Hello Hello!
I have been somewhat absent on this blog but that is going to change. My goal is to recommit to posting weekly on this blog. Thank you for continuing to read and visit this blog.
Today I am going to discuss the importance of an effective website compliance program. Website owners should ensure employees and users of their websites are not exposing them or their companies to liability by posting items that are illegal, defamatory, or infringing. A perfect example of a website that did not have an effective website compliance program is Blogetery.com. Two weeks ago, web host, Burst.net, shut down the Blogetery website, a platform that hosted 70,000 blogs. Why? The FBI contacted Burst.net and informed the company that an FBI investigation revealed the site's server contained terrorist threats and Al-Queda activity. There was only one blog in the platform that engaged in the illegal activity, but Burst.net chose to shut down the entire site because it violated the Terms of Service Agreement. Blogetery.com could have avoided termination of its services/website if they were ensuring all blogs posted on the blog were complying with applicable laws and Terms of Service.
What does a website compliance program look like?
A website compliance program involves content scanning and analysis to help ensure compliance with privacy rules, industry regulations, (such as HIPAA) as well as internal Web quality standards such as defamatory statements and infringing activity. A company can hire one or two people dedicated to ensuring all content posted is in compliance or a company can purchase website compliance software that will do the job.
For example, a website such as Blogetery.com, which hosted 70,000 blogs, should install website compliance software to ensure compliance. It would take an army of individuals to effectively ensure a site that large was in compliance. However, a smaller website or blog, can simply have one person dedicated to identifying potential liable information and removing it immediately. This person may also have the authority to issue the offender a warning and/or permanently block the offender from the site.
There are several website compliance software programs available. They can be programmed and tailored to fit each website's needs. Here are a few:
IBM Rational Policy Tester
Trace Security, Website Compliance Audit
Does your website have some sort of compliance program or procedure in place?
Wednesday, July 28, 2010
Monday, July 12, 2010
Playboy Sues Artist Drake, Cash Money and Universal Music for Copyright Infringement
Drake, Cash Money, and Universal Music Group are currently being sued by Playboy Enterprises for copyright infringement. Playboy Enterprises claims Drake used a sample of their copyright protected song "Fallin' in Love" by Hamilton, Joe Frank, and Dennis/Reynoldstown in the beginning of the hit "The Best I Ever Had," without their express permission. I actually listened to "Fallin' in Love" and "The Best I Ever Had" and the tracks are very similar. You can listen to both songs here.
If Playboy's claims prove to be true, someone on Drake's team failed to properly receive clearance from Playboy to use the song. As I previously discussed on this blog, the process of clearing a song can be difficult. Usually, the producer or production team will use a sample of a song before it is actually cleared. Producers are not actually thinking about clearing songs while caught up in the creative process. The producer's legal team, agent or manager will contact the publisher or copyright owner to get permission to use the sample. However, getting clearance to use a song can take a while. Sometimes it takes months before there is a return call from the publisher or copyright owner. Also, there can be a break in negotiations regarding royalty payments. The publisher or copyright owner may demand royalty payments that the producer is not willing to pay. Or the copyright owner can simply refuse to allow the producer or artist to use the song. This happens often and can be very frustrating for artists.
As I previously discussed here on Black Web 2.0, a copyright owner can receive between $750 and $30,0000 per instance of copying against a defendant for copyright infringement. If the copyright owner can prove that the infringement was willful, i.e., the infringer had knowledge that the activity (copying) constituted infringement or recklessly disregarded the possibility of infringement, then the copyright owner can receive $150,000 per instance of copying. Playboy is claiming Drake and company willfully committed copyright infringement and are asking the court for an accounting of all of the profits Drake, Cash Money and Universal Music Group have made from the song. They are also requesting an injunction to stop the defendants from further playing or selling the song.
It is much easier to just ask permission.
If Playboy's claims prove to be true, someone on Drake's team failed to properly receive clearance from Playboy to use the song. As I previously discussed on this blog, the process of clearing a song can be difficult. Usually, the producer or production team will use a sample of a song before it is actually cleared. Producers are not actually thinking about clearing songs while caught up in the creative process. The producer's legal team, agent or manager will contact the publisher or copyright owner to get permission to use the sample. However, getting clearance to use a song can take a while. Sometimes it takes months before there is a return call from the publisher or copyright owner. Also, there can be a break in negotiations regarding royalty payments. The publisher or copyright owner may demand royalty payments that the producer is not willing to pay. Or the copyright owner can simply refuse to allow the producer or artist to use the song. This happens often and can be very frustrating for artists.
As I previously discussed here on Black Web 2.0, a copyright owner can receive between $750 and $30,0000 per instance of copying against a defendant for copyright infringement. If the copyright owner can prove that the infringement was willful, i.e., the infringer had knowledge that the activity (copying) constituted infringement or recklessly disregarded the possibility of infringement, then the copyright owner can receive $150,000 per instance of copying. Playboy is claiming Drake and company willfully committed copyright infringement and are asking the court for an accounting of all of the profits Drake, Cash Money and Universal Music Group have made from the song. They are also requesting an injunction to stop the defendants from further playing or selling the song.
It is much easier to just ask permission.
Tuesday, July 6, 2010
Rising Recording Artists and Producers: How to Properly Clear a Song?
I have been absent from this blog because I have been extremely busy working and writing for other publications and my own personal blog. But every week, visitors come to this blog to receive good information about Intellectual Property and I am grateful. I hope to update this blog more often. Thank you for continually reading and supporting this blog.
Popular recording artist Drake and his record labels Cash Money, Inc. and Universal Music Group, Inc. are currently being sued for copyright infringement for allegedly using a song as a sample without the copyright owner's express permission. If the allegations are proven true, I can only conclude that someone on Drake's production team either did not understand the process of clearing a song or simply did not follow through with the process. In my practice I have represented recording artist and producers and the clearance process can be one of frustration and confusion for an artist. Therefore it is important that artists' representatives are diligent in ensuring their clients are not committing infringement when creating art.
The clearance process is relatively simple but can be complex for numerous reasons. They are:
1. The copyright owner is not available,
2. The copyright owner refuses to give permission to use the work,
3. The copyright owner demands an excessive royalty,
4. The need to get permission from multiple copyright owners of one song.
For artists who are not represented, here are a few simple tips in clearing a song:
1. Search the U.S. Copyright Office database to locate the owner of a song. All copyright registrations require the owner to list their contact information.
2. If the copyright owner is not available, search the databases of ASCAP, BMI, or SESAC to properly locate the publisher or copyright owner.
3. Send a request to use the song and an offer of royalties in writing.
4. Follow-up the letter with a phone call.
5. Negotiate an acceptable royalty rate to use the song.
6. Get a licensing agreement in writing.
If the publisher or copyright owner refuses to negotiate or allow use of the song, the only remedy is to choose another song and get clearance. It is the copyright owner's right to allow use of their work as they see fit.
Popular recording artist Drake and his record labels Cash Money, Inc. and Universal Music Group, Inc. are currently being sued for copyright infringement for allegedly using a song as a sample without the copyright owner's express permission. If the allegations are proven true, I can only conclude that someone on Drake's production team either did not understand the process of clearing a song or simply did not follow through with the process. In my practice I have represented recording artist and producers and the clearance process can be one of frustration and confusion for an artist. Therefore it is important that artists' representatives are diligent in ensuring their clients are not committing infringement when creating art.
The clearance process is relatively simple but can be complex for numerous reasons. They are:
1. The copyright owner is not available,
2. The copyright owner refuses to give permission to use the work,
3. The copyright owner demands an excessive royalty,
4. The need to get permission from multiple copyright owners of one song.
For artists who are not represented, here are a few simple tips in clearing a song:
1. Search the U.S. Copyright Office database to locate the owner of a song. All copyright registrations require the owner to list their contact information.
2. If the copyright owner is not available, search the databases of ASCAP, BMI, or SESAC to properly locate the publisher or copyright owner.
3. Send a request to use the song and an offer of royalties in writing.
4. Follow-up the letter with a phone call.
5. Negotiate an acceptable royalty rate to use the song.
6. Get a licensing agreement in writing.
If the publisher or copyright owner refuses to negotiate or allow use of the song, the only remedy is to choose another song and get clearance. It is the copyright owner's right to allow use of their work as they see fit.
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