Copyright Issues Archives

Fair is not always “Fair Use”

The concept of “fair use” is a very misunderstood concept. The first common misunderstanding that people espouse is that the concept of “fair use” is a right or privilege granted by copyright law. It is not. Secondly, many people mistakenly believe that so long as they do not make any money from an infringing use of copyrighted material, then the use is a fair use. This is also an incorrect assumption.

Fair use is not a right or a privilege to be exercised at one’s whim. Rather, the doctrine is an “equitable rule of reason” that may be used as an affirmative d

efense in a copyright infringement action. The purpose of the rule is to balance the equities between the desire to protect and therefore encourage the creation of new ideas and the desire to encourage the free exchange of speech in the marketplace of ideas. The tension was described by Justice Souter as “simultaneously protect[ing] copyrighted material and allow[ing] others to build upon it.” Nonetheless, the thing to remember is that application of the fair use defense is declared by judicial fiat in the context of a copyright infringement action. It is applied on a case-by-case analysis of the factual situation. Thus, fair use is not a presumptive right or privilege that may be exercised by the infringing party.

There are four factors weighed by the Supreme Court in making a determination of whether a derivative work constitutes a “fair use.” These factors are (1) the nature of the work itself; (2) whether or not the work is commercial in nature; (3) the amount of the copyright work that is used; and (4) the effect of the use on the potential market or value of the copyright at issue. Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841), codified at §107 of the 1976 Copyright Act.

The nature of the work refers to the “nature” of the unauthorized derivative work, not the original copyright work. In order for such an unauthorized use of copyrighted material to be entitled to the“fair use” defense, the new creation must transform the original copyrighted material. A “transformative work” is defined by the U.S. Supreme Court as one that “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” See, Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994). While all factors must be considered, this is perhaps one of the more critical factors in the analysis. Merely modulating the pitch of a song or inverting the sequence of a chord progression would probably not be considered transformative. A very good example of a derivative work that is transformative in nature is Alice Randall’s The Wind Done Gone, the same story as Margaret Mitchell’s Gone with the Wind, but told from the perspective of a mulatto slave who is the half-sister of Scarlet O’Hara, the main character in the original work. See Suntrust v. Houghton Mifflin Co., 252 F.3d 1165 (11th Cir 2001) per curiam, opinion at 268 F.3d 1257. In that case, the Eleventh Circuit extended the protection of a musical parody in Acuff Rose to the novel.

With regard to the second factor as to whether a use is commercial in nature, it should be noted that this does not necessarily mean that the new creation has to generate profits. If the new work create a significant fan, donor and/or advertiser base, those factors tend to lead to a conclusion that it is commercial in nature. A person simply does not have the “right” to use copyrighted works in any manner as long as no profit is generated from the use. It is also evident that this factor does not mean that simply because a derivative use does in fact generate profits, that it is by default not a fair use. In Acuff Rose, 2 Live Crew’s parody version of Roy Orbison’s Oh Pretty Woman had sold over 250,000 copies, yet was still considered a “fair use.” The thing to be remembered is that this is but one of the factors.

The third factor is fairly easy to evaluate: the more material “borrowed” from the copyrighted source, the less likely the infringer is to have a “fair use” defense. Again, another misconception is that there is a bright line test for fair use: that a few measures of a song, a couple of lines from a poem, a few hundred words of a paragraph, or a few paragraphs from a book, are considered fair use. This misconception has no basis in either the Copyright Act or the case law interpreting it. It is merely folklore. The factor, as used by the courts, is more of a sliding scale based, again, on the quantity of the material used from the copyrighted work as compared to the total material.

Finally, the last factor weighs the impact on the infringing use on the potential market and value of the copyright. This was an integral part of the Supreme Court’s ruling in Acuff Rose that 2 Live Crew’s parody of Roy Orbison’s Oh Pretty Woman did not impact the potential market for the original. The more a derivative work negatively impacts the potential market for and value of the copyright, the less likely it will a “fair use.”

In summary, as you may have noticed, the fair use doctrine is by no means a bright line test. Each “fair use” defense is, by its very nature, evaluated on a case by case analysis in the context of a copyright infringement action. Fair use is not something to be relied on as a presumptive right.

Technorati Tags: Fair Use,Copyright Infringement,Parody,Music Lawyer,Entertainment Lawyer,Music Law,Entertainment Law,Campell v. Acuff Rose

“More than a Feeling” – Momma, look what they’ve done to my song!

I received a call from one of my readers to address the topic of whether a songwriter has the ability to restrict the use of his or her composition in the instance it is being used in advancing a cause opposite to that espoused by the songwriter. This was spawned, of course, by the recent allegations of Tom Scholz, lead member of the group Boston, that his 1970’s mega-smash “More than a Feeling” was being used by Mike Huckabee, whose views were opposite those held by Scholz. It is an interesting inquiry, and one that has simple solutions, mostly based in contract law.

There are two contract concepts that are usually incorporated into standard music publishing agreements which impact this issue: one is the concept of droit or moral rights and two is the restrictions on exploitation. I’ll address them in reverse order.

Grant of Rights

Typically, when a songwriter assigns his copyright in a song to a music publisher, there is grant language contained in the agreement expressly establishing the rights he or she is granting to the music publisher. In that contract language, there is typically a clause that reads something like this:

The Publisher shall have the right to administer, use and exploit all interests in the Compositions . . . provided, however, that the approval of Writer shall be required for the use of any Composition:

(i)    in any motion picture which Publisher has actual knowledge of an “X” or equivalent rating;

(ii)    in any advertisement or other promotion for tobacco, firearms or personal hygiene products; or

(iii)    in connection with religious or political purposes.

As you can plainly see, in this instance at least, the music publisher would be contractually required to obtain the approval of the writer prior to authorizing the use of the composition in a political rally, among other things.

If this type of language is not included in the songwriter agreement, or if the grant language included in the songwriter’s agreement is, in general, more broadly worded, then the rights of the songwriter to restrict the use of the song would be greatly impaired.

Droit or Moral Rights

The other legal concept which comes in to play, both from an historic perspective and contractually, is the concept of droit or “moral” rights, although it is important to realize up front that this concept is most often applied, in the U.S. at least, to works of visual art, not musical compositions.

First, in connection to the copyright concept, don’t infuse the the word “moral” with the ethical connotations generally associated with in in the United States. The use in this concept is much more in the sense of an embodiment of a type of something, i.e., the Monet painting is the moral equivalent of impressionist art. As used in this sense, it refers to the ability of the creator of a copyright to control the “embodiment” of his work, or its “integrity.” The French-derived word “Droit” is, perhaps, more to the point when discussing copyright: it means “a legal right.”

So, in the United States at least, the phrase “droit” or “moral rights” generally refers to the right of the copyright creator to prevent third parties from taking credit for, revising, altering, or distorting his or her creation, regardless of who owns the work, i.e., regardless of whether the copyright has been assigned or transferred.

In contrast, the concept has generally received much broader application in European states. France, for example, recognizes four moral rights:

the right of disclosure;
the right to correct or withdraw works previously disclosed to the public;
the right of attribution; and
the right of integrity (the right to “respect” the work).

When the U.S. joined the Berne Convention, Congress attempted to bring its copyright laws into line with those of the other signatory companies by passing Visual Artists Rights Act of 1990 (VARA) codified generally at 17 U.S.C. §§106, 106A, and 113. As implied earlier, however, this statute applies solely to visual arts and not musical compositions. Nonetheless, the concept of droit or moral rights may be invoked when dealing with the misappropriation of a songwriter’s musical composition.

In addition to copyright law, there a several other legal concepts which may be implicated in this situation. For example, if a person is somehow giving false attribution to a creative work, e.g., attempting to pass off an creator’s work as his or her own, that person may be liable under the concept of “unfair competition,” which is barred by the Lanham Act (15 U.S.C. §1051). Or, if the creation is widely recognized as a work of the creator, any distortion or alteration of the creation may constitute trademark “dilution” under trade dress laws and statutes. More generally, if authorship of a work is somehow falsely attributed, the creator may have a state action for defamation against the person responsible for the false attribution. If a person uses the identity of an songwriter, or the compositions, for his or her own benefit without permission, a violation the songwriter’s right of publicity may have occurred. Thus, there may be several remedies available in this type of situation.

In the US, however, it is accepted practice that if a person can waive a right, such a waiver will be in a contract. This is no exception. Again, there is language in most songwriting agreements which “waives all droit or moral rights” in the copyright. Such a waiver would likely nullify any of these general legal remedies available to the songwriter.

As always, I highly recommend that any songwriter contemplating a deal with a music publisher contact a reputable entertainment attorney.

Technorati Tags: More than a Feeling,Tom Schulz,Boston,70’s Rock,Copyright Infringement,Music Publishing,Songwriters,Songwriting,Music Lawyer,Copyright law,Droit Rights, “http://technorati.com/tags/Moral%20Rights” rel=”tag”>Moral Rights

Columnist David Pogue sings a humorous diddy about the RIAA

New York Times technology columnist and Emmy-award winning CBS news correspondent David Pogue is featured in this YouTube video singing a fun diddy about the digital wave of media on the Internet, ending with a humorous take on the RIAA and its wave of litigation against college students nationwide. Enjoy

[youtube=http://www.youtube.com/watch?v=xF7cHmyEJ-c&rel=0]

Technorati Tags: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

Atlantic Records et al. v. Brennan: Federal Judge Denies Default Judgment for RIAA

U.S. District Judge for the District of Connecticut Justice Janet Bond Arterton, handed down a very pointed and decisive opinion hammering the R.I.A.A. for its boilerplate style of pleading in the nationwide wide campaign against illegal file sharing. Justice Arterton was appointed by President Clinton in 1995. The full decision is here: Decision. At several key junctures in the opinion, Justice Arterton based her opinion on the fact that the Plaintiff’s complaint was based on “information and belief” rather than direct evidence.

The two areas of concern in the opinion, one is whether to grant a default judgment under Federal Rule of Civil Procedure 55(b)(2) and the second is whether the complaint fails to state a claim for which relief can be granted under Rule 12(b).

Default Judgment Analysis under Rule 55(b)(2)

The granting of default judgment is generally almost a “rubber stamp” kind of process. If the defendant is properly served and fails to respond to the complaint, a default judgment is almost always automatic. If the complaint demands an exact amount as judgment, the default judgment can even be entered by the court’s clerk under Rule 55(b)(1). If not, then the court holds a hearing to determine the amount of damages under Rule 55(b)(2). In this instance, however, the court stepped in and took it upon herself to examine the validity of the claims.

Reasoning from a 2nd Circuit case, Au Bon Pain Corp.v. Artect, Inc., 653 F.2d 61 (2d Cir. 1981), the court found that the default judgment process is not, in fact, automatic, but that “a district court has discretion . . . to require proof of necessary facts and need not agree that the alleged facts constitute a valid cause of action.” Artect, at 65, citing Wright & Miller, a well known legal treatise on procedure.

Looking a another legal treatise, Moore’s Federal Practice, Justice Arterton reasoned that the analysis should combine elements from Rule 55(c), the rule allowing the setting aside of a default judgment, and Rule 60(b), a more generic rule allowing a court to set aside judgments. Finding support for this analysis in 2nd Circuit case law, the court held that three factors arose in determining whether to set aside a judgment under either of the two rules: (1) “the willfulness of default”; (2) “the existence of a meritorious defense”; and (3) “the possibility of prejudice to the plaintiffs should the default judgment be vacated.”

In weighing these factors, the judge determined that the latter two factors shifted in favor of the defendant, i.e., there were abundant meritorious defenses raised in similar cases filed by the RIAA across the country, and the Plaintiff would not be prejudiced by being required to produce more specific evidence. In both instances, the court again mentioned the language that the Plaintiff’s complaint was based on “information and belief.”

Failure to State a Claim Upon Which Relief Can be Granted under Rule 12(b)(6)

The more telling section of the opinion is the court’s ostensibly sua sponte (i.e., of its own accord) analysis of whether the Plaintiff’s complaint failed to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This rule generally gives the defendant a right to raise this defense in a response to a complaint. Ostensibly, the court raised this issue in the context of possible meritorious defenses.

Justice Arterton cites the recent Supreme Court opinion that a complaint “does not need detailed factual allegations, [but] a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964–65 (2007). She then observed that Plaintiff’s complaint in this case was almost identical to the one filed in Interscope Records v. Rodriguez, where the court held:

Plaintiff here must present at least some facts to show the plausibility of their allegations of copyright infringement against the Defendant. However, other than the bare conclusory statement that on “information and belief” Defendant has downloaded, distributed and/or made available for distribution to the public copyrighted works, Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation. The complaint is simply a boilerplate listing of the elements of copyright infringement without any facts pertaining specifically to the instant Defendant. The Court therefore finds that the complaint fails to sufficiently state a claim upon which relief can be granted and entry of default judgment is not warranted.

Rodriguez, No. 06-2485, 2007 WL 2408484, at *1 (S.D. Cal. Aug. 17, 2007). Citing the Second Circuit case Greyhound Exhibit Group, Inc. v. E.L.U.L. Realty
Corp., 973 F.2d 155, 158 (2d Cir. 1992), which held that the entry of default “constitute[s] a concession of all well pleaded allegations of liability,” Justice Arterton ruled that Plaintiff’s complaint was “speculative” and “inadequate.”

Eric Bangeman, of Ars Technica reports that the RIAA plans to file a brief, probably accompanying a motion for reconsideration, and possible an amended complaint, as they did in Interscope v. Rodriguez. The amended complaint provided additional details about dates, times, and IP addresses. Whether the additional details of that amendment will alter the application of Rule 12(b)(6) is still unknown, as the judge in that case has since retired.

Technorati Tags: RIAA Litigation,Digital Downloads,Copyright Infringement,File Sharing

New Copyright Legislation, H.R. 4279, being considered by House Committee on the Judiciary

The U.S. House of Representatives introduced a 69-page bill entitled the “Prioritizing Resources and Organization for Intellectual Property Act of 2007.” The legislation is significant in that it increases civil penalties for copyright infringement, expands criminal enforcement, and creates both a new federal agency and a new division of the Attorney General’s office of the Department of Justice. The full text of the proposed legislation is here: H.R. 4279. I have established an RSS feed in the column of my blog for tracking purposes.

It is important to realize that, up front, that this is proposed legislation. This is the first step in the legislative process. The first step in the life of a bill, if you recall your Schoolhouse Rock song, I’m Just a Bill, is referral to a committees that deliberates, investigates, and revises the proposed legislation before it is recommended that it proceed to general debate by the full House of Representatives. This process can take a long time, or get stalled. In fact, the majority of bills never make it out of committee. The ones that do often do not resemble the proposed legislation very much at all, as sometimes the text goes through numerous iterations before it gets recommended, if at all. Other times, sections of a proposed bill may be incorporated into another bill, and in those cases the original bill, as it was introduced, is abandoned. That is say that a lot can happen before this process ends. Once a bill is approved by the House of Representatives, the process starts all over again in the Senate!

The major sections of the proposed legislation are:

* TITLE I—Enhancements to Civil Intellectual Property Laws One of the more significant amendments to Section 104 of the Copyright Act, pursuant to this proposed legislation, is that it would allow courts to make “multiple awards of statutory damages” when compilations are infringed or when both derivatives and the original are infringed.

TITLE II—Enhancements to Criminal Intellectual Property Laws This is one of the more extensive expansions of the proposed legislation, allowing for stricter enforcement of willful, criminal infringement.

TITLE III—Coordination and Strategic Planning of Federal Effort Against Counterfeiting and Piracy

This title is perhaps the most sweeping part of the proposed legislation. The effect would be the creation of a new federal bureaucracy called the United States Intellectual Property Enforcement Representative (other reports state that is it called the “White House Intellectual Property Enforcement Representative, or WHIPER, but that designation does not appear in the proposed legislation). The head of this new agency would be a member of the Executive Branch and, therefore, would be appointed by the president and confirmed by the Senate.

The new post would report directly to the president and serve as his or her principal advisor and spokesman regarding intellectual property matters, including, for example, identifying countries that don’t adequately protect IP rights or are not in compliance with international treaties.

As part of this new agency, a new “interagency” committee would be established for the purpose of intellectual property enforcement. The new committee would be composed of the enforcement representative, who would chair the committee, and senior representatives of various departments and agencies involved in intellectual property enforcement, appointed by the respective heads of those departments and agencies. Those agencies include the DOJ, the Trademark Office, the Copyright Office and Homeland Security, just to name a few.

TITLE IV—International Enforcement and Coordination

Under this section, the Trademark Office will appoint 10 intellectual property attachés to serve in United States embassies. The 10 appointments shall be in addition to personnel serving in the capacity of intellectual property attaché at United States embassies or other diplomatic missions on the date of the enactment of this Act.

TITLE V—Department of Justice Programs

In this section, the proposed legislation would created within the U.S. Justice Department’s an “Intellectual Property Enforcement Division” to subsume the IP-related functions that the department’s computer crime section in the criminal division currently performs. The new division would receive $25 million per year to start with.

This is by no means an exhaustive analysis of this proposed legislation, so take the time to read it for yourself and, if appropriate, contact you local representative to comment on the proposed legislation.

Technorati Tags: Copyright Legislation,Copyright Law,House of Representatives,Statutory Damages

Expert Witness Fund established to defend against RIAA Lawsuits

The Recording Industry v. the People, an anti-RIAA blog operat ed by New York attorney, Ray Beckerman, is cooperating with the Boston-based non-profit, The Free Software Foundation, to establish “a fund to help provide computer expert witnesses to combat RIAA’s ongoing lawsuits, and to defend against the RIAA’s attempt to redefine copyright law.”

The Free Software Foundation was established to promote the development and use of free software. It manages several campaigns to achieve that goal, including one called “BadVista.org,” fighting the adoption of Microsoft Vista, and “DefectivebyDesign.org” which was established for the purpose of eliminating digital rights management in music and movies from “Big Media.”

As of the end of November, the fund had raised over $4,000. The fund will be administered by Mr. Beckerman and will be disbursed to technical witnesses hired by RIAA litigation defense teams on a variety of criteria, including the basis of the importance of the case to critical legal issues.

To donate to the fund, click here.

Technorati Tags: RIAA Litigation,Digital Downloads,Recording Industry,Copyright,MP3

Copyright: it’s the end of the world as we know it.

Abraham Maslow’s famous “hierarchy of needs” places self-actualization as the pinnacle of human behavior. To illustrate what the phrase “self-actualization” meant , Maslow said:

“a musician must make music, an artist must paint, a poet must write, if they are to be ultimately at peace with themselves.”

Of course, the thing that is important to note about Maslow’s hierarchy is that physiological needs are at its base, i.e., a person’s basic needs must be met before that person can reach self-actualization. In other words, “a guy’s gotta eat”!

Maslow’s theories shed some light on the ongoing social debate on the Internet regarding whether musicians would continue to produce quality music if copyright as we know it were to be abolished. A different argument, though very related, is whether money motivates one to be creative.

One movement advocating such ideas is the “Free Culture Movement.” Another less extremist movement is Stanford professor, Lawrence Lessig’s “Creative Commons” group, which advocates modified forms of traditional license agreements as a social compromise to “reconcile creative freedom with marketplace competition.” Watch Lessig’s video, released today on TED, entitled “How creativity is being strangled by the law.” For another this interesting discussion, see the site Against Monopoly.

The underlying assumption of some of the parties involved in the debate, which is ostensibly grounded in the record and movie industry’s recent campaigns against infringers, is that all intellectual property should be free for the public to use without payment and that the antiquated copyright laws should be modified or abolished. In my opinion, this extremism ignores the foundation principle of Maslow’s hierarchy of needs, that in order to achieve self-actualization, an artist’s or musician’s base needs must be satisfied.

Proponents of the free culture movement observe that creativity survived many years without the structural form which copyright superimposed upon it. Indeed, it is often observed that the great works of Mozart were created without the existence of copyright laws. Don’t forget, however, that Mozart wrote many of his works while being employed by benefactors such as the Prince Archbishop of Salzburg, Heironymus Colloredo and Emperor Joseph II of Vienna, names that are certainly not as prominent as Mozart’s. In fact, where would the world of the arts be without the billions of dollars that have been donated by benefactors such as J.P. Morgan, James Smithson, Bill & Melinda Gates, Andrew Carnegie, Henry Ford, John D. Rockefellar, just to name a select, if not elite, few. So, while it is true that “a musician must create music,” it is also true that a musician has to eat.

Long before the existence of copyright laws, there was a strong relationship between money and the creation of arts and music, and it will be that way until we abolish our system of currency as we now know it. Walk around any great city and witness the existence of hundreds of pieces of commissioned artwork. Listen to the commissioned works of Mozart, Beethoven and other great composers, who existed at the hand of benefactors. Walk through the Museum of Modern Art and look at the works of art generously donated by J. P. Morgan and other benefactors. Whether it be a king or a record label, money benefits art. Creativity, like it or not, is often inspired by the almighty dollar, whether that is represented by paper currency or some other bartered for compensation which meets our base needs as human beings.

That’s not to say that people would not continue to make music or art if they were not compensated for it – they would. That is an entirely different question in my mind. People’s hobbies and past time activities are in a slightly different class than, say, the copyrighted works of Don Henley. If great singer-songwriters such as Henley could not make a living at playing music and writing songs, I would venture to bet that most of us would never had heard of The Eagles. Again, even a great musician has to eat. If the musician cannot meet his base needs doing what he loves to do, a musician will meet those needs some other way and, therefore, there would be less time to do what he loves to do. So don’t confuse the musings of the masses with the creations of the geniuses.

The only legitimate question remaining, then, is how should a musician get paid for the music he or she creates? How should the songwriter get paid for the songs he or she writes? The answer, in the United States, is by virtue of the rights created in the Constitution, Article 1, Section 8, Clause 8, which gives Congress the right:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Investors the exclusive Right to their respective Writings and Discoveries.

The portion of this Clause dealing with the arts is further codified in the various Copyright Acts and amendments thereto. In a nutshell, the Copyright Act creates a legal fiction, called intellectual property rights, which gives creators certain exclusive rights in their works, including the rights to produce copies, create derivative works, perform or display the work, and to sell and assign the works, among other things.

The laws in the U.S. are based loosely on English concepts and laws that date back to the 17th and 18th century, which were a direct result of the invention of the printing press. The first actual copyright law was the Statute of Anne, or the Copyright Act 1709. Thus, the concept of “copyright” is a three-hundred-year-old concept that has survived the evolution from printing press to piano rolls to digital media, and I have little doubt that it will continue to survive through the technological age, despite the rumblings of these groups.

As the law often does, it must evolve, albeit it ever so slowly, to encompass these new technologies. The good news is that the debate that is ongoing in the new virtual marketplace of idea will help us formulate new and improved amendments to the laws that will hopefully address the perceived dichotomy between the rights of free speech and free culture and those of the creators and owners of intellectual properties to receive just compensation for their efforts and investments.

In the end, this blog is my response to viewing Larry Lessig’s video, as I said, posted today on the TED website, entitled How creativity is being strangled by the law (See the link above). In it, Lessig harkens back to the days of Sousa when children sat on the porch and sang the songs of the day. Lessig told of how Sousa decried the advent of the phonorecord machine as the demise of creativity. He points out that in our current state ot technological advance, copyrights should be “democratized” because the new generation of children use copyrights to create something uniquely different, that is to say they use the copyrights of others as “tools of creativity” and “tools of speech.” Since every such usage requires a copy, the arguement continues, every such usage is presummed by the establishment to be an infringement of someone’s copyright. Lessig’s solution is that the creator should simply license the use of their creation for free in the instance of “non-commercial” usages, and retain the rights to exploit it commercially. He refers to this as the “Sousa Revival.”

My question to Professor Lessig is this: why does the fact that an entire generation of Internet downloaders who are using copyrighted material to create derivative works mean that the rights of copyright holders have to be abolished or even diminished? Why do the creative whims and urges of those who utilize other people’s copyrights to create different, derivative works supercede those of the people who created the original works? Why should they? Are the audiovisual images of a actor portraying Jesus Christ lipsyncing to an infringed copy of “I Will Survive” so creatively valuable as to supercede to the rights of Gloria Gaynor to distribute the original? (This creation is one of the examples in Lessig’s video presentation). Consider this carefully before you answer, as it is a slippery slope.

This brings me to another relevant observation: people would generally not want pay money to hear most children sitting on the porch singing their songs, unless that child happens to be a Don Henley protegee. That is the difference between most of the music ony MySpace, for example, and the music that is generally downloaded on iTunes. There is a tremendous difference in the value of the spontaneous, albeit creative, songs of a child and the intricate lyrics and melodies which are the product of a genius the likes of Don Henley. That is precisely why almost 100% of the product downloaded from Napster in the early days was product that had been recorded and marketed by major record labels. It had intrinsic value.

Let me illustrate these principles with an example from the world of physical property. Person A has a piece of property populated with a lot of trees. Person B, owns the lot next door, which is flat and has a nice stream of water running around its perimeter. Person C comes along, see this situation and, overwhelmed with creativity, cuts down Person A’s trees and builds himself a house on Person B’s lot and claims it as his own. When Persons A and B confront him, stating that the law says he cannot do what he did, Person C responds that his creativity is being strangled by the law and, therefore, the law should be abolished. Is Person C making a good argument? Is Person C likely to prevail in court? No. Yet, this is the argument of the Free Culture Movement and, in some ways, of the Creative Commons.

Just as the law creates real and enforceable property rights for a person who owns a plot of real estate, the law creates intellectual property rights so that person can own an intellectual creation and enforce his rights to the exclusion of those who usurp it. Abolishing the one makes no more sense than abolishing the other. Abolishing the intellectual property right a person has in a copyright, therefore, devalues the creation.

Now, imagine that Person A’s lot was, instead, full of reeds and twigs and Person B’s lot was full of ravines, rocks and arid soil. Person C would never stop to take a second look! The barron options now before Person C would NOT inspire creativity in most people.

As further illustration of this principle of intrinsic value, ask yourself whether the Jesus video referred to earlier would be nearly as popular, nearly as creative, if the actor’s own singing voice had been used in place of Gloria Gaynor. The answer is probably no, because the reason that the video of Jesus Christ singing Gloria Gaynor’s “I Will Survive” is so popular is because it incorporates a copyright that already has intrinsic value and, therefore, adds additonal value to the video. The arguments of the free culture movements omit or overlook this concept of intrinsic value.

What I do like about Lawrence Lessig’s movement, Creative Commons, is that it is, in the final analysis, based on the principles of the Copyright Act, i.e., that the copyright has value and that its owner has certain exclusive rights, which he can assign to others. Lessig’s solution is essentially using existing copyright laws to create a unique license that attempts to strike a balance between fair use and full copyright reservation. In the end, however, the license are based on the rights already granted in The Copyright Act, proving that the copyright laws as they currently exist allow for the very thing that these groups seek. I cannot agree with him more in that respect.

Technorati Tags: Copyright Law , Digital Downloads , Free Culture Movement , Creative Commons , Lawrence Lessig , Mozart , Beethoven , Maslow

del.icio.us Tags: Copyright law , Digital Downloads , Free Culture Movement , Creative Commons , Lawrence Lessig , Mozart , Beethoven , Maslow , Record Labels

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Last Man Standing – collaborating with other songwriters

See Jane.

See Jane write lyrics.

See Dick.

See Dick write melodies.

See Dick meet Jane.

See Dick and Jane combine their efforts and collaborate together to write a song.

This is one frequent story among Nashville’s songwriting community. On any given afternoon in Nashville, there will be innumerable co-writing sessions occurring at any given moment. Those collaborative efforts certainly produce most of the top hits on the country charts. The odds are, however, that at least 9 out of 10 of those songwriters will not know the implications of collaborating with another songwriter on the creation of a copyright.

Rarely do songwriters consult an attorney or enter into any form of collaboration agreement prior to co-writing. Rarer still is the songwriter that fully understands the important consequences that flow from co-writing with another songwriter.

If a songwriter does happen to consult about this issue, the first thing I tell them is that it is very much like entering into a marriage relationship. When two songwriters get together and collaborate on the creation of musical composition, each songwriter is a co-owner of and equal and undivided interest in the whole copyright, i.e. each songwriter co-owns 100% of the copyright – regardless of the relative extent of their respective contributions. Ownership is not equally divided, as is commonly thought — i.e. split 50/50 (that confusion comes from the fact that the royalties derived from the copyright are usually divided equally).

In the Dick and Jane analogy above, for example, Jane does not separately own the lyrics and Dick separately own the melodies. Dick effectively owns 100% of the song, including both the lyrics and music and Jane effectively owns 100% of the song, including both the lyrics and the music. The concept is very similar to the legal principle of tenancy in common. Unless they agree to the contrary in writing, each songwriter has the right to administer the entire copyright without consulting with the other songwriter, i.e., each songwriter may issue nonexclusive licenses to the entire copyright or issue first use licenses. The only obligation each co-owner has to the other is to account for any profits earned by the exploitation. A co-owner may not, however, without the permission of the other co-owner, transfer exclusive rights to use the work or transfer the entire copyright to a third party.

To be absolutely clear, the Copyright Act does not really define “joint authors,” but rather defines a “joint work” as a “work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” 17 U.S.C. 101. The key here is intention — i.e., the parties must intend that their work be integrated or merged to form a united whole at the time the work is created. The legislative history that accompanied the act specifically states that a work is “joint” if the authors collaborated on its creation. See H.R. Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976); S. Rep. No. 473, 94th Cong., 1st Sess. 103-104 (1975).

Take for example the circumstance that arises when a person creates a poem, which is registered as a copyright. Then, later on, a second person takes the poem and modifies the words, adding music to create a song. The situation described is different from the collaborative effort in that there was no intent, at the time the poem was created, to merge it with the second creative effort. The second work, the song, is a derivative work, and its writer needs permission from the creator of the poem to create the derivative work.

While we’re on the subject of derivative works, each co-owner of a joint work may create derivative works independently of each other and without the permission of the other, and, without any obligation to share the royalties derived from the exploitation of the derivative work.

Now, not to further confuse the issue but, in the eyes of the law, there is a difference between co-ownership in the copyright and split of the royalties. To get back to the Dick and Jane analysis, the typical understanding is that Dick and Jane would split any royalties received from the exploitation of the copyright on a 50/50 basis. It is important to understand once again, however, that this understanding can be modified with a written agreement between the co-writers. A songwriter whose reputation is strong enough can certainly request that he or she receive a greater percentage from the royalties, and even ask for a greater percentage ownership interest in the copyright. These types of exceptions, however, must be expressed in writing between the parties in order to be enforceable.

Another complication arises in circumstances where a party merely contributes an “idea” to the collaborative effort. Is that person entitled to be a co-owner? I’ve had this issue arise in litigation. Two parties are collaborating on a song and have most of the song written. In walks a friend who is also a songwriter. He listens to the song and contributes an idea that is incorporated into one line of the song. He leaves, the song is finished, and becomes a hit. Does the third songwriter have an interest in the song? The answer to the question is inevitably determined by the particular facts and hinges on whether the third party merely contributed an idea, or actually contributed the expression of an idea.

As a final observation, let’s overlay the life of the copyright over the co-ownership of a collaborative work to give our brains a final flash fry if you will. Assuming the work to have been created after January 1, 1976, the life of the copyright is life of the author plus 70 years. In the event of a joint work, however, it is the life of the surviving author plus 70 years. What this means in realty is that one of the co-writers in a successful hit song, i.e., the last man standing, will eventually become co-owners with the heirs of the deceased songwriter, either in the form of a wife or a child.

Most songwriters, of course, are not thinking this far down the road when they make their daily co-writing appointments. But that’s the real thrust of this article. If you’re a songwriter, you should consider the possibility of a collaboration agreement. Most songwriters, I admit, do not think about this sort of thing because it cramps the creative vibe that needs to be created in a collaborative effort. This, in my opinion, is not a wise idea. At the very least — and this is not my recommendation — the writers should have some conversation about the consequences of their efforts. Considering the consequences, the best course of action would be to consult with qualified legal counsel and get a collaborative agreement drawn up and signed — or at least have a written statement of intent signed by both writers — at some agreeable point before the co-writing session begins, so as not to interfere with the creative efforts.

Technorati Tags: Songwriting , Music Lawyer , Music Row , Collaboration , Nashville , Music City , Copyright Law , Copyright Act of 1976 , Music Law , Entertainment Law , Entertainment Lawyer

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Courts taking a stricter look at evidence in RIAA downloading cases

There appears to be a slight ripple of a trend among courts to take a stricter look at the evidence being presented by the RIAA in its crusade against digital downloads, based primarily on the evidence of user names and IP addresses assembled by their expert consultants, MediaSentry.

In the RIAA’s case against Jeff Dangler, filed in the U. S. District Court for the Western District of New York in Rochester, Dangler failed to file a response to the Complaint, and the Clerk entered the default against him. Pursuant to Federal Rule of Civil Procedure 55(b)(2), the Plaintiff can then apply to the judge for a judgment based on the default. In addition, Fed.R.Civ.P 55(b)(2) gives the judge the option to conduct hearings and hear evidence in order to determine if the damages requested are justified. This gives the judge the opportunity to evaluate the merits of the underlying claim and, if he finds it to be deficient, deny a judgment on the default.

On October 23, 2007, U.S. District Judge David G. Larimer denied a 55(b)(2) request by the RIAA for a default judgment of $6,420 in Atlantic v. Dangler. Judge Larimer specifically ruled that there were “significant issues of fact” in the record “as to the identification of the defendant from his alleged ‘online media distribution system’ username” heavyjeffinc@KaZaA. The court points out that there is no evidence presented that established a time period of the alleged distribution and/or infringement nor are there details sufficient to determine whether, in fact, the defendant is the user so identified.

Because of these deficiencies, Judge Larimer determined that he would hold a hearing to allow the Plaintiffs to establish additional evidence that a copyright violation was committed by the defendant. You can read the full text of the judge’s order here.

Previously, in August 2007, a similar 55(b)(2) request was denied by Judge Rudi Brewster in Interscope v. Rodriguez in the U.S. District Court for the Southern District of California. In that case, Judge Brewster held that “Plaintiffs . . . must present at least some facts to show the plausibility of the allegations of copyright infringement against on th[is specific] defendant,” citing the recent U.S. Supreme Court decision in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) that more than a mere recitation of the elements of a claim are necessary to find relief. Basing his decision on facts similar in nature to Dangler, Brewster concluded that the RIAA’s complaint failed to state a claim upon which relief could be granted.

These decisions arise in districts where the judges are, generally speaking, more technically saavy than some other districts where these types of issues do not arise as often. In a somewhat related case, the Ninth Circuit, the appeals court that has jurisdiction over the California district courts, one bankruptcy court has already established stricter standards of proof for establishing the veracity of computer records. For more information, see the informative article entitled Admitting Computer Record Evidence after In Re Vinhnee: A Stricter Standard for the Future?, by Cooper Offenbecher. In short, this article discusses the interplay between Rules 901 and 803(6) of the Federal Rules of Evidence and their application to digital business records. Essentially, without getting into the details, there is a hearsay exception for business records allowing their admission as evidence in a trial if they are maintained in the regular course of business and are relied upon by the business. It is these sorts of dialogues that must inform the judges as they scrutinize the evidence presented by the RIAA in support of infringement claims, whether they be in the course of a default judgment or in the course of a trial.

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Technorati Tags: Digital Downloads , RIAA , Entertainment Law , Copyright Infringement , Copyright Law , Music Law , Music Lawyer , Twombly

UT Student’s Motion to Quash subpoena is denied in Virgin Records et al. v Does 1-3

On August 16, 2007, Doe No. 28 in the RIAA’s action captioned Virgin Records America, Inc. et al. v. Does 1-33 filed a motion to squash the subpoena issued to the University of Tennessee on the grounds that, one, it was unreasonable on its face and, two, it violates his rights under the Family Educational Rights and Privacy Act (“FERPA”). The memorandum in support of this motion can be read Pike & Fisher’s website, Internet Law & Regulation. This was a case of first impression, i.e., this is the first time a court has issued a ruling based on this type of facts.

The Subpoena is Unreasonable on its Face

Does No. 28’s primary argument in support of the proposition that the subpoena is unreasonable on its face was that plaintiffs could identify the name of the alleged infringer of the copyrighted sound recordings by being provided with the name and current campus address of Doe No. 28 and, therefore, does not need his permanent address, telephone numbers, e-mail address, and MAC Address, all of which would subject Doe No. 28 and his parents to unreasonable phone calls and mail.

Plaintiffs countered that this information was necessary in order to uniquely identify Doe No. 28 to the exclusion of other defendants.

The court based its decision in this regard on Rule 45 of the Federal Rules of Civil Procedure, which state that a subpoena may be modified if it poses an “undue burden” on the defendant. The Court held that providing plaintiffs with the requested information was not unduly burdensome since college students are transient by nature and move frequently during their tenure at college, thus making it difficult for plaintiffs to locate Doe No. 28 if only a name and campus address is provided.

The Subpoena violates the Family Educational Rights & Privacy Act

In examining this issue, the Court looked at both FERPA and at the University of Tennessee’s FERPA policy, which is posted online here. The Court found the following:

FERPA broadly defines “educational records” as “those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution.” United States v. Miami University, 294 F.3d 797, 812 (6th Cir. 2002) (citing 20 U.S.C. § 1232g(a)(4)(A)). Directory information is defined in the statute as “the student’s name, address, telephone listing, date and place of birth…” 20 U.S.C. § 1232g(a)(5)(A). According to the University’s FERPA policy, directory information is “information not generally considered harmful or an invasion of privacy if disclosed. The University of Tennessee considers the following information to be ‘Directory Information’: Name, semester and permanent address, e-mail address, telephone listing, date and place of birth.” Office of the University Registrar, What You Should Know About FERPA. Furthermore, the University’s policy states that it is “not allowed to share information (other than ‘Directory Information’) without a student’s written consent” and that a student may limit release of directory information by submitting a request for directory exclusion to the University’s registrar.

After summarizing its analysis of FERPA and UT’s policy, the Court surmised that “most of the information [sought by the subpoena] falls within the category of Directory Information under FERPA,” with the exception of the MAC address, which identifies the device used by Doe No. 28 to connect to the Internet, and therefore is not protect by FERPA. With regard to the MAC address, the Court found that it was neither and “educational” record nor “personally identifiable information,” and therefore was not protected by the act.

One note of interest in the Court’s order was the revelation that Doe No. 28 had failed to argue that he had issued a “limiting request” as allowed in the University of Tennessee’s FERPA policy. The Court also made a particular note that the University’s policy did not mention MAC addresses. This seems to hint that the Court may have issued a slightly different opinion if these factors had been present, leading to the conclusion that students may want to write letters to their respective schools specifically requesting that no “directory information” be provided to third parties and asking that their schools not release MAC addresses as part of directory information and/or include such information in their FERPA policies.

The Court’s full opinion is available online at the Knoxville News Sentinel.

Technorati Tags: Music Law , RIAA , Digital Downloads , Internet Law , Entertainment Law , Copyright Infringement , Subpoena