Category Archives: Copyright Ownership

Lana Del Rey May Have Creeped too Close to Radiohead’s Melody, Copyright Infringement Suit Nears

A tweet sent by Lana Del Rey earlier this week (likely to the chagrin of her attorneys) informed her 8.3 million followers that Radiohead is claiming that the song ‘Get Free’, off her recent album ‘Lust for Life’, infringed on Radiohead’s 1993 hit song ‘Creep.’ The 90’s band is seeking 100% of the profits related to the publishing of the song, which Del Rey is credited with co-writing along with songwriters and record producers, Kieran Menzies and Rick Nowels.

Fast forward to a few hours after the tweet was sent when Del Rey then repeated this sentiment at a subsequent concert in Denver, CO, where she referred to the song as her “personal manifesto.”  As an aside, it was a questionable move for Del Rey to go so public with this dispute, let alone state terms of settlement offers, as settlement negotiations are often confidential…unless where published in the manners Del Rey has done, and could taint the available jury pool. Check out a clip of Del Rey addressing the crowd here.

Does Radiohead have a case?

I’ve never been much of a gambler, but after listening to both songs I would say that Radiohead has a strong case in this copyright dispute. For those of you unfamiliar, a copyright arises from the creation of an original work that is fixed in a tangible medium of expression, described as “when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”  While the mere creation of the composition is enough to establish a copyright, registration affords the author/publisher additional protections. The courts often look to whether the composition contains a minimal spark of creativity. The spark can be in the chord progression, rhythm, melody or lyrics. In order to establish the infringement, a comparison of the songs must be done, often by an expert, and a judge or jury must then determine if such an infringement, or unauthorized borrowing or use of the same chord progression, rhythm, melody or lyrics, has occurred. Since such proof is often subjective to the fact finder, most cases are resolved prior to a final determination in Court.

In fact, the very song Radiohead is now claiming Del Rey has infringed upon, was itself the subject of a claim of infringement by Albert Hammond and Mike Hazlewood, regarding the 1972 song ‘The Air That I Breathe,’ sung by The Hollies. As a result of that claim, Hammond and Hazlewood received co-writing credits and a percentage of the royalties of Radiohead’s ‘Creep.’ While one might ask whether Hammond and Hazlewood should really be making the claim against Del Rey, it is too soon to tell whether it is the very same chord progression, rhythm, melody or lyrics involved in the Del Rey-Radiohead dispute as the Radiohead-Hollies dispute, as every song is made up of many different such elements. Time will tell whether Radiohead’s lawsuit will go anywhere, although my money would be on Radiohead winning, if it went to trial. However, odds are that there will be a similar result to the Radiohead-Hollies out of court settlement, with Radiohead sharing writing credits and royalties.

You Be The Judge: Take a listen to both songs here:

Prior Precedent 

Copyright disputes between musicians, writers and publishers have been part of the music landscape for decades. In 1971, former Beatle George Harrison had a number 1 single on his hands with ‘My Sweet Lord.’ Yet, while that single was still in heavy rotation, Harrison was hit with a lawsuit by publisher Bright Tunes Music, which held the rights to the Chiffons’ 1963 hit ‘He’s So Fine,’ written by Ronnie Mack. Harrison tried unsuccessfully to settle the matter and, ultimately, lost at trial, having to pay Bright Tunes damages in the amount of $1,599,987! As only a former Beatle could, Harrison did, however, turn the experience of tortuous litigation into another hit called ‘This Song.’

More recently, Robin Thicke, Pharrell Williams and Clifford Harris, Jr. were found to have infringed on the work of Marvin Gaye, in particular the song ‘Got To Give It Up.’ Interestingly, it was Thicke, Williams and Harris who pre-emptively filed suit against the Gaye family and Bridgeport Music, in an attempt to have the court determine Thicke and company had not infringed on Gaye’s work. The suit backfired, with a finding that Thicke and company had infringed on Gaye’s work and awarded $5.3 million in damages.  Thicke and company have appealed to the United States Court of Appeals for the 9th Circuit.  At oral argument, Thicke and company argued that there can be no infringement for a “groove,” which it sought to differentiate from a lyric, rhythm, etc.  No decision has been reached by the 9th Circuit as of yet, but Thicke, Williams and Harris have a tough road ahead to overturn the lower court’s verdict.

Questions? Let Jeff know.

 

Jeff Cohen is a member of Flaster Greenberg’s Litigation, Intellectual Property, Corporate and Real Estate Practice Groups. He has been a trial attorney for more than 23 years, counseling and representing a diverse range of clients in matters related to commercial contracts, shareholder and partnership agreements, trademarks, copyrights, patents, including Hatch-Waxman, insurance coverage, franchise disputes and commercial construction.

 

A How-To Guide for Singers and Songwriters to Obtain & Protect Their Copyrights

Hey Candidate, You Can’t Always Use What You Want!

Another national election is upon us and with each advertisement, arena event, train stop and rally, candidates pair music with the themes and messages of their campaigns.  However, the candidates’, particularly Trump’s, use of these hits has come under fire by the artists who write and perform the songs.  Artists, including Neil Young, Aerosmith, Survivor and, most recently, the Rolling Stones, have demanded that Trump cease and desist using their music in the past few months.

The artists objections are commonly based on politics that conflict with their own ideologies, or that of their fan base.  For example, in 1994, Bruce Springsteen famously denied Ronald Reagan’s request to use “Born in the U.S.A.” as a theme song about for Reagan’s bid for the White House.  Springsteen’s “Born in the U.S.A.” was a song about the plight of a Vietnam veteran and he apparently did not want it turned into a patriotic rallying cry for a candidate he spoke out against during that campaign season.  In 2016, Trump has used, or tried to use, Neil Young’s “Rockin in the Free World”, Aerosmith’s “Dream On”, Adele’s “Rolling in the Deep” and the Rolling Stones’ “Start Me Up” as part of his campaign.   All of these artists immediately, and very publicly, demanded Trump cease all use of their songs…some using their objection as a chance to rail against the candidate in a more general sense.

While the candidate almost always immediately, and wisely, ceases using the song that the artist objects to, the question lingers as to what would happen if the candidate continued to use the song over the objection of the artist.  Practically, the candidate would make himself/herself the target of someone who has a large publicity platform, and could ultimately shine a negative light on the candidate.  Legally, however, the artist has effective tools to stop the candidate from using their songs.

Get the Copyright

When the artist/writer puts pen to paper and creates an original work of authorship, the artist/writer has a common law copyright in that creation.  However, in order to establish a date for when the work/song was created, the artist should then register that work/song with the United States Copyright Office.  Registration of the work/song is inexpensive and can be done through the U.S. Copyright Office’s official website.  The important benefit of registering the song/work is that it establishes the date an artist created the work, so as to defeat claims by a person claiming a similar work at a later date.

Artists often have two registered copyrights on their songs.  The first is based on the written composition and is held by the person(s) that wrote the song.  The second copyright is the master recording of the song, which belongs to the artist(s) who performed the song.  The artist may own the master recording outright or may have assigned the rights to the master recording to the record company and/or music publisher.

It is important to note the artist only has protection for certain elements of a song.  The melody and the written lyrics of the song are enforceable protections under Copyright law.  However, the title of the song, basic chord progressions, and the general concept of the song are not protected.  Lines within lyrics are often not protected as well.  The gist of the protection is to protect the entirely of the lyrics, not just a line like “I love you more each day.”

How to Protect the Song/Copyrighted Work

While the creation of the song creates a protectable property and registration of that song with the U.S. Copyright Office establishes a date of creation, work still needs to be done to protect the song/work from use and copying.  When the artist becomes aware of a potential infringement (or copying) of the song/work, the artist should demand that the infringer cease and desist using the work.  If that does not stop the offending activity, the artist should file a complaint with a court of competent jurisdiction seeking to enjoin (stop) the offending party from using or copying the work during the pendency of the litigation and ultimately to permanently enjoin the offending party from ever using the work, along with money damages.  Once in litigation, the creator, in the case of use by a candidate, will have to show that the offending party used the work without a license or authorization or, in the case of another artist infringer, that the work is sufficiently similar to the original work, often through the testimony of an audiology/music expert.  In addition, the creator may also seek to show that, in the case of a candidate, use is creating public confusion, meaning that by the very use of a song at the campaign event, the public believes that the artist is endorsing the candidate.

Alternatively, if the creator artist is willing to allow the offending artist to use the song/work, or a protectable portion thereof (e.g. a “sample” of the work), the creator can license the work to others in return for payment (often calculated on a per use basis).  Licensing is common in both the world of politics and in the world of music.  A campaign can contact the person/entity who owns the song and request, or pay for, use of it.  An artist can do the same, usually in return for royalties.  How often have you heard a song reimagined, “covered” or “sampled”?  In most of those cases, a royalty or license has been agreed upon.  Where the “covering artist” or “sampler” fails to get the writer/artist’s agreement, litigation often ensues, not only leading to the original writer/artist obtaining damages for things such as the profits from the new artist but also a stain on the reputation of the new artist.

Regardless of the artist’s ideology, he/she should protect their song/work from anyone and everyone who seeks to use it.  Whether the artist supports the candidate seeking to use their work or is ideologically opposed to the candidate and his/her use, the artist should take action, either to halt the unauthorized use or to license the work.  Then, in the end, “you get what you need.”

Questions? Let Jeff know.

 

Jeffrey A. Cohen is a member of Flaster Greenberg’s Litigation, Intellectual Property, Corporate and Real Estate Practice Groups. He has been a trial attorney for more than 23 years, counseling and representing a diverse range of clients in matters related to commercial contracts, shareholder and partnership agreements, trademarks, copyrights, patents, including Hatch-Waxman, insurance coverage, franchise disputes and commercial construction.

Influential from the Stage to the Courtroom: Prince’s Lasting Impact on Copyright Ownership

In the weeks following the tragic sudden death of Prince Rogers Nelson (Prince), much of the media and general public have shared their memories of one of the most prolific and talented musicians in the country’s history.  Countless individuals have shared personal stories of the enigmatic artist or shared highlights of his legendary live performances.

Prince was also, however, a pioneer in intellectual property law, specifically with respect to copyrights.  In 2007, through his publishing administrator, Prince instituted litigation to stop a mother from posting a video of her own 13-month-old son merely dancing to Prince’s hit song, “Let’s Go Crazy.”  While that case is still active, the Ninth Circuit already issued a precedential opinion cautioning that copyright holders have a duty to consider in good faith whether allegedly infringing material constitutes fair use prior to sending a takedown notification.  More recently, Prince sued 22 of his own fans in 2014 for $1 million each for posting videos taken at his concerts, but the backlash of an artist suing his own fans quickly led him to voluntarily dismiss the action.

Prince’s most prolonged copyright battle, however, concerned his transfer of copyrights to his record label, Warner Brothers.  Prince signed with Warner Brothers in 1977, when he was just 18 years old, but he promptly soured on the idea that Warner Brothers owned the rights to any music he released.  In the early 1990s, Prince went as far as to change his name to an unpronounceable, self-described “love symbol” in an effort to release music on his own terms and own the copyrights to his work.  Warner Brothers, in an effort to protect its asserted contractual rights, resisted Prince’s efforts to break his record contract, regardless of what he wanted to call himself.

Prince, however, eventually gained bargaining power due to a key section of the 1976 Copyright Act.  Section 203 of the Act provides for the termination of copyright transfers during a five-year period, beginning 35 years after the execution of the initial grant of the copyright transfer.  The 7th Circuit stated that the purpose of that section is to give authors and their heirs a second chance to market works even after a transfer of rights has been made.  Accordingly, even if an artist signs a contract with a record company transferring all rights in a work in perpetuity, after 35 years, the artist or his/her heirs can terminate that grant and demand that the rights revert back to the artist.

For over 20 years, Prince’s protests such as changing his name and appearing in public with the word “slave” written across his face accomplished very little.  At the end of 2013, however, Section 203’s 35-year window was set to expire.  Deadlines typically spur action, and this was no exception. In early 2014, Prince and Warner Brothers reached a landmark agreement that gave Prince control over his back catalog.

Prince’s plight and hard stance against his record label paved the way for artists who produce copyrighted works today, especially in light of technological advances since Prince signed his initial Warner Brothers contract.  In 1977, it was likely unfathomable that artists could avoid signing contracts with companies to finance, manufacture, promote, and distribute their works.  In the digital/social media era, however, artists can directly connect much more easily with their customers.  Some musicians have declined to sign with large record labels to retain control over every aspect of the creation and release of their music.  Whether or not these artists acknowledge it, Prince undoubtedly influenced those artists who now make it a priority to maintain complete control over their works.

It is possible that in 2016, the 35-year window of Section 203 is too long a window to motivate emerging artists, who are looking for companies to pay the costs of production and marketing and provide them with up-front dollars, to hold tight to the ownership rights in their copyrighted works.  Regardless of whether Section 203 is amended to adjust to the digital era, however, there is little doubt that Prince’s public legal battles concerning copyrights have at least paved the way for artists to be more educated about their rights, and they will have a long-lasting impact on the music industry.

 

Questions? Let Scott know.

Scott C. Oberlander is a member of Flaster Greenberg’s Litigation Department, representing businesses and individuals in a wide range of disputes. He has particular experience counseling clients in various industries with respect to breach of contract claims, unfair and deceptive business practices, employment disputes and administrative actions.

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