SPOTIFY MAKES MOTION TO RESTRICT COMMUNICATION BETWEEN WIXEN MUSIC PUBLISHING, INC., ITS CLIENTS, AND THEIR ATTORNEYS
On Friday January 5, 2018, attorneys for Spotify made a chilling request of Judge Alison Nathan in the Ferrick vs. Spotify lawsuit intended to limit WIXEN MUSIC PUBLISHING, INC. clients who opted out of that suit from having free and unrestricted communications with Wixen and Donahue Fitzgerald LLP, the attorneys representing them in the Ferrick vs. Spotify and Wixen vs. Spotify lawsuits.
WIXEN MUSIC PUBLISHING, INC. founder Randall Wixen responded by saying “This request is totally outrageous. Our clients look to ourselves and their attorneys as trusted advisors. To prevent us and their attorneys from having unmonitored discussions with our clients without Spotify and Court supervision prevents any discourse that would normally be privileged communications. This is clearly an attempt to prevent our clients from getting our frank input and having questions answered without the threat of Spotify reviewing and having input into those discussions. We are hopeful that Judge Nathan will reject this request outright.”
The actual wording of the proposal regarding the extended opt-out proposal being proposed is as follows:
“….the Court should preclude Wixen Music (and/or its counsel) from ex parte communications with recipients of the supplemental notice regarding the supplemental notice. To the extent that recipients have questions about the supplemental notice or the extended opt-out process, they may communicate those questions to [Settlement Administrator] GCG, which will inform the parties and counsel for Wixen Music of those questions. Wixen Music (and/or its counsel) and the parties shall also be required to forward any questions submitted directly to any of them by recipients of the supplemental notice to GCG. Wixen Music and the parties will be required to meet and confer regarding the questions and prepare an agreed-upon response to be transmitted by GCG. If Wixen Music and the parties cannot agree upon a response within two business days, they will provide a joint status report to the Court for prompt resolution.”
Wixen continues: “The request also includes other requirements that would likely confuse our clients and make it very difficult to remove themselves from the Ferrick suit, even though they have made it abundantly clear they want to do so. Our clients already believe we are representing them, and they are likely to ignore a second opt-out notice in the belief that we are already handling everything for them. As if this weren’t enough, Spotify and Ferrick class counsel propose to set up further road-blocks for opting out of the Ferrick suit including forbidding our clients’ managers, business managers, spouses, agents, and attorneys from confirming that Wixen Music Publishing, Inc. and Donahue Fitzgerald LLP in fact represent them, having such confirmations go through a third party claims administrator who doesn’t possess accurate information on how to contact our clients, and enforcing a slim 30-day period for 538 such affirmations of representations to be obtained. Without any doubt, the intention is to disenfranchise our clients’ legal rights and subvert their intentions.”
WIXEN has had hundreds of affirmative communications from its clients cheering the actions taken by Wixen on their behalf, and has had major songwriters who are not Wixen clients, a major management company, and three major law firms, asking if they can take part in Wixen’s Ferrick suit opt-outs and if they can join Wixen vs. Spotify suit at this time. According to Randall Wixen, “We have heard from hundreds of Wixen clients, and many people we don’t represent, cheering us on.”
Randall Wixen concludes: “We remain optimistic that we can continue a meaningful dialog with Spotify, and are hopeful that we can put these matters behind us with a fair resolution that works for all parties.”
The cases are Ferrick et al. v. Spotify USA, Inc., Case No. 1:16-cv-08412 (Southern District of New York) and Wixen Music Publishing, Inc. v. Spotify USA, Inc., Case No. 2:17-cv-09288 (Central District of California).
Wixen Music Publishing, Inc. 24025 Park Sorrento #130 Calabasas, CA 91302
Tel. 818 591-7355 Fax 818 591-7178
Daniel Schacht, Esq.
Donahue Fitzgerald LLP
1999 Harrison Street 25th Floor Oakland, CA 94612 Tel: (510) 451-3300 Fax: (510) 451-1527
AND ITS CLIENTS HAVE ELECTED NOT TO PARTICIPATE IN THE FERRICK VS. SPOTIFY CLASS ACTION LAWSUIT THAT ADDRESSES WRONGDOING BY SPOTIFY
INSTEAD, AIM FOR AMICABLE SETTLEMENT FOR ITS PAST INFRINGEMENTS AND UNLICENSED USES, AND SEEKS TO WORK OUT A GO-FORWARD LICENSE WHICH IS FAIR TO ALL PARTIES
WIXEN MUSIC PUBLISHING, INC. is well-known in the music industry for supporting the rights of songwriters and publishers. Founded in 1978, the Los Angeles-based company represents thousands of songwriters and publishers, including many of the top acts in music.
On December 21, 2017, Congressman Doug Collins introduced the Music Modernization Act Of 2017. WIXEN MUSIC PUBLISHING, INC. recognizes that a good deal of compromise went into crafting a bill that would please a diverse coalition of music industry groups and praises David Israelite and the NMPA for their help in working with Congressman Collins on this legislation.
In spite of its general support for the Act, WIXEN MUSIC PUBLISHING, INC. president Randall Wixen explains that “unfortunately the bill disenfranchises our clients from legal redress for infringements made of their songs without proper licenses by various streaming services.” Within the Act is a provision that (once the bill becomes law) would eliminate important legal remedies that publishers have against Spotify and similar services that may have infringed their works if suits were filed on or after January 1, 2018.
WIXEN MUSIC PUBLISHING, INC. and its clients have elected not to participate in the Ferrick vs. Spotify class action lawsuit that addresses this wrongdoing by Spotify, in part because of their belief that the proposed settlement is inadequate, because too much of the settlement is going to legal fees, and because the terms of the go-forward license in the settlement are not in their long-term best interests. WIXEN MUSIC PUBLISHING, INC. was and is desirous of sitting down with Spotify to work out an amicable settlement for its past infringements and unlicensed uses, and seeks to work out a go-forward license which is fair to all parties.
Mr. Wixen remarked: “We are very disappointed that these services will retroactively get a free pass for actions that were previously illegal unless we actually file suit before January 1, 2018. Neither we nor our clients are interested in becoming litigants but we have been faced with a choice of forfeiting rights and damages, or taking action at this time. We regret that this otherwise admirable proposed bill has had this effect, and we hope that Spotify nonetheless comes to the table with a fair and reasonable approach to reaching a resolution with us. We are fully prepared to go as far forward in the courts as required to protect our clients’ rights.”
Wixen continues: “We’re just asking to be treated fairly. We are not looking for a ridiculous punitive payment. But we estimate that our clients account for somewhere between 1% and 5% of the music these services distribute. Spotify has more than $3 billion in annual revenue and pays outrageous annual salaries to its executives and millions per month for ultra-luxurious office space in various cities. All we’re asking for is for them to reasonably compensate our clients by sharing a miniscule amount of the revenue they take in with the creators of the product they sell. Music fans should be able to enjoy Spotify, knowing that their favorite artists are being treated fairly.”