Copyright
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Why is the music business picking on Brewster Kahle? All the technology activist wants to do with the Internet Archive, which he founded in 1996 and still chairs the board of, is create a digital library that offers “universal access to knowledge.” Isn’t that the promise of the digital age — that anyone with an internet connection can access anything ever created?
Turns out it’s more complicated than that. On Aug. 11, Universal Music, Sony Music and Concord Music filed a lawsuit, managed by the RIAA, against the Internet Archive, Kahle’s foundation, Kahle himself and an audio archivist who worked on the project, for infringing the copyrights to old recordings that the Internet Archive makes available through its “Great 78s” project to digitize old recordings originally issued as 78rpm records.
Already, in June 2020, four big book publishers had sued the Internet Archive for making available for a limited time copy-protected digital versions of books — first as many as it had in its collection or those of its partners, then during the pandemic, with its National Emergency Library, as many as users wanted. The publishers won on summary judgement, although the Internet Archive has said it will appeal.
The Internet Archive does lot of worthwhile work: its Wayback Machine tracks old web pages, offers access to considerable information in the public domain, and boasts an expansive collection of live Grateful Dead recordings. The Great 78s project makes available some old recordings that might otherwise be lost, but according to the RIAA lawsuit it also offers streaming access to plenty of recordings that are big business, including Bing Crosby’s iconic version of “White Christmas” — by some measures the most popular recordings of the 20th century — plus Buddy Holly’s “Peggy Sue,” Chuck Berry’s “Roll Over Beethoven” and Frank Sinatra’s “I’ve Got the World on a String.” The 78, may be an obscure format, but some of the music originally released that way is still relatively popular.
The Internet Archive responded in a blog post that it’s a “lawsuit targeting obsolete media.” “When people want to listen to music they go to Spotify,” Kahle said in a statement on the blog. (The Internet Archive did not comment other than pointing to this post.) “When people want to study 78rpm sound recordings as they were originally created, they go to libraries like the Internet Archive. Both are needed. There shouldn’t be conflict here.”
Except that many of those “78rpm sound recordings” aren’t obsolete at all — they’re the exact same recordings that are on Spotify, plus Apple Music and other streaming services. The versions available on the Internet Archive sound scratchy, but the recordings themselves weren’t originally created that way, and the wear on the particular 78s that were digitized by the archive is less about the history of recorded music than about how careful a particular person was with his or her records.
Kahle presents himself as a “digital librarian” who’s making books — and music and other media — available the way libraries always have. But it’s worth remembering that the legal arguments for the Internet Archive’s book-lending program aren’t based on the provision of copyright law that provides exceptions for libraries. Instead, the archive’s legal claim is that copying and distributing books temporarily is fair use. Which means that, if the Internet Archive had won, any library — or, importantly, perhaps any nonprofit entity that defined itself that way, or maybe any entity at all — could copy books it had purchased in order to distribute them. (The archive, in turn, says that its loss is a disaster for libraries, since they have to license books from publishers; but shouldn’t libraries — an essential public good — be funded by the public in a way that’s fair to creators and rightsholders?) Kahle, who has campaigned for years against what he sees as the excesses of copyright, seems to want to change the law.
“The fact that you own a particular copy doesn’t mean that you can make and distribute copies of that copy — this is basic copyright law,” said Maria Pallante, chief executive of the Association of American Publishers (AAP), which helped to guide the publishers’ lawsuit. “They were trying to bloat fair use, while also asserting a first sale defense that applies only to tangible goods, not bootleg digital files.”
The RIAA is suing at least partly to establish case law behind the part of the 2018 Music Modernization Act, which extended federal copyright protection to recordings made before 1972, which were previously only covered under state law. The labels may also want to collect damages: Since statutory damages for willful infringement can be set by judges or juries at up to $150,000, this case could potentially cost the Internet Archive as much as $412 million. “This is the kind of egregious behavior that the Music Modernization Act was intended to address,” says RIAA CEO Mitch Glazier.
Recordings were only covered under state law until the Copyright Act of 1976, but it wasn’t retroactive. And although some opponents of copyright characterized the Music Modernization Act as a land grab by media companies, that doesn’t hold up: Some state laws made it unclear whether copyright protection ever lapsed at all. Indeed, one reason that sound recordings copyrights were federalized in the first place was to help libraries and archives take advantage of the exceptions and limitations that exist in federal copyright legislation, including fair use and specific exceptions for libraries and archives.
As it happens, the subject of federal copyright protection for pre-1972 recordings was studied in a 2011 report by the Register of Copyrights, and substantial attention was devoted to “challenges of preservation and access.” “Substantively,” the report recommended, “the use of section 108 and the fair use exception should encourage more preservation and public access because they provide time—tested rules with which libraries and archives have experience.”
The law under which the Internet Archive is being sued was actually set up partly to help it and other archives, especially in its “orphan works” provision, the result of a compromise between Music Modernization Act proponents and opponents, that allows organizations to use pre-1972 recordings for non-commercial purposes after checking to make sure they’re not in commercial use. (There’s a procedure for this.) If the Great 78s project really intends to make available music that is in danger of disappearing, the law allows for that. Why aren’t Kahle and the Archive following it? It’s hard to imagine that Kahle doesn’t understand the law.
And that’s why the music business is picking on Brewster Kahle — because it sometimes seems as though the Internet Archive is as much about pushing the boundaries of copyright law as it is about preserving creative works in the first place. Libraries play a crucial role in any democratic society, and Kahle and the archive do a lot of important work. But so do the performers and songwriters — and, yes, the labels and publishers — who made all of these recordings possible in the first place.
A company that owns the rights to the “Space Jam” theme is suing a minor-league baseball club for using it – the latest in an increasingly active legal campaign to demand payment for a song that has been heavily used in internet memes and mashups for the past twenty years.
Watson Music Group, which bought the rights to “Space Jam” in 2019 from its original songwriters, has filed three federal lawsuits in the last three months, accusing companies of infringing its copyrights by using the song on the internet without permission. It’s also sent legal threats to an unknown number of others, arguing that unauthorized users must pay a “retroactive license” to avoid legal liability.
The latest target? The Wisconsin Timber Rattlers – a minor league affiliate of the Milwaukee Brewers that Watson sued on Monday, accusing the team of briefly using the “Space Jam” song in a 2017 Facebook video. The 35-second clip, still live as of Tuesday, features the track playing in the background as the team’s mascot dunks a basketball.
“Despite plaintiff’s efforts and willingness to address defendant’s infringing activity, defendant failed to respond and plaintiff was forced to seek judicial intervention for defendant’s infringing activity,” the lawsuit claims, before demanding as much as $150,000 in statutory copyright damages from the team.
Performed by Florida hip-hop trio Quad City DJ’s, “Space Jam” was released as a theme song for the 1996 movie of the same name – a classic live-action/animated flick featuring NBA superstar Michael Jordan and the characters from Looney Tunes squaring off in a basketball game against alien invaders. The song plays during the opening credits, blasting its mix of pumped-up raps and bass-heavy dance beats over archival footage of Jordan’s career.
The movie was a hit, but the music was a smash. A star-studded soundtrack album, also featuring R. Kelly’s chart-topping “I Believe I Can Fly,” reached No. 2 on the Billboard 200 in April 1997. And while Quad City’s theme song didn’t reach the heights the group’s earlier “C’mon N’ Ride It (The Train),” the track was also a hit in its own right, eventually hitting No. 37 on the Hot 100.
In legal filings, Watson (which also goes by Quadrasound Music) says it acquired the rights to “Space Jam” composition in 2019 from its original songwriters: Quad City’s Jay “Ski” McGown and Nathaniel “C.C. Lemonhead” Orange, as well as Van “Thrill Da Playa” Bryant of the closely-affiliated Miami hip hop group 69 Boyz.
Since then, the group has not been shy about enforcing those rights. On a website focused exclusively on Watson’s “100%” ownership of the “Space Jam” rights, a large-print banner reads: “Did you receive a notice from us?” Below that question, the site informs visitors that “U.S. copyright law provides large financial penalties for using someone’s copyrighted work without permission.”
The site then features a frequently-asked-questions section, warning readers that any use of the theme song on social media would require payment: “If your post contains any elements of the original composition ‘Space Jam’, you will need permission (a license) from Quadrasound Music.” Another question in the FAQ asks whether removing such a post, or offering credit, would suffice to avoid litigation. “None of these actions limit your liabilities as a copyright infringer,” the site answers, before explicitly stressing that copyright damages can reach $150,000 for a single infringed work.
But, the Watson website says, it doesn’t need to come to all that: “We would rather save you the expense and worry of litigation by having you work with us to resolve this matter outside of the courts by issuing you a retroactive license.”
Depending on how aggressive they want to get, Watson/Quadrasound could have plenty of targets to send those notices demanding payment.
That’s because, in the mid-2000s, Quad City’s “Space Jam” theme enjoyed a bizarre second act as a meme. Across early internet sites like Something Awful and 4chan, users published hundreds of absurdist “slam remix” videos, combining the track with other songs and video clips, often inexplicably featuring NBA star Charles Barkley.
By the early 2010s, the trend had largely faded away – most memes do. But dozens of slam remixes still exist on YouTube, and whole websites dedicated to the art of slamming are still live in 2023. During a late-night appearance in 2021, Tony-winning playwright Lin-Manuel Miranda heaped praise on Slamilton, a full-length LP splicing “Space Jam” with his musical Hamilton: “Kudos to the genius who made that. The internet remains undefeated.”
In a 2021 Billboard story recounting the long, strange history of slam remixes, Quad City member Jay Ski seemed to love the fact that his song had been meme-ized: “I feel so honored that the community embraced us and said, ‘Hey, let’s use this.’ Think about all the records they could’ve used,” he said at the time. “For ours to take on its own direction and own little world, that’s awesome.”
Do the creators of all those remixes have licenses to use “Space Jam”? Almost certainly not. So, is every one of them going to get letters from Watson, demanding they take “retroactive licenses” or risk costly litigation? Darren Heitner, a Miami lawyer who serves as the company’s outside general counsel, said he could not answer that question and that every case would be treated individually.
“I can’t speak broadly to whether our client is seeking payment from everyone who has used the content as part of a meme, given the facts vary on a case-by-case basis and there are instances where a meme may be commercialized or be used as part of a larger commercial enterprise,” Heitner told Billboard.
Heitner would not say how many legal notices Watson/Quadrasound had sent out, nor how much money the company typically demanded in licensing fees to avoid litigation.
“Our client’s policy is to send out a notice when it, with reasonable diligence, discovers the infringement,” Heitner said. “It has recently become much more active in policing such infringement with the intent to engage in thorough discourse with the infringer before escalating each matter.”
Over the past three months, the company has begun rapidly filing lawsuits against those who refuse to pay or ignore demands. In May, Watson sued SportsGrid, a New York-based sports betting media company, over allegations that it featured “Space Jam” repeatedly in videos and podcasts without licenses. Then in June, the company sued a Florida company called CPPM Leasing LLC, claiming it had used the song in a basketball-themed Facebook video in 2019. And now this week, Watson filed its suit against the Wisconsin Timber Rattlers over its slam-dunk video.
Those cases are a far cry from suing every creator of a meme, of course. They target sophisticated business entities who chose to use a copyrighted song in commercial contexts to help promote themselves, not random individuals who mashed-up two songs for fun. But if you believe Watson’s own language, the company does not make that kind of distinction between different types of alleged infringers.
“Is an unauthorized version of the composition ‘Space Jam’ considered copyright infringement?” the company asks in its FAQ. “Yes (there are a few exceptions). Without permission from Quadrasound Music, you most likely are an infringer.”
This is The Legal Beat, a weekly newsletter about music law from Billboard Pro, offering you a one-stop cheat sheet of big new cases, important rulings and all the fun stuff in between.
This week: A federal judge rules that works created by A.I. are not covered by copyrights; an appeals court revives abuse lawsuits against Michael Jackson’s companies; Smokey Robinson beats a lawsuit claiming he owed $1 million to a former manager; SoundExchange sues SiriusXM for “gaming the system” on royalties; and much more.
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No Copyrights For A.I. Works – But Tougher Questions Loom
The rise of artificial intelligence will pose many difficult legal questions for the music business, likely requiring some combination of litigation, regulation and legislation before all the dust settles. But on at least one A.I. issue, a federal judge just gave us a clean, straightforward answer.
In a decision issued Friday, U.S. District Judge Beryl Howell ruled that American copyright law does not cover works created entirely by artificial intelligence – full stop. That’s because, the judge said, the essential purpose of copyright law is to encourage human beings to create new works.
“Non-human actors need no incentivization with the promise of exclusive rights under United States law, and copyright was therefore not designed to reach them,” the judge wrote.
Though novel, the decision was not entirely surprising. Federal courts have long strictly limited copyrights to content created by humans, rejecting it for works created by animals, by forces of nature, and even those claimed to have been authored by divine spirits, like religious texts.
But the ruling was nonetheless important because it came amid growing interest in the future role that could be played in the creation of music and other content by so-called generative AI tools, similar to the much-discussed ChatGPT. The issue of copyright protection is crucial to the future role of AI, since works that are not protected would be difficult to monetize.
Trickier legal dilemmas lie ahead. What if an AI-powered tool is used in the studio to create parts of a song, but human artists then add other elements? How much human direction on the use of AI tools is needed for the output to count as “human authorship”? How can a court filter out, in practical terms, elements authored by computers?
On those questions, the current answers are much squishier – something that Judge Howell hinted at in her decision. “Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions.”
“This case, however, is not nearly so complex.”
Other top stories this week…
MJ ABUSE CASES REVIVED – A California appeals court revived lawsuits filed by two men who claim Michael Jackson sexually abused them as children, ruling that they can pursue negligence claims against his companies. A lower court dismissed the cases on the grounds that staffers had no power to control Jackson, who was the sole owner of the companies. But the appeals court called such a ruling “perverse” and overturned it: “A corporation that facilitates the sexual abuse of children by one of its employees is not excused from an affirmative duty to protect those children merely because it is solely owned by the perpetrator.”
SMOKEY ROBINSON TRIAL VICTORY – The legendary Motown singer won a jury trial against a former manager who claimed he was owed nearly $1 million in touring profits, capping off more than six years of litigation over the soured partnership. Robinson himself took the stand during the case, telling jurors that the deal was never intended to cover concert revenue.
“GAMING THE SYSTEM” – SoundExchange filed a lawsuit against SiriusXM claiming the satellite radio giant is using bookmaking trickery in order to withhold more than $150 million in royalties owed to artists. The case centers on allegations that SiriusXM is manipulating how it bundles satellite services with web streaming services to “grossly underpay the royalties it owes.”
TIKTOK JUDGE RESPONDS – A judge in New Jersey defended himself against misconduct allegations over TikTok videos in which he lip-synced to Rihanna’s “Jump” and other popular songs, admitting “poor judgment” and “vulgar” lyrics but saying he should receive only a light reprimand for what intended as “silly, harmless, and innocent fun.”
LAWSUIT OVER TAKEOFF SHOOTING – Joshua Washington, an assistant to the rapper Quavo, filed a lawsuit over last year’s shooting in Houston that killed fellow Migos rapper Takeoff. He claims injuries sustained during the attack are the fault of the bowling alley where the shooting took place, which he says failed to provide adequate security, screening or emergency assistance.
GUNPLAY FACING FELONY COUNTS – The rapper Gunplay was arrested in Miami and hit with three felony charges over an alleged domestic violence incident in which he is reportedly accused of drunkenly pointing an AK-47 assault rifle at his wife and child during an argument.
FRENCH DIDN’T CLEAR SAMPLE? – The rapper French Montana was hit with a copyright lawsuit claiming his 2022 song “Blue Chills” features an unlicensed sample from singer-songwriter Skylar Gudasz. She claims he tentatively agreed to pay her for the clip – both in an upfront payment and a 50 percent share of the publishing copyright — but then never actually signed the deal.
YOUTUBE FRAUDSTER SENTENCED – Webster “Yenddi” Batista Fernandez, one of the leaders of the largest-known YouTube music royalty scam in history, was sentenced to nearly four years in prison after pleading guilty to one count of wire fraud and one count of conspiracy. Under the name MediaMuv, Batista and an accomplice fraudulently collected roughly $23 million in royalties from over 50,000 songs by Latin musicians ranging from small artists to global stars like Daddy Yankee.
French Montana is facing a copyright lawsuit claiming his 2022 song “Blue Chills” features an unlicensed sample from a singer-songwriter – who says the rapper tentatively agreed to pay her for the clip but then never actually did so.
Skylar Gudasz’s ghostly 2020 song “Femme Fatal” can be heard playing throughout French’s track, and she claims that the rapper’s reps offered to pay her for the sample – both in upfront fees and an ongoing payments, including a fifty-percent share of the publishing copyright.
But in a lawsuit filed Thursday in North Carolina federal court, the singer says French (whose real name is Karim Kharbouch) then dropped “Blue Chills” without ever actually signing that deal.
“Despite repeated promises from defendants …. no signed agreement, fees, royalties, licensing agreements or monies have ever been sent to plaintiff,” Gudasz’s lawyers wrote in the lawsuit.
A rep for French Montana did not immediately return a request for comment.
Gudasz says she was first contacted in May 2022 by Deborah Mannis-Gardner, a well-known industry exec who has been called the “queen” of sample clearance, about French using “Femme Fatal” in an upcoming song. Gudasz says she and her lawyer then negotiated a deal in which she would receive more than $7000 in upfront fees, an .08 percent cut on master royalties, and a fifty-percent share of the copyright for French’s new composition.
But a month later, she claims that French, without notice, released the song “prior to finalizing and signing a licensing agreement.” Gudasz says that her lawyer quickly alerted Mannis-Gardner about the problem.
“Oh jeez,” Mannis-Gardner allegedly wrote in a response email, saying she would reach out to French’s attorney about the issue. But Gudasz says the situation was never resolved: “DMG continued to maintain there would be a final agreement, sent emails finalizing the licensing agreement and requested invoices from plaintiff, which plaintiff timely sent … and even sent plaintiff a congratulatory email.”
Gudasz says the aborted negotiations show that French “knowingly infringed” the earlier song, because they show that he was aware that he needed a license but chose to proceed without one. She claims that French even posted comments to Instagram congratulating her, and acknowledged her role in “Blue Chills” on an episode of Apple Music’s Rap Life Radio.
“The unauthorized and infringing use by defendants of the song ‘Femme Fatale’ has caused irreparable harm, damage and injury,” Gudasz’s lawyers wrote. “Plaintiff has been deprived of the rightful experience of benefitting and enjoying the fruits of her labor.”
In addition to French Montana, the lawsuit also names producer Harry Fraud (real name Rory William Quigley) as a defendant, as well Sony Music Entertainment and several other companies involved in French’s song. Mannis-Gardner is not named as a defendant in the lawsuit and is not accused of any wrongdoing.
For roughly half a century, John Fogerty had tried to recover the rights to dozens of hits he wrote for Creedence Clearwater Revival. At the age of 77, he had almost given up hope, when he and his wife, Julie Fogerty, who also works as his manager, realized they were on the cusp of a second chance thanks to the Copyright Act of 1976.
That law–specifically sections 304(c) and 203–are intended to give musicians, songwriters and other creators a second bite at the apple by enabling them to recapture the copyrights to compositions and recordings, in the United States only, that they may have signed away earlier in their careers. Songs dating from before 1978 can revert to their creator or heirs after 56 years, and songs from after 1978 can revert to the creator or heirs after 35 years, provided they file the proper paperwork.
Realizing that many of John’s songs were nearing that 56-year threshold, Julie reached a deal with Concord in January that returned majority control to her husband of worldwide publishing rights to over 65 Creedence classics.
Although clearing the legal and corporate hurdles to recapture rights can be significant and compromises are often negotiated, some industry insiders say that same law could lead to artists putting up for sale their newly recovered catalogs in a way that stokes the already hot market for publishing and recording rights.
“You have this interesting confluence of the big, big moment in classic rock, and you’re also getting to the 35-year window for late-1980s songs,” says Concord CEO Bob Valentine, who mentioned the mutually “happy outcome” with John during a discussion about works from the late ’60s and late ’80s approaching their reversion dates.
“Those are two huge windows for multiple genres,” he adds. “It makes the [catalog investment] market really interesting at this moment in time.”
Clearing the hurdles — both within the law and presented by music companies — to recapture rights is complicated, but there is some precedent to support this optimism. In 2013, when the first wave of post-1978 works approached the 35-year threshold, Billboard reported that nearly 20 of the world’s most famous songwriters had filed termination notices with the U.S. Copyright Office, including Paul McCartney, Bob Dylan, Brian Wilson, Gerry Goffin & Carole King, Willie Nelson, Daryl Hall & John Oates and the estates of Buddy Holly and Bo Diddley.
Lisa Alter, a founding partner at Alter Kendrick & Baron in New York and an expert in rights reversion negotiations, says a new surge has already begun. “Commerce has definitely increased in this area,” she says. “It will continue to increase, and at some point, maybe 10-plus years down the line, things will start to level off.”
Sources cautioned, however, that rights reversions — particularly for master recordings — rarely work out so cleanly as the law implies, and that likely only a fraction of the hit song catalogs reaching the 35-year or 56-year milestones will revert to their owners.
While John was able to regain a majority share of his worldwide publishing rights, Concord retains the Creedence master recordings in its catalog and, as of January, was still administering the rocker’s share of the publishing catalog. (Concord obtained Creedence’s recordings through the 2004 acquisition of Fantasy Records.) While John regained only publishing rights this year, Concord reinstated and improved his artist royalties shortly after the acquisition.
A key argument used by industry observers who predict the spate of copyright reversions will superheat the catalog investment market in the coming years is that superstar artists and songwriters who were behind hit records in the ’60s, ’70s and ’80s are aging and may be considering selling their rights to pass down a simpler inheritance to their heirs.
Before that can happen, however, artists and songwriters — or their heirs, if they are deceased — are required to serve the U.S. Copyright Office and their current music publisher or record company a termination notice at least two years before the songs turn 35 or 56, and they cannot enter any agreement with a third party before their current contract is terminated. Whoever has been holding those rights has the right of first refusal to acquire them.
While that option often leads the incumbent rights holder to negotiate new deals with the artists seeking to recover their rights, Alter says that since 1978, publishers have usually acquiesced when artists seek to reclaim their publishing rights, and labels have largely sought to block attempts to reclaim sound recording rights.
“There has been almost universal opposition on the part of the labels to the [termination] notices,” she says, with labels often arguing the notice was not validly served or the artist or songwriter produced the song as a work for hire. “While some artists have successfully gotten their rights back, in the majority of cases, the record label has renegotiated the leases.”
Many artists have attempted to sue major labels for their responses to termination notices — so far almost always unsuccessfully. One closely watched case was brought by “Missing You” singer John Waite, who sought class action status for hundreds of artists to sue Universal Music Group to regain control of their masters. The class action request was denied in January after a judge said there were complex and unique issues raised by each artist’s relationship with UMG that could not be resolved on an “aggregate basis.”
Round Hill Music co-founder Josh Gruss, who was an early investor in songs as an asset class, says he questions whether the rights reversion trend will result in more copyrights coming to the investment market.
“It’s really hard for significant recordings to fall out of the major-label system,” he says.
That said, Gruss acknowledges that attractive copyrights that have reverted to an artist or songwriter frequently come up for outside investment. For example, songwriter Eddie Schwartz, who wrote 100% of Pat Benatar’s 1980 top 10 Billboard Hot 100 hit “Hit Me With Your Best Shot,” reclaimed his publishing rights to the song in 2015 and sold them to Round Hill. Gruss says they’ve both been happy with the result.
When it comes to master recordings, however, Gruss agrees with Alter’s assessment.
“The labels have always done a masterful job of not letting the recordings revert,” he says.
More than nine years after members of the 1960s rock band The Turtles filed a series of groundbreaking lawsuits over the legal protections for so-called pre-1972 sound recordings, a federal judge has now dismissed their final case — a lawsuit against Pandora that he called the band’s “last case standing.”
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In a decision issued Wednesday, Judge Philip Gutierrez ruled that the Sirius XM-owned Pandora had not violated California state law by streaming the band’s songs, like the iconic 1967 cut “Happy Together,” without permission and without paying sound recording royalties.
In doing so, the judge recounted the decade-long story of how the two founders of the Turtles (legally Flo & Eddie, Inc.) filed such cases against music services in courts around the country — and how they had lost in every one of them.
“This case is one of many lawsuits brought by Flo & Eddie, seeking to hold internet and satellite radio services liable for the unauthorized public performance and reproduction of its sound recordings that were fixed prior to February 15, 1972,” the judge wrote. “Flo & Eddie’s action against Pandora is the last case standing.”
The Turtles first sued SiriusXM and Pandora in 2014, claiming that both companies had been illegally refusing to paying royalties for pre-1972 songs. That was a legal gray area at the time, since songs prior to that year had not been covered by federal sound recording copyrights. But the Turtles claimed pre-1972s could still be covered by state-level laws aimed at preventing misappropriation.
Initially, the band won a key ruling in California federal court, finding that California state law contained a so-called public performance right that would require services like Sirius and Pandora to start paying up. But then, slowly but surely, courts around the country — first the top court in New York, then the Florida Supreme Court, then a federal appeals court in California — ruled no such right existed.
“One after another, federal circuit courts and state Supreme Courts answered with a resounding ‘no’,” Judge Gutierrez wrote in Wednesday’s ruling.
In some ways, Wednesday’s ruling is anti-climactic. The larger issues raised by the Turtle’s pioneering lawsuits — whether the owners of a vast swath of American recorded music were entitled to a new revenue stream from services like SiriusXM and Pandora — were largely rendered moot by the passage of the federal Music Modernization Act in 2018. Among other major changes, that law required such royalties to be paid for pre-1972 records, ending the state-level ambiguity that drove the Turtles to sue.
But Judge Gutierrez had previously ruled that the MMA’s new requirements did not apply to pending lawsuits, meaning that the band still could have won a ruling forcing Pandora to hand over unpaid royalties from the years before the MMA’s enactment.
Barring a successful appeal, Wednesday’s ruling foreclosed that possibility: “The court grants Pandora’s motion for summary judgment. This order closes the case.”
In seeking to revive their lawsuit against Pandora, the Turtles argued that, even if no public performance right existed under California state law, the streamer had still violated their so-called reproduction right by illegally copying their music to make it available on the service. But those “repackaged” claims had also been rejected by the other courts, Judge Gutierrez wrote.
“Even if the Court would like to independently consider these claims, its ‘hands are tied,’” the judge wrote. “In the absence of an exclusive right to publicly perform its pre-1972 sound recordings, Flo & Eddie has no viable copyright claim against Pandora.”
A Mississippi woman has dropped her copyright lawsuit claiming that Taylor Swift stole aspects of a self-published book of poetry when she created a companion book for her album Lover, months after the star’s lawyers called it a case that “never should have been filed.”
Teresa La Dart sued Swift last year, claiming that “a number of creative elements” from her 2010 book (also called Lover) were copied into Swift’s book. But in a motion filed Thursday in Tennessee federal court, La Dart’s lawyer said she would permanently drop the case.
The sudden voluntary dismissal — which appears to be unilateral and not the product of any kind of settlement — came after Swift’s lawyers harshly criticized the lawsuit in their last filing. Demanding that case be dismissed, they said it was “legally and factually baseless” and “never should have been filed.”
Those arguments echoed what legal experts told Billboard were serious flaws in La Dart’s case. Lawyers said that she was essentially suing Swift over stock elements that could not be monopolized by any one author: “This person might as well sue anyone who’s ever written a diary or made a scrap book.”
Faced with such strong counter-arguments, dropping the case might have made monetary sense for La Dart. If she had continued to litigate the case and had ultimately lost, the judge may have ordered her to repay Swift’s legal bills — a sum that could have totaled tens of thousands of dollars.
La Dart sued Swift in August over the star’s Lover book — an extra bundled with the special edition of her Lover album that the New York Times called a “must-read companion” for Swifties. Released in four different versions, Swift’s book included a total of 120 pages of personal diary entries, accompanied by photos selected by the singer.
The lawsuit claimed that Swift had borrowed a number of visual elements from La Dart, including “pastel pinks and blues” and an image of the author “photographed in a downward pose.” She also claimed a copyright to the book’s overall format, including “a recollection of past years memorialized in a combination of written and pictorial components” and “interspersed photographs and writings.”
Just one problem: In their response in February, Swift’s lawyers said those elements were nothing more than commonplace features of almost any book, meaning they fall well short of being unique enough to qualify for copyright protection.
“This is a lawsuit that never should have been filed,” attorney Doug Baldridge wrote for the superstar. “These allegedly-infringing elements, each a generic design format, are not subject to copyright protection. Thus, defendants could not possibly have infringed plaintiff’s copyright.”
That motion to dismiss the case remained pending when La Dart dropped the case on Thursday. Baldridge did not return a request for comment on Thursday.
La Dart’s attorney William S. Parks did not immediately return a request for comment. But after Swift’s response in February, he defended bringing the case: “Miss La Dart has questions that will hopefully and eventually be answered regarding her perceived similarities between the two works,” Parks said at the time. “Unfortunately, she felt it necessary to bring this suit in order to possibly obtain such answers. We will see how the judge decides at this point.”
DaBaby has been dropped from a copyright lawsuit accusing him and Dua Lipa of ripping off their smash hit “Levitating” from decades-old songs.
In an order Monday (July 10), a Manhattan federal judge granted a request by lawyers for L. Russell Brown and Sandy Linzer to voluntarily dismiss the rapper from their case, which claims Lipa’s massive hit infringed their 1979 song “Wiggle and Giggle All Night” and their 1980 song “Don Diablo.”
The accusers did not explain why they were dropping their case against DaBaby (real name Jonathan Lyndale Kirk), who featured on a popular remix of Lipa’s song. But they made clear that the case would continue against Lipa herself and music companies involved in the song: “For the avoidance of doubt, plaintiffs maintain and do not hereby dismiss their claims against any other defendant in this matter.”
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An attorney for Brown and Linzer declined to comment on why they had dismissed DaBaby from the case. An attorney for DaBaby did not return a request for comment.
Brown and Linzer’s case, filed in March 2022, was one of two federal copyright lawsuits filed in quick succession over “Levitating” — a massive hit that spent 77 weeks on the Hot 100 and was named the No. 1 Hot 100 song of 2021. The case claimed the melody that starts just a few seconds into “Levitating,” when Lipa sings “If you wanna run away with me,” was a “duplicate” of a similar passage featured in the two earlier songs.
The other “Levitating” case, filed just days earlier by a reggae band named Artikal Sound System, claimed Lipa had lifted her song’s core hook from their little-known 2015 song “Live Your Life.” But the band dropped that lawsuit last month, just days after a federal judge cast serious doubt on whether Artikal could prove that Lipa ever even heard their song.
Though Brown and Linzer’s case will continue against Lipa, they could be facing a similar ruling soon.
Last summer, Lipa’s lawyers made the same arguments as they made in the Artikal case, saying the two accusers could not prove that she had ever had “access” to the earlier songs — a make-or-break requirement for any copyright lawsuit. Brown and Linzer’s attorneys have countered that their songs had millions of listens on internet platforms, giving the “Levitating” writers ample opportunity to hear them.
A ruling on that question is pending.
The National Music Publishers’ Association says its members are suing Twitter over allegations of widespread copyright infringement and seeking hundreds of millions in damages, telling the Elon Musk-owned site it can no longer “refuse to pay songwriters and music publishers.”
In the lawsuit, which the group plans to announce during its annual meeting Wednesday (June 14), dozens of music publishers allege that Twitter had infringed more than 1,700 different songs — a claim that, if proven, could put the social media giant on the hook for as much as $255 million in damages.
“Twitter profits handsomely from its infringement of publishers’ repertoires of musical compositions,” the music companies write in their complaint, which was obtained by Billboard. “Twitter’s unlawful conduct has caused and continues to cause substantial and irreparable harm to Publishers, their songwriter clients, and the entire music ecosystem.”
Twitter did not respond to immediate request for comment.
The plaintiffs named in the lawsuit, set to be filed in Tennessee federal court, include Concord, UMPG, peermusic, ABKCO Music, Anthem Entertainment, Big Machine Music, BMG Rights Management, Hipgnosis Songs Group, Kobalt Music Publishing America, Mayimba Music, Reservoir Media Management, Sony Music Publishing, Spirit Music Group, The Royalty Network, Ultra Music Publishing, Warner Chappell Music, and Wixen Music Publishing.
The announcement that the NMPA would be pursuing legal action against Twitter shouldn’t come as a total surprise. In a February speech at the Association of Independent Music Publishers (AIMP) summit, NMPA president and CEO David Israelite called Twitter his “top legal focus” this year. He warned that the company was “hiding behind” the Digital Millenium Copyright Act – the federal law that limits how websites like Twitter can be sued over copyright infringement by their users.
In a statement on Wednesday, Israelite echoed that threat, saying that Twitter could no longer “hide behind the DMCA and refuse to pay songwriters and music publishers.”
“Twitter stands alone as the largest social media platform that has completely refused to license the millions of songs on its service,” Israelite said in a statement. “Twitter knows full well that music is leaked, launched, and streamed by billions of people every day on its platform.”
The DMCA provides websites like Twitter with a legal immunity — a “safe harbor” — against copyright lawsuits over material uploaded by their users, so long as they promptly remove infringing content and ban repeated violators from the platform. But in their new lawsuit, the publishers allege that Twitter failed to do either, meaning the site has legally forfeited the DMCA’s protections.
“Twitter routinely ignores known repeat infringers and known infringements, refusing to take simple steps that are available to Twitter to stop these specific instances of infringement of which it is aware,” the publishers wrote.
The NMPA annual meeting each year is known to feature at least one bombshell announcement from Israelite. Last year, the NMPA launched a legal action against over a hundred different apps that skim music from digital services without obtaining licenses, sent cease and desist notices to Apple and Google app stores, and filed a copyright infringement lawsuit against music video-making app Vinkle. In 2021, Israelite announced $200 million copyright infringement lawsuit against Roblox for hosting thousands of unlicensed songs within the game’s library.
The NMPA’s public grievances with Twitter date back to at least April 2021, when a Billboard published a guest column, co-penned by Israelite and RIAA chief Mitch Glazier. In it, the two leaders called for social media platform to license music and noted that in the last year music creators had sent more than 2 million notices to Twitter of unlicensed and infringing appearances of copyrighted music on the platform, more than 200,000 of which were of unreleased songs. “The company’s response to date has been totally inadequate,” the article lamented. It went on to suggest three ways for Twitter to address the grievances the music business has had with its operations: “licensing music and pay music creators like others do,” “better content protection tools,” and “stop demanding exorbitant payments from creators for content protection.”
Since Jack Dorsey stepped down from Twitter in November 2021, the stability of the company has been in constant flux. By the time Musk bought the company and assumed the role of CEO in October 2022, Twitter’s future seemed even more uncertain amid Musk’s controversial leadership, widespread cost cutting measures, and restructuring of the company. Since Dorsey’s departure, Israelite has taken to the platform to express his hope that subsequent chiefs like Parag Agrawal, Musk and now Linda Yaccarino would “finally” “take a new approach” with licensing music.
But in Wednesday’s lawsuit, the publishers said things had only gotten worse: “Twitter’s change in ownership in October 2022 has not led to improvements in how it acts with respect to copyright. On the contrary, Twitter’s internal affairs regarding matters pertinent to this case are in disarray.”
Licensing for games, social media, and other applications is quickly becoming a major component of music publishers’ income. At last year’s annual meeting, NMPA announced that licensing from new revenue streams — like Twitch, Roblox, Peloton and others — now account for 29.11% of music publishers’ income, something that is expected to only rise over time. This has come with the success of the NMPA’s aggressive legal agenda in recent years, and has helped publishers diversify their income from streaming, which is strictly regulated in the U.S. by the Copyright Royalty Board.
In the lawsuit against Twitter, the publishers noted that TikTok, Facebook, Instagram, YouTube, and Snapchat had all entered into such broader licensing deals, enabling their users to use copyrighted music while still compensating songwriters. Twitter, they wrote, cannot not continue to be the exception.
“Twitter is seizing for itself an artificial competitive advantage against companies that are not violating copyright law, undercutting existing markets, cheapening the value of music, and undermining Publishers’ well-established business models,” lawyers for the publishers wrote.
A Grammy Award-winning composer has dropped her closely-watched lawsuit against YouTube over access to its anti-piracy tools like Content ID, just a day before it had been set to go to trial — and weeks after a federal judge gutted the case by refusing to let it move forward as a class action.
Maria Schneider spent years litigating her lawsuit, which claimed that YouTube had become a “hotbed of piracy” because it provided effective content tools only to “powerful copyright owners” like record labels and not to “ordinary owners” like artists and songwriters.
But on Sunday (June 11), with a jury trial scheduled to kick off on Monday morning), lawyers for both sides told a federal judge that they had agreed to end the case without a decision: “In light of the stipulation of dismissal of all claims with prejudice, the jury trial set for June 12, 2023, is vacated,” Judge James Donato wrote. “The case is closed.”
The sudden end to the case came just weeks after Judge Donato issued a crucial ruling that dramatically reduced the scope of the lawsuit: That Schneider could not team up with tens of thousands of other rightsholders who she claims suffered similar harm from YouTube’s policies.
Schneider quickly moved to appeal that ruling and postpone the trial, arguing that it would “gravely undermine” the goals of her lawsuit. But a federal appeals court denied that motion on Friday.
Faced with a jury trial they had warned would be “enormously wasteful,” Schneider’s lawyers dropped their case. Neither side immediately returned requests for more information about how the resolution of the litigation was reached, including specific details about any kind of settlement agreement.
Filed in 2020, Schneider’s lawsuit claims that YouTube (owned by Google parent Alphabet) forces songwriters and other smaller rights holders to use “vastly inferior and time-consuming manual means” of policing infringement, allowing piracy of their material to flourish on the platform.
For its part, YouTube says it’s done nothing wrong. In court documents, the company has argued that it’s spent “spent over $100 million developing industry-leading tools” to prevent piracy, but that it limits access because “in the hands of the wrong party, these tools can cause serious harm.”
The case was filed as a class action, aiming to let potentially tens of thousands of aggrieved copyright owners team up to fight what Schneider’s lawsuit called “institutionalized misbehavior.” An expert retained by her legal team said the class could include between 10,000 and 20,000 rights holders.
But in a May 22 ruling, Judge Donato refused to “certify” the case as a class action. Under federal law, class-action accusers must share very similar legal concerns — and the judge said Schneider’s fellow rights holders would have widely different cases against YouTube.
Following that ruling, Schneider quickly moved to postpone the trial. But at a hearing days after the decision, Donato said he would stick to the schedule: “I’m not going to do that. You got a trial set on June 12th. This is a 2020 case; OK. It’s showtime.”
In a June 5 emergency petition to the U.S. Court of Appeals for the Ninth Circuit, Schneider’s lawyers demanded the appeals court put the case on ice while she filed an appeal on the class certification issue. They argued that a “brief” pause would prevent the judge’s “last-minute, haphazard and erroneous” ruling from derailing a case with important implications.
“The named plaintiffs here joined the case to litigate class claims, and to vindicate their view that YouTube tramples on the rights of independent artists and smaller copyright holders overall, not just those of the individual plaintiffs,” her lawyers told the appeals court.
But in a ruling published on Friday evening, the Ninth Circuit rejected those arguments: “The court, in its discretion, denies the petition for permission to appeal,” the court wrote. “Petitioners’ emergency motion for a stay is denied as moot.”
Schneider and her lawyers still could have proceeded to trial against YouTube, litigating the case simply on behalf of her and another plaintiff. But they had strongly indicated in court filings that they did not want to proceed to the trial without class-action status.