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Second Circuit Addresses Significant Music Compulsory Licensing Issues In Bill Graham Archives Dispute
In 2015, a group of music publishers sued the purchaser of the Bill Graham Archives — a repository that includes live performances staged by the late, legendary concert promoter of an array of musical artists beginning in the 1960s. In their lawsuit in the U.S. District Court for the Southern District of New York, the publishers alleged the defendants were streaming and offering downloads of Graham Archives concerts without having obtained proper licenses for 197 of the plaintiffs' musical compositions. The publishers sought maximum statutory damages of $150,000 for each song infringed and a permanent injunction.
Among the significant issues raised by the case, the archive defendants claimed in response that §115 of the U.S. Copyright Act — which provides that once a song is published, other parties can and should obtain a "compulsory license" that allows them "to make and distribute phonorecords" of the published song — applied to the archived video recordings of the concerts. ("Phonorecords" are defined in §101 as "material objects in which sounds, other than those accompanying a motion picture of other audiovisual work, are fixed … The term 'phonorecords' includes the material object in which the sounds are first fixed.")
The archive defendants also argued they weren't required to meet substantive requirements of §115 for the 51 concert audio recordings in dispute in the litigation.
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