Guide Through the Legal Jungle

How the Ellen DeGeneres Show Rolls – An Example of Song Licenses Versus Sound Recording Licenses

If you watch the Ellen DeGeneres Show, you know that popular music plays an important role in the daily talk show. Ellen regularly dances from one set to another after her opening monologue. It turns out that the Ellen DeGeneres Show has not properly licensed the music, according to a lawsuit initiated earlier this month by the major record labels.

The lawsuit is a good example of one’s obligations to license the song versus one’s obligations to license the sound recordings. I often refer to understanding the song-sound recording distinction as step number one to understanding the music business. The pending lawsuit is all about sound recordings.

Licenses in the Songs

The Ellen DeGeneres Show producers are not required to directly obtain licenses for use of the songs. This is because license fees owed for songs should be paid through the agreements the television stations that broadcast the Ellen DeGeneres Show have with the performing rights organizations – ASCAP, BMI and SESAC.

Licenses in the Sound Recordings

The show’s producers are responsible for getting licenses from labels if they want to use recordings. These are the licenses the producers have neglected to obtain. According to the complaint, when asked why they had failed to get licenses for the use of the sound recordings, the show’s representatives responded that they “did not roll that way”. Not the wisest response.

I predict a quick settlement with the Ellen DeGeneres Show paying license fees that are somewhat higher than fees they would have paid had they properly licensed the material.

Lawsuit Targets Lyric Download Sites

On August 24, 2009, several music publishers filed a copyright infringement lawsuit against LiveUniverse Inc., which operates LyricsDownload.com, CompleteAlbumLyrics.com, and lyricsandsongs.com, and Motive Force, which operates LyricWiki.org. Reportedly, this is the first lawsuit filed by music publishers for digital piracy of song lyrics.

Does the Music Industry Have a Legitimate Claim?

Yes! Posting and distributing lyrics without permission can be copyright infringement – as I explained in a previous blog post entitled Can You Post Lyrics on Your Website? A Few Services that Make It Legal. While quotes of a few lyrics on a fan site or music-related site might in certain circumstances qualify as a fair use or alternatively might escape the attention of music publishers, music publishers have recently taken action to clamp down on large-scale unauthorized distribution of song lyrics.

According to the complaint, LiveUniverse and Motive Force display lyrics on their own sites, distribute lyrics to other websites, and encourage their online visitors to upload additional lyrics. While neither LiveUniverse nor Motive Force charge for the distribution of lyrics, each monetizes the unauthorized lyrics by selling advertising on their respective websites.

Predictions

If the allegations in the music publishers’ complaint are true, I predict (i) LiveUniverse and Motive Force quickly signing up for licenses from the publishers or (ii) an eventual shutdown of the LiveUniverse and Motive Force lyric download sites. Music publishers participating in the lawsuit include Peermusic, Warner/Chappell, Bug Music, Inc., Windswept Holdings LLC and Hitco Music Publishing.