BMI Redux: BMI Seeks To Move To “Clarify” The DOJ Position On Partial Licenses

Posted in Copyrights, DOJ

As we have previously blogged, the Department of Justice (“DOJ”) rejected proposed modifications to the existing Broadcast Music, Inc. (“BMI”) and American Society of Composers, Authors and Publishers (“ASCAP”) consent decrees. Nor did the DOJ purport to change any of the existing interpretations of the decrees.

As we predicted, BMI and ASCAP are challenging the DOJ action. Continue Reading

DOJ Rejects Modifications of ASCAP, BMI Consent Decrees

Posted in Copyrights, DOJ

On August 4, 2016, the Department of Justice (“DOJ”) rejected changes to the 1941 consent decrees with ASCAP and BMI. These decrees have been in place since 1941, when the DOJ settled antitrust claims with ASCAP and BMI relating to joint licensing of competing songs. The American Society of Composers, Authors and Publishers (“ASCAP”) and Broadcast Music, Inc. (“BMI”) are “performing rights organizations” (PROs). PROs provide licenses to users (e.g., bar owners, television and radio stations, and internet music distributors) that allow them to publicly perform the millions of songs of the PROs of songwriter and music publisher members, without resorting to individualized licensing determinations or negotiations. But because a blanket license provides at a single price the rights to play many separately owned and competing songs, ASCAP and BMI have long raised antitrust concerns. Continue Reading

Second Circuit Revives Copyright Claims Against Sony and Ghostface Killah

Posted in Copyrights

In Urbont v. Sony Music Entertainment Inc., 15-1778, the Second Circuit recently revived claims against Sony and Ghostface Killah, holding that although third parties may raise a work for hire defense, here there were factual issues that precluded summary judgment. The Court affirmed, however, summary judgment on plaintiff’s state law claims as preempted by the Copyright Act. Continue Reading

The FTC Social Media Consent Order Against SmartClick

Posted in False Advertising

The FTC continues its efforts to combat deceptive social media advertising. Recently, the FTC brought an enforcement action against SmartClick Media LLC and its owner. The FTC alleged that SmartClick engaged in the following deceptive and misleading conduct:

(1)        operating a “Doctor Trusted” certification program under which “Doctor Trusted” seals were sold for use on websites that indicated to consumers that products were evaluated by doctors using their medical expertise although doctors they hired did nothing more than a superficial and cursory review of the products online; and

(2)        hosting websites that were formatted to appear as independent lifestyle blogs and health product review sites when they were in actuality paid promotions or placements.  Continue Reading

FTC Acts Against Warner Bros.’ YouTube Promotion Campaign

Posted in False Advertising

Last week, the FTC announced an agreement containing a consent order, subject to final approval, resolving its claims against Warner Bros. Home Entertainment Inc. (Warner Bros.) for the company’s misleading use of social media influencers to promote one of its video games before its official release in violation of Section 5(a) of the Federal Trade Commission Act. This represents another example in a series of recent enforcement actions brought by the FTC against companies for their misleading use of native advertising campaigns to promote, market and/or advertise their products. For example, the FTC brought an action against retailer Lord & Taylor for its alleged misleading and deceptive use of a native advertising campaign, utilizing Instagram fashion influencers and an online magazine to market−and ultimately sell-out−a dress from one of its fashion lines. Continue Reading

Second Circuit In Vimeo Narrows The Red Flag Knowledge and Willful Blindness Exceptions To DMCA Safe Harbors

Posted in Copyrights, DMCA

The Second Circuit recently decided Capitol Records, LLC, et al. v. Vimeo, LLC (2d Cir. June 16, 2016) (“Vimeo”), a landmark decision concerning the interpretation of the Digital Millennium Copyright Act of 1998 (the “DMCA”).  The DMCA gives qualifying internet service providers a safe harbor (protection) from copyright liability with respect to user-posted material.  In this case, Plaintiffs, a group of record labels and music publishers owning copyrights in sound recordings and musical compositions, brought suit against Vimeo, an internet service provider, which operates a website for the storage and exhibition of user-posted videos. Plaintiffs alleged that Vimeo was directly, contributorily and vicariously liable for the copyright infringements identified in approximately 200 videos. Vimeo, at 18. Continue Reading

The Importance of Being Earnest and Objectively Reasonable

Posted in Copyrights

Kirtsaeng v. John Wiley & Sons, Inc. continues to make controlling copyright law, visiting the U.S. Supreme Court for the second time on an issue of great importance to copyright owners and litigants. This time, the issued raised for consideration was whether the lower court properly exercised its discretion in denying a $2 million fee application by Kirtsaeng who had been the prevailing party on the novel and, at that time, undecided issue of copyright law raised before the U.S. Supreme Court the first go-around – of whether the first sale-doctrine applied to works manufactured abroad.  Continue Reading

Ninth Circuit “Strikes A Pose” For Madonna And Music Sampling In “Vogue” Copyright Dispute

Posted in Copyrights

In a copyright decision that rocks the music industry and splits from the Sixth Circuit, the Ninth Circuit recently held that Madonna’s mega-hit “Vogue” did not violate copyright rights by sampling a 0.23-second horns segment of the 1980’s song  “Love Break.” In VMG Salsoul v. Ciccone, the divided appellate court affirmed the Central District of California’s ruling that “de minimis” copying does not constitute copyright infringement, even if the plaintiff proves actual copying.

Applying this standard, and after listening to the audio recordings, the majority agreed with the district court that Vogue did not infringe Love Break because an average audience would not “recognize the appropriation of the horn hit” in Madonna’s 1990’s dance song. The majority further reasoned that “[i]f the public does not recognize the appropriation, then the copier has not benefitted from the original artist’s expressive content” and, therefore, there is no infringement. Continue Reading

The FTC’s Analysis of Lord & Taylor’s Social Media Marketing Campaign

Posted in False Advertising

New ways of monetizing digital media has brought challenges in regulating advertising. The FTC has recently issued guidelines to provide businesses and advertisers with insights as to how to comply with the FTC Act. Despite the new context, the governing legal standard remains fact specific and quite familiar.

In December 2015, the FTC issued its “Enforcement Policy Statement on Deceptively Formatted Advertisements.” Among other things, the FTC concluded that “native advertising”, that is, online advertising which is often indistinguishable from non-commercial content such as news, feature articles and product reviews, has become a business model for companies to easily and inexpensively mask the signals consumers have come to recognize as advertising or promotional content in order to capture the attention of ad-avoiding consumers online. Consequently, the FTC’s deceptive format policy requires companies to clearly, conspicuously and contemporaneously disclose sponsorship of natively formatted ads. Although doing so may detract from the perceived effectiveness of the ads, ignoring the FTC’s guidance may result in enforcement actions that include cease and desist orders, fines, and injunctions. Continue Reading

The 2015 FTC Policy Statement: An Advertisement Can Be Deceptive Based On Formatting

Posted in False Advertising

Starting a few years ago, the FTC began increasing its efforts to address online disclosures in new media. For example, in 2013, the FTC issued .com Disclosures: How To Make Effective Disclosures in Digital Advertising, which provided new guidance for mobile and other online advertisers on how to make online disclosures clear and conspicuous to avoid deception.  In 2014, the FTC launched an initiative called Operation Full Disclosure to ensure that advertisers comply with federal law and avoid misleading consumers.  As part of that initiative, the FTC sent warning letters to more than 60 undisclosed companies in a wide range of industries that failed to make adequate disclosures in their television and print ads.  The inadequate disclosures for which warning letters were sent fell into many different categories, including where advertisements:

  • quoted a price for a product or service but did not disclose the conditions for obtaining that price;
  • did not adequately disclose an automatic billing feature;
  • claimed an accessory was included but did not explain that they first had to buy or obtain an additional product or service;
  • claimed a product was unique or superior in a product category but did not adequately disclose how that category was defined or the basis for the comparison;
  • promoted a “risk free” or “worry free” trial period without disclosing that consumers would have to pay for initial/return shipping; and
  • made absolute or otherwise broad statements having inadequate disclosure explaining exceptions or limitations.

Continue Reading