Tag Archives: ruling


Devastating Decision by German Courts

A 19-year-long copyright suit filed by the German e-music pioneer band Kraftwerk for infringement against Sabrina Setlur, has been decided, and the result is not good news for the community of creators. Kraftwerk’s Ralf Huetter had previously obtained a court order to suppress Setlur’s 1997 song “Nur mir,” insisting that it contained a drum sequence looped from Kraftwerk’s 1977 “Metall auf Metall.”

The court found that sampling was a basis for, and helped create hip-hop music, and that if the sample’s effect on the rights holder is negligible, then artistic freedom should override the interest of the copyright owner. The German constitutional court further acknowledged sampling to be a “style-defining element” of hip-hop, and therefore overturned the previous court verdict that was in Kraftwerk’s favour.

It went on to note that imposing royalties on composers could be crippling, if copyright owners were allowed to demand any amount, or simply reject the usage request. The court held that composers should be allowed to create without any financial risks or restrictions to the creative process. Therefore, sampling would be permitted, if it is part of a new composition that does not stand in direct competition to the sampled work, and does not damage the copyright owner financially.

kraftwerkThe ruling, which sets a dangerous precedent for copyright owners worldwide, is interesting as it bastardized the 1967 Berne Convention three-step test, which states that a signatory country may allow an exception to the rules against reproduction only 1) in certain special cases, provided that 2) such reproduction does not conflict with a normal exploitation of the work, and 3) does not unreasonably prejudice the legitimate interests of the author. Certainly, one cannot argue that widespread sampling of music constitutes a “special case.” I, for one, disagree with the German court’s decision.

The Berne three-step test is widely referenced in other international agreements, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) Article 10, the WIPO Performances and Phonograms Treaty (WPPT), the EU Computer Programs Directive (Article 6(3)), the EU Database Directive (Article 6(3)), and the EU Copyright Directive (Article 5(5)). The test is applied to provide for exceptions to audiovisual recordings as well as literary works.

Update on the CBC Negotiations

During the last round of negotiations, the CFM bargaining team and the Canadian Broadcasting Corporation (CBC) negotiators, agreed to suspend bargaining and enter into a six-month extension of the current agreement. It was felt that more research was required to determine the direction, and forecasted amount of production planned by the CBC for the future, in order to properly structure language and fees.

In addition, the CFM felt that the extension would allow for some of the liberal government’s promised infusion of
$850 million to filter into the system, which would dramatically change the landscape in terms of the CBC’s vision of being a “content provider,” and allow for better adherence to the national broadcaster’s mandate. There will be more news on this at a later date.

Lancaster Symphony

Casting Off the Yoke of Misclassification

Jay Blumenthalby Jay Blumenthal, Director Symphonic Services Division

As announced in the May 2016 issue of the International Musician, the recent ruling by the US Court of Appeals for the District of Columbia Circuit to deny the Lancaster Symphony Orchestra’s petition for review and grant the National Labor Relations Board’s (NLRB’s) cross application for enforcement is indeed a very important ruling, especially for the Lancaster Symphony Orchestra musicians. This decision affirms the NLRB’s classification of Lancaster Symphony musicians as employees, not independent contractors as the Lancaster Symphony Orchestra management asserted. Nine years is a long time to wait to be allowed to bargain a union contract, but I expect it will certainly be worth the wait. 

Why was this outcome so important and why was it worth expending union resources to achieve this goal? I’m reminded of the repeating chant “The whole world is watching! The whole world is watching!”

While it may be an exaggeration to suggest that the whole world was watching this case, to be sure, many friends and foes of the labor movement were indeed watching. Our friends were hoping for a positive outcome for the Lancaster Symphony musicians because this case provides an opportunity for other musicians, and potentially other workers with similar circumstances, to finally cast off the yoke of misclassification. 

Musicians classified as employees are allowed to join a union and bargain collectively. Wages, working conditions, job security, grievance and arbitration, pension, health insurance, vacation, and leaves of absence are all “mandatory subjects of bargaining” between an employer and the union representing its employees. When workers are classified as employees rather than independent contractors, their employer is also obligated to pay its fair share of Social Security and other statutory employment taxes, rather than shifting the entire burden onto the musicians. And employees, but not independent contractors, are entitled to protection under state workers’ compensation and unemployment compensation laws.

The life of a symphonic musician tends to be challenging enough without being misclassified as an independent contractor. Anyone performing in an orchestra knows how preposterous it is to suggest they are anything but an employee. The employer hires and fires, tells musicians where to be and when to be there, what to wear, when they can leave the stage, and yes, even how musicians are to sit and act.

As the court pointed out, musicians “must not cross their legs, talk, or practice while the conductor is on the podium, or interfere with the concentration of other musicians.” And, in a description that surely strikes a chord with every symphonic musician, the court observed: “the Lancaster Orchestra’s conductor exercises virtually dictatorial authority over the manner in which the musicians play.”

Now, with union representation, the Lancaster Symphony musicians will for the first time have a meaningful voice to engage in dialogue with their employer about their wages, benefits, and working conditions. And as negotiations for a first collective bargaining agreement finally begin, the whole world—or at least the world of symphony orchestra musicians—will still be watching what unfolds in Lancaster.

Early on, the significance of this case and the far-reaching ramifications of the outcome were not lost on the AFM, which has been fully supportive of the Greater Lancaster Federation of Musicians, Local 294, and the musicians of the Lancaster Symphony. AFM General Counsel Jeff Freund and Trish Polach of Bredhoff & Kaiser in Washington, DC, ably represented the interests of Local 294 as intervenors, working closely with the NLRB to vindicate the rights of the musicians. They deserve our thanks and recognition for their great work on this case.

But at the end of the day, the musicians of the Lancaster Symphony Orchestra are deserving of the highest praise, for they are the ones who had the courage to stand up for themselves by organizing and voting for union representation. 

Bravissimi tutti! Let the negotiations begin!