Download or stream a podcast today and it would not be uncommon to hear music, if only interstitially and in short segments. For the most part, however, those streams and downloads are not counted for the purposes of calculating and paying any royalties the music rights owner(s) might otherwise be due. Instead, most music used in podcasts today, where its licensed at all, is licensed on a royalty-free basis, often from stock houses or production-music catalogs, through a single, upfront payment that allows unlimited use of the music in podcast episodes for a specified period of time. As no backend royalties need to be paid, no effort is made to report back to the music rights owner how many times an episode is downloaded or streamed.
Now that the initial bloom has begun to come off the NFT rose, thorns are starting to poke through. Among the prickliest: legal uncertainty around NFT ownership and intellectual property rights; and enforcement of smart-contract based royalties. Last week, crypto merchant bank Galaxy released a report for which it surveyed the top 100 NFT collections by implied market capitalization (floor price X collection size) to determine how and to what extent the listed terms and conditions of sale convey ownership rights in the digital object represented by the NFT.
Many people in the music business are anxiously awaiting sales and streaming results from Beyoncé’s newest album “Renaissance,” released last week. As the Wall Street Journal reported Friday, fingers are crossed that Queen Bey can snap the recent streak of commercial and/or critical disappointments among recent releases from major artists, including Post Malone, Drake, Kendrick Lamar and even Adele, whose November release “30” fell well short of her previous record sales. Early signs were not encouraging.
This week’s e-news is chock full of headlines about Web3 and the metaverse thanks to the blossoming enthusiasm and optimism around those concepts within the music, movie and television industries, to say nothing of the game business. Yet for all the optimism, one theme that comes through many of the discussions is the difficulty and complexity of licensing copyrighted content for use in those applications. That’s particularly true of music, with its dual copyrights and multiple rights owners.
The U.S. Copyright Office last week released a report on copyright protections for press publishers and whether the U.S. should adopt additional digital protections similar to the “ancillary right” included in the European Union’s Directive on Copyright and Related Rights in the Digital Single Market (“EU Copyright Directive”), which is designed to empower publishers to demand payment for the aggregation and display their content online by the likes of Google and Facebook.
The Great Bored Ape NFT Theft Saga that temporarily derailed actor-producer Seth Green’s plan to cast his cartoon simian (BAYC #8398) in an animated series appears to have ended peacefully now that Green has agreed to pay nearly $300,000 for the safe return of the purloined primate. Why, exactly, the NFT’s adopted owner, DarkWing84, agreed to sell after rejecting previous offers is unclear. But the animated series project, presumably, can now proceed. While good news for Seth Green, the ape’s return does not really resolve the questions discussed here in a previous post concerning the relationship between NFTs and the IP rights associated with the assets to which they’re bound.
There is more to a Bored Ape Yacht Club NFT than merely an encrypted link to a JPEG image. According to the terms & conditions of acquiring an ape published by BAYC creator Yuga Labs, “Yuga Labs LLC grants you an unlimited, worldwide license to use, copy, and display the purchased Art for the purpose of creating derivative works based upon the Art (‘Commercial Use’).” That commercial-use license has been a key to the success of the BAYC brand. It has enabled an entire ecosystem of BAYC spinoffs and merchandise — derivative works — to flourish and greatly buoyed the value and price of the NFTs, at least until the recent market pullback.
Where do new IP franchises come from? Increasingly, they are coming out of podcast studios and other sources of non-music, or spoken-word audio. Time magazine recently compiled a list of 9 podcasts that have been turned into streaming TV shows, ranging from true crime series (The Shrink Next Door, Dirty John) to comedy (Bodega Boys) to ripped-from-the-headlines scandals ( The Dropout). The Wrap came up with a roster of 17 for a list published last June.
Amazon-owned Audible, which made its mark as a distributor of audiobooks, has lately been inking multi-year development deals with A-list Hollywood talent and music superstars for its Audible Originals, including with the likes of Kerry Washington, George Clooney, Charlamagne tha God and Queen Latifah.
Pretty remarkable series of rulings from a federal district court this week (h/t TorrentFreak) in a string of copyright infringement cases against a trio of allegedly illegal streaming sites. In three nearly identical rulings (see here, here and here), the Federal District Court for the Southern District of New York ordered the sites to cease operating and to each pay the plaintiffs $7.65 million in statutory damages related to 51 copyrighted works.
The music industry’s legacy of sloppy, archaic and indifferent data management, particularly with respect to who owns what, has proved a major liability in the age of streaming, when billions of individual transactions need to be tracked, reported and paid out on every day. But repeated efforts to improve the situation through data sharing and collaboration throughout the value chain have floundered, mostly on fears of loosing proprietary control and leverage.