Lady Litigator – Lisa Fantino
Award winning NY journalist turned attorney with an opinion about everything!Archive for Copyright
Westchester entertainment attorney Lisa Fantino not sure if artists are singing the right tune on Capitol Hill
A band of singers took their song to Capitol Hill this week with the hope of getting Congress to like what they hear and have radio stations pay more.
Right now, when you hear a song on the radio, the station’s owners have to pay a royalty to the songwriters of that song and the publishers. Unfortunately, the performers do not get a royalty. Other media, such as satellite, cable TV and the Internet, have to pay the musicians and singers a performance royalty. This nation’s current Copyright Law only requires performance royalties for digital transmissions (not analog AM/FM radio) and, in fact, exempts non-subscription services (i.e. radio, again)
Performers who were crying in front of the Senate Judiciary committee today in support of the Performing Rights Act included Sheila E., Dionne Warwick and Herbie Hancock, not quite A-list celebs any longer. Artists who are on top of their game today and who are embracing the current technology are not looking back but are instead looking forward to how they can cope with the Internet and digital transmission; how they can capitalize on it; how they can stay current. Many bands even offer free downloads so why should radio have to pay a performing rights royalty?
First, analog radio is a dying friend, taking its last gasps. Satellite radio is now the flavor of the decade and most people only listen to music on their I-Pods or MP3 players because they can carry 5,000 of songs they handpick without the chatter.
Second, as long as there is analog radio, musicians should thank their lucky stars for the free advertising they get with free air play. Take a look around, folks, there aren’t many traditional outlets left for new music to debut.
Now, don’t get me wrong. I am an entertainment attorney. I make a living writing these contracts and suing when they don’t work. However, when I was in law school, I wrote a paper for ASCAP warning the recording industry to sit up and start doing something about this technology and learn how to change the business model for its advantage. They didn’t listen and 12 years later they are grasping at digital straws trying to hold onto a business that’s dying a slow death. The artists who are fighting for these rights are the artists who are also gasping for air.
I remember the days when radio and rock ‘ n’ roll used to be fun. Heck, I helped write some of that history in my own small way. Yet, I was smart enough to realize that the analog world was turning digital and I escaped to law school because there will always be someone singing about their rights being violated. Good luck!
Comments off
Westchester entertainment attorney Lisa Fantino thinks music industry needs to sing a new tune to survive
All eyes will be on Boston this week as the recording industry takes on yet another challenge in its ongoing battle for digital copyright infringement. SONY BMG Music v. Tenenbaum (Dist. of Mass. Civ. Act. No. 07-cv-11446-NG) Yesterday, in a major blow to the Defendant, Joel Tenenbaum, U.S. District Judge Nancy Gertner dismissed his defense to fair use for the copyrighted songs he allegedly file-swapped on a peer to peer sharing netowrk. In her decision, Judge Gertner said to buy into Tenenbaum’s argument “proposes a fair use defense so broad that it would swallow the copyright protections that Congress has created. Indeed, the Court can discern almost no limiting principle: His rule would shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment.”
The U.S. Copyright law provides a fair use defense which allows someone to use an original work without the copyright holder’s permission under certain conditions for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. Such uses will not be an infringement of copyright pursuant to 17 U.S.C. 107. However, judicial scrutiny does not end there and certain criteria must be applied under the fair use doctrine. It’s a four-pronged test of nonexclusive but mandatory factors to be considered by the courts which have great leeway in the breadth of their analysis when balancing the four elements. The courts will look to:
- the purpose and character of the use;
- whether its use is for commercial or for nonprofit educational purposes;
- the nature of the copyrighted work – the amount and substantiality of the portion used in relation to the copyrighted work as a whole (don’t use more than is necessary to get your point across);
- the effect of the use upon the potential market for or value of the copyrighted work (in other words, are you competing in the marketplace for the same commercial attention?).
In the Tenenbaum case, the court was disapppointed that he did not offer specifics to justify allegedly “sharing hundreds of songs over a number of years, far beyond the infancy of this new technology or any legal uncertainty. And in his summary judgment opposition, he has contested few of the facts offered by the Plaintiffs in support of their motion.” Basically, Judge Gertner said she was ready to listen but Tenenbaum failed to offer any viable support for his actions.
Now, some of you may be wondering what did Tenenbaum do wrong? All he reportedly did was share some songs, not even entire albums, with a few of his friends? He didn’t make any money; so what’s the big deal, right? Wrong. The Supreme Court, 15 years ago, already determined that “[T]he mere fact that a use is not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness.” Campbell v. Acuff-Rose Music, 150 U.S. 569 (1994) The Acuff-Rose decision determined that it is but one factor in the four-part test to be weighed.
As to what happens to Tenenbaum in Boston is almost irrelevant to the state of file sharing today. True, there are sites like ITunes or Napster and many others which make users pay to download songs but there are also bands which are giving their tunes away. The business model of the recording industry has been turned on its head and the industry is now struggling to survive in courts across the country rather than spend its time and resources on reinventing itself.
I am an entertainment lawyer and I see the music business taking its last gasps, the death rattle is near. Bands today are launching their own careers without the monolithic labels of yesterday. Today’s musicians are smart enough to embrace the technology rather than fight it. Their songs are their lifeblood but maybe the bulk of their income will now come more from touring and merchandise rather than from the penny a song royalties they used to earn from the labels. And, in the end, maybe that’s a good thing. Too many artists were in debt to the labels to the tune of hundreds of thousands of dollars and would have to tour sometimes for years before they ever broke even. Now that the playing field has been digitized, maybe musicians finally stand a fair shot at making some money…..maybe that is a fair use.
Comments off
Westchester attorney says Superheroes may not be worth what they used to be as Warner wins a round in Superman copyright case.
Picture it – federal court Riverside, California – on the stand? Superman, Iron Man, Tarzan and the X-Men are offering expert testimony on just how much they’re worth in today’s market. That was the decision before Judge Stephen Larson who has just determined that there was no insider hanky panky between corporate siblings DC Comics and Warner Bro. Entertainment Inc.
First let’s take a look at the deal’s family tree. Back in 1938, Superman’s parents, Jerome Siegel and Joseph Shuster, granted a license to Detective Comics which eventually assigned that right to DC Comics, whose corporate sibling is now Warner Bros. Entertainment Inc. In March 2008, Judge Larson determined that Shuster and now Siegel’s estate had terminated that 1938 grant and the question which remained was whether between 1999 and 2002, when one Batman flick was released, Warner Bros. paid DC Comics a fair market value for audiovisual licensing………….or did DC give Warner a so-called “sweetheart deal” because of their close family ties? Further, DC was no fool and held onto the coveted merchandising rights with a commission payback to Warner if any elements of the Batman movies were used in merchandising.
The Judge noted that the film agreement between DC and Warner also “provided that, despite DC Comics’ reservation of its television rights, its ability to exploit those reserved rights was limited to an affiliate of Warner Bros., a provision not surprising given the Superman television rights agreement that the parties had entered into just prior to the Superman film agreement.” And lo and behold “Smallville” on the WB television network was born.
Original comic is worth over $300K but what about film rights?
Judge Larson, who impressed me with a keen understanding of the complexities of the film industry in his decision, was not to keen himself with the experts offered by either party but especially by DC and Warner. He found “each film industry expert attempted to couch or shape answers to benefit the party paying their fees.” So the learned Judge was forced to look to industry standards in making his determination. He even went so far as to do his own research due to the paucity of evidence presented by the parties and looked to Iron Man, Tarzan and the X-Men for guidance. The bad news for Superman fans is that the caped crusader is not as glorious as in his golden days and is most likely about as valuable as the X-Men were from 1999 to 2002 but more valuable than Iron Man or Tarzan.
Now, an important part of the financing required Warner to market the hell out of Superman to bolster his reduced value in today’s marketplace. “Simply put, the continued development and exploitation of the property in the marketplace is the economic lifeblood for the film rights to a literary property such as Superman. Without continued theatrical release, DC Comics (nor any similar rights holder, for that matter) would not receive payment under the contingent compensation package nor would there be…….any “uplift” in the merchandising realized from the property……………and without a mechanism to ensure the continued development and exploitation of the Superman property in film there raises the very real specter that nothing is exactly what DC Comics would receive in exchange for those rights.”
Bottom line, Warner would really have to work it to make the caped crusader soar faster than a speeding bullet to the tops of the charts and Larson wondered why DC did not include a standard reversion clause if Warner failed to live up to its end of the exploitation efforts. He didn’t, however, see the agreement as a sweetheart bargain and determined that it is DC and not Warner who will owe Plaintiffs anything. He has set a December hearing on damages.
So, where does that leave Superman? Come 2013, the entire original copyright in Superman reverts back to the estate of Siegel and Shuster and neither DC nor Warner will be able to do a thing with any new Superman works without a new license from his creators.
For a detailed analysis of the decision and the case history, visit THR,Esq. Blog at The Hollywood Reporter.
Comments off
