On May 22, 2018, Allison Pietras and Christopher Cahill presented “Creditor Boot Camp,” an on-line webinar in the Legal Tuesdays Series sponsored by the Wisconsin Credit Association (see wcacredit.org). There are five remaining webinars in the Legal Tuesdays Series, covering, respectively: proofs of claim and claims trading (Sept. 11), dismissal and conversion of bankruptcy cases (Oct. 9), preference litigation (Nov. 13), fraudulent transfer litigation (Dec. 19), and equipment leasing (Feb. 12, 2019).
On Saturday, April 28, Lowis & Gellen’s Managing Partner, Jim Bream, was the closing speaker at the Internal Medicine Update Symposium held at Silver Cross Hospital in New Lenox. Jim’s presentation addressed “Pitfalls, Perils and Promising Possibilities of Current Communications Outside the Chart” for medical professionals. This engaging and highly relevant presentation is ideal for nursing staffs and medical staffs engaged in communications with colleagues and patients regarding patient care. If you or your organization might find this presentation of interest to your staff, please contact us at Lowis & Gellen.
L&G’s Andrea Kott and Patrick Viktora presented “Avoiding Harassment Claims in Your Practice” yesterday to a major Chicago hospital system. The presentation was designed to educate and remind healthcare providers of the importance of knowing what constitutes harassment in the work place, as well as provide guidance on how to avoid and protect from claims brought by patients and co-workers.
On March 21, 2018, Christopher Cahill moderated the live webinar “Purchase Order Finance”, co-produced by Financial Poise and the New York Institute of Credit. Purchase order finance can enable a supplier with limited liquidity to make and ship a substantial order to a retailer or reseller.
By Michael J. Weil
(Originally published in ISBA March 2018 Intellectual Property Newsletter)
On December 29, 2017 Wixen Music Publishing Inc. filed a lawsuit in California Federal Court which could impact millions of music fans in the U.S. and around the world. The complaint, lodged against the popular music service Spotify, alleges that Spotify has been streaming thousands of Wixen’s songs without permission. In response, Wixen seeks a staggering $1.6 Billion in monetary damages, in addition to injunctive relief. This is a significant development because Wixen is the exclusive licensee of several popular Spotify tracks including: “Free Fallin’” by Tom Petty, “Light My Fire” by the Doors, and “(Girl We Got a) Good Thing” by Weezer. Furthermore, Wixen also owns rights to songs by Steely Dan, Stevie Nicks and Neil Young, and administers “more than 50,000 songs written and/or owned by its more than 2,000 clients”. The publisher alleges that its songs were downloaded and streamed “billions of times” through Spotify’s Service.
Wixen’s complaint invokes parts of the United States Copyright Act. Under the Copyright Act, there are two separate copyrights inherent in every recorded song. First, there is a copyright in the sound recording (the original or “master recording”). Second, there is a copyright in the musical composition–for example, a song’s words and musical notes. Moreover, streaming services like Spotify are required to pay “mechanical royalties”. The mechanical royalties are covered through a mechanical license, which grants streaming services a broad license for a set rate. When applying for a mechanical license, the licensee is obligated to file a formal “notice of intent” or “NOI” with the Copyright Office. In this case, Wixen contends that Spotify did not obtain the required composition and mechanical licenses. Furthermore, Wixen states that Spotify did not publish a Notice of Intent.
The Wixen case is the latest in a recent line of lawsuits against Spotify. In the summer of 2017, a settlement in the class action case of Ferrick et.al. v. Spotify USA Inc. awarded over $43 million to song owners for past unauthorized uses. Additionally, Spotify had to pay the National Music Publishers’ Association roughly $25 million in a private settlement for similar infringement allegations. However, both of the settlement amounts fall well below the $1.6 Billion being requested by Wixen.
In addition to the money involved, the Wixen case is significant because it could be the last of its kind. Congress currently is evaluating a new law called the Music Modernization Act (“MMA”). Some music licensors fear that the Act will make it much harder to obtain restitution for copyright infringement: “If the Music Modernization Act passes the bill ‘would eliminate important legal remedies’ for any music publishing company’s lawsuits…filed after January 1st, 2018.” Conversely, proponents of the MMA say that the Act would create a much needed blanket license, along with a new agency and song database, aimed at modernizing America’s outdated music laws. For example, many of the laws governing United States music copyright were drafted in an era when phonographs were the predominant “music streaming” device. Accordingly, many legislators argue that the U.S.’s music laws are not suited to contemporary methods of music consumption—especially digital streaming services; as a result the bill has bipartisan support in Congress.
Finally, in addition to updating the copyright laws, the Music Modernization Act would require a change in controversial royalty rate setting practices. Currently, there is a labyrinthine method for calculating music royalty rates taking into account “service type”, like terrestrial radio, satellite radio, etc. as well as “type of copy” (ranging from a physical record to a ringtone). The result of this process is that digital forms of music cost the licensee multiple times more than physical forms. For example, a ringtone recently has been valued at 24 cents per song fragment in royalties while a record is $.091 per song or $.0175 per minute of playing time. The MMA’s supporters say that instead of having rigid rate setting based on copy and service type, the Act will open rates up to a “willing buyer/seller marketplace”.
Given these recent developments, 2018 looks to be a watershed year for music law. By the end of the year, music streaming services will likely have a clearer sense of the regulatory framework they must navigate. Moreover, if the MMA gets passed, the U.S. musical copyright laws will receive a long-overdue revamping. Overall, it will be intriguing to keep an eye on both Wixen and the MMA’s development in the months ahead.
Michael J. Weil is an associate and licensed patent attorney at Lowis & Gelien LLP in Chicago. Michael can be reached at email@example.com.
Christopher Cahill appeared on March 13, 2018 as a panelist on the live webinar Credit Insurance – 101, co-produced by Financial Poise and West LegalEdCenter. Chris spoke on how trade credit insurance interacts with bankruptcy law when non-paying United States customers become debtors.
We are currently hiring for the following positions. The full posting for each position is listed below:
If you are interested and qualified for any of these positons, please submit your resume and salary requirements to Sue at NewHires@lowis-gellen.com. Also, include the position title on the subject line and it is a good idea for you to mention your name in the cover email as well.
DIVERSITY AND INCLUSION
Lowis & Gellen aims to bring together a range of talents and skills of people who strive to work toward a common goal. Building a diverse workforce is smart business. Different backgrounds and perspectives lead to a variety of ideas, knowledge, and ways of doing things. By employing staff from various social and cultural backgrounds, we widen the range of perspectives, knowledge, and approaches from which decisions are made. Diversity and Inclusion permits us to understand and appreciate the differences of people from diverse perspectives. It is essential that we create an atmosphere that supports positive relationships and communications in which we can all grow and learn from each other. We are improving our own diversity and inclusion practices and are committed to doing everything possible to create the best environment for all of our employees by valuing and creating a fair and inclusive place to work.
Every employee should feel comfortable in our workplace, regardless of their sexual orientation or gender identity and expression. Lowis & Gellen is committed to creating and maintaining an open and supportive work atmosphere. This includes equal opportunity for development and advancement within the firm regardless of sexual orientation, gender identity or expression, and the equal provision of benefits to same and opposite sex partners or spouses.
M&A Attorney (Full time)
This job description is still being developed.
If you are an experienced M&A Attorney, please submit your resume and salary requirements to Sue at NewHires@lowis-gellen.com
Christopher Cahill authors and updates annually the following Practice Notes on Lexis Practice Advisor:
• Make-Whole Premiums in Bankruptcy Cases
• Understanding Adequate Protection
• Contractual Provisions to Effectively Forestall a Borrower’s Bankruptcy Case
• Borrower as a Single Purpose Entity
• Sale Leaseback of Real Property and Bankruptcy Recharacterization
• Bankruptcy Risks for Landlords When Tenants Go Bankrupt
• Bankruptcy Risks for Tenants When Landlords Go Bankrupt
• Bankruptcy Risks in Subleasing
• Claims for Attorney’s Fees in Bankruptcy
• Single Asset Real Estate Status
• When a Purchaser or Seller of Real Property Goes Bankrupt
• Bankruptcy Considerations in Owner-Contractor Agreements and Owner-Architect Agreements
• Bankruptcy Issues in Residential Real Property Transactions