Lawsuits Filed Against Three Radio Companies Alleging That They are Playing Global Music Rights Songwriters Without a License – Background for the GMR Claims
October 14, 2022
By: David Oxenford,
Wilkinson Barker Knauer LLP
Global Music Rights (GMR) has sued three radio groups for allegedly playing GMR catalog songs but not paying the associated public performance royalties to GMR. As we have written many times, GMR is a performing rights organization (a “PRO”) representing what they term in the complaints filed against these companies “an elite roster of just over 100 songwriters.” The complaints specifically note that the songwriters include Bruce Springsteen, Bruno Mars, Drake, Pharrell Williams, John Lennon and The Eagles. The full list of songwriters and songs represented by GMR is available on their website here. As these songwriters are no longer represented by ASCAP, BMI or SESAC, for a company to publicly perform any of these songwriters’ music, they either need a license from GMR or they need to directly license the music from the songwriters or their agents (or fit into one of the limited exemptions that we wrote about here, exceptions that would typically not cover commercial radio broadcasting).
The lawsuits seek $150,000 for each copyrighted work that was allegedly infringed – the maximum set out by the Copyright Act for “statutory damages,” i.e., damages that can be collected even without providing evidence of actual harm caused by the alleged copyright infringement. The allegations against one of the companies suggest that the company played over 100 GMR compositions more than 20,000 times without obtaining a license. While courts have discretion to order far lower statutory damages than those being sought here, even the threat of such damages has been enough to put many of the original file-sharing music sites out of business. Of course, in this case, these damages are being sought not from some company that provides unauthorized, unlimited downloads of copyrighted music, but from radio companies that presumably are already paying other performing rights organizations for the use of music.
The complaints allege that the defendant companies ignored repeated notices from GMR that they needed to have a license agreement with GMR (or otherwise obtain a license to use the music) in order to continue playing the GMR catalog songs. Many of these notices appear to be ones sent in connection with the interim licenses offered by GMR to commercial radio operators while GMR was litigating with Radio Music License Committee as to whether GMR should be regulated under antitrust laws (as are the other PROs), and the countersuit by GMR alleging that the RMLC constituted a buyer’s cartel that was illegal under the antitrust laws as it was negotiating prices jointly on behalf of many competing radio companies.
As we wrote earlier this year, RMLC and GMR announced a settlement of the litigation, contingent on enough radio companies agreeing to be bound by that settlement. In March, GMR announced that enough commercial radio stations had signed the GMR licensing agreement to allow the settlement of the RMLC/GMR litigation to become effective (see our article here). As we noted when the settlement was reached, commercial radio stations appeared to have few options with respect to the settlement. Either they signed it or they had to try to negotiate their own settlement with GMR, or they had to stop playing GMR music which, in many formats, is a difficult if not impossible task given the songwriters that GMR has signed who have full or partial copyrights in a wide variety of popular music (see our article here about how even a partial interest in a song’s copyright, what is referred to as a “fractional interest,” can give a PRO like GMR the ability to demand licensing fees when that song is performed publicly, including when it is broadcast on a radio station).
Once the agreement with the RMLC became effective, GMR announced that it was giving stations until March 31, 2022 to sign the agreement, or they would no longer have rights to play any of the music in which its songwriters have an interest. We understand that GMR has continued to reach out to stations to seek licenses even after that deadline.
These lawsuits seem to indicate that GMR has lost patience with stations that have not entered into agreements to play their music (or eliminated that music from their stations). Any commercial stations that have not entered into an agreement with GMR or otherwise taken action to avoid the need for that license should discuss this issue with their attorneys now to see what actions they can take to avoid potential liability later.
Note that stations that are licensed as noncommercial broadcasters have a different royalty scheme. Rates for the public performance rights for musical compositions for noncommercial over-the-air broadcasting are governed by the Copyright Royalty Board. We wrote about the last CRB decision on those rates here. The CRB is currently in the process of setting those rates for ASCAP, BMI, SESAC and GMR for the period 2023-2027. Settlement agreements have been submitted to the CRB for consideration which should resolve the case – and final rates for all PROs, including GMR, for over-the-air noncommercial broadcasting should be set soon.