Peer-to-peer Pressure

When thinking of peer-to-peer music sharing, many think nostalgically to the days when we would lend our best friend our Spice Girls CD in exchange for their TLC album.  After hours and hours of “chasing waterfalls,” we would return the album much to the delight of our parents.  Today’s peer-to-peer file sharing vaguely resembles the CD swapping of the past, but technological advances have moved our music and our sharing online.  The move has improved the speed in which the world shares data, but it has also made “illegal transfers” of copyrighted material possible.  These illegal transfers create issues for artists of all genres, but the music industry is noticeably affected. 

The music industry has seen a fifty-three percent decrease in sales since the birth of the peer-to-peer filesharing site, Napster.  According to the Recording IndustryAssociation of America (“RIAA”), the music industry is small and easily impacted by piracy, and talented musicians are dissuaded from entering the industry.  Without the necessary revenue, investments may diminish, and music will no longer be a viable full-time career.

Music is a powerful tool for uniting millions of people from around the world.  Each fan of any one artist has something in common: regardless of their age, ethnicity, or sexual orientation, they all enjoy the music.  Peer to peer sharing (“p2p”) is an illustration of the way the music unites people from all over the world.  With the ability to see who uploads and downloads files, one can see the flags of several nations on the computer screen.  Unfortunately, p2p often unites people as they “illegally transfer” copyrighted material.  The issue, however, does not rest solely on the file sharing sites.   While the Supreme Court decided that “one infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it,”[1] we cannot solely blame the sharing sites.  

Solving the problem will require the cooperation of individuals, p2p sites (which provides a link to the .torrent file), and BitTorrent clients (which facilitate the uploading and downloading of the actual material).  With Pirate Bay (one p2p site) now allegedly being run by the FBI, it seems the problem is not fixing itself, and the "big guns" may be stepping in.  Is free music worth the risk? 

The fact of the matter is, we look to music for relief from our problems, escape from our worries, comfort for our pains, and if we do not seek to protect artists, we may be causing the problems from which they hope to escape.  While some argue it is about the music and not the money, let's be honest, it is a little bit about the money.  No one actually wants to be a starving artist.

—Amanda Marston, Staff Editor

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[1] Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.Supreme Court of the United States June 27, 2005545 U.S. 913125 S.Ct. 2764162 L.Ed.2d 781, citing Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (C.A.2 1963).

Whose Line Is It Anyway?

     In the midst of the lawsuit between Marvin Gaye’s estate and Robin Thicke and Pharrell Williams (trial scheduled for February 10, 2015), Sam Smith and Tom Petty have amicably resolved a similar issue. Gaye’s family accused Thicke and Williams of stealing parts of Gaye’s “Got to Give It Up” for their own song, “Blurred Lines.” Tom Petty, however, characterized Sam Smith’s melody in his Grammy-winning hit “Stay With Me” as “coincidentally” similar to that of his own 1989 song “I Won’t Back Down.” According to Petty, the word “lawsuit” was never uttered nor came to his attention, and the pair have since agreed that Petty will receive songwriting royalties and a 12.5% writing credit. However, Petty is not entitled to any of the shares from Smith’s four Grammy wins since Petty’s work is considered to have been interpolated rather than having done new work on the song.

     This is not a new concept for entertainment law. After all, how many variations on only thirteen notes are there? Beyonce, Jay-Z, Katy Perry, Eminem, and countless other big time names have been sued for as little as a single “oh” in common with another’s own tune. What is notable about this instance is the professionalism between the parties to handle the dispute without hostility and in a timely manner. The dispute was handled in its entirety “immediately.” Furthermore, Petty was able to recognize that some parts of songs—substantial or not, deliberately or non-deliberately—get incorporated into others’. He and his legal team took a relatively unprecedented and fresh approach to getting the recognition he deserved in a civil and collegial manner that rewarded Petty fairly and allowed Smith to gracefully promote his song. Hopefully, the entertainment industry can use this instance as an example of how to resolve these kinds of issues because it is not clear that these disputes will ever cease. Petty admitted in his autobiography that even he has found himself writing his songs while (consciously or unconsciously) channeling other’s songs.

     The entertainment industry is replete with opportunities for copyright and trademark infringement—it is virtually unavoidable. Yet, the way this case was handled illustrated a precedent that the industry may wish to look to emulate. Parties can reach an amicable agreement without public attention and potential embarrassment. The media is quick to jump on any drama or dispute without hesitation when it comes to celebrities and their private matters. Petty released a statement including his shock that the dispute even reached the public. Moreover, these settlements avoid clogging the courts with disputes that are seemingly easily resolved otherwise—an ever-present motivation for the courts. The entertainment industry should look to Smith and Petty for how best to proceed—even if the dispute concerns more than just a chorus melody.

- Samantha Albanese, Staff Editor

Toyota Cruises into Copyright Infringement

                  On October 20^th, 2014, Eric Dahl filed a complaint against Toyota Motor Sales alleging copyright infringement.  Dahl claims that Toyota’s new commercial , featuring a young girl who wins a storage locker containing one of B.B. King’s famous “Lucille” guitars, is exactly like Dahl’s real-life experience.  While most commercials and television have some basis in real-life, Dahl’s experience is written in his book, B.B. King's Lucille and the Loves Before Her. He spends several chapters describing the moment he found B.B. King’s stolen guitar in a Las Vegas pawn shop. While the commercial depicts a young woman who finds the guitar in a storage locker, both Dahl and the young girl in the commercial return the guitar to B.B. King, who rewards them with a Lucille of their own.

This issue invites the question: how similar is too similar?  According to 17 U.S.C.A. § 106(2)[1], the owner of the copyright has the exclusive right to “prepare derivative works” based on the copyrighted material.  In this case, Toyota allegedly consulted with Gibson guitar employees to ensure an accurate depiction of the story from the book with the intention to derive their commercial from Dahl’s story (assuming Dahl’s allegations are true, of course).  

However, there are billions of people with billions of stories; the chance that someone may have had a very similar personal experience to another person is at least possible, if not probable.  If one person writes a book about some occurrence in his or her life and another person writes and performs a similar play, who gets to tell the story?  Telling someone to stifle their own life experiences because someone beat them to a copyright seems a little too Big Brother, however, we as a society also have an interest in preventing corporations like Toyota from “selling” someone else’s moments for profit.

Dahl seeks damages and profits attributed to the advertisement.  He also intends to seek an injunction, preventing the commercial from airing any longer.  Arguably, there will be almost no way to determine what profits came directly from this commercial as opposed to any number of other commercials aired by Toyota or by individual car dealerships. Nonetheless, Dahl seems to have a strong case for recovering damages and obtaining a permanent injunction based on the striking similarities between the commercial and his story.[2] Only time, and Nevada’s district court, will tell what will become of the claim, but it certainly seems that the odds are in Dahl’s favor.

-Amanda Marston (Staff Editor, Denver SELJ)

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[1] 17 U.S.C.A § 106(2).

[2] Assuming that Dahl has made no licensing agreements with Toyota, which he claims he has not.

Iggy Azalea's in the Fast Lane and She's on Her Way to the Courtroom

Vivid Entertainment, a Porn Company, is claiming that it has been shopped a 2009 sex-tape starring Iggy Azalea (“Amethyst Kelly”). Following the release of Vivid Entertainment’s statement, Houston-based rapper Maurice Williams, who also happened to manage Azalea at one point, came forward claiming he co-starred in the tape and that Azalea signed a contract that gave him “exclusive rights to manufacture, sell, distribute, and advertise ‘any’ recording embodying visual images” of the Australian rapper. Azalea’s camp initially denied both statements but then later backtracked stating that if the video was legitimate, then all parties involved would be sued. However, to date, no suit has been filed regarding the possible release of the tape.

Unfortunately for Azalea, the sex-tape scandal isn’t her only legal problem. Earlier this week, Azalea filed suit against Maurice Williams, yes… him again, alleging that he infringed upon her copyright and unlawfully misused Azalea’s name, likeness, voice, and trademark. Azalea’s suit comes in response to attempts by Williams to release music recorded earlier in her career. The suit alleges that around 2007 and 2008 Williams downloaded content from Azalea’s computer without her permission, which included unreleased master recordings. In response to the suit, Williams is asserting the same defense as he did regarding the alleged sex-tape. 

Since suing Williams, Azalea has stated that the contract Williams is referring to is forged and is a modified version of an old management contract Azalea once signed.

At the heart of this media battle is a contract clause interpretation case that could either come out very well or very poorly for Azalea. Public policy considerations could direct a judge to find that it was not the party’s intent to enter into a clause that would give another individual rights to distribute such materials, and would modify the term to express the party’s true intent – ultimately prohibiting release of the tape.  However, if a judge doesn't feel compelled by public policy considerations, and the contract does indeed say ‘any’ recording with visual images, then Azalea may be without any legal recourse. It will be interesting to see if Azalea and her legal team smooth out these tensions before trial or, instead, decide to go forward with litigating her claims. 

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                                       - Erica Vincent (Marketing Editor, DU SELJ)