Post on 01-Sep-2018
Presenting a live 90-minute webinar with interactive Q&A
Negotiating Music Licensing and StructuringDeals: Digital Sampling, Royalty Rates,Music Copyright and More
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
WEDNESDAY, FEBRUARY 8, 2017
The audio portion of the conference may be accessed via the telephone or by using your computer'sspeakers. Please refer to the instructions emailed to registrants for additional information. If youhave any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
Anjan Choudhury, Partner, Munger Tolles & Olson, Los Angeles
Steve Gordon, Founder, Steve Gordon Law, New York
Tips for Optimal Quality
Sound QualityIf you are listening via your computer speakers, please note that the qualityof your sound will vary depending on the speed and quality of your internetconnection.
If the sound quality is not satisfactory, you may listen via the phone: dial1-866-570-7602 and enter your PIN when prompted. Otherwise, pleasesend us a chat or e-mail sound@straffordpub.com immediately so we canaddress the problem.
If you dialed in and have any difficulties during the call, press *0 for assistance.
Viewing QualityTo maximize your screen, press the F11 key on your keyboard. To exit full screen,press the F11 key again.
FOR LIVE EVENT ONLY
Sound QualityIf you are listening via your computer speakers, please note that the qualityof your sound will vary depending on the speed and quality of your internetconnection.
If the sound quality is not satisfactory, you may listen via the phone: dial1-866-570-7602 and enter your PIN when prompted. Otherwise, pleasesend us a chat or e-mail sound@straffordpub.com immediately so we canaddress the problem.
If you dialed in and have any difficulties during the call, press *0 for assistance.
Viewing QualityTo maximize your screen, press the F11 key on your keyboard. To exit full screen,press the F11 key again.
Continuing Education Credits
In order for us to process your continuing education credit, you must confirm yourparticipation in this webinar by completing and submitting the AttendanceAffirmation/Evaluation after the webinar.
A link to the Attendance Affirmation/Evaluation will be in the thank you emailthat you will receive immediately following the program.
For additional information about continuing education, call us at 1-800-926-7926ext. 35.
FOR LIVE EVENT ONLY
In order for us to process your continuing education credit, you must confirm yourparticipation in this webinar by completing and submitting the AttendanceAffirmation/Evaluation after the webinar.
A link to the Attendance Affirmation/Evaluation will be in the thank you emailthat you will receive immediately following the program.
For additional information about continuing education, call us at 1-800-926-7926ext. 35.
Program Materials
If you have not printed the conference materials for this program, pleasecomplete the following steps:
• Click on the ^ symbol next to “Conference Materials” in the middle of the left-hand column on your screen.
• Click on the tab labeled “Handouts” that appears, and there you will see aPDF of the slides for today's program.
• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.
FOR LIVE EVENT ONLY
If you have not printed the conference materials for this program, pleasecomplete the following steps:
• Click on the ^ symbol next to “Conference Materials” in the middle of the left-hand column on your screen.
• Click on the tab labeled “Handouts” that appears, and there you will see aPDF of the slides for today's program.
• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.
INTRODUCTIONTO MUSICCLEARANCES
INTRODUCTIONTO MUSICCLEARANCESSTEVEGORDONLAW.COM
STEVE@STEVEGORDONLAW.COM
212 924 1166
BASICCONCEPTS AND
DEFINITIONS
“MUSICCLEARANCES”
6
MUSIC CLEARANCES
• MUSIC CLEARANCES = SECURINGLICENSES TO USE PRE-EXISTING SONGSAND MUSIC RECORDINGS FOR VARIOUSPROJECTS
• MUSIC CLEARANCES DOES NOTPERTAIN TO CREATING NEW MUSIC (e.g.,HIRING A MUSICIAN OR A COMPOSER TOCREATE ORIGINAL MUSIC)
• MUSIC CLEARANCES = SECURINGLICENSES TO USE PRE-EXISTING SONGSAND MUSIC RECORDINGS FOR VARIOUSPROJECTS
• MUSIC CLEARANCES DOES NOTPERTAIN TO CREATING NEW MUSIC (e.g.,HIRING A MUSICIAN OR A COMPOSER TOCREATE ORIGINAL MUSIC)
7
EXAMPLES OF MUSICCLEARANCE PROJECTS• “ELVIS BY THE PRESLEYS” –DOC AIRED
ON NETWORK TV—SECURED LICENSESTO USE DOZENS OF SONGS RECORDEDBY ELVIS
• “FRONT AND CENTER”—TV CONCERTSERIES ON PBS FEATURING VARIOUSBLUES ARTISTS—SECURING LICENSESTO USE THE SONGS THAT THE ARTISTSPERFORMED IN THE SHOW (e.g., BUDDYGUY PLAYED SONGS BY HENDRIX,DYLAN AND OTHERS)
• “ELVIS BY THE PRESLEYS” –DOC AIREDON NETWORK TV—SECURED LICENSESTO USE DOZENS OF SONGS RECORDEDBY ELVIS
• “FRONT AND CENTER”—TV CONCERTSERIES ON PBS FEATURING VARIOUSBLUES ARTISTS—SECURING LICENSESTO USE THE SONGS THAT THE ARTISTSPERFORMED IN THE SHOW (e.g., BUDDYGUY PLAYED SONGS BY HENDRIX,DYLAN AND OTHERS)
8
“MUSICCLEARANCES” VS
“MUSIC LICENSING”
“MUSIC LICENSING” IS SOMETIMESUSED TO REFER TO MUSIC
CLEARANCES, BUT IS ALSO USED TOREFER TO THE “SYNCH BUSINESS”
9
NUTS ANDBOLTS
MUSICAL COMPOSITIONS (“SONGS”)VS
MUSIC RECORDINGS (“MASTERS”)VS
FOOTAGE CONTAINING MUSIC(“FOOTAGE”)
MUSICAL COMPOSITIONS (“SONGS”)VS
MUSIC RECORDINGS (“MASTERS”)VS
FOOTAGE CONTAINING MUSIC(“FOOTAGE”)
10
11
SONG
SPANISH HARLEMBMI Work #1393049
Songwriter/Composer Current Affiliation CAE/IPI #LEIBER, JERRY BMI 17713791LEIBER, JERRY BMI 17713791SPECTOR, PHILIP BMI 63684950
Publishers Current Affiliation CAE/IPI #ABKCO MUSIC, INC. BMI 56388746SONY/ATV SONGS, LLC BMI 187062752
12
MASTER
13
FOOTAGE
THE BEATLES ON THE ED SULLIVAN SHOW
SOFA Entertainment, owners of the Ed Sullivan Show, own footageincluding the recording contained in the footage.
14
PUBLIC DOMAIN/SONGS
Works Registered or First Published in the U.S.
Date of Publication Conditions Copyright Term
Before 1923 None None. In the public domain dueto copyright expiration
Copyright Term and the Public Domain in the United Statescopyright.cornell.edu/resources/publicdomain.com
15
PUBLIC DOMAIN/MASTERSDate of Fixation/Publication Duration of Copyright
Fixed prior to 15 Feb. 1972 Subject to state statutory and/orcommon law protection. Fully enters thepublic domain on 15 Feb. 2067
15 Feb. 1972 to 1978 95 years from publication. 2068 atthe earliest
1978 to 1 March 1989 70 years after death of author, or ifwork of corporate authorship, the shorterof 95 years from publication, or 120 yearsfrom creation. 2049 at the earliest
1978 to 1 March 1989 70 years after death of author, or ifwork of corporate authorship, the shorterof 95 years from publication, or 120 yearsfrom creation. 2049 at the earliest
After 1 March 1989 70 years after death of author, or ifwork of corporate authorship, the shorterof 95 years from publication, or 120 yearsfrom creation. 2049 at the earliest
16
MFNMost Favored Nations: In the event Licenseegrants more favorable terms including, withoutlimitation, additional consideration in anyform, to the co-publisher(s) of the Compositionor the party granting rights to use the masterrecording thereof (if applicable) in the MotionPicture, Licensee shall notify Licensor thereof,and this Agreement shall be deemed amendedto incorporate same as of the date when suchhigher fee is paid or such more favorable termsare granted to such third party, and to continuefor the duration of the period which such morefavorable terms are granted.
Most Favored Nations: In the event Licenseegrants more favorable terms including, withoutlimitation, additional consideration in anyform, to the co-publisher(s) of the Compositionor the party granting rights to use the masterrecording thereof (if applicable) in the MotionPicture, Licensee shall notify Licensor thereof,and this Agreement shall be deemed amendedto incorporate same as of the date when suchhigher fee is paid or such more favorable termsare granted to such third party, and to continuefor the duration of the period which such morefavorable terms are granted.
17
PBSSpecial Rules for Public Broadcast Stations are Favorable for Producers
Songs
Section 118 provides for a statutory license subject to rates negotiated by PBSand publishers.
PBS, on the producers’ behalf—with funding from the Corporation for PublicBroadcasting—will pay the federally prescribed fees to the copyright owners.
(But Section 118 does not provide for a statutory license for any other windowsincluding home video.)
Masters
Section 114(b)
The exclusive rights of the owner of copyright in a sound recording . . . do notapply to sound recordings included in educational television and radioprograms . . . distributed or transmitted by or through public broadcastingentities . . . Provided that copies or phonorecords of said programs are notcommercially distributed by or through public broadcasting entities to thegeneral public.
(Again, clearances are required for other windows.)
Special Rules for Public Broadcast Stations are Favorable for Producers
Songs
Section 118 provides for a statutory license subject to rates negotiated by PBSand publishers.
PBS, on the producers’ behalf—with funding from the Corporation for PublicBroadcasting—will pay the federally prescribed fees to the copyright owners.
(But Section 118 does not provide for a statutory license for any other windowsincluding home video.)
Masters
Section 114(b)
The exclusive rights of the owner of copyright in a sound recording . . . do notapply to sound recordings included in educational television and radioprograms . . . distributed or transmitted by or through public broadcastingentities . . . Provided that copies or phonorecords of said programs are notcommercially distributed by or through public broadcasting entities to thegeneral public.
(Again, clearances are required for other windows.)
18
DOCS (SONGS ANDMASTERS)
OPTION 1: Basic Cable or Pay Television
TERRITORY: United States & Canada
Term: 3 Years
FEE: $1,000.00 per song
OPTION 2: Foreign Television
TERRITORY: World excluding United States & Canada
Term: 3 Years
FEE: $1,000.00 per song
OPTION 3: Internet Streaming Services (eg. Hulu,Netflix)
TERRITORY: World
TERM: 3 Years
FEE: $1,000.00 per song
OPTION 4: Airplane and Closed Circuit
TERRITORY: World
Term: 3 Years
FEE: $500.00 per song
(Offer same terms for concert programs)
Home Video
Royalty: 10 cents PBS Pledge onlyOR 12 cents for PBS Pledge,commercial DVD and downloads offull programs.
Advance: 2,500 units ($300) withrollovers every 2,500 units thereafter
Territory: U.S.
Term: 7 Years
OPTION 1: Basic Cable or Pay Television
TERRITORY: United States & Canada
Term: 3 Years
FEE: $1,000.00 per song
OPTION 2: Foreign Television
TERRITORY: World excluding United States & Canada
Term: 3 Years
FEE: $1,000.00 per song
OPTION 3: Internet Streaming Services (eg. Hulu,Netflix)
TERRITORY: World
TERM: 3 Years
FEE: $1,000.00 per song
OPTION 4: Airplane and Closed Circuit
TERRITORY: World
Term: 3 Years
FEE: $500.00 per song
(Offer same terms for concert programs)
Home Video
Royalty: 10 cents PBS Pledge onlyOR 12 cents for PBS Pledge,commercial DVD and downloads offull programs.
Advance: 2,500 units ($300) withrollovers every 2,500 units thereafter
Territory: U.S.
Term: 7 Years
19
FEATURE MOVIES (INDIEMOVIE)RIGHTS:
Film Festival/One (1) year/ World $500
OPTION:
All Media Broad Rights Step Deal:
Media: All media now known or hereafter devised
Initial Fee: $2500
With Steps of $2000 at $3M, $5M, $8M, $10M, $12M and $15Mworldwide gross receipts based in ALL forms ofexploitation (including but not limited to theatrical, allvideograms/DVD, all TV media, and Internet streaming anddownloading).
(Factors in determining price – Identity of song or master; use,i.e., foreground/background or over credits; personalities andapprovals)
RIGHTS:
Film Festival/One (1) year/ World $500
OPTION:
All Media Broad Rights Step Deal:
Media: All media now known or hereafter devised
Initial Fee: $2500
With Steps of $2000 at $3M, $5M, $8M, $10M, $12M and $15Mworldwide gross receipts based in ALL forms ofexploitation (including but not limited to theatrical, allvideograms/DVD, all TV media, and Internet streaming anddownloading).
(Factors in determining price – Identity of song or master; use,i.e., foreground/background or over credits; personalities andapprovals)
20
TVProducers will seek buy-outs of all rights in perpetuity
Example: $12,000 for excerpts of 2 songs in HBO docudrama
Spectrum:
MTV will offer $0 for songs by new bands to be used in any oftheir programs
The bands only get ASCAP BMI $
Cable shows will offer a few thousand to a few more thousandfor emerging acts
Bruno Mars will cost $25,000 and up
Producers will seek buy-outs of all rights in perpetuity
Example: $12,000 for excerpts of 2 songs in HBO docudrama
Spectrum:
MTV will offer $0 for songs by new bands to be used in any oftheir programs
The bands only get ASCAP BMI $
Cable shows will offer a few thousand to a few more thousandfor emerging acts
Bruno Mars will cost $25,000 and up
21
“TOMORROW NEVER KNOWS” IN MAD MEN
In 2012 Lionsgate, the studio that produces “Mad Men” for AMC paid about $250,000for the recording and publishing rights for the Beatles’ “Tomorrow Never Knows.”"Tomorrow Never Knows" was used at the end of an episode in Season 5 of Mad Men. 22
MUSICAL THEATRE
• No advances
• 4-5% of Gross Box Office
• Pro-rated by the number of songs
• Denials depending on identity ofwriter
• No advances
• 4-5% of Gross Box Office
• Pro-rated by the number of songs
• Denials depending on identity ofwriter
23
ADVERTISINGPrice:
• $0 for current hit song in a promo for homeless dog
• $5,000 for Billy Ocean hit from 80’s for ten days infive small markets for commercial for car show
• $375,000 for song and $375,000 for master fornational TV commercial for life insurance
• Other terms: Duration – usually no longer than ayear; Media – on-line in addition to TV may costextra; Identity of song – obscure songs may be cheap
• Save 50% by re-recording
Price:
• $0 for current hit song in a promo for homeless dog
• $5,000 for Billy Ocean hit from 80’s for ten days infive small markets for commercial for car show
• $375,000 for song and $375,000 for master fornational TV commercial for life insurance
• Other terms: Duration – usually no longer than ayear; Media – on-line in addition to TV may costextra; Identity of song – obscure songs may be cheap
• Save 50% by re-recording
24
STAND-ALONE DIGITAL PROJECTS
Apps
Simulcasting
Webisodes and web series
Kickstarter videos
Digital sheet music
Lyric sites
Artists Websites
Music Webzines and Blogs
Ringtones and Ringbacks
Video Games
Apps
Simulcasting
Webisodes and web series
Kickstarter videos
Digital sheet music
Lyric sites
Artists Websites
Music Webzines and Blogs
Ringtones and Ringbacks
Video Games25
APPS
BEWARE BLANKET LICENSES FROM MAJORS:
Major Label 1:
Advance: $50,000 advance
Minimum guarantee: $250,000 for one year.
Royalty: 70% of gross revenues deriving from that label's masters.
Territory: U.S. only
Major Label 2:
Advance $350,000 advance payable upon execution
Additional $20,000 "content prep fee" also payable upon execution.
After the first year $30,000 would be due at the beginning of each month.
Royalty: 50% of revenues from that label's masters.
Territory US Only
Publishing included
APPS
BEWARE BLANKET LICENSES FROM MAJORS:
Major Label 1:
Advance: $50,000 advance
Minimum guarantee: $250,000 for one year.
Royalty: 70% of gross revenues deriving from that label's masters.
Territory: U.S. only
Major Label 2:
Advance $350,000 advance payable upon execution
Additional $20,000 "content prep fee" also payable upon execution.
After the first year $30,000 would be due at the beginning of each month.
Royalty: 50% of revenues from that label's masters.
Territory US Only
Publishing included26
OTHER STAND-ALONE DIGITALPROJECTS
Simulcasting (PRO licenses)
Webisodes and web series (Similar to TV)
Kickstarter videos
Digital sheet music (Pennies for downloads)
Lyric sites (LyricFind)
Artists Websites (avoid covers)
Music Webzines and Blogs (Pitchfork - avoidcovers)
Ringtones and Ringbacks (26 cents)
Video Games (buy-outs)
Simulcasting (PRO licenses)
Webisodes and web series (Similar to TV)
Kickstarter videos
Digital sheet music (Pennies for downloads)
Lyric sites (LyricFind)
Artists Websites (avoid covers)
Music Webzines and Blogs (Pitchfork - avoidcovers)
Ringtones and Ringbacks (26 cents)
Video Games (buy-outs)27
ALTERNATIVES(ESPECIALLY FOR ADS, TV, ANDMOVIES)
• Music libraries (“stock music”)
• Commission/Work for hire
• Music libraries (“stock music”)
• Commission/Work for hire
28
The Legal Landscape of DigitalMusic Licensing in a Streaming
World
LOS ANGELES | SAN FRANCISCO | WASHINGTON,D.C.| MTO.COM
LOS ANGELES | SAN FRANCISCO | WASHINGTON,D.C.| MTO.COM
The Legal Landscape of DigitalMusic Licensing in a Streaming
WorldPresented by:
Anjan ChoudhuryFebruary 8, 2017
Anjan ChoudhuryPartner, LitigationLos AngelesT: (213) 683-9107Anjan.Choudhury@mto.comEducationHarvard Law School (J.D., magna cum laude, 2004)George Washington University (B.A., summa cum laude, 2001)
Nice to meet you!
LOS ANGELES | SAN FRANCISCO | WASHINGTON,D.C.| MTO.COM
Anjan ChoudhuryPartner, LitigationLos AngelesT: (213) 683-9107Anjan.Choudhury@mto.comEducationHarvard Law School (J.D., magna cum laude, 2004)George Washington University (B.A., summa cum laude, 2001)
Agenda
Importance of Streaming Revenue
Sources of Royalty Income andLicensing
Four Legal Developments that AffectDigital Music Licensing and Royalties
LOS ANGELES | SAN FRANCISCO | WASHINGTON,D.C.| MTO.COM
LOS ANGELES | SAN FRANCISCO | MTO.COM
Importance of Streaming Revenue
Sources of Royalty Income andLicensing
Four Legal Developments that AffectDigital Music Licensing and Royalties
31
Streaming (and Licensing) Are IncreasinglyImportant
LOS ANGELES | SAN FRANCISCO | WASHINGTON,D.C.| MTO.COM
LOS ANGELES | SAN FRANCISCO | MTO.COM
Source: News and Notes on 2016 Mid-Year RIAA Music Shipment and Revenue Statistics32
Streaming (and Licensing) Are IncreasinglyImportant
LOS ANGELES | SAN FRANCISCO | WASHINGTON,D.C.| MTO.COM
LOS ANGELES | SAN FRANCISCO | MTO.COM
Source: News and Notes on 2014 RIAA Music Industry Shipment and Revenue Statistics33
Streaming (and Licensing) Are IncreasinglyImportant
LOS ANGELES | SAN FRANCISCO | WASHINGTON,D.C.| MTO.COM
LOS ANGELES | SAN FRANCISCO | MTO.COM
Source: News and Notes on 2016 Mid-Year RIAA Music Industry Shipment and Revenue Statistics34
Sources of Royalty Income for Recording Artistsand Songwriters
• Publishing License
• Recording Agreement – MasterLicense Provision
• PROs and SoundExchange
• Direct Licenses (DIY)LOS ANGELES | SAN FRANCISCO | WASHINGTON,
D.C.| MTO.COMLOS ANGELES | SAN FRANCISCO | MTO.COM
• Publishing License
• Recording Agreement – MasterLicense Provision
• PROs and SoundExchange
• Direct Licenses (DIY)35
How are Royalty Rates Determined for CopyrightOwners
• Direct Licenses– Interactive Services– Non-Interactive Services
• Rate Court Decisions
• Copyright Royalty BoardDecisions
LOS ANGELES | SAN FRANCISCO | WASHINGTON,D.C.| MTO.COM
LOS ANGELES | SAN FRANCISCO | MTO.COM
• Direct Licenses– Interactive Services– Non-Interactive Services
• Rate Court Decisions
• Copyright Royalty BoardDecisions
36
Legal Development 1: PROs, Partial Withdrawal,100% Licensing
• ASCAP and BMI operate under a consentdecree and are therefore subject to thejudicial oversight of a federal court in NewYork
• Can you withdraw your rights for just digitalstreaming?
• DOJ Decision (August 4, 2016)– Consent decree not modified on partial
withdrawals– Full work licensing requirement
(rejected/appealed)
• Implication for publishers/songwritersLOS ANGELES | SAN FRANCISCO | WASHINGTON,
D.C.| MTO.COMLOS ANGELES | SAN FRANCISCO | MTO.COM
• ASCAP and BMI operate under a consentdecree and are therefore subject to thejudicial oversight of a federal court in NewYork
• Can you withdraw your rights for just digitalstreaming?
• DOJ Decision (August 4, 2016)– Consent decree not modified on partial
withdrawals– Full work licensing requirement
(rejected/appealed)
• Implication for publishers/songwriters 37
Legal Development 2: The Copyright RoyaltyBoard
• Non-interactive digital services pay performance royalties forsound recordings.– $884 million in 2016 alone. 16% of the entire recorded music industry
revenue in 2015.– These statutory royalties are required by law to have a set artist’s
share.
• The Copyright Royalty Board sets statutory royalty rates everyfive years
• In May 2016, the Judges published the Web IV decisioncovering non-interactive webcasters (Pandora, iHeartRadio)through the year 2020.
• In setting the statutory rates, the Judges relied on directlicenses negotiated to substitute for the statutory rates.
• The decision is on appeal to the D.C. Circuit
LOS ANGELES | SAN FRANCISCO | WASHINGTON,D.C.| MTO.COM
LOS ANGELES | SAN FRANCISCO | MTO.COM
• Non-interactive digital services pay performance royalties forsound recordings.– $884 million in 2016 alone. 16% of the entire recorded music industry
revenue in 2015.– These statutory royalties are required by law to have a set artist’s
share.
• The Copyright Royalty Board sets statutory royalty rates everyfive years
• In May 2016, the Judges published the Web IV decisioncovering non-interactive webcasters (Pandora, iHeartRadio)through the year 2020.
• In setting the statutory rates, the Judges relied on directlicenses negotiated to substitute for the statutory rates.
• The decision is on appeal to the D.C. Circuit
38
Legal Development 3: Pre-72 Sound Recordings
• Federal copyrights apply to soundrecordings that were “fixed” beforeFebruary 15, 1972
• Does that mean that Pre-72 recordings areunprotected?
• Pandora and SiriusXM lawsuits
• Class Action settlement depends on CA, NY,FL cases
• Why does this matter to post-72 recordingartists?
LOS ANGELES | SAN FRANCISCO | WASHINGTON,D.C.| MTO.COM
LOS ANGELES | SAN FRANCISCO | MTO.COM
• Federal copyrights apply to soundrecordings that were “fixed” beforeFebruary 15, 1972
• Does that mean that Pre-72 recordings areunprotected?
• Pandora and SiriusXM lawsuits
• Class Action settlement depends on CA, NY,FL cases
• Why does this matter to post-72 recordingartists?
39
Legal Development 4: Digital Sampling
• The Madonna “Vogue” case – VMG Salsoul LLC v. Ciccone, 824F.3d 871 (9th Cir. 2016) vs. the George Clinton/NWA case –Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th
Cir. 2005)
• Sample: a .23 second horn hit. Would an average audiencerecognize the appropriation?
• Los Angeles (9th Circuit) and Nashville (6th Circuit) nowoperate under different rules: “Because we conclude thatCongress intended to maintain the “de minimis” exception forcopyrights to sound recordings, we take the unusual step ofcreating a circuit split by disagreeing with the Sixth Circuit’scontrary holding in Bridgeport”
• See also, German Constitutional Court and Kraftwerk (2016)case – freedom of the creator to sample
LOS ANGELES | SAN FRANCISCO | WASHINGTON,D.C.| MTO.COM
LOS ANGELES | SAN FRANCISCO | MTO.COM
• The Madonna “Vogue” case – VMG Salsoul LLC v. Ciccone, 824F.3d 871 (9th Cir. 2016) vs. the George Clinton/NWA case –Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th
Cir. 2005)
• Sample: a .23 second horn hit. Would an average audiencerecognize the appropriation?
• Los Angeles (9th Circuit) and Nashville (6th Circuit) nowoperate under different rules: “Because we conclude thatCongress intended to maintain the “de minimis” exception forcopyrights to sound recordings, we take the unusual step ofcreating a circuit split by disagreeing with the Sixth Circuit’scontrary holding in Bridgeport”
• See also, German Constitutional Court and Kraftwerk (2016)case – freedom of the creator to sample
40