Tag Archives: Music

Recording artist Tim McGraw can still sing his song Everywhere, anytime.

In this action, Martinez claimed the Tim McGraw song Everywhere was a copy of his song Anytime, Anywhere, Amanda. The lower court dismissed his claim, and he appealed. The 6th Circuit upheld the dismissal as Martinez’s claims were based on unsupported “speculation or conjecture.” And while the news media broadcast headlines like, “Tim McGraw sued for $20 million,” and “McGraw’s Stolen Song” the facts of this case reveal the lengths people can go to try and make a claim.

In a copyright action the two things to prove are ownership of the original work, and that the work was copied. This is key, as there is no copying in an independent creation. If two artists write songs that are very similar, yet neither knows of the other’s work, then there is no copyright infringement. As rarely is someone caught outright, copying is generally proven by showing 1) access, and 2) substantial similarity between the two works.

While Martinez lost on multiple points, this case is an interesting relation of the extremes people will go to in trying to connect the dots. The district court found there was no substantial similarity between the works (upheld) but the key discussion relates to Martinez’s attempts to show access. Because McGraw could not have copied something he had never heard, Martinez had to show that somehow his song made it to McGraw (or his writers).

Martinez attempted to do so in a failed version of “seven degrees of separation.”   As a quick summary according to Martinez, he recording the song in July or August 1996. The song was never released, never offered for sale, no one had a print of the lyrics. It was performed only in South Texas. In the fall of 1996 he mailed a tape of the song to his friend Susan Tomac. Tomac says she then gave the tape to David Bartly, who had a photography studio in Tennessee. Bartly died in 2012, before he could be deposed for the case. (Note, the case was filed in 2005, so there was 7 years available to do this.) Martinez claims Bartly’s ex-wife states Bartley “could have” passed the tape on to Karen Phillips or maybe Lee Greenwood, but this is admittedly “guessing.” Martinez then claims both Bartley and Phillips passed the tape to Lee Greenwood, or Lee Greenwood’s attorney Ralph Gordon. Then somehow, since Greenwood and Reid (one of the authors of the Tim McGraw song) had met once 12 years prior, and not seen each other sense, the tape got back to Reid who is credited as an author of the McGraw song.

Disregarding the required element of time travel, the district court politely refers to this as “attenuated chains of hypothetical transmittals.” The 6th Circuit states, “the hypothetical transmittals fail to support a reasonable inference that any Defendant or associate of any Defendant received a copy of Anytime, much less that Wiseman or Reid, the alleged infringers, heard or had a reasonable opportunity to hear Anytime and copied it before they co-wrote Everywhere.”

As the court points out:

“[a]ccess may not be inferred through mere speculation or conjecture.” Blige, 558 F.3d at 493; see also Ellis, 177 F.3d at 506.

A plaintiff cannot rely on unsupported inferences to prove access. See e.g., Raum v. Norwood, 93 F. App’x 693, 696-97 (6th Cir. 2004); Ellis, 177 F.3d at 506.

The songs may be similar (the district court and Court of Appeals held they were not) but that is beside the point. A copyright claim requires someone copying. Two people with independent creation does not give rise to a copyright claim. And access needs to me more than a fanciful game of seven degrees of separation.   Though not discussed, under Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) this case approaches the standards for an award of attorney fees to McGraw.

Of course relevant headlines do not sell, so this all gets dumbed down to “Tim McGraw’s Stolen Song” for the masses.

Full text of 6th Circuit Opinion:   Martinez v. Tim McGraw, et al. 13-5796, 6th Cir., Sept. 15, 2014




Promoting a New Model For Music ?

Ted Gioia, who often writes of technology and arts, recently published and article in The Daily Beast advocating lessons the music industry can take from television. His key steps are: 1. Target adults, not kids; 2. Embrace complexity; 3. Improve the technology;  4. Resist tired formulas; and 5. Invest in talent and quality.  However, they key element advocated is the notion that the music industry needs to step back from free distribution and go to a subscription model, such as used by HBO or Netflix.    The article is worth reading: Five Lessons the Faltering Music Industry Could Learn From TV

While it may be an excellent thing to essentially say, “problems with the music industry can be solved if they make better music and sell it,” I think this misses a few elements of the big picture.  One:  Music has traditionally been “subscription.”  One hundred years ago music was sold as live entertainment, where people paid to see an opera or concert.  Then with the development of recorded medium it became subscribed to through the purchase of phonographs, then cassettes, and then CDs.  Broadcast mediums, such as radio have always been secondary in music and with some odd laws, the actual performers are often not paid royalties for FM broadcast. (This is somewhat tied to the reason Radio stations cannot post a schedule for songs to be played in advance.  Believe me, many radio stations know what songs will be played hours in advance, but they are limited to statements such as, “coming up in the next hour we will have…”) Radio was a free/advertising supported medium which promoted sales of product, such as CDs and was always a secondary source of music revenue.   Contrast television which was originally a free broadcast medium and the singular source for content for a long time was a free/advertising supported network broadcasts. Subscription television content and wide spread direct to consumer sales of video is relatively recent.

While it might be said that music should learn from television, what has happened is television has learned from music.   So where did music go wrong?  Simple:  Technology- namely bandwidth and file size.  A few years ago technology did not readily allow end users to freely copy video, while music could easily be compressed down with MP3 compression and an entire 50 minute album could be converted to a digital file that was compact and easy to transmit.   Where a 30 minute video was still too large to manage for many systems, recorded sound was easy.  However that has now changed as the average North American household now was the bandwidth for bi-lateral live streaming of video and computers can readily manage video compression.  As a result we are now seeing instances where programs such as Game of Thrones are being watched by more people who download it for free through BitTorrent than subscribe to the content provider.

Music might need to learn something from television, but television needs to pay attention to what happened to the music industry. How we monetize content, wether video or audio is changing.

Danzig / The Misfits – Claims dismissed

On August 6, Judge Klausner dismissed Glenn Danzig, The Misfits former front man’s claims against his former bandmate Caiafa (Jerry Only) regarding licensing and sales of band related merchandise.

This was not the first suit between the parties. A 1992 suit was settled in 1994. “The 1994 Agreement contained a paragraph entitled “Merchandising” that provided that Plaintiff and Caiafa would share ownership of The Misfits’ name, trademarks, logos, and artwork that existed during the Classic Misfits Era.”

Subsequent to the settlement Caiafa, as a joint owner of the name and logos, then filed a number of trademarks related to The Misfits name and graphics, and then went on to license merchandise to retailer Hot Topic.

Danzig brought a number of claims, including Lanham Act (Trademark), breach of contract, and interference with business advantage. The court found as customer Hot Topic clearly knew Danzig was not involved in their licensing, there could be no Lanham Act / misrepresentation claim.

Danzig’s claims are dismissed, but there is leave to amend as to the claims for breach of contract and interference with business advantage.  Still pending are Danzig’s separate cancelation proceedings before the USPTO.

An amended complaint, if filed, is due by August 15.


A copy of the order:  Danzig_031119462929