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BMG has reached a settlement to end a copyright lawsuit against a toymaker that promoted a brand of “unicorn poop” with a song called “My Poops” – a scatological parody set to the tune of Black Eyed Peas’ “My Humps.”
In an order Tuesday, a federal judge said that BMG and toymaker MGA Entertainment had “reached a settlement in principle” to resolve the lawsuit, marking an abrupt end to what would have been a high-profile dispute over copyright’s fair use doctrine when it comes to parody songs.
Neither side immediately returned requests for comment or more information about the terms of the settlement, like whether any money was exchanged.
Released to promote MGA’s Poopsie Slime Surprise toys – unicorns that release sparkling “unicorn poop” slime – “My Poops” features similar musical elements to Black Eyed Peas’ 2005 hit, which reached No. 3 on the Hot 100 and spent 36 total weeks on the chart. But it replaces the words with joke lyrics like “Whatcha gonna do with all that poop, all that poop.”
In a January complaint, BMG said the song was very clearly an infringement of its copyrights. In addition to copying key musical elements, BMG said, MGA’s song features a lead vocalist who “sounds very similar” to Black Eyed Peas lead singer Fergie.
“Music, especially a hit song such as ‘My Humps,’ adds great value when incorporated into a product or used in a video advertisement, because it increases consumer recognizability, consumer engagement and attention to the product,” BMG wrote in its lawsuit. “The infringing work is so substantially similar to ‘My Humps’ that it is obvious that the infringing work was intentionally copied.”
Federal protections for fair use expressly empower people to parody existing copyrighted works, and one of the U.S. Supreme Court’s most important copyright rulings held that 2 Live Crew was allowed to release a bawdy parody of Roy Orbison’s “Oh, Pretty Woman” without paying royalties. But the music industry’s premiere parodist, “Weird Al” Yankovic, voluntarily chooses to license all of the songs that he parodies. And the legal analysis is undoubtedly trickier when a parody song is used for outright commercial advertising, rather than merely as a new song.
Back in 2013, the Beastie Boys sued a toy company called GoldieBlox after it released a viral parody of the group’s 1987 song “Girls” to promote its engineering and construction toys for girls. After the band threatened copyright infringement, GoldieBlox argued fair use – saying it had aimed to criticize the “highly sexist” message of the original Beastie Boys track and “further the company’s goal to break down gender stereotypes.”
But six months later, GoldieBlox agreed to a settlement in which it apologized to the Beastie Boys and agreed to donate a portion of its revenues to charities of the band’s choosing.
Anthem Entertainment, an independent music company, has announced major changes to its senior leadership in both the publishing and recorded music divisions of the company. Jason Klein and Sal Fazzari are now both permanently instated as the company’s CEO and CFO, respectively, after serving in those roles as interims since early 2023. Previous to becoming […]
Every Thursday, labels deliver all their new releases to TikTok. This is typically a mundane process, but an essential one. Just as record companies want their new tracks playable on all the streaming services at midnight, they want them on TikTok — a crucial promotional venue and driver of music discovery, especially for younger listeners.
But on Sept. 22, things began to go wrong with what’s ordinarily a relatively seamless operation. Five executives — all affiliated with Sony Music or managers with artists in the Sony Music ecosystem — told Billboard that they encountered problems getting their music on TikTok. The issues varied, as did their duration: Some songs’ delivery was temporarily delayed; some never made it; some temporarily faced copyright takedowns even though they were legitimate major-label releases that didn’t infringe on the works of others.
Two sources were told by Sony Music that even Bad Bunny‘s new single “Un Preview” — distributed by The Orchard, which Sony owns — was initially available on all streaming services when it came out Sept. 25, but not on TikTok. (A rep for Bad Bunny did not respond to a request for comment.) It does not appear that the other major label groups experienced similar problems.
While TikTok is renowned for its technical abilities, especially its algorithm, no platform is impervious to mistakes; perhaps someone accidentally pressed the wrong button at headquarters. Funny as that sounds, a version of it has happened before: Back in 2019, major labels suddenly encountered problems delivering songs containing swear words to TikTok. When asked about the platform’s unexpected turn towards the puritanical, a representative said that “due to an internal error, we inadvertently restricted explicit tracks from TikTok globally.”
But last week’s hiccups on TikTok arose against a different backdrop. Sony Music was in the process of negotiating a new deal with the ByteDance-owned company, according to multiple sources. And Sony Music executives told at least two people that they believed sudden problems with getting music onto TikTok were linked to the ongoing negotiations.
Reps for both Sony Music and TikTok declined to comment.
This bizarre episode served as a discomfiting reminder of both TikTok’s power and the music industry’s uneasy relationship with the platform. TikTok often seems like it’s the only service capable of jumpstarting a hit — “the biggest game in town,” as one manager told Billboard last year. That means a label’s music has to be on there if it hopes for commercial success.
But TikTok is also notorious for its low payouts to rights holders. And this has created tension, leading some of music’s most powerful figures to demand better rates from the platform in public remarks.
In September 2022, Universal Music Group CEO Lucian Grainge warned of a value gap “forming fast in the new iterations of short-form video.” “We will fight and determine how our artists get paid and when they get paid in the same way that we have done throughout the industry for many, many, many years,” Grainge added during a call with investors the following month.
Sony Music Group Chairman Rob Stringer echoed this sentiment during a call with investors in May. “Some of the short-form video providers are relatively new, but we are clearly monitoring their progress, and it doesn’t take a scientist to realize that we are being underpaid by some of those content providers,” he said. “As [our] negotiations go on, that will be our position until we are satisfied that we have been paid properly.”
Warner Music Group CEO Robert Kyncl has been more measured in his public comments about TikTok. Warner announced a new multi-year licensing deal with TikTok this summer.
Nearly four years ago, when TikTok said it “inadvertently restricted explicit tracks,” the problem took a number of weeks to resolve. Labels first noticed that songs containing swears were having trouble at the end of August. It was October before a TikTok rep said the company was “finally able to notify labels of the full restoration of affected tracks.”
The various issues experienced by Sony Music affiliates in September were fixed far more quickly. No one was TikTok-less for even a full week.
Still, an executive says, the experience was unnerving — a reminder that his artists’ access to a platform with more than a billion monthly active users “can be cut off overnight.”
A self-described gangster who police and prosecutors say masterminded the shooting death of Tupac Shakur in Las Vegas in 1996 is due to make his first appearance Wednesday (Oct. 4) before a Nevada judge.
Duane “Keffe D” Davis, 60, was arrested Friday during an early-morning walk near his home in suburban Henderson. A few hours later a grand jury indictment was unsealed in Clark County District Court charging him with murder.
Grand jurors also voted to add sentencing enhancements for the use of a deadly weapon and alleged gang activity. If Davis is convicted, that could add decades to his sentence. Davis denied a request from The Associated Press for an interview from jail where he’s being held without bond. Court records don’t list an attorney who could comment on his behalf.
Davis had been a suspect in the case, and publicly admitted his role in the killing in interviews ahead of his 2019 tell-all memoir, Compton Street Legend. “There’s one thing that’s for sure when living that gangster lifestyle,” he wrote. “You already know that the stuff you put out is going to come back; you never know how or when, but there’s never a doubt that it’s coming.”
Davis’ own comments revived the police investigation that led to the indictment, police and prosecutors said. In mid-July, Las Vegas police raided Davis’ home, drawing renewed attention to one of hip-hop music’s most enduring mysteries.
Prosecutors allege Shakur’s killing stemmed from a rivalry and competition for dominance in a musical genre that, at the time, was dubbed “gangsta rap.” It pitted East Coast members of a Bloods gang sect associated with rap music mogul Marion “Suge” Knight against West Coast members of a Crips sect that Davis has said he led in Compton, California.
Tension escalated in Las Vegas the night of Sept. 7, 1996, when a brawl broke out between Shakur and Davis’ nephew, Orlando “Baby Lane” Anderson, at the MGM Grand hotel-casino following a heavyweight championship boxing match won by Mike Tyson.
Knight and Shakur went to the fight, as did members of the South Side Crips,” prosecutor Marc DiGiacomo said last week in court. “And (Knight) brought his entourage, which involved Mob Piru gang members.”
After the casino brawl, Knight drove a BMW with Shakur in the front passenger seat. The car was stopped at a red light near the Las Vegas Strip when a white Cadillac pulled up on the passenger side and gunfire erupted. Shot multiple times, Shakur died a week later at age 25. Knight was grazed by a bullet fragment.
Davis has said he was in the front passenger seat of the Cadillac and handed a .40-caliber handgun to his nephew in the back seat, from which he said the shots were fired. In Nevada, a person can be convicted of murder for helping another person commit the crime.
Among the four people in the Cadillac that night, Davis is the only one still alive. Anderson died in a May 1998 shooting in Compton. Before his death, Anderson denied involvement in Shakur’s death. The other backseat passenger, DeAndre “Big Dre” or “Freaky” Smith, died in 2004. The driver, Terrence “Bubble Up” Brown, died in a 2015 shooting in Compton.
Knight, now 58, is now serving a 28-year prison sentence for running over and killing a Compton businessman outside a burger stand in January 2015. Sheriff Kevin McMahill, who oversees the Las Vegas Metropolitan Police Department, has acknowledged criticism that his agency was slow to investigate Shakur’s killing.
“That was simply not the case,” McMahill said. He called the investigation “important to this police department.”
Shakur’s sister, Sekyiwa “Set” Shakur, issued a statement describing the arrest as “a pivotal moment” but didn’t praise authorities who investigated the case. “The silence of the past 27 years surrounding this case has spoken loudly in our community,” she said.
Spotify is giving subscribers in some of the company’s largest markets up to 15 hours of listening time per month to a library of more than 150,000 audiobooks, the company announced Tuesday (Oct. 3). Audiobook access is available to premium individual subscribers as well as the primary account holders for family and Duo accounts (a […]
Talent agency Wasserman has completed the acquisition of United Kingdom-based CSM Sport & Entertainment, expanding Wasserman’s service offerings and geographic footprint in the sports, music, entertainment and culture industries. CSM will continue to operate independently through the end of the year before fully integrating with Wasserman in 2024. The deal expands Wasserman’s reach and network […]
TikTok is testing an ad-free subscription plan, the company has confirmed to Billboard. The new tier, first reported by Android Authority after the site uncovered code in the latest version of the TikTok app, is being tried out in a single non-English-speaking market outside the United States, according to the company. TikTok shot down Android […]
Back in 2018, when music producer Sherman Nealy filed a lawsuit against Warner Music Group, it was just a run-of-the-mill copyright case. Nealy claimed that Flo Rida’s 2008 tune “In the Ayer” featured an unlicensed sample of “Jam the Box,” a 1984 track released by Pretty Tony that he owns.
It’s the same kind of claim that’s made in federal courts every day.
But five years later, Nealy’s lawsuit is now headed to the U.S. Supreme Court, which will use it as a vehicle to answer big unresolved questions about how much money can be awarded in copyright cases. Are those damages limited to just the last three years before a case was filed? Or can they range back decades, adding potentially many more millions to the total?
The high court’s eventual ruling, which the justices will issue next spring, will apply to all forms of copyrighted works, but the music industry is paying particularly close attention. In a filing earlier this year, record labels and music publishers called the case “exceptionally important” to their business.
Pay After Delay?
The controversy at the center of the case against Warner dates back to 2014, when the Supreme Court ruled that the movie studio MGM could be sued for copyright infringement over Raging Bull, even though the case was filed decades after the Martin Scorsese-directed film had first been released in 1980. The studio argued that long delay was unfair, but the justices pointed out that the Copyright Act has a three-year statute of limitations that resets with every new infringement.
Under the court’s interpretation of the law, as long as copies of an allegedly infringing book, song or movie had been sold during the three years prior to the lawsuit, it was fair game for a copyright case. Perhaps unsurprisingly, that ruling led to a surge in long-delayed infringement cases, including a high-profile lawsuit against Led Zeppelin over the 1971 song “Stairway To Heaven.”
But like many Supreme Court decisions, the Raging Bull ruling ultimately raised as many questions as it answered. Chief among them: if you can sue many years later, how far back can you seek damages? If you successfully sue someone in 2023 over a song that came out in 1995, can you demand payment based on 27 years of illegal sales?
In the Raging Bull ruling, the Supreme Court seemed to say no. In her opinion, the late Justice Ruth Bader Ginsburg was fairly clear: “A successful plaintiff can gain retrospective relief only three years back from the time of suit. No recovery may be had for infringement in earlier years. Profits made in those years remain the defendant’s to keep.”
In the years since, the New York-centric U.S. Court of Appeals for the Second Circuit has taken that language literally, ruling a copyright accuser cannot win damages for any for any conduct older than three years – full stop. If you wait to sue over a hit song from the 1990s, you cannot tap into those huge profits when you win the lawsuit.
But the U.S. Court of Appeals for the Ninth Circuit (covering California) disagrees. If you can prove that you only recently “discovered” the fact that your copyright was infringed, the Ninth Circuit says you can seek damages going back all the way to all the way back to the very first infringement – potentially decades worth of penalties.
That means the two courts that contain the vast majority of the country’s creative industries are directly divided over how copyright law works – a so-called “circuit split” that the Supreme Court is tasked with correcting.
Heading To Court
Nealy sued Atlantic Records, Warner Chappell and Artist Publishing Group in Florida federal court in 2018, arguing he had never actually granted them a valid license for his “Jam the Box” to be sampled in Flo Rida’s “In the Ayer,” which reached No. 9 on the Hot 100 after being released in July 2008.
In 2021, the judge overseeing the case cited Raging Bull and ruled that Nealy couldn’t win any money from earlier than 2015. Though Nealy said he had only learned of the illegal sample in 2016 and wanted damages going all the way back to 2008, the judge cited the Supreme Court’s “binding precedent” that had “explicitly delimited damages to the three years prior.”
But earlier this year, the U.S. Court of Appeals for the Eleventh Circuit overturned that ruling. Siding with the Ninth Circuit’s approach, the appeals court ruled that Nealy’s late discovery of the infringement was a different situation than the one dealt with in Raging Bull – and that any similar “discovery rule” cases would be allowed to seek damages as far back as they went.
Warner quickly appealed that decision to the Supreme Court. Repped by elite SCOTUS attorney Kannon Shanmugam of the law firm Paul Weiss, the company argued in a May petition that the “discovery” approach would unfairly expand the “financial exposure” of a copyright defendant and potentially lead to frivolous lawsuits that aimed to “extract settlements.”
“Deprived of a predictable limitations period and faced with expensive, time-consuming, and difficult litigation in order to defend years-old uses of copyrighted works, defendants will often be left with no choice but to settle claims early even in the absence of wrongdoing—or potentially never enter valuable agreements in the first place,” Shanmugam wrote for his client.
“Vitally Important”
The phrases “retroactive relief” and “three-year lookback period” might make your eyes glaze over, but the Nealy v. Warner case has big implications for copyright-heavy industries like music.
After the Raging Bull ruling dropped in 2014, artists and labels saw a rash of long-delayed cases. The lawsuit against Led Zeppelin – which resulted in more than six years of costly litigation before the band was ultimately cleared of all wrongdoing – was the most prominent, but it was just one of many. Meatloaf was sued over his 1993 song “I’d Do Anything For Love”; U2 was accused of ripping off its 1991 hit “The Fly”; and another case claimed that Notorious B.I.G.’s 1993 hit “Party and Bullshit” featured an unlicensed sample.
If the Supreme Court eventually rules in favor of Nealy, it would almost certainly encourage more age-old cases, creating a far larger potential prize for a successful accuser. As Nealy’s attorneys argued at an earlier stage of his case, when it comes to years-old copyright claims, “the vast bulk of damages” will typically fall outside the three-year limit.
Labels and publishers are watching the case closely. In a June brief at the Supreme Court, the Recording Industry Association of America and National Music Publishers’ Association didn’t advocate for either camp, but simply urged the justices to take up a case that is “vitally important to the music industry.”
“Because copyrights are the music industry’s most consequential asset, music labels and music publishers regularly find themselves both enforcing and defending copy right lawsuits,” lawyers for RIAA and NMPA wrote. “Without a clear national rule setting the temporal limits of recoverable damages, amici and their members face serious uncertainty.”
A Los Angeles judge ruled again Monday that Lady Gaga was not obligated to pay a $500,000 reward for the return of her stolen French bulldogs to the same woman who was criminally charged over the incident.
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Doubling down on an earlier decision to toss the case, Judge Holly Fujie dismissed a breach of contract case filed by Jennifer McBride, who pleaded no contest in December to receiving stolen property in connection with the 2021 robbery, in which Gaga’s dog walker Ryan Fischer was shot and nearly killed.
After the judge had given McBride a chance to fix her case, her lawyer argued that she was “in no way involved” with the theft of the dog and only wanted to help the animals. But in Monday’s decision, Judge Fujie said she was unswayed.
“Although plaintiff alleges that her motivation was to protect the bulldogs (and also to collect $500,000.00), this alleged motivation does not negate her guilt of the charge because she has admitted receiving the bulldogs with knowledge that they were stolen property,” the judge wrote. “If anything, the [updated lawsuit] makes even clearer … that plaintiff has unclean hands that prevent her from profiting from her actions.”
McBride is one of five people charged over the Feb. 24, 2021, gunpoint dog-napping of Gaga’s bulldogs, Koji and Gustav. Prosecutors say the singer was not specifically targeted, and that the group was merely trying to steal French bulldogs, which can be worth thousands of dollars. James Howard Jackson, the man who shot Fischer during the robbery, took a plea deal in December and was sentenced to 21 years in prison.
Days after the attack, it was McBride who returned the dogs to police, claiming she’d found the animals tied to a pole and asking about the reward. While police initially told the media that McBride appeared to be “uninvolved and unassociated” with the crime, she was later connected to the robbery and charged with one count of receiving stolen property and one count of being an accessory after the fact. In December, she pleaded no contest to the property charge and was sentenced to two years of probation.
But just two months later, McBride was back in court again — filing a civil lawsuit claiming she deserves the credit for returning the superstar’s bulldogs. The case argued that Gaga’s promise of a reward, which the media characterized as “no questions asked,” was a binding “unilateral” offer to pay for the safe return of the dogs, and that McBride had taken her up on the proposal by flipping on the men who actually committed the robbery.
But Gaga’s lawyers quickly argued that a convicted criminal like McBride cannot “profit from her participation in a crime.” And in July, Judge Fujie agreed.
“The allegations in the complaint are directly related to wrongful conduct that plaintiff pleaded guilty to in the criminal proceeding,” the judge wrote at the time. “Under the circumstances, plaintiff’s successful pursuit of her current claims would allow her to benefit from her admitted wrongdoing.”
In attempting to re-file an updated version of her lawsuit, McBride’s lawyers argued that she had “had no involvement with nor knowledge of the taking of Defendant’s dogs.” But in Monday’s ruling dismissing the case again, Judge Fujie pointed out all the things that McBride’s lawyers didn’t say.
“While Plaintiff alleges that she was not involved in the prior planning or the commission of the theft of Moving Defendant’s bulldogs, she does not deny that at the time she claimed the reward she knew that they were stolen from Moving Defendant, nor does she deny that she received them with that knowledge,” the judge wrote.
The UCLA Herb Alpert School of Music launched a new Bachelor of Arts (B.A.) music industry degree this fall, it was announced Tuesday (Oct. 3).
Dubbed as the lone program of its kind in the University of California system, the new degree will prepare graduates for careers in artist and label management, publicity, finance, live-music promotion, digital marketing, music supervision, music publishing and licensing and more. The degree will also offer creative instruction in audio technology, musicianship, songwriting and production. Courses will be taught by new and longtime UCLA faculty as well as working industry professionals.
The B.A. program “builds on the success of the School of Music’s popular undergraduate minor,” according to a press release, which states that more than a quarter of the U.S.’s music industry job postings are in California while seven of the top 10 U.S. cities employing music professionals are located within 50 miles of the school’s Westwood campus. In addition to the fundamentals, the school will focus on such burgeoning topics as new global markets, streaming algorithms, generative artificial intelligence and musical activism.
“Our goal and responsibility is to empower a diverse community of exceptional students as nextgeneration transformational thinkers in the music industry,” said Eileen Strempel, inaugural dean of the Herb Alpert School of Music, in a statement. “The success of our previous programs built our credibility and infrastructure, while providing us the time to assemble a powerful 12-member advisoryboard chaired by Warner Records visionary Tom Corson to guide us in building this new major’s curriculum.”
“What sets UCLA’s offering apart from other music industry degree programs is the integration of direct skills engagement such as internships, apprenticeships, and student-led projects with the liberal arts curriculum of a major research institution,” added Robert Fink, founding chair of the school’s music industry degree program. He continued that students will be “challenged to take a critical view of the formative effects music industry and technology has had on musical practices around the world.”
Warner Records co-chairman/COO Tom Corson will serve as the inaugural chair of the dean’s board of advisors at the school.
“UCLA’s School of Music is closely affiliated with our industry and knows it well,” said Corson in a statement. “Every business needs people who have the passion and the training that this program will provide. We need future professionals who’ve seriously considered many aspects of the music industry — cultural impact, creative innovation, and operational reality — and bring a fresh, informed point of view to the business.”
Permanent faculty members at The Herb Alpert School of Music will include Thomas Hodgson, who specializes in data science, algorithmic justice and the global music business; Catherine Provenzano, who focuses on new technologies; and David MacFayden, a Soviet popular music authority who will bring his expertise to bear in instructing students on how to understand new models of music distribution and economic value. Students will also receive instruction from working professionals such as songwriter Amy Kuney (Kelly Clarkson, Adam Lambert, Akon), who also performs as gender-complex artist AMES; and Lauren Spalding, co-founder of Femme House, a nonprofit collective dedicated to forging new opportunities for women, gender-expansive, BIPOC and LGBTQIA+ creatives.
Since its founding in 2018, The Herb Alpert School of Music has regularly appeared on Billboard‘s Top Music Business Schools list.