U.S. Ninth Circuit Court Questions Class Action Status of Interesting Performer Rights Case

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By Chris Cooke | Posted on Tuesday, December 14, 2021

An interesting case testing performers’ approval rights under US law unfolded in the Ninth Circuit Court of Appeals last week, with the specific dispute being whether a musician’s trial against Wolfgang’s Vault’s sometimes controversial concert recordings website should be granted class action status.

Wolfgang’s Vault began life as an archive of concert recordings previously owned by promoter Bill Graham, although it later expanded its sources of content. As this has happened, and the channels through which the company has released and monetized the live recordings have also grown, the company has become somewhat controversial in music circles.

Litigation ensued, with the National Music Publishers Association pursuing legal action on behalf of various publishers, including all the majors, in 2015. The publishers prevailed in that lawsuit in 2018 and last year, the companies behind Wolfgang’s Vault were ordered to pay damages.

Soon after, musician Greg Kihn and his publishing house Rye Boy Music filed two lawsuits against the streaming site, both seeking class action status. The first concerns some of the rights to the song that Kihn controls, which he says Wolfgang’s Vault exploited without the correct licenses. This lawsuit roughly replicates the claims made in the earlier NMPA litigation.

However, the second involves live recordings in the archives of Wolfgang’s Vault on which Kihn performs. He does not claim to own the rights to these recordings, but says he has never authorized the recording of his performances, which means his performer approval rights are violated.

Most copyright systems grant approval rights to performers, so anyone recording a performance must first obtain permission from everyone performing it.

In this area, US copyright law specifically states that “anyone, without the consent of the performer (s) involved, fixes the sounds, or sounds and images, of a live musical performance in a copy or such a performance from an unauthorized fixation, is [liable] in the same way as an infringer of copyright ”.

By seeking class action status, Kihn essentially wants his lawsuit to also benefit any performers who appear on the Wolfgang’s Vault website who believe they never granted the required permissions to their live performances are recorded.

However, lawyers for Wolfgang’s Vault have argued that, because the approvals granted or not will be different for every musician and every performance, it is far too complicated for this lawsuit to be a class action lawsuit, as it would be difficult to determine who s’ is qualified as a member of the group.

But, in the court where the case was initially filed, the judge did not give his consent. This was on the basis that, while it is the responsibility of Kihn and all other members of the performer class to prove that their performances were exploited by Wolfgang’s Vault, it is then up to the defendants to prove that permission was granted when each live recording was originally made. . So, while determining to whom damages are actually owed can be a bit complicated, class membership is relatively easy to define.

Nonetheless, the lawyers for Wolfgang’s Vault are now trying to have the Ninth Circuit rule that this lawsuit is not appropriate for class action status. And, according to Law360, during a hearing last week, the judges appeared concerned that this case was a class action lawsuit.

A judge told Kihn’s legal representative: “You may be right, in the end, that in any case there was no consent, but I’m trying to imagine the trial at the class wide on this issue and I find it hard to imagine how it would be fair to the defendants, to force them to defend themselves against so many different claims in a single joint proceeding ”.

Another appeals judge noted that Kihn himself had had to remove certain tapes in which he appears from his legal claim, as documents were found showing that the required approvals had been obtained. Those related to recordings made for a former American radio show called ‘King Biscuit Flower Hour’.

Kihn’s representative countered that these recordings should be distinguished from recordings of concerts on the Wolfgang’s Vault service, as they were radio broadcasts and therefore more studio recordings. Except, replied the judge, that they were in fact recorded in theaters.

Questions were then asked about the process for obtaining approval. “In the case of a group, who would give their consent? Does each individual group member have to give consent or does the leader do so? Asked a judge.

It remains to be seen whether the Kihn artist rights case can now retain its class action status.

MORE ABOUT: Greg Kihn | Rye Boy Music | Wolfgang’s Vault

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