July 24, 2024 By: Craig Zawada, K.C.
If you are of a certain age, you will remember Def Leppard. Indeed, if you lived through the 80’s it was hard to avoid them. They remain one of the best-selling music artists of all time, with over 100 million albums sold worldwide, and were inducted into the Rock and Roll Hall of Fame. Their song catalog is still extremely valuable.
As is sometimes the case, the band butted heads with its record label, Universal. A core disagreement was over digital rights to the catalog, something that obviously had not been thought of back in the 80’s. Whether by foresight or good luck, Def Leppard’s contract with Universal, while silent on digital rights, allowed the band to veto new uses of their songs. As a bargaining chip, they barred uploading their music to digital services like Spotify and Apple Music.
Blocking their music from streaming sites hurt the band’s income, of course, but they came up with a clever solution. They re-recorded their hits, making them as close to the originals as possible, and released those themselves to streaming services. If you were an aficionado of the band, you might be able to tell the difference, but they were very close. The parties ultimately reached a settlement so the original versions could be uploaded.
I was reminded of this story when I read about The Unofficial Apple Weblog. TUAW was once a popular source of Apple news but was shut down in 2015. It is back now, although not in the way you would think.
TUAW is apparently now an AI-generated content factory supplying Apple-related “news.” According to the site’s About Us page, TUAW was acquired by Web Orange Limited in 2024 “without its original content [and their] mission has been rejuvenated to continue providing Apple enthusiasts and tech professionals with authoritative and engaging content.”
All fine, right? Not necessarily. The site has been accused of falsifying bios from authors who wrote for the site more than a decade ago. What is apparently happening is that the new company bought the domain and populated it with AI-generated articles, using bylines of actual, human authors from the past with altered bios and fake photos. I have no idea what contract the original authors had with the site for use of their names or biographies, but I doubt AI facsimiles would have been included in those agreements. As you can imagine, some of the authors are not happy about the hijacking of their names and reputations.
The Def Leppard and TUAW cases seem different, but they share the same issue: contracts for intellectual property that failed to anticipate and cover new technology. Neither song streaming or AI-generated content was on the horizon when the creators signed their deals, and even the publishers did not think to include these technologies in the agreements. They simply did not exist.
Despite this understandable blind spot, the situations are a good example of the need to look forward when signing any agreement dealing with IP rights. We cannot predict the future, of course, and who knows what inventions will arise in future years. But we are not completely without options.
The biggest one is to ensure that, as much as possible, the default rights and any “catch-all” category fall into your own bucket instead of the counter-party. Say you are an author, licensing your copyrights to a publisher. Your contract will cover the known and usual categories, like printed copies, internet, translations, adaptation to different media like movies, and so on. You will also want to retain rights for as much geographic territory as the other side will agree to. For example, planet Earth is a good starting point to extend your rights, but a surprising number of contracts refer to “our Galaxy” or even “the known Universe.” Whether you want to enforce rights against a plagiarist in Proxima Centauri is an open question, but it is fun to read in a contract.
Similarly, if you are a publisher obtaining such rights, you will want your scope to be as wide as possible. But what about new technology? Who owns the rights to that? A well-constructed contract will ensure that one or the other party retains any rights not explicitly covered in the agreement, instead of leaving it silent like the Def Leppard situation. For instance, a simple clause could proclaim that any rights not specifically included in the agreement will revert to the artist, or the publisher, depending on what is negotiated. The worst situation is when those rights are undefined, and it almost becomes a coin flip as to who owns them. Or requires expensive litigation.
This is not a common situation, obviously, but it is becoming more prevalent given the accelerating rate of new technology and different formats for IP. It highlights that contracts governing intellectual property, such as licensing agreements, are subject to a variety of considerations that do not apply to tangible property. You rarely have to worry about future situations when selling your car, or buying a house, but with the long timelines involved in IP exploitation, and new ways of profiting from it arising every day, it is a key concern.
Whether you are a multi-platinum rock star or simply writing articles for a blog, you should keep those concerns in mind. The Intellectual Property & Technology Group at Procido is familiar with these and related situations, and can help ensure you are aware of the risks present now or in the future. Feel free to reach out to us with your questions.
Disclaimer
This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice. Contact Procido LLP (www.procido.com) if you require legal advice on the topics discussed in this article.