3 Count: Fractional Victory

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1: Court of Appeals Sides With Songwriters, Publishers on Fractionalized Licensing: ‘This Is a Massive Victory’

First off today, Ed Christman at Billboard reports that the U.S. Second Circuit Court of Appeals has upheld a lower court ruling allowing performing rights organizations (PROs) to engage in fractional licensing, marking a big win for the music industry.

The case pitted the Department of Justice (DOJ) against the PRO BMI. BMI, as well as its main competitor ASCAP, operates under a consent decree that regulates how it can conduct business. The DOJ recently informed BMI that it had been misinterpreting its consent decree and that it could not provide fractional licensing. Fractional licensing is when a song has more than one composer and they work with separate PROs meaning that one PRO can only license part of the song and an agreement with all of the PROs involved is necessary to use the song.

The major PROs sued and the lower court ruled that fractional licensing was allowed. Without it, each PRO would have to offer 100% licensing of every song in their catalog and then make restitution with other songwriters later, greatly increasing the complexity of offering music licenses (though simplifying obtaining licenses) and possibly harming the PRO’s ability to negotiate licenses. Today’s victory means that fractional licensing is likely to stay and that the status quo will be preserved for the time being.

2: Court Revives Rick Ross’ “Hustlin'” Lawsuit Against LMFAO

Next up today, Ashlely Cullins at The Hollywood Reporter Esquire reports that the Eleventh Circuit Court of Appeals has revived Rick Ross’ lawsuit against the band LMFAO that alleged LMFAO’s song Party Rock Anthem was an infringement of the Ross song Hustlin’.

In the lower court, the judge dismissed the case claiming that Hustlin’ had three separate copyright registrations and all had errors. In the United States, without a valid copyright registration a court lacks jurisdiction to hear a copyright case so the judge dismissed the lawsuit. However, the court of appeals ruled that the court erred in that dismissal. The argument there being that, since LMFAO did not use the affirmative defense to question the registrations, the court was wrong to ask the Copyright Office about their validity.

This case will now go back to the lower court where Ross will contend that the LMFAO line “Everyday I’m shufflin'” is somehow a copyright violation of Ross’ famous line “Everyday I’m hustlin'”. The judge at the lower court has already expressed great skepticism about that as well.

3: Pokémon Awarded $1 in Damages Against Redbubble

Finally today, Jennifer Duke at The Sydney Morning Herald reports that the Federal Court of Australia has awarded a victory to The Pokémon Company in it’s lawsuit against the retail site Redbubble. However, that victory is somewhat pyrrhic  as the court only awarded $1 in damages and no injunctive relief.

Pokémon sued the store over unlicensed products that were sold on the site, all of which were sold by artists who opened up online stores on it. But, while the court did agree that infringement had taken place, the court did not feel Pokémon had done an adequate job proving fault on behalf of Redbubble and did not award damages. Furthermore, since none of the products were available as legitimate Pokémon merchandise, the court didn’t award royalties or license fees.

Instead, Redbubble has been ordered to make declarations of copyright infringement and there will be a later hearing on legal costs.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

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