One could make a good argument that Harold Arlen and Yip Harburg’s “Over the Rainbow” is the iconic American popular tune. The song, written for the 1939 movie “The Wizard of Oz” starring Judy Garland, has been recorded thousands of times. In 2001, the National Endowment for the Arts and the Recording Industry Association of America voted it the greatest song of the 20th century.
Earlier this month, the estate of Harold Arlen, who wrote the music for Harburg’s lyrics, and Arlen’s son Sam filed a lawsuit in federal district court claiming that more than 6,000 unauthorized versions of the song are available for listening or purchase on streaming services from Apple, Amazon, Google, Microsoft and numerous other music sellers.
The 148-page filing alleges that the pirated versions of Arlen’s song are stealing his estate’s share of the royalties that have not been paid for the right to sell these versions. Furthermore, the suit alleges, the digital music sites have demonstrated “a complete willingness … to seek popular and iconic recordings from any source, legitimate or not, provided they participate in sharing the proceeds.”
As an example of the impact of the pirated copies on royalty payments, the filing notes that “Amazon currently offers two copies of the 1964 Ethel Ennis recording of Harold Arlen’s classic, ‘For Every Man There’s A Woman’: the legitimate RCA (Sony) release selling for $1.29 … and a pirated copy released by pirate label Stardust Records … selling for $0.89.” Amazon, of course, is paid the same fee by the seller, regardless of the provenance of the song.
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The lawsuit cites 54 alleged violations between distributors and Amazon, 39 violations involving Apple, 51 involving Google, 54 involving Microsoft and 20 involving Pandora Music, currently owned by Sirius XM.
According to a BBC report, Arlen’s estate is seeking damages “in the region of $4.5 million.”
If ever a case cried out for a settlement, this is it. Apple just paid at least $4.5 billion to settle its acrimonious dispute with Qualcomm over chip royalties. Google has paid more than $9 billion in fines imposed by the European Union for anti-competitive practices. Billion-dollar fines are just the cost of doing business, so Arlen’s estate is seeking an amount that’s barely a rounding error.
Don’t be surprised, however, if the music services fight it out. By settling, the companies are tacitly agreeing to police themselves and other companies that sell either to or through them. That is something all are reluctant to do because such policing costs money and because it opens them up to even harsher scrutiny and penalties if they engage in the same behavior again.
“Over the Rainbow” won an Academy Award in 1939. Take a look at every song that has won the Oscar for Best Song since 1934.
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