or WSOF) is in the process of producing a documentary movie, which requires the use of the song “We Shall Overcome”. The WSOF is also in the process of producing a soundtrack to accompany the documentary. In order to do this in a legal way, WSOF complied with copyright law and sought out TRO-Ludlow Music for both a compulsory mechanical license for the soundtrack and a synchronization license for the documentary.

            Since the mechanical license is compulsory, WSOF did obtain that license and paid a fee of $45.50 for the distribution of 500 copies of the soundtrack. However, they have been denied a synchronization license even after numerous attempts to comply and be reasonable.

            The plaintiff first sent a request for a sync license quote to the defendant in February 2015. The defendants’ response to the request was the following: “’We Shall Overcome’ is a difficult song to clear. I have been advised by our historians that we will need to review the recording that is intended to be used. The song cannot be cleared without reviewing what’s being sung and the quality of the representation of the song.”

After receiving this response, the WSOF hired Nephertiri Lewis to record the use they were submitting for consideration. This use was an audio file that contained what the plaintiff claims to be the “familiar lyrics” of the song that should be determined to be public domain:

We shall overcome

We shall overcome

We shall overcome some day

Oh deep in my heart, I do believe

We shall overcome some day

            In response to this submission by WSOF, TRO-Ludlow Music denied the request on the basis that the song is “very difficult to clear.” WSOF attempted several more times over the course of the year to gain permission from the defendant for the use of “We Shall Overcome”. Each time, however, the defendant denied the request citing that they had exclusive rights to all lyrics and music of the song and claiming a $150,000 penalty if WSOF used the song in the documentary without permission.

            So due to these troubles and denied requests, the WSOF has hired Rifkin and Newman to sue TRO-Ludlow Music in order to release the song into the public domain and to collect money on behalf of all those who have been paying royalties to the unlawful owners of the copyright.

            In order to make their case, the plaintiffs have made multiple arguments to show that the defendant’s exclusive copyright is unlawful. The first argument is that the familiar lyrics and melody of the song pre-date the defendant’s copyrighted work and had already been part of tradition for decades. According to the legal complain, the familiar lyrics aforementioned are believed to have first been printed in 1909 in the United Mine Workers Journal. This journal states that the song had been performed in 1908 and much earlier with the front page saying: “Last year at a strike [in Alabama], we opened every meeting with a prayer, and singing that good old song, ‘We Will Overcome.” There was no copyright on the work at this time, nor in the 1940s when the song was adapted by tobacco workers on strike in Charleston, South Carolina.

            1948 was the first year the song was printed with an attribution to an author of the song. People’s Songs, Inc. published a periodical in September of that year including the song and claiming the authors to be the FTA, CIO, and Highlander Folk School. This first copyrighted work containing the song, however, retired its rights in 1976. Over the decades following this work, the song had many uses and many added lyrics and verses which came under copyright.

            Finally, in 1960 the defendant Ludlow’s copyright comes into play. Ludlow filed for a copyright of “We Shall Overcome” as an unpublished derivative work. This copyright filing includes five verses of the song, including the familiar first verse aforementioned. Ludlow Music filed an additional copyright registration for “We Shall Overcome” in 1963 adding three more verses to the preceding five. So even though the familiar first verse and melody of the song had been printed in distributed and performed for at least five decades before Ludlow Music requested a copyright on the work, they still claim that those familiar lyrics and melody belong to them exclusively.

            Another argument has been made by the complaint that the copyrights held by Ludlow have been divested time and time again, thus rendering the copyright again invalid. This argument is made by providing six examples from the 1960s of lyric and song uses published with the knowledge and permission of Ludlow without any copyright notice whatsoever. In their argument, this by definition is an explicit divestment of the rights of the copyright they held.

            A third argument made by the plaintiff is that Pete Seeger, a writer credited in Ludlow Music’s 1963 copyright, openly admitted multiple times to not having been the initial writer of the song. In the 1998 Smithsonian Folkways Recordings, the liner notes (sponsored by Seeger) say:

“The Song was probably adapted from the 19th century hymn, ‘I’ll Be All Right,’

although Rev. Charles Tindley’s 1903 composition, ‘I’ll Overcome Some

Day,’ is also a possible source…In any case, Zilphia Horton of the Highlander Folk School in Tennessee heard Black tobacco workers singing it on a picket line in 1946…According to Pete, “This song undoubtedly has many meaning to many people... The very best verse was made up in Montgomery, Alabama, the city of the 1956 bus boycott: ‘We are not afraid — today!’”

So it is clear that Seeger did not even claim to have written the song. In fact, the reason he copyrighted the work was so that the song did not go the same route as “The Lion Sleeps Tonight” by The Tokens and turn into a pop song. However well-intentioned that may be, he did not write the song and thus can’t copyright it.

            Therefore, with all these arguments in mind, the plaintiffs WSOF and those in the class whom they will represent are asking the court to judge that the defendants have acted outside of U.S. Copyright Law in enforcing rights that they do not own. They are asking for an injunction to keep the defendants from claiming ownership any further and asking for restitution for all fees that have been made prior to this point. They are also claiming that the defendants are guilty of deceptive acts and practices in violation of New York General Business Law allowing them to gain large sums of money.  And finally,  the complaint outlines that the defendants have breached contract with the plaintiff by violating the representations and warranties made in mechanical licensing agreements.

            From my reading of the history of the song and the complaint written by attorneys Randall Newman and Mark Rifkin, it appears to me that TRO-Ludlow Music will lose this court case and will owe large sums of money to all those they have wrongfully taken from. These attorneys were successful in releasing “Happy Birthday To You” from copyright last year and will rightly do the same in this case. “We Shall Overcome”, at least the familiar lyrics and melody that are so well-known, belong in the public domain with access for all. And those who have wrongly limited that access and monetized it should be held accountable in this case.

He Had One Hand in Her Pocket

Several years ago I was asked to write a short article for Billboard about what artists should look for in business managers.  I came up with really dull observations like making sure that the business manager is experienced in state and local taxation and making sure the artist understands the fee arrangement.  If I had had any foresight,  I would have probably added:  make sure your business manager does not rob you blind.

            Alanis Morrissette just sued her former business manager Jonathan Schwartz and his (now former) firm GSO Business Management, LLC claiming that Schwartz converted nearly causes  of action in the lawsuit include  

breach of fiduciary duty, fraud, conversion and negligence.

            The allegations against Schwartz are pretty sordid but to me the real disturbing factor here is the allegation of negligence against the firm, GSO.  It may be shocking to think that a major business management firm with some of the most respected professionals in the industry would not have the checks and balances in place to monitor this kind of activity, especially over a four year period.

            It's shocking but not surprising.  There are constant examples of this kind of financial fraud not being discovered by the principals of their firms until it is too late.  I have witnessed this firsthand on more than one occasion.  It is  not always out and out fraud. Sometimes it might be a case of employee negligence not being uncovered.  There are always going to be bad actors but it seems that these firms must do a better job of monitoring their client’s accounts and  anybody who places their financial well being  in the hands of a fiduciary third party should pay close attention to the activity in their account.  This is something that artists (and the rest of us) probably fail to do as often as we should.