Copyright

YouTube Receives Take Down Notices from Microsoft Over Tech Vids

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Microsoft’s never-ending battle against software piracy caused some collateral damage this week. The victims were a handful of prominent YouTube video bloggers.

The bloggers—including LockerGnome founder Chris Pirillo and FrugalTech host Bruce Naylor—took to Twitter on Tuesday, with the hashtag #Microstopped, to complain that they had received erroneous copyright infringement notices for videos that were several years old. The notices were filed under the Digital Millennium Copyright Act.

Microsoft has been quick to distance itself from the actions of the law firm responsible for the take down notices. Some users, including Pirillo, initially believed that the copyright claims were targeting videos critical of Microsoft products, but Microsoft has denied at these rumors. According to a statement released by the software maker the videos were flagged because other users had posted stolen product keys in the comments. Those keys were the real target of the takedown action but the legal team overreacted and the videos were collateral damage. In a message from Microsoft’s Twitter account the company stated that it was investigating the takedown notices and that Microsoft had no intention of targeting “great content.”

Events such as this cause continued concern over YouTube's copyright infringement system. While these videos weren’t targeted for their content they easily could have been and the dispute process could have cost their creators months in time and lost revenue. YouTube’s copyright system is in need of reform to ensure it is not abused.

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Don't count Aereo out yet

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It may not be game over for internet television streaming company Aereo, which shut its doors last month after the Supreme Court ruled that it violated the Copyright Act. In a new court filing, the company says it believes it can operate once again, and within the confines of the Supreme Court decision by operating as a cable system instead of an equipment provider. Under current law, that would protect any transmissions it's picking up from being prohibited, the company wrote in a joint letter to US District Judge Alison Nathan.

"Under the Second Circuit's precedents, Aereo was a provider of technology and equipment with respect to the near-live transmissions at issue in the preliminary injunction appeal. After the Supreme Court's decision, Aereo is a cable system with respect to those transmissions," the company said in the letter. Therefore, it added, those signals would be protected as part of a "statutory license." Broadcasters who sued Aereo commented that they find this new legal plan and interpretation of the Copyright Act "astonishing."

Aereo launched in early 2012, and was quickly sued by broadcasters who took aim at its legality. The company's technology uses rooms full of dime-sized antennas to stream and record over-the-air TV programming, then delivers it to people online. The company made money off premium plans that offered extra features like DVR and multichannel recording before shutting down late last month. The company's attempts to sidestep the Supreme Court ruling also includes calling on consumers to get in touch with members of Congress.

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Recording

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It seems like everyone is recording and releasing an album. That has become the easy part. The hard part is putting together a quality product that will be taken seriously by the industry and your fans. Begin with a realistic production schedule and budget. Then be prepared to attend to many details that having nothing to do with making music.

Studios


Home recording studios are convenient. They allow you to gain valuable hands-on experience. But home studios take a lot of time and money to set up. Is this how you really want to invest your valuable resources?

Commercial recording studios are as different as night and day. Call several studios and request rate cards. Visit the studios to get a feel for them. Think about size, ambience, choice of engineer, lounge and/or kitchen, number of tracks, mixing and editing capabilities, end product (DAT, CD) and reputation.

• What does the hourly rental rate include?
• Is there a better rate for booking hours in bulk?
• Are there after-hours rates?
• Can you/must you use the studio's engineer?
• Is the engineer paid separately?
• Is payment required up front? Can you get a refund?
• Can you use/rent the studio's instruments?
• Is your set-up and tear-down time included in the hour?
• Is there a penalty for going over time?
• At what time do you perform best?
• Can the environment support your preference?
• Do you need an environment free of external distractions?
• Are temperature and humidity adequately regulated?
• Can the various spaces accommodate your musicians and equipment comfortably?
• Overall, what is your impression of the facility and its employees?

Recording-Related Agreements


Most studios use a form agreement. Be sure you read and understand the agreement before you sign it. Be careful. Some agreements contain language that gives the studio an interest in the master recording. Don't sign away your rights! If the studio does not have a form, or you are not satisfied with the terms of the form, put the details that are important to you in writing. Note: studio forms typically include an indemnification clause, which says that you'll be responsible if anyone sues the studio for copyright infringement.

Group Members: If the band does not have a band partnership agreement, a simple written agreement outlining how the finances of the recording project will be handled is highly recommended.

Producers: Some unsigned bands hire a producer to work on the album or on one or more songs. The producer agreement should spell out the fee and/or the percentage that the producer will receive from sales and how the ownership of the songs contained on the masters will be divided.

Work-For-Hire Agreements: These agreements are used for studio musicians, background singers, engineers or anyone else who is in the room while the songs are being recorded. They stipulate - up front - that the party has no ownership interest in the song(s) and will not receive royalties. A customary practice is to pay sidemen union scale as set by the American Federation of Musicians. Work-For-Hire agreements also are a useful reference when preparing album credits. The agreement should state whether or not the party is waiving the right to credit. If the party will be credited, be sure to get the correct spelling of the person's name.

Permission and Licensing


Make sure you have the right to record and distribute the songs you are going to record BEFORE you go into the studio. When you cover a song, you must obtain a license. The license can be a compulsory mechanical license or a negotiated mechanical license.

Because the notice and accounting requirements of the compulsory mechanical license are so cumbersome, most mechanical licenses are negotiated. If you take this route, you should start with the Harry Fox Agency, which is authorized to issue mechanical licenses on behalf of more than 22,000 music publishers. The Harry Fox Agency issues a standard mechanical license. In addition to relaxing the notice and accounting requirements, this license mirrors the compulsory mechanical license, meaning you will pay the statutory rate and have authorization to make a new musical arrangement.

For songs not handled by Harry Fox, contact the publisher directly. Usually the easiest way to do so is to obtain the publisher's contact information from the "song indexing" departments at ASCAP and BMI.

If you are including any samples on your record you must obtain sample clearances from the publisher of the musical composition being sampled AND the record label that owns the master being sampled.

CD Budgets


Preparing a budget is the best way to avoid financial problems in the studio or when releasing your own album. To determine expenses, make a list of hourly costs and the corresponding hourly rate. Then multiply by a realistic estimate of the number of hours needed. Add fixed costs, such as supplies and manufacturing. Be sure to think about how the album will be promoted and budget accordingly. A tip from a recent VLAA client: make a budget, double it, and stick to it! Of course, you also need to think about how to cover your expenses, including a realistic estimate of album sales.

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Supreme Court Rules Aereo's Service Violates Copyright Law

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The United States Supreme Court ruled last week that Aereo was in violation of US copyright law. The decision states that Aereo's use of small antennas hooked up to cloud DVR technology violates the right of companies producing broadcast content. Specifically, the decision says that Aereo's business violates the 1976 Copyright Act; the act states that individuals or businesses are violating copyright if:

1: perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
2: to transmit or otherwise communicate a performance or display of the work ... to the public by means of any device or process, whether the members of the public are capable of receiving the performance or display receive it in the same place or in separate places at the same time or at different times.

In the case of Aereo, the Supreme Court says the company's service is tantamount to "a performance or display of the work."

The decision is in line with the Supreme Court's history involving cable companies. In 1976, the Copyright Act deemed the rebroadcast of airwave-based television via cable a performance. As a result, cable companies had to pay broadcast networks for access to content. Today's ruling states that Aereo is essentially in the same boat as cable TV companies. "Aereo's activities are substantially similar to those of the [cable television] companies that Congress amended the Act to reach," Associate Justice Stephen Breyer writes.

Aereo's argument was that, since it only rebroadcasts shows that its users choose and save on customer-assigned DVR machines, its users were retransmitting/performing. In other words: each Aereo subscriber is assigned an individual DVR machine and antenna. Since each user must choose what they watch (unlike cable, which is a feed of every channel all the time), Aereo argued that it's not a rebroadcaster, but its users are (which is legal). Instead, Aereo thinks of itself as a hardware provider. That hardware (DVR machines and antennas) provide a service. Associate Justice Breyer disagrees: "We conclude that Aereo is not just an equipment supplier and that Aereo 'perform[s].'"

The justices were split six to three, with justices Breyer, Roberts, Kennedy, Ginsburg, Sotomayor and Kagan in favor, while justices Thomas, Alito and Scalia were against. Justice Scalia wrote the dissenting opinion of the court. Read the opinion here.

Aereo has "paused" its service, and is refunding subscribers for their last paid month.

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A new revenue stream for songwriters: the marketplace for lyrics.

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What do you do when you do not know the lyrics to a song? Google it. The results are full of lyric sites that give you access to the lyrics of almost any song, many sporting a boarder of advertisements.

David Lowery, frontman and songwriter for Cracker and Camper van Beethoven, is taking action against the sites he alleges profit from song lyrics but do not pay royalties. After evaluating is primary sources of revenue on the Internet, he came to an interesting conclusion. More people were searching his lyrics than searching to illegally download his music. And he was not receiving any of that revenue. Last year, Lowery released The Undesirable Lyric Website List.

The National Music Publishers Association took notice, and announced that it would send take-down notices to the names on the list. Rap Genius sat at the top of that list.

In an interview with NPR's Planet Money, Rap Genius' founder, Ilan Zechory, said the site should not be on Lowery's list. Zechory argues that the site is more than transcribed lyrics. He says it is a social network: a discussion board for musicians and music nerds. He says artists love the site. Some notable musicians, like Nas and Rick Ross, comment on their own lyrics on the site.

Rap Genius recently announced that, despite its opinion that the site is fair use, it is going to pay rights owners. Zechory noted that it was easier than fighting with music publishers, who have been very successful in suits against other lyric sites.

Source: NPR's Planet Money: Ep. 537 - Hold the Music; Just the Lyrics, Please

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Album Packaging

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Album Name

Names, titles, and short phrases or expressions are not subject to copyright protection, so you can use a title that has been used before, but you should stay away from trademarked names. They are the exclusive property of trademark owners who may sue.

Credits

You should credit the performances, the master recording, artwork, photographs, and music. Although not required, it is common courtesy and may help avoid legal problems.

Performances - All performances on the album should be credited. An exception to this rule occurs when a performer has waived his or her credit line in a work-for-hire agreement. Producer or sideman agreements may contain specific wording or placement requirements that should be followed.

Master Recording - Who owns the copyright in the master recording? Copyright in a sound recording protects the particular series of sounds fixed in the recording against unauthorized reproduction or distribution. This copyright is distinct from copyright in the actual songs and is usually owned by the record company. A copyright notice is not technically required, but is recommended. It is common practice to include the following statement after the notice: "This work is protected under the copyright laws and any unauthorized duplication or distribution is prohibited by law." Registration with the U.S. Copyright Office is not required. But, like notice, it is recommended.

Artwork - Artwork is copyrighted separately, and you must secure permission to use any artwork not owned by the band. When obtaining permission, the terms of the license or assignment should be put in writing. Putting the copyright notice on both the jewel case and the tray card is recommended. When the owner of the sound recording also owns the copyright in the artwork, the copyright notice for the two properties can be combined.

Music - A single copyright notice may be used if all the compositions are written by the artist (controlled by one publisher.) For compositions written by other writers, a separate copyright notice should be provided for each song. Writing credits should appear below the title of each song whether original or cover. Each writer's name should be provided. A first initial and last name is sufficient.

Song Lyrics

Rights to record a cover song do not include the rights to print the lyrics. Those rights must be obtained separately from the copyright owner (the publisher or the publisher's agent.)

Notice of Trademark and Service Marks

Do you have the right to use the name of your band and the name of your label? Prior to registration, the designation TM should be placed on the right hand shoulder of the name or logo. Once a federal trademark is registered, the mark should be changed to ®.

Photo Releases

Any recognizable person appearing on your album has a right to publicity. Photos and any other images of people should be cleared in advance.

Bar Code

For retail sales, the product must have a UPC Code or bar code. Most album duplicators will provide a barcode at no additional cost. If you plan to register with SoundScan, a company that tracks music retail sales, be sure that the barcode is specifically for your album. For more information about barcodes, talk to your manufacturer or check out the Uniform Code Council.

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Aereo moves ahead with PR push before Supreme Court Trial

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The US Department of Justice and almost every major broadcaster have accused Aereo of violating copyright laws. So far, courts have sided with Aereo. In five days, the Supreme Court will get the final word.

Today, Aereo launched its own lobbying effort in the form of a website named "Protect My Antenna." It makes arguments for Aereo's position and compiles various legal documents for the public to read. "We remain steadfast in our conviction that Aereo's cloud-based antenna and DVR technology falls squarely within the law," Aereo CEO Chet Kanojia said in an email to users announcing the site.

It's no suprise that broadcasters are upset with Aereo's live TV service. Here is how the service works: Customers pay a yearly fee to access a dedicated antenna at one of Aereo's locations and it includes DVR functionality. Users access the content online via streaming. So why are the broadcasters upset? The channels that Aereo carries show licensed content. The companies that broadcast that content want their licensing fees.

The US Department of Justice argues that Aereo is violating copyright law by re-broadcasting content from the big broadcasters and other OTA signals.

The case is scheduled for April 22nd.

Source: Protect My Antenna

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Band Partnership Agreements

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If you band plans on making a profit or selling tickets, CDs, or merchandise at shows, you have to treat your band or act as a business.

If your band plans on making a profit or selling tickets, CDs, or merchandise at shows, you have to treat your band or act as a business. If you are a singer/songwriter, this topic may not apply to you. However, this can be useful even for solo artists who routinely perform or record with other artists. It is smart to discuss business and clarify responsibilities while everyone is getting along. Such agreements can help prevent conflicts or at least protect everyone involved in case a conflict is not solvable. This agreement should be in writing, which reduces the risk of a misunderstanding.

If your band or group sells tickets, your music, or merchandise, you almost certainly need a Band Partnership Agreement. Below is a list of issues these agreements typically address. (This is list is not exclusive and you should consult an attorney for the best protection.)

Money

- How will profits/debts be distributed?
- Who keeps track of the books and how?
- How are performance fees and royalties distributed?

Business Decisions

- How will decisions be made?
- Who will make the decisions?
- How will disputes be resolved?
- What type of legal structure will the band have?
- What are the tax liabilities for band members?

Band Name

- Who owns rights in the band name or logo?
- Should the name or logo be trademarked?
- What happens if the band breaks up? What if a member quits? What happens to the name?

Band Property

- How will the band purchase equipment?
- How will it be stored and transported?
- Is there a need for insurance?

Creative Decisions

- Who owns the songs?
- Who decides which songs to perform or record?
- How is songwriting credit determined and given?
- Who owns the master of the recordings?

Touring/Performances

- Who decides which shows to play?

Band Members

-How are new members added or existing members expelled?

A simple Band Partnership Agreement can be written by one of the members of the group and signed by all members. You can sometimes find free templates in books and online. If you find these forms do not fit your needs or you have questions, you should contact an attorney familiar with entertainment law matters.

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UK Electronic label Ministry of Sound sues Spotify

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UK electronic music label Ministry Of Sound has sued Spotify for copyright infringement based on Spotify Playlists that reproduce MoS compilations. It's at the heart of the electronic music remix culture and is likely to affect both free and Spotify Premium users, as well as streaming music apps who let users create playlists from within the app.

The fight may determine the future for user-generated capabilities in streaming music service mobile apps, since Spotify playlists are one of the main features of its service. If users have "rules" around what playlists can be made through Spotify playlists and the others, how is that handled? Do users take responsibility for copyright infringement or does Spotify pay some sort of blanket licensing to cover the cost?

"What we do is a lot more than putting playlists together: a lot of research goes into creating our compilation albums, and the intellectual property involved in that. It's not appropriate for someone to just cut and paste them," said Ministry of Sound chief executive Lohan Presencer when speaking to the Guardian.

The future of user-generated content on such services will depend on the outcome of this case and many like it.

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Marvel settles Ghost Rider copyright case

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Gary Friedrich Enterprises, LLC et al v. Marvel Enterprises, Inc, et al, U.S. District Court, Southern District of New York, 08-cv-01533

Marvel Comics agreed today to settle a lawsuit by a writer who sued over the copyright to Ghost Rider.

If finalized this agreement would resolve five years of litigation brought by former freelancer Gary Friedrich who claimed he created the motorcycle-riding vigilante.

Ghost Rider, who first appeared in comic books in 1972, has since gone on to be the central character of two films since 2007 starring Nicolas Cage.

The settlement follows a decision by the 2nd U.S. Circuit Court of Appeals in New York to revive the lawsuit. A trial judge had previously dismissed the lawsuit, finding the rights to the character belonged to Marvel, owned by Walt Disney Co.

In a letter to Judge Katherine Forrest on Friday, Friedrich's lawyer said that his client and Marvel "have amicably agreed to resolve all claims between, among, and against all parties." Forrest previously suspended deadlines in the case while the parties finalize the settlement.

Friedrich began considering legal action against the comic book company in 2004 when he learned of an impending movie adaptation. He sued Marvel for copyright infringement, claiming that he owned the character and its use in films as well as toys, video games and other merchandise. Marvel argued that while Friedrich contributed ideas, the comic was created through a collaborative process.

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