Business News Digital Labels & Publishers Legal Top Stories

The company of legendary songwriter Harry Warren files its own lawsuit over illegal recordings on iTunes

By | Published on Monday 16 September 2019


The company that controls the copyrights of the late Harry Warren has filed its own lawsuit over allegations that Apple’s iTunes Store hosts a stack of unlicensed recordings of the legendary American songwriter’s works.

In a lawsuit that targets Apple, Sony’s distribution firm The Orchard and independent label Cleopatra Records, the tech giant is criticised for failing to employ “adequate human resources, screening mechanisms, or use of digital fingerprinting technology to detect unlawfully duplicated recordings in their stores”.

The new lawsuit filed by Four Jays Music Co follows on from litigation launched by the estate of Harold Arlen back in May. Four Jays and the company that controls the copyrights of another songwriter, Ray Henderson, had already been added as co-plaintiffs on the Arlen litigation, which lists a plethora of labels, distributors and digital platforms as defendants.

The new standalone lawsuit from Four Jays is more focused, putting the spotlight on recordings pushed into iTunes by Cleopatra via The Orchard.

Both lawsuits basically accuse the music distribution sector and digital music platforms of being very slack when it comes to ensuring that labels actually control the relevant master rights in the recordings they are pumping into download stores and streaming services. As a result, an assortment of companies – specifically Cleopatra in the new case – have been monetising other labels’ old recordings for years now, it is alleged.

The recordings that have been allegedly infringed are mainly controlled by the major record companies, having been originally released by labels that were subsequently acquired by one of the major music firms. It’s the accompanying song rights that the plaintiffs control.

In the US, the copying of songs is covered by a compulsory licence. It’s generally been deemed that with downloads it is the label’s responsibility to sort out the paperwork that goes with the compulsory licence. Once you shift over to streaming, that responsibility has generally fallen onto the digital services.

But, both the Arlen and Four Jays lawsuits point out, the compulsory licence can only be relied upon if a master recording has been properly licensed. If the recording rights are being infringed through the distribution of a track, so are the song rights.

The new lawsuit likens the conduct of Cleopatra and its business partners to “a person walking into Tower Records, off the street, with arms full of CDs and vinyl records and claiming to be the record label for Frank Sinatra, Louis Armstrong and Ella Fitzgerald”. And then the retailer allowing Cleopatra to stock those artist’s recordings of Warren’s songs alongside the official releases, but at a lower price.

The latter part of that comparison is key, because both lawsuits are keen to also hold the digital platforms and music distributors responsible for the infringement of the legendary songwriters’ copyrights, in addition to the labels who have been allegedly releasing other people’s recordings without licence.

The availability of infringing recordings is widespread on digital music platforms like iTunes, the new lawsuit argues, because of “a complete willingness by the digital music stores to seek popular and iconic recordings from any source, legitimate or not, provided they participate in sharing the proceeds”.

As for The Orchard, the lawsuit goes on, it did not “perform any investigation or due diligence to confirm that Cleopatra had authorisation to make, or authorise the making, of digital phonorecord deliveries of pirate recordings of the [plaintiff’s] compositions”. Moreover, the legal papers allege, the Sony distributor has had “knowledge” of the infringing conduct of Cleopatra for a number of years.

With all that in mind, Four Jays Music is seeking to full statutory damages in its case against Apple, The Orchard and Cleopatra, arguing that anything less “would encourage infringement, amount to a slap on the wrist and reward defendants for their wilful infringement on a grand scale”.

The defendants are yet to comment.