Class Claims Major Music Retailers|Sell Downloads Without the Rights

MANHATTAN (CN) - The sellers of "almost all the downloaded music in the United States," including Apple, Amazon, Google and Microsoft, "accept and sell unlicensed music" from "music aggregators," cheating thousands of artists of royalties, a songwriter claims in a federal class action.

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Norman Blagman sued the four defendants named above, plus eMusic.com and Orchard Enterprises, alleging "massive and systematic" copyright violations.

Blagman claims he has been a successful songwriter since the 1950s. Elvis Presley recorded two of his songs, "Put the Blame on Me," and "Give me the Right," and one of his tunes was used in the movie "The Producers," according to the complaint. Los Lobos, the Belmonts and Tiny Tim also have performed his tunes.

He claims the defendants violated his copyright on the tune "Jazz is His Old Lady and My Old Man."

Blagman claims the retailer defendants are required by the Copyright Act and other laws "to obtain a mechanical license before reproducing and distributing copyrighted musical compositions.

And he claims: "Defendant Orchard and other music aggregators, who act as middlemen between the retailer defendants and the content providers, are required, whether under Section 115 of the Copyright Act or by the other means outlined above [in the complaint], to obtain a mechanical license before reproducing and distributing copyrighted musical compositions.

"None of the defendants, however, are meeting their statutory obligation to obtain mechanical licenses for all of the digital musical compositions they reproduce, distribute and sell online. Nor have they confirmed that all persons or entities who upload digital recordings have obtained the required mechanical licenses for the musical compositions embodied in those recordings.

"Instead, all the defendants are unlawfully copying and distributing plaintiff's copyrighted musical works (and the musical works of thousands of others) and profiting greatly from their illegal activities, all without plaintiff's authorization or permission."

Blagman describes defendant Orchard Enterprises as a digital music "aggregator" that "works with independent artists, labels and other content providers to distribute musical content online to digital music stores such as iTunes, Amazon MP3, Google Play, Zune and EMusic."

He claims that "digital music retailers do not require aggregators to provide proof of mechanical licenses for all the music they post for sale in their digital music stores."

"Distributors such as Orchard do not obtain mechanical licenses, or confirm that such licenses have been obtained, for all the music they distribute via online music stores."

Blagman claims: "Orchard admittedly does not obtain the required mechanical licenses for all the music it distributes. For example, in its 2008-2009 SEC filings, Orchard admitted that it has not obtained mechanical licenses (or independently confirmed that its clients have done so) for much of the music it distributes online. Rather, Orchard claimed that it administered mechanical royalties only to certain artists and labels: 'We could be liable for unpaid mechanical royalty obligations and bear liability for copyright infringement if our label clients fail to license and/or pay mechanical copyright royalties owed or if, where contractually obligated to do so, we fail to properly license and/or pay mechanical copyright royalties, which could have a negative effect on our business.'" (Italics, and boldface, in complaint.)

Citing his own, copyrighted tune, "Jazz is His Old Lady and My Old Man," Blagman claims that "Apple, Amazon, EMusic and Microsoft have all reproduced, redistributed and sold ... digital recordings of [the composition] ...in their online music stores as individual downloads or as part of various albums" and that "the digital recordings of Blagman's composition were duplicated and transmitted to Apple, Amazon, Google, Microsoft and EMusic by Orchard and/or other aggregators."

He seeks class certification, statutory damages, actual damages, costs and an injunction preventing.

Blagman is represented by Oren Giskan with Giskan Solotaroff Anderson and Stewart.

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