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Harold Arlen estate files new lawsuit against Apple over bootleg recordings

By Chris Cooke | Published on Wednesday 1 April 2020

The Harold Arlen estate may have recently dismissed its lawsuit against Apple over allegedly unlicensed recordings on its digital platforms, but – as predicted – that particular copyright dispute is far from over. Because the Harold Arlen estate has filed a new lawsuit against Apple over allegedly unlicensed recordings on its digital platforms.

Arlen wrote ‘Over The Rainbow’, ‘I’ve Got The World On A String’ and ‘Get Happy’, among many other famous works. His estate argues that an assortment of labels and distributors have uploaded bootleg versions of recordings of those songs to otherwise legitimate download stores and streaming services.

The Arlen estate is suing not as the owner of the recording rights in those tracks, but in relation to the accompanying song rights. Although the mechanical copying of songs is covered by a compulsory licence in the US – via which the Arlen estate would usually get paid its song royalties – that compulsory licence does not apply if a recording is unlicensed. So the digital delivery of such recordings would infringe the song copyrights too.

The estate has sued various digital platforms over this alleged infringement, as well as the labels accused of actually uploading the bootleg recordings and the distributors they utilise. Other estates have also joined some of those lawsuits, in particular the estates of Harry Warren and Ray Henderson.

The original Arlen estate lawsuit – from which various defendants had already been removed – was recently dismissed at the estate’s request. But that seems to have been a mere technicality, because litigation continues. For starters the three songwriter estates had already separately sued Google and Amazon in January. And now a new lawsuit has been filed in the Californian courts against Apple.

The new lawsuit also targets a British label called Adasam which, the estates argue, is selling, via iTunes, “recordings by virtually every well-known recording artist from the 1920s through the 1960s, including Frank Sinatra, Ella Fitzgerald, Miles Davis, Louis Armstrong, Billie Holiday, Mel Tormé, Ray Charles, Tony Bennett and Judy Garland”.

The extent of its apparent roster is proof, the new lawsuit goes on, that this is a bootleg operation, given there is no way an unknown record company with no online presence could have secured the digital rights to so many classic recordings, which are still also available on iTunes via the major labels that originally released them (usually at a higher price).

“The scope and flagrant nature of defendants’ piracy cannot be understated”, the lawsuit adds. Adasam is wilfully infringing “thousands” of copyrights, while Apple “did not perform any investigations or due diligence to confirm that Adasam had authorisation to reproduce, distribute, make or authorise the making of digital phonorecord deliveries” of these tracks.

With another lawsuit now on the pile, we await with interest to see what happens next in the various cases now being pursued by the estates of Arlen, Warren and Henderson.