The Miller Music Case: Correct but not Fair

Sometimes copyright law is correct but not fair. The U.S. Court of Appeals for the Sixth Circuit issued its ruling in the closely watched copyright case Roger Miller Music, Inc. v. Sony/ATV Publishing last week. The opinion, which I am sure comes as a tremendous disappointment to the Miller family clarifies an important question in copyright law; that is what happens when an author of a pre 1978 copyright dies before the renewal right in the copyright as vested.

The holding in this case is not abstract – it relies on a straightforward reading of 17 USC Sec. 304(a)(2)(B)(i). However the court's opinion does disturb what might have been a long-held belief about the Copyright Act’s application to pre 1978 copyrights and their renewal terms.

The great Roger Miller had a long-term professional relationship with Tree Music, the predecessor to Sony/ATV. Among the songs that are at issue in this case were those registered for copyright in 1964 including "King of the Road" and "Dang Me". The renewal terms for these works commenced January 1, 1993. Miller died on October 25, 1992. The facts of this case show that Sony applied to register the renewal copyrights in 1992 before Miller's death. The aforementioned section of the Copyright Act provides that if an application to register the renewal copyright is filed in the renewal year, the renewal copyright shall vest, upon the beginning of such further term, in any person who is entitled under Paragraph 1(c) to the renewal and extension of the copyright at the time the application is made".

The result, as the court said, is that "Roger Miller was entitled to the renewal copyright because he was living at the time an application for registration was made. Sony was in turn entitled as Miller's assignee and thus took ownership at the time the renewal vested on January 1, 1993.

This is the correct reading of the statute of course and on a purely philosophical level, it appears to be the correct result. However it seems to expose one of the vagaries of the Copyright Act and the commonly held belief that if an author died before the commencement of the renewal term, the rights went to his heirs automatically. The entire concept of the renewal term, which existed from the time of the Statute of Anne until the Copyright Act of 1976, was intended to give authors the proverbial "second bite at the apple" and to correct deals made when the author had an uneven bargaining position. The fact that publishers began to abuse this system by requiring authors to assign both the initial term and the renewal term of the copyright appears to have been an un intended consequence with was only remedied by the 1976's Act introduction of the 35 year termination of assignment provision and the introduction of the unitary term of copyright. However for authors who assigned works up to the end of 1977 the bizarre operation of the whole renewal concept remains murky and unfortunate. It seems unforgiving to require the operation of a renewal term to depend on something like the author's time of death and to have even that trumped by a publisher filing an application for renewal just seems inequitable.

Al Delory

I was saddened to learn about the recent death of Al DeLory. When my former law partner and I established our fledgling law practice many years ago, Al was one of our first clients (#7 to be exact). He did not seem to care that we were young and inexperienced. We of course were thrilled that we were working with the producer of all those incredible Glen Campbell records.

It was only later that I learned about Al’s role as one of the keyboard players in the famous Wrecking Crew-working with everyone from the Beach Boys to Phil Spector to countless others. It was only this week that I learned that Al wrote “Mr. Custer,” one of the staples of my childhood. He created so much music that he was once surprised to get a check from Europe for a song he didn’t remember writing.

I am sure that Al was a little bitter about the way record companies treated staff producers back in his day or about how when he moved to Nashville in the early ‘80’s there was no real demand for the kind of glorious arrangements he created. However, I was always impressed by the fact that instead of grousing or resting on his laurels, he created a salsa band which brought this music to Nashville and beyond way before it attracted the kind of cultural cache it has today.

So, rest in peace Al. It was an honor to have worked with you.

books v. ebooks round two

It is always interesting when you think a legal issue has been settled, only to see someone take another run at it. Such is the case with ebooks and the digital rights to certain author’s back catalogues. As the Wall Street Journal recently reported, Harper Collins has filed a copyright infringement lawsuit against Open Road Integrated Media, a leading digital publishing firm (and a company whose business model I find fascinating). Most people thought that the issue of digital distribution rights had been settled by a 2001 case in which Random House lost a battle to keep Kurt Vonnegut, Robert B. Parker and others from entering into agreements with Rosetta Books, one of the first ebook publishers.

The reason, of course, is that older publishing contracts were silent on the issue of digital rights much like the fact that many old recording agreements were silent on the issues of royalties for digital distribution. Apparently, Harper Collins is now trying to expand the traditional contractual definition of books to include ebooks. If this case goes to trial, the court is going to have to carefully examine the exclusive rights of the copyright holder (i.e. the author) under Section 106 of the Copyright Act and determine whether Harper Collins actually acquired rights that might not have been imagined at the time of the original agreement. I am not really sure how this case will be resolved but I think that some of the digital publishers I have talked to have some intriguing ideas and I would hate to see such innovation stifled and while I am still a pretty traditional reader myself, I see real exciting possibilities for authors whose back catalogs are either out of print or nearly so.

Read on.

On the Legal Status of Concert Tickets

I routinely overuse the cliché “you learn something new every day” but in my case it’s often true. Last weekend, while doing some research for a client, I learned a great deal about the legal status of concert tickets and what a ticket holder’s legal rights are.
Brian A. Rosenblatt wrote a great law review article about the topic: “I Know It’s Only Rock and Roll But Did They Like It? An Assessment of Causes of Action Concerning the Disappointment of Subjective Consumer Expectation Within the Live Performance Industry” (13 UCLA Ent. L. Rev. 33).

Amusingly, the article focuses on a Creed concert in 2002 when lead singer Scott Stapp was allegedly too incapacitated to perform. When a group of understandably angry concert goers sought to file a class action lawsuit against the band, the promoter and all involved, the judge basically said “it’s a rock n’ roll show, what did you expect?” This reminded me of seeing Joe Cocker in concert as a teenager, when he spent most of the show throwing up behind a row of speakers. He was still great.

But I digress. Rosenblatt sums up the relevant case law as follows,” both historic and current case law indicate that the purchase of a ticket to an attraction allows the ticket owner to enter or remain in a specific seat or area within the venue subject to the Seller’s policies, terms and conditions.” As one might expect, the situation is more complex with respect to outright cancellations. Cases such as Miami Dolphins, Ltd. v. Gender & Bach, P.A., have established the concept that there is a contractual element to the actual event-the seller promises that an event will take place and in the event the event does not take place, he must refund the ticket holder’s money. I note that some states actually have statutes dictating how this must be handled.

There have been other causes of action asserted by disappointed concertgoers such as unjust enrichment and consumer fraud but it seems that as long as the event occurs and no one gets hurt neither the artist nor the promoter is responsible for the relative quality of the performance.

All of this made me decide to dig through my 40 + year collection of ticket stubs and indeed, I found that many of them say much more than “No refund No Exchange” on the face of the ticket. I have a new respect for the microscopic boilerplate language on the back of those tickets. Read one sometime

SOPA and PIPA ,...it's complicated

Not that anyone one has asked for my opinion but I have been thinking a lot about SOPA and PIPA (not Kate Middleton’s younger sister). This may all be a non issue now that the senate has postponed action on the legislation. However, I have been troubled because I have not been able to sort out my true convictions in the debate.

On the one hand, as an intellectual property lawyer, I wholeheartedly believe that we must do everything we can to stop copyright infringement. On the other hand as a believer in the First Amendment, I see that this proposed legislation is way too broad. As one commentator pointed out, SOPA has the potential to create a giant firewall around the United States. I have friends who work in China and I know from their experiences what true internet censorship looks like. Further, the music industry may slowly be on the path of recovery. I don’t always agree with the writer Bob Lefsetz but I think he has a point when he says that in the future, music is probably going to be delivered by some subscription based service and that what we’re seeing with Spotify and Pandora is that people are willing to pay for music delivery; not everyone is a thief. If there is validity to this point maybe we should move slower in enacting laws that have the potential to be so damaging to the growth of the internet.

I have to temper all of my First Amendment liberalism and idealism with some reality though. I was just thinking about how some political parties can consistently get people to vote against their own interests by refocusing the debate (e.g. “why should job creators have to pay taxes? “). I have to realize that my income has taken a hit over the past decade along with many of my clients because of the decline of the music industry. We can’t blame all of this on illegal downloading (not by a long shot) but piracy has put a lot of people out of work.

So, ultimately, I have to believe that more needs to be done to stop internet piracy. But the question might be this: Is our existing copyright law actually strong enough to be used to fight worldwide copyright infringement? It just might be. I read this morning that the Justice Department was able to shut down Megaupload, a notorious international facilitator of copyright infringement. This was based on using existing copyright law. I wonder if more study should be done into beefing up enforcement of our copyright law instead of passing new potentially hazardous laws.

As I tell my copyright law students, the law is always going to lag behind technology but I happen to believe that our US copyright law is pretty vigorous and capable of protecting intellectual property without necessarily creating new laws.

All Tomorrow's Lawsuits: The Velvet Underground v. Andy Warhol

I am a big admirer of Andy Warhol. I believe his impact on 20th century art and culture is incalculable. I am also a big fan of The Velvet Underground so, of course I was fascinated to discover that the band (actually a partnership comprised solely of Lou Reed and John Cale) had just filed suit against the Andy Warhol Foundation, apparently because the Foundation was seeking to license the famous banana design from the band’s first album to a company that manufactures iPhone and iPad covers.

The complaint in the case is instructive. It reads like a concise history of Warhol and The Velvet Underground. One fascinating tidbit: The band received a $3,000.00 advance from MGM which they split with Warhol. It also spells out a compelling legal challenge. The Velvet Underground assert trademark rights in the banana, although in the 45 years since the fruit first appeared on The Velvet Underground and Nico album , the group never sought to register a federal trademark in the design.

Warhol’s apparent defense is that it has a copyright in the banana. However as The Velvet Underground’s complaint demonstrates fairly conclusively Andy Warhol never asserted a copyright in the work during his lifetime and because it was published in 1967 (eleven years before the implementation of the 1976 Copyright Act) it may well have been injected into the public domain for copyright purposes. The band is seeking a declaratory judgment to this effect.

I was initially skeptical of the band’s trademark claims but the complaint lays out a convincing explication of the band’s use of the mark over the past four decades. Particularly interesting is their 2001 license of the design to Absolut Vodka, a license which was apparently not questioned by Warhol. I also wonder who is licensing all those Velvet Underground t-shirts?

I don’t know that I’ve ever read a case that pitted copyright against trademark in such a unique way. There will most likely be collateral issues. For example, perhaps MGM’s successor may assert some sort of copyright interest in the banana design. Also, what is the status of Warhol’s original artwork? This is certainly going to be an interesting case to watch.

Photographer's Rights

I have written before about the rights of photographers and the difficulty they have in protecting their copyrights. So, it was no surprise to read about a recent lawsuit filed by the heirs of the late rock and roll photographer, Jim Marshall, against a boutique owned by the designer, John Varvatos.

I am a big fan of Jim Marshall’s photography. I have a book of his work in my library. I wish I could re-produce some of his iconic images here (like Johnny Cash shooting the finger at San Quentin Prison), but I can’t because Marshall’s copyrights gave him the exclusive rights to control the public display and distribution of his work.

Varvatos was friend of Marshall’s. In fact, Marshall was supposed to speak at Varvatos’ store the night he died. Varvatos displayed several of Marshall’s photographs in his New York store in tribute to his friend. Apparently, he also made copies and displayed them at all of his stores in the United States, including those located inside of Bloomingdales, now a co-defendant in the suit. Marshall’s estate is seeking statutory damages of up to $150,000.00 for each infringement.

This kind of blatant misuse of someone’s intellectual property seems almost unbelievable in this day and age, but it is a reminder that the intrinsic value of photographer’s work is often severely misunderstood. I had this impressed upon me early in my career by a photographer friend of mine, and I have never forgotten the lesson. Having represented several photographers over the years, I see that it is important to remind the world of their intellectual property rights, especially in this digital age.