3 Count: Substantially Similar

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1: Kat Von D Tattoo Case Headed for En Banc Review

First off today, Aaron Moss at Copyright Lately reports that the Ninth Circuit Court of Appeals has agreed to an en banc review of the Kat Von D tattoo case.

The lawsuit was filed by photographer Jeffrey Sedlik, who took an iconic photo of the musician Miles Davis. Kat Von D, a tattoo artist, used the photo when tattooing a client, featuring the image on her Instagram account and even noting that the result was “100% exactly the same.”

Despite that, a jury ruled in favor of the tattoo artist, saying that the tattoo was not “substantially similar” to the photo. On appeal, a three-judge panel upheld that decision, but left the door open for an en banc review by the whole nine-judge panel. That review is now happening, with the court possibly seeking to do away with the “total concept and feel” test that it has used for decades to determine whether a work is substantially similar.

2: ASCAP Targets Radio Groups In Copyright Infringement Suits.

Next up today, Inside Radio reports that the American Society of Composers, Authors, and Publishers (ASCAP) has filed a series of copyright infringement lawsuits against four radio groups, alleging that they continued to play ASCAP-licensed music after their licenses had expired. 

The lawsuits include Haugo Broadcasting, Spoon River Media, White Mountains Broadcasting, and Taylor Communications. In each case, ASCAP alleges that the radio groups played ASCAP-licensed music after their licenses had expired due to nonpayment. ASCAP says it sent repeated warnings and notices to the organizations, but the warnings were ignored.

ASCAP is a performing rights organization (PRO) that represents over 1.1 million songwriters, composers, and publishers when their music is performed publicly. The lawsuits seek injunctions barring further infringement and damages of up to $150,000 per work. The radio groups have not yet responded to the lawsuits.

3: Global Music Rights Sues Music Choice, Alleging ‘Willful’ Copyright Infringement of 95 Songs After Its License Expired

Finally today, Murray Stassen at Music Business Worldwide reports that Global Music Rights (GMR) has filed a lawsuit against Music Choice, alleging willful copyright infringement of 95 songs that it licenses.

GMR is another PRO representing a smaller, but still significant, number of composers and publishers. Music Choice is a company that streams ad-free music to cable and satellite TV companies, which those companies then stream to their subscribers.

According to the lawsuit, Music Choice’s license with GMR expired at the beginning of this year, but the company continued to stream music licensed by the organization. The complaint cites just 95 songs but says that the list is incomplete and that they reserve the right to add more. All totaled, the damages in the case could reach $14.25 million for the 95 songs currently cited.

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