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Category Archives: Music Publishing
As reported by BILLBOARD, BMG Rights Management acquired Hal David’s music publishing catalog at an estimated $42 million. Net publisher’s share is in the range of $3. 5 to $3.8 million and it is anticipated a multiplier of 11-13 times NPS was used to reach the purchase price.
As we say goodbye to 2013, it’s always fun to look back and see what our readers enjoyed. There’s a great mix of trademark, copyright and music publishing cases.
Most visited posts in 2013 (no matter original post date):
Number 5: Johnny Football vs Juanito Futbal Trademark Likelihood of Confusion
Number 4: Do I Need A Music Lawyer?
Number 3: Music Publishing: A Good Investment
Number 2: New Recording Artist Checklist: What Every Artist Should Think About
Number 1: Bikram Yoga Protected by Trademark NOT Copyright – It’s Hot
and a little variation on a theme – the Most visited posts that were originally posted in 2013:
Number 5: Drybar vs Blow Dry Bar – Trademark for Blow Drying Hair
Number 4: Sherlock Holmes, Elementary, Copyright Protection and Trademarks
Number 3: Duck Dynasty – What Contract Clause Did Phil Violate?
Number 2: Johnny Football vs Juanito Futbal Trademark Likelihood of Confusion
Number 1: Bikram Yoga Protected by Trademark NOT Copyright – It’s Hot
EMI Entertainment World, Inc. v. Karen Records, Inc. – Who is the right plaintiff in a copyright dispute
EMI Entertainment World, Inc. learned the hard way that making sure you name the correct plaintiff in a lawsuit is pretty important to winning.
EMI sued Karen Records, Inc., Karen Publishing, Inc. and the owners of these entities for copyright infringement and won a $100,000 verdict.
Too bad EMI did not listen to Karen’s attorney and verify who actually owned the copyright in the songs/sound recordings that were infringed by Karen. Because EMI refused to join in the lawsuit one or more of EMI’s subsidiaries as the proper party and owner of the copyrights, the case was dismissed by the judge for lack of jurisdiction. EMI did not have standing to file the suit on behalf of the EMI subsidiaries. EMI was notified of this potential deficiency in the lawsuit and refused to fix the problem.
Copyright litigation practice tip – Name the actual copyright owners as the parties to the lawsuit. EMI won, but actually lost.
Here’s a link to the Opinion.
“When The Band Gets Divorced – Mediating The Band Partnership Dispute”
1 hr CLE pending
Join attorney/mediator Tamera Bennett at the Belo Mansion at Noon on Wednesday, March 27, 2013 for a discussion on common issues band members mediate when a member departs and/or the band dissolves.
We’ll be taking a look at the “Sugarland” partnership dispute, the recent “En Vogue” dispute, as well as the “J Geils Band” dispute and applying those fact patterns to structuring a successful mediation for your client.
Dallas Bar Association
2101 Ross Avenue
Dallas, Texas 75201
Free and open to the public. 1.5 hour MCLE pending.
For works published or copyrighted prior to January 1, 1978, the sixth circuit court of appeals made a landmark decision holding the copyright renewal term vests in the music publisher when the author dies during the twenty-eighth year after copyright was secured — the last year of the fist copyright term.
The history of the case can be found here and here. Miller’s heirs have been in a litigation with Sony Music Publishing for years over who owns the songs that Miller wrote in 1964. Miller died in 1992, the 28th year after writing songs such as “King of the Road” and “Dang Me.”
It takes a family with assets to pursue litigation to trial, appeal and back again. The Miller estate has helped to clarify, at least in the sixth circuit, an unanswered question in copyright law.
Read the opinion here.
Twenty years after Guy Hobbs first thought Elton John’s hit “Nikiti” was lyrically too similar to Hobbs’ poem “Natasha,” Hobbs’ sued John, Bernie Taupin and Big Pig Music in federal court for copyright infringement on April 26, 2012.
Both the song and poem tell a story of a cold-war romance. Hobbs’ poem, or he calls it his lyrics, was written in 1982 and registered for copyright in the UK in 1983. In 1984 Hobbs forwarded the poem “Natasha” to Big Pig Music, the music publishing company that represents Elton John and Bernie Taupin.
Elton John released “Nikita” in 1985 on the album “Ice and Fire.” Hobbs alleges he first discovered the release of “Nikiti” in 2001.
Whether or not Hobbs can prove infringement is not the primary issue in this case. Hobbs’ has admitted in his complaint he had actual knowledge in 2001 of the alleged infringement. Further, the defendants could easily imply Hobbs should have had knowledge in 1985 when John released the album “Ice and Fire.”
The defense should succeed in this case on their defenses of statute of limitations and laches. Hobbs simply waited too long to sue. The statute of limitations for copyright infringement is three years. Laches is a defense in common law created by judges, meaning not a law created by legislators, that says you can’t wait too long to sue.
There may also be some interesting procedural questions based on the fact that all the parties are residents of countries other than the United States.
Grammy nominee Drake has been sued by an ex-girlfriend who claims she co-wrote the hit song “Marvin’s Room” and is entitled to part ownership in the copyright in the song; copyright in the sound recording; and payment of songwriter royalties.
The first 30 seconds of the song is a recording of a phone conversation with the ex-girlfriend and plaintiff, Erika Lee. Lee asserts that she and Drake had every intention to write the song together and that her contributions were intended to be incorporated into the final song. Lee contends the intro “phone message” is key to the underlying song.
Lee’s complaint is somewhat confusing as issues of ownership of the sound recording are intermingled with claims asserting ownership in the underlying song.
The most interesting thing in the complaint to me is a cause of action for Breach of Fiduciary Duty. Really, songwriters have a fiduciary duty to one another? If a record label doesn’t have a fiduciary duty to an artist, do we really think that one songwriter would owe the highest duty of utmost care to a co-writer?
Read the complaint here.
Newt Gingrich’s campaign makes the news twice in a week for claims of copyright infringement of a song. Rude Music Inc., owned by Frank Sullivan, a co-author of the song “Eye of the Tiger,” filed a copyright infringement lawsuit in federal district court in Chicago for Gingrich’s use of the song on the campaign trail.
As discussed last week, so long as Gingrich’s campaign secured the necessary public performance licenses, any song may be played at a campaign event without permission from Rude Music, Frank Sullivan or Rocky Balboa.
Rude Music complaint’s does raise an interesting point regarding videos of campaign events where “Eye of the Tiger” can be heard. There may be a blush of a valid claim for copyright infringement related to these videos. Reproduction and distribution of the video footage looks a lot less like a “public performance” and more like a synchronization of the song to the other visual images in the footage.
Volcano Records (parent company is Sony), the copyright owner of the underlying sound recording, is not a party to the lawsuit.
Happy reading: Jump to the complaint.
Here we go again…. One of my favorite topics is the use of songs and sound recordings in campaigns. Especially presidential campaigns. According to news reports, Third Side Music sent Gringrich’s campaign a cease and desist letter ordering them to stop using the song “How You Like Me Now” at campaign events.
In 2008 I blogged here and here stating so long as a campaign secures the necessary public performance license, a song can be played at campaign events without any permission from the artist, songwriter or music publisher. If Mr. Gingrich would like to incorporate the song into a video or advertisement, then his team would need to secure a master use license from the record label and a synchronization license from the music publisher.
Third Side Music is the Canadian music publisher that controls the rights to the song. The public performance rights for the song “How You Like Me Know” are most likely administered by SOCAN.
Thank you to Canadian entertainment attorney Bob Tarantino for linking to this post and distinguishing the “moral rights” that arise under UK and Canadian Copyright Law. Good stuff!
Music in presidential campaigns has been a hot topic in the US as well as in France. Now we have the the campaign for Nicaraguan President Daniel Ortega entering the scene.
News reports say Ortega’s campaign is using a Spanish language version of the classic song “Stand By Me” in political ads. Sony/ATV, the copyright owner of the song, forwarded a ceases and desist letter to Ortega. I am assuming Sony/ATV is asserting no synchronization license was granted to use the song.
Victor Willis, the former lead singer of the group The Village People and the songwriter or co-writer on 32 songs performed by the group, is in a legal battle with the music publishers that currently own the copyright in the songs to terminate the agreements granting ownership of the song copyrights to the music publisher.
Pursuant to section 203 of the 1976 Copyright Act authors (or certain heirs) may terminate copyright assignments and reclaim copyrights 35 years after the work is first published. There are strict statutory guidelines that must be followed and they are outlined in more detail in the article here.
The music publishers that own the songs made famous by The Village People have asked a judge to find the songs were created by Willis as “works for hire.” Under the Copyright Act works created as “works for hire” are not subject to the termination provision because the employer, in this case the music publisher, would by law be deemed the author of the work. But, songs are not specifically enumerated as a category of “works for hire,” so the music publishers would be required to prove that Willis was their employee in order for this argument to fly.
While the article from The Hollywood Reporter Esq. blog and The New York Times lay out the facts and the basics on termination law, they do not mention what might be the music publisher’s best argument to defeat the claim: 17 USC § 203(A)(1) requires that when a work, in this fact pattern a song, has more than one author, a termination of the grant may be effected by a majority of the authors who executed the original agreement conveying the rights to the copyright. “Y.M.C.A” has four songwriters. Three of the four songwriters must properly serve notice on the music publisher to meet the first hurdle in even attempting to terminate the grant. While the other co-writers may have filed their termination notices, this fact does not seem to be surfacing in the news reports.
Music lawyer Tamera Bennett and film lawyer Gordon Firemark discuss this case in detail in Episode 23 of the Entertainment Law Update Podcast.
BMG Rights Management, formed in 2008 and jointly owned by Bertelsmann AG and Kohlberg Kravis Roberts & Co., spent 2010 acquiring one high-profile music publishing catalog after another. BMG’s acquisitions over the last 12 to 15 months expanded its catalog to over 300,000 compositions. It currently stands as the fifth largest music publishing company in the world.
TG Publishing (October 2010)
In October of 2010, BMG Rights Management acquired the twenty-five-year-old international music agency, TG Publishing. TG Publishing managed the production, publishing, and licensing of 1500 songs from twenty songwriters and seven studios in Denmark and Sweden. TG Publishing’s catalog has sold over 40 million records and includes songs that have topped charts all across the world. A TG artist, Aqua, was made an international sensation from its 1997 Billboard Top-100 hit “Barbie Girl.” Other notable artists in the roster include DJ Ötzi, Dr. Bombay, and Kato. In the Deal, BMG acquired fifty percent of TG Publishing’s catalog with the remaining fifty percent to be sub-published.
Chrysalis (November 2010)
A major acquisition for BMG occurred in November 2010, when the company struck a deal with one of the world’s biggest independent publishers, Chrysalis. The $168 million-plus offer from BMG made the deal a good one for Chrysalis, since BMG’s offer was more than five-million dollars higher than an offer made by EMI. BMG acquired over 100,000 songs in the Chrysalis acquisition, and gained the rights to legacy and active stars such as Michael Jackson, David Bowie, Blondie, Sheryl Crow, and recent chart topper Cee Lo Green. On a side note, you can read more here on how BMG’s acquisitions are impacting music industry executive’s jobs in Nashville.
TaPe Music Publishing (December 2010)
BMG’s ninth and final acquisition of 2010 was a co-publishing deal with newly founded independent publisher TaPe Music. TaPe Music secured major international deals before being acquired by BMG, and had an individual catalogue that included over 200 songs from TaPe’s executive director, Pete Kirtley. Kirtley sold over ten million records world-wide, and the price of the acquisition is unknown at this time.
In the US alone, thousands of copyright creators and/or copyright owners die each year. How many of these folks create a comprehensive estate plan, or even a basic will or simple trust? The goal of estate planning is to minimize the potential for probate litigation, make life easier for those left behind, and to preserve an artist’s legacy.
All to often we see cases where artists simply failed to plan for the protection and/or distribution of their estate. Perhaps even more heart-breaking and legally interesting are the cases where the plan failed and the heirs, with the assistance of the court, were able to override the estate plan.
Austin based music and estate planning lawyer Ken Pajak and Dallas based music publishing lawyer Tamera H. Bennett presented “Protecting An Artist’s Legacy Through Estate Planning: Probate and Post -Death Administration of an Artist’s Rights to the Sports and Entertainment Law Section of the Dallas Bar Association on May 25, 2011.
For quick links to the topics and cases of interest discussed at the CLE and in the article click here.
BMG Rights Management, formed in 2008 and jointly owned by Bertelsmann AG and Kohlberg Kravis Roberts & Co., spent 2010 acquiring one high-profile music publishing catalog after another. With the help of my legal intern, Abby Kweller, I am putting together a multi-part post summarizing the various acquisitions in 2010. You can read Part 1 here and Part 3 here.
Selfmade Records (August 2010)
The first of BMG’s two August acquisitions was Selfmade Records, a successful German hip-hop label with releases ranking in the Top 30 and Top 20 on German charts. Selfmade’s catalog held rights to 172 songs. Selfmade had an active songwriting roster and in addition to the existing copyrights, BMG also acquired songwriting contracts with German producers RIZBO, Mcs Kollegah, Flipstar, and Favorite. The deal struck between BMG and Selfmade Records was for an unknown purchase price.
The Clarence McDonald Catalog (August 2010)
BMG inked a publishing administration agreement for 19 titles with writer, singer, and producer, Clarence McDonald, and his related North American publishing companies. Partners in McDonald’s publishing companies include Lani Groves, Daniece Williams, and Bill Daniels. McDonald has produced songs for Ray Charles (“Heaven Help Us All”), the Emotions (“Best of My Love”), Johnny Mathis (“That’s What Friends Are for”), and Bill Withers (“Lovely Day”).
Evergreen Copyright Acquisitions (September 2010)
BMG’s sixth acquisition in 2010 was the US-based music publishing/administration company Evergreen Copyright Acquistions. The Evergreen catalog included 65,000 titles across diverse genres, bringing BMG’s catalog to over 200,000 song copyrights. Michael Jackson, MC Hammer, Dr. Dre, Snoop Dogg, and Uncle Kracker are a few of the notable artists that have made hits of songs in the Evergreen catalog. Evergreen’s co-CEO was Texas music industry veteran Richard Perna. The New York Post estimated the deal to be valued at 80 million USD. The Evergreen catalog contained legacy songs as well as active songwriters.
More posts will follow with additional information on BMG Rights’ music publishing acquisitions. Read Part 1 here.
Updated: March 14, 2011:
The Dallas Observer Blog has an interesting article on the “Music Business Legal Checklist” panel that was presented as part of the 2011 35 Conferette.
Click here for a summary of the topics discussed and resources you can review online.
Music Business Legal Check List: Five Things You Better Think About and Do
Sponsored by the Dallas Bar Sports and Entertainment Law Section
Thursday, March 10th from 3:00 PM – 4:30 PM at Banter, 219 West Oak Street, Denton, TX 76201
This free and open to the public presentation will assist the new or established musician/artist/music business professional in navigating the ins-and-outs of legal issues involved in the music business. The panel will address 1) when key team members such as a manager, attorney or booking agent should become involved in an artist’s career; 2) who owns the content – songs, sound recordings, trademarks; 3) do you need a written agreement or is a hand-shake between the band members enough; 4) how do you raise money for the next record; and 5) what revenue streams are out there.
Tamera H. Bennett: Attorney, Bennett Law Office, PC; President, Farm To Market Music, LLC, Lewisville, TX
Megan M. Carpenter: Associate Professor & Director, Center for Law & Intellectual Property, Texas Wesleyan School of Law, Fort Worth, TX
Craig C. Crafton: Attorney, Cozen O’Conner, Dallas, TX
Catherine Hough: Attorney, Ferguson Law Group, PC, Plano, TX
Decker Sachse: Attorney, Sachse Law Group; Business Affairs, Kirtland Records, Dallas, TX
Stick around after the panel presentation for the 2nd Annual Music Mixer hosted by the Texas Board members of the Recording Academy (the Grammy folks). Cash Bar.
BMG Rights Management, formed in 2008 and jointly owned by Bertelsmann AG and Kohlberg Kravis Roberts & Co., spent 2010 acquiring one high-profile music publishing catalog after another. Since its founding, BMG Rights has inked more than 400 publishing deals, with at least 10 news-worth acquisitions in 2010 and two already in 2011. Some of the acquired catalogs were owned and operated as large corporate conglomerates. But, for some songwriters there may be an adjustment from the small indie publisher “personal relationship” to working with a multi-billion dollar corporation.
With the assistance of my legal intern Abby Kweller, I will outline over the course of several blogs posts the various acquisitions made by BMG Rights Management in 2010 and 2011. You can read Part 2 here and Part 3 here.
Cherry Lane Music Publishing Co. Inc. (March 2010)
BMG Rights Management started 2010 with the acquisition of Cherry Lane Music in the first quarter. The Cherry Lane Music catalog includes hits written by the Black Eyed Peas, John Denver, Elvis Presley, John Legend and Quincy Jones.
This acquisition brought the number of song copyrights owned by BMG Rights Management to more than 140,000. The estimated purchase price was between $85 and $100 million.
Cherry Lane Music has both a substantial legacy/back catalog as well as active/current songwriters that continue to add new hits to the catalog.
Adage IV (June 2010)
In June 2010, Cherry Lane Music added classic songs “Why Do Fools Fall In Love,” “Stay,” and “Little Darling” to its holdings as part of the acquisition of Adage IV Music. Adage IV was established as a music publisher that acquires legacy, time-tested song copyrights. Cherry Lane Music picked up an additional 500 song titles from Adage IV, bringing the catalog closer to the 150,000 title mark.
Stage Three Music (July 2010)
On July 15, 2010, BMG announced its third 2010 acquisition of leading independent publishing company Stage Three Music. Stage Three Music acquired the rights to catalogs they believed to contain classic songs. Hits from Aerosmith, David Essex, Macy Gray, Rascal Flats, and ZZ Top are some of the 39 artists and 29 writers that Stage Three controlled. Stage Three’s held the rights to over 18,000 titles, so this acquisition brought BMG’s catalog up to approximately 168,000 titles. During the time of this acquisition, Executives believed this deal gave rise to BMG ranking fifth in terms of worldwide-music-publishing market share. The purchase price of the deal was not disclosed.
Be on the look-out for additional blog posts summarizing the transactions.
Elvis Presley Enterprises, LLC sued Chrysalis Music Group, Inc. in New York County Supreme Court for breach of a 2002 world-wide Music Publishing Administration Agreement.
The Complaint makes for interesting reading and lays out the history of Elvis Presley’s songwriting career. The Complaint alleges Chrysalis failed to properly license, collect and protect the song assets. There is also a claim that Chrysalis failed to properly promote the song catalog and there were “lost opportunities.”
While I find the arguments regarding lack of properly accounting, paying, and protecting the rights of the songs persuasive, I doubt a cause of action related to “lost opportunities” will fly.
The music publishing administration agreement is attached to the complaint. You can read more at The Hollywood Reporter Esq. Blog.
Sometimes we need to step-back and have a music business 101 post.
This link will take you to a summary on the four primary royalty streams in music publishing: mechanical, print, synchronization and performance royalties.
This link is to a chart on the income flow related to a recording artist.
Both documents cover the basics and are a good place to get started. Be looking for Texas music lawyer Tamera Bennett’s subsequent post on the basic flow of record label/artist royalties when an independent record label uses a digital aggregator to make tracks available from retailers such as iTunes and Amazon.