Music Row Lawyer (C. Stephen Weaver)

Freedom From Copyright Means Feudalism or Communism

    Click here to read a good post in The Gaurdian by writer Helienne Lindvall. Lindvall says the anti-copyright proponents are either proposting feudalism or communism. That is to say, the creatives in the free world will either be at the bottom of society economically and have to beg for compensation.  Or depend on what the government decides they should be paid for their contributions to society.

Your Band Should Have a Partnership Agreement - The Daughtry Lawsuit

One of the first things I learned as a young entertainment attorney was the importance of counseling my clients in setting up the proper business structure.  For a touring artist that would mean a touring corporation for liability purposes.  For a duo or band it would also mean a formal partnership agreement, a corporation with a shareholder's agreement or an LLC with a good Operating Agreement.  Often the partnership agreement is the least expensive choice and any band should not only consider the cost in having such an agreement professionally drafted - but the cost of not having a partnership agreement - a cost not only measured in dollars but also in time and stress.  My friend, Trip Aldredge, illustrates this in his most recent blog post "The Daughtry Lawsuit".  I refer you to Trip's blog for the rest of the story.

You Tube May Be Liable For Infringing Content

    In 2007 Viacom sued You Tube for copyright infringement.  In 2010 a federal judge issued a summary judgment that YouTube was covered under the “safe harbor” provisions of the Digital Millennium Copyright Act.  The District Court held that the DMCA shielded You Tube from liability for infringing content uploaded by its subscribers.  Most readers of this blog know that You Tube would not be liable unless the copyright owners notified them of the infringing material and You Tube then failed to remove the infringing content from their site.  An exception to the DMCA shield is if a website has “actual knowledge” of infringing matter on their site and fails to take it down.  Waiting for notice from the content owner is not a defense in that situation.

    In the Viacom/You Tube case there was evidence that You Tube turned a blind eye to infringing content on their website unless and until they received a take down notice from the copyright owner.  For example it was reported that a YouTube co-founder responded to an internal email by insisting that a CNN space shuttle clip could remain up for at least another two weeks because it would take the cable news network that long to get a cease-and-desist order.

    Should the District Court have dismissed the law suit?  The 2^nd Circuit Court of Appeals said “no” and sent it back to the District Court for a determination of actual knowledge.  The Appeals court said that a legal doctrine known as “willful blindness” could be applied in some circumstances regarding the Digital Millennium Copyright Act and left it to the lower court judge to determine whether YouTube executives made a “deliberate effort to avoid guilty knowledge.”  (The Tennessean)

    The Appeals Court held that a reasonable jury could have found that YouTube knew of specific infringing activity on its website.

 

Who Owns the Company Social Media Accounts?

    Regardless of the type business you are engaged in, as an employer specific action should be taken to protect your valuable assets.  Social media accounts (Facebook, Twitter, LinkedIn, etc.) are among those assets.  A company’s social media accounts are becoming viewed as more important and valuable in the case of company acquisitions and mergers, stock valuation and due diligence for financial transactions.  The purchaser, investor, etc. is going to want to know who owns the social media accounts and see written proof if the company claims this ownership.  The question is typically whether the employee who creates the account and is the primary user is the owner or whether the employer owns the account.

There has been recent litigation over the matter of ownership of social media accounts and no doubt there will be more.  Examples are Maremount v. Susan Fredman Design Group (employee starts marketing blog for company – employee on sick leave – employer assumes employee’s social media identity and continues blog – employee sues); Phonedog v. Kravitz (former employee refuses to surrender twitter account to employer); TEKsystems v. Horizontal Integration (employer-employee dispute over ownership of LinkedIn account).

And the moral is . . . clarify ownership of social media accounts in employment agreements and company policy manuals.  While most employers today understand the importance of intellectual property, these and similar clauses in employment agreements need to specifically address ownership of social media accounts.

Sean Parker Blames Labels For Spotify Artist Royalties

    At SXSW in Austin this year, Sean Parker attempted to explain that artists are not receiving a much money from his company, Spotify, because their labels are ripping them off.  Parker states that by the terms of the artists’ recording agreements the labels are getting the bulk of the take from Spotify.  In making the bold and apparent omnipotent statements on stage in Austin Parker went on and predicted a war between artists and their labels.  "There's blood in the water for labels” Parker stated.

Recording Agreements are drafted in favor of the labels because the agreements are drafted by the label attorneys.  This is not a concept unique to the recording industry.  It is assumed in any business or other endeavor that the drafting party will have the agreement slanted in their favor.  Hello-o!  The idea is that the other party will then negotiate the agreement and insist that certain provisions be modified to be more reflective of their interests.  Not all recording agreements are the same—especially after negotiation and weighing all the factors that give one party or the other leverage.  I have been practicing entertainment law over 30 years and have negotiated and seen enough to know what I am talking about.  Parker hasn’t been alive much longer than that. 

Oh – and are we really supposed to pay any attention to Sean Parker’s excuse for his company not paying artists enough?  Laughable if not astonishing at best.  This is the guy whose first business success was based on not paying artists anything for use of their music (Napster).  What a joke for him now to point the blame finger at somebody else for his continuing methodology of screwing artists, songwriters, producers, musicians and others in the recording industry.

Here’s a bit more reading: 

http://www.wired.co.uk/news/archive/2012-03/15/sean-parker-spotify-blood-water

http://www.hypebot.com/hypebot/2012/03/sean-parker-theres-blood-in-the-water-for-labels-over-spotify-royalty-payments.html

http://digitalmusicnews.com/permalink/2012/120322emi