SPINAL TAPPED OUT: Harry Shearer’s Lawsuit is No Laughing Matter

spinal-tapFor many of us, This is Spinal Tap remains the benchmark (if not the first great example) of the so-called “Mockumentary” genre of film. Since its first release in 1984 (it had a subsequent theatrical release thereafter) to critical acclaim and commercial success, it has become one of those films that its fans watch over and over—each time gleaning some new subtlety missed during the first dozen viewings.  The film, about a fictitious British rock band named Spinal Tap, starred Michael McKean, Harry Shearer and Christopher Guest, who would later become the “King” of Mockumentaries with his films Waiting for Guffman, Best in Show and A Mighty Wind.  It was co-written by Messrs. McKean, Shearer and Guest, along with the film’s Director, Rob Reiner. Not only did the film contain inspired comedic bits, it included an album’s-worth of original songs, co-written by McKean, Shearer and Guest.

Filmed on a shoestring budget of approximately $2.25 million, it is considered an “important film” by those who decide such things including the National Film Registry of the Library of Congress and The New York Times, as a culturally, historically and aesthetically significant film.  As for me, I just think it is funny as hell.

Not only has the film had two theatrical releases, but it was also released in a wide variety of home video formats and editions and has spawned merchandise sales.  In fact, the photo that accompanies this blawg post is a Tap action figure from my own personal collection of the three figure set.

The four co-creators, individually or through personal loan-out corporations, formed an entity called Spinal Tap Productions (“STP”).  In 1982, STP signed an agreement with Embassy Pictures for producing, financing and distributing the film. In return, STP was to receive fixed, deferred and contingent compensation for their services, as well as a 40% profit participation based on all sources of revenue from the film, including merchandise and music. Through a series of sales of rights, the current owner of the rights to the film, and the party now responsible for making payments to STP, is the large Italian media conglomerate, Vivendi.

Last week, Shearer filed a lawsuit against Vivendi and one of its operatives, Ron Halpern, alleging that they have engaged in fraud and have committed breach of contract.  The suit also alleges that Vivendi did not properly protect the trademark “SPINAL TAP” (even allowing a beer company to trademark the name for use in connection with beer without any opposition from Vivendi). Apparently, Shearer’s patience did not “go to 11,” and he has had enough.  While Tap has been a huge hit and has spawned all sorts of merchandise since its original release, Vivendi claims that it has not made money. According to Vivendi, the four creators’ share of total worldwide merchandising income between 1984 and 2006 was roughly $81. Between 1989 and 2006 total income from music sales was $98 (ninety-eight) dollars. Over the past two years, Vivendi has failed to provide accounting statements at all.  Shearer’s response was to file the lawsuit, seeking $125,000,000 in compensatory and punitive damages.

Shearer’s suit alleges that Vivendi’s accounting practices have been used to offset revenues from the film with losses from other films with which it has been “bundled” (among other nefarious practices).  For example, if a distributor were to approach Vivendi about purchasing $1,000,000 worth of Tap home video units, Vivendi could bundle 19 other films (all of which are money losers) with it and offer the entire twenty film package for $1,000,001.  That way, it can continue to claim that it has not generated $1,000,000 of revenue for Tap, but rather 1/20 of that.  Other losses could be allocated to it and—voila—there are no profits to show.  The suit also alleges that merchandising and music sales profits similarly have been cross-collateralized against other losses.  The net result–$81 in merchandise and $98 in music sales.

Shearer’s Complaint in the lawsuit also states that Shearer is “concurrently filing notices of copyright termination for publishing and recording rights in Spinal Tap songs he co-wrote and co-recorded, as well as the film itself.”  Under Section 203 of the U.S. Copyright Act, the exclusive or nonexclusive grant of an assignment or license of all or any portion of a right under copyright may be terminated at any time during the period of five years beginning at the end of the thirty-fifth year from the date of the execution of such assignment or license. Assuming the agreements in question were executed in 1982, that five year period would begin in 2017.  However, it should be noted that this “termination right” does NOT apply in the case of “works made for hire.”  Under the Copyright Act, a “work made for hire” consists of 1) works created by employees within the scope of their employment; or 2) works created by non-employees that are specially ordered or commissioned for use as a contribution to certain kinds of works (these include motion pictures), but only if there is a written agreement to that effect.  In this case, since the original contracts with Embassy Pictures have not been made available, I am not sure if the rights were merely licensed to Embassy Pictures or, instead were treated in the agreement as “works made for hire.”  This point will be critical to Shearer’s stated goal of getting his copyrights back.

I will post a follow up to this blawg post as the case progresses.

STAIRWAY TO HEAVEN: Did Led Zeppelin Spirit it Away?

Last year, I wrote a post about a case that was about to be filed challenging the authorship of Led Zeppelin’s rock classic, “Stairway to Heaven.” [https://www.gurwinskeyboard.com/long-ago-far-away-copyright-infringement-claims-raging-bull-stairway-heaven/]. Two weeks after that post, a lawsuit was filed in Los Angeles Federal District Court in which the successor-in-interest to the rights of the estate of musician Randy Craig Wolfe, known professionally as “Randy California,” of the band Spirit, sued Led Zeppelin and its members, alleging that the iconic opening passages in “Stairway to Heaven” were lifted from a song called “Taurus” that was previously written and performed by Spirit. Spirit had toured with Led Zeppelin, and the lawsuit alleges that members of Led Zep heard the tune, liked it and incorporated a material portion of it as the beginning of “Stairway.”

The U.S. Supreme Court, in the case discussed in that prior blawg post, stated that the statute of limitations for copyright cases is a “rolling” three-year term. In other words, each act of infringement would start a new three-year statute of limitations. A reissue of “Led Zeppelin IV” was released last year. Significantly, the re-reIease contained newly released studio takes and live tracks, including a remastered track for “Stairway to Heaven.” As a result, the rolling three-year period has not expired, and the Court is allowing this suit to proceed, even though the original composition was written in 1969.

The defendants in the case, entitled Michael Skidmore v. Led Zeppelin, et al., previously filed a Motion for Summary Judgment, seeking to have the case dismissed as a matter of law. For those of you who are not lawyers, a “Motion for Summary Judgment” is a motion seeking the court to rule that, as a matter of law, there is no legal basis for a claim. However, this assumes that there are no genuine issues of material facts in dispute. The Court granted the defendants summary judgment on certain of the claims, but it denied the motion on the key claim of copyright infringement. Under copyright law, to win an infringement suit, a copyright plaintiff must prove: 1) that it owns the copyrights in question; and 2) that the defendant copied protected elements of the plaintiff’s work. Since direct copying often cannot be proven, such copying can be inferred if the plaintiff can prove that the defendant had access to the copyrighted work at the time of the alleged infringement and that the two works are “substantially similar.”

Each side brought in their own musicologists to dissect the pertinent musical passages and to opine on whether the two works were substantially similar. Not unexpectedly, each side’s “expert” came to a different conclusion as to the substantial similarity between the two works. As a result, the Court decided that there is a genuine dispute as to the issue of substantial similarity.

There is also another interesting, but less reported, issue in the case. Led Zeppelin claims that Randy California waived his rights to the song “Taurus.” Defendants allege that in 1991, California was interviewed in connection with a new album of Spirit recordings entitled “Time Circle.” In the interview, California was asked about the possibility that Led Zeppelin had copied the opening of “Taurus” for its song “Stairway.” California responded that members of Led Zeppelin “used to come up and sit in the front row of all of [Spirit’s] shows and became friends, and if they wanted to use [“Taurus”], that’s fine.” Later in that same interview, California stated more directly: “I’ll let [Led Zeppelin] have the beginning of “Taurus” for their song without a lawsuit.” The defendants have submitted the original article, audio recordings of that interview and a deposition from the journalist who conducted the interview as evidence in support of their Motion for Summary Judgment, arguing that California’s public statements demonstrate his abandonment of any rights to that passage from “Taurus.”

So, on the one hand, Jimmy Paige and Robert Plant are disputing that there is any substantial similarity between the two songs. On the other hand, they appear to be admitting that they ripped it off but claim that they were “authorized” to do so by Randy California. The case will proceed on these issues. It will be interesting to see whether the outcome impacts the reputations of Messrs. Paige and Plant.

HAPPY BIRTHDAY TO YOU: Blow the Candles Out

On two previous occasions (see https://www.gurwinskeyboard.com/happy-birthday-to-you-feel-free-to-sing-along/ and https://www.gurwinskeyboard.com/happy-birthday-us-court-rules-happy-birthday-public-domain/) , I wrote about the court battle and decision regarding the copyright status of the lyrics to the song, Happy Birthday to You.  As noted in my September 2015 post, the U.S. District Court in California ruled that mega-publisher, Warner/Chappell Music, which had claimed to own the copyright to the song and had been charging royalties for the use of the song, did not own any rights to the song.  The court held that Warner/Chappell had never actually owned the copyright to the song. The judge said there was no proof that the song’s original authors, sisters Mildred and Patty Hill, had ever validly assigned their rights to the song to Warner/Chappell.

Two months after the District Court’s decision, another party, the Association for Childhood Education International (“ACEI”), filed a suit claiming to be the rightful owner of the copyright to the birthday party standard.  Most lawyers and observers assumed that the District Court’s ruling also meant that the lyrics were now in the public domain.  However, a careful reading of that case reveals that the court didn’t explicitly state that: the court merely said there had been no transfer of bday-candlesrights and that some person or company theoretically could still claim the rights to the song.  ACEI, a charity founded by the late Patty Hill, moved to intervene in the case against Warner/Chappell, claiming that IT was the rightful legal heir to the late authors’ rights in the suddenly unowned copyrights.  ACEI’s argument was that if Patty Hill never assigned any rights to Warner/Chappell and its predecessors, she likely died possessing all the copyrights to Happy Birthday to You. Those rights would have then descended to her daughter, Jessica Hill, who in turn bequeathed all of her holdings to ACEI.  ACEI stated in its filing that “Until [the District Court’s] ruling, [ACEI] reasonably believed [Warner/Chappell] possessed valid copyrights to the Happy Birthday lyrics — an assumption the parties have operated under since [1992].”  Bolstering this argument of its claimed historical rights to the song is the fact that Warner/Chappell had been paying ACEI one-third of the royalties that Warner/Chappell had collected from users of Happy Birthday to You.

In the original case (which was filed by a documentary filmmaker who refused to pay the licensing fees to Warner/Chappell), the plaintiffs had only sought to recover licensing fees paid since 2009.  However, the plaintiffs later moved to vastly expand the relief sought, claiming that information learned during the discovery process for the case led them to believe that Warner/Chappell had concealed certain evidence.  They argued that the members of the class action lawsuit should be enlarged to cover any one who paid licensing fees for the right to use Happy Birthday to You all the way back to 1949.  This month, the District Court ruled further on the case, holding that plaintiffs (the parties who had been charged millions in royalties by Warner/Chappell to use the song) could seek damages going all the way back to 1949 since it never owned the copyright to the song and, therefore, never had a legal right to charge users of the song.

Against this complicated and multi-party litigation backdrop, the lawsuit now has been settled. The settlement, announced in a court filing last Wednesday, involves all three sides of the case — Warner/Chappell, the filmmaker plaintiffs who sued originally, and ACEI, which claimed to rightfully own the song.  Thus far, the financial details and other aspects of the settlement have not been made public.  However, various sources have reported that, as part of the settlement, the song will be in the public domain. That means it will be free for all to use without fear of a lawsuit.

HAPPY BIRTHDAY TO US: Court Rules That Happy Birthday to You is In the Public Domain

beautiful-birthday-cakes-for-friendsIn a prior blawg post, I wrote about the then-recently filed case of Good Morning To You Productions Corp. v. Warner/Chappell Music, Inc., in which the issue was whether or not the song, Happy Birthday To You, is still protected by copyright. Specifically at issue were the lyrics to the song. As noted in my prior post, Good Morning To You Productions, which is working on a documentary film tentatively titled “Happy Birthday,” challenged the copyright now held by Warner/Chappell Music Inc., arguing that the song should be “dedicated to public use and in the public domain.”

After nearly two years of litigation, the court has ruled. U.S. District Judge George H. King determined the song’s original copyright, obtained by the Clayton F. Summy Co. from the song’s writers, only covered specific piano arrangements of the song and not its lyrics. The basic tune of the song, derived from another popular children’s song, “Good Morning to All,” has long been in the public domain and its status was not in dispute in the case.

The defendants in the case had argued that the lyrics to Happy Birthday to You were authored by Mildred and Patty Hill around the turn of last century and that the Hill sisters had held onto common law rights to the copyrights for several decades [note: common law copyright rights no longer exist under the new copyright law that is applicable to works first created after January 1, 1978 but did exist under the old 1909 Copyright Act]. The defendants then alleged that these common law rights were transferred to Summy Co., which published and registered them for a Federal copyright in 1935 (which, if true, would have meant that the copyrights could still exist today if the original 1935 registration was renewed after its first 28 year term ended in 1963).

The court, in a lengthy opinion, concluded that “[b]ecause Summy Co. never acquired the rights to the ‘Happy Birthday’ lyrics, defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.” Further, the original authors of the lyrics never took any steps to prohibit others from using those lyrics, even as Happy Birthday to You became very popular and commercially valuable. Indeed, in 1934, some four decades after the alleged original date of composition of the melody to the song, the successors in interest to those rights finally asserted their rights to the melody but still made no copyright claim as to the lyrics. The court also said that the copyright registration itself (which only creates a presumption of the validity of the copyright) did not specifically state that the lyrics were the element being registered but, instead, it appeared that the registration was intended to cover the new piano arrangement of the song. In short, the court was not convinced that the lyrics ever were registered in 1935. The defendants claimed that this may have just have been a “mistake” in the registration and that the registration should have been afforded “the presumption of the validity of the registration for the entire work.” The court was not convinced.

In addition to seeking a declaration that the lyrics are in the public domain, the plaintiffs in the lawsuit also asked for monetary damages and restitution of more than $5 million in licensing fees it said that had been collected from thousands of people and groups who have paid to use the song over the years. The court has yet to rule on the damages issue.

So, the next time that you want to celebrate a friend’s or loved one’s birthday in public, feel free to sing Happy Birthday to You, original lyrics and all.

LET’S GO CRAZY: 9th Circuit Says DMCA Takedowns Are Subject to Fair Use Test

Last Monday, the influential Ninth Circuit Federal Court of Appeals, in the case of Lenz v. Universal Music Corp., ruled in the so-called “Dancing Baby” case, by stating that copyright owners who claim that their content has been posted to a website illegally must consider the fair use doctrine before sending Digital Millennium Copyright Act (“DMCA”) take down notices to online hosts like YouTube. 

The DMCA, codified as Section 512 of the Copyright Act, was enacted primarily to implement two international intellectual property treaties to which the United States was a signatory.  The DMCA primarily addresses copy protection for digital copyrighted works (including music, videos and the like). However, a key provision of DMCA creates immunity for online service providers (“OSPs”) that allow people to upload content, such as YouTube, from direct and indirect copyright infringement liability.  Before the passage of DMCA, OSPs had been treated like book publishers—they were liable for all content posted on their sites even if that content was posted in real time.

dancingbabyUnder DMCA, in order to enjoy the immunity of Section 512, OSP’s have to have a procedure to allow copyright holders to object to the posting of their copyrighted materials on a site (a so-called “Take Down Notice” provision).  Under the DMCA procedures, the party alleging copyright infringement gives a Take Down Notice to the OSP.  The Take Down Notice must include the following:

(a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; (d) information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (e) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.  If a Take Down Notice which substantially complies with these requirements is received, the OSP must expeditiously remove or disable access to the allegedly infringing material. 

After a proper Take Down Notice has been submitted, the OSP must take reasonable steps to promptly notify the alleged infringer of the action.  Under the statutory language, the OSP is not prohibited from notifying the alleged infringer in advance, but is required to do so afterward. If there is a counter notification from the alleged infringer (a “Counter Notice”), the OSP must respond appropriately to that Counter Notice.  If the OSP complies with the Counter Notice procedures, the OSP is safe from legal liability to its own customer as a result of taking down the material.

In the Lenz case, Lenz sued after Universal Music Group (“UMG”) sent a Take Down Notice to YouTube over a 30-second clip she had posted of her son dancing to Prince’s “Let’s Go Crazy.”  [Note: YouTube, as the OSP, was not a party to this case.  Rather, the parties were the woman who posted the allegedly infringing video, Lenz, and UMG which issued the Take Down Notice as the copyright owner of Prince’s song.] Lenz claimed the use of the song in the video was fair use and that the label had thus violated Section 512(f) in its Taked Down Notice by knowingly misrepresenting the video was an unauthorized use of a copyrighted work.  The crux of the case is whether or not a party (such as UMG) that intends to send a Take Down Notice first must evaluate whether the content that is the subject of the Take Down Notice qualifies as “fair use.”  (For a discussion of the Copyright Fair Use Doctrine see my posts of [February 20, 2013, November 21, 2013, December 23, 2013 and May 29, 2015.)

The 9th Circuit held that Section 512(f), which prohibits a party from knowingly misrepresenting that the “material or activity is infringing,” requires the party to conduct a fair use analysis before sending out the Take Down Notice, even though such a requirement is not mentioned anywhere in the statute.  The Court further held that a party that does not do that analysis before sending out the Take Down Notice can be held liable for damages.

Major content providers (such as UMG) as well as advocates for internet freedom each had a lot at stake in this case. Lenz (and her supporter in this effort, the Electronic Frontier Foundation) said a win would provide a needed counterbalance to overly aggressive Take Down Notices from large media companies. UMG and other media firms, on the other hand, said the DMCA’s take down system already overburdens them and the system can’t function as designed if they’re required to do a fair use analysis each time they send a Take Down Notice.

I found this decision to be particularly odd.  “Fair Use” is a defense that can be asserted by a defendant in a copyright infringement suit when it believes that, despite what would otherwise amount to copyright infringement, the fair use doctrine allows for the use of the copyrighted work.  A plaintiff in a copyright case is not expected to argue why a defendant’s action did not amount to “fair use” unless that defense is raised by the defendant.  In this situation, if the party who posted the video did not agree with the Take Down Notice of the video, she could have filed a Counter Notice—the procedure that is spelled out in the DMCA.  Instead, the court now says that a party must anticipate the merits of that defense before it can issue the Take Down Notice, something that is nowhere to be found in the statute.  How this decision will be viewed by other Federal circuits remains to be seen.  Should a similar case come before another Federal circuit and should it rule contrary to the 9th Circuit, it is possible that the Supreme Court will have to take up resolving this matter.  In the meantime, at least in the 9th Circuit (which includes California), this new requirement of conducting a fair use analysis before sending out a Take Down Notice could have significant impact.

You can view the video at issue here: https://www.youtube.com/watch?v=N1KfJHFWlhQ

ROYAL PAIN: Brits Can’t Even Copy Their OWN Music

itunesThis blawg focuses on US law as it pertains to technology and entertainment, but a recent decision of the High Court of the United Kingdom just caught my interest.  The High Court of the United Kingdom held that certain “private copying” exceptions to the UK’s copyright law (which had allowed for private home copying of copyrighted materials such as musical recordings) is unlawful.  (The High Court has no direct counterpart in the US Federal court system.  It deals as the court of first resort in all high value and high importance cases in the UK, and also has a supervisory jurisdiction over all subordinate courts and tribunals, with a few statutory exceptions.) What this means is that, under British law (at least according to that court), a consumer may no longer make copies of CDs or even backup copyrighted programs on their computers without engaging in unlawful copyright infringement.

Accordingly, popular services such as iTunes (which is designed to allow for CD ripping) are now illegal in the UK.  According to the UK Intellectual Property Office, it is now unlawful to make private copies of copyrighted works owned by an individual (such as a lawfully purchased CD or lawfully purchased copy of software) without first obtaining permission from the copyright owner.  That office expressly stated that unauthorized format shifting from one medium to another (e.g., copying a purchased CD onto a computer or MP3 player) is now unlawful.

US copyright law, however, expressly allows consumers to make private copies of lawfully purchased or obtained audio recordings. The Audio Home Recording Act of 1992 (“AHRA”) (embodied in Section 1008 of the Copyright Act) provides:. “No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.”  The AHRA was a result of a compromise with interested parties (such as the then –fledgling digital recording device industry and the music industry) to address the desire for additional copyright royalties from digital uses of music while recognizing consumers’ personal copying behaviors.  While there is some scholarly debate over whether all private digital copying is allowed under the Act, the prevailing view is that an individual consumer is allowed to make copies, either analog or digital, of musical recordings.  (Note: The Copyright Act amendment did NOT address video recordings, only audio.)

What is going to happen next in the UK is anyone’s guess.  To the extent that Apple continues to distribute iTunes in the UK without disabling the CD ripping functionality, it appears to be in violation of UK law and may be accused of engaging in copyright infringement.  Even cloud services (which allow for making and uploading digital copies of copyrighted materials) may face legal action.

According to reports, the British government is not pleased with the High Court’s decision in this matter, rightfully concluding that it is likely to cause chaos and concern (and is likely to be highly unenforceable against individuals).  As a result, I would not be surprised to see the British Parliament revise UK copyright law to make explicit that such home copying is lawful, similar to the American model.