Archive for Ben Challis

Owners of “Happy Together” lose Florida copyright case

Sound recordings, broadcasting


Another court in another state has ruled that pre-1972 copyrights are NOT protected by state copyright law – and they never have been. The Florida Supreme Court, following in the footsteps of New York State’s appellate court, has ruled that its state law, which governs sound recordings made before 1972, doesn’t include a right to control public performances in sound recordings, including radio plays. Commentators said that both this decision and the reasoning behind it are good news for digital broadcasters and possibly their radio listeners,  but less so for the owners of copyrights.

As readers will be aware, there is an unusual position in the USA when it comes to paying for the use of sound recordings on the radio – there is no such payment due from ‘traditional’ radio stations, and AM/FM radio has never paid royalties for using sound recordings, whether on current hits or  ‘golden oldies’ either. This changed in 1972 with new satellite and digital broadcasters liable to pay – but a number of copyright owners and in particular Flo & Eddie, former members of 1960s group The Turtles, argued that pre-1972 recordings would be protected by state law, so a royalty WAS payable, and brought legal actions in California, New York and Florida, after broadcasters including Pandora and satellite broadcaster Sirius XM decided that while they had to pay royalties to artists and labels on post-1972 catalogue, that wasn’t the case for older tracks.


The copyright owners argued that state law provided for a general performing right for sound recordings and in 2014 the courts in California sided with Flo & Eddie on this point. And at first instance so did the courts in New York, prompting both Pandora and Sirius to reach settlements with the major labels. Sirius also reached a deal with Flo & Eddie, though subject to various outstanding court cases on the issue, especially in New York and Florida. The New York appellate court then reversed the decision at first instance and Florida’s Supreme Court  has now concurred with that and the earlier ruling in Florida that said there is no performing right for sound recordings under Florida’s copyright laws.

Judge Charles Canady said:  “Flo & Eddie essentially asks this court to recognise an unworkable common law right in pre-1972 sound recordings that is broader than any right ever previously recognised in any sound recording. Doing so would require this court to, among other things, ignore the lengthy and well-documented history of this topic – something we decline to do”.

“Florida common law has never previously recognised an exclusive right of public performance for sound recordings. To recognise such a right for the first time today would be an inherently legislative task. Such a decision would have an immediate impact on consumers beyond Florida’s borders and would affect numerous stakeholders who are not parties to this suit”.


In the last of the three jurisdictions involved, the Californian Supreme Court will revisit the issue in litigation involving Pandora, and if this court follows the other decisions, those settlements must surely be in doubt.


Despite the rulings, what might be more important to copyright owners are moves in Washington to firstly apply federal copyright law across the board so ALL broadcasters have to pay for sound recordings they use, and secondly have the general performing right extended back to pre-1972 recordings.

Goldenvoice wins another ‘Chella’ battle

Live events sector


 A court in California has upheld a complaint made by Coachella organiser Goldenvoice against the organisers of the Filmchella film festival in the same state, granting a preliminary injunction against the latter holding that name is liable to cause “consumer confusion” with the well established music festival. 


The complaint, filed by Coachella Music Festival LLC in the US District Court for Central California, argued that Filmchella founder Robert Trevor Simms and twenty other defendants were using the similar-sounding name to their name and trade mark for their multiday outdoor film festival. To add to this, the complaint says that both events feature numerous forms of entertainment and camping, are held in Southern California and that Simms has pitched his planned festival as “Coachella for movies”. 


Coachella Music Festival LLC owns several trademarks and servicemarks associated with the festival, including the Coachella servicemark and “Chella” for use on shirts and T-shirts; However the trademark for use of “Chella” in “musical” and “cultural and arts events”, “campground facilities”, “hotel accommodation services”, drinks, transportation and other clothing has not as yet been registered.


The suit said “Trading on the goodwill of plaintiffs’ famous ‘Coachella’ festival, defendants are attempting to operate a directly competitive festival which they have named ‘Filmchella’” ….. “Despite repeated requests from plaintiffs asking them to change the name … to one which avoids confusion, conflict and false association … defendants have failed to do so.”


The film festival described its event as the “Coachella for movies” and “the rock’n’roll festival for filmmakers and fans” and registered the web address (which redirects to the Filmchella website).

On the 10th October Judge Robert G. Klausner sided with Goldenvoice, ruling that while Simms “provided evidence that he relied in good faith on a valid trademark search, conducted by a trademark examiner, that did not return any conflict” – and that Coachella failed to “clearly demonstrate” he had deliberately set out to confuse consumers – the intention is ultimately irrelevant, with “the intent element is merely a proxy for determining likelihood of confusion”. The Judge said:

“Since both Coachella and Filmchella are both designed to be artistic, multi-day festivals in the desert; since Coachella’s marks have become widely known and strong; and since using the suffix ‘chella’ is likely to cause consumers to believe, or at least wonder, if Filmchella is affiliated with or sponsored by Coachella, the Court finds that the Sleekcraft test” – a set of eight guidelines for determining infringement – “falls in plaintiffs’ favour

He also agreed that there was  “sufficient evidence to show a likelihood of reputational harm. Coachella has a significant reputation to uphold. It has drawn massive crowds and exceptionally popular artists. Filmchella has not. The festivals are different in type, in budget and in ticket price. Coachella tickets are very expensive. Filmchella tickets are very inexpensive.”



“Plaintiffs have also raised concerns about whether the event will have adequate security and come forth with evidence suggesting that it may lack appropriate security. Given that there is an inherent likelihood of confusion regarding the extent to which Filmchella is associated with Coachella, Filmchella’s success or failure would be likely to impact Coachella’s reputation as well.

“Finally, Coachella’s loss of control – their inability to control their reputation, and the extreme difficulty of attempting to quantify the monetary value or loss of sales due to such reputational damage – justifies a finding of irreparable injury.”

Granting the injunction and prohibiting the use of the service/trademark ‘Filmchella’, the Judge made it clear that his order would not prohibit Simms from hosting a film festival with a different name in future. Indeed Simm went ahead with “Filmchilla” which was held just before the hearing (29 September to 1 October)


And Classixx (the electronic duo of Michael David and Tyler Blake) have filed a lawsuit against clothing retailer H&M for trademark infringement, after H&M reportedly sold unlicensed clothing bearing the band’s name without the band’s permission. representative for Classixx told Pitchfork last week: “Our client attempted to resolve this amicably with H&M before going to court. But, despite H&M’s blatant infringement of Classixx’s trademark and publicity rights, it denied any liability, threatened Classixx with claims for costs and attorneys’ fees, and insultingly referred to the band as a ‘relatively unknown DJ duo” and “Clearly, H&M, which has been known to broadcast Classixx music in its stores, is no friend to the artist. For H&M to profit by marketing and selling without consent ‘Classixx’-branded apparel at its stores around the world is bad, but responding in the manner it did is even worse. The band looks forward to their day in court”. 

Manowar and Womanowar are in a trade mark war



Manowar is a heavy metal band from New York, Womanowar are a “feminist tribute band” to…you guessed it: Manowar. 

Manowar’s bassist, Joey Demaio, is the proprietor of US trade mark registration numbers: 75645524 and 85065290. The first registration is for a word device (logo) mark and the second is for a word only mark ‘Manowar’. The bassist is also the proprietor of EU registration number: 0011118041 for a word device (logo) mark. The three trade marks, amongst others, are all registered for use in class 41 entertainment services, namely, live performances rendered by a vocal and/or instrumental group. 

But it appears that Manowar and not fans of their feminist tribute band ‘Womanowar’, it has been reported that Demaio’s legal representative has sent a cease and desist letter to the tribute band. The letter alleges that Womanowar’s logo is likely to “cause confusion among the consuming public”.

In practice, coincidences at the beginning of marks will increase the similarity as opposed to the middle or the end.  If I were, Womanowar’s lawyer, I would certainly be arguing that the fact that one mark starts with ‘Man’ and the other ‘Woman’ means that the marks might not be as similar as it appears. Further, an assessment would need to be made in regards to dominant and distinctive elements of the two marks. This is that an assessment needs to be made on the overall impression created by the two marks, in particular the distinctive and dominant components, which I would suggest as being ‘Man’ and ‘Woman’. It is hard to see how the two words on their own may “cause confusion among the consuming public” because I am unsure as to how one can confuse genders. 


However, I suspect, the legal representatives for Demaio know this:  it is reported that the letter stated “demand is hereby made that you immediately change your logo so as not to be confusingly similar to our client’s logo”. Whilst trade mark similarity and confusion may not be an exact science, Womanowar are not fussed, they have been encouraging fans to come up with new logos. 

But this isn’t the first time Demaio has threatened action with Womanowar. Back in September, Demaio attempted to have a Womanowar video from YouTube. However, things did not quite go to plan, Demaio does not own the publishing rights to the track in question so his efforts were unsuccessful. 


By Samuel O’Toole 

National Party’s use of ‘sound alike’ song DID infringe on Eminen’s ‘Lose Yourself’

Music Publishing


New Zealand’s High Court has ruled that the National Party had infringed the copyright in Eminem’s iconic song ‘Lose Yourself‘ in a 2014 political campaign by using a ‘sound alike’ song and has awarded the rapper and his co-writers’ publisher NZ$600,000 (AU$535,000/ £315,000) in damages. 

The publisher filed proceedings against New Zealand’s then governing party in September 2014 for using a version of the chart-topping song Lose Yourself in an election campaign advertisement.


The key issue for determination by the Court was whether the “sound-alike” production track, called ‘Eminem Esque‘, was sufficiently similar to the 2002 music of ‘Lose Yourself’, so as to constitute a breach of copyright.  ‘Lose Yourself’ was composed by Marshall Mathers III (Eminem), Jeffrey Bass and Luis Resto (Eight Mile Style) in 2002. The composition is regarded by Eight Mile Style as the most valuable work in their catalogue and had only rarely been licensed for use, and never as part of a political campaign.


The High Court ruled that Eminem Esque was “sufficiently similar” to Eminem’s original song that it infringed copyright and that ‘Lose Yourself’ was a “highly original work” and that the infringing song bore only minimal differences to the original, 


The tensions between illegitimate copying versus permissive borrowing and the resulting

copyright consequences are at the forefront of this case.

To attract copyright protection under the New Zealand Copyright Act 1994 (the Act) a work must be “original.” There are three separate copyrights in ‘Lose Yourself’:  the original sound

recording, the lyrics and the music. Copyright is a property right that exists in original

works and it should be noted that this case concerned the copyright in the musical work  ‘Lose Yourself‘ and NOT the sound recording. 

The court analysis required consideration of the originality not just of the composition but also the various elements of the composition as not every part of an original work will necessarily be protected by copyright.

Cull J found ‘Lose Yourself’ also met the higher threshold of an original work in the case law.

Her Honour concluded:

[154] The distinctive sound of Lose Yourself is not limited by a “melodic” line, but is a combination of the other instruments, particularly the guitar riff, the timbre, the strong hypnotic rhythm and the recurring violin instrumentation and the piano figure. It is no coincidence that Lose Yourself received the 2003 Academy Award for Best Original Song. I find that Lose Yourself is a highly original work.


After reaching a conclusion on this issue the Court worked through a series of questions to

determine whether the three elements necessary to establish copying had taken place:

(a) Has ‘Eminem Esque’ substantially copied or reproduced ‘Lose Yourself’?

(b) Does ‘Eminem Esque‘ sound objectively similar to ‘Lose Yourself’?

(c) Is there a causal connection between ‘Lose Yourself‘ and ‘Eminem Esque’?

To that end the court considered the drum patterns, background chords and violin tones of each version, all of which it said bore “close similarities”: “The differences between the two works are minimal; the close similarities and the indiscernible differences in drum beat, the ‘melodic line’ and the piano figures make ‘Eminem Esque‘ strikingly similar to ‘Lose Yourself‘. ‘Eminem Esque’ substantially reproduces the essence of ‘Lose Yourself’. The parts of ‘Eminem Esque‘ used in the National Party’s campaign advertisements also substantially reproduce ‘Lose Yourself’.”

The court ruled that “Eminem Esque has substantially copied Lose Yourself” and Justice Cull said  “Eminem Esque sounds like a copy and is a copy of Lose Yourself and that the National Party committed three restricted acts amounting to copyright infringement. The Court found Eight Mile Style is entitled to damages on a “user principle” basis in the sum of NZ$600,000, with interest, from 28 June 2014. 

The publishers said after the ruling: “We find it incredible that the National Party went to such great lengths to avoid responsibility for using a weak rip-off of Lose Yourself. They knew we would not have permitted the use of the song in their political advertisement; however, they proceeded at their own risk and blamed others for their infringement.”


Eight Mile Style v National Party and others [2017] NZHC 2603

New copyright tariffs for Germany’s live sector

Live events sector


Following lengthy negotiations which involved court action from two of Germany’s live entertainment business associations, a new concert tariff rate has been agreed between representatives of the country’s live music sector (BDV and VDKD, which represent the majority of Germany’s concert promoters) and performance royalty collection organisation GEMA.

Collected on behalf of songwriters and music publishers, the rate will now be calculated on a net basis of ticket sales, instead of gross, with other services including camping fees at festivals and sponsoring income taken into account.

The new rate will be 5.75% of net receipts for events under 2,000 people (it is currently 5% on gross receipts), 7.6% for 2,000–15,000-capacity shows (currently 7.2%) and 8% for events with a capacity of 15,000+ (currently 7.65%).


The German PRO collected €1.02bn in royalty payments in 2016, including €371.1m in public performance fees, in its most successful financial year to date. GEMA has faced increasing criticism in recent years, and artists and event-organisers have demanded a revision of GEMA’s regulations with respect to better transparency, adjusted payment methods and other critical points.  In the live sector, the large discounts offered to some promoters have attracted criticism some of the societies own songwriter members and has been blamed as one of the causes of some members moving to ‘direct licence’ their performing right in the live sector. 

IQ Magazine commented that in the UK, a similarly long period of negotiations is approaching its end, as PRS for Music moves towards replacing the current flat rate of 3% on gross box-office receipts.

This is Spinal Tap – it’s gone past eleven

Film & TV, recorded music


We previously reported about the ongoing ‘This is Spinal Tap’ litigation. In fact, I am sure that we are now running out of puns, I guess each time “it’s one louder, isn’t it?”

But now the four creators, have amended their claim. The amendments have resulted in more specific claims against Vivendi and now Universal Music is also featured as a co-defendant. 

The legal representatives for Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner have stated that “The amended complaint details the fraud by concealment and misrepresentation conducted by Vivendi and its agent Ron Halpern and others. The co-creators contend there was longstanding and deliberate concealment by Vivendi of material facts regarding the actual gross receipts of the film, soundtrack, music and merchandise sales, plus expenses and the profits owed to them” and “Further compounding this fraud, improper expense deductions were made in Vivendi’s accounting to the creators, allegedly representing print, advertising and publicity expenses (undocumented) totalling over $3.3 million and a further $1 million in freight and other direct costs, more than half of which extraordinarily appears to fall some 20 years after the film’s release. Vivendi has also recently charged over $460k in ‘interest’ on production advances for a film released in 1984 and $165k in ‘litigation expenses’ to the creators’ account. Vivendi clearly has no intention of honouring its obligations to account honestly, or to fairly compensate the Spinal Tap creators for their work”.

So some very serious allegations and amounts, but this is 2017 and where would any music law dispute be without a copyright reversion element, well the creators are now asking for “a declaratory judgment over the creators’ inalienable right to reclaim their copyright in the film, screenplay, musical compositions, sound recording and characters relating to the band”.  For those of you that are familiar with the recent Duran Duran case, you will know that US copyright law has a provision in place whereby creators of copyright work can apply to terminate the previous assignment of their copyright at the end of a 35 year period. Because the right exists in a 1970s law, we are seeing a lot of cases that are testing the statutes capabilities. Whilst the creators are testing the capabilities, the record labels are testing its limits. In the Spinal Tap litigation Vivendi is doing this (of course!) by claiming that the reversion right should not apply. Is this going to crack the litigation up to 12?

The instigator of the Spinal Tap litigation, Harry Shearer, said that “The thinking behind the statutory right to terminate a copyright grant after 35 years was to protect creators from exactly this type of corporate greed and mismanagement”.

One thing is for sure, this is Spinal Tap and this piece of litigation will be ongoing for some time. 

By Samuel O’Toole

Frank Ocean defeats estranged Father’s libel lawsuit



Frank Ocean is riding the wave of success after he was successful in defending a $14.5 million libel lawsuit that was filed against the singer/ songwriter by his estranged father. 

The lawsuit revolved around a Tumblr post written by Frank Ocean in the aftermath of the attack on the Pulse nightclub in Orlando last year, the post, which is still live, read: 

“I was six years old when I heard my dad call our transgender waitress a faggot as he dragged me out a neighbourhood diner saying we wouldn’t be served because she was dirty. 

That was the last afternoon I saw my father and the first time I heard that word, I think, although it wouldn’t shock me if it wasn’t”.

Calvin Cooksey, Frank’s father, claimed that the incident did not take place and accused his son of staging a “publicity stunt in the wake of the Orlando attack … [and] us[ing] his father as an instrument for personal connection in order to sell records”. Cooksey then went on to sue for libel. 

In response, Ocean stated seventeen ‘affirmative defences’ which he claimed should exemplify why his father’s lawsuit should be rejected. Cooksey attempted to have the ‘affirmative defences’ dismissed at a hearing in July and was ultimately unsuccessful. However, the judge did warn Ocean that a number of the defences may “have been put forward without any sort of factual basis”.

Nonetheless, and after hearing both sides of the argument, Judge Stephen V Willson held that a self represented Cooksey has not met the necessary requirements to meet a claim of defamation. Further, the Judge stated “Based upon other deficiencies in the plaintiff’s case, the judgment has to be for the defendant”.

Oceans lawyer, Keith G Bremer explained that “I’m happy he can put it behind him”.

Although, defamation proceedings do not come as new to Cooksey, in 2014 he tried, to sue Russell Simmons for defamation. Cooksey even went as far in claiming $142 million after the co-founder of Def Jam called Cooksey a “deadbeat dad”.  However, Cooksey did not get far, the case was thrown out before anyone set foot in court. 

Ocean has asked for court costs from his father.

By Samuel O’Toole

Met’s Form 696 back in the spotlight after new survey results

Live events sector


A new survey has revealed that almost half the British general public think that the controversial risk-assessment document Form 696 is discriminatory against those forced to complete it. the results of the survey are part of Ticketmaster’s State of Play: Grime report and shows that 48% of those polled – a “nationally representative” sample of the British population – think the form is discriminatory because it only applies to certain events. Culture minister Matt Hancock and the Mayor of London, Sadiq Khan, are among those to have called for a review of form 696, which is used by London’s Metropolitan police to determine the potential level of risk involved in events where a DJ or MC is using a backing track. The study was produced by Ticketmaster’s LiveAnalytics division in partnership with Disrupt and the University of Westminster’s black music research unit.

Form 696  currently asks for the names, stage names, addresses and phone numbers of all promoters and artists at events where pre-recorded backing tracks are used. An earlier version of the document also asked about the specific genre of music being performed and likely ethnic make-up of the audience. Those questions were dropped in 2009 after allegations they were racial profiling and discriminatory. Similar documents to 696 are used by sixteen other British police forces, some of which (according to a BBC report earlier this year) still ask one or both of the more controversial questions dropped in London.

Culture Minister Matt Hancock wrote to Khan about the continued use of the form earlier this year, stating: “I am concerned that the form is not only potentially stifling young artists and reducing the diversity of London’s world-renowned musical offering, but is also having a negative impact on the city’s night-time economy by pushing organisers and promoters of urban music events outside London”. Khan responded with the review,  and said that policing to ensure public safety at live events “shouldn’t compromise the capital’s vibrant grassroots music industry or unfairly target one community or music genre”.

Alan Miller, Chair of the Night Time Industries Association, has welcomed the review, telling The Guardian: “This form has been a big problem for venue and promoters and it’s stifling certain types of nightlife. Obviously we want events to be policed and to be safe, but it is being used by police to target nights by black artists because they see those nights as being more aggressive and harder to control and more associated with gang crime”.

Different jurisdictions take aim at the touts

Live events sector


Live Nation owned Ticketmaster is taking legal action against two companies in the US, which the ticketing giant believes have used bot technology to buy up tickets for live shows. According to The Hollywood Reporter, Ticketmaster has filed the lawsuit against Prestige Entertainment, Renaissance Ventures and two individuals over the use of bots to purchase tickets from its platform. Earlier this year, Prestige and Renaissance agreed to pay the majority of a $4.2 million settlement with New York state Attorney General Eric Schneiderman and also agreed to stop using bots. Ticketmaster now says it has evidence that this agreement has been broken. “Ticketmaster has uncovered evidence that suggests Renaissance has already breached the agreement by continuing to utilise bots to purchase tickets offered by Ticketmaster”, says the lawsuit. It also says that the defendants have ignored cease and desist letters.


Anti-bot legislation is becoming more common, but New South Wales is leading the way with regulations to protect consumers and govern the re-sale of tickets with a a cap on a re-sale price not to exceed 110% of the original ticket price. The state’s Minister For Better Regulation Matt Kean had previously said  “I’m sick and tired of consumers being taken for a ride by shonky operators looking to make a quick buck at the expense of ordinary fans. No ticket to a NSW sporting or entertainment event should be resold for more than 10% above its original price”.

Lawmakers in New South Wales have now approved the new legislation governing secondary ticketing in the Australian state, which will outlaw the resale of tickets for profit. Anyone breaching the Fair Trading Act by re-selling tickets at more than 10% face value – or advertising the resale of tickets at more than 10% face value – could face fines of up to AUS$22,000 for individuals and AUS$110,000 for companies. However it should be noted that promoters who have used the contractual right to cancel tickets that have been resold by the original buyer will not be allowed to cancel any sold-on tickets where the resale complies with the new law. The new laws in New South Wales also include a ‘bot’ ban,


And ministers in the Canadian province of Ontario have now published proposals for regulating the secondary ticketing market, which include limiting the mark-up on any resold ticket to 50% of face value. As with NSW, The draft new rules on Ontario  also include a bots ban – which was first proposed in Ontario last year – plus other regulations which add to transparency for consumers, including making it obligatory for ticket re-sellers to publish the face value of the ticket being resold. The province’s Attorney General, Yasir Naqvi, told reporters: “Stronger rules for buying and selling tickets will help give fans a fair shot at getting music, sports or theatre tickets. Our proposed changes will ban bots and excessive mark ups, prevent fraud, and provide more information in the ticket industry. We are putting fans first by making the industry more transparent and tickets more affordable”.

In the Netherlands, tickets sold online will now be listed with all ‘unavoidable’ costs, such as booking and processing fees, listed upfront, following a successful intervention by the Authority for Consumers and Markets (ACM). Bernadette van Buchem, director of ACM’s consumer department said “Consumers are now able to see at the start of the booking process what a ticket will cost them, including all unavoidable costs. This will enable them to compare prices better. Providers are able to compete more fairly on price.” and and

Spotify face multiple mechanicals challenges

Music publishing, streaming


Another US lawsuit has been added to the mounting litigation against Spotify and the streaming platform’s alleged failure to pay mechanical royalties in the USA for the right to ‘copy’ a song (rather than the ‘performing’ right). 


In fact there were three developments: an objection to Spotify’s proposed settlement of the original class action on this issue, a rebuttal of its most recent legal arguments, and a brand new lawsuit.

Hypebot’s take is this: “The recorded music industry is in the midst of a renaissance thanks to revenue from a single source – streaming. But a growing string of lawsuits filed by songwriters and publishers, and an aggressive new legal tactic by Spotify, threatens the company’s pending IPO and could derail the industry’s delicate recovery”

US law provides a compulsory licence covering mechanicals, but this put Spotify under an obligation to contact (and pay) the copyright owners of every song it streams (or in default of finding an owner, alert the US Copyright Office) and Spotify hired the services The Harry Fox Agency to undertake this role. The fact songwriters and music publishers were receiving payment for their performing right via collection societies such as ASCAP and BMI but not their mechanical royalties that were due from Spotify prompted litigation, notably a class action lawsuits against Spotify by musicians David Lowery and Melissa Ferrick.

The digital services argued that a lack of reliable copyright data, in particular a database that states which song copyright(s) are contained within a recording makes it impossible for them to discover who songwriters / publishers actually are – and this precludes Spotify from gaining necessary permissions required by the compulsory licence.

Spotify ultimately settled two class actions which had been merged into one by the courts and announced a separate deal with the National Music Publishers Association that it hoped would stop any future mechanical royalty lawsuits being filed. 

In a new lawsuit filed earlier this year by by Bluewater Music Services and Bob Gaudio pursued the same claims as the earlier litigation, and added that the NMPA settlement  “did nothing to resolve the outstanding issues”. However Spotify then responded with a more forthright legal argument: That mechanical royalties should / could not be payable on a stream and why would their streams not be covered by precedents that decided that the likes of personalised radio services only needed performing right licences.

The plaintiff’s attorney Richard Busch responded to this in a new submission to the court saying “it is clear that mechanical licences are required to engage in the process of interactive streaming, and the industry has reached a consensus on this topic” and that mechanicals would apply to on-demand streaming platforms adding “Numerous courts and other sources have specifically noted the distinction between Spotify’s interactive streaming service and other non-interactive services” and “While Pandora [et al] may be able to get by on public performance licenses alone, the same cannot be said of Spotify and its interactive streaming service. Once this distinction is taken into account, one need not look further than the very case law cited by defendant to realise where defendant’s argument falls apart”.

In addition, another mechanical royalties lawsuit has been filed in Nashville (and also led by Busch)  on behalf of seven independent publishers: A4V, J&J Ross Co, Lakshmi Puja Music, Lindabet Music Corp, Music By Shay, Music Of The West and Swinging Door Music.

A document titled ‘Objections To Proposed Class Action Settlement Agreement’ was filed with the New York courts earlier this week.

The NMPA settlement is being challenged by a large group of songwriters and publishers had objected to the $43.4 million settlement of the class action brought against Spotify by Ferrick and Lowery, including Tom Petty, Kenny Rogers, Zach De La Rocha and Tom Morello of Rage Against the Machine The Black Keys’ Dan Auerbach and David Cassidy,  urging the court to reject the settlement, saying “The Settlement Agreement is procedurally and substantively unfair to Settlement Class Members because it prevents meaningful participation by rights holders and offers them an unfair dollar amount in light of Spotify’s ongoing, willful copyright infringement of their works …. the Settlement agreement is procedurally and substantively unfair to settlement class members because it prevents meaningful participation by rights holders and offers them an unfair dollar amount in light of Spotify’s ongoing, wilful copyright infringement of their works”.


Spotify’s most recent ‘motion for a more definite statement’ which argued that the lawsuits filed in July by Bluewater Music Services and Bob Gaudio were lacking detail and legal argument and took it for granted that mechanical royalties were due has been rejected that motion on Thursday by Judge Jon Phipps McCalla who agreed that the plaintiff’s arguments were already sufficient for the case to proceed. Spotify could now file a motion to dismiss the case using the ‘no mechanicals are due, mate’ argument.