21Feb

Collecting societies aka performing rights organisations for music in the USA

Record labels, recording artists and performers, and publishers and songwriters are represented in Australia (and most other places) by 3 collecting societies aka performing rights organisations (PROs); in Australia, that’s PPCA (recordings) and APRA and AMCOS (musical compositions).

In the USA, there are three main PROs for musical compositions and one for recordings streamed via certain online music services.

Confused? Hopefully this article will enlighten.

We’re always happy to assist – get in touch here.

Photo by Stacy Spensley

(CC BY 2.0)

 

11Feb

Where there’s a hit, there’s a writ: navigating copyright law in contemporary music

Here’s an article recently written for Music Insight.

 

Where there’s a hit, there’s a writ.

It’s a well-worn adage in the music business – and one that rings true. The Robin Thicke and Pharrell Williams hit ‘Blurred Lines’ is a perfect example.

The biggest song of 2013 was found to have infringed the copyright of the 1977 Marvin Gaye song ‘Got To Give it Up’. That decision was – quite rightly – criticised for being wrongly decided based on evoking the “vibe” of the earlier song, despite being in a major key (rather than the blues scale) and melodically quite different.  It remains to be seen if that decision will be appealed.

There’s a big difference between being inspired by an earlier work and directly copying the earlier work. Creativity does not exist in a vacuum, after all.  Just ask Ed Sheeran.

Popular music is littered with countless claims of copyright infringement, from Cat Stevens v The Flaming LipsGeorge Harrison’s ‘My Sweet Lord’Led Zeppelin v Willy Dixon to Joe Satriani v Coldplay.

So, how do songwriters fall into these types of situations and how are they dealt with?

Under Australian copyright law, which aligns with most other countries, a song may infringe another song if the part “taken” is decided by a court to be an important, essential or distinctive part of the first song – think the two notes of the Jaws theme or the three notes of the main riff in ‘(I Can’t Get No) Satisfaction’ – without the permission of the songwriter or their music publisher.  Remember when Men at Work went up against a favourite Aussie nursery rhyme and lost, for their use of that distinctive flute riff in ‘Down Under’?

For infringement to have occurred, the distinctive part used needs to be memorable and is referred to as a “substantial part” of the song – this is not based on duration or a percentage used of the original song.

For example, Lana Del Rey sued by Radiohead for allegedly copying ‘Creep’. Del Rey claimed in a tweet (since removed) that she was being sued for infringing Radiohead’s hit with her song ‘Get Free’ and the Creep writers wanted 100% ownership of her composition.

You can compare for yourself below.

Radiohead’s publisher Warner/Chappell subsequently confirmed there were ongoing negotiations around Del Rey’s use of musical elements from ‘Creep’ in her song/recording but denied the existence of a lawsuit being filed by “all writers”.

“All writers” means the Radiohead writers and songwriters Mike Hazlewood and Albert Hammond. Those writers and their respective publishers settled their own claim for copyright infringement by the writers of the 1974 song ‘The Air That I Breathe’. The liner notes of Radiohead’s Pablo Honey now credit* Hammond and Hazlewood as co-writers of ‘Creep’, and Hazlewood and Hammond share in publishing royalties with the Radiohead writers (*I did not have a copy of the album to verify this statement).

Given the obvious similarities between the Del Rey and Radiohead song, it’s likely a settlement will be reached (if it hasn’t already) between the interested music publishers, and all writers of ‘Creep’ will be added to the ‘Get Free’ writing credits, with entitlements to publishing royalties.

Sensibly, the standard of what makes a song “original” under copyright law is low, making it possible for countless songs in a genre – such as pop, country or blues – to comprise largely of the same harmonic and/or melodic structures, and to each be an original song in its own right, capable of copyright protection and the source of ongoing income for songwriters and music publishers.

‘Creep’ is a four chord song, and the permutations of songs based on a similar structure are endless. Have a look at this skit to see how easy it is.

More problematic are copyright claims where songwriters are found to have “copied the vibe” of the original song, as in the case of the ‘Blurred Lines’ / ‘Got To Give it Up’ decision. While ‘Blurred Lines’ paid homage to the recording of the Marvin Gaye classic by incorporating similar background party and cowbell sounds, specific original elements of the Gaye composition itself were not reproduced in the latter composition.

A recent claim which also falls into this basket is one by the writers of ‘Love Is In The Air’against the electronic duo Glass Candy for the 2011 song ‘Warm In The Winter’.  In my view, this claim is an ambitious one (known as an ‘ambit claim’) and neither the use of the phrase “Love is in the Air”, nor the music supporting that phrase, is a substantial reproduction of the John Paul Young classic. Watch this space.

And if you need any more inspiration on writing a hit (without a writ), then check out The Manual (How to Have a Number One the Easy Way by The Timelords (aka The KLF).

20Jul

The ban on excessive payment surcharges extends to Australian small business

From 1 September 2017, Australian small businesses will be prohibited from swiping customers with excessive surcharges who pay credit, debit or prepaid cards. These laws have applied to large businesses since 1 September 2016.

large business is one who (together with any related bodies corporate) meets any two of these three criteria:

  • Consolidated gross revenue of $25m or more
  • Consolidated gross assets of $12.5m or more
  • 50 or more employees

From this September, all surcharges for using electronic payments cannot exceed the ‘cost of acceptance’, being the costs of processing the payment (bank fees and terminal costs) but excluding internal costs such as labour and electricity.

The ACCC also has powers to enforce the ban. The ACCC can issue a surcharge information notice that compels a business to provide evidence of their costs of processing a payment. If the ACCC finds a business has breached the ban, it may issue an infringement notice or take court action and seek pecuniary penalties of up to $1.1m per contravention.

The ban does not affect the existing requirements for businesses to state the total price when presenting prices to consumers (refer to previous ‘drip pricing’ actions) and to not otherwise make misleading claims about prices.

More on the ACCC website here. An interesting transcript from the Reserve Bank of Australia website on Card Payments and the Retail Sector here.

Get in touch here

 

Photo credit: Nick Youngson under a Creative Commons 3 – CC BY-SA 3.0 licence.

04May

Kick Ass Torrents sites blocked in Australia after request from music giants

Following on from the orders for Australian ISPs to block access to The Pirate Bay in December, Kickass Torrents will be blocked across Australia by the end of May under orders made by the Federal Court.

The orders came at the request of music labels Universal Music, Sony Music Entertainment, Warner Music, collecting society Australasian Performing Right Association and others.

Twenty internet service providers, including TPG, Telstra and Optus have been given 15 days to take reasonable steps to block the sites.

Justice Burley was satisfied the primary purpose of the Kick Ass Torrent site “is to infringe or to facilitate the infringement of copyright”.

But how effective these orders will be remains to be seen as the multi-headed hydra of online piracy presents rights owners and ISPs with the challenge of playing whack-a-mole to make sure all domains offering infringing content are blocked (as seen in the case of The Pirate Bay).

Decision here.

Get in touch here.

23Mar

New Laws for Funding Australian Start-ups via Crowd Sourcing

The Corporations Amendment (Crowd-sourced Funding) Bill 2016 has been passed to introduce a new funding avenue for Australian start-ups and an opportunity for retail investors to access equity in emerging companies.

This opens new doors for small businesses and startups, who might otherwise struggle to obtain affordable finance.

Unlisted public companies with less than $25 million in assets and annual turnover can engage in crowd sourced equity funding to raise capital, where eligible companies may raise up to $5 million in any 12-month period through licensed crowdfunding platforms.

This follows on from the recent announcement that Silicon Valley’s globally renowned accelerator program 500 Startups will establish its Australian headquarters in Victoria after securing a funding grant from LaunchVic – the Andrews Labor Government’s $60 million startup fund.

Startups from within Australia and across the Asia Pacific can now register their interest in the 500 Melbourne program here.

All LaunchVic grants in funding Round 2 were matched with cash and in-kind support that will result in a total investment of $11.6 million for Victoria’s startup sector.

More information on the grant recipients can be found here.

Allens have produced a useful overview on the new laws which can be read here.

We can assist you with your start-up journey. Get in touch here

23Feb

UK search engines pledge to make it hard for internet users to find pirated films and music and illegally streamed sport.

Google and Microsoft’s Bing have signed up to a voluntary code of practice and will ensure offending websites are demoted in their search results.

The entertainment industry reached the agreement with the tech giants after talks brokered by the government.

The initiative will run in parallel with existing anti-piracy measures.

The code – said to be the first of its type in the world – is expected to be in operation by the Northern Hemisphere summer.

Read more here.

22Feb

The Australian Federal Court makes the first pirate site blocking decisions under the Copyright Act

On 15 December 2016, the Australian Federal Court handed down its judgment in Roadshow Films Pty Ltd & Ors v Telstra Corporation Ltd & Ors and Foxtel Management Pty Ltd v TPG Internet Pty Ltd & Ors.

These are the first decisions where an internet service provider (ISP) can be compelled to block access to overseas websites which facilitate copyright infringement. Section 115A provides that a copyright owner may apply to the court for an injunction against a carriage service provider to take reasonable steps to disable access to an online location outside Australia.

The section enables the Federal Court to grant an injunction requiring an ISP to block a website, provided that three conditions are satisfied:

  1. that the ISP provides access to an online location outside Australia;
  2. the online location infringes copyright, or facilitates an infringement of, copyright; and
  3. the primary purpose of the online location is to infringe or facilitate the infringement of copyright (whether or not in Australia).

Roadshow Films, along with a number of film companies such as Disney, Universal Studios, Twentieth Century Fox, and Warner Bros., applied to the Federal Court in early 2016 for a section 115A injunction against SolarMovie, an overseas website providing unauthorised online streaming of films and TV shows.

The case was filed against a number of Australian ISPs including Telstra, Optus, TPG, and iiNet.

Foxtel Management also filed its separate case against the same ISPs, applying for a section 115A injunction against websites The Pirate Bay, Torrentz, isoHunt, and TorrentHound.

The two cases were heard during 2016, with much of the discussion around the costs of implementing a block against the websites, and whether the costs should be borne by the ISPs or the applicants.

The Federal Court handed down a single judgment for the two matters, ordering that:

  • ISPs must take reasonable steps to disable access to the named websites, and reroute any connection attempts to a webpage explaining that access has been disabled by court order for facilitating copyright infringement;
  • the injunction be subject to court oversight, including allowing the operators of the blocked websites be permitted to apply to vary or stop the injunction if they so wish; and
  • the applicants pay a portion of the ISPs’ compliance costs, based on the estimation of Optus ($1,500) and TPG ($50 per domain name), rather than Telstra’s estimation of some $10,000 in set-up costs.

The injunctions are to last for three years, and may be extended upon application from the content-owners. The ISPs have 15 days from the date of decision to implement the site blocks.

A third section 115A case continues, filed by Australian music labels and APRA|AMCOS who seek to block access to the website KickAss Torrents.

Decision here.