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US Ninth Circuit court questions class action status of interesting performer rights case

By | Published on Tuesday 14 December 2021

Wolfgang's Vault

An interesting case testing performer approval rights under US law was in the Ninth Circuit appeals court last week, the specific dispute being whether a musician’s lawsuit against the sometime controversial Wolfgang’s Vault concert recordings website should be granted class action status.

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 year the companies behind Wolfgang’s Vault were ordered to pay damages.

Shortly after that musician Greg Kihn and his publishing company Rye Boy Music filed two lawsuits against the streaming site, both seeking class action status. The first relates to some of the song rights that Kihn controls, which he says Wolfgang’s Vault has been exploiting without the right licences. That lawsuit pretty much replicates the claims made in the earlier NMPA litigation.

However, the second relates to live recordings in the Wolfgang’s Vault archive on which Kihn performs. He doesn’t claim to own the rights in those recordings, but says that he never granted permission for his performances to be recorded in the first place, meaning his performer approval rights are being violated.

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”.

By seeking class action status, Kihn basically wants his lawsuit to also benefit any performers who appear on the Wolfgang’s Vault website who believe they never granted the required permissions for their live performances to be recorded.

However, lawyers for Wolfgang’s Vault have argued that because whether or not approvals were granted will be different for each musician and each performance, it’s all too complicated for this lawsuit to be a class action, because it would be hard to work out who qualified as a class member.

But, at the court where the case was originally filed, the judge did not concur. That was on the basis 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. So while working out who is actually due damages might be a little bit complicated, class membership is relatively easy to define.

Nevertheless, lawyers for Wolfgang’s Vault are now trying to have the Ninth Circuit rule that this lawsuit is not appropriate for class action status. And, according to Law360, at a hearing last week judges there did seem to raise some concerns about this case being a class action.

One judge told Kihn’s legal rep: “You may be correct, ultimately, that in any given case there wasn’t consent, but I’m trying to imagine the class-wide trial on that issue and having difficulty imaging how it would be fair to the defendants, to force them to defend against so many different claims in one consolidated proceeding”.

Another appeals judge noted that Kihn himself had had to remove some recordings in which he appears from his legal claim, because paperwork had been found showing the required approvals had been secured. Those related to recordings made for an old US radio show called ‘King Biscuit Flower Hour’.

Kihn’s rep countered that those recordings should be distinguished from the concert recordings on the Wolfgang’s Vault service, because they were radio programmes and therefore more like studio recordings. Except, the judge replied, they were actually recorded in theatres.

Questions were then raised about what the process was for securing approval. “In the case of a band, who would give consent? Does each individual band member have to give consent or does the lead do that?”, one judge queried.

It remains to be seen if Kihn performer rights case can now hold on to its class action status.