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New Wolfgang’s Vault case granted class action status

By | Published on Tuesday 14 April 2020

Wolfgang's Vault

Concert recordings website Wolfgang’s Vault is facing another lawsuit from the music community and last week a court in California granted that litigation class action status. Twice.

Wolfgang’s Vault began life as an archive of concert recordings previously owned by promoter Bill Graham, although it later expanded its content sources. As that happened, and the channels through which the firm disseminated and monetised the live recordings expanded too, the company became somewhat controversial in music circles.

Litigation followed, with the National Music Publishers Association pursuing a lawsuit on behalf of various publishers, including all the majors, back in 2015. The publishers prevailed in that lawsuit in 2018 and last month the companies behind Wolfgang’s Vault were ordered to pay $189,500 in damages.

The new lawsuit has been filed by musician Greg Kihn and his publishing company Rye Boy Music. It sought class action status to the benefit of two groups of people: composers whose songs have been distributed without licence and performers who appear in live recordings on the website.

The claim on behalf of the composers pretty much replicates the allegations made by the publishers in their lawsuit, ie that Wolfgang’s Vault reproduced songs controlled by any participating composers without securing the required licences.

However, the claim on behalf of the performers is more interesting, because it doesn’t say that Kihn et al have any stake in the sound recording copyrights being exploited by Wolfgang’s Vault. Rather, the claim is that performer rights were infringed when the recordings were made in the first place.

Most copyright systems provide approval rights for performers so that anyone recording a performance first needs to get permission from everyone performing.

In this domain, US copyright law specifically says that “anyone who, without the consent of the performer or performers involved, fixes the sounds, or sounds and images, of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorised fixation, shall be [liable] to the same extent as an infringer of copyright”.

In deciding whether to grant Kihn’s lawsuit class action status in relation to performers, the judge considered the ins and outs of enforcing this performer approval requirement – in particular regarding burden of proof.

She concluded that while it’s the responsibility of Kihn and any other members of the performer class to prove their performances have been exploited by Wolfgang’s Vault, it’s then for the defendants to prove that permission was granted when each live recording was originally made.

With class action status now approved, Kihn’s lawsuit can proceed.