The Music Legal Forecast for 2017

Lawsuits, legislative change, and legal matters are, for the most part, extremely slow. In that context, cases are often easily forgotten and legal concerns are often set aside in a fast moving news cycle. Many of the legal movements of the last year promise consequences that have yet to unfold. Here are a few of the issues that stood out in 2016 and will continue to make waves in the music industry this year.

Setting aside the ominous suggestion that an oppressive Trump presidency might breed art, in the months leading up to his inauguration, Trump and his appointees overwhelmingly proved that they will be a serious threat to lawful creative expression and the industry surrounding it. Intellectual Property law, in the past, has not been a hotly contested partisan issue, but Trump's constant opposition to the media and liberal artists undoubtedly imperils creative expression. In his past, he's used lawsuits against journalists as revenge tools and threats as a means to silence artists whose work he would like to stifle. In his nominee for Attorney General's confirmation hearing, Jeffrey Sessions noted that his Department of Justice would consider bringing back obscenity prosecutions. Although in the Bush years obscenity prosecutions leaned heavily towards pornography, it is worth remembering that in 1990, 2 Live Crew were arrested for performing "As Nasty As They Wanna Be" in public under the premise of this law. If Trump's vengefulness tells us nothing else, it's that political speech, in all of its forms, is at risk.

As streaming continues to cement itself as the way forward for music distribution, legal issues abound. In June of last year, Spotify accused Apple of violating antitrust laws in the App Store by forcing iPhone users who purchase Spotify subscriptions on the App Store to effectively pay a surcharge over their subscription fee. Allowing the surcharge to subsist would put any other streaming service at a serious competitive disadvantage vis-a-vis Apple Music. Recently, members of Congress asked the FTC to look into these allegations and anti-competitive practices in app markets more generally. As Apple expands its offerings and competes across more app sectors, expect attention on this topic.

Last year we also saw artists like Frank Ocean jump ship from their labels to enter into their own deals with streaming companies. Exclusive deals offer huge upsides to artists; Drake was reportedly promised $19 million from Apple in exchange for exclusivity, so it should be no surprise that we'll continue to see artists gravitate towards these partnerships. When a well-known artist allies with a streaming company with deep pockets, major labels can be squeezed from the equation. One major label last year, clearly feeling the heat of increasing challenges in the digital world, announced they were banning streaming exclusive deals for their artists. It's unclear whether other labels will follow suit. Expect to see some legal action in this space next year.

In 2015, Marvin Gaye's heirs were awarded $7.4 million dollars by a jury who concluded that Pharrell Williams and Robin Thicke had infringed Gaye's song "Got to Give it Up" in their composition "Blurred Lines." The award, even after being reduced by the judge to about $5.3 million, is steep in proportion to similar past cases. It also tackles a new landscape in the copyright field, as it is one of the first in which the jury found liability based on the overall "feel" or "groove" of the song, and not based on similarity of particular excerpts of the competing songs. Those on the Williams/Gaye side of the appeal—212 artists and songwriters including T.I, Jennifer Hudson and Hans Zimmer—argue that upholding the verdict allows courts to punish artists who are merely inspired by earlier artists, hence stifling creativity, chilling the artistic process and leading to an uptick in copyright lawsuits. If this attitude doesn't prevail, expect to see more lawsuits by inspirationally significant artists and their estates.

As the Lil Wayne versus Cash Money saga drags into another year, the tension between them threatens reaching a critical boiling point. They ended the year the way it began, continuing to exchange public spars over whether or not Tha Carter V will ever see the light of day. When we looked at the case earlier last year, Birdman seemed to be purposely subverting Wayne's efforts to bring an end to the dispute. A few days before Christmas, Martin Shkreli claimed to have a copy of The Carter V and played a track on Periscope. Sources close to Wayne suggested that this might lead to an infringement lawsuit. Expect more legal action if the leaks continue, and if the dispute between Birdman and Wayne progresses significantly this year, a trial could be in the near future.

Kanye, Kendrick Lamar, and Wiz Khalifa are all currently embroiled in sampling lawsuits that have taken months to develop. Sampling is used extensively in hip-hop, and the laws surrounding it are widely misunderstood and routinely ignored by artists, even at the highest levels. There are two schools of thought within US courts on the topic; in 2016, courts in California recognized a de minimus exception, declining to require clearance for a <1 second sample on Madonna's song Vogue. Other courts in the country are more firm on the "get a license or do not sample" mantra, regardless of length of the sample or commercial use of the work. "Fair use," which overwhelmingly does not apply in the sampling context now, is a flexible concept that is capable of adjusting to prevailing norms and changing technology. Until there is clarity in the law, expect to see more artists sued this year.

In April of 2016, a disgruntled fan sued Kanye West and Tidal on behalf of himself and other Kanye fans who claimed they had been fraudulently induced to sign up for Tidal under the premise that it would be the only place they could get the The Life of Pablo. He alleged that when Kanye tweeted that TLOP would never be available anywhere but Tidal, he made a promise to his fans. His fans signed up for Tidal based on that promise, handing over valuable data and in some case, subscription fees. Shortly after, Kanye made his album available for sale on his website and it was streaming on other major platforms. The case is currently chugging along and is worth keeping an eye on. Not only could it provide some guidance on using tweets as statements of guarantee in the context of advertising, but it could pave the way for settlement money for everyone who signed up for Tidal in the period shortly after TLOP's release.

Last, but not least: Kodak Black. Kodak was given the shot of a lifetime in August when a Florida judge decided to invoke a rarely used legal loophole which would allow him to keep an essentially clean record in exchange for serving a sentence of house arrest and probation, and most importantly, not fucking up again. In the process of releasing him from custody, multiple arrest warrants surfaced in his records. He remained in jail in Florida through November, serving time there for other prior crimes, before being extradited to face charges of first degree sexual assault in South Carolina. He was released in December on $100,000 bail and is now serving house arrest as per the terms of his earlier Florida deal while he awaits trial. The SC case appears to be moving along slowly, but he is still facing serious jail time (a maximum of 30 years), and his most recent antics—threatening to fight Lil Wayne, live-streaming himself receiving oral sex in a hotel—suggest that he might run afoul of his deal in Florida. If he breaks the rules of his house arrest or probation, he's likely to see more jail time, on top of his impending South Carolina charges. Expect more to unravel this year.

Illustration by Michael Alcantara. Find more of his work here.

Jessica Meiselman is a lawyer and writer based in New York. Follow her on Twitter.