The music industry is attempting to make sense of a New York federal judge’s rulings last week on Pandora’s ability to license BMI’s catalog of songs. The ramifications of a confusing ruling could have song publishers making big decisions before the new year and cutting Pandora off.
Pandora has blanket licenses from performing rights organizations like BMI and ASCAP, but large music publishers wish to withdraw the right to license their compositions to “new media” services such as Pandora. In reaction, Pandora has pushed judges to accept their argument that new media rights aren’t divisible.
In September, one judge ruled in Pandora’s favor in a fight with ASCAP. But on December 18, another judge ruled against Pandora by saying that song publishers could withdraw all uses of their songs — not just digital rights — from BMI.
“When BMI no longer is authorized by music publisher copyright holders to license their compositions to Pandora and new media services, those compositions are no longer eligible for inclusion in BMI’s repertory,” wrote Judge Louis Stanton in his decision. “BMI can no longer license them to Pandora or any other applicant.”
Then, in response to a request for clarification, the judge said that his ruling does not impact presently existing licenses, possibly meaning that Pandora has rights until 2017. But then there is the issue of fees. So valid license or not?
Unfortunately, Judge Stanton (the same one who has caused consternation in the Viacom vs. YouTube copyright fight) is on vacation until January 1 as the clock ticks on the decision of publishers to withdraw their works from BMI. Billboard has more details about the mess.
In other entertainment law news:
- Want cable service from Time Warner Cable? Expect to have your credit score checked. Last week, Time Warner Cable had to pay $1.8 million to the FTC for not informing low-credit consumers forced to pay a deposit why it was necessary to put money up front. The U.S. government filed a lawsuit against TWC last week for allegedly violating the “Risk-Based Pricing Rule,” but with the $1.8 million fine comes a settlement. In a statement, the cable company said it was “pleased to have resolved this matter, so that we can focus all of our efforts on providing outstanding services to our customers.”
- The 1976 Copyright Act allowed authors or their heirs to terminate a copyright grant during the latter portions of a copyright term. The intention was to give a second bite of the apple to authors who might have given up rights when they were up-and-coming and had little bargaining power. But the law prescribes a complicated set of formalities in order for termination to be effective. EMI has emerged victorious in defending “Santa Claus is Comin’ to Town” because of a failure to record the termination notice with the U.S. Copyright Office. Here’s the ruling.
- Two agents fighting over commissions? Not an unusual situation, but in this instance, one was famous sports agent Marvin Demoff and the other was Ted Marchibroda. The latter claimed that Demoff had breached contracts related to work persuading NFL first round picks Chad Greenway and Alex Mack to sign representation agreements. Marchibroda was given some money, but he demanded one-third of commissions from Demoff throughout the football players’ careers. A California appeals court refuses to vacate a trial judge’s opinion that Marchibroda failed to sufficiently allege any implied agreement between him and Demoff. This amounts to another tip to get it in writing or at least discuss terms of an agreement before doing any work. Here’s the ruling.
- What would happen if the sequel to Anchorman: The Legend of Ron Burgundy was focused on Will Ferrell‘s character suing his TV station for replacing him with a young, attractive female? If the lawsuit was brought in California, the protagonist would have a tougher time prevailing in his discrimination lawsuit. The law firm of Greenberg Glusker brings up Burgundy in reference to a recent California appeals court ruling. In a real-life dispute, meteorologist Kyle Hunter is suing CBS as “part of [a] plan to turn primetime weather broadcasting over to younger attractive females.” In response to the lawsuit, CBS brought an anti-SLAPP motion, prompting judges to look at the question of whether its hires were an act in furtherance of free speech. The appeals court concluded the station’s selection of news anchors “qualifies as a form of protected activity” under the anti-SLAPP statute. As a result, the dispute goes back to the trial court and Hunter will have to demonstrate his probability of ultimately proving discrimination. Otherwise, the case gets dismissed at an early stage and he might have to pay CBS’ legal fees. In the alternative Anchorman II, that’s how things might have gone for Burgundy.