U.S. Supreme Court decision may impact your copyright registration strategy

 

The U.S. Supreme Court ruled last week that copyright owners may now only file suit only after a copyright registration issues for the work in question. This ruling reverses the view previously held in certain federal circuits, including the 4th Circuit, which includes Virginia.

Because the copyright registration process can prove lengthy, we recommend that copyright owners file to register valuable works as soon as possible after creation in order to take legal action expeditiously when the need arises.

For further information regarding registration of your copyright-able works and/or the benefits of registration, please feel free to contact us.

Music Modernization Act Part I


On September 25, 2018, the Senate unanimously approved the Music Modernization Act (MMA), now called the “Orrin Hatch Music Modernization Act” (H.R. 1551). Along with being unique for receiving unanimous approval from the House of Representatives and the Senate, the bill is notable as it provides a major update as to how artists are paid for their music; in fact, Keith Kupferschmid, CEO of the Copyright Alliance, has gone so far as to herald the bill as “the most significant improvement of music copyright law in more than a generation” and stated that he believes it will make it “easier for creators across the music industry to earn a fair living through their creativity.”

The unanimous approval of the bill has to do with how it achieves its goal of “moderniz[ing] copyright law” with regards to songwriters, publishers, record labels, digital providers, and all others involved in the creation and distribution of music in the 21st century. The bill will modify Section 115 of the U.S. Copyright Act, by combining three prior pieces of major legislation and incorporating them as titles under the MMA as reported by The Verge:

  • The Music Modernization Act, which streamlines the music licensing process to make it easier for rights holders to get paid when their music is streamed online.
  • The CLASSICS Act (Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society Act) for pre-1972 recordings.
  • The AMP Act (or Allocation for Music Producers Act), which improves royalty payouts for producers and engineers from SoundExchange when their recordings are used on satellite and online radio. Notably, this is the first time producers have ever been mentioned in copyright law.

In a series of upcoming blog pieces, we shall discuss the importance of Title II (the “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act”) and Title III (the “Allocation for Music Producers Act”). For now, the remainder of this piece will focus on Title I, the “Musical Works Modernization Act.”

The central focus of Title I is that it changes the way in which “qualified digital music providers”—iTunes, Spotify, etc—pay royalties to songwriters and their music publishers for reproduction and distribution of their musical work. As it currently stands, Section 115 of the Copyright Act has established a process in which one can obtain an automatic right to reproduce and distribute another’s previously recorded musical composition—this right is known as a “compulsory license.” To obtain a compulsory license, the service merely has to provide notice to the copyright owner (or the Copyright Office if the copyright owner cannot be located) of the composition and agree to pay a statutory rate set by the Copyright Royalty Board (CRB).

The MMA aims to make this process easier by creating a centralized “Mechanical Licensing Collective” (the “Collective”). Instead of notices and payments going to the Copyright Office, the Collective will manage all notices and collect and distribute royalty payment when a provider fails to locate a copyright owner. The Collective will also establish a process for dealing with unclaimed royalty payments and maintain a working database of eligible works. Of particular note, the Collective will allow digital music providers to pay for a “blanket license” that would cover the use of all works in the database.

Finally, and perhaps most significantly to songwriters, the MMA will modify the standard used by the CRB when determining rates to be paid for licenses and it is looking likely that this will result in increased royalty payments for songwriters.

For additional reading, please visit: https://www.iplawwatch.com/2018/10/a-modern-melody-for-the-music-industry-the-music-modernization-act-just-passed-congress-and-awaits-presidential-approval/

West End law firm sweeps into N.C. with new attorney

Gavin Law Offices, which handles intellectual property matters for clients, earlier this month opened an outpost in Raleigh, North Carolina, after picking up attorney Alan Etkin. It’s the firm’s first office outside of Virginia.

Founder Pam Gavin said the expansion is similar to its January push into Charlottesville when longtime solo attorney Elva Mason Holland joined the fold.

“This is very much a similar story,” Gavin said of Etkin.

Etkin, who earned his law degree from Emory University, handles a variety of business law issues for closely held corporations.

“Alan and I worked together for years. He was in house with a big client,” Gavin said. “The company he was with was sold and he was doing his own thing and I said, ‘Why don’t we tackle this together?’”

Gavin also liked the idea of having an office in Raleigh to tap into that area’s concentration of tech firms and startups, a ripe environment for the firm’s bread-and-butter IP practice.

“It’s a great market for tech and intellectual property,” she said.

The firm, founded about 15 years ago after Gavin’s stints at McGuireWoods and Reed Smith, now has an attorney headcount of seven.

Gavin said she’ll keep her eye out for future growth through similar deals with attorneys.

“I’m always plotting and planning,” she said. “I’m just going to continue to grow.”

Click here for the full article on Richmond BizSense

Gavin Law Offices expands into Charlottesville

A Richmond law firm that boasts clients in the entertainment industry has expanded its practice westward.

Gavin Law Office, which was founded locally in 2002, last month opened an office in Charlottesville.

The expansion was prompted by the addition of Elva Mason Holland, a Charlottesville attorney who had a longtime solo practice before joining Gavin.

Firm founder Pam Gavin said she’s had her eye on Holland for years.

“I’ve been trying to get her to work with me forever,” Gavin said. “She’s been solo. She needs more depth to the bench and I’m always interested in growing.”

Gavin said her firm’s practice and Holland’s book of business fit nicely together. Gavin Law represents musicians and a range of businesses, from startups up to large companies, in intellectual property matters. Holland represents talent in the entertainment business.

The new addition brings Gavin’s attorney headcount to six. Its local office is in Henrico County at 2229 Pump Road.

Holland has her bachelor’s and law degrees from UVA.

Gavin, also a UVA grad, began her career in bank marketing, before going back to law school at William & Mary. She started her own firm in 2004 after stints at McGuireWoods and Reed Smith.

Gavin has expanded the firm previously, including by adding a solo practioner in Bedford years back, before that attorney in that office decided to go back out on his own. She said this latest stop in Charlottesville won’t be the firm’s last.

“I’m always planning and plotting,” she said. “Continued expansion is on the horizon.”

Click here to read the full story in Richmond BizSense

New Online Registration Requirements for Designated Agents Under the Digital Millennium Copyright Act

The U.S. Copyright Office has developed a new electronic system for registering your designated agent under the Digital Millennium Copyright Act (“DMCA”).  As of December 2016, the U.S. Copyright Office has begun transitioning to an online registration system which allows online service providers to register a designated DMCA agent in a centralized public directory.  Any new registrations must be completed through this online system.  Most importantly, even if a service provider has previously registered its designated DMCA agent with the Copyright Office through the previous paper filing system, the service provider must re-register through the Copyright Office’s new online system before December 31, 2017.

Registering and maintaining a designated agent with the Copyright Office for copyright infringement takedown requests is necessary to obtain safe harbor protection under the DMCA.  Safe harbor protection can help shelter online service providers from potential copyright liability for any third party content posted on or transmitted via their websites.  In order to qualify for safe harbor protection under the DMCA, any online service provider that has a website or application which allows users to post, share, transmit, or comment on content must designate a Copyright agent.  To designate an agent, an online service provider must not only provide the contact information for the agent to the Copyright Office as part of its online public directory, but also make the contact information for the agent available to the public on the online service provider’s website so that users can notify the service provider of allegedly infringing material.

On the Copyright Office’s online registration system, online service providers must create an account and provide all necessary information regarding the service provider itself, the designated agent, and the associated websites.  Registration costs $6 per online service provider submission.

While the registration forms seem relatively simple, they raise additional issues that need to be considered carefully.  For example, related companies that are separate legal entities (parents, subsidiaries, etc.) and own related but separate websites must register separately.  An online service provider must also provide all alternate names under which the service provider is doing business, such as any of its associated website names and/or domains, software application names, or any other commonly used name that the public would be likely to use to search for the service provider’s designated agent.  In many cases a website owner can submit multiple websites/alternate names in one submission, but it depends on the specific circumstances.  The DMCA must be strictly complied with in order to receive full safe harbor protection, so it is essential that the registration forms are properly and fully completed.

Once the DMCA agent has been designated through the Copyright Office’s online system, online service providers must ensure that all of the registered information remains up to date.  Any failure to maintain accuracy in this information could result in losing the protection of the DMCA safe harbor provisions.  For example, if an online service provider’s designated agent changes, the service provider must make sure that the agent registration information is updated not only with the Copyright Office, but also in all places on the service provider’s website where the designated agent is identified.

Online service providers can amend their registrations at any time for an additional $6 per submission.  Additionally, the Copyright Offices requires online service providers to renew their agent designation at least every 3 years.  To do this, service providers must resubmit their registration before it expires, either with the same information if still accurate or with any updated information.  Renewals are also $6 per submission.  Any amendment filed will begin a new 3-year period before a renewal is due.

All online service providers should carefully review their current DMCA policies and materials and determine whether they may need assistance with drafting online DMCA policies for consumers, establishing and maintaining a designated agent with the Copyright Office, and/or drafting internal policies and procedures on reviewing and addressing DMCA takedown notices.  Online service providers do not want to miss out on compliance with the DMCA’s safe harbor provisions and potentially face copyright infringement liability for user content.  — Rina Van Orden