Not a quiet sea for the Grooveshark

With the start of the new year, copyright is already back in courts.

Popular digital music service Grooveshark's parent company, the Escape Media Group, was sued on Wednseday before the New York State Supreme Court in Manhattan for, inter alia, breach of contract and an accounting (the case is EMI Entertainment World Inc v Escape Media Group Inc, New York State SupremeCourt, New York County, No. 650013/2012) . 

EMI claims that, since entering a licensing agreement to stream music in 2009, Escape has "made not a single royalty payment to EMI, nor provided a single accounting statement."

The complaint refers to alleged written and oral estimates by Grooveshark that it owes at least $150,000, but EMI said it believes the actual sum "greatly exceeds" such estimates.

As recalled by Reuters, the filing came less than a month after three other major record companies -- Vivendi SA's Universal Music Group, Sony Corp and Warner Music Group -- filed a lawsuit before the U.S. District Court, Southern District of New York, accusing Grooveshark of pirating thousands of songs (UMG Recording Inc et al v Escape Media Group Inc et al, U.S. District Court, Southern District of New York, No. 11-08407).

Grooveshark allows users upload songs to its servers, which other users can then stream free. It calls itself the world's largest on-demand and music discovery service, with 30 million monthly active users, more than 15 million songs, and 14 billion streams a year. 

A shark operating in a gray zone

According to its DMCA Takedown Policy, Grooveshark is committed "to honor all takedown requests that comply with the requirements of the Digital Millennium Copyright Act (DMCA) and other applicable intellectual property laws" In any case, and "[t]o be clear, as long as your infringement claim complies with the terms of the DMCA we will honor it, however we would much rather pay you than remove your content."

As pointed out by the New York Times, "[w]ith the music industry coming to rely more and more on fully licensed services like Spotify and Rhapsody that stream music by subscription, EMI’s suit highlights the legal gray zone in which Grooveshark operates."

In a statement, Grooveshark said: “This is a contract dispute that we expect to resolve.”

Let's wait and see then.

Russell Brand and Katy Perry to divorce

British comedian and actor Russell Brand called it quits on his 14-month marriage to 'Teenage Dream' singer Katy Perry on Friday, filing for divorce on the grounds of irreconcilable differences.

They spent the Christmas holidays apart, with Brand being photographed in England, and Perry spotted in Hawaii -- both without their wedding rings.

Source: The Star

Well, at least, they lasted 14 months. Kim Kadashian's marriage to Kris Humphries lasted just 72 days! Sigh..

Source: Dailymail.co.uk

Rolling In The Deep

Alright, you've heard Adele's "Rolling In The Deep". For another perspective, here's Linkin' Park's cover at the ITunes festival in London. Lyrics below to sing along.



Rolling In The Deep

There's a fire starting in my heart
Reaching a fever pitch, and it's bringing me out the dark
Finally I can see you crystal clear
Go ahead and sell me out and I'll lay your ship bare
See how I'll leave with every piece of you
Don't underestimate the things that I will do

There's a fire starting in my heart
Reaching a fever pitch
And it's bringing me out the dark

The scars of your love remind me of us
They keep me thinking that we almost had it all
The scars of your love, they leave me breathless
I can't help feeling
We could have had it all
Rolling in the deep
(Tears are gonna fall, rolling in the deep)
You had my heart inside of your hand
(You're gonna wish you never had met me)
And you played it to the beat
(Tears are gonna fall, rolling in the deep)

Baby, I have no story to be told
But I've heard one of you
And I'm gonna make your head burn
Think of me in the depths of your despair
Making a home down there
As mine sure won't be shared

The scars of your love remind me of us
They keep me thinking that we almost had it all
The scars of your love, they leave me breathless
I can't help feeling
We could have had it all
Rolling in the deep
(Tears are gonna fall, rolling in the deep)
You had my heart inside of your hand
(You're gonna wish you never had met me)
And you played it to the beat
(Tears are gonna fall, rolling in the deep)
We could have had it all
Rolling in the deep
You had my heart inside of your hand
But you played it with a beating

Throw your soul through every open door
Count your blessings to find what you look for
Turn my sorrow into treasured gold
You pay me back in time and reap just what you sow

(You're gonna wish you never had met me)
We could have had it all
(Tears are gonna fall, rolling in the deep)
We could have had it all
(You're gonna wish you never had met me)
It all, it all, it all
(Tears are gonna fall, rolling in the deep)

We could have had it all
(You're gonna wish you never had met me)
Rolling in the deep
(Tears are gonna fall, rolling in the deep)
You had my heart inside of your hand
(You're gonna wish you never had met me)
And you played it to the beat
(Tears are gonna fall, rolling in the deep)

You could have had it all
(You're gonna wish you never had met me)
Rolling in the deep
(Tears are gonna fall, rolling in the deep)
You had my heart inside of your hand
(You're gonna wish you never had met me)

But you played it
You played it
You played it
You played it to the beat.

Lets Face The Music, And Pass?

OK, this isn't strictly about copyright - its about the launch of the new Facebook Music service - which seemed to leave most cyberworld commentators somewhat under-awed. But I wonder if they (and the music industry) are missing the point. Its great to have a internet behemoth like Facebook promoting legal music platforms (isn't it ?) - but - isn't the real value of music being missed again? Facebook's new music service seems to be all about data collection - with the music services (or the 'copyright' element) just the bait to get users to share information with Facebook.

One of cyberworld's commentators, Gizmodo, tells us that Facebook has failed "To Let Fans Share Music Across Platforms". But of course Facebook has never (as yet) claimed to be a content provider itself. Instead, head honcho Mark Zuckerberg wants Facebook Music to be the "connective tissue" needed by music fans and the music industry alike, so that people would be able to share music with each other without friction - and without breaking the law. How will it do this? Well Facebook will let you see what your friends are listening to in a real-time "Ticker" feed that appears on the right side of a Facebook page. But if you want to hear full-length versions of those songs, you'll need to use the same music service as the person who shared it, with Zuckerberg explaining "I can see all the stuff [my friend] is listening to, and play it with whatever music player he used to play it. As Gizmodo rightly explains, it means that if Facebook friends want to become "friends with (musical) benefits," they'll both need to subscribe to the same music service - and users of any participating music service will need to allow Facebook to track their activity - what they are listening to - and to share that data with their friends and followers in real time via the new update stream, or 'Ticker'. So far, so good for the music industry - its pushing people to legal music services.

But one worry is that Facebook Music will ultimately reduce consumer choice - not widen it. The new Facebook Ticker and Timeline features may well be the "connective tissue" for music lovers who use Facebook - but only between listeners who pay to use the same music service. Gizmodo say that there will likely be only one winner in all of this as far as unlimited music subscriptions go, and that could well be Spotify, whose CEO Daniel Ek appeared with Zuckerberg at the recent F8 conference and whose app Zuckerberg said he "really loves": If Facebook Music was open to all platforms, music fans would need to install every (legal) music service their frends use on all of their computers, smartphones, and tablets, just in case they need to find a shared song from a service they otherwise wouldn't use. And I have to agree with Gizmodo, that scenario seems a tad unlikely, to say the least. So Gizmodo expects a single winner to emerge from the existing music subscription platforms - and thinks its Spotify, although there are of course other players such as MOG - and maybe Rhapsody - and Facebook CTO Bret Taylor spent quite some time at the Facebook Music launch explaining how Clear Channel's I Heart Radio venture will also take advantage of Facebook's new data sharing functionality.

The music industry seemed chuffed. Rhapsody President John Irwin told the New York Post "The more you help people discover music, the more social it is, the more they will be engaged. If they're more engaged, then they're more likely to subscribe" and VEVO CEO Rio Caraeff told the Guardian "Today's announcement is a big step forward in Vevo's mission to bring more music to more fans in more places. A deeper integration with Facebook will help VEVO grow its scale and reach to new heights, while better targeting our connected, socially-savvy audience".

And alongside this story is growing concern that the Spotify streaming model just doesn't work for everyone. Recently three small heavy metal labels have pulled their content from Spotify - Prosthetic Records followed Century Media and Metal Blade in withdrawing from the streaming platform with its co-owner EJ Johantgen telling LA Weekly "there [does] not appear to be an upside" to being part of the Spotify party and that payouts are "fractions of pennies". Its interesting that the four UK major labels (Universal, Warners, Sony and EMI) along with Merlin representing the major independent labels own an estimated18% of Spotify - a nice return for shareholderds as the company is now worth upwards of $1 billion - and Universal and Sony part own video streaming platform Vevo. But does this actually help the creators of music - the artists and the songwriters? Well with PRS for Music collecting just 0.085p per stream (or £850 per million streams) it won't be making songwriters rich, in the short term at least, and there have been a number of horror stories about the lack of transparency and low level of payments in general - with Lady Gaga reportedly earning just $167 from a million plays of Poker Face. An online debate about Spotify's payments to both labels and songwriters has been initiated by self-releasing indie-folk outfit Uniform Motion based around the royalties they earn on their sound recordings. Posting a blog about the economics of being a DIY artist, they provided some interesting insights into what artists can make from the various digital services - both download and mail-order - and streaming - and the blog led to an online debate comparing the money artists can make 'per download' via services such as iTunes and 'per stream' models such as Spotify. Spotify responded by pointing out the diffence between the two models and saying that they have paid out $100 million to rights owners and that they are the second largest source of digital revenue for European labels. And of course lets not forget that they DO provide a legal platform. But interestingly, Uniform Motion has since noted that their problem with Spotify and other streaming services isn't so much how much they get paid per stream, but rather how that fee relates to what the streaming firms earn for ad sales and subscriptions saying "What we dislike about Spotify is the lack of transparency in their business model. With Apple, it's simple. They take 30%. With Spotify, we don't know if we're getting a fair deal or not". With two million subscribers paying Spotify now, that's quite a lot of money to be concerned about.

Others say that Facebook Music is hardly a revolution at all. It MAY help new music services get a foothold and gain a more mainstream customer base. Conversely it may prioritise one clear winner. But surely the technology and capacity to capture data will be the greatest asset of all - and that asset will be owned by Facebook. If users allow Facebook to track their online lives and collect rich and important data about what they (and their on-line friends) do and this will have a real value to Facebook who will have the capacity to shape and build new services around users and user data - allowing some fairly specific targeting and predicting, something marketeers dream of. And actually it won't really cost Facebook anything, as they are just piggy-backing on the music services, albeit promoting them at the same time. So, a question for the recorded music and music publishing sectors of the music industry - is this really monetising copyright in the most profitable way for you and your artistes? Or another lost opportunity for the music industry to build a new business model fit for the digital age - outflanked by the Geeks again!


My take on the economics of Spotify here http://the1709blog.blogspot.com/2010/04/spotify-full-house-or-flushed-away.html

and in Will New Music Streaming Business Models Survive The Dawn of the Digital Age? here
http://www.musiclawupdates.com/09Novemberlawupdates.htm

and here http://www.thecmuwebsite.com/article/spotify-passes-two-million-paying-subscribers-landmark/

For Neil Wilkof's interesting take on Amazon's idea for the book publishing industry on the IPKat - Can There Be an E-Book Library? - see here http://ipkitten.blogspot.com/2011/09/can-there-be-e-book-library.html


http://gizmodo.com/5842983/facebook-fails-to-let-fans-share-music-across-platforms


Photo by 4ELEVEN Images http://www.facebook.com/4ELEVEN512

More on US Termination, a How to

I don’t have any moving stories of the importance of the Village People in my life like Nicholas Smith’s wonderful post on the US termination right at IP Whiteboard.  - Although I will admit that The Village People’s Greatest Hits was the first cd I purchased with my own money; – But, I would like to draw your attention to a very detailed how-to-guide on termination rights by Digital Music News: The Comprehensive Guide to Reclaiming Your Old Masters…

Note: If you’d like some background on the US termination right before getting into the guide, see Ben’s earlier post, Terminal Blues for Record Labels?

The Guide gives a bit of background on the termination law, explains the affect terminations may have on record labels and outlines the steps artists wishing to terminate their contracts should follow. 

It also, and perhaps most interesting to the copyright gurus reading this blog, explores in detail the ‘work for hire’ issue that will often be the deciding factor in whether a termination is successful or not.  As the Guide points out, if a work was created as a work for hire, the person who created the work cannot reclaim the rights.  This is because although they created the work, they are not the legal author.  Authorship in works for hire vests with the hiring entity. 

Of course, most record label agreements would state that the works at issue are works for hire.  The golden nugget lies in the fact that saying something doesn’t make it so.  (A common theme in copyright lately.)  The Guide gives a great analysis of the work for hire doctrine, complete with Congressional drama and RIAA trickery.  Check it out.

14th Rainforest World Music Festival, July 8-10, Kuching. Sarawak, Malaysia

The recently-concluded 14th Rainforest World Music Festival held over the weekend from July 8-10 saw yet another resoundingly successful celebration of contemporary and traditional world music. With the imposing Mount Santubong in the background, and in the midst of a virgin rainforest at the edge of the South China Sea, the music festival is just an hour's drive away from Kuching.

The Sape, Sarawak's own musical instrument, was scheduled as the opening act at this year's festival. Music lovers also had the chance to meet the Sape musicians up-close at the daily Musical Workshop held at the Sarawak Cultural Village. The Sape was how the Rainforest World Music Festival all began.

RWMF - where people regardless of ethnicity, cultural backgrounds, music interests come together - has been voted for the second consecutive year among the Top 25 Best International Festivals by renowned world music magazine, Songlines, elevating its status in the international music scene as a festival which has well and truly put Sarawak on the world tourism map and extending its appeal to shores further from neighbouring countries.

One group of musicians who wowed the crowd was the Leweton Women from Vanuatu, an island nation located in the South Pacific Ocean.

Hailing from the remote northern islands of Vanuatu, the Leweton Women group, first time performing outside their country, was the most fascinating act at the Rainforest World Music Festival (RWMF) held last weekend at the Sarawak Cultural Village.

Visitors to the RWMF were completely amazed by the water music. For obvious reasons, the Leweton Women couldn’t perform onstage during the evening concerts, so they presented two 15-minute slots every day in between the afternoon workshops, playing in the lake at the centre of the Cultural Village.

Spectators crowded the lakeside to catch the performance, as in the video below, and many were heard asking whether drums were positioned underwater, or a recording was being used, to produce such strong percussive sounds.



Here's another video shot at the hotel pool.


The 14th Rainforest World Music Festival ended on a high note with a grand finale which left many festival goers vowing to return for next year’s festival. Will you be there?

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Sources:
- RWMF website
- The Star
- Wikipedia
- You Tube

US Copyright Registration: $35 Insurance?

Formalities may not be allowed thanks to Berne, but that doesn’t stop the United States from encouraging copyright owners to register their works.  With so many everyday people creating copyrighted works – photos, emails, blog posts, tweets – a question to the necessity of copyright registration arises.  When should you bother registering?  Jonathan Bailey over at Plagiarism Today has a great post seeking to answer this question.

Once upon a time, there were formalities…

One answer is that you should register your work if it was created back when registration was required (i.e. under the old 1909 Copyright Act).  That’s something blues musician Syl Johnson learned the hard way.  Although in this instance, Syl had some bigger problems.

Part I

The case, Johnson v. Cypress Hill, et al. [Johnson II], Nos. 08-3810, 09-2213 & 10-1733 (June 1, 2011), involved legendary rap group Cypress Hill and Syl’s song “Is It Because I’m Black.”  Syl recorded two versions of this song, one in 1969 and one in 1972.  In 2003, he sued Cypress Hill for using his song in one of their 1993 songs.  As is the case with most copyright suits about hip hop tracks, the portion of the song used was small (2.5 seconds) and looped.  (Not relevant, but interesting all the same.)

Syl believed that his federal lawsuit was valid based on his recollection of having registered the 1972 recording in 1997.  But he ran into two problems.  First, he didn’t actually register the 1972 song (other songs were contained in the registration, but not the one at issue here).  Second, Cypress Hill didn’t use the 1972 recording, they used the 1969 recording.  The problem with that?  Sound recordings weren’t eligible for federal copyright protection until 1972.  Cypress Hill: 2, Syl: 0.

Syl’s next move was to try to sue under laws that applied to his work: common law misappropriation and federal copyright infringement for a different copyright.  Compositions were eligible for copyright protection in 1969 so Syl registered the work as a composition, in 2003.  That is the registration he used for the basis of the federal copyright claim in his motion to amend his complaint.  By this point, it was 2008, five years after the suit began and 15 years after the Cypress Hill song at issue was released.  The judge denied Syl’s motion to add these claims to the case and granted Cypress Hill summary judgment.  Cypress Hill: 3, Syl: 0.

Syl tried to get the court to vacate the summary judgment and just dismiss the case for lack of subject matter jurisdiction.  In a nice twist, Syl argued that since he didn’t have copyright in the first place, the court didn’t have jurisdiction.  Instead he got an order to pay attorney’s fees and costs for Cypress Hill, a judgment in excess of $300,000.  Cypress Hill: 4, Syl: –300,000.

But wait, it turns out that was only the first half.  If you’ll notice above, the case citation has the nickname “Johnson II.”  All that stuff above, that’s all in Johnson I.  So could Syl come back and even the score in the 2nd half?

Part II

Syl came back with a new case, Johnson II, in state court, again bringing the state law misappropriation claim.  Cypress Hill had the case moved to federal court.*  Once that happened, Syl tried to amend his complaint to add the composition infringement claim, basically attempting to make Johnson II exactly like what he tried to make Johnson I.  It didn’t work any better the second time.  The court dismissed the case with prejudice, meaning Syl couldn’t try to bring the same case for a third time.  The reason: Syl’s claims were barred by res judicata.  Cypress Hill: 5, Syl: still –300,000.

Syl fights hard and doesn’t give up.  He appealed, and he appealed everything: the first courts grant of summary judgment, his motion for dismissal based on lack of subject-matter jurisdiction, the attorney fees and costs award, and the dismissal of his claims in the new case.

Syl lost on all four. The first court didn’t abuse it’s discretion when granting summary judgment because of the long delay in attempting to amend the complaint.  The court had subject matter jurisdiction over the case because a valid copyright registration is a requirement for filing a claim but does not affect the court’s jurisdiction over the case.  The fees and costs award was valid because the US Copyright Act gives the court discretion to award costs and attorney’s fees to the prevailing party in an infringement suit.  And finally, dismissal of the new case was correct because the second case involved the same people, involved the same events, and the first case was decided on its merits.

Final score: Cypress Hill: 300,000.  Syl: –300,000.

 

* For those unfamiliar with US civil procedure, there are basically two ways to have a case heard in federal court, have a claim under a federal law (federal question jurisdiction) or have the two parties be from different states (diversity jurisdiction).  Johnson I was brought in federal court under the first type; Johnson II was moved to federal court under the second type.

Hat tip to Joe Forward and the State Bar of Wisconsin for their post on this case.

Public (Free) Concert - TWIN Towers @live 2011

Head on over to KLCC for the biggest open-air music celebration ever to be held in Malaysia today and tomnorrow, April 8th and 9th respectively.

For more information, e-mail: twintowersalive2011@gmail.com or go the website at http://www.facebook.com/TwinTowersAlive2011

CONCERT FACT FILE

WHAT: A 2-DAY FREE INTERNATIONAL CONCERT

WHERE: KLCC (@ entrance of Malaysian Philharmonic Orchestra)

WHEN: 8TH AND 9TH APRIL 2011 (FRIDAY AND SATURDAY)

TIME: 6 PM onwards on both days

ARTISTE LINE-UP
DAY 1: YUNA, THE AZENDERS, BUNKFACE AND HOOBASTANK

DAY 2: JOE FLIZZOW, MIZZ NINA, COLBY O’DONIS AND the EARTH, WIND AND FIRE EXPERIENCE featuring the legendary AL McKAY

WHY: In conjunction with Malaysian GP celebration

There will be partial road closure at Jalan Ampang & Jalan P Ramlee from 7pm-1am on both nights. Take the Public Transport - no need to worry about where to park & getting caught in traffic jams

Confirmed. In conjunction with the TWIN Towers @live 2011 Concert, RapidKL will extend the LRT, Monorail and bus services till 1.30am on Friday and Saturday.

Katy Perry and her Purple Dresses

Well, which dress do you like best? Take the poll.


Image source: PeopleMag

Da Bears, Da Dance, Da Lawsuit

Da Bears.  Perhaps one of the most famous phrases in 1980s American football.  The Chicago Bears had a lot of cultural staples that decade, Mike Ditka, Refrigerator Perry and the 1985 Superbowl Shuffle (video available here).  But as the 25th anniversary of the Superbowl Shuffle approaches, there’s trouble in the Windy City.

Photo credit: “It’s Like Making a Trip
to Mecca if You’re a Bears Fan”
CC-BY-SA Senor Codo

Julia Meyer, owner of the copyrights to the video and song Superbowl Shuffle has brought suit against cable network Viacom, owner of MTV and VH1.  Meyer alleges copyright infringement under the US Copyright Act, misrepresentation under the Lanham Act, deceptive trade practices under Illinois state law and unjust enrichment.  (Full brief pdf)
What did Viacom do?  It played the Superbowl Shuffle video on MTV and VH1, not the whole video, but clips of it.  The shortest clip, 16 seconds, the longest, a minute and a half.
According to Meyer,

“The Defendants’ conduct significantly damaged the market for the ’85 Bears Shuffle Video. [Because now that people have seen it, they’ll know better than to buy it?]  The 25th Anniversary of the ’85 Bears Shuffle Video will take place during late 2010 and early 2011, which has created additional interest from the public in the ’85 Bears Shuffle Video.” [What’s more likely to create additional interest is that the Bears could make it to the Superbowl this year.  They’re currently first in their division, just ahead of the Green Bay Packers.]

Copyright Infringement

Meyer’s claims that by airing the Superbowl Shuffle clips on MTV and VH1, Viacom’s actions were “willful and deliberate, and in utter disregard for Meyer’s rights.”
All I can do here is speculate.  Once upon a time, MTV and VH1 actually played music videos, full music videos, all of the time.  That suggests that the Networks are familiar with the standard process for licensing videos and would not have aired the videos without going through that standard process.  (Unfortunately, I am not familiar with the standard process and have no idea if there is any sort of set compulsory licensing in place for music videos or if each video’s airing must be negotiated with the rightsholder.)
On the other hand, most of the videos MTV and VH1 show are produced and owned by major record labels.  This video is different.  It is not owned by a label, but by a entrepreneur who licenses the video via a company in Illinois.  Did Viacom try to take advantage of this situation by airing the video without going through the normal licensing practice?  The brief filed by Meyers gives us no information about any relevant background facts in this area.

Deceptive Trade Practices and Unfair Competition

The claims under the Lanham Act and Illinois State Law (815 ILCS 510/2) are similar.  Meyer and co-plaintiff Renaissance Marketing Corporation alleges that by showing clips of the Superbowl Shuffle on VH1’s program One Hit Wonders and MTV’s MTV News, Viacom engaged in “unfair and deceptive trade practices in that it likely caused confusion and mistake by the public.” 
At first, this sounds pretty ridiculous.  How would the public confuse a football team with some cable channels?  Would the public really think that the airing of the videos means the Chicago Bears are endorsing VH1 and MTV?  But the alleged confusion isn’t over affiliation or endorsement.  Meyer’s claim is that the public will be mislead into believing that she authorized the use of the video on the programs.
It’s possible viewers believe the owners of videos approve the playing of their videos.  But I wonder how realistic it is that the public would believe that for the video uses at issue here.  The MTV clip was part of a news show including interviews with members of the 1985 Chicago Bears team.  Does the public assume permission is granted whenever a very brief (40 seconds in this case) clip appears on the news as part of a story?  And the real question, would the public assume permission is given by the video owners for videos that appear on VH1’s One Hit Wonders?  Being known as a one-hit-wonder isn’t usually a good thing.  The public might assume that if specific permission were needed, there wouldn’t be any videos on the show.
The deceptive practices and likelihood of confusion claims are plausible but tenuous at best.  My guess is the case settles; I’ll be surprised if it goes to trial.

Creative Commons License Upheld in Belgian Court

In 2004, the Belgian band Lichôdmapwa released the song “Abatchouck” under a Creative Commons Attribution Non-Commercial No Derivatives license (CC BY-NC-ND). Several years later, one of the band members happened to hear about 20 seconds of the 3:20 song on an advertisement for a theater and festival company. Recently, Lichôdmapwa was awarded 4.500 Euros for the infringement of “Abatchouck”.

When Lichôdmapwa first heard their song on the radio, they contacted the theater company (roughly translated by Bablefish as “Festival of theater of spa”) to see if they could negotiate an outcome favorable to all. The negotiations failed and Lichôdmapwa sued the theater company for copyright infringement in September of 2009.

The Band’s Claims

Lichôdmapwa claimed that the theater company had violated all three of the terms of their chosen CC license. The theater had modified the original work to make it fit in the commercial, violating the No Derivatives provision. The theater violated the Non-Commercial clause by using the work in an advertisement. And the theater violated the attribution requirement by not including any mention of the song’s artist in the commercial.

The band asked for 10,380 Euros in damages, plus to have the theater pay for the publication of the court’s judgment in a magazine called “Dogmagazine.”

The Theater Company’s Defense

The theater company attempted to claim ignorance, arguing that it was unaware of the terms of the license. It appears the theater also argued that since Lichôdmapwa is not a member of the Belgian collecting society, SABAM, the band had no rights to collect payments for the music’s use.

The Court’s Decision

Judge Vandeput did not agree with the theater company’s defenses. She recognized the validity of Creative Commons licenses, citing Dutch, Spanish and American courts as others that have also held CC licenses to be valid. She also confirmed that the musicians’ decision to not join SABAM and instead release their music more openly should not prevent enforcement of the license.

As to the theater company’s claim of ignorance, Judge Vandeput found that this was no excuse for violating the license. As an organizer of festivals and a company involved in using licensing, the company should have known to look for and follow the terms of the license. In addition, the website from which the theater downloaded the music, http://www.dogmazic.net, clearly mentions the terms of the license. There was no reason for the theater company not to know about the license or its terms.

The Money

Even though the band is not part of SABAM, the court held that they still suffered damages. And although Judge Vandeput did not award Lichôdmapwa the 12 Euros per distribution and 1,800 Euros per license term violated that they requested or the magazine print request, she did award the band 1,500 Euros per license term violated. 4,500 Euros and possibly court costs, not bad.

For our multi-lingual readers:

• More about the case by Herkko Hietanen (in Finnish)http://www.turre.com/2010/10/tuomioistuin-tietamattomyys-ei-este-cc-lisenssin-loukkaukselle/
• Full text of the case (in French) http://www.turre.com/wp-content/uploads/2010-10-26-D%C3%A9cision-trib.-Nivelles-Lich%C3%B4dmapwa.pdf