June 3, 2008
Bit-Torrent Users Arrested in UK
"British Police Confirm Six OiNK Users Arrested" (six individuals were arrested in connection with the uploading of pre-release music; two for the alleged uploading of a single album)
June 1, 2008
DMCA: Prince Blocks YouTube Video of 'Creep' Cover
Here's an interesting question under the Digital Millennium Copyright Act:
Prince performs a cover of the Radiohead break-out hit "Creep" at the Coachella Music Festival. Fans post video of the public performance on YouTube. After already receiving thousands of hits, YouTube removes the video at Prince's label's request; however, Radiohead wants YouTube to "unblock" the video. What does YouTube do?
Billboard addressed the issue: Observing first that "the posted videos were shot by fans and, obviously, the song isn't Prince's", Billboard continues, "Whether the same [DMCA notice] could be done for a company not holding a copyright is less clear, but Yorke's argument would seem to bear some credence according to YouTube's policies".
So, notwithstanding your views on the DMCA, who has priority under the notice and take-down scheme -- the owner of copyright in the sound recording (Prince), or the owner of copyright in the underlying composition (Radiohead)?
Because this was a live performance, it is highly unlikely that there was any sort of publisher/performer agreement other than the public performance license (compositions) the venue pays.
Another tangential issue is Prince's right of publicity/privacy. Most performers prohibit video/flash-camera at their concerts, and in fact, Prince prohibited the standard arrangement of allowing photographers to shoot near the stage during the first three songs of his set. Instead, he had a camera crew filming his performance.
But, rights of privacy/publicity are state laws, and though related, do not come under the Copyright Act's umbrella.
[Update: Marty Schwimmer's post on the Trademark blog re: this "law school fact patter"]
Prince performs a cover of the Radiohead break-out hit "Creep" at the Coachella Music Festival. Fans post video of the public performance on YouTube. After already receiving thousands of hits, YouTube removes the video at Prince's label's request; however, Radiohead wants YouTube to "unblock" the video. What does YouTube do?
Billboard addressed the issue: Observing first that "the posted videos were shot by fans and, obviously, the song isn't Prince's", Billboard continues, "Whether the same [DMCA notice] could be done for a company not holding a copyright is less clear, but Yorke's argument would seem to bear some credence according to YouTube's policies".
So, notwithstanding your views on the DMCA, who has priority under the notice and take-down scheme -- the owner of copyright in the sound recording (Prince), or the owner of copyright in the underlying composition (Radiohead)?
Because this was a live performance, it is highly unlikely that there was any sort of publisher/performer agreement other than the public performance license (compositions) the venue pays.
Another tangential issue is Prince's right of publicity/privacy. Most performers prohibit video/flash-camera at their concerts, and in fact, Prince prohibited the standard arrangement of allowing photographers to shoot near the stage during the first three songs of his set. Instead, he had a camera crew filming his performance.
But, rights of privacy/publicity are state laws, and though related, do not come under the Copyright Act's umbrella.
[Update: Marty Schwimmer's post on the Trademark blog re: this "law school fact patter"]
May 29, 2008
New Source of Revenue: Archived Photos
Robert Levine, Sony Taps Into Photo Archive as a Resource During Hard Times, 5/29/08 New York Times (Music).
Summary -- The shelves at Sony’s New York headquarters hold decades of music history, which the company hopes to use to attract new revenue.
Summary -- The shelves at Sony’s New York headquarters hold decades of music history, which the company hopes to use to attract new revenue.
An Article Meant for This Blog?!
The Patry Copyright Blog pointed OTCS to the article Borrowing the Blues: Copyright and the Contexts of Robert Johnson, by Olufunmilayo Arewa (Northwestern University School of Law, Public Law Research Paper No. 08-19, May 13, 2008).
Patry's take on the article here.
Patry's take on the article here.
May 28, 2008
Viacom v. YouTube - Answer
Though not a "music case" per se, we venture to link to the Defendants' Answer in Viacom v. YouTube. The outcome of this case, without doubt, will have a tremendous impact on the world of copyright and in turn, the evolution of the music business in the digital age.
In reading the Answer, note that Defendants take the rare step of providing an introduction Rather than merely admit, deny, or d.k.i, Defendants offer a glimpse at their theory of the case.
Note also that Defendants assert twelve affirmative defenses. Although this case is pending in Federal Court in the Southern District of New York, in New York State courts (and especially the Second Department), one sentence affirmative defenses bereft of any factual support are subject to dismissal. Here, the affirmative defenses are one sentence and completely bereft of any factual support. [New York practioners: if you would like case citations, shoot an e-mail to OCTS.) Would Plaintiff's lawyers pursue such a motion, or would it be a waste of time, especially if Defendants can file an Amended Answer?
In reading the Answer, note that Defendants take the rare step of providing an introduction Rather than merely admit, deny, or d.k.i, Defendants offer a glimpse at their theory of the case.
Note also that Defendants assert twelve affirmative defenses. Although this case is pending in Federal Court in the Southern District of New York, in New York State courts (and especially the Second Department), one sentence affirmative defenses bereft of any factual support are subject to dismissal. Here, the affirmative defenses are one sentence and completely bereft of any factual support. [New York practioners: if you would like case citations, shoot an e-mail to OCTS.) Would Plaintiff's lawyers pursue such a motion, or would it be a waste of time, especially if Defendants can file an Amended Answer?
May 27, 2008
Sampling Suit - West, Common, & Redman
Rolling Stone reports:
Kanye West, Common, Method Man and Redman were all sued for sampling late jazz artist Joe Farrell’s 1974 song “Upon This Rock” without permission.
The case was filed in SDNY. Complaint below:
[Firrantello v. West et al., No. 08-cv-4785 (S.D.N.Y. filed 5/22/08)]
Kanye West, Common, Method Man and Redman were all sued for sampling late jazz artist Joe Farrell’s 1974 song “Upon This Rock” without permission.
The case was filed in SDNY. Complaint below:
[Firrantello v. West et al., No. 08-cv-4785 (S.D.N.Y. filed 5/22/08)]
Vacating DMX Order Where Improper Service
A $1.5mil judgment against DMX was vacated by a Maryland state court judge after finding that the rapper was not properly served process.
His lawyer argued that the defamation-claim plaintiff did not properly serve DMX with the lawsuit papers and was unaware of the case against him.
Any readers from Maryland, please feel free to drop a line on the service requirements under state law. In New York, service of process is governed by CPLR Article 3. For example, for service upon an individual, see CPLR 308. Also, under New York law and objection that the summons and complaint were not properly served is waived if, having raised such objection in a pleading, the objecting party does not moved for judgment on that ground within sixty days after serving the pleading. CPLR 3211(e).
His lawyer argued that the defamation-claim plaintiff did not properly serve DMX with the lawsuit papers and was unaware of the case against him.
Any readers from Maryland, please feel free to drop a line on the service requirements under state law. In New York, service of process is governed by CPLR Article 3. For example, for service upon an individual, see CPLR 308. Also, under New York law and objection that the summons and complaint were not properly served is waived if, having raised such objection in a pleading, the objecting party does not moved for judgment on that ground within sixty days after serving the pleading. CPLR 3211(e).
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