“Fair Play” Sought for Music Creators in New Legislation #FairPlayFairPay

I recently joined the Recording Academy to advocate for music creator’s on Capitol Hill in the group’s annual Grammy’s on the Hill Day.  This year we advocated, among other things, for the Fair Play Fair Play Act (H.R. 1733) recently introduced with bi-partisan support by Reps. Jerry Nadler (D-NY), Marsha Blackburn (R-TN), John Conyers (D-MI), and Ted Dutch (D-FL).

The Fair Play Fair Play Act harmonizes and modernizes music licensing in a logical, comprehensive way so that music creators receive fair market value for their work, and all music services play by the same rules.  Here are its key components:

> A Performance Right for Sound Recordings: Currently, terrestrial AM/FM radio stations do not pay any performance royalties to music artists.  The Fair Play Fair Pay Act would close this loophole and require AM/FM stations to pay the same market value (“willing buyer, willing seller) rates as currently paid by Internet Radio.

>All Radio Formats Play by the Same Rules: Under the Fair Play Fair Pay Act, all radio platforms — Internet, satellite, cable, and AM/FM radio — will all pay market value rates.

>Protecting Small Radio Stations:  Local stations with annual revenues less than one million dollars would pay only $500 a year for all the music they use.  Public, college and other non-commercial stations would pay only $100 year.  Reports are that nearly 75% of all music stations would pay the $500 annual rate.

>Payment for Pre-1972 Recordings: Currently, digital music services such as Pandora and SiriusXM refuse to compensate artists for songs made prior to 1972 based on a perceived loophole in copyright law.  Under the Fair Play Fair Pay Act, the legacy artists that paved the way for today’s music will receive royalties from digital music services for their work, at the same rates as other artists.

>Fair Pay for Producers:  The Fair Play Fair Pay Act also includes the AMP Act, which provides a process for producers and engineers their due royalties from digital radio.

>Boosting the U.S. Economy: Every industrialized court except the United States provides royalties for performance rights.  Thus, American artists do not receive royalties collected for American artists overseas because the United States does not reciprocate.  Estimates are that more than $100 million in oversees royalties are not paid to American artists each year.   This bill would remedy that.

Hard to quarrel with what this bill provides.

NFL Quashes Copyright Claims of Photographers

A federal district court in New York has dismissed copyright infringement claims brought by photographers against the National Football League (NFL) and its teams, and licensing agents including Getty Images and the Associated Press (AP).  The claims against Getty were ordered to arbitration.

Background

The plaintiffs photographed events for the NFL and individual clubs.  The photographs were generally taken on “spec”, essentially meaning they retained ownership of copyrights in the works and earned income by licensing their photos.

The NFL entered into licensing agreements with Getty between 2004 and 2009, and thereafter with AP for NFL images.  During the period of the NFL/Getty agreement, the plaintiffs each entered into Getty Contributor Agreements under which they became contributing photographers for Getty, and Getty received the right to license their NFL photos.  After the expiration of the NFL/Getty agreements, the plaintiffs entered into similar AP Contributor Agreements and transferred their existing NFL content to AP.

The plaintiffs took issue with Getty and AP granting the NFL “complimentary” use of their photographs and brought suit for copyright infringement.  The plaintiff also brought claims against the use of their photos in connection with a deal between AP and Replay — an online dealer of sports-related photographs — through which Replay operated an “NFL Photo Store” selling the photos.

No Copyright Infringement

The plaintiffs primarily alleged that AP “exceeded the scope” of its rights under the AP Contributor Agreements by granting the NFL an invalid sublicense and by offering the photos for sale through Replay’s “NFL Photo Store”.  The court found that AP has acted within its broad rights under the contributor agreements, and therefore no claims could be stated for direct or vicarious or contributory copyright infringement.  The NFL, its teams, and Replay were also granted dismissal by extension of the broad protections of the contributors licenses.  Finally, any remaining claims against Getty must be resolved in arbitration due to binding arbitration clause.

Preemption

The court also rejected state claw claims, including breach of contract and unjust enrichment, on the grounds that the claims relied on the same substantive allegations as the Copyright Act, and were preempted.

The case is Spinelli v National Football League, et al (Case No. 1:13-cv-07398-RWS)