IP Law Daily, COPYRIGHT—1st Cir: To identify the featured artist, judge an album by more than its cover, (Jun 20, 2024)

By Matthew Hersh, J.D.

A performer does not have be depicted on album artwork to qualify as “featured” when it comes to the distribution of streaming revenues.

The longtime lead singer of a popular Puerto Rico ensemble band was entitled to his share of revenues from online plays of the band’s music because he was considered a featured artist under the federal law governing the apportionment of digital streaming revenues of sound recordings, the U.S. Court of Appeals for the First Circuit has held. The court, in reversing a grant of summary judgment in the bandleader’s favor, found that federal law considered a performer a “featured” artist even if that artist was not literally featured by name on an album cover (Ithier v. Aponte-Cruz, No. 22-1859 (1st Cir. June 18, 2024)).

The background for the lawsuit is a provision of the Digital Performance Right in Sound Recordings Act of 1995, now codified as part of the Copyright Act at 17 U.S.C. § 114(g)(2)(D). Under that provision, the amount that sound recording owners must charge digital services for certain online streaming activities is set by a federal board that sits within the Copyright Office. (The regulated rate applies only to the streaming of what is essentially digital radio as opposed to interactive services in which the listener can choose individual songs—think Pandora, not Spotify.) That provision of law dedicates 45% of those revenues to the “artist … featured” on the recordings, irrespective of the contractual arrangement between the band and its producer or label. It also dedicates another 2.5% each of those revenues to non-featured musicians and vocalists, respectively.

The dispute centers around Puerto Rico supergroup El Gran Combo. The ensemble band, formed by Rafael Ithier in 1962 (and still going strong today), typically has 14 members—three singers, two saxophonists, two trumpeters, a trombonist, a bassist, a pianist, a timbalero, a conguero, a bongosero, and a director. Until his death in 2022, Ithier selected the band’s members. He also hired backup vocalists or chorus members solely for the purpose of recording sessions. Carlos Aponte-Cruz, a former lead singer for El Gran Combo, was a member of the band for 41 years and the lead vocalist in over 200 of the band’s sound recordings. However, the band’s album releases did not depict or name Aponte-Cruz on the cover. Instead, the albums and related artwork focused on the band as a whole.

The former lead singer and bandleader sued one another in the Puerto Rico district court, each seeking a declaration as to whether the lead singer was entitled to a share of featured artist revenue. The district court, adopting the report and recommendation of a Magistrate Judge, ruled in the bandleader’s favor, leading to this appeal.

Featured artist. The Court of Appeals reversed, finding that the singer should be considered a featured artist under the DPRSA. The key issue, the court found, “turns on the following question about the phrase ‘recording artist or artists featured on such sound recording’ in §114(g)(2)(D). Does that phrase, with respect to the sound recordings in question, refer to El Gran Combo as a distinct entity independent of any of the band's individual members or only to the individuals who make up the band, including Aponte-Cruz as the lead vocalist?” The court found that it did, for several reasons.

For one thing, the court noted, the bandleader’s interpretation “would upset the way that the statute has long been implemented.” SoundExchange, the entity designated by the Copyright Office to distribute streaming royalties for sound recordings, has a longstanding practice to distribute 45% of statutory royalties to the solo artist, or members of a group of artists, featured on a recording, the court noted. Importantly, court noted, this revenue has not gone to the owners of the band, “regardless of whether the cover of an album that contains a recording mentions only the band and thus none of the band's members.”

Nor did dictionary definitions advance the bandleader’s cause, the court found. The bandleader pointed to dictionaries that defined the term “featured” as “displayed, advertised, or presented as a special attraction.” But the court was not persuaded. To be sure, the court noted, the statute's use of the word “featured” distinguished between recording artists who are “featured” and those who are “nonfeatured.” “But the use of the word ‘featured’ does not in and of itself tell us that the ‘recording artist or artists featured’ on the sound recordings on a band's album cannot be any of the individual members of that band whenever the album cover refers only to the band itself and not to any of the individual members,” the court said. Moreover, the court noted, the statute used ample language suggesting that the person “featured” was intended to be a natural person and not an entity such as a band.

The bandleader’s definition also did not comport with common-sense readings of the term. As the court stated in the very first line of its opinion: “If you think that Paul, John, George, and Ringo were ‘the recording artist[s]... featured’ on the White Album—even though that iconic record's cover mentioned none of The Beatles by name—then you will not be surprised by the analysis that follows.” It was therefore only logical, the court reasoned, that “even though the covers for the El Gran Combo albums that contain the disputed recordings refer only to the band itself and not to any of its individual members, the Paul (or, if you prefer, the John) of El Gran Combo, Aponte-Cruz, is a ‘recording artist... featured’ on the recordings in dispute.”

A more logical reading of the statute, the court found, suggested a different line of distinction between “featured” and “non-featured.” Rather than a focus on album art, the court reasoned, the reading that comported best with the statutory text and legislative intent was to draw the line between regular members of the band and session artists—that is, artists brought in only for studio recordings but not otherwise treated as part of the ensemble. “We must say,” the court noted, “there is some intuitive appeal to the notion that Congress did not use the word "featured" to equate a star like Lennon or McCartney with a session musician like Frederick Alexander (who played the cello for ‘Martha My Dear’ on the White Album), such that each would be entitled to only equal portions of the 5% share of royalties owed to ‘nonfeatured’ artists.”

The Case is No. 22-1859.

Judge: Rikelman, J.

Attorneys: Roberto Sueiro-Del Valle (Roberto Sueiro Del Valle Law Offices) for Rafael Ithier and EGC Corp. a/k/a El Gran Combo. Jose A. Hernandez-Mayoral (Hm & Rmac LLC) for Carlos Juan Aponte Cruz.

Companies: EGC Corp. a/k/a El Gran Combo

MainStory: TopStory Copyright GCNNews MaineNews MassachusettsNews NewHampshireNews PuertoRicoNews RhodeIslandNews