A Legal Blog by Aaron | Sanders, PLLC


Copyright and Music Explainer: Why Spotify Isn’t Really the Poster Child for Everything That’s Wrong with the Music Business

Maybe Spotify Isn’t Cannibalizing Music Sales, But Artists Still Aren’t Getting Paid

Spotify has become something of a punching bag for Everything That’s Wrong with the Music Business Nowadays. I once held out tremendous hope that Spotify would Fix Everything. It didn’t. Well, that’s not quite true. It did deliver on the consumer end. But as the years went by, the initial, hopeful trickle of new revenue for musicians never really increased. Millions of streams, but only a few bucks in royalties. What the heck was going on? Did Spotify somehow pull the wool over everyone’s eyes, including the eyes of the savvy giant music labels? Given how long the major labels held out before licensing their music to Spotify, that seemed unlikely. It was more likely that the labels got the better of the deal. But there was no one else to punch. And, where, precisely, was all the money going?

Some Light Shed, but Not Where We’d Like It.

FiveThirtyEight’s much-discussed article, “Maybe Spotify Isn’t Killing the Music Industry After All”, doesn’t really get into this, unfortunately. Keep that in mind when you see people citing the article to show that Everything Is Fine.

The FiveThirtyEight article is about the “music industry”…

original

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The Lines of Copyright Infringement Have Always Been Blurred

I swear the title of this post is the only time I’ll be making that pun.

The “Blurred Lines” case was actually highly unusual because of a key principle of copyright law that has not been discussed much at all: access. When the alleged infringement is “non-literal” (i.e., not word-for-word or note-for-note), you have to prove that the alleged infringer had “access” to the underlying work. This is usually very difficult to prove, because proof of access usually rests with the alleged infringer, who has little incentive to remember things correctly. But in this case, Robin Thicke told a magazine that he and Pharrell Williams not only were exposed to “Got to Give it Up,” but they had its “groove” in mind immediately before they wrote it. After that, it was just a (still difficult) matter of experts and a jury’s gut instinct, and here we are.

If this case exposes a problem, it’s that the law governing copyright infringement is so varied and inconsistently applied, and it relies to such a large extent on a jury’s gut feeling, that it’s difficult for artists to know when they’re too similar to works that they have frankly been inspired by. But it’s…

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Stay With Me on This Because Someone Won’t Back Down: Why Sam Smith Had to Settle

Different Similarities: What Does it Mean to Infringe Copyright?

Earlier this week, Sam Smith settled with Tom Petty and Jeff Lynne about a copyright claim that Smith’s “Stay with Me” (a lovely, lovely song) infringed Petty and Lynne’s “Won’t Back Down” (one of Tom Petty & the Heartbreakers’ best known songs).

 

 

I’ll be honest with you, I didn’t make the connection myself when I just casually listening to “Stay with Me” on Lightning100, even though I’m a pretty big Tom Petty & the Heartbreakers fan. Smith’s song is slower and has totally different backing vocals. The two-phrase sequence in question plays a different role in both songs. In Smith’s song, it’s the main driving hook (a simple one, which shows off his vocals), whereas in the Petty/Lynne song, it’s more of an intro to the main chorus, which allows the song to ramp up its energy pretty quickly.

But once it was suggested that Smith might have gotten the two-phrase sequence from “Won’t Back Down,” I immediately saw it. Remove the backing vocals, speed it up a bit and drop the pitch a bit, and the two sequences sound almost identical. A lot of Tom Petty fans sure noticed.

To my ear, it…

This is Tom Petty. I'm sorry I couldn't find a picture of Jeff Lynne on Creative Commons because he's equally awesome.

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Who Owns the Goldmine? Bob Marley’s Missing Copyright

The Mysteries of Copyright Ownership

If there were a goldmine in your town—one that produced a worthwhile amount of gold every year and wouldn’t run out for many, many years—you’d probably expect any dispute about who owns it to have long since been resolved. It’s true that the folks who sell you real estate might not actually own it, which is why you buy “title insurance,” but real estate transactions are pretty well-recorded, so such awful surprises are pretty rare, which is why anyone would dare to offer “title insurance.” At a minimum, you wouldn’t expect two different people to be mining the gold without, you know, their coming to blows.

But this sort of thing happens with copyrights and royalty streams with surprising frequency. It can be very difficult to tell who owns a copyright. Copyrights can be sold just like real or personal property can, but you don’t need to record the sale anywhere.* True, transfers of copyright have to be in writing, but many industries that deal with copyright—I’m looking right at you, music industry—suck at keeping records.

Jamaica, where, apparently, they didn’t do paperwork in the 1960’s.

Copyright ownership vests initially in the author, or…

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Music Industry v. Thomas-Rasset: Constitutional Challenge to Copyright Statutory Damages Turned Aside

But Should Juries Have This Much Discretion?

Last time we celebrated the finality* of the music industry’s case against Jammie Thomas-Rasset. The parties, for different reasons, decided to stop insisting on remittitur, let the judge rule on the constitutionality of the $1.5 million award (for 24 songs), and appeal that ruling. The judge duly found the award unconstitutional, reduced it to $54,000, and both sides appealed. (Here’s the result.)

* Unless the U.S. Supreme Court decides to get involved. That’d be something.

The music industry didn’t care about the amount—any amount was, as practical matter, uncollectable—but cared deeply about a previous ruling by the trial court that dispensed the industry’s beloved “making available” theory of distribution. Since that ruling scotched an earlier $222,000 judgment*, the music industry sought only that amount on appeal, in effect turning back the clock. Thomas-Rasset, who cared deeply about the constitutional issue and didn’t have much to lose, out-maneuvered** the music industry by not disputing liability, which put all the focus on the constitutionality issue and took the “making available” theory off the table.

* Which was replaced by a $1.92 million verdict, then again by the $1.5 million verdict.

** I’m being…

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