Billboard drops this bomb before the holiday (Purim, Easter, Persian New Year etc.) weekend:
Apple Corps and Apple Records have just filed a federal lawsuit in Miami in an attempt to stop bootleg recordings from the Star-Club in Germany from being released to the public.
Background from OTCS here.
As of this posting, papers are not yet available online. But, you can expect OTCS to follow this one closely...
March 21, 2008
March 20, 2008
Momofuku
Rolling Stone reports:
Elvis Costello’s new album Momofuku will hit shelves April 22nd. One catch, though: the album will only be released on vinyl, which will be accompanied by a voucher for a digital download. No other details — like a tracklist, a producer or what the album title means — were announced.
1. Momofuku means "lucky peach".
2. Momofuku is also the name of a number of restaurants in New York City. Possible trademark issue? Consider McDonald's cases... [Eds. **UPDATE** 3/24/08 -- Trademark issue averted; owner of Momofuku restaurants is mind blown by the album title...in a good way!]
March 19, 2008
Apple and "Subscription" - In the Same Sentence?
The Financial Times reports:
Called an "all you can eat" model. Who knew the record industry was turning into an Old Country Buffet?
Apple is in discussions with the big music companies about a radical new business model that would give customers unlimited access to its entire iTunes music library in exchange for paying a premium for its iPod and iPhone devices.
Called an "all you can eat" model. Who knew the record industry was turning into an Old Country Buffet?
March 18, 2008
Pro Se Can You See?
You will want to read the complaint, filed by plaintiff appearing pro se, in this action: Duncan v. Universal Music Group et al., No. 08 cv 2762 (S.D.N.Y. complaint filed Mar. 14, 2008). [Request a copy from OTCS.]
A sample [all sic]:
That as a pupil I experienced racism and I suspected that I was being watched and under surveillance both professionally and domestically. I tried to avoid conflict however the stress became severe and I converted to Christianity in 1993.
As a way to relieve stress I sant to myself and became increasingly creative. As part of my devotional time and personal worship I wrote and composed many gospel songs.
That during this period of extreme stress I openly expressed the hope that my songs would be recorded by certain established vocalists and recording artists. I indicated whose these artists were, and made certain stipulation with respect to my work, contained in the Terms of License below. [Eds.: Note the following "terms": "Permission was granted for songs to be recorded and released over a period of years to facilitate the restoration to health of the Plaintiff and to build the Kingdom of God and for the work of the Lord to continue...That in the case of income derived from collections in the United States of America a portion was to be invested in then non existent companies to include Amazon, Yahoo, Ebay, Crocs, Liberty Media...]
That at no time did I intend to party with my legal interest as copyright owner of these songs. Further at no time did I sign any document transferring an or any whole or in ipart of an interest in the songs to anyone or any organization.
...amazing...
A sample [all sic]:
That as a pupil I experienced racism and I suspected that I was being watched and under surveillance both professionally and domestically. I tried to avoid conflict however the stress became severe and I converted to Christianity in 1993.
As a way to relieve stress I sant to myself and became increasingly creative. As part of my devotional time and personal worship I wrote and composed many gospel songs.
That during this period of extreme stress I openly expressed the hope that my songs would be recorded by certain established vocalists and recording artists. I indicated whose these artists were, and made certain stipulation with respect to my work, contained in the Terms of License below. [Eds.: Note the following "terms": "Permission was granted for songs to be recorded and released over a period of years to facilitate the restoration to health of the Plaintiff and to build the Kingdom of God and for the work of the Lord to continue...That in the case of income derived from collections in the United States of America a portion was to be invested in then non existent companies to include Amazon, Yahoo, Ebay, Crocs, Liberty Media...]
That at no time did I intend to party with my legal interest as copyright owner of these songs. Further at no time did I sign any document transferring an or any whole or in ipart of an interest in the songs to anyone or any organization.
...amazing...
Amazon Faces False Attribution Claim in Infringement Suit For Unauthorized Digital Downloads
In Taylor v. Amazon.com et al., No. 2:08-cv-00061-wks (D. Vermont filed Mar. 17, 2008), the core of plaintiff's claim is:
Defendants have placed on their website and have offered for sale MP3 files of the thirteen sound recordings Plaintiff created which QuiXote Music pressed and marketed [with authorization from plaintiff, pursuant to a written agreement] ... The page on Defendants' website falsely indicates the copyright in [sound recording and composition] as being "(c) 2008 QuiXote". [However,] the compact discs pressed and marketed [with written authorization] by QuiXote Music beginning in 2001 bear multiple clear indications that the copyright in [the sound recordings and compositions] belong to Plaintiff.
Nowhere on the compact discs pressed and marketed by QuiXote Music is there any representation that the copyright in Cheshire Tree Suite belongs to QuiXote Music. On information and belief, QuiXote Music has never represented that it owns the copyright in [the sound recording and compositions]. [Eds: This may explain why QuiXote, the European based manufacturer and distributor of the album, is not a party to this suit.]
Thus, notwithstanding the basic infringement allegation (unauthorized sale of the sound recording via defendants' online digital music store), the central theme of Plaintiff's complaint is a moral rights theory of false attribution. In addition to the above quoted material, the theme of a moral rights claim as central to this action is buttressed by plaintiff's allegations of "deliberate misstatement of copyright ownership", and reference to the Berne Convention as a source of protection.
Nonetheless, Plaintiff's demand for relief is limited to an injunction prohibiting Defendants "from the infringement and unauthorized use of Plaintiff's copyright."
Several Observations and Comments:
(1) Plaintiff does not specify whether the sound recordings and/or compositions are registered. Rather than list (or include as an exhibit) any SR registration number, Plaintiff merely alleges that the works "are protected under the Untied States Code, including without limitation the Copyright Act of 1976 and the Digital Millennium Copyright Act." If unregistered, Plaintiff's claim has a fatal problem (17 U.S.C. 411). (Alternatively, her demand for fees and statutory damages may be barred, 17 U.S.C. 412. Homkow v. Musika Records Inc., No. 04 Civ. 3587, N.Y.L.J. "Decision of the Day", Mar. 17, 2008 (S.D.N.Y. decided Feb. 25, 2008)). Notable, however, is the filing of an AO Form 121 mailed to the Register of Copyright pursuant to 17 U.S.C. 508. This form, entitled "Report on the Filing or Determination of an Action or Appeal Regarding a Copyright", presumably was filed with the relevant Registration Numbers, i.e., not left blank? (However, a search of the Copyright Office's public catalogue did not find any relevant SRs.)
(2) What is the process by which digital music stores obtain information regarding copyright ownership?
(3) Where is the European label? Review of Plaintiff's agreement with QuiXote Music would seem highly relevant to whether Plaintiff granted the label authorization to distribute the sound recordings in intangible electronic or digital form, e.g., MP3?
Defendants have placed on their website and have offered for sale MP3 files of the thirteen sound recordings Plaintiff created which QuiXote Music pressed and marketed [with authorization from plaintiff, pursuant to a written agreement] ... The page on Defendants' website falsely indicates the copyright in [sound recording and composition] as being "(c) 2008 QuiXote". [However,] the compact discs pressed and marketed [with written authorization] by QuiXote Music beginning in 2001 bear multiple clear indications that the copyright in [the sound recordings and compositions] belong to Plaintiff.
Nowhere on the compact discs pressed and marketed by QuiXote Music is there any representation that the copyright in Cheshire Tree Suite belongs to QuiXote Music. On information and belief, QuiXote Music has never represented that it owns the copyright in [the sound recording and compositions]. [Eds: This may explain why QuiXote, the European based manufacturer and distributor of the album, is not a party to this suit.]
Thus, notwithstanding the basic infringement allegation (unauthorized sale of the sound recording via defendants' online digital music store), the central theme of Plaintiff's complaint is a moral rights theory of false attribution. In addition to the above quoted material, the theme of a moral rights claim as central to this action is buttressed by plaintiff's allegations of "deliberate misstatement of copyright ownership", and reference to the Berne Convention as a source of protection.
Nonetheless, Plaintiff's demand for relief is limited to an injunction prohibiting Defendants "from the infringement and unauthorized use of Plaintiff's copyright."
Several Observations and Comments:
(1) Plaintiff does not specify whether the sound recordings and/or compositions are registered. Rather than list (or include as an exhibit) any SR registration number, Plaintiff merely alleges that the works "are protected under the Untied States Code, including without limitation the Copyright Act of 1976 and the Digital Millennium Copyright Act." If unregistered, Plaintiff's claim has a fatal problem (17 U.S.C. 411). (Alternatively, her demand for fees and statutory damages may be barred, 17 U.S.C. 412. Homkow v. Musika Records Inc., No. 04 Civ. 3587, N.Y.L.J. "Decision of the Day", Mar. 17, 2008 (S.D.N.Y. decided Feb. 25, 2008)). Notable, however, is the filing of an AO Form 121 mailed to the Register of Copyright pursuant to 17 U.S.C. 508. This form, entitled "Report on the Filing or Determination of an Action or Appeal Regarding a Copyright", presumably was filed with the relevant Registration Numbers, i.e., not left blank? (However, a search of the Copyright Office's public catalogue did not find any relevant SRs.)
(2) What is the process by which digital music stores obtain information regarding copyright ownership?
(3) Where is the European label? Review of Plaintiff's agreement with QuiXote Music would seem highly relevant to whether Plaintiff granted the label authorization to distribute the sound recordings in intangible electronic or digital form, e.g., MP3?
March 17, 2008
'Monetizing the Anarchy'
The "idea is to collect a fee from internet service providers -- something like $5 per user per month -- and put it into a pool that would be used to compensate songwriters, performers, publishers and music labels".
In the end, won't such a surcharge ultimately be passed onto the end-user, i.e., all internet users are paying a $5/mo. fee to the record industry?
In the end, won't such a surcharge ultimately be passed onto the end-user, i.e., all internet users are paying a $5/mo. fee to the record industry?
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