Erin was also recently quoted in an article for The Fader: “Here’s What You Need to Know About Sharing Lyrics Online”
Erin was also recently quoted in an article for The Fader: “Here’s What You Need to Know About Sharing Lyrics Online”
By: Erin M. Jacobson, Esq.
This article was previously published on Forbes.com.
When you stream music on Spotify, are you aware that as you are enjoying your favorite song, Spotify might not be paying the person who wrote that song?
Spotify has been sued for upwards of $345 million by Bob Gaudio and Bluewater Music Services Corporation for failure to pay mechanical licenses when their compositions are streamed on Spotify. Gaudio, a former member of Frankie Valli and The Four Seasons, wrote and publishes some of the group’s biggest hits including “Sherry,” “Big Girls Don’t Cry,” and “Walk Like a Man,” as well as Valli’s solo hit “Can’t Take My Eyes Off of You.” Bluewater administers the publishing for compositions like Player’s “Baby Come Back,” Miranda Lambert’s “White Liar,” and Guns ‘N Roses’ “Yesterdays.”
Streaming requires several licenses –sound recording licenses from the record labels; performance licenses for the compositions from performance rights organizations such as ASCAP and BMI; and mechanical licenses for the reproduction of the compositions. While Spotify has deals with the major labels, and blanket licenses with ASCAP and BMI, Spotify has not complied with the requirements for mechanical licenses and payments for all compositions streamed on its platform. Obtaining a mechanical license in the United States is compulsory, meaning that a person or company wishing to reproduce a composition must follow the guidelines in Section 115 of the United States Copyright Act to serve a “Notice of Intent” on the copyright owner and pay said owner the compulsory license fee. Spotify has followed this procedure for compositions affiliated with the Harry Fox Agency (the closest body the United States has to a mechanical rights society), but there are many compositions not affiliated with the Harry Fox Agency that Spotify would need to contact and pay directly – and Spotify largely has not done so.
This is not the first time Spotify has come under fire for its inadequate licensing practices. In 2016, Spotify reached a $30 million dollar settlement with the National Music Publisher’s Association (NMPA) for unpaid mechanical royalties, and Spotify just settled another class action suit for $43.4 million dollars. While maximum statutory damages rates are $150,000 per infringed composition, Bluewater claims that Spotify will only have to pay songwriters $4 per infringed composition after litigation fees are paid. Per the previous settlements, Spotify must also implement a better system to properly track and pay mechanical royalties, and Bluewater asserts this has not yet happened.
The attorney for both Gaudio and Bluewater is Richard S. Busch, most recently in the news for his representation of Marvin Gaye’s estate in the “Blurred Lines” case. Echoing my previous sentiments, a press release citing Busch’s complaint sums up the issue in a single sentence: “Songwriters and publishers should not have to work this hard to get paid or have their life’s work properly licensed, and companies should not be allowed to build businesses—much less billion-dollar businesses—on the concept of ‘infringe now and ask questions later.’”
*This article does not constitute legal advice.
Erin M. Jacobson is a music attorney whose clients include Grammy and Emmy Award winners, legacy clients and catalogs, songwriters, music publishers, record labels, and independent artists and companies. She is based in Los Angeles where she handles a wide variety of music agreements and negotiations, in addition to owning and overseeing all operations for Indie Artist Resource, the independent musician’s resource for legal and business protection. Ms. Jacobson also serves on the boards of the California Copyright Conference (CCC) and Association of Independent Music Publishers (AIMP).
Here’s a recap of my article’s this month:
The most talked-about topic in the music legal world this month was certainly the copyright infringement case where band Spirit is sued Led Zeppelin over allegations that “Stairway to Heaven” infringed on Spirit’s song “Taurus.” The good news is that Led Zeppelin Wins ‘Stairway to Heaven’ Jury Trial!
Here’s a recap of the week’s trial coverage:
What was also exciting is the recent push by artists to urge online content providers like YouTube to #valuemusic. This call to action also involves the request to reform the Digital Millennium Copyright Act (DMCA) which allows safe harbor provisions for YouTube and other online content providers.
In other news, those on the other side of the spectrum are filing lawsuits to force certain musical compositions into the public domain so that they don’t have to pay the license fees for them. This is one of a few lawsuits to follow the “Happy Birthday” case. This is certainly not a way to #valuemusic.
A work that meets the standards of originality is considered to be copyrighted under United States law when that work is “fixed in any tangible medium of expression,” (17 U.S. Code §102) which means that the work is put into a physical medium that can be reproduced, like writing it down, recording it on an audio or video recorder, etc.
The Poor’s Man’s Copyright is a practice where someone would take a work they had created, put it in an envelope, and mail it to himself via the United States Postal Service. Because the Postal Service would stamp the envelope with a postmark that had the date of mailing, it is argued that the date on the envelope proves that the work was created on or before that date. Otherwise, if the person hadn’t created it yet, how would he have mailed it to himself?
Now with the Internet, the argument people try to present to me is that once a person posts something on the Internet, the timestamp of the posting is enough to show that the work was created on or before the date that it was posted online.
There are a few reasons why the date or time stamp is not enough to protect a work. Firstly, while as a matter of logic the work had to have been created on or before it was mailed or posted, it doesn’t dictate when the work was actually created. For example, if Person A creates a work in January of a certain year, but does not mail or post it until September of that year, the date/time stamp Person A seeks to use as evidence will be in September. If Person B someone how access to Person A’s work, copies a portion of that work, and releases and/or registers his new work for copyright in July, then Person B’s work will have a date of July and Person A’s work will have a date of September without concrete proof that his work was actually written in January and before Person B’s work.
While it is true that Person A could show that Person B had access to their work, a date on a federal copyright registration certificate will almost always trump the date/time stamp and other date evidence. In addition, if Person A had registered for federal copyright protection, he could have indicated that the work was created in January even if he filed later. Furthermore, Person A could not even sue for infringement in federal court without having a federal copyright registration, leaving him without strong options to defend his work if it was infringed.
Federal copyright registration with the United States Copyright Office is always advisable because
A person can register his own works for copyright protection, and the online registration fee ranges from about $35-55. However, the terms and application can get complicated, especially for someone who has never filed a registration application before. You don’t want to later find out that your copyright is invalid, like Rick Ross just did.
Contact me to file the registration so it is done correctly the first time.Registering works for federal copyright protection won’t prevent someone from infringing, but it does provide the strongest ammunition to protect creative works.
Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.
If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.
This article was originally posted on Sonicbids.com.
*Term coined by Erin M. Jacobson, Esq.
A lot of musicians email me claiming they have great cases for copyright infringement. Copyright infringement does happen, but there are more people who think they have a case than those who actually do. (Please note that I am not a litigator and the below explanation is only a general overview of the basic principles in a copyright infringement suit. Actual cases may include nuances not discussed in this article.)
In order to sue for copyright infringement, you must have your work’s copyright registered with the United States Copyright Office. You can register your works yourself (the online registration fee is about $35), but I recommend an attorney like me or a service like Indie Artist Resource to file the registration for you, as some of the questions and principles covered in the application can be confusing.
Keep in mind that under copyright law, two similar works can be created independently of each other without infringement. For example, two independent musicians on opposite sides of the country could create original and copyrightable songs that sound very similar to each other, without knowing each other or ever hearing each other’s music. After all, there are only so many notes and chords that can be played.
However, if you do feel someone has actually infringed your music, you will have to prove that you have a valid copyright and your work was sufficiently original to warrant the validity of that copyright. Next, you will have to show that the alleged infringer copied your work. The analysis for infringement involves examining these three areas:
1. Direct copying
Here, you would have to show that the accused infringer directly copied the first work when creating his subsequent work. There is often no way to show direct copying, so the courts will instead look at the next two areas described below.
When direct copying cannot be proven, courts will often infer that copying occurred if it is shown that the accused infringer had access to the allegedly infringed composition. This can be proven by showing that someone had direct access to your work, such as if you gave a copy of the song directly to the alleged infringer, or gave it to someone who had access to that person, like a producer or label executive.
Access can also be shown if the prior work is widely disseminated, such as a famous hit played on the radio and well known by the public. Here’s an example of how access was surprisingly proven in a real case: In Bright Tunes Music Corp. v. Harrisongs Music, Ltd., George Harrison’s song “My Sweet Lord” was deemed to infringe on the song “He’s So Fine” recorded by The Chiffons in 1962. The court didn’t require actual proof that Harrison had heard “He’s So Fine” before; it relied on the fact that “He’s So Fine” had the top position on the Billboard charts in the U.S. for five weeks and hit No. 12 in England in 1963 – coincidentally at the same time The Beatles were becoming famous.
The court concluded that Harrison unconsciously plagiarized “He’s So Fine” when he composed “My Sweet Lord” because “his subconscious knew [the musical combination of notes] had worked in a song his conscious mind did not remember.” The court went on to further conclude that it did not believe Harrison deliberately copied the song, but ruled against him anyway because access to “He’s So Fine” was assumed due to its fame and the two songs had enough similarities to satisfy the court.
Therefore, if you have written a song, but it is not well known by others and you have not given it to someone where you can show a direct connection to the person who supposedly copied your song, you don’t have a case. It’s not enough to write and record a song that only a small number of people have heard, and then try to file a lawsuit when something shows up on the radio that you think sounds similar, when in reality you have no proof to show the other person even knew of your song.
3. Substantial similarity
The third analysis looks at the similarities, if any, between the two songs. If the degree of access to the first song is high, the amount of proof required to show similarity between the two songs will be lower than if there was not easy access to the first song.
Here, a court will look objectively at which parts of the first song were allegedly copied, such as the melody, lyrics, etc. A court will also look at the subjective opinion of lay listeners, which is basically whether the average person would think the two songs sounded the same or similar enough when listening to them both.
This point in the analysis is where many people argue that it is supposedly acceptable to copy three notes of an existing composition or sample three seconds or less of an existing recording without infringing copyright. In fact, there are no such rules allowing this practice. Infringement is infringement.
If you have looked at the facts and can truly show that someone has either directly copied your song or has had access to your song, and their song is very similar to yours, then you will need to contact an entertainment/copyright litigator to discuss the potential merits of your case. Keep in mind that these lawyers do expect to get paid for their services, although there are a few who may be willing to take important cases on a contingency. Check with the lawyer on his or her practices.
 Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (1976).
 Id. at 179.
 Id. at 180.
 Id. at 181.
This post was originally published at Sonicbids.com.
Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity. This article does not constitute or create a lawyer-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.