New Service Grandfathered For Pre-1998 Royalty Rates

SoundExchange v. Muzak, No. 15-cv-476 (D.D.C. filed Mar. 8, 2016).

The Court held that Muzak, a grandfathered "preexisting subscription service" under 17 USC 114, enjoyed a favorable royalty rate -- not subject to the  "willing buyer/willing seller" standard -- for its SonicTap service even though that service was not offered at the relevant statutory date.  Interpreting the statute, the Court found that Congress intended to permit preeexisting subscription services to expand their offerings.  This ruling was also consistend with the legislative history and findings by the Register of Copyrights.

Wyclef Escapes Infringement Claim Because "Actual Sounds" Not Copied

Pryor v. Jean, No. CV 13-02867, 2014 BL 283332 (C.D. Cal. Oct. 08, 2014) [Doc. 36].

Plaintiff, who claimed that his 1970's song "Bumpin' Bus Stop" was infringed by the defendants use of a sample in the Wyclef Jean song "Step Up" recorded in 2006, had his copyright infringement case dismissed.  The issue was that Plaintiff's song had appeared on two albums.  The song first appeared on a recording referred to as the "Gold Future" record.  Later, the Gold Future record was remastered, shortened in duration, and Plaintiff's band name was changed.  The latter record was referred to as the "Private Stock" record.  Years later, Defendants licensed the song from the Private Stock record.

The existence of two separate sound recordings (the Gold Future record and the Private Stock remaster) was important, as the substantive allegations at issue referred only to copyright to the Gold Future record, and not to the "Bumpin' Bus Stop" musical composition featured in both the Gold Future record and the Private Stock record.  The Court found: "Under 17 U.S.C. § 114(b), Plaintiffs have the exclusive right to duplicate, rearrange, or remix the 'actual sounds' of the Gold Future record. Defendants did not do anything with those 'actual sounds.'  Rather, Defendants used licensed 'actual sounds' from the Private Stock record.  Because the TAC's First and Second claims for relief are premised solely upon infringement of the Gold Future sound recording copyright, those claims are DISMISSED, with prejudice."

Public performance in S R?

Copyright Office supports public performance rights in sound recording. What would this mean for broadcasters who are currently exempt?

New congressional bills introduced on Dec 18 2007. Key provisions proposed:

Expand 114 to broadcasting. Reach all transmissions in all formats. Possible carve out for small broadcasters with a $5000 cap annual fee. Similar for non commercial broadcasters with $ 1000 annual fee cap.

Exempt religious use and background use.

Explicitly say no effect on publishers rights.

Why are these important? Parity for platforms and among copyright owners.

Why oppose? Promotional value of broadcasting. But that weakened by internet broadcasts. FCC? Public interest obligations.