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NY Chapter 9/21/16 Course Materials

Singled out:
does copyright law treat music differently?

When: September 21, 2016
Check-In 12pm, Lunch 12:30pm, Program 1-2pm

Where: The Princeton Club of New York, 15 West 43rd Street, New York, NY 10036

MATERIALS

  1. Robert Potter, Andrew Gerber, & Olivia Harris, "So What'cha Want?  The Need for Clarity in Copyright Infringement Cases Based on Digital Sampling," Bright Ideas Newsletter, Fall 2012, Vol. 21, No. 2 (reprinted with permission from the New York State Bar Association, One Elk Street, Albany, NY 12207)*
  2. Robert J. Bernstein & Robert W. Clarida, "Circuit Split Creates Uncertainty in Sampling of Sound Recordings, N.Y.L.J. (June 15, 2016)*
  3. Bridgeport Music, Inc. v. Dimension Films, 410 F. 3d 792 (6th Cir. 2005)
  4. VMG Salsoul, LLC v. Ciccone, 824 F. 3d 871 (9th Cir. 2016)
  5. Williams v. Bridgeport Music, Inc., No. LA CV13-06004-JAK (AGRx), 2015 WL 4479500 (C.D. Cal. July 14, 2015)
  6. Marya v. Warner/Chappell Music, Inc., 131 F. Supp. 3d 975 (C.D. Cal. 2015)
  7. Complaint, Griffin v. Sheeran, No. 1:16-cv-06309, 2016 WL 4204144 (S.D.N.Y. Aug. 9, 2016)*

 *printed copy will be provided.

Jacqueline CharlesworthJacqueline C. Charlesworth recently returned to New York City after serving as General Counsel and Associate Register of Copyrights at the U.S. Copyright Office.  As General Counsel, she had primary responsibility for the legal interpretation of the U.S. Copyright Act and related statutory and regulatory provisions.  In addition to supervising the litigation-related and rulemaking activities of the Office, she advised Congress, the Department of Justice, and other agencies on a wide range of copyright-related matters.  She also oversaw significant policy initiatives of the Office, including major studies on music licensing and small copyright claims.

Charlesworth joined the Copyright Office as Senior Counsel to the Register of Copyrights from a New York law firm in 2012 and was appointed General Counsel in 2013.  Before entering private practice, she held the position of Senior Vice President and General Counsel of the National Music Publishers’ Association (NMPA), representing music publishers and songwriters in litigation, regulatory and other matters.  Prior to that, she served as Senior Vice President and General Counsel of The Harry Fox Agency, Inc. (HFA), a leading music licensing organization.

In addition to litigating precedential copyright cases, Charlesworth handled significant transactional matters within the music industry.  Acting on behalf of publishers and songwriters, she worked with digital media companies and record labels to enable the launch of early interactive streaming services.  She also negotiated a long-term, multiparty agreement to improve licensing practices and the flow of royalties in the music industry. 

Charlesworth received her J.D. from Yale Law School and holds a B.A. in American Civilization from Brown University.  At law school, she served on the Executive Committee of The Yale Law Journal and was also a founding member of the Yale Journal of Law & Feminism.  Following law school, she clerked for Judge Miriam Goldman Cedarbaum of the Southern District of New York and Judge Betty B. Fletcher of the Ninth Circuit.


Richard BuschRichard S. Busch is a Partner in the Litigation Section of King & Ballow and is the Head of the Firm's Entertainment and Intellectual Property practice group. His practice areas include Litigation (State and Federal), Entertainment Litigation, Intellectual Property Litigation, and Commercial Litigation. Prior to joining the firm in 1991, Mr. Busch served as Law Clerk to the Honorable John V. Parker, Chief Judge of the United States District Court for the Middle District of Louisiana.

Mr. Busch received his law degree from Loyola University Law School where he was a member of the Loyola University Law Review and the Moot Court Board, serving as Spring National Team Coach. In addition, Mr. Busch received the American Jurisprudence Award for Secured Transactions and the Fishman Award as the Outstanding Commercial Law Student.

Mr. Busch has successfully represented music clients in numerous trial and appellate court cases. In the action styled F.B.T. Productions, LLC v. Aftermath Records, et al., Mr. Busch represented the Plaintiff, who discovered, produced, and co-wrote some of recording artist Eminem’s biggest hits, in the landmark case in which the United States Court of Appeals for the Ninth Circuit entered judgment in favor of F.B.T., finding the agreements between the record label Universal and digital download providers like iTunes, are licenses, and Eminem’s recording agreement entitles him and F.B.T. to 50 percent of Universal’s net receipts for sales by iTunes and other Eminem songs. The full decision may be found at 2010 U.S. App. LEXIS 18450 (9th Cir. Sept. 3, 2010). Mr. Busch is currently representing many other artists in similar lawsuits with similar claims.

Mr. Busch also represented Eminem’s music publisher, Eight Mile Style in a copyright infringement action against Apple, Inc. and Aftermath Records, in a trial involving whether Apple obtained the necessary publishing licenses allowing it to make Eminem songs available for digital download on iTunes. The trial settled after nearly a week of testimony.

Mr. Busch also represented Bridgeport Music, Inc. and Westbound Records, Inc. in a copyright infringement action against Bad Boy Records, the record label owned by Sean “Diddy” Combs and Universal Music in a trial that resulted in a $4.4 million jury award in favor of Bridgeport and Westbound, including a finding of willful copyright infringement against the Defendants, all arising from the "sampling" of Bridgeport and Westbound's music in the Notorious B.I.G. song Ready To Die. Mr. Busch also represented Bridgeport in a copyright infringement trial against Universal Music involving the unlawful copying of portions of the Bridgeport's song Atomic Dog by George Clinton. The jury returned a finding of willful copyright infringement against the Defendants in that action as well. The United States Court of Appeals for the Sixth Circuit Court later affirmed the decision, finding that copyright infringement may occur by the copying of a single common word such as "Dog," if the alleged infringer uses that word in the new composition in the same way as it was used in the original musical composition. The Sixth Circuit Court also found that Universal committed willful copyright infringement when it copied the signature phrase from Atomic Dog without permission, rejecting Universal's Fair Use, and De Minimis defenses. The full decision may be found at Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267 (6th Cir. 2009). Billboard Magazine identified this decision as one of the five most important judicial decisions of 2009, and noted that it will change the way the music industry operates.

Mr. Busch was also Lead Counsel in the action entitled Bridgeport Music, Inc., et al. v. Dimension Films, et. al., 2004 U.S. App. LEXIS 18810; 2004 FED App. 0297P (6th Cir.), where he successfully argued and obtained the landmark ruling by the United States Court of Appeals that there is no de minimis defense in a copyright infringement action to sampling or copying of a sound recording.

In the Fall of 2012, Mr. Busch obtained a Federal Court jury verdict in favor of his client, Alvert Music, for more than $2 million, together with a finding of willful copyright infringement against the Defendant record company, in a case involving an interplay of bankruptcy and copyright issues.

Most recently, Mr. Busch obtained a jury award of $7.4 million in favor of the heirs of Marvin Gaye against Pharrell Williams and Robin Thicke arising out of the unlawful copying of Marvin Gaye's classic hit Got to Give It Up by the song Blurred Lines.

In addition to copyright, intellectual property, and entertainment litigation, Mr. Busch has successfully represented numerous clients in Federal Court in commercial litigation cases across the country. Mr. Busch served as Lead Counsel in a bad faith insurance action against Travelers’ Insurance Company in the Northern District of California, in which the jury returned a verdict in favor of Mr. Busch's client, and against Travelers’ Insurance Company, including a punitive damage award of more than $4 million. Mr. Busch also obtained a punitive damage award in favor of his client in a malicious breach of contract action tried in Federal Court in the Northern District of Ohio. Mr. Busch also represented Tribune Company in a 600 defendant civil racketeering action in the Southern District of New York in which the defendants were accused of conspiring to file fraudulent workers' compensation claims. That case was settled prior to trial.

For his work on the F.B.T. case, and other litigation successes, including the recent Blurred Lines case, Mr. Busch was named one of the top 100 Entertainment Power Lawyers by The Hollywood Reporter magazine in the 2012, 2013, 2014 and 2015 issues and in Variety magazine's 2015 Power 50 list of the top 50 Entertainment Lawyers in the country. Mr. Busch was also named to Billboard magazine’s 2015 “Music's Most Powerful Attorneys,” where he was one of only four litigators named. He was also named to Billboard magazine’s 2012 Power 100 list of the most influential people in the music business. Mr. Busch has also been featured, on numerous occasions, as one of the best 150 lawyers in Tennessee in Business Tennessee magazine.

Mr. Busch is frequently asked to discuss legal issues on Fox Business News. He recently appeared to discuss the class action lawsuits filed against Manny Pacquiao, and others, related to the alleged non-disclosure of a shoulder injury prior to the fight against Floyd Mayweather. Mr. Busch also appeared on America’s Newsroom to discuss Bill Cosby’s 2005 admission to purchasing Quaaludes to drug women.


Lawrence Ferrara

Dr. Lawrence Ferrara is an author and a co-author of books and contributions to peer-reviewed journals on music theory and analysis, keyboard harmony and improvisation, philosophy of music, research methodologies, and other areas related to music. At NYU, Dr. Ferrara has taught undergraduate and graduate classes in music theory and analysis, music history, research methods in music, keyboard harmony and improvisation, philosophy of music and the arts, music performance practices, and music copyright. Dr. Ferrara was the Director of Music Performance Programs, and from 1985-1995, Director of Doctoral (Ph.D.) Studies in the Department of Music and Performing Arts. From 1995-2011, he was Chair of the Department, in 2006 he was named Director of Steinhardt Music and Performing Arts, and in 2011, he was named Director Emeritus. Dr. Ferrara is currently on the full-time faculty in music theory and music history.

Dr. Ferrara currently sits on the Editorial Board of the journal Music and Moving Image (University of Illinois Press) and on the board of Editorial Consultants for the journal Philosophy of Music Education Review (Indiana University Press). He was Associate Editor of the Journal of Qualitative Evaluation in the Arts, and a member of the editorial board for the New York University Education Quarterly. He was a co-P.I. on federal and foundation grants for research in performing arts medicine and Vice President and co-founder of a non-profit federation of physicians and artists fostering research that bridges the arts to medicine. Dr. Ferrara was a winner of a Presidential Fellowship and the Daniel E. Griffiths Award for research, the latter regarding his writing and research on Schopenhauer's philosophy of music (Cambridge University Press).

Dr. Ferrara is an active music copyright consultant for record, music publishing and motion picture companies, and individuals in the United States and abroad. He has been an invited guest lecturer in music copyright at Harvard University Law School in each of the last six years. He has also given several guest lectures in music copyright at Columbia University Law School. Dr. Ferrara was a panel moderator for The Copyright Society of the United States, and gave several peer-reviewed presentations regarding music copyright at meetings of the American Musicological Society.

As a music copyright consultant, Dr. Ferrara has provided musical analyses on behalf of artists and/or composers in the United States and Europe such as: Paul McCartney, Elton John, Billy Joel, Gloria Estefan, Jimmy Page, Robert Plant, Jay Z, Lady Gaga, will.i.am, Kanye West, Eminem, Andrew Lloyd Webber, Katy Perry, Nicki Minaj, Dr. Dre, (the late) Prince, Bruce Springsteen, Madonna, Ed Sheeran, Dr. Luke, Janet Jackson, David Guetta, Sean Combs, Ludacris, Mariah Carey, Britney Spears, (the late) Michael Jackson, Shakira, Trey Songz, Adam Young, Missy Elliott, 50 Cent, Timbaland, Wyclef Jean, (the late) James Brown, Pharrell Williams, Marc Anthony, Hillary Duff, (the late) Notrious B.I.G., DMX, T. I., Alicia Keys, Ice-T, (the late) Luther Vandross, Enrique Iglesias, Tom Petty, (the late) Tupac, Timbaland, Fergie, Brad Paisley, Toby Keith, Mary J. Blige, Taylor Swift, Carly Rae Jepsen, Don Henley, Usher, Drake, The-Dream, Jessie J, Bruno Mars, Justin Bieber, and Chris Brown as well as numerous groups such as Led Zeppelin, U2, The Black Eyed Peas, 3 Doors Down, Nirvana, Beastie Boys, Paramore, The White Stripes, The Black Keys, Nickelback, Daft Punk, Lil' Jon & The East Side Boyz, N'Sync, Filter, LMFAO, Wu Tang, Train, AC/DC, Dropkick Murphys, SWV, C & C Music Factory, Linkin Park, El Gran Combo, Motley Crue, The Ramones, War, and Green Day.

 


 

 

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