ASCAP Rate Court Pandora Decision Reveals Publishers’ Abuse of Market Power

Judge using his gavelAs I noted in my ear­lier post, the pub­lic ver­sion of Judge Cote’s deci­sion in the ASCAP / Pan­dora rate court pro­ceed­ing was released today.  It is a remark­able and com­pre­hen­sive 136-page opin­ion, thor­oughly reject­ing all of ASCAP’s argu­ments for a rate increase, and keep­ing Pandora’s rate at 1.85% of revenue.

One of the most remark­able fea­tures of the deci­sion is its detailed look behind the cur­tain at the moti­va­tion and behav­ior of the with­draw­ing music pub­lish­ers.  [Read more…]

Full ASCAP Rate Court Pandora Decision Released

The pub­lic ver­sion of Judge Cote’s ASCAP Pan­dora rate deci­sion has been released.  Com­men­tary to fol­low, once I have had the chance to read, but here is the deci­sion for those interested:

Big Loss for ASCAP in Pandora Rate Case

Angry JudgeASCAP has suf­fered a sig­nif­i­cant defeat in its rate court lit­i­ga­tion against Pan­dora.  In that pro­ceed­ing, Pan­dora sought to have its cur­rent ASCAP musi­cal com­po­si­tion pub­lic per­for­mance license rate (1.85% of rev­enue) cut to the same 1.7% rate paid by ter­res­trial radio.  ASCAP, as it has in sev­eral recent dig­i­tal music rate cases, sought an increase to 3% of revenue.

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The Digital Music Performance Royalty Apocalypse: Fakler Speaking at SXSW Music Conference

SXSW2014I will be giv­ing a pre­sen­ta­tion titled “The Dig­i­tal Music Per­for­mance Roy­alty Apoc­a­lypse” at the SXSW Music Con­fer­ence next Wednes­day, March 12, at 2pm.   The title does not imply that my speak­ing at the con­fer­ence is, itself, a sign of the com­ing apoc­a­lypse.  Rather, I will be dis­cussing the his­tory, cur­rent state of affairs, and hot top­ics loom­ing in the next year, relat­ing to the var­i­ous copy­right license fees paid by dig­i­tal music stream­ing ser­vices.  Top­ics will include the upcom­ing Web­cast­ing IV Copy­right Roy­alty Board pro­ceed­ing, the “prob­lem” of pre-1972 sound record­ings, and the recent attempts by some of the major music pub­lish­ers to selec­tively with­draw their cat­a­logs from the ASCAP and BMI reper­to­ries for cer­tain dig­i­tal music ser­vice licensees only.

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The Oscar Selfie: Why Copyright Analysis Should Be Left To Copyright Lawyers

oscar_selfie_twitterGood grief.  There are thou­sands of inter­est­ing copy­right issues, and trust me, “who owns the copy­right in the Oscar selfie?” is not one of them.  I mean, who really cares?  Is it going to mat­ter, ever?  But there has been so much awful “analy­sis” by non-copyright lawyers hold­ing them­selves out as copy­right experts that I can­not help myself.  BTW, Mr. or Ms. “enter­tain­ment lawyer,” you are not a copy­right lawyer.  In fact, I am not even sure you are a lawyer.

In any event, here is the deal:  It is quite pos­si­ble that nobody owns a copy­right in this photo because nobody con­tributed suf­fi­cient orig­i­nal pho­to­graphic author­ship.  Con­trary to what you may have read else­where, the fact that Ellen had the bril­liant idea to take the photo does not make her an author.  Ideas are not copy­rightable.  The arrange­ment, posi­tion, light­ing, etc. (ele­ments that often com­prise author­ship in a pro­tected pho­to­graph), from every­thing I have read, appear to have been spon­ta­neous and undi­rected.  This is typ­i­cally the case with a selfie.  If any­one could pos­si­bly own a copy­right in this pho­to­graph it would be the per­son who selected the fram­ing and angle of the photo and actu­ally took the shot, which I under­stand was Bradley Cooper.  Look­ing at the pho­to­graph above, how­ever, it seems like a stretch (assum­ing as I do that nobody made cre­ative deci­sions as to where to place each celebrity, how to light the scene, etc.) that Bradley con­tributed suf­fi­cient orig­i­nal and cre­ative author­ship merely by mak­ing sure as many celebri­ties as pos­si­ble were in the frame and quickly hit­ting the snap­shot but­ton to engen­der copy­right protection.

Of course I rec­og­nize that even a min­i­mal spark of cre­ative author­ship is suf­fi­cient to engen­der copy­right own­er­ship, and I am not say­ing that on a given day a par­tic­u­lar court might not find that there is a copy­right.  But if that were to hap­pen, the only pos­si­ble owner of the copy­right would be Bradley Cooper.  It is not a thorny ques­tion.   Per­haps the most silly “analy­sis” I have seen so far has been the sug­ges­tion that because Ellen had the idea to take the photo and asked Bradley to take the pic­ture, she owns the copy­right as a work for hire.  Any­one with even a pass­ing famil­iar­ity with the actual copy­right law would know this is a non-starter.  Given that Bradley Cooper is not an employee of Ellen act­ing within the scope of his employ­ment, the only way that the pho­to­graph could be owned by Ellen as a work made for hire would be if (1) the pho­to­graph were one of the expressly enu­mer­ated types of works listed in Sec­tion 101’s def­i­n­i­tion of a work made for hire and (2) Bradley were spe­cially com­mis­sioned pur­suant to a writ­ten agree­ment signed by both Ellen and him, expressly spec­i­fy­ing that the pho­to­graph would be a work for hire.  Any work for hire claim with respect to the Oscar selfie would fail on both counts.  First, pho­tographs are not among the types of works that can pos­si­bly be a work for hire when cre­ated by a non-employee (unless they are com­mis­sioned as con­tri­bu­tions to col­lec­tive works, which is not the case here).  Sec­ond, as far as I have read, there was no writ­ten work for hire agree­ment.  Con­trary to some of the “analy­sis” float­ing around out there, there is no “indus­try cus­tom” or “he’s an actor” excep­tion to these statu­tory requirements.

Nor does a celebrity have any copy­right own­er­ship in their phys­i­cal appear­ance as embod­ied in a pho­to­graph (although they may well have a right of pub­lic­ity, but that is another mat­ter entirely), so there is no way that any of the sub­jects in the pho­to­graph would have any claim to copy­right.  I should note, how­ever, that this pho­to­graph was taken within the juris­dic­tion of the Ninth Cir­cuit.  Given the bizarre recent Gar­cia deci­sion, which rec­og­nized an actor’s inde­pen­dent copy­right inter­est in their per­for­mance embod­ied in a motion pic­ture, per­haps all bets are off.  (Please note that my tongue is held firmly in cheek on this one, even if cor­rect the Gar­cia deci­sion could not rea­son­ably be extended to rec­og­niz­ing an actor’s copy­right in their phys­i­cal expe­ri­ence embod­ied in a photograph).

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