Music Licensing Shop Harry Fox Agency Appears To Be Scrambling To Fix Its Failure To Properly License Songs
from the well,-look-at-that... dept
A couple of months ago, I wrote a long post trying to dig into the details of David Lowery's class action lawsuit against Spotify. In the end, while there was some question over whether or not streaming music services really need to get compulsory mechanical licenses for producing reproductions of songs, it seemed like the fact that such licenses are compulsory and can be obtained easily via having the Harry Fox Agency issue a "Notice of Intention" under Section 115, it seemed crazy to think that the various music services had not done that. In fact, we noted that the only way the lawsuits made any sense was if the various music services and HFA ignored this and didn't send out such NOIs. At the time, I noted that this would be a surprise, and it could mean the services were in deep trouble.Or perhaps not a surprise... and, yes, some folks may be in deep trouble. Beyond Lowery's lawsuit, a few other similar lawsuits have been filed. Earlier this month, Tim Geigner wrote about a very similar lawsuit filed by Yesh Music against Tidal. Of course, what didn't get as much attention is that Yesh filed very similar lawsuits against a bunch of other music services as well, including Google Music, Slacker, Line Corporation (which runs Mix Radio) and Guerva (which I think is a misspelling of the music site Guvera). Yesh also sued Deezer a few months ago.
One of the key questions that came up following the reporting on all of these cases is the Harry Fox Agency's role in all of this. HFA, an organization that was set up by the publishers themselves is supposed to be responsible for managing compulsory licensing for the vast majority (though not all) of popular songwriters (remember, HFA is about compositions/publishing, not sound recordings). But it's beginning to look seriously like HFA just fell asleep on the job and didn't bother to do the one key thing it was supposed to do for all these music services: file Section 115 NOIs.
Both David Lowery and another songwriter, Ari Herstand, have recently posted examples of HFA suddenly sending them NOIs that appear to be rushed and are showing up way after they're supposed to. I rarely agree with Lowery about anything, but it's seriously looking like HFA totally fucked up here. Big time. Here's the notice Lowery received:
Herstand just received a similarly late NOI from HFA for his music appearing on Apple Music. As he notes, his notice says the music should appear on Apple Music as of March 10th of 2016, but it's actually been there since Apple Music launched last summer. He also notes this is the first NOI he's ever received from HFA, while he has received plenty of NOIs from the much smaller HFA competitor Music Reports "on a regular basis."
So, given all that, it sure looks like HFA didn't do the one thing that it was supposed to be doing all along, and that's... going to be bad news for someone. The big question is who? All of the lawsuits have been against the various music services, but without being privy to the contracts between HFA and the music services themselves, I'd be shocked if they didn't include some sort of indemnity clauses, basically saying that if music isn't licensed because of HFA's own failures to do its job that any liability falls back on HFA.
And, if that's the case, HFA could be on the hook for a ton of copyright infringement. If it's true that it's basically been ignoring the fairly simple NOI process for a lot of artists, then that's going to be a major scandal -- but one that seems a lot harder to pin on the music services themselves. They went to HFA and hired the company to handle mechanical licenses. There may be more going on behind the scenes here, but at a first pass, based on what appears to be happening, HFA may be in some seriously deep trouble.
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Filed Under: ari herstand, copyright, david lowery, licensing, mechanical licenses, music, noi, notice of intent, section 115
Companies: apple, harry fox agency, hfa, spotify
Reader Comments
The First Word
“It is time that they clean their own house before just assigning blame to the platforms. Stop assuming that the platforms are evil and consider that the failure is on their side and might even be engaged in hiding they are inept to get more press for how evil the platforms are & demand more cash (that the artists magically still won't see).
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Hollywood accounting even on the page numbers?
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Perhaps it is time that artists actually demand that reform of these systems happen. No one else is coming to save you, but demanding that the systems work as advertised - cutting out a bunch of bloat & useless things would make people start to take you a bit more seriously. You abdicated your rights to these people who have monumentally failed to serve you and then attacked not those who screwed up but those who tried to play by the rules.
It is a new century, perhaps maybe force them to update the system to at least 1990 levels.
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Re:
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Re:
Frankly, NONE of the artists need the publishers anymore, and almost all of them would be better off without them.
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Re: Re:
It is time that they clean their own house before just assigning blame to the platforms. Stop assuming that the platforms are evil and consider that the failure is on their side and might even be engaged in hiding they are inept to get more press for how evil the platforms are & demand more cash (that the artists magically still won't see).
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Slight correction
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You had ONE JOB
Remind me again how simple and intuitive copyright law is, and how clearly if someone infringes on something, or doesn't pay the right person it had to have been deliberate, because of how simple the system is?
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Re: Re: Re:
I just said that the artists should take the power back from the publisher who are screwing them.
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really?
Spotify has MILLIONS of tracks, that then need to be matched to their underlying sound recordings (e.g., Sublime's "Summertime" recording has to be matched to the Gershwin composition).
So, creating these matches for lesser known tracks--likely 17 mil. of Spotify's 18 mil. tracks--is difficult. But before a match can even be created, the composition metadata needs to be complete and registered in HFA's system.
So, if composers/artists want to "take control," maybe they should ensure that their registrations are complete in HFA and the DSP's databases, and that the matches/links are correct in their systems. Remember, this is an unbelievable amount of metadata: often there are multiple songwriters, arguments over splits, incorrect data that won't match to the request from DSP.
Basically, chill out. It's getting better, but you can help rather than complain.
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Re: really?
17 million tracks didn't get created yesterday, so one might expect that perhaps all of the important metadata should already be compiled in a system that makes matching faster, we have these computing devices that makes this go very very fast. Streaming isn't THAT new of a thing, and one might think ownership details might be important to have sorted out.
Meanwhile there are artists screaming how they are being ripped off, loudly & often, making wild claims... and then it is discovered that the people on their side have been fucking around instead of doing the job.
Then there are those rights groups around the world who somehow can't figure out who to pay, while sitting on that cash and working on figuring out who to pay while the interest is earned.
Perhaps shaming the industry who screams how music is dying, artists aren't being paid, they are all being robbed for not actually having their work done before shifting the blame on those who are trying to play by the rules is helping.
Several labels employee companies to scan the net looking for infringement and collect payments from downloaders, yet can't seem to afford to fix what are clearly broken systems that would pay the artists.
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NOI
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Re: NOI
So for every 1 of your cents about 30 was taken by other parties.
https://www.theguardian.com/technology/2015/apr/03/how-much-musicians-make-spotify-itunes-yo utube#img-2
https://www.techdirt.com/articles/20150204/07310329906/yes-major-record-labels-are-keepin g-nearly-all-money-they-get-spotify-rather-than-giving-it-to-artists.shtml
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Stealing
to have my music removed. Harry fox sent me two letters of intent to obtain a license and when I asked for an explanation they simply said it was my personal responsibility to keep track of royalties! Really
What the fuck? How are you going to do that when this could be shared in thousands of mediums. They are liars and crooks who thrive on exploitation
and I've had it with their lack of desire to share any appreciable revenue with the artists that are making these fools money!
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ME TOO
Apparently, a man's copyright is the "Welcome mat " for thieves.
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I have received two NOIs from Harry Fox Agency. Spotify is listed on my website as well. HFA claims they owe me no money, yet I see mechanical and performance royalty pool listed on my monthly statements. I have had plays. I don't see any funds.
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