Five music copyright decisions you may have missed...
It’s been an eventful year for IP in the music industry, with cases that have embroiled some of the world’s biggest musicians regularly hitting the headlines.
In light of the US Supreme Court’s rejection of the Led Zeppelin case, WIPR has collected five other copyright developments that have rocked the music world (pun intended) so far this year.
- Not so ‘Sorry’ for sampling
Musicians Tracy Chapman and Nicki Minaj went head-to-head earlier this year over whether the act of sampling a song in the studio constitutes copyright infringement. Minaj, in September, emerged the victor (for now).
While working on her album “Queen”, Minaj collaborated with hip-hop artist Nas on the song “Sorry”, built around a sample of Tracy Chapman’s 1988 hit “Baby Can I Hold You”. But Chapman refused permission for Minaj to use the sample, so the song was dropped from the album.
Siding with Minaj, US District Judge Virginia Phillips concluded that Minaj’s experimentation with Chapman’s song constituted “fair use”.
Philips explained: “Artists usually experiment with works before seeking licences from rights holders and rights holders typically ask to see a proposed work before approving a licence. A ruling uprooting these common practices would limit creativity and stifle innovation within the music industry.”
However, a copy of the unreleased track was leaked to New York DJ Funkmaster Flex, who played it on his radio show. This dispute remains, and will go to jury trial. For more on the potential impact of this suit, click here.
- ‘Ghost’ members and royalty theft
Meanwhile, in Kenya, authorities have ordered board members of the country’s music copyright collectors to step aside after discovering alleged fraud and misuse of artists’ royalties.
According to the Kenya Copyright Board (KECOBO), the collective management organisations had kept “ghost” and duplicate members on their books and failed to keep proper records. That’s not all—according to the report, the organisations were also diverting royalties from artists.
Directors of KECOBO also submitted the report of a three-year audit to law enforcement for further investigation, with responses from the collective management organisations (CMOs) “not sufficient” to change the findings of an earlier draft report.
Now, the board will press ahead with reforms of Kenya’s music copyright system, which include mandatory, independent audits of the collective management organisations every three years.
- Correcting a ‘grave miscarriage of justice’
Unsurprisingly, Katy Perry’s $3 million “Dark Horse” victory makes the list. Perry fought off claims from Christian rapper Marcus Gray, who alleged that her song “Dark Horse” infringed the copyright of “Joyful Noise”.
But it wasn’t an easy win. Last summer, a Californian jury concluded that Perry’s song copied elements of Gray’s 2008 song “Joyful Noise” and awarded the rapper almost $3 million in damages.
Perry fought back, claiming that the decision was a “grave miscarriage of justice” and that that “no reasonable” jury could have found in the rapper’s favour. At the time, she wrote that the court had an opportunity to “draw the line between the permissible use of commonplace and unprotectable expression in musical compositions, and copyright infringement.”
And, the court did exactly that. In its March ruling, the Californian court ruled that an eight-note ostinato (a phrase that persistently repeats in the same musical voice, frequently in the same pitch), which the rapper’s lawyers had argued in a previous case was taken from his song, was not original enough to warrant copyright protection.
- Punishing (alleged) piracy
US internet service provider (ISP) Cox Communications is facing a $1 billion bill, if a court refuses to accept its new calculations on the number of musical works in the infringement suit.
Judge Liam O’Grady of the US District Court for the Eastern District of Virginia in June this year, rejected Cox’s request for a new trial on the dispute involving major record labels.
But, O’Grady did give the ISP the option to suggest its own calculations for the number of songs involved in the lawsuit, as there may be multiple copyrights in one song (both a musical composition and a sound recording).
Sony, Warner and Universal had secured a $1 billion award of damages from Cox in December last year, after a jury found that the ISP wilfully allowed its customers to illegally download more than 10,000 musical works.
Now, Cox’s own calculations amount to $756 million. Earlier this month, the major record labels pushed back against Cox’s calculations, asking the court to reject Cox’s “thirteenth-hour attempt”.
It added: “The jury’s unmistakable intent was for Cox to pay $1 billion on account of its willful contributory and vicarious infringement. It cannot be reasonably disputed that the jury first determined the overall award of $1 billion, and then translated that total amount into the per-work damage award, not vice-versa.”
- The Marvin Gaye saga
The family of late soul singer Marvin Gaye are no strangers to defending their copyright.
The long-running of “Blurred Lines” versus “Got To Give It Up” dispute—which resulted in a $5.3 million award to the family—shows no signs of letting up, with the Gaye family accusing Pharrell Williams of perjury late last year.
In a separate suit, the family have also accused Ed Sheeran of copying Gaye’s 1973 hit song “Let’s Get It On”. Last year, Sheeran was ordered to appear in court to face the claims, after his request to dismiss was denied.
But now, the COVID-19 pandemic stands in the way, according to Sheeran’s lawyers. Earlier this month, Sheeran’s lawyers have told the New York court that it would be “virtually impossible” for Sheeran to participate in the upcoming trial in November.
“UK citizens are not allowed to even travel to the US from the UK. Thus, it is not a matter of quarantining in New York for 14 days before trial. It is a matter of actually not being able to get here from the UK,” said his lawyer, Donald Zakarin, partner at Pryor Cashman.
Zakarin has asked the court to defer the trial.
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