Legal Keynotes | 02
When Big Becomes Small

Good news for fans of tongue-twisters: recently, the Stowarzyszenie Artystów Wykonawców SAWP, a Polish collective management organization, submitted preliminary questions to the European Court of Justice. The defendant, E. spółka z ograniczoną odpowiedzialnością, takes the position that it does not need to share information about which broadcasts containing musical works it has aired, nor how much money was earned from them. Aside from the fact that Europe’s supply of vowels and consonants is steadily declining, this dispute is indicative of a larger problem within the European Union. Let me explain what’s going on by giving you a little context:

You may have already heard about the Atresmedia and Sena vs. Ziggo cases (and if you haven’t, you can conveniently find information about these cases on this website). These rulings are of great importance when it comes to collecting money earned from media music broadcasts. Media music is, of course, meant to be synched. The cunning lawyers at Spanish television giant Atresmedia argued that, because of this editing, no related right remains in the music, and that therefore no remuneration is owed for playing that music. The Atresmedia case made it all the way to the European Court of Justice, whose judgements carry great weight in Europe. It didn’t help that the judgment leaves much to be desired in terms of clarity.

Ziggo saw a perfect opportunity to secure a payout for their shareholders. Their position was that, based on the Atresmedia ruling, they were not obliged to pay Sena, the Dutch PRO, for synched music. Since 2024, Ziggo and Sena have been fighting like tigers over the right to claim remuneration.

Here you may start to see a trend: it is becoming increasingly difficult to retrieve the money you are owed from the administrative jungle. In the Netherlands, we feel it in the still-raging battle between Ziggo and Sena; in Poland it is felt by the collective management organizations; and in Spain it is felt by Atresmedia. No matter how large Europe is, the case law of the Court of Justice is felt in every corner. I’m willing to bet that, right now, some very clever lawyers are searching for reasons to avoid sharing information with collective management organizations.

Of course, I should mention that this story involves quite a bit of nuance (strictly speaking, it concerns interpreting European legislation alongside national legislation, and the interplay of EU law including case law within the national sphere), but as an artist, that nuance doesn’t help you very much. What matters to you is the money that gets collected. Fortunately, at Copyrightpower International, we have a small task force of tireless administrative tigers. Interested? Get in touch with us, and we can explore what we can achieve together!

Thanks for reading this article! The legal nuances run much deeper and unfortunately don’t all fit here, but luckily, that’s what legally inclined sharp minds are for. Questions? Comments? Panic? Send them my way: legal@copyrightpower.com

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Legal Keynotes | 01
Universal Disagreement

There’s nothing like being signed!! A healthy relationship between you and your publisher, label, and manager is essential for peace of mind. A strained relationship leaves marks on your career, and nothing strains relationships like money. That’s why three artists, Henk Westbroek, Arriën Molema (Room Eleven) and Marinus de Goederen (a balladeer), took their case to court. Their complaint? Their recording contracts didn’t mention anything about revenue from streams and downloads.

These days, it’s almost unthinkable for anything not to be connected to streams and downloads (I’m just about one step away from downloading a cup of coffee every morning). Many record contracts were signed in a time when streaming didn’t yet exist. Naturally, this leaves all parties scratching their heads: what should we do now? Do we renegotiate? Introduce a standard rate for all our artists? Wherever revenue flows, cracks begin to widen.

Universal chose the latter option. The three artists received a standard portion of streaming royalties, based on the remuneration for reproduction rights (which you might know better as “mechanical rights”). This remuneration is based on a clause that sets out the rate for “other exploitation.” The artists disagreed: they believed a different rate should apply and that the contracts were being interpreted incorrectly. Spoiler alert: the court sided against the artists.

There are quite a few legal intricacies tied to this ruling. For instance, it’s not entirely clear how streaming should be classified (is it a license? Is it mechanical?). What is clear is that the court doesn’t want to make a ruling on this point. Lobbying and debate about the precise qualification of streams has been ongoing for years, and a definitive ruling would have major consequences for the practice. But that issue stands apart from the question of whether the contract was applied correctly. Here, the artists come up empty-handed. Based on what the creator knew, could have known, or could have expected at the time of signing, the contract was neither unreasonably burdensome nor incorrectly applied. The artists also argued that they no longer perform and have therefore become more dependent on streaming.

When dealing with contracts like these, the court looks carefully at the artist’s position, weighing all relevant circumstances and reasoning from what is fair and reasonable. It may not always feel like it, but judges do take into account the vulnerable position of artists, who are often the weaker party. We saw something similar not too long ago in the Martin Garrix case. In this case, the court concluded that the contract was not misinterpreted and that the remuneration was not unreasonable. Even though the parties did not explicitly make a deal about streaming, the agreement was not unreasonable at the time it was signed. The streaming rate the artists receive is also in line with market standards. So while the artists do not necessarily benefit from these rates, they are not harmed either. The fact that the artists might have a stronger bargaining position today, and could perhaps negotiate a better deal, does not change the fact that the deal, with the knowledge available at the time, was a fair one.

This highlights a few important lessons: contracts are not assessed based on present-day circumstances, but on the standards that applied at the time of negotiation and signing (there are, of course, exceptions).

What have we learned?

• A new exploitation technique on the horizon can be a good reason to call your manager and ask whether it’s time to renegotiate;
• The fact that an artist is considered the weaker party does not mean every case will swing in your favor;
• Contracts are (almost) always evaluated based on what applied at the time of signing, not what the situation looks like today.

Link: Universal doesn’t have to increase royalty payout to three artists (Dutch)

Thanks for reading this article! The legal nuances run much deeper and unfortunately don’t all fit here, but luckily, that’s what legally inclined sharp minds are for. Questions? Comments? Panic? Send them my way: legal@copyrightpower.com

The post Universal Disagreement (column) appeared first on Copyright Power.