Music Publishers Win Suit Over Concert Recordings

MANHATTAN (CN) - The operator of a music-streaming website and YouTube channel failed to license hundreds of songs in its impressive collection of live concert recordings, a federal judge ruled Monday.

Clocking in at 54 heavily redacted pages, the decision by U.S. District Judge Edgardo Ramos notes that the websites founded by Norton LLC offer a catalog that “reads like a veritable who's who of rock, soul, and alternative music, containing the performances of The Rolling Stones, The Who, the Grateful Dead, Willie Nelson, Ray Charles, Aretha Franklin, and Carlos Santana, to name a few.”

Norton founder William Sagan acquired the collection in 2002 by buying the archives of the late concert promoter Bill Graham, but the music publishers EMI, Rodger & Hammerstein and others cried foul, saying that Norton’s exploitation of the recordings infringed their copyrights in approximately 200 songs.

Indeed, as noted in Monday’s ruling, the entity Bill Graham Archives “was careful to advise Norton LLC [in documenting the sale] that it was making no representations regarding BGA’s rights to record or exploit the musical works.”

Norton went on to acquire at least a dozen other collections of concert recordings compiled by other entities, including one man who used recording equipment in a truck parked outside concert venues to capture performances.

Over the years, Norton has made the video and audio recordings of these songs available for public consumption on websites like Wolfgangs.com and Daytrotter.com, as well as the YouTube channel Music Vault

“There is voluminous, undisputed record evidence demonstrating that defendants were on notice that the recordings they acquired lacked the consents and authorizations necessary to exploit them, both from performing artists and the copyright holders in the songs,” Ramos wrote.

Awarding the publishers summary judgment in his ruling, Ramos determined that they ability to prove infringement caused the burden to shift to Norton to show that it holds valid licenses.

“As an initial matter there is no dispute that defendants have not produced a single performance agreement or consent from any of the performing artists at issue,” the ruling states.

Ramos added that Norton likewise “never viewed any artist performance contracts authorizing the recording of those performances, nor were they made aware that such agreements existed.”

“Finally, there is undisputed evidence that the three performing artists whom defendants sought to depose - Keith Richards, David Byrne, and Michael Stipe - could not recall ever consenting to the recording of their performances,” the ruling states. “As a result, defendants have not sustained their burden of demonstrating that any of their recordings were lawfully fixed.”

The decision spurred Norton's attorneys to move for reconsideration Monday. Company spokesman Ronn Torossian said Norton has fulfilled all legal requirements for its collection of about 150,000 songs.

“Norton LLC procured all the necessary licenses to stream and download these songs and has been doing so since 2003,” Torossian added.

Touting deals with the three major music labels and almost 10,000 performers, Torossian said these agreements “state Norton LLC’s ownership interest in the recordings and validate Norton LLC’s rights to stream and download these recordings.”

Torossian also said the company was vindicated in the only other two lawsuits it has faced in the last 15 years regarding copyrights and intellectual property, taking home more than $1.5 million in expenses for Norton’s attorneys in the second case.

“This is one inning of a nine-inning game,” Torossian said in a statement.

Ramos meanwhile called the argument “totally without merit” that Norton’s recordings from before 1972, a key year in federal copyright law, were properly authorized. “As an initial matter it is defendants who bear the burden of proving that their licenses were valid,” the ruling states. “But more importantly, there is nothing for plaintiffs to refute: defendants point to no evidence that the sound recordings were fixed pursuant to an express license or valid compulsory license from the holders of copyrights in the musical works, i.e., plaintiffs or their predecessors. As such, defendants have failed to establish that they hold valid licenses for any of the pre-1972 recordings.”

Earlier in the ruling, Ramos noted that compulsory license come with limitations.

“In other words, the licensee cannot simply repackage and sell copies of another's sound recording,” he wrote.

Graham, the late concert promoter at issue, produced concerts for the Grateful Dead, Jefferson Airplane, Janis Joplin and other 1960s rock legends at his Fillmore concert venue in San Francisco, later known as the Fillmore West. He died in a helicopter crash on Oct. 25, 1991.

Attorneys for the publishers and Rolling Stones star Keith Richards did not immediately return requests for comment Tuesday.

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