Warner Drops DRM on Amazon

The New York Times reports that major label Warner Music Group will begin selling music on Amazon.com without copy protection software - DRM. SonyBMG is now the only hold out. Whether this policy will reach other online music retailers is not yet known. But the labels are positioning themselves to play hardball with Apple itunes.
Sent from my Verizon Wireless BlackBerry

A Flurry of John Doe Suits

The past two days saw a "flurry" of law suits filed by major labels in Federal District Court: no less than 17 copyright infringement cases were filed against John Doe defendants and IP-addresses by, collectively -- Zomba, Atlantic, Capitol, Sony BMG, MoTown, Warner Bros. Records, Elektra, UMG, Maverick, and Arista.

Additionally, several suits were filed against actual named defendants - whom were identified by 3rd party investigators for using P2P networks at the defendant's IP-address. (e.g. case no
4:07-cv-04525)

Notably, many of the cases were filed in the Eastern District of Pennsylvania, with the labels (for the most part...) represented by the SAME attorney: Jennifer K. Welsh. Talk about a pay-day! Other courts include New Hampshire, Nebraska, North Carolina, Massachusetts, and Tennessee.

Is there some sort of quota the labels fill before the end of the year?

[UNVERIFIED Case nos.: 1:2007cv00972; 4:2007cv03278; 1:2007cv00416; 5:2007cv03883; 2:2007cv05463; 2:2007cv05464; 2:2007cv05457; 2:2007cv05461; 2:2007cv05467; 2:2007cv05458; 2:2007cv05459; 2:2007cv05456; 2:2007cv05460; 2:2007cv05462; 2:2007cv05465; 2:2007cv05466; 1:2007cv00479; 3:2007cv00481; 6:2007cv00569; 4:2007cv04525; 4:2007cv04527; 4:2007cv04528. ***OTCS did not verify all case numbers; Check case files and citations before citing***]

There's Something About Remy - Which Might Cost Her Millions!

Violence in the world of hip-hop made its way to the Federal District Court, Southern District of New York with the filing of a $20 million lawsuit against Bronx-NY artist Remy Ma (and various other parties, including her label Universal). The suit alleges that defendants aided and abetted a violent promotion of the artist, leading to a violent attack (including a gun shot wound) to the plaintiff. Thereafter, defendants allegedly defamed plaintiff by accusing her of committing a crime leading to the violent/shooting incident.

Background information on the shooting-incident is available here (Wiki) and here (MTV).

The suit is mysteriously absent from Remy Ma's MySpace page - though, you can shoot her an e-mail and book her for an up-coming Bar Mitzvah...

[Makeda Barnes-Joseph v. Remy Smith pka Remy Ma; Remy K Smith pka Remy Martin; Remynisce Music Inc.; New Era Entertainment Inc.; Joseph Sherman aka Joseph Sherman; Jennifer Turner; Sure Shot Recordings Inc. aka Sure Shot Records; Chris Landry; Reach Global Inc.; Michael Closter; Street Records Corp. aka SRC; Steve Rifkind; Universal Music Group Inc.; Universal Music Investments Inc.; Universal Music Group Distribution Corp.; Douglas Morris; Universal Music Canada; Padell Nadell Fine & Wienberger LLP; Pop 3 LLC dba Pizza Bar; The Pizza Bar Inc.; Sasha Tcherekoff; Does 1-3. Filed 12/21/2007; case CV-11464 .]

Ticketmaster Takes A Blow

The Wall Street Journal reports that Ticketmaster, the concert-ticket giant, will not be resigning its deal with live-music promoter Live Nation after the 10 year agreement between the parties expires next year.

Talk about losing a big-account!

One can imagine that tension in the deal involved the fees Ticketmaster charges. But perhaps Live Nation is taking a cue from the fans - though the service Ticketmaster provides is convenient and popular, the surcharges Ticketmaster imposes are excessive. Considering concert-goers can now purchase AND PRINT tickets at home, why are there "service fees"? If the public is getting charged such fees, one can only imagine what Live Nation is getting charged.

Phil Spector Seeks Return of Legal Fees

The AP reports that Phil Spector, legendary producer and creator of the "wall of sound", is suing his former lawyer in Spector's murder trial.

Spector seeks a refund of $1mil. paid to Robert Shapiro and his firm.

Bad Bad Leroy Brown

Last week, EMI Music Publishing announced that it had acquired the exclusive North American publishing rights for the catalogue of famed singer-songwriter Jim Croce.

Roadhouse Blues

The Boss - Bruce Springsteen - and his cronies (i.e., publishers EMI, WB etc.) filed a cookie-cutter copyright infringement suit, alleging unauthorized public performance of four musical works. Defendant is the owner of the Rolling Thunder Road House Cafe, in South Carolina.

Nothing that interesting here, other than plaintiffs claim knowing and wilful infringement, based on Defendant ignoring letters from ASCAP -- but then only demand non-wilful statutory damages (i.e., $750 - $30,000). Statutory damages for wilful infringement have a maximum of $150,000. 17 U.S.C. 504(c).

[Duke of Earle et al. v. Baker, case 6:07-cv-04062-RBH (filed 12/18/2007; Dist.S.C.)]

Multiply Inc. Sued by Major Label

Capitol Records, and a host of other entities owned and/or controlled by label giant EMI Music, sued the company Multiply Inc. in the United States District Court, Southern District of New York. Plaintiffs allege copyright infringement arising from unauthorized use and exploitation of original sound and video recordings by encouraging and enabling users of Multiply to upload and share performances of well-known musical groups.

What gives? This sounds like EMI is suing YouTube type service. But, after casually visiting Multiply's website, which boasts "Multiply makes it easy to create, share and discuss your blog, photos, videos and music with more of the people you know, and less of the people you don't"; it looks like this is more of an online storage site, giving users their own "homepage" to share with the world. But, is this any different than MySpace? Is EMI just going after the little-guy, hoping for precedential effect against the behemoths in the future?

[Capitol Records Inc.; Caroline Records Inc.; EMI Christian Music Group Inc.; Virgin Records America Inc.; Colgems EMI Music Inc.; EMI April Music Inc.; EMI Blackwood Music; EMI Full Keel Music; EMI Grove Park Music Inc.; EMI Longitude Music; EMI Robbins Catalog Inc.; EMI U Catalog Inc.; EMI Virgin Music Inc.; EMI Virgin Song Inc.; EMI Waterford Music Inc. v. Multiply Inc.; filed 12/18/2007; case CV-11357]

Easy Listening

Yes, shocking as it may be, even world renown musical artists need someone to manage their business, financial, and tax services. Yesterday, Michael Bolton (and affiliated companies) were sued in New York Supreme Court (N.Y. Co.) for alleged breach of contract / failure to pay ($513,000.00).

[Executive Monetary Management Inc. v. Michael Bolotin aka Michael Bolton; Bolton Power Blues LLC; Bona Justitia Music Inc.; Is Hot Music Ltd.; MBO Productions Inc.; MBO Tours Inc.; MB Swings LLC; MB Swings II LLC; M Bolton Entertainment LLC; Montaigne Records LLC; Mr. Bolton's Music Inc.; Passion Films Inc.; The Passion Group Inc.; Passion Music Inc.; Passion Realty LLC; The Second Time Around LLC; Stowaways LLC; filed 12/18/2007; case 07-604128]

Flashing Bling

Damon Dash, co-founder of Roc-A-Fella records with Jay-Z, was sued in New York Supreme Court (N.Y. Co;) for allegedly flashing his "bling" (i.e., genitalia) at a club in Miami, Florida...and, allegedly trying to make plaintiff perform oral sex. Due to his high-profile -- which includes Rocawear clothing ventures, work with Posh Spice, and a reality TV show-- should bring some attention in the gossip tabloids.

Oh, and did we mention that he is married? And, has a daughter with his wife, fashion designer Rachel Roy? Try explaining THAT ONE to your kids after work...

[Jamie Roberts v. Damon Dash; filed 12/17/2007; case 07-116694]

Well Its All Right - It's Okay - You Can Look the Other Way

...and another cookie-cutter alleged infringement of publisher's copyright in public performance. Notable parties include the collection society BMI and the Gibbs brothers, i.e., The BeeGees.

[Broadcast Music Inc.; Michael Joe Jackson; Janice Vercher; Spirit One Music; Miran Publishing Inc.; Two Knight Music; Couch & Madison Partnership; The Estate of Maurice Gibb; Robin Gibb; Barry Gibb v. Queen of Hearts Cruises Inc. dba The Queen of Hearts; Steven Salsberg; Ira Barocas; filed 12/13/2007; S.D.N.Y.; case CV-11222]

A'ccounting On You

Two corresponding cases, filed by the same attorney in New York Supreme Court (NY Co./Manhattan), are complaints for alleged breach of contract for failure to provide accountings detailing the labels' exploitation of plaintiffs' sound recordings. One complaint also alleges unjust enrichment.

[Shannon Brenda Greene pka Shannon v. Emergency Records and Filmworks Inc.; Unidisc Music Inc.; filed 12/12/2007; case no. 07-604067 ]
[Leah Lorien Alomar pka Lea Lorien v. DMI Records Inc.; David Morales; filed 12/12/2007; case no. 07-604068]

XM Free from SEC

XM Satellite Radio announced that the Securities and Exchange Commission ended its investigation into the satellite radio company, and the SEC doesn't intend to recommend enforcement action.

The inquiry came after a putative class action was filed against XM, alleging XM failed to provide investors with certain information.

Universal Joins Forces With Social Networking Site

The Wall Street Journal reports that Universal Music has joined forces with social networking service Imeem, Inc. The licensing agreement will allow Imeem's 19 million users to listen to, and embed, Universal music & videos for free on their personal pages. On Universal's end, it will receive a penny-rate payment each time a user listens to one of its songs in addition to sharing advertising revenue associate with a given song. The deal thus promises to provide labels "a revenue stream they've never seen before".

With this deal, Universal joins the other major label groups and marks the first of its kind to cover all four majors. Notably, Universal has a rough-history in such deals - it sued MySpace.com last year for copyright infringement, alleging that the site didn't do enough to prevent users from posting copyrighted materials without authorization.

I Am Iron Man

Love 'em, or hate 'em, heavy metal band Iron Maiden has achieved a level or success and longevity uncommon in the world of popular music. Yesterday, the band announced that it had re-signed with its label of 28 years EMI in a 360 degree deal (excluding the USA), which included touring, merchandise and other revenue.

The band, with an enormous world-wide following, regularly sells out shows in international venues, and has topped charts around the world. It must be the graphic t-shirts...

Amazingly, they have maintained the same manager, Rod Smallwood, since 1979. Unfortunately, the EMI-regime can't boast such loyalty or experience...but nonetheless, Iron Maiden is a "flagship band for EMI".

This Is Thriller!

Another cookie-cutter copyright infringement lawsuit, regarding alleged unauthorized public performance of musical compositions, was filed yesterday in the Western District of North Carolina - Charlotte Division. The compositions - of which there were only 4 instances of alleged infringement - are in the R&B genre.

[Thriller Miller Music v. Arooji's Wine Room LLC; case 3:07-cv-00518-RCJ-CH; filed 12/10/2007]

Music On Your Mobile

Universal Music group entered into an agreement with Nokia Corp., the worlds largest mobile-phone maker by sales, to offer UNLIMITED music downloads for a year on phones carrying the "Ovi" platform, which allows users to buy music. (The core of the service is based on Nokia's prior acquisition of Loudeye for $60 mil.) Dubbed "Comes With Music", users -- who will get a 1 year free subscription and access to Universal's repertoire of artists -- can also transfer music to their computers, though making multiple copies in violation of Copyright protections is limited (DRM).

The service is sure to compete with Apple iTunes/iPhone, and is part of Nokia's continuing expansion into providing on-line services over its telephones.

The real question is whether mobile is truly the direction music is heading? Yes, the iPhone is cool - having your music and phone handy for on-the-go people is a seeming "must". But is it THE ANSWER? Or, just one path of many?

Chrysalis May Get Bid

The Wall Street Journal reported last Thursday (12/7/07) that music publisher Chrysalis Group PLC (London), subject to to bid speculation for almost a year, is currently assessing available options to it -- including a possible offer.

Over The Hills and Far Away

OTCS was one of (literally) millions of entrants to see Led Zeppelin LIVE and REUNITED for tonight's show in London. But, as luck would have it, OTCS didn't get drawn for the lottery...

Any readers at the show, please post comments about the performance.

Also, because this is a tribute concert, OTCS wonders whether there will be a later-released DVD or album (like G. Harrison's Concert for Bangladesh.) If yes, does Led Zeppelin have any sort of back-side deal on this compilation? A percentage of the DVD sales? Will they be so vein as to edit their performance, or outright ban it from the release (a la 1985 Live Aid?).

Murder Was The Case That They Gave Me

Phil Spector, who suffered through a mistrial on murder charges, will be seeing the court room again, likely next fall due to the case load of his criminal defense attorneys. The voluminous record is expected to take at least 5 months for Spector's new counsel to review.

NYTimes - Sums Up 2007 with a Great Radiohead Story

The article speaks for itself, and is worth your time to read. Interesting is the estimate that the average price paid for "In Rainbows" - Radiohead's pay what you want on-line album - was $2.26. That is about TWICE as much as what a successful artist would make under a traditional (i.e., major label) royalties deal.

OTCS must wonder, who is paying $80.00 for the physical set? Yes, it includes artwork, another disc, and vinyl...but won't the extra-disc end up on the Internet? Won't the artwork be available somewhere? And vinyl, isn't it just a novelty these days?

Even Madonna Has the Landlord Blues

Madonna - yes, Madonna - is suing her New York City apartment cooperative, the building's management company, and a neighbor for breach of contract, breach of fiduciary duty, and injunctive relief. The equitable relief seeks transfer of shares of the cooperative, currently allocated to Madonna's neighbor (Apartment 7-A) to Madge.

As Madonna merely filed a summons with notice, details to follow. In the meantime, any one with info (neighbors?) feel free to drop OTCS a line. This is a juicy Central Park West (Manhattan's Upper West Side) story!

[Madonna Ciccone v. One West 64th Street Inc. and its directors and officers (as they may be elected or appointed from time to time and hold such office); Midboro Management Inc.; Ganfer & Shore LLP (as transfer agent, for relief purposes); Julie Clark Thayer (as an interested party who property interests are affected). Filed New York Supreme Court, N.Y. Co. 12/5/2007; 07-604002]

One Way Or Another

Blondie, and her label EMI Music NA (Chrysalis) sued in New York Supreme court for alleged breach of contract and tortious interference arising from a 1979 agreement between plaintiff and defendnats. Allegedly, Blondie misinterpreted the agreement and are not seeking to renegotiate and "extort concessions" from plaintiff.

OTCS' question is: WHO IS PLAINTIFF PETER LEEDS?

According to a 1979 article in Rolling Stone, Leeds was Blondie's manager...but things must have soured. The article continues: "They are now engaged in the legal process of dissolving their relationship..." So what went wrong? Leeds' own claim to fame - Under his tutelage with Blondie, "When in the history of rock & roll music did somebody lay down $500,000 to buy the recording rights to a group that had sold fourteen records?"

And what is going on today, in 2007?

[Peter Leeds v. Deborah Harry; Christopher Stein; James Mollica; Clement Bozewski; EMI Music North America. Filed 12/4/2007 07-603978 ]

Funky Cold Nasty Girl Expresses Herself

Cookie-cutter "public" performance case filed in Eastern District of California. Complaint alleges ONE instance of infringement in June of this year for each of the following songs: "Funky Cold Medina", "Express Yourself", and "Nasty Girl".

Only big players here are plaintis WB Music Corp., and Universal-Polygram International Publishing.

[Nasty Girl]

Little Drummer Boys - Where You At?

As Chanukah, the festival of lights, begins this evening, OTCS began to wonder - who is writing holiday songs anymore? Yes, a variety of artists each year (without fail) will release holiday albums. Usually, these consist of covers of "classics". No doubt, the writers and publishers of such "classics" make a killing (not only do people buy these albums, but they are constantly broadcast an played IN PUBLIC - triggering other copyrights).

So OTCS wonders - why don't more writers and publishers take a stab at "hit" holiday songs, ones that transcend this years holiday season and go on to the next? Surely, its a gold-mine. Imagine having YOUR song played in every mall, office lobby, and toy store for one month each year. You'd make a killing!

So, OTCS invites all aspiring authors of holiday compositions to post their songs for OTCS first annual "Little Drummer Boys - Where You At?" Competition (it's a working name...)

You turn me on, I'm a Radio...

OTCS is shocked by the following data reported by the New York Times:

Of the 10 songs that have notched the most plays in one week, 8 joined the list
in the last three years. And the oldest of the 10, Avril Lavigne’s “Complicated,” dates only to 2002.

Wowzer. In today's world, is it possible for radio to break new artists like, for example, WMMS (Cleveland) broke David Bowie to the USA? Or is radio just a means of promoting downloads, and thus forcing top 40 to listeners at the bequest of the labels? The problem is, this is a self-perpetuating cycle. Radio keeps playing the same songs over and over because people want to hear popular songs (remember Outkast's "Hey Ya"?!) - but the more radio plays the songs, the more listeners realize what a limited medium radio is as compared to their iPods and satellite stations. As radio loses listeners, they play songs that are "popular" to attract listeners back. And so it goes... (But see the following justification from a program director who played one song 78 times last week: That is not so much out of concern over digital competition as it is a desire to respond to listeners’ busy lives. For real?)

Of course, this commentary relates only to pop-radio - there are still plenty of college/indie stations that play what they want to play (see any CMJ magazine!).

Blue Monk

Yesterday, members of the jazz ensemble The Thelonious Monk Quartet (John Ore and Frankie Dunlop) filed suit against Thelonious Monk's record label (and others) for alleged copyright infringement and bootlegging arising from the broadcast of live musical perfomrances of the artists while members of the ensemble.

OTCS imagines the following defense could be fatal to plaintiffs: WORK MADE FOR HIRE! Time will tell...

[John Ore; Francis Dunlop; Robin Dunlop v. Thelonious Records Inc.; Thelonious S. Monk Jr. aka TS Monk; Peter Grain; filed 11/29/2007; CV-10681 SDNY]

My My, Hey Hey

My my, hey hey...what OTCS can miss in ONE DAY!

Arista Records filed 12 - yes, TWELVE - copyright infringement suits in various federal district courts, each against John Doe defendants, between Nov. 27 and Nov. 29, 2007. Presumably, all relate to on-line infringement and the defendants must be identified by their IP addresses.

Additionally, UMG Recordings, Zomba, Sony BMG, and LaFace Records filed John Doe complaints over the same period of time.

OTCS has a full-time job and can't read all the complaints - so who knows what is going on? Anyone? Bueller?

"One phone call will have ya body dumped in Marcy"

Welcome to the rap game...featuring, THE GAME! Suit filed yesterday in SDNY for copyright infringement arising from defendants -- rapper the Game, his label Universal/Interscope, his publishers -- unlawful use of plaintiff's original "music compositions." OTCS can picture the plaintiffs sitting, feather pen in hand, scribing the score on sheet music! Yeah right...probably put together some hooks, samples, and mixed it all together. But what does OTCS know? Who has the inside scoop?

Fact is: if you are going to work in the music industry, especially rap & hip-hop, get everything in writing! Otherwise, your boy will start playing games on you...

[Ryan Lessem; Douglas Johnson v. Jayceon Terrell Taylor p.k.a. The Game; UMG Recordings Inc.; Universal Music Group Inc.; Interscope Records Inc.; Lastrada Entertainment Co. Ltd.; Sony/ATV Music Publishing LLC; Universal Music Corp.; Warner Chappell Music Inc.; Music of Windswept; Black Wall St. Publishing LLC11/27/2007 07 CV-10601 ]

Working Class Hero

Capitol Records (EMI) announced that a new John Lennon video album will be released, in collaboration with iTunes, at Starbucks locations around the US. But buyers beware, it is not the actual album/DVD that will be sold at the coffee giant. Rather, it will be a "card", which will be redeemable on iTunes to download the music videos. Think of it as a gift-certificate, for the limited purpose of buying one item on-line.

This seems like very clever marketing, and OTCS approves. The cards will be "collectable" and feature various images of Lennon. And because it is being released during the holiday shopping bonanza, consumers are likely to grab these up along with all the other gift certificates they will already be buying (and not have to carry around all day!).

The real question is: does this create a conflict of interest with Starbucks' Hear Music record label? More poignent is the fact that Paul McCartney, Lennon's former band-mate in The Beatles, is the Hear Music label's signature artist. Notwithstanding any contract disputes with McCartney's former label (EMI), what benefit is there to joining Hear Music if your old label can sell compilations in the same limited venue, with nifty packaging that benefits both your old label, and your former opposition in a trademark dispute (Apple iTunes / Apple Records Ltd.)?

The Luck of Lucien

Yo, "-Tip", what's wrong with Snails?

Today, the French government signed an agreement with content industries and ISP providers, where a centralized authority will receive complaints from content owners and will send messages via ISPs to end users infringing copyright. (Financial Times article; New York Times Article.) Under the agreement, ISPs will issue warning messages to internet users allegedly downloading files illegally. If users ignore those messages, their accounts could be suspended or closed altogether.

According to French President Sarkozy, this is "the advent of a civilised internet". The roots of this groundbreaking effort are in the Olivennes Commission.

What does this mean for private enforcement of intellectual property rights, like the USA's "notice and take-down" requirements under the DMCA?

50 Ways to Leave Your Lover

OTCS is celebrating its 50th posting! Thank you to our loyal readers for your continued support. OTCS looks forward to providing you with all the "legal news and music blues" in the days and years to come.

P2P Infringer Identified Beyond Mere IP Address

In this copyright infringement case filed in the US District Court District of Nevada, the defendants were identified -- beyond their mere IP address -- for alleged unauthorized distribution of 728 sound recordings over a P2P network in September 2005. Notably, the complaint (Exhibit A) only lists one sound-recording per plaintiff (record label), with the corresponding "SR #" (i.e., copyright registration), instead of each of the alleged 728 infringements.

Two things are of interest to OTCS. First, the complaint explains to the court in two paragraphs the technology behind P2P and IP addresses. Second, why the 2+ year delay in filing suit? Were the parties negotiating, or were they just asleep at the wheel?

[Elektra Entertainment Group Inc. et al v. Jaqueline Meredith Walton; 2:07-cv-01557-RCJ-GWF; filed 11/21/2007]

Here is a nearly identical complaint, filed in the District of Massachusetts, for the alleged infringement of 300+ sound recordings in November 2005 over the Kazaa P2P network. Again, the plaintiffs (record labels) spend a mere two paragraphs on P2P/IP addresses, waited 2+ years to file suit (who uses Kazaa anymore?), and only listed 5 sound recordings (Exhibit A, with corresponding copyright registrations) instead of each of the alleged 300+ infringements.

[Virgin Records America, Inc. et al v. Dobson; 1:07-cv-12176-NG; filed 11/21/07]

Paradise by the Dashboard Light

Steve Popovich, founder of Cleveland International Records, won a federal appeal upholding a jury's deicison to award him more than $5mil. after a contract dispute with Sony Music. Cleveland Int'l Records introduced the world to the artist Meat Loaf, whose "Bat Out of Hell" album has sold a reported 43 million copies worldwide since its 1977 release.

Meat Loaf was signed to Cleveland Int'l and Sony eventually acquired the rights to the album. (Epic Records > CBS > Sony.) In 1995, Popovich sued Sony for unpaid royalties and settled out of court for a reported $7mil. As part of the settlement, Sony agreed to include the Cleveland Int'l Records logo on reissues of "Bat Out of Hell". When Sony failed to include the logo, Popovich sued again. After a federal jury awarded Popovich $5mil in damages, the appellate court affirmed. Further, the appellate deciions permits Popovich to pursue, on remand, damages for possible breach by Sony outside of the original limited geographic scope of the Settlement.

Yahoo! Gehzundheit!

Yahoo partners with Sony BMG to allow users to incorporate recordings into their homemade videos.

Blood Sugar Sex Lawsuit

Leave it to the Cleveland Plain Dealer to call the following to OTCS's attention:

The Red Hot Chili Peppers filed suit against Showtime Networks over the name of the TV series "Californication." "Californication" is the title to one of the bands most commercially successful albums, and the title-track single to the album, both released in 1999. (Lead singer Anthony Kedis asserts that "'Californication' is the signature CD, video and song of the band's career..."

OTCS, though it disagrees with Mr. Kedis's assertion ("Under the Bridge"?!), does believe the suit has merit. As a unique album and song name, viewers of the Showtime series are surely likely to confuse the source/origin of the show; or, believe that the Red Hot Chili Peppers somehow endorse or are affiliated with it.

Bolstering the Red Hot Chili Peppers (intent = higher measure of damages) is the fact that a character on the program is named "Dani California", which is also the title to a Chile Peppers song released in 2006.

OTCS can practically smell an injunction brewing...or maybe that is just tomorrow's turkey?

Sit Here Counting Crows

Another day, another BMI lawsuit for copyright infringement based on the public performance right.

The only thing of interest here is a named plaintiff: OTCS fav - Counting Crows. OTCS's can't help but wonder whether there is a a piece of Maria in every complaint that they sing?

[Broadcast Music Inc.; Songs of Universal Inc.; EMI Virgin Songs Inc.; Ken Adamay; Rick Nielson; Brad Carlson; Robin Zander; Tom Peterson; Screen Gems-EMI Music Inc.; Jonathan Siebles; Tony Fagenson; James Collins; Paul Simon; EMI Blackwood Music Inc.; Counting Crows LLC; Robert Kuykendall; Richard Ream Bruce Johannesson; Bret Sychak v. Gotham Yard Corp. d.b.a. Session 73; Peter Thomas; Hunter Hulshizer; Joseph Grillo. 11/16/2007; 07 CV-10373]

Cadillac Grills

When Ludacris and Usher join forces, you know you're in about as much trouble as being caught in the middle of the former Jay-Z/Nas dispute. Mr. Bridges (pka Lud. appearing on Def Jam label) and Mr. Raymond IV (pka Usher appearing on La Face label) sued TVT Records, amongst others, in the Southern District of New York for "unlawful use" of plaintiffs' musical contributions to the recordings IN DA CLUB and LOVERS AND FRIENDS (i.e., copyright infringement).

What's going on here? OTCS suspects this could have been avoided by a mere sampling agreement early in the recording process. What's the word on the street?

[Christopher Bridges p.k.a. Ludacris; Usher Raymond IV p.k.a. Usher; Disturbing Tha Peace Entertainment Inc.; Fast Pace Inc. v. Teevee Toons Inc.; TVT Records LLC; BME Enterprises LLC; BME Recordings LLC; Jonathan Smith. 11/15/2007; 07 CV-10369]

Darrin James Band + Astrograss

The Darrin James Band plays Jalopy Theater in Red Hook, Brooklyn, New York Friday night. Astrograss (who include Jordan Shapiro, pianist for DJB) opens. OTCS hears rumors...will they be confirmed?

Online Storage/Locker

This looks interesting: MP3tunes, a company that appears to store your already PURCHASED music on-line, sued by the recording industry. The company offers users a "locker" with unlimited storage and streaming of music, enabling users to listen to their music on any computer, anywhere.

If the user has already purchased the music, what's the problem here? OTCS, regrettably, has not yet read the complaint. However, OTCS assumes this is a section 106 copying claim. Is this what the Copyright Act should protect? How is this any different than a purchaser taking their Case Logic book of CDs from their home-stereo, to their car, to their friend's home, to the office etc.? Music is mobile, and once purchased in one-format (e.g., MP3, 8-track) users should be able to enjoy the music on the corresponding playing -- no matter where. Aren't the labels trying to double-dip?

[Capitol Records Inc.; Caroline Records Inc.; EMI Christian Music Group Inc.; Priority Records LLC; Virgin Records America Inc.; Beechwood Music Corp.; Colgems-EMI Music Inc.; EMI April Music Inc.; EMI Blackwood Music; EMI Full Keel Music; EMI Golden Torch Music Corp.; EMI Longitude Music; EMI Virgin Music Inc.; EMI Virgin Songs Inc. v. MP3Tunes LLC; Michael Robertson. Filed S.D.N.Y. 11/9/2007; 07 CV-9931]

Bay City Infringers...errr, Rollers

Cookie cutter public performance / copyright infringement case filed against "Bay City Michael's Club" in S.Tex.

[Broadcast Music, Inc. et al v. Bay City Michael's Club et al., Case 3:07-cv-00531; filed 11/06/2007]

8 "Does" A Week

Be wary, John Does. The Recording Industry is coming after you (at least in western Missouri) for copyright infringement on the web (e.g., "online media distribution system") and hoping to discover your true identity based on your IP address alone. Wasn't it just so much easier to identify people when we had Naptster?

[Elektra Entertainment Group, Inc. et al v. Does 1-8, 4:07-cv-00825-JTM, filed 10/30/2007, W.Missouri]

You Can Get Anything You Want at Alice's Restaurant

Last week, it was Jay-Z's 40-40 Club.

This week...its DIDDY's Justin's Restaurant, where plaintiff/patron was assaulted by another drunk patron on the premises.

[Tanique Nelson v. Bad Boy Entertainment Inc.; Jessie Smalls Restaurant Inc. dba Justins; Justins Restaurant Inc.; John Doe (N.Y.Supreme Court, 10/31/2007 07-114588 )]

The Tables Have Turned

ASCAP, King Copyright Plaintiff, getting a taste of its own medicine? OTCS is intrigued...especially considering the plaintiff is acting pro se.

[Keith Thomas v. ASCAP; Does 1-2 (10/23/2007 07 CV-9437 )]

Ain't Too Proud to Beg

OTCS knows that Papa Was a Rolling Stone, but Get Ready- artists touring/performing as THE LEGENDARY LEAD SINGERS OF THE TEMPTATIONS, and then filing a declaratory judgment action to establish that use of the mark does not infringe upon Defendant's trademark rights. Are any of these "legendary lead singers" part of the "Classic 5 era"?

[Glenn Leonard; Barrington Henderson v. UMG Recordings Inc.; Star Direction; Int'l. Creative Mgmt. Inc.; Otis Williams10/29/2007 07 CV-9597. S.D.N.Y.]

Well I Just Had to Laugh / I Saw the Photograph

I read the news today, oh boy, about a luck man... sued in the SDNY for unlawful use (copyright infringement) of original photographs of the Fab Four.

There is a lot of money to be made in original photographs (and even prints) of classic rock stars.

[Gary Schaeffer v. Lightyear Entertainment LP; Arnold Holland; Don Speilvogeo; Joel Kaplan10/29/2007 07 CV-9607]

All Shook Up

Broadway, New York, New York. If OTCS can make it here, OTCS can make it anywhere!

This just filed in New York County (Manhattan) Supreme Court - a $14 million complaint for breach of contract in relation to a Broadway show entitled "All Shook Up". MERCY! (Can anyone confirm a prior Elvis musical on B'way called "Blue Suede Shoes?)

OTCS supposes this type of suit was inevitable after the successes (Jersey Boys) and failures (that J. Lennon musical that opened for about a month last year) of the rock-musical on Broadway.

[All Shook Up Limited Partnership v. The Promenade Trust; CKX Inc.; Elvis Presley Enterprises LLC; Elvis Presley Enterprises Inc.; Estate of Julian Aberbach; Susan Aberbach; Does 1-1010/29/2007 07-603581]

A Little Bit Softer Now

Here's an interesting idea: start pre-selling an album on-line with an initial price point of, for example, $15, and the more people that order before the release date, the lower the price-point drops (with a floor of, for example, $5). Those who originally ordered with a higher price than the final price point get the benefit of the lower price! (Cliff Richards, UK release of "Love, the Album" on EMI)

Is this Amie Street in reverse? At the very least, it is a good way of measuring what music is actually worth to the consumer. But who will be the first person to order the pre-release without a guarantee that the price will drop? At least with Amie Street, you KNOW the price you are ultimately going to pay, because it is in real time.

All The Birds Will Be Singin'

Willie Nelson, "flipping the bird" (i.e., giving his middle finger) in a photograph, is the center of a copyright infringement suit filed in Sacramento. Spencer's Gifts, of shopping-mall fame, has been selling T-Shirts at its physical outlets and online that have a copyrighted image of Nelson imposed thereon. (Article at MSNBC).







Does W. Nelson have any claims of his own? Privacy, name and likeness etc?

R(ather) I(nteresting) A(rticle) A(ttached)

The New York Law Journal has an interesting article today about the RIAA chasing student infringers on college campuses. The article examines the University/Student relationship (in terms of privacy), and outlines policy concerns over both (i) the RIAA's actions, and (ii)the willingness of academic institutions to comply with discovery requests issued by the RIAA in John Doe infringement suits.

Also, the author draws a parallel between the RIAA's accusations against students for infringement (in their demand letters) and the Debtor/Creditor relationship. The article examines New York, California, and Federal law governing creditor practices.

[Donald N. David, "Privacy Needs Key Despite Music Piracy on Campuses"]

'Steada Kisses, We Get Kicked / It's a Hard Knock Life

Shawn Carter a/k/a Jay-Z sued in New York Supreme Court (NY County/Manhattan) for employment discrimination on the basis of gender and disability. Folake Ogundiran (plaintiff) was a former sales associate for Jay-Z at his 40/40 Club, but was allegedly fired after she became pregnant. Apparently, pregnancy doesn't fit the "unattached and 'sexy'" image the 40/40 Club allegedly embraces. Now THAT'S Baller.

Climbing Up on Salisbury Division (eh, Solsbury Hill)...

Maybe it's because OTCS is still a rookie covering the beat, but it sure seems like there are a lot of copyright suits against pubs/bars/taverns/places of business for public entertainment for infringement of the public performance right.

Again, the publishers are just upset that the Defendants haven't obtained an ASCAP license. (Compl. 15(a)-(b) "Defendants have not sought or obtained a license agreement from Plaintiffs of [ASCA]...Despite numerous letters and other contacts by ASCAP representatives informing the Defendants of their liability...") Scaring them with statutory damages should do the trick (17 U.S.C. 504(c)).

Mark another one on the docket, WB Music et al. v. K Carlson Enterprises, Inc. and Karen Reeder Carlson, 1:07-cv-00797-WO-PTS (Mid.Dist. N.C.). Looks to be rather cookie-cutter, with an attached spreadsheet outlining each Plaintiff's copyrighted work (e.g., who owns, registration no.), which performance/version was infringed, and the date of such infringement.

Ramble On...

Robert Plant asserts that the upcoming Led Zeppelin performance (Ahmet Ertugen Tribute Nov. 26 in London) will NOT be the launching ground of a Led Zeppelin tour.

I suppose when you make enough money on album sales (exclusively in the physical realm, no less!), public performance on the radio (what city doesn't have a Led Zeppelin/Pink Floyd channel? WNCX baby!), & merchandise etc....AND you haven't recorded new material as a band since at least 1982's "Coda"... you can turn away a gold-mine...?!

This Is What You Get, When You Mess With Us...

More Radiohead news: the band, in its post EMI days, continues to shun major labels. Among other news outlest, the New York Times reports:

Under the proposed deal, Radiohead would license the album, “In Rainbows,” for a specified period of time but retain ownership of the recording.

Take that "360 degree" deal! A band, retaining its copyright ownership in its work? What? What?! What?!?

Of course, it appears that the Licensee will be a traditional label, so not much new in terms of distribution and earning revenue off traditional products like CDs and mp3s. The #1 candidate on the radar right now for a US licensee is ATO Records, and though not a "major" US label, ATO certainly has its share of high-profile artists (e.g., David Gray, Ben Kweller).

After the Show it's the Afterparty, After the Party it's the...Wafflehouse

OTCS is not a gossip blog. In fact, OTCS focuses mostly on civil litigation and private deals in the music business. But, to everything turn, turn, turn...to the world of criminal law.

Kid-Rock (and members of his entourage) arrested in the early morning hours (5 AM; 10/21/07) for brawling at a Waffle-House Restaurant after his performance in Atlanta on Sunday.

SonyBMG-MySpace Licensing Deal

SonyBMG is licensing its artists materials to MySpace for a cut of the sponsorship & ad-revenue generated from the music videos and profile pages.

What does this mean to you, the consumer? Nothing really. OTCS suspects that a very small % of bands on MySpace are signed to a SonyBMG label, and those that are, OTCS suspects were already putting their music/video online anyway.

But mazel to SonyBMG for figuring out a way to monetize this avenue of communication. Of course, the financial terms of the deal were not disclosed...so whether or not it is successful, only time will tell.

Wannabe...Our Distributor?

OTCS can't believe we missed this one:

Victoria's Secret, the women's lingerie retailer, will be the EXCLUSIVE DISTRIBUTOR of the Spice Girl's soon-to-be-released (Nov. 12) "Greatest Hits" compilation (EMI).

Not sure this is as ground-breaking as last week's Madonna/Live Nation deal, or the Radiohead In Rainbows name-your-own-price model, but an interesting example of a major label seeking revenue from alternative sources. However, OTCS questions how many men will walk into a Victoria's Secret just to buy the album? How will EMI promote this to customers (e.g., men) who do not regularly shop - for either apparel or music - in Victoria's Secret? Victoria's Secret clearly is not the same type of retailer as Starbucks, who draw in a much more diverse demographic of customers to purchase albums on their HearMusic label.

Also interesting, what cut is Victoria's Secret taking on album sales? Or maybe they get their cut on the up-coming Spice Girl's tour? Talk to me people...

Nate Dogg and Warren G Came to Regulate...

ASCAP IS WATCHING.

OTCS has to wonder whether the defendants in the following two related cases would even be subject to an infringement suit had they never even obtained an ASCAP license for the public performance of copyrighted works (music publishing) in the first place? It appears that, AS A RESULT OF THEIR FAILURE TO RENEW THEIR LICENSES, Defendants were sued for infringement of the 106-public-performance right.

This "jukebox" case seems to just be a strong-arm tactic to get the venues (defendants) to re-sign their ASCAP licenses: suit was brought on ONE SONG by each plaintiff/publisher, for ONE PUBLIC PERFORMANCE occuring on one of two days in June 2007. [OTCS has a place in its electronic-heart for the songs selected: "Puff the Magic Dragon", "Hello" performed by Lionel Ritchie, and "Bad Bad Leroy Brown".]

Of course, with statutory damages, this suit should scare defendants into signing their ASCAP licenses; but, aren't there bigger fish to fry (instead of just polling a tavern on a single day)? Maybe not in Arizona...?

EMI Mills Music, Inc. et al v. Kim Dar Enterprises, Inc. et al. 2:07-cv-02030-HRH (filed 10/19/2007, District Court Arizona)
Criterion Music Corp. et al v. Vagabundo Inc. et al. 2:07-cv-02036-DGC (filed 10/19/2007, District Court Arizona)

These Days

Looks like OTCS picked a good week to get in this business! Hey, if Entertainment Weekly gives it the thumbs up, the timing couldn't be better.

Thanks to all the readers out there - you're small in number and we hope to grow. Advice, suggestions, and of course BREAKING TIPS are all welcome.

I'm Talking to the Man in the Mirror...

A bad day for 30 John Does, alleged to have “continuously used…an online media distribution system to download and/or distribute to the public certain of the Copyrighted Recordings.”

Plaintiff’s have attached a list of ISP addresses to help identify defendants, but still, could this be any more vague?

Loud Records LLC; Arista Records LLC; Atlantic Recording Corp.; BMG Music; Capitol Records Inc.; Elektra Entertainment Group Inc.; Fonovisa Inc.; Interscope Records; Laface Records LLC; Maverick Recording Co.; Motown Record Co. LP; Priority Records LLC; Sony BMG Music Entertainment; UMG Recordings Inc.; Virgin Records America Inc.; Warner Bros. Records Inc.; Zomba Recording LLC v. Does 1-30 [10/17/2007 07 CV-9291 ]


Not entirely clear why same attorney and same parties filed a VIRTUALLY IDENTICAL complaint against a single John Doe in Capitol Records Inc.; Arista Records LLC; Warner Bros. Records Inc. v. John Doe [10/17/2007 07 CV-9292]?

Europeans prefer a la carte.

CMJ: Europeans prefer a la carte downloads (e.g., iTunes). Japanese and Americans dig subscription (e.g., Napster). Discuss...

Show of hands here among lawyers at CMJ? A la carte wins by a landslide.

Want recording royalties over seas?

CMJ: Want SOUND RECORDING royalties over seas? Have a band member with a dual passport. (A. Erk CPA) (see previous post)

Royalty auditor. Your best friend?

CMJ: Royalty auditor. Your best friend or worst enemy... Show me the money! But digital is still opaque...

Chin Puts DVR on Notice

CMJ: SDNY Judge Honorable Denny Chin puts DVR on notice.

Safe Harbor No More?

CMJ: Perfect 10 on remand. A challenge to DMCA safe harbor by requiring affirmative steps to protect against infringement? I think big-media (e.g., Viacom v. YouTube) will say "It's about time!"

But, smarter minds offer brighter opinions (the following is a polling of great copyright minds):

(1) The more accepted view is that 512 safe harbor provisions trump the common law doctrines of secondary liability. Thus, assuming that Google has complied with all the Section 512 preconditions (ie notice and takedown, repeat offender policy, etc.) there really ought not to be liability for the Google Image search.

(2) The Court is focusing on Google AdSense. It is not at all clear that Adsense "activity" is protected under the "search engine" prong of 512(d). So you are back to "traditional" contributory/vicarious liability analysis for the AdSense program.

...of course, Google is in the land of the 9th Circuit, home to Silicon Valley.

Joking about jamie thomas. Single

Joking about jamie thomas. Single mother $240000 infringement. Actually pretty funny.

J. Salvo - Recent Copyright Round-Up

CMJ: J. Salvo, of Weil Gotshal, does copyright round up of recent cases. Does he want to write for OTCS?

Focus on 360 contract.

CMJ: Focus on 360 contract. A smart land grab? Or still just trying to break artists?

My Milkshake Tastes Much Better Than Yours...

Heading to CMJ tomorrow - can my mobile blogging compete with the NYTimes 8 postings in one day? You be the judge.

Hello. Is there anybody out there? Just Nod if you can...

Anyone out there (and I know there are some people out there...thank you Google Analytics) know what this case is about other than copyright infringement?

Robbins Entertainment LLC; Sony BMG Music Entertainment; Rocks LLC v. Koch Entertainment Distribution; Sheridan Square Entertainment Inc.; Musicrama Inc.
10/15/2007 (NY) 07 CV-9236

---
This just in. Complaint filed 10/15, entered 10/17...and on the 17th? Still no copies of the complaint online. What gives ECF? What gives?

Usenet sued

A united recording industry sues www.usenet.com for copyright infringment of original musical recordings.

[Arista Records LLC; Atlantic Recording Corp.; BMG Music; Capitol Records Inc.; Caroline Records Inc.; Elektra Entertainment Group Inc.; Interscope Records; Laface Records LLC; Maverick Recording Co.; Sony BMG Music Entertainment; UMG Recordings Inc.; Virgin Records America Inc.; Warner Bros. Records Inc.; Zomba Recording LLC v. Usenet.com Inc. Filed 10/11/2007; 07 CV-8822]

GoWanus Young Man!

DJ Small Change introduces OTCS to Serato "Scratchlive" at The Yard on the Gowanus Canal in Brooklyn, NY...OTCS, while intrigued, questions whether this qualifies for a public performance for the collection societies?

Come Sail Away...

Bread and butter forum non conveniens analysis in unpaid royalty suit amongst publishers.

Crosstown Songs U.K. Limited v. Spirit Music Group Inc., 07 Civ. 2080; decided: October 4, 2007 (S.D.N.Y.)

OMG - CMJ!

Eagerly awaiting CMJ. Like the parking lot at a Grateful Dead show, I must ask "Who's got 1?"

All Things Must...Be Released Digitally

EMI announced the digital release of George Harrison's solo catalogue, meaning that all four Beatles' solo catalogues are now available digitally.

Now, if EMI could only figure out how to lure Macca back from HearMusic (i.e., what you are currently listening to in Starbucks.)

Ain't that a Kick in the Head...

The Rat Pack (or at least the modern Las Vegas reincarnation of them) was sued by song-writers of "Ain't that a Kick in the Head", "Everybody Loves Somebody", and "Come Fly with Me" for copyright infringement of the compositions. (Alleged infringement occurred during performances of the Rat Pack Show at the Greek Isles Hotel & Casino, and sale of associated CDs.)

What's the commotion, eh? WHAT'S THE COMMOTION?!

[Barton Music Corp. v. TRP Entertainment, LLC et al., 07-cv-01361-BES-PAL, filed Oct. 9, 2007, D.C. Nev.]

Madge Moves On; Makes Money

My, oh my! Madge!

As the WSJ reports this morning, Madonna is leaving her record label, Warner Bros. Records, for...the concert promoter Live Nation? Yes, the very same Live Nation that clogs your in-box with Concert Updates, but that you don't unsubscribe from on the off-chance you can catch a gem, has now put on the record-label hat.

While I advocate challenges to the existing record-label model, I am curious how Live Nation will successfully be able to sell new Madonna albums. T-shirts - $25. Limited Edition Poster - $40. New Madonna CD - $50. Will people take the bait?

WSJ notes that:

It isn't clear when her first album for Live Nation would be delivered, nor is it clear how the promoter would distribute and promote the album, since the company has limited infrastructure to do so....People briefed on the deal speculated that Live Nation would enter a licensing arrangement with one or more traditional labels to release her albums.

No, it isn't clear.

Also, how much of a shock to the industry is this really? Madge is Madge, but how many other acts out there would (a) be able to afford lawyers to negotiate this kind of deal, (b) even be considered for this kind of deal, and/or (c) opt to venture into "virgin" territory? We all know that the real money for artists is in touring, and that big artists don't even really need labels if they have the built in fan-base. (Radiohead itself just released its new album exclusively on its website. See also Jeff Leeds, "In Radiohead Price Plan, Some See a Movement", New York Times (10/11/07 - Music) ("Radiohead is in a position that can’t easily be replicated — it completed its long-term recording contract with the music giant EMI while retaining a big audience of obsessive fans")).

But still - how plausible is this for the little...or even the medium...guy?

So mazel tov Madge, on a job well-done. But whether others will follow this Oregon Trail...I doubt it.

Mary J., Pay to Play

New York Law Journal reports (10/9) that Ms. Blige is not above the law. Blige and others were sued for copyright infringement by song-writer -- who happened to be co-author of the work with Blige's step-father. On the eve of the step-father's deposition, he transferred his rights to another defendant in the case, taking the position that one co-author cannot sue another co-author for infringement. ("Retroactive" transfer to infringer.) Sneaky...

...but no. The Second Circuit shot down the scheme.

If the Court had gone the other way, a giant loop-hole would have existed for successful artists/infringers to buy-out non-party co-authors, and in my humble opinion, defeating justice.

[Davis v. Blige, 05-6844-cv]

Welcome back my friends to the show that never ends...

We're so glad you could attend
Come inside! Come inside!

There behind a glass is a real blade of grass
be careful as you pass.
Move along! Move along!

Come inside, the show's about to start
guaranteed to blow your head apart

Rest assured you'll get your money's worth
The greatest show in Heaven, Hell or Earth.
You've got to see the show, it's a dynamo.
You've got to see the show, it's rock and roll ...

Right before your eyes we pull laughter from the skies
And he laughs until he cries
then he dies then he dies

Come inside the shows about to start
Guaranteed to blow your head apart
You gotta see the show
It's a dynamo
You gotta see the show
It's rock and roll

[Emerson Lake & Palmer, Brain Salad Surgery, "Karn Evil 9 - 1st Impression, Part 2" (1973)]