While the recent trademark dispute between Sony Music and Ultra Music Publishing may be over, the separate copyright dispute continues, complete with the forthright language we’ve come to expect. That dispute, insists Ultra in its latest court filing, centres on “an international music industry giant that refuses to follow the law regarding copyrights and contracts”.
Instead of complying with its legal obligations, Ultra goes on, Sony Music “has resorted to false smears” and “mischaracterisations” and “other distractions”.
That refers to claims in the motion for dismissal Sony filed last month which said that Ultra’s copyright action was “an ill-conceived effort” to “retaliate” over the major’s trademark lawsuit. “Nothing could be further from the truth”, says Ultra’s new filing, adding, “this is a copyright lawsuit that does not involve trademarks or any sort of ‘revenge’”.
Sony used to be in business with Ultra founder Patrick Moxey after the major bought a stake in his Ultra Records label in 2012. The major then took complete ownership of the label in 2022 and Moxey ceased to be involved.
The separate Ultra Music Publishing company was never part of that deal, but continued to use the Ultra brand. After it took control of the label, Sony argued that it owned the Ultra trademark and the publisher would have to change its name. Moxey disagreed. Hence the trademark lawsuit, the outcome of which is that Ultra Music Publishing will have to change its name.
The copyright lawsuit filed late last year relates to Sony released recordings that contain compositions controlled by the Ultra publisher.
According to Ultra Music Publishing, its copyright dispute with Sony began with an audit of royalties that the record company owed the publisher for its use of Ultra published compositions. The audit highlighted both unpaid and underpaid royalties. On the back of that, Ultra says it told Sony it was no longer providing any licences to the major for the use of its compositions.
And yet, Ultra says, Sony continues to upload recordings containing Ultra compositions to the streaming services, as well as selling downloads of those recordings, and producing music videos in which the Ultra compositions feature. Without licences in place, Ultra says, that constitutes copyright infringement.
Sony, it adds, “routinely present themselves to the public as purported champions of intellectual property rights and crusaders against piracy. But the opposite is true”.
“This lawsuit is the inevitable result of Sony Music’s unabated, massive, ongoing and willful infringements” of Ultra’s publishing copyrights "for more than two years", the amended lawsuit Ultra filed yesterday continues. And, “the allegations in this complaint are substantiated by a voluminous evidentiary record of Sony Music’s unlawful acts” which Ultra “have carefully and meticulously collected”.
Interestingly, many of the allegedly unlicensed uses of Ultra’s compositions by Sony relate to activities where labels would often assume they were covered by a streaming platform’s licences, or licences issued to third parties by collecting societies, or - in the US - the compulsory licence that covers mechanical rights.
If this case actually gets to court, there could be some interesting discussions to be had as to whether or not that’s a safe assumption for labels to make.
In a footnote in its new filing, Ultra notes that Sony Music “has asserted that its conduct with respect to the Ultra compositions is ‘entirely consistent with the licensing practices of every other leading record label’”. But “not so” says the publisher.
Though the main argument against Sony’s “industry practice” claim is that, in this case, Ultra has proactively issued cease and desist notices in relation to its compositions and, “responsible major record labels do not have a practice of ignoring years of cease and desist letters asserting claims of massive copyright infringement”.
Sony’s motion for dismissal didn’t focus on the industry practice point too much. Instead it insisted that the original dispute stemming from the audit was “settled in principle years ago” and that Ultra’s copyright infringement claims were too generic - set out in a “slapdash manner” using “boilerplate language” - for the case to proceed. Plus, the real motivation of the copyright action was to gain “leverage” in the trademark dispute.
Needless to say, Ultra stands by all its claims against Sony in the amended lawsuit. Confident that the litigation will proceed, it says that, through this legal battle, Ultra will “establish that Sony Music is not above the law”. Indeed, the publisher “will hold Sony Music accountable for its copyright infringements and other harms it has caused” for Ultra Music Publishing and its songwriters.