The perfect addition to any project is music. Whether you are making a video advertisement for your product; including music in your posts on your company website, TikTok, or YouTube; posting an at-home workout video for your clients; using music at corporate events; or playing music at your bar or restaurant – music is a vital part of society. Music is also the most common reason your content may be muted or taken down from social media, in addition to being exposed to potential liability for copyright infringement and related monetary damages. When you use someone’s music without their permission, absent a few extremely limited exceptions, you are infringing on their copyright.¹

For the vast majority of music uses, you will first need to obtain permission. In this article, we lay out some fundamentals to assist in determining the type of license an average company would need and some potential alternatives. Bottom line: when you are planning and budgeting for music in a project, make sure you get the proper rights and permissions in place before pressing “Play.”…

Continue Reading Conducting Your Way Through Music Licensing: The Most Common Issues

In its second copyright opinion this term, the U.S. Supreme Court held 5–4 that the “government edicts doctrine” prevents states from owning copyrights in annotated codes.  See Georgia et al. v. Public.Resource.Org, Inc., No. 18-1150, 590 U.S. ___ (Apr. 27, 2020).  Chief Justice Roberts authored the majority opinion, and Justice Thomas and Justice Ginsburg penned dissents.

The Official Code of Georgia Annotated (OCGA) contains every current Georgia statute (i.e., all of Georgia’s laws), along with non-binding annotations explaining each statute (e.g., summaries of judicial opinions applying the statutes or references to relevant secondary sources).  The OCGA is created by Georgia’s Code Revision Commission, which is a part of the state’s legislative branch.  By virtue of the Commission’s work, the state of Georgia claimed a copyright in the annotations within the OCGA—i.e., the parts of the OCGA other than the statutes themselves.  Thus, when Public.Resource.Org (PRO) posted the OCGA online and distributed copies to others, Georgia sued PRO for copyright infringement.
Continue Reading SCOTUS Says States Cannot Copyright Annotated Codes

On March 23, 2020, the United States Supreme Court held that the Copyright Remedy Clarification Act of 1990 (CRCA) is unconstitutional and therefore invalid. See Allen v. Cooper, No. 18-877, 589 U.S. ___ (2020). Prior to Allen, the CRCA provided a means for individuals to sue states for copyright infringement by expressly abrogating the states’ sovereign immunity in that realm. But as a result of the Court’s recent decision, states are once again totally immune from copyright infringement lawsuits.

The facts of Allen date back to 1718, when the infamous pirate Blackbeard ran his flagship vessel (the Queen Anne’s Revenge) aground on a sandbar off the coast of what is now North Carolina, causing the ship to sink. The shipwreck was discovered nearly 300 years later, and due to its location, the wreck itself is owned by North Carolina state. Upon learning of the discovery, the state of North Carolina hired a salvage company to excavate the wreck, which in turn hired Allen to document the numerous recovery missions. For over a decade, Allen photographed and filmed the underwater missions to salvage the shipwreck, and Allen registered copyrights in all of the works. This dispute arose from Allen’s claims that North Carolina had infringed some of those copyrights by using and reproducing Allen’s photographs and videos online without his permission. See Allen, No. 18-877, slip op. at 1–2.…

Continue Reading Fair Winds to Copyright Holders: States Have Sovereign Immunity from Infringement Suits

Critics of increasingly restrictive effects of copyright law in musical production can seek solace in the recent Southern District of New York copyright decision of Guity v. Santos, et al., No. 18-cv-10387 (SDNY Dec. 05, 2019) (“Order”).

The district court ultimately granted defendants’ motion to dismiss copyright infringement claims brought by musician Nazim Guity against Anthony (Romeo) Santos, Sony, Alcover, and We Loud. Guity claimed that defendants “recorded, released, and profited” from his copyrighted work. Order at 1. The accused song shares the name “Eres Mia” with the protected work, a 2011 song by Guity. Guity collaborated with Alcover and We Loud in creating “Eres Mia” and procured copyright protection in 2014. Santos worked with Alcover and We Loud as well in creating Santos’s “Eres Mia” and later with Sony for the song’s marketing and distribution.

Guity specifically alleged that defendants were guilty of 1) copyright infringement by failing to obtain a mechanical license and/or failure to pay a compulsory license fee; 2) copyright infringement by claiming to compose, author, record, and distribute a copyrightable song; and 3) civil conspiracy to commit copyright infringement; and further alleged 4) plaintiffs were entitled to the equitable remedies of accounting and constructive trust. Id. at 2. …
Continue Reading SDNY Helps Draw the Boundaries of Copyright Protection in Music Cases

On January 28, 2020, Paul Bernstein and Carly Trainor published “Inspiration to Infringement: Copyright Issues in Scripted Entertainment Inspired by Song Lyrics” in Music Connection Magazine. The following is an excerpt:

MGM Television is developing Scenes from an Italian Restaurant, a television series based on the lyrics of Billy Joel’s hits. This is the…