Music Publishers Win Major Copyright Fight Over Streaming of Legendary Rock Concerts (The Hollywood Reporter)
If you’ve spent much time on the internet, you may have heard of Wolfgang’s Vault.
For a decade, it was a popular source of legendary live concert footage and live recordings, which the Wall Street Journal called “the most important collection of rock memorabilia and recordings ever assembled.”
At one point, all of it was entirely free to the public. Eventually, the company began charging a $39/year membership fee and, of course, entered some legal troubles with the music industry.
In 2009, it signed licensing deals with all three major record companies, and to cover musical compositions, the company claims to have all necessary “compulsory licenses” in place with music publishers.
This “compulsory license” is mandated by the U.S. government and compelled upon music publishers and songwriters for the use of their compositions in sound recordings. This “compelling” upon the music publisher and songwriter means that anyone can get a music license and pay a fixed rate for on-demand streaming, without the direct permission of music publishers.
This particular license, however, is only valid for compositions reproduced and distributed to the public via audio recordings. It does not grant a license for any exploited “audio-visual works” (i.e. concert video footage).
That is the crux of this week’s story regarding some 200 unlicensed songs in Wolfgang’s online concert footage. The legendary videos were purchased from the archives of the famous concert promoter Bill Graham.
Over the course of his career, Bill Graham captured these live performance recordings and videos, but without the consent of artists. The judge’s decision clearly states, “...there is undisputed evidence that the three performing artists… Keith Richards, David Byrne and Michael Stipe - could not recall consenting to the recording of their performances.” Wolfgang’s argument that the compulsory licenses covered the concert video footage in addition to the audio recordings was rejected by the judge (who also questioning the tardiness of actually obtaining the licenses).
That is because the use of music in videos requires the direct permission of the music publisher. This is referred to as a “synchronization license.” This license is a free market negotiation between the copyright owner and the music user. No government regulation means no “compelling” is taking place. In other words, Wolfgang’s compulsory licenses were not enough to cover the concert videos.
To have avoided this lawsuit, it would have been necessary to obtain a separate “audio-visual license” from every music publisher, for every song performed in the concert videos. As a result of not obtaining those separate licenses, the company is now on the hook for massive copyright infringement damages on over 200 songs.
The maximum infringement damages are $150,000 per work. Therefore, in the next phase of legal proceedings (when damages are decided), the company could be on the hook for as much as $30 million.
In a music user’s defense, obtaining separate audio-visual licenses can be a terribly difficult task. The negotiations are never very easy for the user, especially when you’re talking about the Rolling Stones, Talking Heads, and R.E.M. Those are premium valued music catalogs that can generate the highest licensing fees in the marketplace.
Nevertheless, to quote the judge, the “licensing hurdles are not insurmountable” and now they will pay a heavy price to songwriters and music publishers.
And now other headlines from the week...
Spotify acquires music licensing platform Loudr (TechCrunch)
CAN APPLE MUSIC AND AMAZON CATCH SPOTIFY’S SUBSCRIBER BASE BY THE END OF 2018? (Music Business Worldwide)