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Examining Rulings On Pandora and Performance Rights
Little more than a week after music-streaming service Pandora Inc. won a key ruling in its royalty rate dispute with the American Society of Composers, Authors and Publishers (ASCAP), Pandora was dealt a setback in a parallel fight with ASCAP's rival performing rights organization, Broadcast Music Inc. (BMI). In a 60-page ruling, U.S. District Judge Louis Stanton in Manhattan sided with BMI's lawyers, led by Milbank, Tweed, Hadley & McCoy's Scott Edelman, and ordered Pandora to pay 2.5% of its revenue for the rights to play songs in BMI's catalogue. According to BMI, the decision sets the rate until the end of 2016. Broadcast Music Inc. v. Pandora Media Inc., 1:2013cv04037.
In a note to employees posted on the organization's website, BMI CEO Mike O'Neill noted that Judge Stanton concluded that BMI's request for a 2.5% royalty was “at the low end of the range of fees of recent licenses.” O'Neill continued: “The decision also establishes that existing marketplace agreements can be taken into account when determining rates, a key factor for us, and the industry.”
Judge Stanton's decision stood in contrast to a ruling last year by his Manhattan colleague, U.S. District Judge Denise Cote, who sided in large part with Pandora in a parallel dispute with ASCAP and set a lower 1.85% royalty. The week before Judge Stanton decided the BMI dispute, the U.S. Court of Appeals for the Second Circuit upheld Judge Cote's decision, which had also rejected efforts by some ASCAP members to opt out of the organization's rate-setting process when dealing with new media companies like Pandora. Pandora Media Inc. v. American Society of Composers, Authors and Publishers, 14-1158 (2d Cir. 2015).'Pandora's key lawyers in the Second Circuit case were King & Spalding's Jeffrey Bucholtz and Kenneth Steinthal. Steinthal also led Pandora's efforts in the BMI trial.
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