'Over the Rainbow' composer's estate sues Apple & others over 'pirated' music sales

Posted:
in iPod + iTunes + AppleTV edited May 17
Apple and a large number of tech companies have become the subject of a new music lawsuit, with the estate of "The Wizard of Oz" track "Over the Rainbow" composer Harold Arlen accusing the firms of creating a "music piracy operation" that distributes unlicensed and unauthorized versions of copyrighted songs.




Filed in the US District Court of the Central District of California on May 9, the lawsuit from SA Music and Harold Arlen Trust has a lengthy list of defendants, headed up by Apple, Amazon, Google, Microsoft, and Pandora, followed by a large number of distributors and studios.

The suit centers around music licensing, a topic Apple is quite familiar with from assorted legal action against it over the years, but rather than accusations of failing to pay enough royalties or to properly license music, the suit takes a different approach. According to the filing, the music created by Arlen has been the subject of piracy.

Arlen is known for writing many well-known songs, including "Over the Rainbow" from the film "The Wizard of Oz," as well as a number of other tracks, recorded by list of prominent artists including Art Tatum, Ella Fitzgerald, Etta James, Frank Sinatra, Louis Armstrong, and Ray Charles. As the filing claims, "these monumental works of art are, quite literally, national treasures."

The accusation stems from a practice of failing to account for the ownership of music being submitted to music services, which due to a lack of proper clearance and licensing, is deemed to consist of "pirated recordings" by the plaintiff. The failure to obtain a license to authorize the reproduction, distribution, sale, or stream of the recordings is said to be an infringement on the composer's estate's rights.

The suit also insists some instances of the recordings being stolen from rightful licensees are quite blatant. In some cases, the album artwork provided in the allegedly unlicensed version is the same as the original from the licensed version, but cropped or altered to take away the logo of the record company.

An example from the lawsuit of a doctored album cover that removes the record label
An example from the lawsuit of a doctored album cover that removes the record label


Sold in the same online storefronts, the pirated versions could easily be confused for the legitimate editions, but can sometimes get the sale by severely undercutting the original. For example, the 1964 Ethel Ennis recording of "For Every Man There's a Woman" is sold by RCA Sony for $1.29 while the pirated Stardust Records version, complete with doctored album art, sells for $0.89.

The practice is not limited to just singles. Benny Goodman's 1955 album "Get Happy" sold by Capitol Records goes for $7.99 through Google Play and Amazon, while Pickwick Group Limited's unauthorized copy sells for $6.99.

"It is hard to imagine that a person walking into Tower Records, off the street, with arms full of CDs and vinyl records and claiming to be the record label for Frank Sinatra, Louis Armstrong and Ella Fitzgerald, could succeed in having that store sell their copies directly next to the same albums released by legendary record labels, Capitol, RCA and Columbia, and at a lower price," the suit asserts. "Yet, this exact practice occurs every day in the digital music business, where there is unlimited digital shelf space and a complete willingness by the digital music stores and services to seek popular and iconic recordings from any source, legitimate or not, provided they participate in sharing the proceeds."

While Apple and the other stores are not accused directly of making the copied versions, the sale of the unauthorized reproductions makes them complicit. The suit asserts "It is an infringement for which the Pirate Label, Distributor, and Online Defendants are jointly and severally liable."

Due to the sheer number of defendants, the lawsuit includes a total of 216 claims against companies for copyright infringement, with Apple identified as infringing in 39 instances. The high number is due to the combinations of labels, distributors, and storefronts the suit tries to cover.

At the end of the 148-page filing, there is a demand for a jury trial, requests to the court to declare there has been infringement, that each is willful, a permanent injunction barring continued infringement, an award of statutory damages to be determined by the jury, and reasonable attorney's fees.

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Comments

  • Reply 1 of 35
    icoco3icoco3 Posts: 1,459member
    How many times did they notify Apple of this infringement before filing the lawsuit??  There must be a process rights holders can follow at all music services.
    dysamorian2itivguychasmlongpath
  • Reply 2 of 35
    georgie01georgie01 Posts: 241member
    Sounds good to me. With new technology and new distribution there comes new responsibilities. Partially because in every possible way and in nearly every situation people will exploit the ‘system’ without regard for others. If things are difficult to keep track of then resources need to be properly allocated to develop a sufficient vetting method—if that can’t be accomplished then the business has no business being in business.
    frankiedysamoria
  • Reply 3 of 35
    kruegdudekruegdude Posts: 340member
    The defendant list seems to be rather short, for instance Spotify is not mentioned. One interesting attribute of the defendants seems to be that they are profitable. 
    tycho_macusern2itivguychasmlongpath
  • Reply 4 of 35
    bloggerblogbloggerblog Posts: 1,839member
    What a nerve! These are the same label companies that ripped off their artists and in many cases never paid them dime. Now they are crying for ambiguously being treated unfairly? I have zero sympathy for them and would love to see big companies rip them a new ahole. 
    bigtdsviclauyycMacPro
  • Reply 5 of 35
    What a nerve! These are the same label companies that ripped off their artists and in many cases never paid them dime. Now they are crying for ambiguously being treated unfairly? I have zero sympathy for them and would love to see big companies rip them a new ahole. 
    C'mon, read the article.  This isn't a suit by the record companies.  It's the estate of the songwriter.
    seanismorrisdysamorian2itivguychasmspheric
  • Reply 6 of 35
    leighrleighr Posts: 181member
    Surely the record companies mentioned, Stardust and Pickwick, are culpable. They would have signed off with the online storefronts stating that they legitimately licenced the music, thereby knowingly committing deceit. I would imagine that the shift record labels have no fixed address though, and so it’s easier to hit up the big music players for the money. 
    dysamorian2itivguy
  • Reply 7 of 35
    crowleycrowley Posts: 5,825member
    So Apple (and the others) aren't adequately checking that the publisher has the rights to the song that they put on Apple Music/iTunes?  

    Sounds like it's probably a difficult area to police, but if there are reasonable and/or established methods that Apple aren't using then it sounds like a legitimate complaint.
    frankiedysamoria
  • Reply 8 of 35
    spice-boyspice-boy Posts: 813member
    Stop defending Apple especially when they are wrong. Tech companies are entering waters they know little about and although not perhaps intentional Apple and others have not done their homework. Apple has no problem suing other companies when their toes are stepped on. 
    viclauyycdysamoria
  • Reply 9 of 35
    DAalsethDAalseth Posts: 614member
    Part of the problem is the murky world of who owns what. Somebody writes a song. They own it. They let someone record the song. Do they still own it, or the artist, or the record label? Depends on the contract and sometimes even the people involved don't know. I got flagged on a YouTube video once. I had used a piece of Royalty Free, Public Domain Creative Commons music. It turned out that the musician had the rights to his performance, but not to the original piece he had performed. I had to reedit the video to remove the background music. The theatres I work at buy the rights to the plays and music we put on. We can use it inside the theatre, but we are forbidden from recording it even for our private use, or even doing a live performance of a vignette outside the theatre. It's a bloody minefield. 
    edited May 17 icoco3n2itivguychasmlongpath
  • Reply 10 of 35
    sdw2001sdw2001 Posts: 17,035member
    DAalseth said:
    Part of the problem is the murky world of who owns what. Somebody writes a song. They own it. They let someone record the song. Do they still own it, or the artist, or the record label? Depends on the contract and sometimes even the people involved don't know. I got flagged on a YouTube video once. I had used a piece of Royalty Free, Public Domain Creative Commons music. It turned out that the musician had the rights to his performance, but not to the original piece he had performed. I had to reedit the video to remove the background music. The theatres I work at buys the rights to the plays and music we put on. We can use it inside the theatre, but we are forbidden from recording it even for our private use, or even doing a live performance of a vignette outside the theatre. It's a bloody minefield. 

    It is, indeed.  I'm a music educator.  Basically everything we do is technically a violation of copyright.  There are myriad standards for what is allowed under Fair Use, as well as grey areas where it depends who you ask.  It often comes down to a common sense judgement of "are we doing the right thing?" or "what is the likelihood anyone would be sued for this?  You can't ask copyright attorneys...they'll tell you everything is illegal.  At one point, the RIAA took the legal position that the act of importing a CD to a computer was a violation.  As district and state festivals, you have to have the physical band/chorus arrangements sitting on the stage if you use temporary copies (so students don't destroy originals).  
    DAalsethn2itivguy
  • Reply 11 of 35
    sdw2001sdw2001 Posts: 17,035member
    As a musician and educator, I had to re-read this article twice to figure out exactly that the complaint was about.  The short version seems to be that certain labels misrepresented their submissions to Apple et al, claiming they had rights they didn't have.   It seems to me that this is going to be exceptionally complicated.  I'd think you'd have to show that Apple and other service providers were legally required to verify ownership rights, and failed to do so to whatever legal standard applies (negligence? Intent?).  The copyright claim itself also has to be examined in each instance.  Does the estate actually retain ownership over the material the claim?  Did they surrender or sell any rights to these recordings via some previous agreement?  

    Just from a layperson's perspective, I think holding Apple and other services liable is going to be tough.  I have no idea what the legal standard for verification of rights would be, but I'd have to assume the labels had to attest to ownership when they submitted.  Is Apple expected to independently verify rights on every recording submitted? I can't imagine that would be viewed as reasonable under the law.  I can see the labels being held liable, but the services?  I doubt it.  
    DAalsethtycho_macusern2itivguy
  • Reply 12 of 35
    iyfcalviniyfcalvin Posts: 64member
    sdw2001 said:
    As a musician and educator, I had to re-read this article twice to figure out exactly that the complaint was about.  The short version seems to be that certain labels misrepresented their submissions to Apple et al, claiming they had rights they didn't have.   It seems to me that this is going to be exceptionally complicated.  I'd think you'd have to show that Apple and other service providers were legally required to verify ownership rights, and failed to do so to whatever legal standard applies (negligence? Intent?).  The copyright claim itself also has to be examined in each instance.  Does the estate actually retain ownership over the material the claim?  Did they surrender or sell any rights to these recordings via some previous agreement?  

    Just from a layperson's perspective, I think holding Apple and other services liable is going to be tough.  I have no idea what the legal standard for verification of rights would be, but I'd have to assume the labels had to attest to ownership when they submitted.  Is Apple expected to independently verify rights on every recording submitted? I can't imagine that would be viewed as reasonable under the law.  I can see the labels being held liable, but the services?  I doubt it.  
    You’re correct.  It’s as simple as providing proof of ownership prior to selling on iTunes. This has nothing to do with streaming copyright, only purchase of songs/albums. 
    n2itivguy
  • Reply 13 of 35
    dysamoriadysamoria Posts: 2,140member
    Reminds me of the “marketplace” on Amazon. Any seller can claim to be selling product that’s worth the money they charge, yet you’ll find scam products all over it, like “FireWire to USB adapters”, which are an impossible fantasy and may even DAMAGE your equipment if you try to use it. Reporting it to Amazon is nigh impossible and posting reviews that inform buyers will see said reviews deleted. On top of that, multiple “sellers” exist under the same scammer, and more will be created as needed when and if Amazon actually takes appropriate action.

    If this is how labels can sell on iTunes, then Apple needs to establish a better relationship with the recording industry to verify IP ownership, rather than rely on the honesty of so-called labels. A dead giveaway is when multiple “labels” claim the right to sell the same content. Most label contracts are exclusive.
  • Reply 14 of 35
    horvatichorvatic Posts: 128member
    I know one thing, Apple is very strict about music and totally against any kind of piracy. If the labels are doing it without Apple's knowledge let them pay.
  • Reply 15 of 35
    iyfcalviniyfcalvin Posts: 64member
    dysamoria said:
    Reminds me of the “marketplace” on Amazon. Any seller can claim to be selling product that’s worth the money they charge, yet you’ll find scam products all over it, like “FireWire to USB adapters”, which are an impossible fantasy and may even DAMAGE your equipment if you try to use it. Reporting it to Amazon is nigh impossible and posting reviews that inform buyers will see said reviews deleted. On top of that, multiple “sellers” exist under the same scammer, and more will be created as needed when and if Amazon actually takes appropriate action.

    If this is how labels can sell on iTunes, then Apple needs to establish a better relationship with the recording industry to verify IP ownership, rather than rely on the honesty of so-called labels. A dead giveaway is when multiple “labels” claim the right to sell the same content. Most label contracts are exclusive.
    Actually, Apple does have a good relationship with the major labels. Really, Apple needs to question if they see a duplicate selling, check to see which is authentic. 
  • Reply 16 of 35
    coolfactorcoolfactor Posts: 1,461member
    spice-boy said:
    Stop defending Apple especially when they are wrong. Tech companies are entering waters they know little about and although not perhaps intentional Apple and others have not done their homework. Apple has no problem suing other companies when their toes are stepped on. 

    You're joking right? Apple is largely responsible for fixing a huge problem in the music industry. Digital Piracy was rampant 10+ years ago, and Apple successfully helped to change consumer behaviours to adopt for-pay models for legitimately accessing digital music through iPod and iTunes Music Store. Music is so easy to access digitally now, and for free in many cases (ie. see YouTube).

    I think the problem is the sheer quantity of music these days and the difficulty policing it. That's not the same thing as Apple knowing little about what they are managing. It's just a big, big job! As long as they provide an avenue for copyright holders to make requests, then they've covered their bases.

  • Reply 17 of 35
    n2itivguyn2itivguy Posts: 57member
    If A has to check what B did, whom also has to check what C did, etc., then the problem is in trust and those whom violated said trust first should be held responsible. That’s really how it should work. It’s no wonder things continually get more expensive when we’re having multiple posts double-checking the previous ones. Doubling work exponentially. 
    edited May 17
  • Reply 18 of 35
    larz2112larz2112 Posts: 283member
    Seems like they have a legitimate gripe. And from what I've read, most of these companies that stream/sell digital music make rights holders jump through hoops in order to remove an unauthorized item, far more trouble than it took the criminal to post and sell it in the first place. That shouldn't be the case. Hence the lawsuit. It seems like Apple has at least removed the pirated copy of the song mentioned in the article. One down, thousands more to go I'm sure.
  • Reply 19 of 35
    StrangeDaysStrangeDays Posts: 7,569member
    Ah, perpetual copyright ownership by estates & trusts, with nary a public-domain death deadline in sight... How long do estates get to collect now? We can thank Disney for constantly having the public domain deadline pushed further and further back from the point of death.
    DAalsethdarkvader
  • Reply 20 of 35
    studiomusicstudiomusic Posts: 609member
    It will be interesting to see if they actually own the copyright to the versions of the songs they are suing about (the actual recordings). Back then most labels held the copyright to the recordings.

    They still could hold the copyright on the song publishing, which they would be paid compulsory licensing fees for, but they wouldn't be able to stop the selling of versions of the song. That's part of publishing - if you publish, anyone can remake it by just paying the license.

    If they indeed do own the original recordings and the songs (publishing) themselves, then more power to them!
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