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A Warning About Derivative Rights and Digital Media

By Barry Skidelsky, Esq, EASL Chair

In one of the first nationally prominent lawsuits concerning podcasts, some of the world's leading record labels and music publishers recently sued the owner of pokernews.com for willful copyright infringement due to unauthorized use of music in the defendant's poker related podcasts. Additional causes of action were stated for unfair competition under state and common law.

The case serves as a wake-up call to all future and current owners of podcasts, apps, websites, and streaming services to realize that most digital media are "derivative works" involving multiple original works and underlying rights which must be "cleared" upfront. Failure to do so increases risks and costs.

In UMG v. iBus Media (case no. 2:18-cv-9709, U.S. District Court, Central District of California), the Complaint filed on November 16, 2018 (https://torrentfreak.com/images/rl-pokernews.pdf) alleges that (although discovery and further investigation may raise the numbers) 46 copyrighted songs were unlawfully used in more than 253 podcasts.

Examples listed include "Magic Carpet Ride" by Steppenwolf, "White Wedding" by Billy Idol, "Ain't No Love In The Heart Of The City" by Bobby Bland, "Every Little Thing She Does Is Magic" by The Police, "Pennies From Heaven" by Frank Sinatra, "Friends in Low Places" by Garth Brooks, "Money Maker" by Ludacris, "I Can" by Nas, and "Touch The Sky" by Kanye West. Kudos to you if you know all of those songs, as you obviously have eclectic tastes!

The Complaint seeks statutory damages (estimated to be nearly $7 Million, based on a maximum of $150,000 for each of the 46 infringed works), punitive damages, temporary and permanent injunctions, counsel fees, and other relief. Whether or not pokernews.com will ante up or fold as a result of this hand it has been dealt remains to be seen.

Meanwhile, if you would like to learn more about derivative rights, including practical pointers about the business and law relevant to adaptations of original works and underlying rights, please register and attend EASL's Annual Meeting (Tuesday, January 15, 2019) at the NYC Hilton, which will be followed by an off-site joint networking reception with NYSBA's IP section.

As always, registration and other info is available at www.nysba.org/easl. I look forward to seeing you soon. Happy holidays to one and all!

Barry Skidelsky (EASL's Chair) has experience as a musician, broadcaster, bankruptcy trustee, FCC trustee, arbitrator, and General Counsel of inter alia a publicly traded digital media/advertising technology company. With interests and expertise in media, entertainment, communications and technology, Barry provides diverse legal representation, counsel, co-counsel, consulting and related services.

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