3 Count: Implied Sublicense

Can you imply a sublicense?

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1: Harold Arlen Estate Files New Lawsuit Against Apple over Bootleg Recordings

First off today, Chris Cooke at Complete Music Update reports that the estate of Harold Arlen has refiled the copyright infringement lawsuit against Apple and a record label alleging that the iTunes store is selling and distributing several unlicensed versions of Arlen’s music.

The estate is not suing as the owner of sound recordings, but of several compositions, Arlen created in his life. Normally, such distributions of his compositions would be covered under a compulsory license but the estate argues that many of the recordings are themselves unlicensed, meaning that the compulsory license doesn’t apply.

They claim that the recordings themselves were published on iTunes by the British label Adasam. They claim the label is selling “recordings by virtually every well-known recording artist” from the 20s through to the 60s. and that there is no practical way those tracks are all licensed.

2: Judge Allows Musicians to Move Forward in Suit Aimed at Reclaiming Rights

Next up today, Eriq Gardner at The Hollywood Reporter Esquire reports that a New York judge is allowing a copyright termination lawsuit against Universal Music to move forward but also made a decision that will most likely impact future copyright termination cases.

Copyright law allows original creators and authors to reclaim, or terminate, exclusive licenses and transfers of their copyright after 35 years. However, this has become a particular sticking point in the music industry as musicians try to unwind previous agreements with record labels in a bid to either reclaim their rights or negotiate new contracts.

One of the issues has been whether such creations are works for hire as works for hire do not qualify for copyright termination. To that end, labels have long worked in “work for hire” clauses into to contracts and registered such recordings as works for hire with the U.S. Copyright Office. They would then argue that the statute of limitations on disputing work for hire status expired years ago, namely three years after it happened. However, the judge in the case has ruled that musicians can indeed challenge those designations now as there was no claim for copyright infringement until after the copyright termination vested. This is a major win for musicians seeking to reclaim the rights in their music.

3: First Circuit Treads “Unchartered Waters”: Holds Copyright Sublicenses Can Be Implied

Finally today, Brittany Benavidez at the National Law Review reports that, in March, the First Circuit Court of Appeals has issued a first-of-its-kind ruling in stating that sublicenses, not just direct licenses, can be implied.

The case starts with Photographic Illustrators Corp (PIC), a commercial photography service that did work for Osram Sylvania, a lightbulb manufacturer. They granted Sylvania a broad license to sublicense the works they created for them as long as attribution was applied. However, when distributor Orgill used photographs by PIC in their catalogs, photographs provided by Sylvania, it prompted a lawsuit by PIC for copyright infringement.

Though Orgill never entered into a written agreement with Sylvania, the judge in the case ruled that sublicenses, much like direct licenses, can be implied. This upholds the district court’s award of summary judgment.

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