Copyright in Music and Sound Recordings
Description: Copyright in Music and Sound Recordings Introduction and legislative updates Copytalk American Library Association 7 September 2017 Ground Rules Im not here to give legal advice Ill be generalizing. Your mileage may vary Ill be
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slide1. Copyright in Music and Sound Recordings Introduction and legislative updates Copytalk
American Library Association
7 September 2017<br>
slide2. Ground Rules I’m not here to give legal advice
I’ll be generalizing. Your mileage may vary
I’ll be discussing U.S. law only
I’ll assume some knowledge of copyright<br>
slide3. COPYRIGHT in Music and SOUND recordings<br>
slide4. An important first question Why?<br>
slide5. Quick Review The five exclusive rights (Sec. 106)
Reproduce the work
Prepare derivatives of the work
Distribute copies of the work
Perform the work publicly
Display the work publicly<br>
slide6. Quick Review Right to decline
Limited times<br>
slide7. Music and SR differences Musical works
Excluded by Sec. 108(i)
But see Sec. 108(h)
Compulsory licenses (Sec. 115)
Rental music and restored copyrights
Limited first sale rights
Sec. 110(4) public performance exception<br>
slide8. Music and SR differences Sound recordings
Not excluded by sec. 108(i) (!!)
Compulsory licenses (Sec. 114)
Limitations on exclusive rights
Reproduction, derivative works, distribution limited to actual sounds
Recordings in educational TV/Radio excluded
Public performance limited to digital (e.g., pandora)<br>
slide9. Music and SR differences Performances
Bootleg recordings
Sec. 1101, 18 USC 2319A )
Limited to unauthorized fixation and “trafficking”
No time limits
Applicability to limitations and exceptions<br>
slide10. Music and SR differences Other layers Literary Work Musical Work Sound Recording<br>
slide11. Music and SR differences EMI v. Premise Media
Filed in State of New York
Found: Fair Use Lennon, et al. v. Premise Media
Filed in S.D.N.Y.
Found: Fair Use © © Used John Lennon’s “Imagine” as a commentary against teaching of evolution<br>
slide12. Music and SR differences * If fixed outside U.S., federal rules apply
**But see: Bridgeport Music v. Dimension Films February 15, 1972 State copyright laws!!<br>
slide13. Patchwork of State Laws: Definitions of SR Ownership<br>
slide14. Patchwork of State Laws: Definitions of SR Ownership<br>
slide15. Patchwork of State Laws: Definitions of SR Ownership<br>
slide16. Patchwork of State Laws: Definitions of SR Ownership<br>
slide17. Recent LITIgation<br>
slide18. LITIGATION Pharrell Williams v. Frankie Gaye (Blurred Lines): District Court for plaintiff; On appeal
Can you copyright a groove?<br>
slide19. LITIGATION ABS Entertainment v. CBS
FOUND: new mastering creates new, independent copyright<br>
slide20. LITIGATION VMG Salsoul, LLC v. Madonna Louise Ciccone, et al:
Found: 0.23 second sample is de minimis use, not actionable
Creates circuit split with 6th Circuit, Bridgeport Music v. Dimension Films (“get a license or do not sample.”)<br>
slide21. LITIGATION Estate of James Oscar Smith v. Cash Money Records, Inc., et al. No. 1:14-cv-02703 (S.D.N.Y. May 30, 2017)
Found: use of sampling was transformative, fair use.<br>
slide22. LITIGATION Flo & Eddie v. Sirius XM, et al.
State public performance rights, pre-1972
NY Court of Appeals:
No common law right of public performance
Performance-related copies dismissed
9th Circuit
SLAPP lawsuit (Pandora) on appeal, certified
11th Circuit
District court judgment on appeal, certified<br>
slide23. Current Legislation<br>
slide24. LEGISLATION CLASSICS Act, HR 3301
(Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society)
Introduced July 19, 2017
Reps. Issa (R-CA)
Co-sponsors Nadler (D-NY), Conyers (D-MI), Blackburn (R-TN), Rooney (R-FL), Deutch (D-FL)
Would create 17 USC Chapter 14
Prohibits unauthorized digital performances of pre-1972 SRs, creates a compulsory licensing mechanism<br>
slide25. LEGISLATION CLASSICS Act, HR 3301
(Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society)
Good news:
Fair use, Sec. 108 clauses: applies federal copyright to pre-1972 SRs for the first* time.
Creates compulsory licensing for pre-1972 recordings<br>
slide26. LEGISLATION CLASSICS Act, HR 3301
(Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society)
Bad news:
Fair use, Sec. 108 clauses ONLY apply to public performance
Fails to solve the rest of the problem
Removes Congress’ incentive to fix the whole problem (as recommended by USCO)
Outside of normal Title 17<br>
slide27. LEGISLATION Transparency in Music Licensing and Ownership Act, H.R. 3350
Introduced July 20, 2017
Rep. Sensenbrenner (R-WI)
Co-sponsors Chabot (R-OH), DelBene (D-WA), Farenthold (R-TX)
Would create a database of non-dramatic musical works and sound recordings<br>
slide28. LEGISLATION Transparency in Music Licensing and Ownership Act, H.R. 3350
Good news:
Requires 8+ data points, including ISMN, registration date, names of owners, catalogue numbers
Requires publicly available, free database (and exportable XML!) made available for searching
Requires compliance before statutory damages, attorney’s fees are available<br>
slide29. LEGISLATION Transparency in Music Licensing and Ownership Act, H.R. 3350
Bad news
Damage reduction doesn’t apply to everyone. Only “establishments,” broadcasting entities, and others making use of statutory licenses.
Applies to all exclusive rights, but only useful to public performance situations<br>
slide30. THANK YOU Comments? Questions? Eric Harbeson
harbeson@colorado.edu<br>
American Library Association
7 September 2017<br>
slide2. Ground Rules I’m not here to give legal advice
I’ll be generalizing. Your mileage may vary
I’ll be discussing U.S. law only
I’ll assume some knowledge of copyright<br>
slide3. COPYRIGHT in Music and SOUND recordings<br>
slide4. An important first question Why?<br>
slide5. Quick Review The five exclusive rights (Sec. 106)
Reproduce the work
Prepare derivatives of the work
Distribute copies of the work
Perform the work publicly
Display the work publicly<br>
slide6. Quick Review Right to decline
Limited times<br>
slide7. Music and SR differences Musical works
Excluded by Sec. 108(i)
But see Sec. 108(h)
Compulsory licenses (Sec. 115)
Rental music and restored copyrights
Limited first sale rights
Sec. 110(4) public performance exception<br>
slide8. Music and SR differences Sound recordings
Not excluded by sec. 108(i) (!!)
Compulsory licenses (Sec. 114)
Limitations on exclusive rights
Reproduction, derivative works, distribution limited to actual sounds
Recordings in educational TV/Radio excluded
Public performance limited to digital (e.g., pandora)<br>
slide9. Music and SR differences Performances
Bootleg recordings
Sec. 1101, 18 USC 2319A )
Limited to unauthorized fixation and “trafficking”
No time limits
Applicability to limitations and exceptions<br>
slide10. Music and SR differences Other layers Literary Work Musical Work Sound Recording<br>
slide11. Music and SR differences EMI v. Premise Media
Filed in State of New York
Found: Fair Use Lennon, et al. v. Premise Media
Filed in S.D.N.Y.
Found: Fair Use © © Used John Lennon’s “Imagine” as a commentary against teaching of evolution<br>
slide12. Music and SR differences * If fixed outside U.S., federal rules apply
**But see: Bridgeport Music v. Dimension Films February 15, 1972 State copyright laws!!<br>
slide13. Patchwork of State Laws: Definitions of SR Ownership<br>
slide14. Patchwork of State Laws: Definitions of SR Ownership<br>
slide15. Patchwork of State Laws: Definitions of SR Ownership<br>
slide16. Patchwork of State Laws: Definitions of SR Ownership<br>
slide17. Recent LITIgation<br>
slide18. LITIGATION Pharrell Williams v. Frankie Gaye (Blurred Lines): District Court for plaintiff; On appeal
Can you copyright a groove?<br>
slide19. LITIGATION ABS Entertainment v. CBS
FOUND: new mastering creates new, independent copyright<br>
slide20. LITIGATION VMG Salsoul, LLC v. Madonna Louise Ciccone, et al:
Found: 0.23 second sample is de minimis use, not actionable
Creates circuit split with 6th Circuit, Bridgeport Music v. Dimension Films (“get a license or do not sample.”)<br>
slide21. LITIGATION Estate of James Oscar Smith v. Cash Money Records, Inc., et al. No. 1:14-cv-02703 (S.D.N.Y. May 30, 2017)
Found: use of sampling was transformative, fair use.<br>
slide22. LITIGATION Flo & Eddie v. Sirius XM, et al.
State public performance rights, pre-1972
NY Court of Appeals:
No common law right of public performance
Performance-related copies dismissed
9th Circuit
SLAPP lawsuit (Pandora) on appeal, certified
11th Circuit
District court judgment on appeal, certified<br>
slide23. Current Legislation<br>
slide24. LEGISLATION CLASSICS Act, HR 3301
(Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society)
Introduced July 19, 2017
Reps. Issa (R-CA)
Co-sponsors Nadler (D-NY), Conyers (D-MI), Blackburn (R-TN), Rooney (R-FL), Deutch (D-FL)
Would create 17 USC Chapter 14
Prohibits unauthorized digital performances of pre-1972 SRs, creates a compulsory licensing mechanism<br>
slide25. LEGISLATION CLASSICS Act, HR 3301
(Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society)
Good news:
Fair use, Sec. 108 clauses: applies federal copyright to pre-1972 SRs for the first* time.
Creates compulsory licensing for pre-1972 recordings<br>
slide26. LEGISLATION CLASSICS Act, HR 3301
(Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society)
Bad news:
Fair use, Sec. 108 clauses ONLY apply to public performance
Fails to solve the rest of the problem
Removes Congress’ incentive to fix the whole problem (as recommended by USCO)
Outside of normal Title 17<br>
slide27. LEGISLATION Transparency in Music Licensing and Ownership Act, H.R. 3350
Introduced July 20, 2017
Rep. Sensenbrenner (R-WI)
Co-sponsors Chabot (R-OH), DelBene (D-WA), Farenthold (R-TX)
Would create a database of non-dramatic musical works and sound recordings<br>
slide28. LEGISLATION Transparency in Music Licensing and Ownership Act, H.R. 3350
Good news:
Requires 8+ data points, including ISMN, registration date, names of owners, catalogue numbers
Requires publicly available, free database (and exportable XML!) made available for searching
Requires compliance before statutory damages, attorney’s fees are available<br>
slide29. LEGISLATION Transparency in Music Licensing and Ownership Act, H.R. 3350
Bad news
Damage reduction doesn’t apply to everyone. Only “establishments,” broadcasting entities, and others making use of statutory licenses.
Applies to all exclusive rights, but only useful to public performance situations<br>
slide30. THANK YOU Comments? Questions? Eric Harbeson
harbeson@colorado.edu<br>