Surfin’ the Ninth Circuit

“Get it in writing” might be the lesson from a lawsuit heard by a U.S. Court of Appeals panel meeting in Pasadena, Calif., in June. At issue: a claim by former Beach Boys band member David Marks that Capitol Records failed to pay proper royalties on foreign sales of streaming music. Yet for circuit judges at the June 12 hearing, Marks’ breach of contract claim boiled down to one problem: Where’s the contract?

Marks, 74, played on albums released by the iconic band in 1962 and 1963. He left after a dispute with the band’s manager, but ­continued to receive royalties on record sales. Yet none of the contracts the youthful Marks entered into—the latest in 1972—contemplated a market now dominated by streaming music.

Even so, Capitol Records paid royalties at a rate of 50 percent of income received from foreign streaming sales, as reflected in royalty statements. Capitol’s attorney argued there was no contract, yet the company said it paid royalties as “goodwill.”

Not so, argued Marks, who filed a federal lawsuit in 2021 on behalf of himself and similarly situated “legacy” artists. Marks’ attorney argues that the 1972 contract had been modified by Capitol’s practice of paying royalties on streaming music. But he told judges the company breached the contract by collaborating with foreign affiliates to withhold an unspecified percentage of revenue overseas, applying the 50 percent royalty rate only to what was received stateside.

A lower federal court previously dismissed Marks’ claims in April 2022. A ruling from the 9th U.S. Circuit Court of Appeals is expected this summer.

Music industry to Twitter: Take down the tunes

Record companies and music publishers have bled income ever since the advent of digital music, though legal streaming has stemmed some of the flow. Now a group of 17 music publishers is suing Twitter for copyright infringement.

In a lawsuit filed in a Nashville, Tenn., federal court June 14, the publishers argue the social media platform’s failure to require licenses for user-posted music has enabled thousands of copyright violations. Publishers say copyrights for over 1,700 songs have been infringed, and they seek as much as $250 million in damages. They accuse Twitter of delaying or failing to remove content even after being notified of infringement.

Unlike some other online platforms, Twitter lacks a music licensing agreement with publishers. Negotiations over rights stalled after Elon Musk took over the company last year. —S.W.