Zappa estate targets EMusic in copyright suit

As online music distributor EMusic sues Napster, it is being hit by a lawsuit of its own.

Gail Zappa, widow of the late musician Frank Zappa, filed a lawsuit against EMusic on Friday over copyright infringement. The suit, filed in U.S. District Court in Los Angeles, alleges that EMusic distributed Zappa songs without licensing the underlying publishing rights, according to Zappa's attorney Yakub Hazzard, a partner at Alschuler Grossman Stein & Kahan.

In a statement, EMusic said it sold "a small collection" of Zappa songs on its Web site in 1999 under a licensing deal with Zappa's label Rykodisc, but it pulled the songs about a year ago. The company said it has agreed to pay the going rate for the songs and had been negotiating in good faith with the Zappa estate over back royalties when the suit was filed Friday.

"It is unfortunate that the Zappa estate has chosen to pursue legal action on an issue that represents such an extremely small dollar amount," the company wrote in an e-mail.

The suit comes as the list of copyright infringement cases over music downloads continues to swell. Last week, EMusic followed the producers of the Grammy Awards by filing a lawsuit against Napster, which is already battling a high-profile case with the Recording Industry Association of America.

"Partly what we're seeing is a bandwagon that everyone wants to jump onto," said Anthony Berman, a partner at Idell Berman & Seitel who is not involved in the Zappa case. "And the very decisive victory of the RIAA against Napster certainly sends a signal to content owners all around the world that they can and probably should go after perceived infringement of their materials."

The Zappa lawsuit seeks damages for alleged infringement of 37 "musical compositions written, composed, arranged and/or performed by the late Frank Zappa," who died in 1993 at age 52.

Gail Zappa's attorney said that EMusic licensed the sound recordings from Rykodisc but failed to secure the rights to the underlying songs, owned by the Zappa Family Trust.

"When EMusic contacted Rykodisc (prior to Jan. 1, 1999) to obtain permission to use the recordings, we allege that they were advised at that time that they also needed to contact the Zappa Family Trust in order to get permission to use the songs that are embodied in those recordings," Hazzard said. "And they failed to do so."

Gail Zappa is the trustee of the Zappa Family Trust, which was created in Los Angeles in 1990. Among the 37 songs cited in the lawsuit are "Tears Begin to Fall," "Eat that Question," "Sofa No.1," "Sleep Dirt," and "In France."

EMusic said it has a track record of dealing fairly with artists' rights, including securing a stable of licensing deals from rights clearinghouses such as Broadcast Music Inc. (BMI), the Harry Fox Agency and the American Society of Composers, Authors and Publishers (ASCAP).

Gail Zappa did not immediately return phone calls for comment.