Law is undeniably one of the most present and important aspects of the entertainment industry. While it wasn't always such a driving force, as we have all heard of the horror stories from the past, in this day and age it is pertinent to any deal. This post in particular will focus on three recent legal cases that are affecting how the music industry as we know it will continue to function in the future.
Music copyright has been present since the mid-15th century and continues to be one of the most important aspects of music publishing and distribution. One of the most recent copyright cases is 2007's Bridgeport Music, Inc. v. UMG Recordings, Inc. concerning the 1982 funk track "Atomic Dog" by George Clinton and the 1998 hip-hop group Public Announcement's song, "D.O.G. in Me." Bridgeport and the holders of the "Atomic Dog" composition rights claimed that "D.O.G. in Me" infringed on their copyright by repeating phrases and having similar rhythmic elements as "Atomic Dog." After considering all of the fair use factors, a jury came to the conclusion that although "D.O.G. in Me" was "transformative," "Atomic Dog" was "clearly within the core of copyright protection (Nusbaum, 2010)." The jury argued that, "Although the scope of use by 'D.O.G. in Me' consisted of relatively small elements of the song, testimony at trial indicated that they were the most distinctive and recognizable elements of 'Atomic Dog'" and that "Bridgeport could lose substantial licensing revenues if it were deprived of its right to license content such as that used by UMG (Nusbaum, 2010)." Bridgeport was awarded $88,980 in statutory damages.
This is an incredible example of copyright because it goes to show that you do not even have to use exact phrases, riffs, or chords in order to be pinned for infringement. Similar elements, even something as silly as dog panting, can causes thousands of dollars worth of damages. Whenever in doubt it is best to consult the advice of legal counsel to ensure that your music is not imposing on the rights of others in any way, shape or form, otherwise you could end up in Public Announcement's shoes.
Another important aspect of the music industry is obtaining proper royalties for published work. Performing rights organizations, or PROs, such as ASCAP, SESAC or BMI assist both music writers and performers do just that. In June of 2011 a case was filed between ASCAP and BMI against commercial music service provider, DMX, regarding licensing fees. In 2005 DMX "requested an 'adjustable-fee blanket license' ('AFBL'), or a 'blanket license with a carve-out,' from ASCAP (findlaw.com)." However DMX and ASCAP could not come to an agreement on a license fee. ASCAP then applied to the District Court to set a reasonable rate for DMX's requested license. BMI also proposed a "BMI rate court" but the PRO and DMX, too, were unable to come to an agreement on fees. Both PROs attempted to use proposals based off their agreement with Muzak, also a commercial music service provider. However the courts found that their benchmarks did not "reflect a sufficiently competitive market and their proposals therefore did not reflect rates that would be set in a competitive market (findlaw.com)." The District Court then assisted in setting rates for a reasonable fee for PROS' licenses with DMX by "incorporating the extent to which DMX relied on direct licenses (findlaw.com)."
With all of the technological advances we have had regarding music distribution, PROs have become imperative in ensuring that funds continue to go to musicians and composers properly. This is one such example of having to figure out what exactly one of those technological advances, a commercial music service provider, must owe in order to continue with their service. At the end of the day everyone needs to get paid, but the difficult part is figuring out just how much is appropriate for each involved party.
Continuing with the theme of technological advances and their affect on the music industry is the most recent case concerning the digital media company ReDigi and their online platform that allows people to upload and resell songs or books they had bought from online retailers. The platform was created in 2011, stating that its "technology deleted the original file once a copy was put up for sale (Sisario, 2013)." However Capitol Records sued ReDigi in 2012 claiming issues with the first sale doctrine. The case came to a close at the end of March of this year when the US District Court ruled that ReDigi was liable for copyright infringement, although damages have not yet been considered.
This case is an interesting one because it seems only natural that a company such as ReDigi and the service that they provide would come about sooner or later. All of us have those songs that we never listen to anymore that we'd love to get rid of but cringe at the fact of basically throwing away money that we once spent. While it does seem to pose problems for money that record companies and authors could continue to make on future purchases, it also seems like a good way to recycle material that is no longer being used, even if it is in a digital format. The judge for this case though did imply that this type of service is fathomable in the future, but the kinks need to be worked out for proper use before any such service can move forward.
References
Nusbaum, S.K. (2010). Copyright Cases. Health Lawyer, 66(1), 205-212.
Broadcast Music, Inc. v. DMX, Inc., 10-3429 from Findlaw.com
"A Setback for Resellers of Digital Products" by Ben Sisario of The New York Times
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