Rights under Section 106 Randal C Picker James Parker Hall Distinguished Service Professor of Law Ludwig amp Hilde Wolf Teaching Scholar The Law School The University of Chicago October 20 2016 ID: 705506
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Class 12Copyright Autumn 2019Music I
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
The Law School
The University of ChicagoSlide2
November 26, 2019
2
101: Phonorecords
“
Phonorecords” are
material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device
.Slide3
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3
101: Phonorecords
“
Phonorecords” are
The
term “phonorecords” includes the material object in which the sounds are first fixed.Slide4
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101: Sound recordings
“Sound recordings” are
works
that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied. Slide5
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102. Subject matter of copyright: In general
(a)
… Works
of authorship include the following categories
:
(1) literary works;
(2)
musical works, including any accompanying words
;
(3) dramatic works,
including any accompanying music
;Slide6
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102 (Cont.)
(
4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7)
sound recordings
; and
(8) architectural works.Slide7
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106. Exclusive rights in copyrighted works
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or
phonorecords
;
(2) to prepare derivative works based upon the copyrighted work;Slide8
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106 (Cont.)
(3) to distribute copies or
phonorecords
of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary,
musical
, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works,
to perform the copyrighted work publicly
;Slide9
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106 (Cont.)
(5) in the case of literary,
musical
, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6)
in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission
.Slide10
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Sound Recording Piracy
H. Rep (22 Sept 1971)Slide11
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Sound Recording Piracy
H. Rep (22 Sept 1971)Slide12
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Sound Recording Piracy
H. Rep (22 Sept 1971)Slide13
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Sound Recording Piracy
H. Rep (22 Sept 1971)Slide14
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Sound Recording Piracy
H. Rep (22 Sept 1971)Slide15
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Sound Recordings Act of 1971
Pub. L. 92-140 (15 Oct 1971)Slide16
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67 Pages of Dense Text
Pub. L. 115-264 (11 Oct 2018)Slide17
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10 Pages: The Classics Protection and Access Act
Pub. L. 115-264 (11 Oct 2018)Slide18
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Creating a Joke I
Hypo 1
In my office, on paper, word by word, I create a joke
I stop writing and declare my joke completed
Do I have a copyright in the joke?
TTYN (1 of 2)Slide19
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Creating a Joke II
Hypo 2
In my office, speaking into my smartphone, word by word, I create a joke
I stop dictating and declare my joke completed
Do I have a copyright in the joke? Is the recording a distinct copyright object?
TTYN (2 of 2)Slide20
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Hypo 1 Answer
Answer
Sure
102(a): Copyright protection subsists, in accordance with this title, in
original works of authorship fixed
in any
tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device
.Slide21
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Hypo 2 Answer
As to the joke, sure
102(a) embraces a media neutrality idea
The joke is fixed on the smartphone and can be perceived with the aid of a machine or deviceSlide22
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Hypo 2 Answer
Understanding Fixation
The joke is no less “fixed”—fully specified and defined—on the smartphone than it was on paper
The fact that it didn’t exist before I started to dictate doesn’t matter; that was true of the paper as wellSlide23
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Hypo 2 Answer
See Legislative History
“This broad language is intended to avoid the artificial and largely unjustifiable distinctions, derived from cases such as White-Smith Publishing Co. v. Apollo Co., 209 U.S. 1 (1908), under which statutory copyrightability in certain cases has been made to depend upon the form or medium in which the work is fixed
.”Slide24
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Hypo 2 Answer
See Legislative History
“Under
the bill it makes no difference what the form, manner, or medium of fixation may be—whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form, and whether it is capable of perception directly or by means of any machine or device ‘now known or later developed.’”Slide25
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Hypo 2 Answer
As to the sound recording
Statute treats that as separate copyright object
“Sound recordings” are works that result from the fixation of a series of musical, spoken, or other
sounds
But
joke
continues to exist as separate literary work, just as it did when it was “recorded” on
paperSlide26
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Hypo 2 Answer
As to the sound recording
While
sound recording is a separate copyright object with, perhaps, a different author, the sound recording as work will be either a copy of the underlying work—the
joke—or
a derivative work of that
jokeSlide27
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Creating a Tune I
Hypo 3
In my office, on paper, note by note, I create a new song (just notes, no words)
I stop writing and declare my song completed
Do I have a copyright in the new song? Is there a sound recording?
TTYN (1 of 2)Slide28
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Creating a Tune II
Hypo 4
At home, sitting at the piano, note by note, I create a new song (just notes, no words) and I record that song as I play it
I stop playing, turn off the recorder and declare my song completed
Do I have a copyright in the new song? Is there a sound recording?
TTYN (2 of 2)Slide29
Hypo 3 AnswerQ1: YesAssuming minimal originality, this will qualify as a musical work covered by 102(a)(2)Q2: NoRequires sounds and no sounds so far
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29Slide30
Hypo 4 AnswerQ1: YesFixation is media neutral; no preference for paper vs. recording deviceThere was no preexisting work in either version of the hypo; it was created note by note in both cases
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30Slide31
Hypo 4 AnswerQ1: YesThe definition of fixation focuses on whether the work is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration”
The recording should work
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31Slide32
Hypo 4 AnswerQ2: YesThis is a classic sound recording.
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Registering Musical Compositions
Circular 50Slide34
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Registering Musical Compositions
Circular 50Slide35
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Registering Musical Compositions
Circular 50Slide36
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More Registration
Copyright Circular 56ASlide37
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More Registration
Copyright Circular 56ASlide38
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One Registration If …
Copyright Circular 56ASlide39
Sorting Musical Copyright InfringementWhat are the things that are considered?1. Performance of the music, live or via a recording, as most people experience music?2. Off of the sheet music deposited with the Copyright Office as part of registering the work?
3. Off of a performed version of that sheet music?
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39Slide40
Sorting Musical Copyright InfringementGapsOften a meaningful gap between 1 and 2 or even between 1 and 3What aspects of the work are considered?Original elements? Public domain elements? Selection, coordination and arrangement of PD elements? Ideas v. expressions again?
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Sorting Musical Copyright InfringementDecision MakersWhat roles for judges? For juries?
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Arnstein v. Porter
154 F.2d 464 (2d Cir. 1946)
Play the Music
Arnstein
: Modern Messiah
Porter: Don’t Fence Me In
https
://blogs.law.gwu.edu/mcir/case/arnstein-v-porter/
Slide43
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Arnstein v. Porter
Access + Similarities
“If there is evidence of access and similarities exist, then the trier of the facts must determine whether the similarities are sufficient to prove copying. On this issue, analysis (“dissection”) is relevant, and the testimony of experts may be received to aid the trier of the facts.’Slide46
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Arnstein v. Porter
Even Without Evidence of Access if Strikingly Similar
“If evidence of access is absent, the similarities must be so striking as to preclude the possibility that plaintiff and defendant independently arrived at the same result.”Slide47
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Arnstein v. Porter
What is the Relevant Audience?
“The question, therefore, is whether defendant took from plaintiff's works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff.”Slide48
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Arnstein v. Porter
What cases should we keep away from juries? Why?Slide49
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Bright Tunes v. Harrissongs
420 F. Supp. 177 (S.D.N.Y. 1976)
Play the Music
Mack: He’s So Fine
Harrison: My Sweet Lord
https
://blogs.law.gwu.edu/mcir/case/bright-tunes-music-v-harrisongs-music/Slide50
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The Songs
Component Motifs
A: B:
B (with grace note): Slide51
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The Songs
He’s So Fine
AAAABBwgBB
My Sweet Lord
AAAABBwgBSlide52
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The Songs
Accessing He’s So Fine
At or near the top of the charts in the US and the UK in 1963
My Sweet Lord
Recorded in 1970Slide53
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Understanding Copying
Should we have a …
Bad person theory of copying?
This would require something like intent or recklessness; presumably knowing copying
A substitution theory of copying?
If thing doesn’t compete with original, not a copy
Or a replication theory of copying? Slide54
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Understanding Copying
A use theory of copying?
Any use, whether knowing or not, suffices to make a copySlide55
The Creative Process at Work and CopyingSays the Court“What happened? I conclude that the composer, in seeking musical materials to clothe his thoughts, was working with various possibilities. As he tried this possibility and that, there came to the surface of his mind a particular combination that pleased him as being one he felt would be”
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The Creative Process at Work and Copying“appealing to a prospective listener; in other words, that this combination of sounds would work. Why? Because his subconscious knew it already had worked in a song his conscious mind did not remember.”
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The Creative Process at Work and Copying“Having arrived at this pleasing combination of sounds, the recording was made, the lead sheet prepared for copyright and the song became an enormous success. Did Harrison deliberately use the music of He’s So Fine? I do not believe he did so deliberately.”
November 26, 2019
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The Creative Process at Work and Copying“Nevertheless, it is clear that My Sweet Lord is the very same song as He’s So Fine with different words, and Harrison had access to He’s So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.”
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Looking for Copyrights
U.S. Copyright Public CatalogSlide60
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Finding Blurred Lines
Search on U.S. Copyright CatalogSlide61
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Finding Blurred Lines
Copyright Circular 56ASlide62
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Finding Blurred Lines
Copyright Circular 56ASlide63
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Blurred Lines Summary Judgment Order (30 Oct 2014)Slide64
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Blurred Lines Summary Judgment Order (30 Oct 2014)Slide65
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Blurred Lines Summary Judgment Order (30 Oct 2014)Slide66
Williams v. Gaye (CA9 2018)The Full Sound RecordingsGot to Give It UpBlurred Lines
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What is the Copyright In Issue?The Musical CompositionAs represented in the sheet music filed with the Copyright Office?As represented in the recording of the song?CA9 doesn’t resolve here (and may or may not in pending Led Zeppelin
en
banc case)
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Jury Instruction No. 42Slide69
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Jury Instruction No. 43Slide70
More LinksPresenting the Deposit CopyInstead go listen to this
And the Video of the CA9 argument
https://www.youtube.com/watch?time_continue=4&v=fv35-zzPOKI
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