Memphis Law Spring 2018

CROSSROADS

Music & the Law

SPRING/SUMMER 2018

M E M P H I S L AW M A G A Z I N E

CONTENTS 3

Dean’s Letter

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4

News + Events

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MLK50 Law Symposium: Where Do We Go From Here?

By Ryan Jones

The University of Memphis Cecil C. Humphreys School of Law, in partnership with the National Civil Rights Museum, presented the MLK50 Symposium: Where Do We Go From Here?, featuring keynote speaker the Hon. Eric H. Holder, 82nd Attorney General of the United States (2009-2015), with panel discussions on topics covering criminal justice, voting rights, persistent poverty and 21st century activism.

Student Profile: Hugh Cross

23 Alumni Profile

By Ryan Jones

The story of Memphis Law 3L Hugh Cross and how his law school journey has taken him from Memphis, to Los Angeles, to the set of a major network TV show, to the boardroom of an American corporate giant and back to Memphis again.

Tom Clary (JD ‘05) The Hon. Kathleen Gomes (JD ‘80) The Hon. Jennie D. Latta (JD ‘86) David Pool (JD ‘08) Richard Townley (JD ‘09) Jason Yasinsky (JD ‘10)

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Crossroads: Music & the Law

28 Alumni Notes

By Ryan Jones

30 Faculty Accomplishments

Streaming has changed the music industry in once unimaginable ways, with intellectual property, licensing, copyright, and technology all leading the way to the future. We take a look at these issues, as well as at how several Memphians are attempting to carve out a new path for Memphis in this new music industry landscape using IP and technology as their tools.

33 Faculty Op-Ed

Dean

Photography

Published By

Peter V. Letsou

Trey Clark

Executive Editor

Art Direction and Design

The University of Memphis Cecil C. Humphreys School of Law 1 North Front Street Memphis, TN 38103 (901) 678-2421 memphis.edu/law

Ryan Jones

Contributing Writers

Pictured on album artwork and cover

Archer Malmo

From Player Pianos to Satellite Radio: The Complex History of Music Licensing By Professor D.R. Jones

Professor D.R. Jones gives us a lesson on the complex history of music licensing through the years, with brief dives into specific cases and explanations of how we got to where we are today.

To submit story ideas, alumni updates, or for other ML related inquiries, please contact Executive Editor, Ryan Jones at rjones1@memphis.edu.

Prof. D.R. Jones Ryan Jones The University of Memphis does not discriminate against students, employees, or applicants for admission or employment on the basis of race, color, religion, creed, national origin, sex, sexual orientation, gender identity/expression, disability, age, status as a protected veteran, genetic information, or any other legally protected class with respect to all employment, programs and activities sponsored by the University of Memphis. The following person has been designated to handle inquiries regarding non-discrimination policies: Michael Washington, Director for Institutional Equity, mswshng1@memphis.edu, 156 Administration Building, 901.678.2799. The University of Memphis policy on nondiscrimination can be found at http://policies.memphis.edu/UM1381.htm. UOM724-FY1718-6M-EMPrinting

Message from the Dean

This issue of ML Magazine focuses on our musical legal community, and the Memphis music scene. But I’d like to use this Dean’s letter to celebrate Memphis Law’s unsung heroes — our exceptional staff members who work to serve our students.

It all starts with our Office of Admissions under the leadership of Dr. Sue Ann McClellan and Assistant Director Kara Bowen. Dr. McClellan has led our recruitment and admissions efforts for more than 20 years and, as you all know, her efforts have yielded remarkable students who have become outstanding lawyers. Even in this most difficult period for legal education, Dr. McClellan and her team are enjoying great success, with applications for the class that will enter in August up by 17% over last year and nonresident applications up by more than 100% since 2015. At the other end of the law school experience, we have Career Services under the direction of Assistant Dean Elizabeth Rudolph. Dean Rudolph and her staff guide and counsel our students throughout their three years at the law school and produce impressive outcomes for our graduates, with employment rates that place our law school among the top 1/3 in the nation.

DEAN PETER V. LETSOU

I’m also proud of the many offices and staff members at the law school devoted to helping our students succeed academically. Our academic success efforts are lead by Assistant Dean Meredith Aden, who works tirelessly with the goal of ensuring each student admitted to our law school has access to the skills and tools they need to complete our program, pass the bar, and become outstanding attorneys. We also have a Registrar’s Office, under the leadership of Ms. Cheryl Edwards, which is second

to none. Working with our new Associate Dean for Academic Affairs, Professor Kate Schaffzin, Ms. Edwards tackles the everchallenging task of producing schedules that enable our students to take the classes they need at the times they need them. She also records all grades, tracks graduation requirements, and certifies our graduates to take the bar examination, among many other tasks. No law school can achieve its mission without an exceptional library and, even more importantly, an exceptional library staff. And Memphis Law has both. Lead by Associate Dean for Information Resources and Law Library Director D.R. Jones and Assistant Directors Jan Stone and Lucinda Valero Rasch, our library puts students first by maintaining a collection that prepares them for practice and contributes to their success in law school. Last, but not least, we have key staff members in development, business affairs, and communications. Mr. Chris Whitehead serves as our Business Officer and plays a key role in keeping our law school on a sound financial footing. Mr. Archie Shelton, as Director of Development, serves our alumni and friends by helping them achieve their philanthropic objectives. And Director of Communications, Mr. Ryan Jones, focuses on ensuring alumni, students, prospective students, and the community know about the many accomplishments of our outstanding faculty and students.

We have many more staff members at the law school, and I wish I could write about the contributions of all of them, but space limitations prevent me from doing so. Still, I’d like to individually acknowledge and thank each staff member and invite you to visit our website to learn more about them: Howard Bailey, Deborah Harrison Barbee, Meghan Cullen, Rosalie Elia, Abby Lee Gardner, Josie Holland, Stephanie Hope, Andrew Hughes, Jamie Johnson, Karol Landers, LaVaire Lockhart, Sandra Love, Brandon Maas, Chesney McAfee, LaChina McKinney, Antonia Onidas, April Parker, Kesha Pritchard, Steve Richardson, Penny Rogers, Stephanie Baker Rolen, Lucas Cameron Vaughn, Brigid Welsh, and Brittany Williams as well as our dedicated Physical Plant and Custodial Department staff members. I am grateful for the tremendous support our staff has provided me since I became Dean in 2013, and I know they will continue to provide outstanding service with outstanding results in the years ahead! Cordially,

PET ER V. LETSO U

DEAN

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News + Events

Memphis Law Named BEST BUILDING

The University of Memphis Cecil C. Humphreys School of Law has been named the “Best Law School Building” by preLaw Magazine. This follows Memphis Law’s previous 2014 award for “Best Law School Facilities,” by the same publication. In assessing law schools around the country for this award, the magazine examined aesthetics, square footage per student, library hours, environmental sustainability features, technological features, and community and student-life options. They also expanded amenities such as dining options, neighborhood,

BEST

LAW SCHOOL BUILDINGS 2018

parking, lockers, and recreational opportunities.

2018 Law Review Symposium

THE AMERICAN ADDICTION: PATHWAYS TO ADDRESS THE OPIOID CRISIS This year’s Law Review Symposium, “The American Addiction: Pathways to Address the Opioid Crisis,” addressed America’s opioid overdose epidemic through a “pathways” approach, recognizing that the epidemic derives from separate, dueling sources — legal and illegal. It examined how each pathway offers opportunities to innovate and intervene where opioids intersect with the law. The legal pathway explored issues related to pharmaceutical manufacturing, healthcare providers, and patients. The illegal pathway examined legal issues related to drug imports, law enforcement, and the criminal justice system. The symposium culminated by addressing issues in the public health sphere. This year’s event was designed to empower attendees to channel their passion for change into meaningful legal and policy vehicles. 4

A diverse and dynamic roster of interdisciplinary scholars, policymakers, and practitioners took part and examined every event of opioid exposure along each pathway, then discussed how to leverage the law to prevent further escalation of the opioid epidemic. The symposium, which set new records for attendance, fundraising, and interest, offered CLE and CPH credits to attendees from both legal and medical professions. This year’s symposium was completely free to attend, thanks to the generosity of the University of Memphis Student Event Allocation Committee, Lakeside Behavioral Health System, Lewis Thomason, BankTennessee, The Frager Law Firm, P.C., Butler Snow LLP, and the Association for Women Attorneys.

NEW CONSORTIUM FELLOWS The law school welcomed two new Memphis Research Consortium Fellows this spring. Both Lucas Cameron Vaughn and LaChina McKinney began in January, with Lucas focusing his work primarily with the Children’s Defense Clinic and LaChina focusing on policy work.

FEDERALIST SOCIETY HOSTS FORMER FEDERAL ELECTION COMMISSION CHAIRMAN The Federalist Society presented “The Radicalism of Citizens United”, a discussion with former Federal Election Commission Chairman and Josiah H. Blackmore II/ Shirley M. Nault Professor of Law at Capital University Law School Bradley A. Smith in the spring semester. Mr. Smith discussed the consequences of the landmark Citizens United case as well as the future of campaign finance law.

BANKRUPTCY COURT OF APPEALS AT MEMPHIS LAW In February of this year, the Bankruptcy Appellate Panel for the United States Court of Appeals for the Sixth Circuit heard oral arguments in our Historic Courtroom. All students, faculty, and staff were invited to attend the arguments. The panel included Bankruptcy Court of Appeal Judges Humphrey, Opperman, and Wise.

DUBERSTEIN TEAM WINS FIRST PLACE The Memphis Law Duberstein team recently won first place in the Lloyd D. George Bankruptcy Competition, a regional competition for the Duberstein Bankruptcy Moot Court Competition. This competition was hosted by the William S. Boyd School of Law at the University of Nevada, Las Vegas. Memphis Law student Kelsey Keef also won the Best Oral Advocate Award. Congratulations to team members Patrick Treadwell, Tyler Tollison, Alex Anderson, Kelsey Keef, and Luke Cymbal; as well as coaches Meagan Jones and Adam Langley.

ALTERNATIVE SPRING BREAK 2018

Memphis Law’s Public Action Law Society (PALS) hosted the Ninth Annual Alternative Spring Break (ASB), Averting Crisis: Mental Health Interventions for Improving Our Justice System, in March. This student-run program aids low-income individuals in need of legal services and hosts students from across the country during spring break. Participation was record-breaking as 78 students from six different law schools took part in the week-long service project, with eight specialized areas of focus within the law. Students performed pro bono services in the areas of immigration law, family law, juvenile law, elder law, veterans’ aid, health law, and criminal justice. The eighth track, research and writing, focused on ASB’s annual theme. By the end of the week, over 2,300 hours of free legal services were provided to the Memphis community.

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LAW LIBRARY GIVES ACCESS TO NAACP & BLACK HISTORY PAPERS

PROFESSORS FRANK AND NEWMAN AT TEDX MEMPHIS

The law school’s library recently purchased two modules of the History Vault database that give our students, faculty, and staff access to two sets of historic information. The Black Freedom Struggle in the 20th Century and the NAACP Papers are now both free and accessible to our Memphis Law community.

Memphis Law professors Demetria Frank and John Newman participated in the TEDx Memphis earlier this semester at the Halloran Center in downtown Memphis. Prof. Newman was a part of the morning session. His talk, “Free: The World’s Most Dangerous Price,” dealt with the intersection of law, technology, and democracy. Prof. Frank participated in the afternoon session. Her talk, “We Are The Freedom Fighters: Prisoners and Free Speech,” focused on prisoner free speech.

BLSA ANNUAL CIVIL RIGHTS PANEL The Black Law Students Association (BLSA) hosted its annual Civil Rights Panel in February. The panel consisted of speakers reflecting on the Civil Rights Movement and its future. The program was moderated by Prof. Daniel Keel. Participating panelists included: Mike Cody, Esq., Burch Porter & Johnson; Walter Bailey, Esq.; Tami Sawyer, civil rights activist, educator, and founder of Take ’Em Down 901; Vikki Terry, Executive Director of NAACP Memphis Branch.

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MBA PROFESSIONALISM COMMITTEE PARTNERS WITH EXTERNSHIP COURSE

LAW FACULTY

Board Appointments Memphis Law professor Amy Campbell was named to the Board of Directors of the Common Table Health Alliance (CTHA), a community-based, multi-stakeholder, nonprofit regional healthcare improvement collaborative serving 1.3 million people in the Greater Memphis metropolitan area. Last semester, Memphis Law professor Boris Mamlyuk was elected to the executive board of the prestigious American Society of Comparative Law (ASCL). He now serves as the Society’s Information Officer. The ASCL is the nation’s premier learned society devoted to the comparative study of legal systems and traditions. Memphis Law professor and director of experiential learning Danny Schaffzin was elected to the position of vice president (2018 term) and president-elect (2019 term) of the Clinical Legal Education Association (CLEA).

The MBA Professionalism Committee recently partnered with the law school and professor Danny Schaffzin for a panel presentation to students enrolled in the law school’s externship course. The committee members shared invaluable information about topics including professional courtesy, career guidance, work-life balance, and lawyer mental health and wellness. Members of the professionalism committee who have presented to the externship course have included attorneys Amy J. Amundsen, David Bearman, Yvonne K. Chapman, Honorable Robert L. Childers, Dean DeCandia, James Duckworth, Sean Antone Hunt, Asia Diggs Meador, James R. Newsom III (Jim), Michael F. Rafferty, Earle J. Schwarz, Gary K. Smith, Bridgett Stigger, and Blanchard E. Tual.

News + Events

Memphis Law Alumni Chapter Hosts Record-Setting CLE at UofM Lambuth The University of Memphis Cecil C. Humphreys School of Law Alumni Chapter recently presented the inaugural Memphis Law Alumni Chapter CLE program at the University of Memphis Lambuth campus in March. The overwhelmingly successful program, entitled “Civil Litigation and Government Enforcement for the Tennessee Practitioner CLE,” was attended by more than 80 participants and convened a much-lauded group of panelists, including Todd Presnell (JD ’95), Bradley Arant Boult Cummings LLP, Nashville; D. Michael Dunavant, United States Attorney for the Western District of Tennessee; the Hon. Roger A. Page (JD ’84), Justice, Tennessee Supreme Court; the Hon. Brandon O. Gibson, Judge, Tennessee Court of

Appeals; the Hon. S. Thomas Anderson (JD ’79), Chief Judge, U.S. District Court, Western District of Tennessee. Additionally, the program was moderated by Memphis Law professor Demetria Frank. The CLE program was followed by a special reception in the Varnell-Jones Hall Lobby, where guests and participants saw more of the beautiful UofM Lambuth campus. This groundbreaking inaugural event would not have been possible without the leadership of Law Alumni Chapter board members Todd Presnell, Judge Christy Little, and incoming chapter president Ed Brundick, or without the invaluable assistance of Professor Frank and Alumni Association coordinator Marina Carrier.

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MLK50 SYMPOSIUM:

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n April 2, 2018, the University of Memphis Cecil C. Humphreys School of Law, in partnership with the National Civil Rights Museum, presented the MLK50 Symposium: Where Do We Go From Here?, featuring keynote speaker the Hon. Eric H. Holder, 82nd Attorney General of the United States (20092015); Partner, Covington & Burling LLP, at the historic Peabody Hotel in downtown Memphis.

Memphis Law led one day of the historic two-day symposium with panel discussions on topics covering criminal justice, voting rights, persistent poverty, and twenty first century activism.

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“We were thrilled about the overwhelming community interest and support that this symposium inspired,” said Dean Peter Letsou. “We’re hopeful that this symposium inspired the legal community — here in Memphis and around the world — to take action on the persistent injustices that Dr. King spent much of his life working to address.” The keynote luncheon also featured United States Senator Doug Jones (Alabama), who introduced his past friend and colleague, Mr. Holder, and shared some remarks of his own about his past work prosecuting two Ku Klux Klansmen responsible for the 1963 bombing of Birmingham’s 16th Street Baptist Church.

Where

Mr. Holder delved into the importance of the civil rights movement and Dr. King’s work here in Memphis. Following along with the overall theme of the event, he also went into detail concerning what the future holds and how we, as both a city and a country, can progress in the areas of importance addressed by Dr. King. Additionally, Mr. Holder convened a private, law-student only, event at the law school itself prior to the luncheon. Held in our Historic Courtroom, Mr. Holder addressed a capacity room of law students, giving them free reign to ask him whatever they wished. The open style Q&A resulted in some truly memorable and meaningful conversation amongst

Mr. Holder and our students, giving them a unique opportunity to engage conversationally with a former United States Attorney General. The luncheon and panel sessions of the symposium reached full capacity months in advance, with over 1000 guests attending the keynote luncheon, and more than 650 individuals taking part in the symposiums panel sessions throughout the day. Here is a review of the line-up of nationally renowned panelists and their respective panel topics.

Do We Go From Here? CRIMINAL JUSTICE

VOTING RIGHTS

Addressed policing in communities of color and contemporary penal policy, and grappled with the complex question of what policing and punishment should look like going forward.

Addressed current voting rights challenges and strategies for reform, whether through litigation, legislation, or mobilization.

PA N E L I S T S

ROY AUSTIN Partner, Harris, Wiltshire & Grannis LLP; former Deputy Assistant to President Barack Obama for the Office of Urban Affairs, Justice & Opportunity. TOUSSAINT LOSIER Assistant Professor, University of Massachusetts - Amherst College of Humanities & Fine Arts, W.E.B. Du Bois Department of Afro-American Studies. TRACEY MACLIN Professor of Law & Joseph Lipsitt Faculty Research Scholar, Boston University School of Law.

PA N E L I S T S

DEBO ADEGBILE Partner, Wilmer Cutler Pickering Hale and Dorr LLP; Past Senior Counsel to the Chairman of the U.S. Senate Judiciary Committee and Director of Litigation and Acting President for the NAACP Legal Defense and Educational Fund, Inc. RICHARD HASEN Chancellor's Professor of Law and Political Science, University of California – Irvine School of Law. SHERRILYN IFILL President and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc.

MARK OSLER Professor and Robert and Marion Short Distinguished Chair in Law, University of St. Thomas School of Law.

PAMALA KARLAN Kenneth and Harle Montgomery Professor of Public Interest Law, Co-Director, Supreme Court Litigation Clinic, Stanford Law School.

M O D E R AT O R

M O D E R AT O R

DEMETRIA FRANK Assistant Professor of Law, University of Memphis School of Law.

STEVE MULROY Professor of Law, University of Memphis School of Law.

CONFRONTING PERSISTENT POVERTY

Examined some of the contemporary areas where poverty impacts life chances for individuals. PA N E L I S T S

DOROTHY BROWN Professor of Law, Emory Law School. DAYNA MATTHEW William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law; F. Palmer Weber Research Professor of Civil Liberties and Human Rights, University of Virginia School of Law. TOMIKO BROWN-NAGIN Daniel P.S. Paul Professor of Constitutional Law; Director, Charles Hamilton Houston Institute for Race & Justice; Co-Director, Program in Law and History, Harvard Law School; Professor of History, Faculty of Arts and Sciences, Harvard University. DOROTHY ROBERTS George A. Weiss University Professor of Law and Sociology; the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights, University of Pennsylvania School of Law.

TWENTY-FIRST CENTURY ACTIVISM Examined shifts in the legal landscape, modern technology, and the understanding of more subtle manifestations of discrimination impact, advocacy, and activism. PA N E L I S T S

CORNELL BROOKS Former President of the NAACP, 2014-2017. CHARLES MCKINNEY Neville Frierson Bryan Chair of Africana Studies; Associate Professor of History, Rhodes College. CLAUDE STEELE Professor of Psychology, Stanford University. BEVERLY TATUM President Emerita, Spelman College. M O D E R AT O R

DANIEL KIEL Associate Professor of Law, University of Memphis School of Law.

M O D E R AT O R

AMY CAMPBELL Associate Professor and Director, Institute for Health Law & Policy, University of Memphis School of Law. 9

Student Profile

BRIGHT LIGHTS, BIG CITY, BACK HOME. ugh Cross isn’t your typical law student. He hasn’t taken your standard route to figuring out what he’s passionate about. From Memphis to Los Angeles and back again, with a stop in Hershey, Pennsylvania, he’s discovered that the worlds of the entertainment industry and law can take you to a lot of different places. But if you set your goals and keep an open mind about things, you can arrive at success, even if it looks a bit different than what you originally had in mind. After graduating from White Station High School, Hugh headed west to Los Angeles with the idea of getting involved in acting and film. Not too long after arriving he enrolled in drama classes, and eventually received his Associate of Arts degree. But it was the real world and internship experiences he had during this time that really helped him hone in on his dreams and goals. With internships at places like the A&E Network, Media 8 Entertainment, September Films Company, Odd Lot Entertainment and WE Television, Hugh saw enough to know he needed to re-adjust his

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vision from being in films and TV, to more behind-the-scenes work. He’d gotten a glimpse of what the show-to-show and gig-to-gig lifestyle was like in Hollywood and realized he needed to build on this knowledge. So he returned home and enrolled in the University of Memphis, where he successfully completed his Bachelors of Arts. It wasn’t long before he headed back to L.A. He’d received an opportunity to work for a production company. This time he got more involved with the business side of things, and began to

realize he enjoyed the deal-making and document drafting side of the entertainment industry. This started the wheels turning again and he realized that the things that really interested him, and the direction he wanted to go in the entertainment industry, might mean that law school was his next destination. So, it was time to head back home. He decided upon Memphis Law for a number of reasons: it was home, he had a network here, it was affordable. But he also realized not everyone here would be focusing on the same thing as him, which meant fresh perspectives and new ideas. Before his first day of law school even started however, Hugh knew he needed to put together a plan to keep his focus on his long-term goal of being successful in the entertainment industry. And so, Hugh returned to the Bluff City with a plan: succeed in law school and find a way to end up practicing in the entertainment industry. He’d already realized that the industry was bigger than just film and production. But his time in Memphis, a city known

for producing some of the pioneers of the music and entertainment industry, would help refine his vision even more. “When I started out here, my original plan was narrow,” said Hugh of his early days in law school. “I wanted to find an entertainment job at a film studio or something like that. But in my first year I got hit with all of the work that comes along with that first year of classes. So I thought to myself, ‘How can I be flexible, but still retain my focus? And what else can I do within the industry that interests me and meets my goals?” That’s when he started looking more into intellectual property and copyright and how they played into film/ TV production. His first internship in Memphis proved to be one of several key milestones in his journey. Hugh’s first summer of law school coincided with the filming of CMT’s “Million Dollar Quartet,” (which went on to be known as “Sun Records”), and through various contacts and hard work, he secured an internship with the production.

Hugh Cross “I met some attorneys at the City Attorney’s Office and the Shelby County Film Commission, and they created this special role for me as a student intern on the Sun Records set,” said Hugh. “It was a complicated job, but great experience.” It’s not easy to put together a TV show. That was the first lesson Hugh learned on-set. This internship gave him his first in-depth look at the full scope of the legal side of a production company. Officially, he was a legal intern for Rights & Clearance for CMT and KatLei Productions, but his duties exposed him to the full gamut of legal work associated with this type of production. “I was working with the rights and clearance department for the larger production company (ThinkFactor Media), as well as the television network (CMT) and Viacom (who owns CMT),” said Hugh. In this role, he reported directly to the production company’s Counsel to review scripts and “dailies” to identify and report any potential licensing, third-party rights or any other legal issues. He also

(Class of 2018)

assisted with the acquisition of rights for music, film, consumer products and any identifiable brands used in the show. “What was interesting about this show, and what made it more challenging at times, was that they did all of their clearances for their scripts during production, rather than beforehand, so it was a lot of legal work for me to sort through right away,” says Hugh of the hectic nature of the internship. “Lots of the issues had to deal with defamation issues, since we were dealing with the likenesses and estates of so many people, as well as third party rights for tons of different brands that the producers wanted used in the show.” Allowing him to learn even more about the legal side of the industry, his bosses had him research and draft documents in connection with preparation and negotiation of agreements for television and feature film content, licensing of film clips, and analysis of chain of title and other film rights. He also developed a new respect for copyright, with large amounts of his time devoted to copyright research, filing, and maintenance. (Continued on next page)

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Student Profile

‘

Have a plan. Be flexible. Be willing to adapt and learn. Search out great and interesting opportunities that can help expand your vision and always keep your end goal in mind.

“I knew the process for a lot of these ration’s Entertainment & Resorts things, but I didn’t know exactly division before the academic year what attorneys did when they were was even halfway done. going through all of this for rights and clearances and reviewing agreeAnd so, Hugh traveled up north to ments,” said Hugh. “It’s just totally Hershey, Pennsylvania to work as different when it’s you carrying out a Legal Intern focusing on Intellecall of the work yourself. It was just an tual Property and Corporate Affairs. amazing experience that opened my While at Hershey, he reported eyes to how much more goes into directly to the Senior Counsel for the legal and business side of things.” legal matters for Hersheypark Entertainment Complex, Hershey Lodge, When things wrapped up on that The Hotel Hershey, Hershey Bears first summer’s work, Hugh took Hockey Club, and many other entia long look at where he wanted ties. Alongside that Senior Counsel, to go next. With the guidance of he worked on real-time enforcesome veteran attorneys in the “Sun ment and maintenance matters for Records” crew, he decided to venture intellectual property owned and into the corporate world of entertain- licensed by Hershey. Additionally, ment and intellectual property. he conducted online infringement investigations on their priority social He didn’t wait long in his second media channels and gave enforceyear of law school before he started ment recommendations accordingly. working on his next summer internship. As soon as he’d made his Though only one small part of mind up that the corporate world his duties, one that was perhaps was where he wanted to go next, he most interesting and impactful to set his sights on the major brands the company was his involvement that would enhance his knowledge in creating and conducting legal base and his resume. He secured an training on proper copyright and internship with the Hershey Corpotrademark use. 12

something that I was not expecting “I helped develop a trademark training manual for use across a or experienced before.” variety of Hershey departments,” said Hugh. “There were already lots It ended up being a key experience of regulations and rules in place, but for his future plans. I was asked to really take it out of legalese and make it more accessible “This helped me realize that there to the layperson. We figured out ARE roles in the entertainment a way to explain to the different industry that I’d love to do that don’t departments why this document was have to do with being on-set and in important to their department and the middle of productions. There how they can work to accomplish was a higher level of entertainment it. We were really able to give them law and industry. It’s made me really context why it was important to them, realize what I want to do.” not just a rule they had to follow, and make it useful and practical for them As he’s wrapping up his 3L year, to end up with a better end-product.” Hugh can look back on his road as one that had lots of lessons along Learning first-hand in a corporate the way, but ultimately guided him structure how IP issues relate to to be incredibly well-prepared for various levels of a corporation was achieving his goals. invaluable for Hugh’s education and direction. It was at this internship “I had to manage my priorities and that he was able to refine his percepone thing that helped me going into tion of what he could do within the law school was having a plan,” said entertainment industry even further. Hugh. “If I hadn’t had a plan in place, He had expanded his scope to it’s easy to get so busy with just include IP, copyright, and trademark surviving law school that you just issues in the corporate realm, and lose track of your long term goals.” had worked at a high level with TV production companies. He now had His advice for other students the knowledge he needed to see the wanting to go into the entertainment full spectrum of possibilities, from industry really applies to anyone that every level of the industry. wants to end up somewhere specific after law school. “It was hard work, but it really made me realize what I wanted to do,” said “Have a plan. Be flexible. Be willing to Hugh. “I liked feeling like a part adapt and learn. Search out great and of the company and how everyone interesting opportunities that can was working towards the same help expand your vision and always goal. Seeing how IP functions on keep your end goal in mind.” a corporate level, and how it works across a variety of departments, was an incredible experience. That was

CROSSROADS

Music & the Law By Ryan Jones “The music industry is always going to be IP driven,” according to Tony Alexander, University of Memphis School of Law adjunct professor and President of Made in Memphis Entertainment. “Without IP, there would be absolutely NO music industry.” Streaming has changed that very music industry as we know it. The implications of how streaming companies like Spotify and Pandora will transform the musical universe are playing out, but one thing is certain: laws, attorneys, and intellectual property issues will be at the forefront of the change.

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M

emphis has long been a hotbed of creative musical talent, with a rich music industry past.

Stax, Otis Redding, Booker T. & the MG’s, Isaac Hayes, Sun Studios, Sam Phillips, Elvis Presley, Johnny Cash, Carl Perkins, Al Green, Ardent

changes in the music industry itself and a few unlikely newcomers to the Memphis musical landscape, the Bluff City has some unique avenues towards the future of the music industry. From technology entrepreneurs to intellectual property specialists and new ideas,

MEMPHIS: RICH MUSICAL HISTORY;

CHANGING MUSICAL FUTURE

Studios, Big Star, Earth Wind & Fire, Hi Records, Royal Studios, Beale Street, B.B. King, Rufus Thomas, WDIA and Dewey Phillips, Carla Thomas… the list goes on and on. The amount of music coming out of the Bluff City at one time rivaled any place else in the world. But as time passed, these Memphis musical stalwarts faded. Stax went bankrupt and sold its catalog; Isaac Hayes went bankrupt… several times; Beale Street fell into disrepair along with much of downtown in the 70s and 80s; and the city’s music studios and music scene started shedding jobs and clients to Nashville, Austin, New York City, and L.A. The city that once produced more important, chart-topping, and award-winning records than any other city per capita, found itself looking backwards at its rich musical past, far from the forefront of the music business and industry. But thanks to some dramatic 14

combined with a rich musical community, Memphis is now paving the way to its version of the future of the music business.

one, only to dwindle in popularity later. Streaming turned the traditional model on its head, with instant access to the entire album, track by track, available via outlets such as Spotify and Pandora. It’s a culture of “binging” music, similar to the one brought on by Netflix in the realm of movies and TV. More Access; Less Money – For artists, that is. The heyday of seven-figure mega-deals has come and gone. In its place is a streaming revenue model that has shown some improvement for the traditional and large major labels, but has left individual artists and smaller labels feeling the crunch.

But before we can see the path towards that change in Memphis, we need to fully understand the musical landscape as it stands today. And that means understanding the impact streaming has had across the board.

STREAMING CHANGE Simply put, streaming has changed the entire game in the music industry. Similar to the impact that Napster had in the early 2000s, music streaming has altered both the legal and business landscapes, and changed the way musicians, studios, publishers, labels, and attorneys operate. New Releases are Old News – It used to be standard operating procedure for an artist to release a new song or album and have it climb the charts, rather than make a big splash at number

“People are more interested in music, in its many forms, today than they were 20 years ago,” says Russell Jones (JD ’77), a Memphis Law alum who was recently named one of Billboard Magazine’s Top Music Lawyers of the Year. “Streaming services like Spotify have really increased the reach of music and the ability for people to hear a wider variety of music, which is really convenient.”

But artists and songwriters aren’t necessarily always seeing more money just because of that wider reach. According to Steve Gordon, author of The Future of the Music Business, a growing number of musicians are being signed to deals for “singles,” in which they are offered a small advance to produce a couple of songs, and only offered a larger, more traditional album deal if those songs perform well. This is in stark contrast to the days when album deals at major labels like Sony or Atlantic would start at a quarter of a million dollars. Spotify’s monetization structure also hurts smaller acts across the board. According to David Lowery, music business professor at the University of Georgia and frontman for 90s band Cracker, in an interview with The Ringer, the pay-perstream on Spotify has been falling consistently over the past several years. He has been tracking streaming royalties from a midsized indie label during this time and states that the pay-per-stream rate is now less than a quarter of a cent. He states that, “If you listen to music for about four hours on pretty much any of the streaming platforms, you’re going to get about 25 cents going to all rights holders.” That is a lot of listening to significantly increase that artists’ revenue. So, services like Spotify can potentially help an artist reach a much wider audience, but that doesn’t necessarily mean they are seeing increased revenue.

Intellectual Property Rights Are More Important Than Ever — With the market for recorded music having dwindled, musicians are looking more and more at merchandise as a source of revenue. Shirts, hoodies, posters, hats, and anything bearing a bands name or any piece of key art are a bigger piece of the music revenue pie than ever before. And each of these items comprise all sorts of intellectual property that the artist needs to properly manage. Additionally, in this era of social media and streaming, musicians must pay even closer attention to IP-related matters such as copyright and trademarks, especially with the growth of YouTube and sampling.

HOW IT ALL WORKS CURRENTLY

“The performance and distribution of music via YouTube remains a great concern of musicians (both copyright owners as well musicians who perform and then distribute recordings via YouTube),” according to Doug Halijan, an attorney at Burch, Porter & Johnson and an adjunct professor at Memphis Law. “By statute, websites like YouTube are not directly responsible for what users or members upload, but they must — and do — take steps to reduce infringement.” Halijan explains that YouTube has a rights management system that scans user-provided content against the files that are supplied by copyright owners (musicians, music publishers, the owners of rights in movie and TV productions, etc.). “When there is a “match,” YouTube has a system for alerting the owner,” he says. “Musicians therefore need to pay attention to make sure they are doing everything needed in order to ensure that YouTube has reference files for their work so that it is recognized when incorporated by someone else in video or recording without permission.” And, on the flip side, according to Halijan, anyone recording music or performance for distribution via YouTube needs to be certain they have secured all the necessary rights and licenses in order to legally do so.

As streaming has grown to account for more than 60 percent of music industry revenues, according to a 2017 Recording Industry Association of America (RIAA) report, securing licenses and paying out royalties has become a burdensome mess. So, it’s essential to have a good understanding of music-copyright and what’s involved. There are two sets of copyrights for a piece of recorded music. The first is for the sound recording itself and the second is the underlying musical composition (chords, lyrics, musical notes, etc.). “Copyright-ability for musical compositions and sound recordings evolved along separate paths,” according to D.R. Jones*, a professor of law at the University of Memphis School of Law and a copyright expert. “This evolution has resulted in different treatment for musical compositions and sound recordings.”

MECHANICAL LICENSES EXPLAINED When player pianos became common and popular in the early 1900s, they were a clear threat to the established music industry. Before their entry onto the scene, songwriters made money by selling sheet music, but the companies and manufacturers of the piano rolls that played these songs did not pay these songwriters anything. Songwriters claimed that the piano rolls were the same as sheet music, and that they were due royalties. Obviously the manufacturers did not see it the same way. In 1908, the Supreme Court ruled that player piano companies were NOT required to pay royalties to songwriters, as the rolls were not the same as sheet music. The very next year, Congress created “mechanical licenses,” due to songwriter lobbying, as part of the new Copyright Act to provide the songwriters with royalties. These mechanical licenses evolved over the years alongside technology, going from player pianos to vinyl records and then to downloads and digital streaming.

Simply put, each recorded music track has two copyrights associated with it. One for musical composition that is created by a songwriter and managed by a music publisher and another for the sound recording that is These mechanical licenses are still created by the recording artist and called compulsory licenses today. managed by a record label. AddiThat hasn’t changed, regardless tionally, each of those two copyof the medium of music delivery. righted works has two sets of rights The licenses work automatically, that digital services like Spotify with no negotiation involved. may need license from the owners A streaming service, or a player in order to stream the song: the piano roll company, just has to reproduction and distribution right follow the rules that are set in (otherwise known as a “mechanical” place by the Copyright Royalty for musical compositions) and the Board (CRB) every five years. public performance right.

*Editor’s note – for a more in-depth look at the history and complexities behind music copyrights, check out Prof. D.R. Jones’ piece later in this issue.

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B-A-B-Y

BUT THE COMPLICATIONS DO NOT END WITH THE DISTINCTION BETWEEN RIGHTS IN THE COMPOSITION AND RIGHTS IN THE SOUND RECORDING. EACH OF THOSE ITEMS ARE, THEMSELVES, BROKEN DOWN. TAKE A LOOK AT THIS GRAPHIC FOR A BETTER IDEA.

PERFORMANCE

COPY MECHANICAL LICENSES

PRO FEE

AM/FM Radio Physical Phonorecord

Permanent Digital Downloads

9.1 cents or 1.75 cents per minute of playing time or fraction thereof, whichever amount is larger

MADE IN MEMPHIS ENTERTAINMENT

Studio space at Made in Memphis Entertainment

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Preformed by Carla Thomas Written by David Porter & Isaac Hayes

Interactive Streaming

11.14% of revenue or 22.0% of total content costs* *in 2018 only

Internet Radio

Satellite Radio

“In today’s world just copyrighting the words and music of a new song are not enough to ensure protection,” according to IP specialist Halijan. “Musicians and songwriters have to be cognizant of the many ways a musical work can be copied and distributed unlawfully. They need to be up to speed on what their legal rights and obligations are, and also vigilant about enforcing those rights against anyone who is copying or distributing the copyrighted works without permission.” How you listen to music matters as well. There are countless ways to listen to a song. Many people still tune their dials to regular old FM radio, or maybe you’re a pure Spotify user, or a person that still buys CDs or vinyl. Satellite radio and iTunes are still big players as well. But every one of these entities has to license the rights to songs in different ways. Spotify and other streaming services are viewed and treated differently than traditional FM radio and satellite radio services. And FM radio and satellite radio are treated differently than each other. FM radio does not pay royalties to the artists who perform the songs, rather only to the songwriter. That’s because FM is considered a “public performance,” and royalties for public performances of compositions are compulsory and collected by public royalty organizations (PROs), of which there are three leading businesses – SESAC, BMI, and ASCAP –

who then take those royalties and redistribute them to their member artists (the songwriters, publishers, etc.), according to a formula. Meanwhile, internet and satellite radio companies, such as Pandora or SiriusXM, pay royalties for the sound recording rights to a nonprofit entity called SoundExchange that in turn calculates how much each and every artist is owed and then sends that amount to them. SoundExchange administers the statutory license to allow services to stream artistic content while paying a fixed rate for each play. They collect and distribute royalties for the featured artist and the sound recording copyright owner, when content is played on a non-interactive digital source. That may seem confusing, but to summarize, the royalties that SoundExchange collects and distributes are for the featured artist and the sound recording copyright owner. ASCAP, BMI, and SESAC collect and distribute royalties for the songwriter, composer, and publisher. Spotify is completely different, mainly because it allows the user to play any song they desire, whenever they want. Spotify cannot utilize BMI or SoundExchange to distribute royalty payments. Instead, it has to get licenses for both rights in recording and the rights in composition from everyone

involved (whether they do that is another matter, one which we’ll go into as well).

How you listen to music matters as well. There are countless ways to listen to a song. Many people still tune their dials to regular old FM radio, or maybe you’re a pure Spotify user, or a person that still buys CDs or vinyl. Satellite radio and iTunes are still big players as well. But every one of these entities has to license the rights to songs in different ways. Pandora, SiriusXM, and other internet/satellite radio services may seem like streaming to most of us, but the reality is that they are legally distinct from Spotify, which is considered a true streaming service in the eyes of the law. As such, Spotify has to negotiate with artists and labels on an individual basis for anything to do with sound recordings, and then it has to pay “mechanicals” for the rights to composition. Those mechanical rates to songwriters are, as stated earlier, determined by the CRB on a five-year basis.

That same CRB, which is a panel of administrative judges, made a historic ruling shortly before the 60th Annual Grammy Awards in March of this year. The CRB increased royalty payments to songwriters and music publishers from music streaming companies like Spotify by nearly 44 percent, the biggest rate increase ever granted. These rates will go into effect for the years 2018-2022 and will transform how songwriters are paid by all of the interactive streaming services. The CRB ruling was a result of a four-month trial between the National Music Publishers Association (NMPA) and the Nashville Songwriters Association International (NSAI) against tech industry stalwarts Google, Spotify, Amazon, and Apple. The decision requires streaming services to pay 15.1 percent of revenue to songwriters and publishers, up from 10.5. The court also stated that digital music services are subject to a late fee, which will force them to pay songwriters faster, or be subject to significant penalties. In an interview with Variety magazine, NMPA president and CEO David Israelite said that “Crucially, the decision also allows songwriters to benefit from deals done by record labels in the free market. The ratio of what labels are paid by the services versus what publishers are paid has significantly improved, resulting in the most favorable balance in the history of the industry.”

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The fact that Spotify knows exactly how much it is supposed to pay music publishers, since the CRB tells them exactly what that rate is, is actually the main reason the streaming giant now finds itself in legal hot water. For over a year now, streaming music services have been exploiting a loophole in U.S. copyright law. Instead of sending artists their money for mechanical royalties, they’ve been filing a statutory “notice of intention” to pay the artists instead. NOIs are not redeemable for cash, but are just letters sent to the U.S. Copyright Office instead of to the artists themselves. Surprisingly, current law does not mandate that the user of the music, Spotify, perform a diligent search on who wrote the song it streams. Additionally, the law does not require the user to maintain and/or use its own records. So, even if and when Spotify does know where to find an artist to pay them their performance royalties, it can somehow manage to not find the songwriter when it comes to paying out the mechanicals, since the law states that they need not do anything more than send the NOI to the copyright office, whose records are notoriously out of date. “In almost every case,” said veteran music attorney Chris Castle in a recent interview with The Register, “the song that Spotify says it can’t find in the copyright office records is easily findable in the PRO databases, which are searchable for free and are almost always updated before the song is released.

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But Spotify is not (currently) required to look anywhere but the copyright office records, based on a law from 1976 that was rarely used (see Prof. Jones’ article at the end of this issue for more information on this). It’s a very cost-effective loophole. But it’s resulted in quite a bit of litigation recently. As the streaming industry has grown to be the dominant model in music consumption, more songwriters and publishers have sued Spotify for allegedly using their work without first obtaining a mechanical license, with one suit settling in 2017 for $43 million and a current $1.6 billion lawsuit filed by Wixen Publishing, a music publishing company that counts Tom Petty, the Doors, and Rage Against the Machine as clients, on top of a $30 million settlement with the National Music Publishers Association (NMPA) in 2016. With Spotify set to go public, its initial filing with the SEC gave the public a glimpse at its finances. Combined with its struggle to still turn a profit (Spotify reported a net loss of approximately $1.5 billion last year), and expensive lawsuits, the stage is set for the next phase for the streaming company and its profitability (or lack thereof). But while the streaming industry has neatly managed to avoid paying a substantial amount of royalties, pending legislation may soon put a stop to that and change the game for everyone.

THE MUSIC BUS The U.S. Congress has been plagued by deadlocks, shutdowns, scandals, and low approval ratings. But in a rare show of bipartisanship, both the House and the Senate are headed towards a historic update of music licensing laws for the first time in 20 years. Four different bills have been introduced in the House and the Senate over the past several months. Though they will affect different sets of people, the music industry, by and large, has put its support behind all of them, with the hope of getting all the bills passed this year. The industry, as well as most politicians involved, have named the collection of four bipartisan bills the Music Bus (i.e. “omnibus legislation”). The four pieces of legislation include:

1. THE CLASSICS (COMPENSATING LEGACY ARTISTS FOR THEIR SONGS, SERVICE, AND IMPORTANT CONTRIBUTIONS) ACT 2. THE FAIR PLAY FAIR PAY ACT 3. THE AMP (ALLOCATION FOR MUSIC PRODUCERS) ACT AND 4. THE MUSIC MODERNIZATION ACT (MMA) This package of legislation would modernize the industry with licensing laws better suited to deal with the ways in which music is consumed, sold, and listened to today. It is composed of legislation that, in the view of many, puts the best interests of the songwriters and artists first. A closer look at each piece of legislation reveals how they will potentially change the industry.

The CLASSICS Act refers to one of the music industry’s most dismaying situations — artists who recorded music prior to 1972 do not get royalties when their music is played on digital radio. The CLASSICS Act is an attempt to close the loopholes in copyright law which resulted when Congress failed to make federal copyright law apply to songs from this pre-1972 era in its 1976 reforms. This act would make it mandatory for digital radio services to pay royalties on those pre-1972 songs, using the statutory royalty rate and with SoundExchange distributing the money to artists. The Fair Play Fair Pay Act affects both digital and terrestrial radio, but would have a particular impact on FM/AM radio. Currently (get ready to use what you learned earlier in this article), both digital and AM/FM radio pay performance royalties on musical compositions. However, only digital radio services pay performance royalties on sound recordings, meaning that, currently, FM and AM terrestrial radio stations don’t have to pay any performance royalties to performing artists and record companies, only songwriters. Unsurprisingly, the FM/AM radio industry, particularly the National Association of Broadcasters, is strongly opposed to this portion of the Music Bus legislation package. The old reasoning for FM/AM radio not paying performance royalties on sound recordings was based on the fact that radio was the primary means of advertising/promotional services for songs and record labels.

The artists and labels needed terrestrial radio to sell their records, so it wasn’t deemed important for them to pay royalties at that time. However, when digital radio came along, they needed sound recordings to attract their base audience, so the digital radio industry had no problem paying performance royalties. In today’s environment, however, digital radio is as popular as AM/FM radio, which makes that royalty payment system uneven.

The MMA changes the NOI process so that music creators get paid and digital companies reduce their liability, while increasing operational efficiencies. The legislation would establish a Mechanical Licensing Collective (MLC) that would accurately compensate songwriters for the mechanical royalties they earn through interactive streaming. In exchange, the collective would afford digital providers—which would fund the collective—with blanket usage licenses for songs.

Interestingly, the United States is one of only three countries in the world that does not provide performance royalties on sound recordings, the other two being Iran and North Korea.

But somebody still has to identify which songwriters should receive the mechanicals. The MMA’s solution is to create and appoint a single licensing agency which would take data from the streaming services, identify the underlying composition rights holders, and then pay the mechanicals. The music services would pay administrative fees to this licensing agency so that it can maintain its database.

The AMP Act is the part of the omnibus legislation which may be the most straightforward, but it is also one of the most impactful for producers, engineers, and others critical to the process of creating music. This act formalizes royalty payments to these individuals for sound recordings played on digital radio services and makes sure they are treated equally to the artists, with the same rights, royalties, and protection as those whose names are on the covers of the albums. The equality was lacking in older legislation. Finally, the MMA — the newest of the four proposals and possibly the most technical — addresses different parts of the music industry: songwriters and music publishers, instead of recording artists and record labels; interactive music services, such as Spotify and iTunes, not digital radio; and licensing for mechanical (reproduction and distribution), not performing rights. The MMA is seen as the main act that will usher copyright laws into the twenty first century. The MMA will address four areas of music licensing. First, the bill looks at the fact that digital music companies routinely fail to pay songwriters and copyright owners. This is often due to inefficiencies and loopholes, such as the NOI loophole mentioned previously in this article. Since that loophole became available in 2016, an estimated 45 million NOIs have been filed with the Copyright Office, keeping millions of dollars of royalty income out of songwriters’ pockets.

Songwriters would finally get paid... and on time. Additionally, the MMA would allow songwriters an opportunity to get fair-market mechanical royalty rates from the CRB. Currently, songwriters can’t set prices for their own work. The MMA would require the CRB to set a “willing buyer/willing seller” standard to rates that reflect the real-world market value of the corresponding use of a song. “This legislation will help make up for songwriters and publishers’ great loss of revenue,” says Jones, the Nashville music attorney who represents acts such as Garth Brooks, Trisha Yearwood, and Tim McGraw. “I don’t know of a group of people who have suffered more from the current situation than the publishers and songwriters. Hopefully this new legislation will help with the payment of these mechanical royalties and make up the gap in income.”

MEMPHIS — LOOKING FORWARD With the future of the music industry being shaped by pending legislation surrounding a variety of IP and licensing issues, as well as new sectors of growth in the digital music realm, it’s evident that the music industry will continue to change. A thorough understanding of all IP-related issues will be critical to artists’ success. Technology will also continue to evolve, along with its influence on how music is produced, distributed, and consumed. Memphis has several individuals, studios, and companies poised to take the lead and help re-establish Memphis as a musical epicenter. “You look at every single major touring artist out there, and they’ve probably got at least one or two musicians from Memphis in their band,” says Tony Alexander, University of Memphis School of Law adjunct professor and President of Made in Memphis Entertainment. “We’re losing some of our most talented people and musicians to other cities because we just don’t have the infrastructure, opportunities, and industry to keep them here. But we’re trying to change that. We’re trying to change the culture here so that the talent that is from here can come back or stay here.” Alexander is trying to change that alongside Stax legend, David Porter, with their integrated entertainment company, Made in Memphis Entertainment (MIME). Their company is unique in the music industry, especially for a city with a dearth of traditional music industry businesses. It’s made up of commercial recording studios, two publishing companies, a full-service record label and an artist services division — all of the components necessary to effectively develop an artist AND equip the artist, and MIME, for a long and fruitful future. It’s possible to think of Alexander and Porter’s venture as a template for how the music business will look, especially in Memphis, as the scene evolves. You could think of the firm as a full service market that grows, packages, and markets its own food lines, which allows them ultimately full control over their products, ensuring that the full range of offerings is available to the city’s music scene.

David Porter from Made in Memphis Entertainment (center) with Tony Alexander (left) and Hamilton Hardin

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Going beyond just the company divisions and offerings, MIME is also unique in having a president with no history in the music business. Alexander is an IP, patent, and trademark attorney by trade, having taught at Memphis Law for several years, as well as serving as of-counsel at Memphis-based Baker Donelson. He’s also patented three of his own inventions, earned a master’s degree in microbiology, served as VP of regulatory affairs and quality at a large medical systems corporation and is an ordained minister. He’s not your typical music industry executive. Which is exactly what MIME needs if it’s going to be an agent of change for Memphis. “I know a lot of people look at me and say, ‘What is a lawyer doing heading up all of this?’” says Alexander. “But an understanding of IP is, at times, even more critical in this position than an existing knowledge of the music business. The IP piece of all this, that’s the one piece that a lot of people in this industry just don’t have, even those that have been in the music industry for quite some time. There are fundamental things about copyright and licensing in the music business that, as an IP attorney, I am just going to understand, but someone that has just been hanging around in the music industry, they’re going to miss them.” Halijan, who is another local IP expert and adjunct professor at Memphis Law agrees. “Now more than ever, musicians need to be sure they or their manager or agent understands what rights they have and how to protect them,” he says. “These intellectual property issues come up in — and can be greatly affected by contracts that musicians may sign as well.” Building the music industry back up in Memphis starts at the bottom, according to Alexander and Porter. The local recording industry scene in Memphis is strong, and on the upswing, with artists coming from all over the country to record at MIME and other studios like Ardent, Electrophonic, Phillips, Royal and Sun studios. But the business remains modest overall in terms of actual jobs and national influence on music trends. The city is not as widely known for producing and retaining new artists, as it was in its Stax heyday. Talent comes from here, earns its stripes here, but ultimately goes elsewhere to find work in the industry. 20

GEBRE WADDELL

“We’re investing in young artists and it’s something that is not typical in the industry, for the level of artist we’re signing,” says Alexander. “But we’re developing them from the ground up. We’re developing their stage presence, their social media management, we’re helping them to be better songwriters and not just performers. We’re trying to help them create quality songs and continue to be songwriters even after their performing career is over so that their songs will have lots of catalog value down the road.” It’s that understanding of how an artist’s work can give a long-term return and how their career can be helped out by the intricate legal workings of revenue streams that give Alexander and MIME an extremely interesting take on the future of the industry. By helping to develop Memphis’ creative talent from the ground up, they hope to see these individuals find success here and be able to stay here, thus creating the culture and business environment needed for a long-term change in the Memphis music scene. If Made in Memphis achieves its goals, there could be new life in the local music industry for intellectual property lawyers, talent agents, booking agents, songwriters, musicians, accountants, marketing and PR firms specializing in music and

TONY ALEXANDER performance, and technology and software companies as well. Many of the musicians and industry veterans that feel they have to leave the city to find careers would have a reason to return home, buy houses, and rejoin the community. “We need to have an industry stimulus with a presence that says, ‘Stay here, grow this industry here.’ But we first have to build that energy here. That’s what we’re missing,” said Porter and Alexander in an interview with the Commercial Appeal. “We want to groom these musicians into a marketable presence and make sure their music is widely heard around the world.” Part of what may help Memphis regain its footing as a growing music industry has to do with technology. “This business, the music business, is for all intents and purposes is a technology business that is in the music industry,” says Alexander.

Studio space at Made in Memphis Entertainment

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“What we’re finding is that we are having to make significant technology investments and we’re having to look at acquisitions that will continue to enhance our ability to compete in this market on a technological level.” On the technology front, Memphis is staying true to its reputation as an innovation center and entrepreneurial hub, while keeping music at the heart of matters. A Memphian with a history of technology innovation, Gebre Waddell, is helping to change the future of the industry, in Memphis and around the world. Waddell, a University of Memphis graduate with a degree in Music and Business, is the president of the Memphis chapter of The Recording Academy. Following, or perhaps leading the way amongst, the movement of the “omnibus” of pending music industry legislation regarding streaming, Waddell has long been hard at work to help give credit to those engineers, producers, writers, and musicians within the industry who have been left hanging by the lack of royalty payments in a music business dominated by digital streaming. Even with legislation like the Fair Play Fair Pay Act attempting to ensure that

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streaming and satellite radio companies pay royalties at a more equitable and fair rate, as well as the CRB’s recent increases in royalty rates for songwriters from streaming services, Waddell believes there is still much work to be done to ensure appropriate credit for all music industry professionals. The MMA highlights the need for a database identifying the people behind the scenes on compositions and songs, so those individuals can be paid their mechanical royalties. Waddell and his company, Soundways, have devised a practical way to ensure that the appropriate credit is applied where it’s due, and in an easily identifiable, trackable, and searchable way. Waddell is the author the industry standard book for audio engineering and mastering, entitled “Complete Audio Mastering”, published in 2013. He took his expertise as a music software developer and mastering engineer and founded Soundways, which introduced a breakthrough software plug-in, RIN-M, to combat the music industry’s longstanding struggles with song crediting.

published by Digital Data Exchange (DDEX). DDEX is a consortium of leading media entities including Apple, Amazon, Warner Music, BMI, Spotify and over 30 others. DDEX has spent over 10 years on its mission of establishing metadata standards and, in October 2016, published the RIN standard for music credits and metadata. Soundways uses the RIN standard to ensure all relevant information about a recording can be easily shared in a universal way. Until now, song credit information, such as participating artists and engineers, has been stored across a variety of databases and formats, or not stored at all. Because of this, music industry professionals often miss credits, reducing royalty payments. According to Soundway’s industry press release, RIN-M enables songwriters, musicians, sound engineers, and individuals in over 100 other roles to easily associate their details with the recordings they create. It functions as a plug-in inside industry recording software, giving control to the creators themselves with a focus on streamlined data collection at the source.

“Almost anyone in the RIN-M includes the music industry that you first application of the speak with has a story Recording Information Notification (RIN) standard about a credit they did not

receive. People are giving their best to music, and their career depends on being recognized for it,” says Waddell in the release. “RIN-M revolutionizes the music industry’s information supply chain. It will save the industry millions in data collection costs, and ultimately allow the public to discover more about the creators behind recordings.” Industry adoption of this software will be key. So far, it has experienced viral adoption with users in over 50 countries, representing the largest movement for song credit data in music industry history. “RIN-M has caused the most impactful movement involving data to happen in the music industry,” said Made in Memphis Entertainment’s David Porter. “Giving credit where credit is due is something long overdue for our industry.” But Waddell isn’t in this simply for the money. Along with Porter and Alexander from MIME, he believes Memphis can once again make a name for itself as a home for innovation in the music industry. At the core of his work is an ethos of civic responsibility. “I feel like doing this project and doing it here in Memphis is part of what gives it its strength,” said Waddell in a recent Memphis Flyer article.

WHAT NOW? The Memphis music industry still has a long way to go before it is on the level of big music cities. Even Nashville has taken a hit in the ranks of songwriters and musicians that make up its scene over recent years. “There used to be a great “middleclass” of songwriters in Nashville,” says Jones. “But they don’t exist anymore. You’ve either got the songwriters who have done exceptionally well, or the other end of the spectrum with those that are trying to get started.” Memphis has the musical talent, as well as the population base of attorneys, accountants, and marketing professionals, needed to form a new wave of musical industry. But the city has to get to the point where these groups stay here and create the environment necessary for sustained growth. “Most artists who are going to make it from infancy to successful, well-known stars are going to need a label behind them, they’ll need management, in many instances they’ll need a publisher, as well as business management,” according to Jones. “There are just many, many layers of expertise that are needed to get from A to Z in this business.” Those layers are going to take time to build, in Memphis and in any other musically-rich city whether it be New Orleans, Atlanta, or Muscle Shoals. But with pending legislation making sweeping reforms to the music industry, and firms like that of Alexander’s Made in Memphis Entertainment and Waddell’s Soundways, Memphis is ready to take on the challenge. As the legendary Memphis musician and producer Jim Dickinson said of Memphis and its musicians: “We’re renegades. We make our own rules. We make our own paths.” This is the type of attitude that will carry Memphis into the brave new world of streaming music.

ALUMNI

Spotlight

Memphis has always been a crossroads for music. Known the world over as the Home of the Blues and the Birthplace of Rock n’ Roll, this city is inseparable from music, and its impact on the identity of the region is undeniable. It should then come as no surprise that of our many talented alumni practicing throughout Memphis, many of them are also extremely talented musicians. From judges to practicing associates, and trumpets to pianos, the range is as diverse and entertaining as you’d expect it to be in this city built on music and soul. These Memphis Law alumni joined us at another historic Memphis institution, Ardent Studios, to showcase some of their musical abilities. Remember, you can run into a Memphis Law alumni in any setting, from the music studio or the courtroom, to a smoky, music-filled barroom or a second line parade.

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Tom Clary

2005

ASSOCIATE ATTORNEY AT GLASSMAN, WYATT, TUTTLE & COX, P.C.

Judge Judge Kathleen Kathleen Gomes Gomes

INSTRUMENT OF CHOICE: Trumpet

1980 1980

BAND NAME: Mighty Souls Brass Band WHAT DREW YOU TO MUSIC AND WHY DO YOU STILL PERFORM? I’ve had a love for music for as long as I can remember. My parents had a good collection of records and I loved listening to Broadway soundtracks, Dean Martin, Frank Sinatra, Bing Crosby, and, of course, Elvis.

In 6th grade, I joined the band. My dad was very supportive and suggested that I play the clarinet (like Benny Goodman). But, for some reason I had my heart set on the trumpet. I loved it so much that I wanted to play all the time… much to the chagrin of my parents, I’m sure. I can’t imagine life without the trumpet or making music of some sort. Music is a constant learning process, which brings me a lot of joy. I love being able to make music with others and have been lucky enough to have met and played with a lot of talented folks.

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JUDGE, DIVISION 1 JUDGE, DIVISION 1 SHELBY COUNTY PROBATE COURT SHELBY COUNTY PROBATE COURT

INSTRUMENT OF CHOICE: Vocalist INSTRUMENT OF CHOICE: Vocalist WHAT DREW YOU TO MUSIC AND WHAT DREW YOU TO MUSIC AND WHY DO YOU STILL PERFORM? WHY DO YOU STILL PERFORM? I have been singing since I was a young I have been singing since I was a young child. I love music and I love to sing. My best child. I love music and I love to sing. My best friend was a pianist and she and I performed friend was a pianist and she and I performed all through high school and college, and I all through high school and college, and I sang with a stage band while in college. After sang with a stage band while in college. After graduating from college, I had to make a graduating from college, I had to make a choice: to be a professional singer or go to choice: to be a professional singer or go to law school. I chose law school. law school. I chose law school.

Judge Jennie D. Latta

1986

BANKRUPTCY JUDGE, UNITED STATES BANKRUPTCY COURT, WESTERN DISTRICT OF TENNESSEE

INSTRUMENT OF CHOICE: Bassoon BAND NAME: Judge Latta sings with the Memphis Symphony Chorus, and is principal bassoonist in the Germantown Symphony Orchestra and the Memphis Wind Symphony.

Music continues to be an important part of my life. I sing at church every week and over the years, I have sung at a lot of weddings and funerals. I have told young lawyers to have other interests besides the law, as we all need another outlet from the stresses of a legal practice. For me, that outlet is music. Music has always brought me joy and, hopefully, joy to others.

WHAT DREW YOU TO MUSIC? I was a seventh grader at Ridgeway when I started playing. My best friend and I decided to join the band together and she wanted to play oboe, so I decided to play bassoon. It was as simple as that. I started taking lessons from Dr. Russell Pugh, who was the principal bassoonist with the Memphis Symphony and on the faculty at the University of Memphis. In the ninth grade, I auditioned for the Memphis Youth Symphony and in tenth grade, I moved to Briarcrest High

School and joined the band under director Larry Volman, who made a lasting impression on all of us in the program. While at the University of Memphis, I played in the marching band, the symphonic wind ensemble and in the orchestra, all while also continuing to play in the youth symphony. During law school, however, I put away the bassoon and didn’t play for thirty years. Then in 2011, I helped to organize a reunion of students who had played under Mr. Volman at Briarcrest and as part of the reunion activities, a recreation of our evening rehearsals was put together. And I needed to play an instrument in order to participate, so I started to practice the bassoon again. I soon joined the River City Concert Band (now the Memphis Wind Symphony) and not long after that auditioned for the Germantown Symphony Orchestra, where I’ve played since the fall of 2011 and was named principal bassoonist in early 2012. 25

David Pool

2008

SHELBY COUNTY JUDICIAL COMMISSIONER

INSTRUMENT OF CHOICE: Guitar, piano, trumpet BAND NAME: The Risky Whiskey Boys

26

WHAT DREW YOU TO MUSIC? I suppose music is in my blood. My mother was a music major before leaving school to start a family, and my paternal uncle was offered a job with Stan Kenton’s orchestra. I remember during my childhood developing the habit of singing songs while riding my bike and trying to pedal on 1 and 3 or 2 and 4 to keep the rhythm strong. The Memphis Catholic High School Jazz Band gave a yearly concert at my grade school, and I fell in love with horns, jazz, and fusion. I remember seeing Black Oak Arkansas perform “Jim Dandy,” and thinking, “That’s what I want to do!” The pulse of music in my life has always been like a part of my heartbeat.

Richard Townley

2009

ATTORNEY AT BALLIN, BALLIN & FISHMAN, PC

INSTRUMENT OF CHOICE: Organ, piano BAND NAME: Organist, St. Philip Episcopal Church. Founding member of Beale Canto, a men’s vocal ensemble.

Jason Yasinsky

2010

ATTORNEY AT NAHON, SAHAROVICH & TROTZ, PLC

INSTRUMENT OF CHOICE: Trombone BAND NAME: Mighty Souls Brass Band and The Love Light Orchestra WHAT DREW YOU TO MUSIC AND WHY DO YOU CONTINUE TO PERFORM? I started taking lessons around age five and I “took to it.” I have been active in music in some form ever since. I was a music major in college and I earned a Ph.D. in music from Duke University in 2000. I continue to play because it’s good for the soul. The experience is what the mindfulness people call “flow.” When you are performing you are fully engaged and fully focused, and you get to share it all with your listeners.

WHY DO YOU CONTINUE TO PERFORM? I have been playing “professionally,” since undergrad at Loyola New Orleans, and doing so fairly consistently. When I started law school at the University of Memphis, I met a guy who was also a musician. He told me, in no uncertain terms, that I would have to abandon my musical career if I was going to make it through law school. I refused to believe this and I’m glad that I ignored him. I think that continuing to perform — even just once a week — was what allowed me to make it through the stresses of the law school experience. Performing is something that takes a certain amount of concentration, but also

requires you to let go of whatever is dragging you down. So when I am on a bandstand, even after a not-so-great day of lawyering, all that is in my head is the music. I have played with the Memphis Jazz Orchestra on Sunday nights for the last 24 years and every Monday morning I come to work with a clear head — which I attribute to being able to play music and “center my soul” on Sunday nights. Sure, there are times when I have had to turn down gigs due to work commitments. But I have been able to manage my time where I can be successful at both being an attorney and musician. Being a musician is a part of who I am, and I think that being an active musician makes me a better lawyer — creativity, concentration, expression, etc.

27

Alumni Notes

’72

’83

Richard Glassman was the featured speaker at the

Stuart Smith and his daughter Val were one

March meeting of the Memphis chapter of the Public

of three groups in the nation to be selected on

Relations Society of America (PRSA) where he offered

the CW Network’s television special “Tougher

communications professionals tips and things to

Together.” The show aired in March 2018.

watch out for from a legal standpoint. He also spoke

Rodney K. Strong was inducted into the Atlanta

about the impact of the 24/7 news cycle for both

Business League Hall of Fame, and Rodney was

lawyers and communicators and discussed how

honored for more than 25 years of success

communicators and legal experts can work together to

as the leader of his firm. Additionally, he was

be prepared for issues or when dealing with a crisis.

named to the leadership team of attorneys

Mr. Glassman also wrote several articles and

representing consumers in the federal lawsuits

op-eds for various Memphis publications,

brought against Equifax, Inc. over last year’s

such as The Memphis Business Journal, the

massive data breach. He will serve on the

Daily News, and the Commercial Appeal.

team as State Court Coordinating Counsel.

’75

’94

Chris A. Cornaghie presented his yearly seminar

George Pappas has joined Pendleton Square

on social security and social security disability

Trust Company as Managing Principal.

matters to the law students of Loyola School of Law, New Orleans in March. Mr. Cornaghie was

’96

also named a “SuperLawyer” in the area of social Cornaghie

security practice, and for the twentieth consecutive year has been ranked AV by Martindale Hubbell.

Pappas

Kevin Snider and his firm of Snider & Horner, PLLC, were recently chosen as a “Wise Choice” when selecting an attorney, by Andy

’79

Pauline Weaver has been elected President of the Center for Civic Education in Calabasas, California.

Weaver

’97

The Center is dedicated to promoting an enlightened

Michael Mansfield, of Rainey Kizer Reviere

and responsible citizenry committed to democratic

& Bell PLC, has been elected president of the

principles and actively engaged in the practice of

Tennessee Defense Lawyers Association.

democracy in the United States and other countries. ’98 ’80

Saffa Koja was recently promoted to Sr.

Judge Tim Dwyer, founding judge of the

Director at FTI Consulting in the Information

Shelby County Drug Court, received the Bobby

Governance and Compliance practice.

Dunavant Public Service Award from the Rotary Club of Memphis East earlier this spring. 28

Wise and his company, Wise Choices.

’05

Frankie Spero has been named as a partner at

Amy Smith Heaslet has been named general counsel

Bradley Arant Boult Cummings LLP. Mr. Spero is a

and senior vice president of the Tennessee Bankers

member of Bradley’s Litigation Practice Group. He

Association, and elected secretary of its board of directors.

focuses his practice in the areas of complex business,

Justin Thomas, founder of the Thomas Family Law

Spero

Firm, PLC, was named a finalist for the “Best of the Heaslet

real estate, transportation, and banking litigation. ’11

Bar” by the Memphis Bar Association for the second year in a row. Mr. Thomas was also recognized in 2017

Whitney Johnson Page was recently named

as a Mid-South “Rising Star” by Thompson Reuters

the Assistant Commissioner of the Public

Super Lawyer rating services, the fourth year in a row

Information and Legislative Office for the

he has received this honor. Additionally, Mr. Thomas’s

Tennessee Department of Human Services.

non-profit, Memphis Suit Project, which he co-founded,

C. Grace Whiting has been named president and CEO

provided training and new suits to approximately 200

of the National Alliance for Caregiving, a non-profit

men for their college and job interviews in 2017.

organization dedicated to research and advocacy on behalf of family caregivers in Washington, D.C. She most

’07

recently served as the non-profit’s chief operating officer.

Betsy Weintraub recently returned from a twoyear contract working as a criminal prosecutor for

’12

the Attorney General’s office in the Commonwealth

Jamaal Boykin recently became a part-time night

of the Northern Mariana Islands. She is now

court magistrate/commissioner for Davidson County.

composing a book about the experience.

’15

’08

Kimbra Ratliff has joined the law firm of Waller

Tannera Gibson participated as a panelist for the

Lansden Dortch & Davis in Nashville.

Daily News Women in Business seminar in February. Additionally, Ms. Gibson also was a presenter at the

’16

Memphis Women’s Summit and the Women’s Leadership Gibson

Conference, presented by the President’s Commission

Ford

on Women at Christian Brothers University

Director at Medtronic Restorative Therapies Group.

in March and April, respectively.

Lani Lester, of the law firm of Burch, Porter & Johnson, was elected to the Memphis Bar

’09

Melisa Moore was promoted to Member at the law firm Moore

of Burch, Porter & Johnson.

Association’s Young Lawyer Division Board. Lester

& McGhee as an associate attorney.

Derek Carson, of the law firm of Cantey Hanger,

Taylor Oyaas joined the law firm of Shea Moskovitz

was recognized on the list of “Texas Rising Stars” for 2018 by Texas Super Lawyers magazine.

’17

Olivia Garber joined the law firm of Shea Moskovitz

’10

Carson

Kimberley Ford has been promoted to Sr. Compliance

Oyaas

& McGhee as an associate attorney.

29

FACULT Y

Accomplishments Alena Allen Professor Allen currently serves as the law school’s Interim Director of Diversity, where she spent the semester busily recruiting and putting together the entering 2018 Tennessee Institute for Pre-Law class.

Lynda Black Professor Black was appointed to serve as the law school’s Faculty Development Director. This position is a three-year appointment.

Jeremy Bock Professor Bock’s article, “Behavioral Claim Construction,” was published in the Minnesota Law Review in February 2018. In March, he spoke on an invited panel and also presented a paper at the Annual Conference of the American Psychology-Law Society.

30

Amy Campbell As Director of the Institute for Health Law & Policy, Professor Campbell led grant writing efforts resulting in successful awards in excess of $1.2 million on behalf of the law school that support the work of the Institute’s new iHeLP Policy Lab, the Medical-Legal Partnership (MLP), the Children’s Defense Clinic, and related endeavors, including funding three new 12-month fellowship positions for recent law school graduates and five health law student scholarships, and support for the Visiting MLP faculty position. Professor Campbell also received the Wexler/Winick Distinguished Service Award from the International Society for Therapeutic Jurisprudence (TJ), and was nominated to the Society’s founding Board. Additionally, she was also nominated to the Board of Common Table Health Alliance and began her three-year term in January. Professor Campbell was also an invited presenter at St. Thomas University School of Law in Miami Gardens, Florida, where she presented her newest research article focusing on trauma-informed, early care and learning policy.

Demetria Frank Professor Frank’s most recent article on prisoner free speech rights, “Blackout,” was accepted for publication by the Brooklyn Law Review. Additionally, she recently participated in TEDx Memphis discussing this topic. Professor Frank began teaching a new seminar course this fall on Mass Incarceration and continues to head Project MI, a group dedicated to finding communitybased solutions to the problem of mass incarceration. Professor Frank is the current faculty representative for the Law School Alumni Chapter Board, the faculty advisor to the Black Law Student Association and serves on the Deans Advisory, Admissions, & MLK50 Symposium Planning Committees.

Lisa M. Geis Professor Geis was recently named to the Board of Directors of the Central Juvenile Defender Center (CJDC). The Central Juvenile Defender Center is one of the nine Regional Centers of the National Juvenile Defender Center. CJDC focuses on juvenile law issues in Arkansas, Indiana, Kansas, Kentucky, Missouri, Ohio, and Tennessee. Additionally, she was recently named a member of the executive committee for The Catholic University of America’s Alumni Board of Governors.

Donna Harkness Professor Harkness presented her work, “Ageism and Financial Decision Making: Protection v. Paternalism” at the North Mississippi Rural Legal Services Elder Law Conference in Oxford, Mississippi. Professor Harkness is currently Chair of the Admissions Committee and a member of the Curriculum Committee.

D.R. Jones Professor Jones has been appointed to the national Technical Advisory Committee for LawArXiv, a new open access legal repository owned and maintained by members of the scholarly legal community. Professor Jones will present her new paper topic “Libraries, Contract and Copyright,” at the Works in Progress Intellectual Property Colloquium in the spring. Professor Jones also participated in a panel at the meeting of the Southeastern Association of Law Schools last semester. The panel discussed “Maximizing Scholarly Impact.” In October 2017, Professor Jones was re-elected to the Executive Committee of the Mid-America Law Library Consortium, where she also serves on the Board of Directors. Professor Jones was the lead commentator and discussion leader for a paper entitled “Institutionalized Privacy: A Typology of Privacy in Nursing Home Electronic Monitoring Laws,” at the Privacy Law Scholars’ Conference held in Berkeley, California in June 2017. She is the law school’s representative in the University of Memphis Faculty Senate and serves as the elected Parliamentarian of the Senate.

Daniel Kiel Professor Kiel has served as chair of the Faculty Recruitment Committee this year, as well as chair of the law school’s MLK50 Symposium Planning Committee.

Barbara Kritchevsky Professor Kritchevsky’s recent article, “What Does Law Have to Do With It? The Jury’s Role in Cases Alleging Violations of the Law, Custom, & Standards,” was accepted for publication in the Arkansas Law Review. Professor Kritchevsky will also present a work in progress on naming conventions in the Restatements of Law at St. Mary’s Law School early this year. Professor Kritchevsky currently serves on the Academic Affairs Committee and as Chair of the Curriculum Committee.

Ernest Lidge Professor Lidge’s article, “Wrongfully Discharged In-House Counsel: A Proposal to Give the Employer a Veto Over Reinstatement While Giving the Terminated Lawyer Front Pay,” was published this fall in Wake Forest Law Review.

Andrew McClurg Professor McClurg published the third edition of his popular law school prep book, “1L of a Ride: A WellTraveled Professor’s Roadmap to Success in the First Year of Law School” (West 3d ed. 2017). Professor McClurg also received the Farris Bobango Award for Faculty Scholarship for his article in the Florida Law Review, “The Second Amendment Right to be Negligent,” and was quoted by media sources such as The Wall Street Journal and U.S. News. He is currently working on a book about legal careers for West Academic Publishing with co-authors Christine Coughlin (Wake Forest) and Nancy Levit (MissouriKansas City). Professor McClurg serves on the Admissions Committee and as faculty advisor to the Memphis Law Review.

Steve Mulroy Professor Mulroy is currently working on a book focusing on election reform to be published in fall 2018. Professor Mulroy has also been working on a local election reform effort involving Instant Runoff Voting (IRV), which is currently set for a November 2018 referendum and possible implementation in Memphis City Council elections by fall 2019. He has recently appeared on Fox News as a commentator on the Mueller special counsel investigation. He serves on the MLK50 Symposium Planning Committee.

31

John Newman Professor Newman is currently researching “Procompetitive Justifications”, a key defense raised in most civil antitrust litigation. His paper on this topic was competitively selected for presentation at the NYU/ABA Next Generation of Antitrust Scholars Conference, the Midwestern Law & Economics Association’s annual conference, and the 2018 Loyola (Chicago) Antitrust Colloquium. His commentary on contemporary antitrust issues was recently featured in the New York Times. He has also joined Dr. Thibault Schrepel as a co-author of “Revue Concurrentialiste,” a widely read blog covering international competition law. In January 2018, Professor Newman gave a TEDx Talk on the dangers posed by “free” digital apps and services.

David S. Romantz Professor Romantz’s recent article “Reconstructing the Rule of Lenity” will be published in the Cardozo Law Review. In the article, he argues that courts have misapplied the venerable rule of lenity and for the rule to survive, courts must focus more on the due process implications of the doctrine. Professor Romantz and his co-author, Professor Kathleen Elliott Vinson of Suffolk University Law School, were awarded a contract to publish the third edition of their popular book, “Legal Analysis: The Fundamental Skill” (Carolina Academic Press). Last spring, the American Bar Association Section of Legal Education and Admission to the Bar asked Professor Romantz to serve on a special ABA fact-finding mission to a law school seeking ABA accreditation; this spring, he will serve on an ABA Accreditation Team for a law school’s seven-year sabbatical visit. Professor Romantz serves on the Dean’s Advisory and Academic Affairs Committees.

32

Daniel Schaffzin Professor Schaffzin has devoted significant time this year to providing national level training and consultation on strategies for resolving property vacancy and abandonment. He recently served as senior faculty for a first-ever Strategic Code Enforcement Academy hosted by the University of Memphis School of Law, where he provided training to delegations from seven cities. In November, Professor Schaffzin traveled to Providence, Rhode Island as part of a team from Neighborhood Preservation, Inc. to provide technical assistance to the mayor and law division related to the city’s strategy for addressing vacant and abandoned properties. Also active as a leader in the national clinical teaching community, Professor Schaffzin is now completing his first year as a member of the Executive Committee of the Association of American Law Schools’ Clinical Section. Notably, Professor Schaffzin was elected to serve as the Vice President (2018) and President-Elect (2019) of the Clinical Legal Education Association. This fall Professor Schaffzin also began serving as a member of the board of directors for the University Neighborhood Development Corporation and was elected as a Fellow of the Memphis Bar Foundation. Professor Schaffzin serves on the Faculty Recruitment and Curriculum Committees.

Faculty Accomplishments

Kate Schaffzin Professor Schaffzin assumed the role of Associate Dean for Academic Affairs this past July. She continues to teach Civil Procedure I and II to first year law students while also serving on the University’s Board of Trustees. She has two articles forthcoming: “Is Evidence Obsolete?,” to be published in the Review of Litigation and “First Generation Students in Law School: A Proven Success Model,” which will appear in the Arkansas Law Review early this spring.

Jodi Wilson As Director of Legal Writing, Professor Wilson successfully transitioned the law school to a full time legal writing program model this past fall. Professor Wilson serves as the current President-Elect of the Association of Legal Writing Directors (ALWD). Additionally, Professor Wilson’s article, “Proceed with Extreme Caution: Citation to Wikipedia in Light of Contributor Demographics and Content Policies,” was cited by the Supreme Court of Texas in the case of D Magazine Partners, L.P. v. Rosenthal. Professor Wilson serves as Chair of the ABA Standards Committee.

Christina Zawissa Professor Zawisza’s latest article, “MLK 50: Where Do We Go From Here?: Teaching the Memphis Civil Rights Movement Through a Therapeutic Jurisprudence Lens,” has been accepted for publication in Vol. VI of the Belmont Law Review. It is also abstracted today in: LSN Law & Society: The Legal Profession e-Journal, Vol. 13, No. 19.

Faculty Opinion/Editorial

From Player Pianos to Satellite Radio: The Complex History of Music Licensing

M

usic listeners in today’s world have a variety of options available, including vinyl records, CDs, AM/ FM radio, and satellite radio, as well as the ability to download or stream music to multiple devices. What many people are not aware of is that under federal copyright law the composers and performers of this music have different rights.

by Professor D. R. Jones

A musical recording consists of two copyrightable works. The first work is the musical composition embodied in the recording along with any lyrics. The other work is the sound recording which consists of the sounds fixed in a digital file or in a physical medium such as a CD.

in music delivery methods. Much of the current law is rooted in one-hundred-year-old determinations, technology, and practices. The outdated law has led to lawsuits and legislative attempts to remedy incongruous treatment. Recent examples include lawsuits against Sirius XM Radio by holders of copyrights in sound recordings and lawsuits against Spotify by holders of copyrights in musical compositions. Pending legislation in Congress includes the CLASSICS Act (sound recordings) and the Music Modernization Act (musical compositions).

A brief look at the history of copyright law gives quite a bit of insight into how we ended up with such a complex situation in today’s related music industry, in regards to copyrights and licensing.

A review of copyright law history reveals the origins of the issues. Federal copyright law has covered musical compositions since 1831. This early protection was for sheet music. At the turn of the twentieth century, phonograph records and pianos that played “piano rolls” offered new opportunities to listen to music. Copyright law covered duplication of sheet music, but there was no protection for compositions copied and played through the use of phonograph records or player pianos.

Copyright law has not kept pace with technological developments and the expansion

In 1908, the United States Supreme Court held in White Smith Music Publishing Company v. Apollo that

“musical sounds” created by the playing of a piano roll were not a “copy” of the musical compositions. A “copy” of a composition had to be capable of being seen and read. In the new 1909 Copyright Act, Congress overrode the White decision and granted the owners of musical compositions the right to make “mechanical” reproductions. Congress created a compulsory license for these mechanical reproductions. A ‘mechanical’ license still refers to a license to make a recording of a musical composition. Congress also granted owners of musical compositions the right to control performances of the composition. As an exercise of this right, composition owners could obtain a fee if a restaurant or other establishment played recordings of the composition. Congress did not grant any rights for owners of the sound recordings. For years after the enactment of the 1909 Copyright Act there were attempts to grant rights to the owners of sound recordings. These efforts failed in part due to the argument that the recordings were not “writings.” The owners of sound recordings had to rely on state law for protection. By 1971, there was enough concern about illicit activity that Congress (Continued on next page)

33

Faculty Opinion/Editorial

enacted legislation to grant the owners of sound recordings the right to control copying and distribution but not to control performance. This amendment to the 1909 Copyright Act was effective in 1972, and only covered those sound recordings made after the effective date. In 1976, Congress passed the current Copyright Act which retained the right of owners of sound recordings to control copying and distribution. The copying had to be of the actual recording. The law did not prohibit the making of a “sound alike” recording and there was still no right to control performance. In 1995, Congress finally allowed the owners of sound recordings to obtain fees for performance of recordings, but the right of performance only covered digital audio transmissions like satellite radio and not performances through “terrestrial” means. So, owners of sound recordings could collect fees for recordings played by satellite and internet radio, but not by terrestrial AM/FM radio stations. In contrast, owners of the musical compositions could obtain fees from all types of radio stations. An illustration of the complexity of music royalty payments is the continuing controversy regarding pre-1972 sound recordings. The owners of the musical compositions underlying

34

these recordings can control copying and distribution as well as all performances, including performances through digital radio stations and terrestrial AM/ FM radio stations. While owners of sound recordings gained limited rights in 1972, the change in federal copyright law applied only to sound recordings made after 1972. The 1976 Copyright Act continued this coverage, leaving pre-1972 recordings under the protection of state statutes and common law. The 1976 Copyright Act provides that state protection in pre-1972 recordings will expire in 2067 and these works will enter the public domain. Pre-1972 recordings were also not covered under the 1995 amendment which permitted owners of sound recordings to obtain fees for performance of recordings through digital audio transmissions. The discrepancy in treatment for pre- and post-1972 sound recordings has led to lawsuits and proposed legislation. One owner of pre-1972 sound recordings filed lawsuits in three states against Sirius XM Radio claiming unauthorized public performances under state law. The plaintiff in these cases, Flo & Eddie, Inc., owns the sound recordings of the Turtles, a band that had several hit songs in the 1960s including the song “Happy Together.” The principals in Flo & Eddie are two of

the original members of the Turtles. Sirius XM Radio broadcasts digital audio content including pre-1972 recordings. Flo & Eddie received no payments for performances of the pre-1972 sound recordings since those recordings are not covered under federal copyright law. Flo & Eddie, Inc. was successful in its lawsuit in California due to the existence of a California law covering pre-1972 recordings. Sirius XM Radio entered into a settlement in California case. Flo & Eddie was unsuccessful in New York and Florida since there was no statutory or common law right in those states that would allow payment for performance of these sound recordings. As these lawsuits demonstrate, states offer differing protection (if any) for pre-1972 recordings. In Tennessee, bills (HB 1603 and SB 1792) were introduced in January 2018 to provide protection for pre-1972 recordings. Congress has considered amending federal copyright law to cover pre-1972 recordings. The Flo & Eddie case illustrates the concern that a change in the law could address. Under current federal copyright law, the owners of the copyrights in the musical compositions underlying the Turtles’ pre-1972 recordings can receive payments for performance of the recordings by Sirius XM Radio. Flo & Eddie, however, cannot receive payment from

Sirius XM Radio since the sound recordings were made prior to 1972. If the recordings were made after 1972, Flo & Eddie could receive payment. The most recent proposal is the CLASSICS Act, which would allow owners of pre-1972 sound recordings to receive payments for performances through satellite, internet and cable radio. The Copyright Office has twice stated that pre-1972 sound recordings should be brought under federal copyright law, first in a 2011 report on pre-192 recordings and second in a 2015 report on the music marketplace. Any change in federal copyright law to address issues regarding music will come through specific legislation rather than as part of an overall revision of the law. There are too many divergent views to complete a total revision of copyright law in the near future. Even specific revisions regarding music have languished. For example, the Copyright Office issued its report on pre-1972 recordings in 2011 and there is still no resolution. A Federal change would provide the clarity needed since state laws conflict as to whether there is any coverage for these recordings. Hopefully there will be enough consensus in the next few years to address the disparities in music licensing and bring the law into the twenty-first century.

2018

PILLARS of

EXCELLENCE

Saturday, August 18 | Hilton Memphis Hotel

Honorees

Honorable Kenny Armstrong | Tennessee Court of Appeals James S. Gilliland | Glankler Brown, PLLC J. Houston Gordon | Law Office of J. Houston Gordon James Jalenak | Of Counsel at Harris Shelton Hanover Walsh, PLLC Stephen McDaniel | Williams McDaniel, PLLC

Friends of the Law School

The Honorable Bill Haslam, Governor of Tennessee & First Lady Crissy Haslam

alumni.memphis.edu/pillars2018