The Second Circuit Appeals Court in the US has upheld a copyright infringement ruling against concert streaming service Wolfgang’s Vault. Which you might think would please the music publishers that sued the digital outfit, but no. Because the appeals court also upheld the unusually low damages pay out that the music rights owners were awarded.
Launched in 2003, Wolfgang’s Vault began life as an archive of concert recordings previously owned by promoter Bill Graham, although it later expanded its content sources. As that happened, and the channels through which the firm disseminated and monetised the live recordings expanded too, the company became somewhat controversial in music industry circles.
Various legal challenges were subsequently made by the music industry, with this particular legal battle organised by the US National Music Publishers Association in 2015 on behalf of various publishers which argued that their songs had been exploited by the concert streaming service without licence.
In 2018 a judge ruled that the publishers’ copyrights had indeed been infringed by Wolfgang’s Vault. What damages it should pay as a result was then considered by a jury in 2020, just at the COVID-19 pandemic was getting underway.
With US copyright cases, statutory damages can be as high as $150,000 per infringement which – given that the publishers had identified 197 infringed songs in their lawsuit – meant the damages bill stemming from this case could have been pretty damn high. However, the jurors opted for something much more modest, setting the total damages at just $189,500.
Disappointed with the unusually low damages, the publishers raised concerns that the jurors hadn’t properly considered the case, rushing to make a final decision in order to end the court proceedings because of rising concerns about COVID. They noted that one juror had specifically raised such concerns and that once deliberations began the jury took only one hour to reach a decision.
However, in November 2020, the judge overseeing the case said that – despite the COVID concerns, the speedy jury decision and the unusually low payout – he wasn’t convinced that there had been any “miscarriage of justice” in the damages decision. Though he did order Wolfgang’s Vault to pay the publishers’ legal bills, or at least $2 million of the £6 million in legal costs that the music firms said they’d incurred.
Following that decision, the dispute moved onto the Second Circuit. And, according to Billboard, last week it likewise concluded that – while Wolfgang’s Vault is liable for copyright infringement – there are no grounds to reverse the jury’s decision on damages.
“The publishers failed to persuasively draw any connection between the potential impact of the COVID pandemic and the specific damages awarded”, the appeals court concluded, “or explain why it would have been easier for a rushed jury to award damages on the lower side of the scale, as opposed to in the middle or on the higher end”.
Which is no fun at all for the publishers. And even less fun than that, the appeals court also overturned the decision regarding the concert streaming service making a contribution towards covering their legal fees. The music firms are yet to respond to any of that.
There was another interesting legal battle involving Wolfgang’s Vault alongside the NMPA-led litigation.
That was being pursued by musician Greg Kihn and focused on whether the performer rights of both him, and other musicians whose performances are available on the streaming service, had been infringed.
That was based on the allegation that those musicians had never granted permission for their live performances to be recorded and subsequently exploited.
Kihn’s lawsuit – for which he was seeking class action status – would have been an interesting test of performer rights under US copyright law. However, a deal was seemingly done and the litigation was dismissed earlier this year.
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