|
|
#158367 - 01/05/06 03:07 PM
Curious Tale: Copyright Infringement & The MC5 ...
|
legerdemain
Silver Member
Registered: 03/04/05
Posts: 403
Loc: Detroit's Woodward Corridor
|
Offline
|
|
Note: This thread's Subject line was retitled for specificity and clarity on 4 April 2007.
Att: Publishing, Licensing, Legal Professionals
I posted some questions in another thread that's possibly too red-hot for anyone to touch. I've now simplified and neutered the situation, hoping to get input from anyone both knowledgeable in these issues and not afraid to express themselves. It's not that long, perhaps a bit convoluted but bear with me.
Here goes ...
Groundbreaking 'ahead of their time' Band X makes three albums before the usual crash, burn and acrimonious break up. Members go separate ways, catalogue remains in print, continues to sells steadily.
Majority of Band X's catalogue is a split-publishing arrangement, 50% to Band-Owned Publishing Company, 50% to Major Label Music Publishing Company.
Band X's first two albums: band members equally divide the writer's share, regardless of actual writer.
Band X's third album: songs are credited individually and writers paid accordingly. Publishing still 50-50 between Band-Owned Publishing Company and Major Label Music Publishing Company. Catalogue Administrator handles business.
Indie Filmmaker contacts members, all are shocked at the prospect, stunned that anyone cares but agreeable to making documentary about legendary but largely overlooked Band X.
The members of Band X are quite pleased with the attention, all participate freely in interviews during several years of production.
Catalogue Administrator is also cooperative, encourages and tells Indie Filmmaker "just make your movie and tell us what you need".
Documentary is completed, Indie Filmmaker receives temporary license from Cat Administrator, film screens internationally at a dozen prestigious film festivals. Long-time fans overwhelmingly praise film which receives universal critical acclaim, greatly renews interest in Band X.
All five members praise Indie Filmmaker and express support for film; all appear in conjunction with film screenings.
Though four members of Band X had signed releases, Single Member suddenly demands extra "special consideration'.
Then Cat Administrator tells Indie Filmmaker "there's a problem and you have to work it out with Single Member. We don't know what the problem is, but you need to work it out."
Indie Filmmaker has already raised and spent over half a million dollars, spent years making film and, not surprisingly, is unwilling to submit to what Indie Filmmaker considers 'extortion'. Furthermore, they're already tapped out financially.
Cat Administrator, at insistence of holdout Single Member, then refuses license. Theatrical screenings and DVD release are cancelled, the whole deal collapses.
(Simultaneously, Cat Administrator approves Single Member release of substitute DVD with newly recorded live versions of Band X catalogue, hoping to cash in on sizable buzz created by Indie Film.)
Now Indie Filmmaker's documentary is total financial loss, bootlegs flood market wiping out any possible hope of recovering investment or production costs.
Two years later, out of the blue, Single Member sues Indie Filmmaker for "copyright infringement". Despite the fact Indie Filmmaker never saw any income from documentary film: no license, no screenings, no DVD, no income.
Cat Administrator has, for whatever reason, given Single Member the right to sue for "copyright infringement" of the jointly written and owned catalogue and also "waives any right to be part of said recovery", i.e. allowing Single Member to keep any money 'recovered'.
Now the questions...
If there was actual "copyright infringement", why might Cat Administrator farm this out and trust Single Member to resolve it?
Wouldn't Cat Administrator or Major Label Music Publishing Company normally prefer to deal with this themselves?
How would such an agreement between Cat Administrator and Single Member affect the other four Band X member's copyright interests?
Would the other Band X members have reason to expect money themselves from any actual "copyright infringement"?
Particularly when Single Member has himself repeatedly violated the copyright interests of Cat Administrator, Major Label Music Publishing Company, Band-Owned Publishing Company and the other four Band X members by issuing dozens of unauthorized bootlegs. He himself is being sued by another Band X writer for such actions.
Can anyone possibly clarify any part of this situation?
np: Marianne Faithfull "My Friends Have"
Edited by legerdemain (04/04/07 08:42 PM)
_________________________
"The difference between genius and stupidity is that genius has its limits."
|
|
Top
|
|
|
|
|
#158368 - 01/05/06 04:30 PM
Re: Curious Tale: Publishing & Copyright Infringement
[Re: legerdemain]
|
BeerBaron
Member
Registered: 01/05/06
Posts: 1
|
|
Offline
|
|
There are several things wrong with this situation. First, if Indie Filmmaker was going to start investing money in this, it should have gotten signed agreements with all of the Band Members first. If it lost out because it never got signed deals before actually footing the bill, then it's the Filmmaker's fault for being careless.
Re: whether there was copyright infringement, if the Catalog Administrator really thought there was anything to gain, it would have taken the Filmmaker on itself. Obviously it didn't think anything would come out of it. So the Catalog Administrator says to Single Member, "Go ahead, we don't want any part in this." Catalog Administrators won't spend the money to get involved unless it feels there's a reasonable expectation of getting back what it spent (and more.)
It doesn't sound like the Catalog Administrator really has some sort of deal with Single Member. There may be some sort of release where Catalog Administrator said he can go ahead and sue Indie Filmmaker on his own. But, the other 4 Band Members may be able to get something themselves for copyright infringement (assuming they didn't sign away their rights). Even if they go ahead with SIngle Member's project, they should get their share of royalties from it.
Just my 2 cents (not an attorney but someone in publishing for many years.)
|
|
Top
|
|
|
|
|
#158369 - 01/05/06 04:31 PM
Re: Curious Tale: Publishing & Copyright Infringement
[Re: legerdemain]
|
Fusion
Platinum Member
Registered: 01/25/01
Posts: 1119
|
|
Offline
|
|
In reply to:
If there was actual "copyright infringement", why might Cat Administrator farm this out and trust Single Member to resolve it?
Because the relationship/agreement between the songwriters/that songwriter gives (or causes the Cat Admin to give) that songwriter that right.
The inverse - and the fact that it didn't happen - would indicate that there is a special authority retained by this songwriter. Normally, if it is a regular admin agreement with joint and several songwriters, the Cat Administrator and/or any of the other songwriters could authorize this use. But that didn't (can't?) happen here, so...
In reply to:
Wouldn't Cat Administrator or Major Label Music Publishing Company normally prefer to deal with this themselves?
Probably. But it depends on the relationship with this artist.
In reply to:
How would such an agreement between Cat Administrator and Single Member affect the other four Band X member's copyright interests?
It sounds like there may be multiple agreements that cover various songs/albums delivered under the pub agreement(s).
In reply to:
Would the other Band X members have reason to expect money themselves from any actual "copyright infringement"?
If the victory is one for exploitation of all the songs covered by the agreement(s) that involve the other band members: Yes.
In reply to:
Particularly when Single Member has himself repeatedly violated the copyright interests of Cat Administrator, Major Label Music Publishing Company, Band-Owned Publishing Company and the other four Band X members by issuing dozens of unauthorized bootlegs. He himself is being sued by another Band X writer for such actions.
Can anyone possibly clarify any part of this situation?
Again, this tale indicates that Single Member enjoys some special place and relationship with the Cat Admin and/vs. the other band members.
_________________________
Fusion
|
|
Top
|
|
|
|
|
#158370 - 01/05/06 05:42 PM
Re: Curious Tale: Publishing & Copyright Infringem
[Re: Fusion]
|
legerdemain
Silver Member
Registered: 03/04/05
Posts: 403
Loc: Detroit's Woodward Corridor
|
|
Offline
|
|
Thanks folks. Not expecting free attorney consult, just interested in how these things normally work.
<< Beer Baron: Re: whether there was copyright infringement, if the Catalog Administrator really thought there was anything to gain, it would have taken the Filmmaker on itself. Obviously it didn't think anything would come out of it. So the Catalog Administrator says to Single Member, "Go ahead, we don't want any part in this." Catalog Administrators won't spend the money to get involved unless it feels there's a reasonable expectation of getting back what it spent (and more.) >>
That's kind of what I thought. Single Member likes to gamble and hopes to get lucky? Makes sense for Cat Admin to play it safe in a dicey situation.
<< Beer Baron: It doesn't sound like the Catalog Administrator really has some sort of deal with Single Member. There may be some sort of release where Catalog Administrator said he can go ahead and sue Indie Filmmaker on his own. >>
That seems to be the case, a limited agreement for Single Writer to take the copyrights out for a drive in legal fast lane but indemnifies Cat Admin from legal repercussions should Single Writer total the vehicle.
<< Fusion: Because the relationship/agreement between the songwriters/that songwriter gives (or causes the Cat Admin to give) that songwriter that right. >>
Could be a relationship thing. If not, there's compromising photos or something off-road.
<< Fusion: Normally, if it is a regular admin agreement with joint and several songwriters, the Cat Administrator and/or any of the other songwriters could authorize this use. But that didn't (can't?) happen >>
Note: The other four members DID authorize the use and executed written agreements.
Particularly when Single Member has himself repeatedly violated the copyright interests of Cat Administrator, Major Label Music Publishing Company, Band-Owned Publishing Company and the other four Band X members by issuing dozens of unauthorized bootlegs. He himself is being sued by another Band X writer for such actions.
<< Fusion: Again, this tale indicates that Single Member enjoys some special place and relationship with the Cat Admin and/vs. the other band members. >>
Interesting. The original deal was with all 5 members, no evidence Single Member was more than a minor writer in Band X.
That raises another question. If Single Member is clearly violating the other four Band X members copyrights and Cat Administrator is not only casting a blind eye, but effectively allowing Single Member to cut into the revenue stream of the other four, would that be grounds for action against the Cat Administrator?
That's probably too logical, right? Hate it when that happens.
np: Wally Badarou "Words Of Grace"
_________________________
"The difference between genius and stupidity is that genius has its limits."
|
|
Top
|
|
|
|
|
#158371 - 01/05/06 06:30 PM
Re: Curious Tale: Publishing & Copyright Infringem
[Re: legerdemain]
|
slider
Platinum Member
Registered: 08/26/04
Posts: 1372
|
|
Offline
|
|
Band X= MC5? except some of them are dead.
E=MC2?
|
|
Top
|
|
|
|
|
#158372 - 01/05/06 06:35 PM
Re: Curious Tale: Publishing & Copyright Infringem
[Re: legerdemain]
|
Fusion
Platinum Member
Registered: 01/25/01
Posts: 1119
|
|
Offline
|
|
In reply to:
In reply to:
<< Fusion: Normally, if it is a regular admin agreement with joint and several songwriters, the Cat Administrator and/or any of the other songwriters could authorize this use. But that didn't (can't?) happen >>
Note: The other four members DID authorize the use and executed written agreements.
But then the deal ultimately fell through, right?
My point was, if the administrator - even with the consent of all the other songwriters - couldn't grant this permission without Single Member, well then, there's your answer right there: Single Member enjoys actual (or at least perceived) veto power with them, doesn't he?
Get what I'm saying?
In reply to:
Interesting. The original deal was with all 5 members, no evidence Single Member was more than a minor writer in Band X.
That totally does not jibe with everything else related in here. That member has some juice - plain and simple.
Look at what happened, right?
In reply to:
That raises another question. If Single Member is clearly violating the other four Band X members copyrights and Cat Administrator is not only casting a blind eye, but effectively allowing Single Member to cut into the revenue stream of the other four, would that be grounds for action against the Cat Administrator?
Yes. IF that is what is happening.
Again, I bet there is a reason this member: a)took this postion and b) is being ALLOWED to take this position.
_________________________
Fusion
|
|
Top
|
|
|
|
|
#158373 - 01/05/06 06:36 PM
Re: Curious Tale: Publishing & Copyright Infringem
[Re: legerdemain]
|
Vornado
Platinum Member
Registered: 03/16/02
Posts: 1551
|
|
Offline
|
|
Gee, this is so well "disguised" and neutral that it's completely uncontroversial.
Anyway, I am not an IP attorney, so most of what follows is speculation, but there's so much pure crap in what appears above that I have to chime in.
Notwithstanding that my sympathies, like yours, are with the documentary filmmakers, I just don't see evidence of anything more nefarious than asinine behavior by Single Member.
Copyright infringement does not depend on financial gain. Financial gain may be an element of damages, and it also may be an element (but a weak one) of determining fair use. However, assuming (as I believe to be the case) that any one of the group members had the power to withhold consent to use the copyrighted material, and that the documentarians' use of the material went far beyond fair use and exceeded the terms of their temporary license, and futher that Single Member did not in fact consent to the use, Single Member is almost certainly within his rights to pursue a claim for copyright infringement. Whether such a claim is worth it financially is a different question, but he is probably entitled to injunctive relief at a minimum. As for his separate attempt to profit from the buzz created by the documentary, yes, he's an asshole, and maybe he's also violating the others' copyright rights. So maybe the documentarians have a "clean hands" defense, but I doubt it. It's up to the other copyright holders to enforce their rights against him (and it's perfectly plausible that they had an agreement that any of them could use the songs, or that all of the live ones could).
The relationship between Catalogue Administrator and Single Member is going to be determined by contract. I am not at all surprised that Catalogue Administrator would withhold consent for use of the material in the face of an objection from one of the composers, and that may have been required under the contract or under background law. As for pursuing the suit, I don't know what this contract says, but many similar contracts where there is a fiduciary representing a number of real parties in interest allow a real party in interest with a substantial interest to pursue a suit on his own if the fiduciary declines to do so (and permit the fiduciary to decline to bring the suit for any damn reason at all, but certainly for the reason that potential damages would not justify the cost). That doesn't mean that Single Member gets all of the damages, if there are any -- those would still have to be shared with the other owners. He would owe them an accounting, but he would probably get to offset the costs of bringing the suit against any damages before sharing the wealth.
Guess what? I think the foregoing pretty much describes how the courts have handled a recent real-life situation that seems to correspond somewhat to your hypothetical facts.
|
|
Top
|
|
|
|
|
#158374 - 01/05/06 10:40 PM
Re: Curious Tale: Publishing & Copyright Infringem
[Re: slider]
|
legerdemain
Silver Member
Registered: 03/04/05
Posts: 403
Loc: Detroit's Woodward Corridor
|
|
Offline
|
|
The Jeopardy thread's probably over on the Film/TV board. We're trying to suss out very specific copyright and legal issues that could be encountered by most any band, no need to get too deep into personalities and extracurriculars.
Just the facts, ma'm.
_________________________
"The difference between genius and stupidity is that genius has its limits."
|
|
Top
|
|
|
|
|
#158375 - 01/05/06 11:13 PM
Re: Curious Tale: Publishing & Copyright Infringem
[Re: legerdemain]
|
PeaBrain
Platinum Member
Registered: 05/08/03
Posts: 1625
Loc: Hangin' in my bachelor pod.
|
|
Offline
|
|
As if we don't know you are talking about MC5. I'd offer my opinion, but there's too much to read. Brevity is the key to free legal advice.
|
|
Top
|
|
|
|
|
#158376 - 01/06/06 12:58 AM
Curious Tale: Publishing & Copyright Infringement
[Re: PeaBrain]
|
legerdemain
Silver Member
Registered: 03/04/05
Posts: 403
Loc: Detroit's Woodward Corridor
|
|
Offline
|
|
Come on, PeaB... cut a brother some slack. The Royalty Question thread has 23 posts and no one's yet attempted to guess the band's identity. At the moment, this one's only got 8 and 2 are speculating as to the 'true identity' of Band X. Every so often an actual music business thread pops up here so let it roll.
In all seriousity I ain't mad at cha but who the fuck cares who the band is? This is about publishing and copyright issues, there's already another rather definitive MC5 thread and I'm actually trying to get something resembling an education here.
<< I'd offer my opinion, but there's too much to read. Brevity is the key to free legal advice. >>
Don't need free legal advice, real-life experience is more than good enough. I wish it was that simple but this baby's too insane for brevity. So just tear off a portion of a rib and start chewing. We're both lucky we're not attorneys.
Um, I think. Must admit those hourly rates in legal-land sure look inviting. Plus when's the last time a lawyer got downsized?
np: The Byrds "Everybody's Been Burned"
_________________________
"The difference between genius and stupidity is that genius has its limits."
|
|
Top
|
|
|
|
Moderator: JGFlash
|
|
