Friday, January 23, 2015

ALL THE BIG STREAMING SERVICES HAVE NOW BEEN HIT WITH NEW LAWSUITS OVER PRE-1972 SOUND RECORDINGS

It started with the Turtles suing SiriusXM, but now all of the leading providers of streaming music are involved in lawsuits concerning pre-1972 sound recordings. New lawsuits have been filed against Apple's Beat Electronics, Sony Entertainment, Google, Rdio, Songza, Slacker and Escape Media Group/Grooveshark.

These new proposed class action lawsuits on behalf of various rights-holders of pre-1972 sound recordings seek the disgorgement of profits, punitive damages and a restraining order that would prevent these companies offering digital radio services from further exploiting pre-'72 sound recordings without a license. In bringing the claims of misappropriation and conversion, these lawsuits are following in the footsteps of The Turtles and the RIAA, which upset long-standing assumptions about the distribution and performance of older music in lawsuits filed against SiriusXM and Pandora.

This legal opening happened because when Congress amended the copyright laws in the 1970s to cover sound recordings and protected only those authored after February 15, 1972, under Federal copyright law. Since then, a wide variety of music users from TV broadcasters and terrestrial radio to local bars and restaurants throughout the nation have performed pre-'72 sound recordings without much legal trouble. As for digital radio, most operators assumed they were covered by compulsory fees established by the Digital Performance Right in Sound Recordings Act of 1995 and collected through SoundExchange. However, in August, 2013, The Turtles commenced their $100 million class action against SiriusXM alleging that its sound recordings were protected by state laws, and last September the Turtles prevailed on their summary judgment motion. The RIAA has also succeeded in its battle against SiriusXM - which opened the door for more lawsuits against others.

The latest lawsuits show that this issue isn't going away anytime soon and has the potential of wiping out older music from the Internet without new royalty agreements or intervention by Congress or maybe the U.S. Supreme Court. In response to earlier lawsuits, SiriusXM had attempted a variety of defenses, first challenging whether California and New York laws really cover pre-'72 music or are preempted before trying out arguments ranging from having an implied license to the lawsuits being an impermissible trampling of the commerce clause under the U.S. Constitution. Thus far, the defenses have been rejected by Judges even upon pleas of reconsideration. The pending litigation, though, has spurred furious new lobbying attempts to get Congress to address pre-'72 music.

In the meantime, none of the latest lawsuits filed have been certified by Judges for class action status nor entered the damages phase. That will likely be the next step, as efforts are also being made to take the issues up on appeal.


WALLACE COLLINS is a New York lawyer with over 30 years experience specializing in entertainment and intellectual property law.  He was a recording artist for Epic Records before    attending Fordham Law School.   (212) 661-3656; www.wallacecollins.com



Tuesday, January 6, 2015

New Ruling For Air Travel: now you CAN carry on your guitar!

On December 30, 2014, the U.S. Department of Transportation finally issued a final rule to implement section 403 of the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95, 49 U.S.C. §41724) regarding the carriage of musical instruments as carry-on baggage or checked baggage on commercial passenger flights operated by air carriers.

The final rule does not change the earlier provisions of the Act, but mercifully puts a period at the end of the sentence: "Section 403 of the Act and this final rule provide that carriers are required to allow passengers to stow their musical instruments in an approved stowage area in the cabin only if at the time the passenger boards the aircraft such stowage space is available.

"With the exception of certain disability assistance devices, overhead bins or under seat stowage space is available to all passengers and crew members for their carry-on baggage on a “first come, first served” basis. Accordingly, carriers are not required to remove other passengers’ or crew members’ carry-on baggage that is already stowed in order to make space for a musical instrument. However, this also means that carriers are not allowed to require a passenger to remove his or her musical instrument that is already safely stowed (e.g., in the overhead bin) to make room for carry-on baggage of other passengers who board the aircraft later than the passenger with the musical instrumenT." Most importantly, "This is true even if the space taken by the musical instrument could accommodate one or more other carry-on items." You can read the entire text of the rule here.

The DOT has also provided a helpful page with links to procedures for complaining to an airline or to the DOT regarding air travel with instruments, and tips for traveling with a musical instrument, available here.

Best advice? Print a copy of the rule and carery it on with you when you travel so you can stop arguing with that officious ticket agent who insists that you have to check your guitar as baggage or buy another seat for it.


Wallace Collins is an entertainment and intellectual property lawyer with more than 30 years of experience based in New York. He was a recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656; www.wallacecollins.com.