Yesterday I had the honor of attending the announcement of the Nashville Songwriters Hall of Fame’s 2018 inductees, Ronnie Dunn, K.T. Oslin, Byron Hill, Wayne Kirkpatrick and Joe Melson.  I am so honored to serve as general counsel for this outstanding organization and serve with president Pat Alger, executive director Mark Ford, and all of the other talented and wonderful directors on the board, not to mention the fact that I get to brush elbows with these 200+ amazingly talented songwriters.  Below is the press release:

[/fusion_text][fusion_text columns=”” column_min_width=”” column_spacing=”” rule_style=”default” rule_size=”” rule_color=”” class=”” id=””]Nashville, TN August 7, 2018 – Ronnie Dunn, K.T. Oslin, Byron Hill, Wayne Kirkpatrick and Joe Melson will be inducted into the Nashville Songwriters Hall of Fame in October, according to an announcement made today by Hall of Fame member Pat Alger, chair of the organization’s board of directors.

The five new inductees will join the 208 existing members of the elite organization when they are officially inducted during the 48th Anniversary Nashville Songwriters Hall of Fame Gala on Sunday, October 28, at the Music City Center.

“This time of year, as board chair of the Nashville Songwriters Hall of Fame Foundation, I am always reminded of the broad variety and high quality of the songwriting talent we are so fortunate to be able to celebrate,” says Alger.  “The musical trends might change through the years, but for us it always comes down to great songs and legendary songwriters – the bedrock of the town that continues to be hailed as Music City.  This year’s nominees for the Nashville Songwriters Hall of Fame were inspiring and impressive as always, each one deserving recognition for the impact they made. Today it’s my great honor to welcome the Nashville Songwriters Hall of Fame class of 2018:  Byron Hill and Wayne Kirkpatrick in the songwriter category; Joe Melson in the veteran songwriter category; Ronnie Dunn as our songwriter/artist and K.T. Oslin as our veteran songwriter/ artist.”

Byron Hill’s songwriter credits include “Pickin’ Up Strangers” (Johnny Lee), “Fool Hearted Memory” (George Strait) and “Nothing On But The Radio” (Gary Allan).  Wayne Kirkpatrick’s resume is known for the Grammy-winning “Change The World” (Eric Clapton) and “Little White Church” (Little Big Town) and the Broadway musical Something Rotten!.  Joe Melson is the co-writer of the Roy Orbison hits “Only The Lonely (Know The Way I Feel),” “Crying” and “Blue Bayou.”  Ronnie Dunn popularized many of his own compositions, including the Brooks & Dunn hits “Neon Moon,” “Boot Scootin’ Boogie” and “Believe.”  K.T. Oslin recorded many of her self-penned hits, including “80s Ladies,” “Hold Me” and “Come Next Monday.”

The Nashville Songwriters Hall of Fame Gala is one of the music industry’s premier events of the year.  The evening features tributes and performances of the inductees’ songs by special guest artists.  In recent years artists such as Garth Brooks, Luke Bryan, Jimmy Buffett, Ronnie Dunn, Emmylou Harris, Alan Jackson, Tim McGraw, Thomas Rhett, Blake Shelton, Marty Stuart, Taylor Swift, Josh Turner and Trisha Yearwood have performed at or participated in the event.

Also at the event, NaSHOF will present Reba McEntire with the inaugural Career Maker Award in honor of her significant influence on the songwriting careers of Hall of Fame members.

Tickets for the Hall of Fame Gala are $250 each and benefit the nonprofit Nashville Songwriters Foundation.  Select seating is available to the public and may be purchased as available by contacting Executive Director Mark Ford athoftix@nashvillesongwritersfoundation.com or 615-460-6556.
 
About the Nashville Songwriters Hall of Fame:

Induction into the Nashville Songwriters Hall of Fame is one of the nation’s most highly prized songwriting achievements.  Since 1970, the Hall has enshrined more than 200 of the greatest writers from all genres of music ever to put words to music in Music City, including such luminaries as Bill Anderson, Bobby Braddock, Garth Brooks, Felice & Boudleaux Bryant, Johnny Cash, Don & Phil Everly, Harlan Howard, Kris Kristofferson, Loretta Lynn, Bob McDill, Bill Monroe, Willie Nelson, Roy Orbison, Dolly Parton, Dottie Rambo, Jimmie Rodgers, Fred Rose, Don Schlitz, Cindy Walker and Hank Williams.  Operated by the non-profit Nashville Songwriters Foundation, the Hall of Fame is dedicated to honoring Nashville’s rich legacy of songwriting excellence through preservation, celebration and education.  More information is available at http://www.nashvillesongwritersfoundation.com/.
 
Photo (l-r) Inductees Wayne Kirkpatrick, Byron Hill and Joe Melson; NaSHOF Executive Director Mark Ford; Inductees K. T.  Oslin and Ronnie Dunn.

Photo Credit:  Bev Moser
 
Contacts for the Nashville Songwriters Hall of Fame:

Media
Jennifer Bohler / Alliance
615 292 5804
jenny@jb-alliance.com

Executive Director
Mark Ford / NaSHOF
615 460 6556
markford@nashvillesongwritersfoundation.com

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Inductee Biographical Information
 
BYRON HILL

Winston-Salem, N.C., native Byron Hill moved to Nashville in 1978 and soon signed with ATV Music Group, where he enjoyed his first cuts with “Pickin’ Up Strangers” by Johnny Lee and George Strait’s first #1 “Fool Hearted Memory” in 1982.  Byron left ATV in 1984, but his songwriting resume continued to expand with “Nights” by Ed Bruce, “Born Country” by Alabama, “Alright Already” by Larry Stewart, “Lifestyles Of The Not So Rich And Famous” by Tracy Byrd, “High-Tech Redneck” by George Jones, “If I Was A Drinkin’ Man” by Neal McCoy, “Nothing On But The Radio” by Gary Allan and “Size Matters (Someday)” by Joe Nichols.  Other artists who have recorded Byron’s songs include Jason Aldean, Randy Travis, Keith Whitley, Rhonda Vincent, Don Williams, Trace Adkins, Toby Keith, Porter Wagoner, Brooks & Dunn, The Oak Ridge Boys, Ricky Skaggs and Reba McEntire.  To date, Byron’s songs have generated more than 700 recordings, earned 91 RIAA certified Gold and Platinum awards, 10 ASCAP awards, 34 U.S. and Canadian Top-10 chart hits and numerous hits in other global markets.
 
WAYNE KIRKPATRICK

At age 14, Wayne Kirkpatrick moved with his family to Baton Rouge, La.  After a guitar lesson at a Florida Bible camp, Wayne began spending hours after school writing songs and playing younger brother Karey’s acoustic guitar.  Both brothers eventually moved to Nashville, where Karey helped Wayne secure some of his first cuts.  Since then, Wayne has had nearly two dozen chart-topping Contemporary Christian and Pop singles, including “Every Heartbeat,” “Good For Me” and “Takes A Little Time” by Amy Grant and “Place In This World” by Michael W. Smith (the 1992 Dove Song of the Year).  In 1996, Wayne’s co-written “Change The World” by Eric Clapton was featured in the film Phenomenon and earned the 1996 Grammy for Song of the Year.  In 1999 Wayne sang, played and co-wrote eight songs on Garth Brooks’ In The Life Of Chris Gaines project, including “Lost In You” and “It Don’t Matter To The Sun.”  In 2002 he began a longtime collaboration with Little Big Town that yielded hits such as “Boondocks,” “Bring It On Home” and “Little White Church.”  In 2010, Wayne and Karey began working on the musical Something Rotten!, which opened on Broadway in 2015 and earned 10 Tony Award nominations, including Best Musical and Best Original Score.  The show launched a U.S. tour in 2017.

JOE MELSON
Joe Melson grew up in Bonham, Texas.  He began writing and singing his own songs at an early age.  He spent much of his young adult years working at Standard Oil by day then playing high-school dances and local night clubs with his Rockabilly band by night.  In 1957, Joe met and began writing with a then-unknown Roy Orbison.  In 1960, their song “Only The Lonely (Know The Way I Feel)” launched Orbison into superstardom.  The first operatic rock ballad in history, that single was inducted into the Grammy Hall of Fame in 1999.  In 1961, the team created the smash “Crying.”  It became a giant hit for Orbison, was revived as a pop hit by Jay & The Americans five years later and entered the country repertoire via versions by Ronnie Milsap and Don McLean, among many others. Orbison’s single was inducted into the Grammy Hall of Fame in 2002.  In 1963, the duo’s “Blue Bayou” became another hit for Orbison (and, years later, Linda Ronstadt).  Joe’s song catalgoue also includes “Blue Angel,” “Running Scared,” “Lana” and “I’m Hurtin’” (all hits for Orbison), as well as “Run Baby Run (Back Into My Arms)” by The Newbeats and the Glenn Barber singles “Unexpected Goodbye” and “I’m The Man On Susie’s Mind.”  In 2002 Joe was inducted into the Rockabilly Hall of Fame.
 
RONNIE DUNN

Ronnie Dunn was born in Texas, but Tulsa, Okla., became his hometown.  He began playing guitar and performing in Country bands when he was in his teens.  After winning the Marlboro Talent Search, Arista Records expressed interest in him.  The label teamed him with singer-songwriter Kix Brooks, and the two recorded as Brooks & Dunn from 1991-2011.  The mega-duo sold millions of records and was named CMA Vocal Duo 14 times.  The Brooks & Dunn hits “Neon Moon,” “Hard Workin’ Man,” “She Used To Be Mine,” “She’s Not The Cheatin’ Kind” and “Little Miss Honky Tonk” were all written solo by Ronnie, as was “Boot Scootin’ Boogie,” which was named ACM Song of the Year in 1992.  Ronnie was BMI’s Country Songwriter of the Year in 1996 and 1998.  Co-written Brooks & Dunn hits include songs such as “Brand New Man,” “My Next Broken Heart” and “Believe,” which was the ACM Song of the Year in 2005 and the CMA Song and Single of the Year in 2006.   In  2011, Ronnie resumed his solo career as a singer-songwriter with “Cost Of Livin’.”  Ronnie was inducted into the Oklahoma Music Hall of Fame in 2003.

K.T. OSLIN
Kay Toinette Oslin was born in Crossett, Arkansas.  After her father died, she moved with her mother to Houston, where she later attended college as a drama major.  In 1966, she joined the road company of Hello Dolly!.  When the musical returned to Broadway, K.T. remained in the cast.  During the next two decades, she appeared as a chorus girl in musicals such as Promises, Promises and West Side Story.  She also sang commercial jingles around New York and began writing songs.  By 1981, she was signed to Elektra Records and released two singles with modest success.  She also had songs recorded by Gail Davies, The Judds and Dottie West.  By 1987, K.T. had moved to Nashville and signed with RCA Nashville.  She scored big with her self-penned “80s Ladies,” which was named 1988 CMA Song of the Year, making her the first female writer to win the award.  That album also launched the singles “Do Ya” and “I’ll Always Come Back.”  Her second album generated five singles, including “Money,” “Hey Bobby,” “This Woman,” “Didn’t Expect It To Go Down This Way” and “Hold Me,” which earned the 1988 Grammy for Best Country Song.  K.T.’s third album generated the hits “Come Next Monday” and “Mary And Willie.”  She was named 1988, 1989 and 1991 SESAC Songwriter of the Year.  K.T. is a 2014 inductee into the Texas Heritage Songwriters Hall of Fame.

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Shrum & Associates’ very own namesake, Barry Neil Shrum, Esquire, was recently appointed to serve as general counsel for the Nashville Songwriters’ Hall of Fame, and to serve as a non-voting member of its Board of Directors.  The Nashville Songwriters Hall of Fame Foundation (NaSHOF) is a non-profit organization dedicated to honoring and preserving the songwriting legacy that is uniquely associated with the Nashville music community. Its purpose is to educate, celebrate and archive the achievements and contributions made by members of the Nashville Songwriters Hall of Fame to the world. 

Induction into the Nashville Songwriters Hall of Fame (NaSHOF) is one of the nation’s most highly prized songwriting honors. Since 1970, nearly 200 of Music City’s top tunesmiths from all genres of music have been enshrined by the non-profit organization, which honors Nashville’s rich legacy of songwriting excellence through preservation, celebration and education. In 2013, NaSHOF realized a long-held dream with the opening of its Hall of Fame Gallery, located in downtown Nashville on the first floor of the Music City Center (201Image result for nashville songwriters hall of fame 5th Avenue South).

NaSHOF chairman of the Board, Patrick (“Pat”) J. Alger III (2010 NaHOF inductee), described Mr. Shrum as a perfect fit:

The Board of the Nashville Songwriters Foundation has patiently and cautiously been searching for a replacement for our longtime legal counsel [David Maddox] who recently retired. As Chairman and the de facto representative that bears the responsibility for our actions and decisions it is especially important to me to find the right candidate. I believe we got very fortunate when Barry Shrum expressed interest in filling that vacancy. He has the right combination of knowledge, experience and personality to fit the bill precisely! We welcome him enthusiastically to our team.

Mr. Shrum expressed equal admiration for his new chairman and for the organization:

I was honored when Mr. Alger approached me about the position.  Pat is in the pantheon of songwriting gods here in Nashville and the writer of one of my favorite Garth Brooks’ songs, Unanswered Prayers.  I am looking forward to serving under his considered and kind leadership.  I can’t think of anything I would rather be remembered for more so than protecting and honoring the rights of such great songwriters like Pat Alger and the other 200 or so inductees.

Mark Ford, Executive Director of the NaSHOF, expressed excitement about the appointment:

I’m excited that Barry has joined the board of the Nashville Songwriters Hall of Fame.  His knowledge of copyrights and their creators, combined with his years of experience in the music industry, are a great fit for our organization.  He’s a pleasure to be around, a delight to work with and someone who will definitely stand shoulder-to-shoulder with us as we strive to honor Nashville’s rich legacy of songwriting excellence.

NaSHOF is currently producing a series of critically-acclaimed weekly television series called The Songwriters which features engaging conversations with NaSHOF inductees, including Gary Burr, Bill Anderson, Steve Cropper, Ray Stevens and many others.  The inaugural season is hosted by NaHOF Board member, Ken Paulson, and is produced at MTSU’s College of Media and Entertainment.  The shows airs three times weekly on Nashville Public Television as well in 10 other markets across the country.

Mr. Shrum accepted the position and took on the role in December of 2017.

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The first of the month (August 2016), the Department of Justice issued a summary of findings with regard to two court orders that govern the operation of two of the U.S. performing rights organizations (the “PRO’s”), ASCAP and BMI.  If it stands, the decision will also affect the third PRO, SESAC.

Songwriters and music publishers around the country were horrified with the DOJ findings, as were the PRO’s, with many songwriters claiming that they would now have to refrain from co-writing with songwriters belonging to one of the sister PRO’s.  This article will examine the logic of the reaction by the music community.  Is the proverbial sky falling, or will this event pass into obscurity and irrelevance?  We’ll sort out what all this means in this article.

As an aside, if you were not fortunate enough to tune into last night’s episode of my friends Heino and Scott with The Music Row Show on WSM 650, go to their website and check out the archives, as much of the information we share here was talked about in that radio program.  My appearance and conversation with The Music Row Show made me realize just how confused many songwriters will be about all of this legal maneuvering.  

Background

Before we look at the court orders, referred to as “Consent Decrees,” a little historical background will be helpful.  As I said, there are primarily three PRO’s, ASCAP, SESAC and BMI, and they were created in that order.   The two largest US PRO’s, ASCAP and BMI, make up the majority of the industry.  SESAC, by most accounts, has between 10-20% market share (although it is growing exponentially).

This is because ASCAP and BMI were both created out of controversy and strife and that highly competitive environmental produced some robust and resilient entities.  ASCAP arouse out of the Tin Pan Alley days.  Several of the key songwriters, IRVING BERLIN, VICTOR HERBERT and JOHN PHILLIPS SOUSA, began to see their songs being performed in restaurants, hotel lobbies and other venues, and they realized that they were not receiving royalties from these performances, a right that was first granted in 1897 and then incorporated directly into the 1909 Act.  These famous writers banded together to form the first coalition of songwriters and publisher, the American Society of Authors, Composers and Publishers.

Their efforts may have been received well in the music community, but the entities that used the music did not share that enthusiasm.  Certain NYC restaurant and hotel magnets, namely Shanely and Vanderbilt, questioned whether they were required to pay the composer for performance of a song in their establishments, even though they charged no admission for those performances.  The music, they maintained, was just a side show and not the main focus of what their customers were paying for.

The case, Herbert et al. v. Shanley et al. went all the way to the Supreme Court.  Writing for the majority, Justice Oliver Wendell Holmes ruled in favor of ASCAP and songwriters, saying:

Music is part of the total for which the public pays and the fact that the price of the whole is attributable to a particular item which those present are expected to order is not important.  It is true that music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere.

As a result, ASCAP had the stamp of approval from the highest court in the land.  They started an aggressive campaign to acquire licenses from venues where performances of music occurred, including broadcasters like television and radio stations. 

BMI arose as a direct result of ASCAP’s aggressive licensing activities.  From 1931-1939, ASCAP increased its royalty rates to radio and television stations over 400%, to the point where a group of broadcasters decided to get together and form Broadcast Musicians Incorporated in 1939.  They started signing their own composers and begin licensing non-ASCAP works for their catalog.  After a few years, most radio and television stations stopped using ASCAP music and would only use BMI-licensed music.

BMI and ASCAP have been adversaries ever since.  ASCAP, of course, had the upper hand, since they were first to market and arose out of the Tin Pan Alley environment.  ASCAP did not take kindly to being shut out of the lucrative broadcast market and the two organizations began a decades long fight for the music users.  This conflict ultimately caught the attention of the DOJ, who sued each entity under the Sherman Act (anti-trust) to address their comparative market power and balance the weight of power.  The result of the DOJ’s involvement were the consent decrees that, to this day, govern how terrestrial radio (Either AM/FM) digital rebroadcasts, and/or venues such as bars and arenas, license the performance of compositions.

SESAC, a European PRO at first licensing mostly classical, slipped into the U.S. in 1939 amidst all of this sibling rivalry and began licensing in the U.S., but as a private entity as opposed to operating as a non-profit like ASCAP and BMI.  They are not subject to any consent decrees and to this day remain under the radar, although the DOJ periodically audits them as well.

The ASCAP/BMI consent decrees defining what the PRO’s can and cannot not do – most notably, it requires them to issue “blanket licenses” to certain users.  These have been amended in 2003 and 1994 respectively.  The decrees also require that both entities offer licenses are similar terms and to similar clientele.  Importantly, for this discussion, the consent decree require that the PRO’s license to a user like Pandora one a request for license is made, regardless of whether a rate has been negotiated.  If the PRO’s and the user cannot agree on a rate, it is then presented to the “rate court” set up by the consent decree to decide.  The catch is that while all of this legal wrangling is going on, services like Pandora can continue performing the music.

The Recent DOJ Ruling

The gravamen of this issue happened in 2013 when several large music publishers, SONY ATV, EMI and Universal, among others, withdrew their “new media” licensing rights from ASCAP and BMI, leaving them to collect only their terrestrial right (read broadcasted radio or television).  They did this for a couple of reasons:  first, the consent decree do not allow the PRO’s to negotiate a market rate with digital streaming services; so, secondly, they did it in order to negotiate better deals directly with Pandora.  In 2013, Pandora negotiated a favorable percentage rate with Sony and Universal based on their gross revenues.

With their hands tied and major publishers going direct to digital stream services, ASCAP and BMI had no choice.  Streaming revenues have been increasing for years, and without these major players bringing in revenue, their revenues were decreasing.  So, in short, ASCAP and BMI went back to the DOJ seeking clarification with regard to the consent decrees with regard to operation and effectiveness.  Among other things, ASCAP/BMI ask that the decrees be modified to allow publishers/songwriters to “partially withdraw” their works.  This prompted a new review of the Consent Decrees by the Department of Justice that begin in 2014.  The DOJ released its findings on August 4, 2016 of this month.

The DOJ said that the ASCAP consent decrees doesn’t allow a publisher to withdraw partial shares.  It stated that consent decrees require a PRO “license to perform all the works in [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][its] repertory…” That meant, according to the DOJ, that it could not “rewrite the decree” to let publishers pick and choose how works are licensed and allow fractional shares.  This has great impact on the existing deals already negotiated with Pandora.  Specifically, the DOJ said:

The licensing of works through ASCAP is offered to publishers on a take-it-or-leave-it basis.

Specifically, the DOJ ruled:

1)  That the consent decrees would not be modified or abolished

2)  That the consent decrees to DO NOT allow “fractional” licenses that convey only fractional shares and required additional (read other PRO) to perform the works, i.e, the DOJ interpreted the consent decrees to require “full-work” licensing.

This new and dramatically different interpretation requires the PRO’s to convey licenses to radio, television, bars and digital music services giving them the right to public perform “100%” of their repertoires without the risk of adverse infringement.  This new “full-work licensing” principal applies even if ASCAP or BMI only represent a small fraction of a song’s copyright, which is almost always the case.  The problem, of course, is that ASCAP and BMI do not generally have the legal right to convey 100%!

Ironically, the DOJ findings state that “the current status quo system [used by the PRO’s]. . . has served the industry well for decades and should remain intact.”   This is confusing, since historically the PRO’s have licensed fractional shares, contrary to the DOJ’s findings.  A single song most often is written by multiple songwriters and those songwriters are generally affiliated with different performance rights organizations and only own a fractional interest in that song.  When a song such as All-American Girl, is written by Carrie Underwood, whose performance is licensed by BMI, with two other ASCAP songwriters, traditionally BMI would license 33.33% of the song and ASCAP would license the other 66.66%.  Now, according to the DOJ, either BMI and or ASCAP would have to license 100% of the song and report and pay the royalties for the other songwriters to the other PRO.  Imagine how these historic competitors view that prospect!

Herein lies a big part of this current problem.  If we look to copyright law, as we must, the answers may be clearer.  Under section 201(a), the author of song is the owner of the song.  But as all songwriters in Nashville are prone to collaborate, we have to factor in a second author/owner.  When that happens, the copyright law treats each owner as a tenant-in-common, just like two spouses who jointly own a house.  In other word, each one owns 100%.  So what does that mean?

That means that “[e]ach co-owner may thus grant a nonexclusive license to use the entire work without the consent of other co-owners, provided that the licensor accounts for and pays over to his or her co-owners their pro-rata shares of the proceeds.” United States Copyright Office, Views of the United States Copyright Office Concerning PRO Licensing of Jointly Owned Works (2016).  Of course, the songwriters can alter this default situation through signing a collaboration agreement, but no one ever does because that would “harsh the songwriting vibe.”

Furthermore, in a joint author situation, either author of the work may enforce the right to exclude others from using the work.  So, each author of a joint work “has the independent right to use or license the copyright subject only to a duty to account for any profits he earns from the licensing or use of the copyright.” Ashton-Tate Corp., 916 F.2d at 522 (9th Cir.1990). Accordingly, a joint copyright owner may not exclude other joint owners or persons who have a license from another joint owner. 

But there is another part of this analysis that can’t be ignored, and that is the doctrine of indivisibility.  Under the prior, 1909 Copyright Act, the author(s) could NOT divide the copyright, meaning that if the copyright was licensed, the entire copyright had to be licensed, not just one of the exclusive rights.  So, I would not be able to issue a print license apart from a license to perform the work.  The 1976 Act eliminated this doctrine and effectively made the copyright divisible.  Specifically, Section 201(d)(1) of the Act states that the ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law.  Further, the following section 201(d)(2) specifies that this principle of divisibility applied to each of the exclusive rights – print, adaptation, distribution, reproduction and performance – which could be divided, transferred and owned separately.

Now, for the first time, an author could license only the performance rights.  But more specifically, the author could license only a portion of his/her performance rights.  So, you see, the idea of transferring fractional shares of a copyright, or one of the exclusive rights of a copyright, is actually built into the copyright act.  This is something the DOJ ruling completely ignored in its analysis when it interpreted the Consent Decrees to require the PRO’s to offer 100% licensing of their catalog. 

The DOJ, however, was focused primarily on the user of the music, completely ignoring the creators.  For the user, the DOJ felt it was egregious to have to go to all three PRO’s to get a license to perform one work.  To be fair, the PRO’s have tiptoed gingerly around this issue for years.  A license from one songwriter/publisher to perform a work should, in theory, be sufficient.  That is, after all, the meaning of a non-exclusive license.  The industry has avoided the user aspect of partial rights grants for years, requiring each user to obtain a “blanket license” from all three PRO’s in order to perform each PRO’s catalog (and consequently, glossing over the fact that a license to perform one individual work from the owner of copyright would suffice to perform the work).  In this way, each PRO could distribute the royalties collected on the benefit of their members to each one respectively according to their own algorithms. 

That process may change if the DOJ’s consent decree remains in effect.  Each PRO would have to agree who collects for a particular license, and then credit the other with their share.  This would require each one to adjust their rates accordingly and account to and pay some of the royalties received to the other PRO’s.  While it can’t be stated definitively, one just feels that this process will somehow negatively impact the songwriters and publishers, and not the PRO’s or the venues.

Most people in the industry predict that application of this “full-work” licensing approach will throw the music industry in complete and utter chaos – and they’re probably correct.  But, as I said earlier, all hope is not yet lost.  First, the DOJ gave ASCAP and BMI one year to get their act together and start operating on the 100% licensing principle they outlined.   Second, for perhaps the first time in history, ASCAP and BMI are bedfellows (you know what they say of politics) in that they have agreed to a course of reaction:  BMI is appealing the DOJ’s ruling while ASCAP is lobbying Congress for relief.   ASCAP and BMI both announced that they would join forces to fight this common foe.

The president of BMI, Michael O’Neill, was quoted in the Tennessean in response:

The DOJ’s interpretation of our consent decree serves no one, not the marketplace, the music publishers, the music users, and most importantly, not our songwriters and composers who now have the government weighing in on their creative and financial decisions.  Unlike the DOJ, we believe that our consent decree permits fractional licensing, a practice that encourages competition in our industry and fosters creativity and collaboration among music creators, a factor the DOJ completely dismissed.

For her part, CEO of ASCAP, Elizabeth Matthews stated that:

The DOJ decision puts the U.S. completely out of step with the entire global music marketplace, denies American music creators their rights, and potentially disrupts the flow of music without any benefit to the public.  That is why ASCAP will work with our allies in Congress, BMI and leaders within the music industry to explore legislative solutions to challenge the DOJ’s 100 percent licensing decision and enact the modifications that will protect songwriters, composers and the music we all love.

Most people outside the industry will have no idea how significant it is that both of this PRO’s are cooperating with each other on this issue.  ASCAP’s and BMI’s joint efforts may serve to put pressure on Congress to address an aging Copyright Act and implement some of the recommendations made by the Copyright Office in 2015, namely, the creation of a mega “Music Rights Organization” or MRO that, among other things, licenses all exclusive rights of the copyright owner, including both performance and mechanical rights.  The Copyright Office also recommended an elimination of the Consent Decrees.  U.S. Rep. Bob Goodlatte, R-Virginia, who is chairman of the House Judiciary Committee, is expected to recommend changes to the Copyright Act that could be taken up on the 2017 Congress.

In the midst of all of this activity, SESAC is again quietly biding their time, acquiring Harry Fox (mechanical rights) and Rumblefish (a “record label” including digital performance rights) in preparation for becoming perhaps the first effective “MRO.”

No one truly knows the ultimate outcome of all of this but one thing is certain:  the history of performance rights organizations in America continues to evolve.  The copyright law is very complex and have evolved over the years since its passage in 1976.  That law took almost half a century to pass and there is no reason to believe that a new revision wouldn’t take just as long given the multiple competing and often conflicting interests of various stakeholders.  But patience is not the songwriter’s only recourse here:  write your elected representative in Washington and plead your case, as free speech is the only right that will make a difference in this fight.

 

 

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We just put the finishing touches on my great client, Sammy Mitchell’s, exclusive co-publishing deal with Jackie Boyz/Razor & Tie Music Publishing joint venture.   The partnership between Jackie Boyz (the Grammy-award winning songwriting/producing team of Battey brothers) and Razor & Tie was formed at the end of 2014 for the purpose of developing fresh new songwriters.  Congrats to Sammy, who is one of those new faces and executed the papers earlier this week.  Razor & Tie has offices in New York, Nashville and L.A., and, in addition to the Battey brothers, is home to several great writers, including Phillip Larue wo co-wrote Whiskey in my Water, by Tyler Farr, which hit #1 on Country Radio and has been certified as Gold by RIAA.Photo

Sammy started playing the guitar at the age of 10.  He had a pension for punk and, go figure, country music.  Some of his biggest influences on the uncountry side of the fence were The Beatles, Third Eye Blind, Rage Against The Machine, Refused, Dr Luke, Aaron Sprinkle, Matt Goldman.  As for his Oklahoma country side,  he admits “I love the textures used in classic recordings [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][such as] Hank Williams, Willie Nelson, Marty Robbins, Johnny Cash, etc.”  After high school, Sammy began touring with a band (The City Lives) for a couple of years, which ultimately ending up on Edmond Records (owned by Mike Kennerty and Tyson Ritter of The All American Rejects).  After disbanding, Sammy decided to moved to Nashville and enroll in Belmont University’s Mike Curb School of Music Business.

After college, Sammy considered going to law school, but his love of music and producing kept calling him back.  So instead of law, he refocused his energy on producing music.  He began dabbling on the recording equipment that had been with him since his bNew Signings: Jackie Boyz Team with Razor & Tie, Son Lux to Glassnote, OWSLA Grabs Carmada and Moreedroom in Oklahoma.  He sent a few tracks to Steven Battey in LA.  The Battey brothers had platinum success with the likes of Justin Bieber, David Guetta, Madonna, and Flo Rida, just to name a few.  At that time, Jackie Boyz had just acquired new management under Iain Pirie (Co-Producer of American Idol, 19th Entertainment, Carrie Underwood).  Steven Battey was planning on moving to Nashville to develop his own writing in country music.  He liked what Sammy sent him, so the two met in Nashville and hit it off.  They immediately started writing/producing tracks together and doing co-writes with various songwriters in Nashville.  Before long, Sammy found himself writing with the brotherly team, including Carlos, and the three formed a unique bond.  Sammy’s deal with the Jackie Boyz/Razor & Tie venture came as a result of the momentum that built from his experience with Steven & Carlos Battey, with whom he formed a tight knit writing and production team.

Sammy describes the amazing opportunity this way:

All the while [we were] shopping our songs to different publishers, labels. I was super green and I was sorta thrown 360 degrees. I hadn’t had much experience in writing sessions or building tracks at a scheduled pace.  I don’t think I left my studio for 10 months just trying to develop my skill in new ways, listening and studying music in every genre, just really became obsessed with the process of getting sounds. That was probably the biggest growth period of my career so far. As time went on Iain began managing my stuff and we started growing together as a team. We met with a bunch of major and independent publishers and as time went on formed a good relationship with Razor & Tie. After about 8 months or so of working with their writers and discussing various publishing options, we felt we had a good home with them. They had just hired Brad Kennard (formerly VP of creative at Big Yellowdog) as VP of publishing at Razor & Tie to head Country Music.  [So, that is why] I signed to them as a producer/writer.  [My] goal is to focus on building my songwriting as well as pushing my track work as a producer. I’m focusing on 90% country music. I love the freedom that exists in country music right now, its a trend that lends to so many different styles. I have always been a fan of Older country music. It was always around while growing up in Oklahoma.

The corroborative effort is sure to exercise all of Sammy’s skill set, and now Sammy has the opportunity to further hone those skills writing with one of the production teams and one of the greatest publishing entities in current music.  As he indicated, he is now managed by the same famed manager as Jackie Boyz, Iain Pirie.  We wish Sammy great success.  I know it is going to be a long and prosperous road and I look forward to growing with him as he succeeds.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Since taking over Mary Beth Peters as Register of Copyrights in 2011, Maria Pallante has been listening and responding to the concerns of a number of her constituents, particularly those in the music industry, and it most certainly shows. In the last few months, several pieces of Maria_Pallantework product have been delivered by the Copyright Office and/or Congress that have significant impact on the music industry and, in particular, those of my readers who practice the craft of songwriting. If you are a songwriter, you should pay particular attentions to two of these things specifically. The first is the Copyright Office’s report, released in February 2015, titled Copyright in the Music Marketplace. The second, more directly aimed on the songwriting community, is the Songwriter’s Equity Act reintroduced to Congress in this term.

The Copyright in the Music Marketplace Report.

Anyone who works in the music or entertainment industry should take the time to read the full report, available here. The report begins in the Preface by pointing out that “both music creators and innovators that support them are increasingly doing business in legal quicksand” (Emphasis added). This “legal quicksand” that the Copyright Office references refers to licensing as it relates to both sound recordings and musical works, and the disparities that have developed over the past decade or so as a result of various amendments to the 1976 Copyright Act. For example, with regard to performance royalties for musical compositions, ASCAP and BMI have operated under consent decrees issued by the Federal Courts for years. In addition, the rate courts establish the rates that must be paid for public performance under what is referred to as a “fair market value” analysis in which the court attempts to determine the price that a willing buyer and willing seller would agree to in an arm’s length transaction. The court also gives substantial weight to antitrust concerns in this regard. For the more astute readers, you may be wondering about SESAC. SESAC generally operates as if it is subject to the consent decrees, even though technically it was not a party to them. BMI and ASCAP frequently call attention to the fact that there is disparate treatment as to SESAC. The process of setting rates for the performance rights organizations in the rate courts can be lengthy and complicated, leaving music publishers and songwriters complaining that there should be a more efficient way to set the rates.

As for mechanical royalties for reproduction of musical compositions in sound recordings, the Copyright Royalty Board (“CRB”) establishes those rates. For this purpose, the CRB operates pursuant to the compulsory licensing guidelines in Section 115 of the Copyright Act, using the four‐factor, public policy‐oriented standard in section 801(b)(1). Not complicated at all right?

That brings us to Section 116(6) of the Copyright Act, which provides royalties to sound recording authors for digital transmissions of their works. The rates for the digital performance of sound recordings is proscribed in Section 114 using dramatically different standards, depending on the type of use. This the reason royalties received from Spotify look so much different than royalties received from Sirius or terrestrial performances. Older services such as Sirius XM, the only remaining satellite service, and Music Choice or Muzak, the only remaining subscription services, are governed by the same four‐factor standard as mechanical reproductions of musical works subject to compulsory licensing under section 115 as regards royalties. According to SiriusXM’s own website, the “U.S. Music Royalty Fee” for 2015 was 13.9% of the subscription fee charged for a particular service. That fee is placed into a fund that is used to pay royalties. Meanwhile, royalty rates for Internet radio services and newer noninteractive subscription services, and for all ephemeral recordings under Section 112 regardless of the type of service, are established under the so‐called “willing buyer/willing seller” standard, which many believe yields more market‐oriented rates than those established under section 801(b)(1).

So what about Spotify, you may ask? Spotify is, by far, the largest interactive streaming service available in the marketplace, and in many ways sets the tone for what a “willing buyer” is willing to pay. According to its response to the Copyright Office’s Notice of Inquiry, it pays out “70% of all money it receives to rightsholders.” But those songwriters who have received paltry royalty checks from Spotify revenue might question the accuracy of that statement, wondering why they don’t see more. That is because Spotify doesn’t pay on a “per song stream” model, as royalties get calculated when it comes to mechanical uses. Rather, they set aside the royalties and the total royalty pie is split among all rights holders based on the percentage of total Spotify streams their songs garner. But according to a New York Times article, the company does, in fact, calculate the per rate royalties, estimating that the average song generates between $0.006 and $0.0084 per stream in royalties. That is why, to songwriter in particular, this may seem like a pittance. That’s why Taylor Swift recently announced that her new album would not be available via Spotify. But Spotify’s counters these objections, producing data that it says illustrates that the numbers really do add up for big artists such as Swift. The company reports that the most-streamed album on the service each month typically generates more than $400,000 in royalties.

Finally, with regard to performance royalties, musical composition copyright owners enjoy performance royalties froRoyaltiesm terrestrial radio while the owners of sound recording copyrights do not. The radio industry has successfully convinced Congress on numerous occasions that it operates on a “quid pro quo” basis with the record industry so that there is no need for royalty payments. After all, without the marketing that radio provides by playing the records, there would be no hit records. This may seem like an antiquated loophole in the system, because it is. There is no reason why the owners of the sound recordings should not be compensated for performance over terrestrial radio, just as music publishers and songwriters are. This loophole needs to be closed to eliminate that obvious inequity.
So, as you can see, the rate setting standards under these various statutory licenses and consent decrees differ greatly, based on what rights are implicated and the use at issue. But even for arguably similar services, such as Spotify and SiriusXM, the structure produces inconsistent results and the royalties that are paid vary widely.
In addition to the disparity in setting royalty rates in the music industry, the report called attention to the fact that there is a general lack of transparency in regard to royalty streams and ownership. For the songwriter, the concern has always been that there is money being generated from the copyright that is not finding its way into royalty check. Now, with all of these disparate royalty streams being generated from new digital sources, particularly those involving direct deals between record companies and digital users, the songwriter legitimately feel as if those revenues are not being shared. For example, the labels ostensibly negotiated an 18% stake in Spotify, which is probably the real reason they love the service so much.

All of these concerns, among others, led the Copyright Office to articulate four guiding principles derived from their discussions with “stakeholder” during their research in regard to which it says it “appreciates and agrees.” The four principles are as follows:

  1. Music creators should be fairly compensated for their contributions;
  2. The licensing process should be more efficient;
  3. Market participants should have access to authoritative data to identify and license sound recording and musical works; and
  4. Usage and payment information should be transparent and accessible to rights owners.

However, the Office acknowledged that there was no consensus on how to achieve these goals, and in the end, developed some additional principles it believed should govern any future reform of Copyright Law:

  1. Government licensing processes should aspire to treat like uses of music alike;
  2. Government supervision should enable voluntary transactions while still supporting collective solutions;
  3. Rate setting and enforcement of antitrust laws should be separately managed and addressed; and
  4. A single, market‐oriented rate setting standard should apply to all music uses under statutory licensing.

If these principles are implemented, it would be dramatic changes in the way royalties are paid, collected and distributed. The Copyright Office was not kind to the compulsory licenses provisions under Section 115 of the Copyright Act, known to many as the “statutory royalty” provisions, proposing that we “sunset” these as they expire. The existing structures under Sections 112 and 114, on the other hand, it felt worked fairly well. There are various implications for organizations such as Harry Fox and others if these changes were to occur.

Overall, however, the report was fairly balanced, and songwriters should receive more favorable treatment from Congress if it follows these principles. It remains to be seen what Congress will do with the research developed by the Copyright Office in this report. That leads us to the next topic of discussion, and that is the Songwriter’s Equity Act, introduced in March.

Songwriter’s Equity Act

This Bill was originally introduced in February 2014, but died in committee. Now, it has been reintroduced by a bipartisan coalition to both houses of Congress and, with strong Republ5237697662_f8e465b716ican support and control, there is much more optimism. The Bill, introduced by Congressman Doug Collins (R-Ga), seeks to amend Section 114 and 115 of the Copyright Act to implement some of the suggestions proposed by the Copyright Office’s report. Orrin Hatch (R-Utah), a senior senator and member of the critical Judiciary Committee, co-sponsored the legislation and has frequently been an advocate for songwriters. For one thing, it would allow the royalty courts to adapt the “fair market rate” standards when setting mechanical license rates under Section 115, and allow them to consider royalties paid to recording artist when setting rates for songwriters under Section 114. Most people believe that this would be a more profitable structure for songwriters and music publishers.

When testifying in front of Congress in regard to last year’s identical legislation, National Music Publishers Assn. president David Israelite said that

[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][t]hree-quarters of a songwriter’s income is regulated by the federal government. While most property rights are valued in a free market, songwriters have suffered under a system that devalues their work and takes away their most basic property rights.”

Israelite applauded the legislatures for standing up for songwriters.

As the Copyright Office report on music licensing discussed above recommends, if songwriters’ royalties must be regulated by government, then they should at least be based on fair market value. Collins told the Tennessean that tell songwriters and publishers that “they’ll have a friend [in me] who’s going to fight for this bill.” The bill has support from both sides of the aisle, including not only Tennessee Senators Lamar Alexander and Bob Corker, but U.S. Rep. Jim Cooper and U.S. Rep. Marsha Blackburn, R-Brentwood.

In conclusion, I think it’s about time Congress considered the equitable situation of the songwriter, the lowly work horse of the music industry.  NSAI has been saying for years that “it all begins with a song,” a phrase that was quoted in the Copyright Report, by the way, and that is, in fact, where it all begins.  But over the past decade, the significance of the songwriter has diminished and the loss revenues from record sales created by illegal downloading made it impossible for most to practice this traditional craft.  These legislative efforts seek to remedy some of that loss.

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My associate, John Inniger, does a nice job of covering the basics of the Thicke/Williams litigation against the estate of Marvin Gaye in this LOR post. But since a jury verdict in favor of the Gaye Estate rendered a $7.1M verdict earlier this month, the social media and blogosphere has been abuzz with commentary pro and con on the merits of the case.  So an editorial post-mortem is in order.

One example of the Internet ramblings is Moses Avalon, one of my fellow bloggers and a self-styled “music business expert.”  Mr. Avalon denounced the verdict both in print and in an interview on Fox as being based on the “sound of the Gay recording, featuring a somewhat similar bass line.” On his blog, he makes the assertion that “[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][a] bass line has never been considered part of a composition’s copyright.” You can read Moses’ article here on his website.  I generally find Moses’ articles and newsletters to be entertaining and informative, and always applaud the efforts of a fellow member of the community who makes great strides in communicating with the public as he does.  I must say, however, that I disagree with Moses’ assessment of the outcome in this case as well as with his characterization of it as based on a “sound.”  He is also wrong about bass lines, by the way, but more on that later.  I will say that the one thing Avalon did say in the referenced article that is correct is his conclusion that the only group of people “in the world [who] can tell you if you stole a song— [is] called a civil jury.”  So that’s where we’ll begin.

In regard to jury trials, this is one area of the law where “lay people,” i.e., people who are not lawyers, get confused when it comes to verdicts like this one, perhaps as a result of watching too many episodes of Law & Order, Boston Legal (for the Shatner/Spader fans)  or L.A. Law  (for those who go as far back as I do).  Real jury verdicts are not generally based on emotions and drama, but rather on a particular set of (sometime mundane) facts, introduced into evidence through witnesses, whose credibility and reliability are evaluated by those jurors in the deliberation.  So, before someone criticizes a jury’s verdict for being based on “the legacy of a beloved artist [such as] Marvin Gaye,” as Mr. Avalon did here, it would be beneficial to review the evidence that was submitted to that jury and try to get into their minds to determine how they arrived at that decision.

Not to belabor this point, but in a jury trial, the jury evaluates the fact and the judge rules on the law.  As for copyright infringement cases, not to oversimplify it, the plaintiff must offer evidence that proves the following: (1) that he/she is the copyright owner; (2) that the alleged infringer had access to the work; and (3) that protected elements of the original work were misappropriated. These elements would be presented to the jury at the beginning and end of a trial, in the form of jury instructions from the judge, and they would make a determination as to whether the facts support these elements.  Of course, as an aside, there are many related elements contained within those prongs, such as whether the works are “substantially similar,” or whether the two works were created independently, or whether the similarities are based on basic building blocks, i..e., elements that cannot be protected by copyright.  Apparently, the latter defense is what swayed Avalon to come down on the side of Thicke/Williams.  Moses believes that the jury verdict was based on a mere “bass line” and rhythm, which are ostensibly only building blocks and can never be protected. But this assessment would be incorrect:  there are times when these elements meld into the melody and/or become distinctive enough, as the experts here testified they did.  For example, in the seminal case involving parody, Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the Supreme Court spent a great deal of the opinion discussing the “characteristic” bass line of Pretty Woman, describing it as the “heart” of the song, and on remand ask the lower court to retry the issue of whether too much of the bass line was used to achieve the transformative purpose of the parody (ultimately, Acuff-Rose licensed the song to 2 Live Crew in a settlement).  In the case at hand, there was testimony from an expert witness that the bass line from the Marvin Gaye song was an unusual variety in Motown music and very characteristic of Gaye’s style.

But before we delve too deeply into the evidence presented to the jury, there is another aspect of the Thicke case that is often mischaracterized by bloggers, media and press.  Many imply or even report that it was the Gaye family who started this litigation.  Let clear that up:  this is not an infringement action filed by the Gaye family, but rather this case was filed by Robin Thicke and Pharrell Williams, among others, against Marvin Gaye’s estate, not the other way around.  In a somewhat aggressive move by their flamboyant California lawyer Howard King, they filed a preemptive action for declaratory relief, asking the court to declare that they song was not an infringement.  At the very least, this move was risky – as can be seen from the outcome – and at worst, it was arrogantly misguided. This “strategic” move, perhaps inspired by the Gaye family’s inquiry to its publisher after reading Thicke’s comments on the song, has also been hotly debated in the blogs and on the Internet as well:

Robert Jacobs, co-chair of entertainment & media at Manatt, Phelps & Phillips, had this to say about the declaratory judgment:

The move could have been precedent setting if Thicke and Williams had prevailed, then other songwriters and lawyers may have started using the pre-emptive lawsuit as a strategy to push back on spurious claims.

This “pre-emptive” strategy is reminds me of the tactic employed by some lawyers using the procedures in F.R.C.P. Rule 11 involving frivolous lawsuits as an overtly offensive strategy to persuade their opponents to drop certain allegations in a case or various counts in the complaint.  This tactic has become commonplace in both State and Federal courts and is sometimes rewarded by more conservative judges.  Harvey Geller, with the Los Angeles law firm of Gradstein & Marzano, agreed King’s unorthodox strategy here might be an interesting approach, but seriously questioned the strategy:

If they want to settle and you instead sue, you are guaranteeing yourself a long and nasty legal battle. It was a really odd procedural maneuver. When you sue somebody, the one thing you can practically guarantee is you will get a cross complaint.

My local home boy and fellow member of the Nashville bar Richard Busch, attorney for the Gaye family, agreed that the strategy backfired, saying:

I was surprised. When Robin Thicke and Pharrell Williams decided to launch a lawsuit seeking declaratory relief that “Blurred Lines” wasn’t a copyright infringement of Marvin Gaye’s “Got to Give It Up,” I didn’t know they’d do this. My opinion is that they believed the Gaye’s didn’t have resources and the wherewithal to fight. My belief then was they were being bullies. I bet now they regret it.”

So now that we have those strategic and political back stories aired, let’s examine the evidence presented to the jury.

Perhaps the most damning type of evidence in any case is an admission from the alleged perpetrator that he/she is guilty. This case is not an exception. Long before to the litigation arose and before the Gaye Estate was alerted to the similarities, Robin Thicke bragged in an interview in GQ magazine about how much of a fan he was of Marvin Gaye. In fact, the rumor was that Thicke had a “fixation” on Gaye. Thicke continued to pontificate about how he had literally instructed Pharrell Williams to write a song just like Got to give it up. In fact, he said that Williams even “pretended” that he was Marvin Gaye as he wrote Blurred Lines. Starting with that confession, a jury doesn’t really need a lawyer telling them that they will find in favor of Gaye as to all three elements: ownership, access and misappropriation.

Of course, by the time the litigation was in full swing in April 2014, Thicke was claiming in a deposition that he was drunk and high on Vicodin when he recorded Blurred Lines and that he barely remembered anything, and was barely involved in its production.  He claimed that Williams wrote “almost every single part of the song.” As for his claims in GQ, he attempted to discount their validity, stating that he was jealous and “wanted some of the credit.” To make matters worse, when he testified in court, Thicke tried to generate jury sympathy with a self-deprecating characterization of himself, testifying that he had lied repeatedly in interviews and in sworn legal documents in an attempt to claim co-writing credit for the song that is the biggest hit of his career thus far.  That kind of dishonesty doesn’t play well with a jury, as it’s difficult to know which statements made by the witness are true and which are false.  It’s King’s worse nightmare and a dream come true for Bosch.

In King’s opening comments of the trial he emphasized how artists needed wide berth in their creative pursuits, trying to implant in the minds of the jury the theme he had set out as fact in the complaint, that “[t]he intent of “Blurred Lines” was to evoke an era” and therefore the songs were “starkly different.” During his opening statement, he reinforced his theme of his case just as he, Williams and Thicke had reinforced it publicly in the press, on the Internet, and social in media: “We’re going to show you what you already know: that no one owns a genre or a style or a groove. To be inspired by Marvin Gaye is an honorable thing.”  In fact, the team is still pushing this idea that being an inspiration to current artists is an honorable thing.  While that statement is definitely true, what they ultimately discovered is that this inspiration looks a whole lot different than misappropriation.  By virtue of the Progress Clause of the Constitution, artists already have wide berth to be inspired by the creative ideas of others – indeed that is the very purpose of Copyright Law – but that does not mean that they can appropriate the expression of those ideas and call them their own!

Throughout this ordeal, Williams seems to be the most honest and sincere of the bunch, which is a tribute to his character, especially considering that Thicke basically threw him under the bus on multiple occasions during the course of the litigation. In his own testimony, Williams estimated that he has written thousands of songs in his 20-year career and believed that although Blurred Lines may have the “feel” of Gaye and the that genre of the late ’70s, it was nonetheless a wholly original creation.  Unfortunately for Pharell, however, Thicke and King had already set him up failure on this score by promoting their theme of the case on every social media outlet and online media that would print it.  While it may track well with the “all-information-on-the-Internet-should-be-free” crowd, the idea that Blurred Lines was a tribute to a generation, rather than an appropriation of Gaye, did not align with the facts at all, particularly the expert testimony we’ll examine below.

The exploitation of King’s case theory prior to the trial may have been successful from a publicity standpoint, but it gave Busch a significant advantage when it came to trial strategy and preparation, as can be gleaned from Busch’s assessment here:

[I]t was our opinion that Pharrell Williams and his lawyer Howard King wanted to litigate this in the press by continually saying that all they did was take a feeling. And if they did any copying, it was only a genre. We didn’t view it like this at all. Yes, it involved a big, popular song, but this was a straight-up copyright claim over com positional elements that we believed had been taken.

Once Thicke and Williams filed suit against them, the Gaye family counter sued, as almost anyone would expect, alleging that the song Blurred Lines misappropriated multiple protected elements of Got to Give it Up.  But these efforts were stymied early on by judge’s ruling on a summary judgment proceedings in the case.  Gaye’s attorney, Busch, filed a “mash up” of recordings of the two songs, claiming that the two “sound[ed] like a perfect, natural match because it blend[ed] sonically” and that the mash up was a “concrete musical illustration of the substantial similarities” between the two songs.

But in his response, King threw up the curveball argument that the Gaye family did not own their father’s commercially released sound recordings featured in the mash up, but instead owned the composition contained in the “lead sheet,” the sheet music that was filed with the application as the best copy.  The Gaye recordings belong to Motown Records, which is owned by Universal, which in turn owns Interscope — the record company that released Blurred Lines and a defendant in the Gayes’ countersuit.

Judge John Kronstadt agreed with King in a ruling in January and reaffirmed the ruling following an appeal from the Busch. His decision enforced that the Marvin Gaye recordings of “Got To Give It Up” and “After The Dance” couldn’t be heard in court. Instead, he required that the attorneys use only stripped-down instrumentals of both songs.  This was a significant victory for the Thicke team, as presentation of their recording against the banal sheet music of the original would most certainly reinforce the theme of their case that they were trying to replicate an era, not a song.  Further, it ostensibly hamstruck Busch, who could not longer let the jury hear some of the most obvious similarities between the recordings.

Busch said of this about the disability:

image “[W]e tried this case with one-and-a-half arms tied behind our back thanks to the judge’s ruling to not allow the full Gaye recording to be played to the jury. The court held that our claim was limited to elements found on the lead sheet deposited with the Copyright Office, and had we lost, there certainly would have been an appeal. But we were able to overcome the disadvantage by preparing excerpts from the recording of what the court found to be arguably protected and have it compared to excerpts from “Blurred Lines.” In the end, this focused the jury on the music and allowed for a good comparison.”

“The court’s ruling may have contributed to the other side’s biggest mistake in my view,” Busch continued. “They focused heavily on allegedly specific note-for-note differences between the lead sheets and the recording.

So what was initially a huge defeat for the Gaye family actually turned in their favor, again thanks to the ill-fated theme of the case developed by King.  That brings us to the “always-present-in- copyright- infringement-actions” dueling musicologists! Copyright infringement actions traditional rely heavily on the testimony of such experts and this case was no exception.  The Gaye Estate relied on Berkeley professor and music expert, Judith Finnell & Harvard professor of African-American music Ingrid Monson, while the plaintiffs relied on Sandy Wilbur. And as Busch pointed out, due in large part to the theme of the case we’ve discussed above, the expert for Thicke and Gaye focused heavily on the “trees,” whereas the experts for the Gaye family took a broader approach, combining to focus on the “forest” as it were.

The jury heard testimony from Finell alleging that the two songs were substantially similar in a number of regards, despite the characterization by many, including Wilbur, that any similarities were relegated to common building blocks like drum beats and bass notes.  To begin, Finnell examined melodies and lyrics to several lines of both songs: “I used to go out to parties” in Gaye’s Got To Give It Up” and the chorus opener “And that’s why I’m gon’ take a good girl” in Blurred Lines.  She found the similarities in the melodies to those two phrases “pretty stunning” and “highly unusual.”  Both begin with a repetition of the same note, she opined — “one of the most important considerations in comparing melodies” — and end with a single word (“girl” and “dancing”) sung over several notes.  This effect is called a melisma, or the singing of a single syllable of text while moving between several different notes in succession.

Finell also noted that thematically the songs were similar in that they both described a type of transformation. The narrator of Got To Give It Up transforms from a wall hugger to an enthusiastic dancer, while in Blurred Lines, “the ‘good girl’ transforms into a more sexually liberated girl,” according to Finell.  Line by line, the Wilbur and Finell continued to compare the lyrics to song, including the line from Gaye “move it up / Turn it ’round / Shake it down” which is similar in melody and lyric to Thicke’s “Shake around / Get down / Get up.”

In his testimony, Williams, who wrote the lyrics to Blurred Lines, denied that “Shake around, get up, get down” closely resembled Gaye’s line “Move it up, turn it round, shake it down,” saying that “[i]n the average black family of the Seventies, that’s what we do when a song comes on. That’s what my dad used to say.”image

Next, the expert compared what was variously described as the “signature phrases” of the two compositions: “Take a good girl” in Got to Give it Up and “Keep on dancin’ in Blurred Lines.”  Finell argued that “[i]n the case of these two hooks, the key words of the hook, the money words — ‘good girl’ and ‘dancing’ — [each] come immediately after the bar line,” referring to the timing of the lyrics. She also noted that the two phrases share three of their four notes.

Using example after example, Finell continued to drive home the fact that the similarities in the lyrics were too substantial to be any other than actual copying, dispelling the Thicke team’s mantra that they were simply copying a “feeling.”  The rap verse in Blurred Lines begins and ends, she testified, at the same point in the song as the Gaye song’s “parlando” — a lyrical chanting Finell described as “a precursor to rap.” Busch and Finell compared lyrics from the parlando and the rap verse, pairing Gaye’s “Let me step into/ to your erotic zone” with the repulsive line “I’ll give you something big enough to tear your @#$ in two”

After exhaustively parsing the lyrics and melodies, the experts finally arrive at what Avalon and most others focus on in this case, the interplay between the keyboard, bass and drums.  Both songs, Finell testified, feature remarkably similar bobbing keyboards and bass lines playing to similar rhythms and moments of silence. Finell noted that both of these underlying melodies use the E and A chord progressions and, of course, noted these similarities are also so extreme as to be beyond coincidence. Plaintiff’s expert Wilbur pointed out that chord progressions aren’t identical at all, since Got To Give It Up uses eight chords while Blurred Lines uses just two.  In an attempt to diminish the similarities, Thicke, during during his turn on the stand, played a medley of pop songs on a keyboard in order to demonstrate that many share the same chord progression and therefore can sound similar.

Now we come to my favorite part.  Since the theme of King’s case – i.e., that the two songs only possessed a similar style because Williams was “inspired” to create a tribute to the genre – had been widely publicized through their own efforts, this afforded Bosch the opportunity to build a counter attach. Wisely, in direct response, Busch brought in an expert to contradict this theory, and it is perhaps her testimony that helped sway the facts in favor of the jury’s finding of substantial similarity. The Gayes’ additional musical expert, Harvard professor of African-American music Ingrid Monson, bolstered Finell’s arguments about the similarities between the rhythm and bass line.  Monson testified that Gaye’s bass line, paired with a reggae- or ragtime-influenced keyboard melody, was highly unusual in Motown music, and very unique to Gaye.  That testimony made it difficult for the jury to accept the claim that Williams was merely influenced by a genre or generation of music in general instead of the Gaye’s composition specifically.  Monson opined that the similarities in this regard were substantial, leading her to suggest that while Blurred Lines was being written, Got To Give It Up was likely playing in the background. Since she wasn’t present when Blurred Lines was written, the judge sustained King’s objection and that remark was stricken from the record.

Finally, Finell also testified that there were additional strong melodic similarities. In her expert report and testimony, she identified a short, recurring melodic line she labeled “theme X,” heard over Gaye’s lyrical phrase “dancing lady” under the main vocal.  Finell identified this as the same melody Thicke sings under lyrics “OK, now he was close” and “But you’re an animal.”  Significantly, she identified one very recognizable note in “theme X’ that happened to be sung out of key.  This is reminiscent of the rest note that ultimately decided the George Harrison case regarding subconscious infringement, Bright Tunes Music v. Harrisongs Music 420 F. Supp. 177 (S.D.N.Y. 1976).  On that note, Finell drove home the substantial similarities between the songs, concluding that they are “… the same musical material. It’s the same notes, the same rhythm, just … the same.”

Miller responded to this damaging testimony by asserting that Thicke’s vocals don’t match the Gaye sheet music, but rather that any similarity between the songs is found in the recordings, thus repeating King’s theme of the case to the end.  But Finell pointed out that this discrepancy is a result of the fact that Thicke’s theme X matches a harmony that is implied in Gaye’s lead sheet, even though it is not written.  “It’s represented as one melodic line when really there’s three that occur,” she noted.

In the end, it is critically important to see this case through the eyes of the jury when evaluating the outcome.  Those eight people – five women and three men – saw the mountain of evidence, heard the dueling opinions, listened to the testimony of Williams and Thicke, and carefully evaluated and weighed the credibility of all that testimony and evidence to determine if Busch had met his obligation to prove ownership, access and misappropriation.  After careful deliberation, they believed the evidence indicated substantially similarities not only in the keyboard, drum and bass interplay, but also in the themes, melodies and lyrical construction.  The very unique musical elements used by Gaye, and no other Motown artists, were the same as those found in Blurred Lines.  Since access was admitted by Thicke and, to some degree, by Williams, the jury didn’t buy the shallow defense that this was a homage to 70’s R&B music.  Rather, it was a misappropriation of Gaye’s original song.   They believed Thicke’s early admission against interest in the GQ article that he had instructed Williams to write a song similar to Got to Give it Up, rather than he self-serving testimony that that admission was, in fact, a little white lie.  In the end, a jury of their peers determined that Thicke and Williams should pay $4 million in copyright damages plus profits attributable to infringement, which for Thicke was determined to be $1.8 million and for Williams was determined to be $1.6 million. While that total amounted to almost $7.4 million, one of the highest awards in history, it should be noted that the song has generated more than double that amount, so it is not unreasonable.  Busch immediately asked that the court suspend sales of the song.

After the trial, the Plaintiffs issued the following statement:

While we respect the judicial process, we are extremely disappointed in the ruling made today, which sets a horrible precedent for music and creativity going forward. “Blurred Lines” was created from the heart and minds of Pharrell, Robin and T.I. and not taken from anyone or anywhere else. We are reviewing the decision, considering our options and you will hear more from us soon about this matter.

Of course, they decided to appeal the verdict, so we will have to hear what the 9th Circuit has to say about it.  In typical fashion, King announced the appeal on the Fox networks, repeating the now familiar themes:

We owe it to songwriters around the world to make sure this verdict doesn’t stand.  We are going to exercise every post-trial remedy we have to make sure this verdict does not stand. … Just because eight people think two songs are similar doesn’t mean they are. I think this is a horrible decision that is going to affect whether or not record labels provide the necessary funds for new music to be created.

In the end, King and his clients are still ignoring the evidence and leaning on the theme of his case, seeming even soliciting the support of friend like John Legend to denounce the verdict.   Of course, Legend was not present for the evidence.  Rather than “respect[ing] the judicial process,” they have mounted another social media campaign deriding the decision as a “horrible precedent” and a “horrible decision” for creativity.  You might admire them for that, but I would remind them that appeals courts tend to heavily favor the jury, who had the opportunity to impartially weight the credibility of the evidence and made their determination on that basis. If I had been sitting on that jury, this evidence likely would of swayed me in the same direction. Infringement, even unintended, is still infringement.

More importantly, I would remind everyone that this is the type of decision that actually encourages creativity.  If an artist know that his creation cannot be misappropriated, that artist will continue to create.  The day that we allow the unfettered use of creative expression without appropriate penalty is, in the words of Don McClean, the day the music died.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

As people say goodbye to the December holidays and begin planning their goals for a new year, many considering starting a new business in order to be their own boss and start down the road to financial independence. So, if you plan on starting up a new venture in 2015, you will likely have questions about the structure and operation of the business. You should also be aware of the importance of protecting any intellectual property your new business may own. In this post, I will give you some basic direction for doing both as we consider the certain aspects involved in such a decision, including some of the legal concerns. As usual, don’t consider this article to be legal advice, or the whole answer. If you have additional questions or concerns, please take the time to make an appointment and let’s talk about it.

Preliminary Considerations

The first step in starting any new venture is to make sure you are either doing or building something that people want. That may seem like a given, but in our narcissistic society, many people get so excited about their own idea they overlook the fact that nobody else thinks it’s a good idea! Research into mistakes made by many start-ups shows that approximately 40% of them are building or doing something that nobody else wants! That’s staggering. So before you quit your paying job and extend your credit to start a new venture, make sure you a meeting a need that is not being met. Remember the basic business principal of supply and demand. If there is a high enough demand for what you are doing, and you have the only supply for what people are demanding, then you’ll be able to name your own price and make a fortune. However, if you have a huge supply of something no one is demanding, guess what? No one will buy what you have. It’s not rocket science.

How to Protect Your Name

Once you’ve found your niche that you’re certain no one will be able to do without, it’s important to consider a name for your product or service. This may seem like a piece of cake, but what you choose to call your enterprise will be an important component of its popularity, and will in time become your intellectual property. We all recognize the name of the famous search engine Google, but is that an accident? Would we still recognize it if it had been called BackRub (Larry Page’s and Sergey Brin’s original name)? More importantly, would it have grown into the conglomerate that it has with such a mundane name? Probably not. The name “Google” is actually an original word derived from the number googol, which is the number 1 followed by 100 zeros. Now that word accurately conveys in an instant a large quantity of data that is capable of being searched and organized. That’s perfect, right? Corporation spend a great deal of money making sure they have selected the correct name for their business. According to its own SEC filings, Google now spends over 6 Billion Dollars per year for marketing and advertising expense. So, why shouldn’t you do the same thing and spend some time making sure the name of your business reflects instantly what you do and/or what you sell.

Once you have selected the perfect moniker, it is important to make sure no one else is using it in association with the exact same goods or service. For that, you should perform, or have performed, a full trademark search in the region or country in which you intend to operate. Those search typically cost between $500 and $1500, depending on a number of factors, such as whether you have it done at LegalZoom or some similar site, or whether you have a qualified attorney review the significance of such a search. Once you eliminate the possibility of any conflicting marks, you’re then ready to register your mark as a trademark or service mark.

 

Registration of a mark protects the mark from being used by anyone else in association with the goods and/or services in which you trade, but only in regions in which you actually conduct commerce. These days, with the proliferation of the Internet, most companies operate globally, but in reality many businesses are still regionally centered. For a small business, it’s perfectly sufficient to register your mark in the state in which you intended to do business, at least a first, in order to gain some valuable protection. This process is usually as simple as filling out a form you can obtain from the Secretary of State’s office and paying the requisite minimal fee. If you decide to go forward with a full-fledged Federal level trademark, the filing fee for the U.S. Patent & Trademark Office is $325 per classification, plus whatever your attorney charges to file the application for you. Typically the cost for a Federal mark averages between $1000 and $1500.

How to Protect Your Ass(ets).

The next consideration for any new business is what structure to use in forming the business. A full detailed analysis of this topic would increase the size of this post exponentially, so I’ll just do a cursory review. Most entrepreneurs will start out as either sole proprietors or partnerships, either of which are fairly simple and cheap to form. In most cases, all that is required is a business license from your local county government. The problem with either of these types of entities are that they do not protect your personal assets, meaning your home, automobile or any stocks, bonds or savings you have accumulated, all of which are subject to attachment if you are sued for anything related to your business. For this reason, most people will want to form some type of business entity such as a corporation or a limited liability company. These types of business forms are creations of the state, meaning that they are legal fictions of sorts. Either a corporation or an LLC are separate and distinct from their owners in the eyes of the law, so that if either gets sued in court, only the assets of the business entity are subject to attachment, not the assets of the individual owners. If I sue Sony Corporation and win a million dollars, that judgment is paid by Sony, not the individual stockholder of Sony, at least not directly. This makes a huge difference for the small businessman.

If you are starting a new venture, consider forming either a corporation or an LLC and invest in the entity only the amount of capital necessary to start up the business. Treat that investment as a personal loan from yourself to the business if you want to get creative with the taxation issues. That way, you as an individual are only at risk for the amount of your investment in the event that the business entity incurs any direct liability.

The costs to form a business entity vary depending on which you choose. The state of Tennessee charges $300 to form an LLC with up to 6 member, and $100 to form a corporation. Registration with the county in which you do business usually costs around $7. Of course, legal fees for the establishment of a business entity will again depend on whether you use an online filing service. I of course recommend that you have your operating documents properly tailored to your need by a qualified attorney, which will run between $1000 to $3000.

Budget out the Costs

If you truly want to do something, you should plan on doing it correctly. Starting a new venture costs money, so budget out your costs before you jump in with both feet. Set aside a few thousand dollars for legal costs and meet with a qualified attorney before going into business for yourself. It will be money well spent. Finally, set some realistic goals that are specific and measurable. With the right amount of planning and advice, you could achieve your goal of financial freedom. Happy new year!

We recently wrapped up the exclusive songwriting agreement between my client, Logan Brill and Carnival Music.  Logan and her family are from the Knoxville area.  She moved here to pursue a logan1music degree at Belmont University, but ended up with a major in French and a minor in vocal performance.  Logan is writing with other Carnival talents such as David Nail, Troy Jones, Scooter Carusoe, and others.  Carnival is owned and operated, of course, by producer Frank Liddell (Miranda Lambert, Kellie Pickler, Lee Ann Womack).  Liddell recent took home the coveted Producer of the Year award from

the Academy of Country Music.  Carnival’s prolific group of writers is responsible for generating eleven number ones in the past decade, including cuts by Kenny Chesney, George Strait, Reba McEntire and the Dixie Chicks.   She has recently begun writing for her forthcoming project with producers, Matthew Miller and Oran Thorton.  Logan’s debut performance was at the Tin Roof at the head of Music Row, Nashville.  She also performed as the opening act for Edwin McCain at the Square Room in Knoxville.  Logan is set to begin extensively touring during the summer of 2012.

Follow her on Facebook and Twitter.  I expect to see great things from Logan in the near future.

Logan at the Square Room in Knoxville

written by Jeff Scheese

Law on the Row is making the jump from digital to “old skool” hardcover. Barry Neil Shrum’s article The Magical Ring of Gyges: Why Illegal Downloading is So Rampant in the Age of Cyberspace was selected by author and editor Thomas J. Hickey, responsible for the Taking Sides book series published by McGraw-Hill.  Mr Shrum’s article is set to appear in the next edition of his Taking Sides: Clashing Views in Crime and Criminology . This will be the third edition oclip_image002f Mr. Hickey’s book. The books are set up in a “point/counterpoint” debate structure, and Mr. Shrum’s article will go toe to toe with an article from famed singer Janice Ian on the issue of illegal downloading of intellectual material from the internet.

As we all know, Piracy is becoming more and more of a problem in recent years due to many advances in technology. Shrum’s article takes the side that it is human nature to steal and take the plunder if they know they can get away with it and cites the famous mythological story “The Ring of Gyges” written by Plato. However there are those that know right from wrong and will remain from engaging in the piracy. It is his hope that if people choose to respect others intellectual property by not stealing it then it will encourage others to be creative without the worries of their own works being stolen. It is a very well written article that brings a lot of truth to the issue and really digs down into people’s motivations and discouragements of music piracy. Ian’s article The Internet Debacle – An Alternative View takes the opposing view that all music should be free to download from the internet.  The books thus establishes both positions, allowing the reader to “take sides,” i.e., see both sides of the argument and can then make their own judgment about the issue at hand for themselves.

The publication date is set for October 12, 2012. You can purchase either the hardcover edition or, for those of you with a Kindle, the Kindle edition. Both will be available on Amazon.

 

Jeff_Scheese

Jeff Scheese, a senior at Belmont University which an emphasis in music business, is currently interning with Shrum & Associates.