Court Accepts Claim of SESAC's Alleged Anticompetitive Behavior

 

By Glenn Peoples, Nashville
for Billboard

SESAC won two favorable rulings by a district court in Pennsylvania last week, but still faces a charge of anti-competitive conduct by the Radio Music License Committee, an organization that represents the commercial radio stations in licensing matters.

 

In the June 26th ruling, the court threw out claims against SESAC for price fixing and group boycott/refusal to deal. The price fixing complaint alleged SESAC had agreements with its affiliates that formed a "hub-and-spoke conspiracy." However, the court concluded the RMLC "failed to prove the rim of a hub-and-spoke conspiracy by failing to plausibly allege agreements among SESAC’s affiliates. As the judge noted in the decision, the Sherman Act prohibits monopolistic power only if it's acquired through anticompetitive conduct.

 

But the court refused to grant SESAC's motion to dismiss a charge of anticompetitive behavior. The RMLC alleged SESAC has increased its prices 8% to 20% each year since 2009 without an increase in the size or popularity of its repertory. Unlike ASCAP and BMI, SESAC does not operate under a consent decree with the Department of Justice. As a result, SESAC licensees are not able to seek pricing relief in the rate court available to ASCAP and BMI licensees.

The court agreed with the RMLC's depiction of how SESAC obtained monopoly power through exclusionary conduct rather than "growth or development as a consequence of a superior product, business acumen, or historical accident." Instead, alleged the RMLC, SESAC obtained a "critical mass of must-have works," sold them exclusively in blanket licenses, discouraged direct licenses through rights withdrawals and obscured works in its catalog.

 

Writing about obscured works in SESAC's catalog, the court believed RMLC had adequately pleaded that SESAC's lack of transparency "exacerbates the exclusionary nature of its conduct by forcing radio stations to purchase the SESAC license even if they do not plan to perform the songs in SESAC's repertory for fear that they may unwittingly air copyrighted content.

 

The way SESAC sets prices continues unchanged while the case works its way through court. In December the court denied the RMLC's request to impose an injunction against SESAC rate hikes while the lawsuit plays out.

 

Two Philadelphia Law School Alums Make THR's '2014 Top 100 Power Attorneys List

by BACKLINE MAGAZINE STAFF

Patricia L. Glaser, Rutgers Law

David Lande, University of Penn Law

 

 

 

 

 

Earlier this month, The Hollywood Reporter (THR) announced their '2014 Top 100 Power Attorney’s' in the entertainment industry. It was no surprise that two Los Angeles based law schools took the number 1 and 2 spots again. UCLA boasted 19 top alums and USC had 16.

While two Philadelphia area law schools did not make the top ten, they still had respectable rankings.

Patricia Glaser, a Rutgers University Law School alum, ranked #32; and David Lande of The University of Pennsylvania Law School came in at #53.

Glaser is a Partner with Los Angeles firm, Glaser Weil Fink Jacobs Howard Avchen & Shapiro. She is also Chairperson for the firm’s litigation department. Glaser has handled clients such as Paula Deen, and currently represents former Disney President, David Neuman, in the Bryan Singer case. Ms. Glaser is also ranked as one of California's top business trial attorneys.

David Lande works with Ziffren Brittenham LLP, a transactional entertainment law firm that represents A-list entertainers and major corporations in the areas of motion pictures, television, music and multimedia. He represents artists such as Linkin Park, Alicia Keys and Shakira. This year, Lande helped auction the film rights to Jersey Boys, to producer, Graham King.

 

For a complete listing of THR’s Top 100 Power Attorneys for 2014, visit

The Hollywood Reporter

 

Does Background Music Require A Dramatic License?

By Brian Taylor Goldstein, Esq.


"I have written a one-man show. Do I need to get a dramatic license for background music?"
Just to make sure we’re all on the same page, let’s review:

In order for music to be “performed” (either live or via a recording) in a public place, there needs to be a “performance license.” Most often, these licenses are obtained from one of the performance rights organizations (ASACP, BMI or SESAC) and, most often, they are obtained by the theater, concert hall, or venue where the performance is taking place.

In order to perform music “dramatically”—that is, to use a composition as an integral part of a story or plot, or to interpret the composition dramatically, such as through the use of movement, costumes, and props—you must obtain a “dramatic license.” Most often, these licenses are obtained by the composer or producer of the dramatic work.

In short, you will always need a performance license to “perform” music. Whether or not you also need to obtain a “dramatic license” depends on the context of how you are using the composition. These contextual distinctions can be articulated as follows: if you plan to stand and perform, you only need a performance license. If, on the other hand, your performance involves sets and costumes and you will be performing the composition to help tell a story, develop a character, or interpret the composition, you will need both a dramatic license as well as a performance license.

In your case, your answer depends on what you mean by “background music.” If the music is being used purely to create a mood or theme and could easily be replaced with other music with a similar mood or theme (ie: “insert disco music here” or “play something peppy here”), then you only need a performance license. If, on the other hand, your show requires a specific work to be performed in the background at a specific time to help you dramatically convey a specific emotion or event in your narrative (ie: “Somewhere Over The Rainbow” plays in the background while you tell the story of the tornado that dropped a house on your sister), and the thought of replacing that work with anything else renders you heartsick and artistically impotent, then you need a dramatic license.

If you plan on re-recording the works (or recording your own performance), changing the orchestrations, or otherwise making any significant changes or adaptations other than those written by the composer, other licenses may be required as well. As a general rule of thumb, when using any creative material you did not create yourself, its always safest to ask first and use later.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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