Bit Parts

Allman Brothers Band, Youngbloods
Settle Class Action Digital-Download
Royalty Suits with Record Labels

The long-running, recording-artist class action complaints against Sony Music Entertainment appear to have ended. The artists, through named plaintiffs Allman Brothers Band (on behalf of Sony Music artists) and The Youngbloods (on behalf of artists who recorded for BMG labels now owned by Sony) primarily sought 50% of net revenues the labels receive from digital download sales of the classic artists' recordings. Sony argued download sales qualify as through “normal retail channels,” which would give artists a lower contractual royalty rate. Speaking from the audience during a recent SXSW Conference panel on music cases (the author of this column was a panel member), Los Angeles attorney Gerald B. Weiner, an attorney for the Allman Brothers Band, noted the download suits have settled, though he didn't provide details. Weiner commented after the panel discussed F.B.T. Productions, LLC v. Aftermath Records, 621 F.3d 958 (9th Cir. 2010), in which the Ninth Circuit decided that sales through digital download providers like iTunes are third-party licenses for which F.B.T., the production company with rights to Eminem's early recordings, should receive 50% from Aftermath/UMG. (The U.S. Supreme Court has now declined to hear UMG's appeal of the F.B.T. ruling.) Label/artist contracts today typically address the specific artist royalty rate for download sales.

Artists Owe Post-Term Commissions to Management Company

The U.S. District Court for the Southern District of New York decided that three opera singers owe their former management company post-term commissions for live engagements the firm booked before the artists left the company but were later performed by the artists. Columbia Artists Management LLC (CAMI) v. 'lvarez, 08 Civ. 11254. The ruling by District Judge Leonard B. Sand came several weeks after a January 2011 bench trial in the suit against artists Marcelo 'lvarez, Richard Margison and Ramon Vargas. Judge Sand emphasized: “Defendants have failed to rebut th[e] evidence proving the existence of a custom in the opera industry for artists terminating their managers to pay commissions for engagements secured before termination. In their post-trial memorandum[,] Defendants attempt to distinguish their specific circumstances, arguing that there is no custom for an artist to pay a management company [that] has fired the artist's long-term managers [Bruce Zemsky and Alan Green, who after leaving CAMI formed their own company]. However, none of the parties have previously distinguished these circumstances in the history of this litigation, and this distinction is not supported by any testimony or documentary evidence from persons in the industry.”

First Amendment Protects Use of Arrest Footage on Reality Show

The U.S. District Court for the Northern District of Illinois dismissed a claim under the Illinois Right of Publicity Act (IRPA), 765 ILCS 1075, brought over inclusion on the TV show Female Forces ' without the plaintiff's consent ' of footage of her being arrested for driving with a suspended license. Best v. Berard, 09 C 7749. The TV companies and law enforcement defendants raised a First Amendment defense. Agreeing, District Judge Matthew F. Kennelly noted: “[I]t is relatively commonplace for newspapers to reprint 'police blotter'-type information involving arrests. It is likewise common for television news broadcasts to report information about arrests and arrestees and even to depict arrestees being taken to or from a police station or a court. It is difficult to conceive an interpretation of the First Amendment that would not protect the reporting or broadcasting of this sort of information. Female Forces, of course, is not a news show as such. The fact remains, however, that it depicted, in Best's case, an arrest on criminal charges and facts concerning [her] prior arrests or citations. These are legitimate matters of public concern, even if Best's encounters with the police involved conduct that was arguably toward the lower end of the spectrum of criminality.”

TV Stations' Challenge to SESAC Blanket Music License Can Proceed

The U.S. District Court for the Southern District of New York denied a motion by the performing rights organization SESAC to dismiss a class-action antitrust suit brought by TV stations over SESAC's blanket music license. Meredith Corp. v. SESAC LLC, 09 Civ. 9177. A blanket license allows music licensees to use all songs in a performing rights organizations' catalog. District Judge Naomi Reice Buchwald observed that the TV stations' complaint is “the first such antitrust challenge to the licensing practices of SESAC.” The stations allege “SESAC's all-or-nothing blanket license affords no fee credit for those musical compositions [included in programs] already otherwise licensed in separate transactions with the copyright owner.” Judge Buchwald noted: “SESAC may well be correct that a blanket license is, in many respects, beneficial for a number of local stations. ' Nevertheless, at this stage, plaintiffs' allegations that: (1) SESAC has entered into exclusive licensing arrangements with [SESAC's] Rightsholders; (2) SESAC does not offer a viable per-program license; (3) it is virtually impossible for local stations to avoid SESAC music; and (4) the SESAC blanket license's fee structure effectively forecloses alternative licensing options are sufficient to state a claim for a [federal Sherman Act] '1 violation.”

Allman Brothers Band, Youngbloods
Settle Class Action Digital-Download
Royalty Suits with Record Labels

The long-running, recording-artist class action complaints against Sony Music Entertainment appear to have ended. The artists, through named plaintiffs Allman Brothers Band (on behalf of Sony Music artists) and The Youngbloods (on behalf of artists who recorded for BMG labels now owned by Sony) primarily sought 50% of net revenues the labels receive from digital download sales of the classic artists' recordings. Sony argued download sales qualify as through “normal retail channels,” which would give artists a lower contractual royalty rate. Speaking from the audience during a recent SXSW Conference panel on music cases (the author of this column was a panel member), Los Angeles attorney Gerald B. Weiner, an attorney for the Allman Brothers Band, noted the download suits have settled, though he didn't provide details. Weiner commented after the panel discussed F.B.T. Productions, LLC v. Aftermath Records , 621 F.3d 958 (9th Cir. 2010), in which the Ninth Circuit decided that sales through digital download providers like iTunes are third-party licenses for which F.B.T., the production company with rights to Eminem's early recordings, should receive 50% from Aftermath/UMG. (The U.S. Supreme Court has now declined to hear UMG's appeal of the F.B.T. ruling.) Label/artist contracts today typically address the specific artist royalty rate for download sales.

Artists Owe Post-Term Commissions to Management Company

The U.S. District Court for the Southern District of New York decided that three opera singers owe their former management company post-term commissions for live engagements the firm booked before the artists left the company but were later performed by the artists. Columbia Artists Management LLC (CAMI) v. 'lvarez, 08 Civ. 11254. The ruling by District Judge Leonard B. Sand came several weeks after a January 2011 bench trial in the suit against artists Marcelo 'lvarez, Richard Margison and Ramon Vargas. Judge Sand emphasized: “Defendants have failed to rebut th[e] evidence proving the existence of a custom in the opera industry for artists terminating their managers to pay commissions for engagements secured before termination. In their post-trial memorandum[,] Defendants attempt to distinguish their specific circumstances, arguing that there is no custom for an artist to pay a management company [that] has fired the artist's long-term managers [Bruce Zemsky and Alan Green, who after leaving CAMI formed their own company]. However, none of the parties have previously distinguished these circumstances in the history of this litigation, and this distinction is not supported by any testimony or documentary evidence from persons in the industry.”

First Amendment Protects Use of Arrest Footage on Reality Show

The U.S. District Court for the Northern District of Illinois dismissed a claim under the Illinois Right of Publicity Act (IRPA), 765 ILCS 1075, brought over inclusion on the TV show Female Forces ' without the plaintiff's consent ' of footage of her being arrested for driving with a suspended license. Best v. Berard , 09 C 7749. The TV companies and law enforcement defendants raised a First Amendment defense. Agreeing, District Judge Matthew F. Kennelly noted: “[I]t is relatively commonplace for newspapers to reprint 'police blotter'-type information involving arrests. It is likewise common for television news broadcasts to report information about arrests and arrestees and even to depict arrestees being taken to or from a police station or a court. It is difficult to conceive an interpretation of the First Amendment that would not protect the reporting or broadcasting of this sort of information. Female Forces, of course, is not a news show as such. The fact remains, however, that it depicted, in Best's case, an arrest on criminal charges and facts concerning [her] prior arrests or citations. These are legitimate matters of public concern, even if Best's encounters with the police involved conduct that was arguably toward the lower end of the spectrum of criminality.”

TV Stations' Challenge to SESAC Blanket Music License Can Proceed

The U.S. District Court for the Southern District of New York denied a motion by the performing rights organization SESAC to dismiss a class-action antitrust suit brought by TV stations over SESAC's blanket music license. Meredith Corp. v. SESAC LLC, 09 Civ. 9177. A blanket license allows music licensees to use all songs in a performing rights organizations' catalog. District Judge Naomi Reice Buchwald observed that the TV stations' complaint is “the first such antitrust challenge to the licensing practices of SESAC.” The stations allege “SESAC's all-or-nothing blanket license affords no fee credit for those musical compositions [included in programs] already otherwise licensed in separate transactions with the copyright owner.” Judge Buchwald noted: “SESAC may well be correct that a blanket license is, in many respects, beneficial for a number of local stations. ' Nevertheless, at this stage, plaintiffs' allegations that: (1) SESAC has entered into exclusive licensing arrangements with [SESAC's] Rightsholders; (2) SESAC does not offer a viable per-program license; (3) it is virtually impossible for local stations to avoid SESAC music; and (4) the SESAC blanket license's fee structure effectively forecloses alternative licensing options are sufficient to state a claim for a [federal Sherman Act] '1 violation.”