Copyright Advisory Services

Last week, I wrote about the Music Modernization Act, a piece of legislation that is currently working its way through Congress and looks increasingly like it might pass. As you may recall, one part of that bill is controversial because of how it treats pre-1972 sound recordings. That part, called the CLASSICS Act, would grant a digital performance right extending all the way to 2067 for these sound recordings, but otherwise would leave them outside of federal copyright law. In doing this, the bill a bit strange, because it seems designed simply to compensate authors of older works in a way that is atypical for copyright law. Normally, we think about copyright giving authors the exclusive right to earn money from their works as a way to encourage them to create. Since these older works already exist, the CLASSICS Act doesn’t really encourage anything. 

Well, yesterday (May 23, 2018) Senator Ron Wyden from Oregon introduced a new bill that offers a much better solution for pre-1972 sound recordings than the CLASSICS Act. This bill, the Accessibility for Curators, Creators, Educators, Scholars, and Society to Recordings Act (or ACCESS to Recordings Act, because seemingly all laws need to have silly acronyms — see the USA PATRIOT Act), this bill would bring pre-1972 sound recordings in line with other pre-1972 works. As such, sound recordings would have the same federal protections as other works, and would also have the same copyright duration — 95 years after first publication for most sound recordings. 

This solution makes much more sense than the CLASSICS Act. Indeed, this bill already has been endorsed by the Library Copyright Alliance and the EFF. 

So, as I said before, we’ll watch and see what happens. 

I’ve said in the past that I doubt Congress will pass major Copyright legislation anytime soon. And I still think that’s true. That said, it’s looking increasingly likely that we will see some important amendments to music copyright in the near future. 

You may remember that a few months ago I wrote about the Music Modernization Act (MMA). At that time, the bill was just starting its life in the House of Representatives, but now there has been significant movement toward it becoming law.

Just the other day, the House passed the MMA unanimously(!) on April 25, and it is currently under consideration by the Senate Judiciary Committee. That committee held hearings the other day, and you can watch to them if you feel like listening to Smokey Robinson advocate for copyright reform.

The MMA has changed a bit since I last wrote, and it’s important to address what has happened. Briefly, in its original form, the MMA created a new licensing system for “mechanical licenses” for musical works and established a group to manage these licenses and their associated royalties.

Then, at some point, the House added the CLASSICS Act to the scope of the MMA. This bill — the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act (CLASSICS) — gives a right to some sound recordings that they don’t currently have. In 1972, when Congress added sound recordings to the scope of copyrighted works, it only gave protection to recordings created after 1972. Sound recordings from before this time have to rely on state law protections (which are minimal). The CLASSICS Act changes this, but only a little bit. It gives one specific right — a right to control the digital performance of these works — to pre-1972 sound recordings, but otherwise leaves these works under state law. This means that, if it passes, recording artists for pre-1972 works can receive royalties for when their works play on services like Spotify and SiriusXM. 

In general, the CLASSICS Act has been more controversial than the MMA in its original form. The concern is that CLASSICS will extend copyright protection for the digital performance of works created between 1923 and 1978 all the way to 2067. That’s 144 years! This doesn’t really make sense, considering that when those people created their sound recordings, they believed that their works would be protected for only 56 years after publication, at the most. Indeed, as Professor Lawrence Lessig points out in an article in Wired, the statute isn’t about serving the goal of copyright to promoting the progress of the arts, but instead is specifically designed to compensate musicians; you can see this in the name of the statute, itself. 

It certainly looks like something is going to pass, but I decided a while ago that I shouldn’t try to predict what Congress will do. So instead I will watch and see what happens.

Meanwhile, if you want to learn more about the weird world of music copyright, I wrote a white paper about music copyright that you should check out. You can read it here. 

The other day, I wrote about a decision in the 2nd Circuit holding that Robin Thicke and Pharell Williams copied Marvin Gaye’s Got to Give it Up when they wrote Blurred Lines. There have been plenty of interesting articles on this case since it came down. Here, I want to focus on one from Rolling Stone that discusses Forensic Musicology. 

Forensic Musicologists are experts in music theory who compare pieces of music to determine if something is a copy. The Rolling Stone article points out that there are at least two parts of forensic musicologists’ tasks. First, they look at the objective similarity between two pieces of music, comparing the notes, phrases, melody, harmony, etc. Second they use their findings to infer if the second work copied the first.

Copyright trials can often come down to a battle of experts. Both sides hire musicologists to argue that two pieces of music are similar or not. At the end of a trial, it is the job of the jury — as the trier of fact — to decide which side has the better argument. 

We focus on how similar two works are, instead of if one work is an identical, carbon copy of another, because copyright does not require two works to be exactly the same to trigger infringement. It only requires them to be too similar. The standard that courts follow for copyright infringement is “substantial similarity.” There are two things plaintiffs must show to prove this. First, they must show “extrinsic similarity.” We can think of this as objective similarity, the same as the first task of a forensic musicologist that we discussed above. Second, plaintiffs must show intrinsic similarity. Intrinsic similarity is a subjective argument that an ordinary person — that is, not an expert — would recognize the similarity between the two works.  

Unfortunately, it is very hard to figure out when two works are too similar. To address with this, University of Michigan has a great research guide on substantial similarity cases that can help figure this out. 

Interestingly, the Rolling Stone article ponders whether the Blurred Lines case could be a bellwether for the future of music copyright cases. It points out that since the trial court decision a couple years ago, there has been an increase in cases requiring forensic musicologists to show when works are copies. This is because the Blurred Lines decision stands for the proposition — in some ways — that someone can have a copyright over a song’s “feel.” As such, it could open the door for cases where the extrinsic similarity between two songs is not immediately obvious. And in these cases, experts will be needed to argue both for and against infringement. 

One thing I find interesting about this case is it implies that forensic musicology could be a way for people with music degrees to use their education beyond playing or teaching music. If we see more and more cases involving “music feel” infringement, then more and more experts will be needed to sort out which ones are too similar. We will keep watching this to see what happens with music copyright in the future. 

As you may remember from a couple years ago, Robin Thicke and Pharrell Williams have found themselves in a bit of trouble over their (admittedly, quite catchy) song, Blurred Lines. Back in 2013, Thicke and Williams filed a lawsuit asking a federal district court in California to declare that their work was not a copy of Got to Give It Up, despite some similarities. This backfired on them, however, and a jury in 2015 decided that they had, in fact, copied Gaye’s work. So, Thicke and Williams appealed the decision to the 9th Circuit, and that court has now weighed in on the matter — and it’s not good for the duo. 

The 9th Circuit held that there is not a clear reason to overturn the jury’s decision in this case, and accordingly affirmed most of the decision below. This has led some commentators — including a dissent from one of the judges who heard the case — to say that this decision sets “a dangerous precedent” (see Nguyen, dissent, pg. 57). The issue is that, in upholding the lower court, the 9th Circuit seems to have said that someone can copyright the “feel” of a song. That is, even though Blurred Lines and Got to Give It Up may not be quite the same, they evoke the same thing when you listen to them, and that is a copyright violation. Can you copy a song’s “feel”? That seems strange — and certainly contrary to what we normally think of as copyrightable — but maybe you can, now. And that could be very problematic, for sure. 

Nevertheless, I think the worry is a bit overblown. In its decision, the 9th Circuit seems to go out of its way to say that we should understand its holding to be narrow. That is, this decision should only pertain to this case and this set of facts. Moreover, Thicke was particularly harmful to his own case. In a GQ article from 2013, he essentially admitted to copying Marvin Gaye’s song. In response to a question about the origin of Blurred Lines, Thicke said: “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up.’ I was like, ‘Damn, we should make something like that, something with that groove.'” Then, later in a deposition, he said he was high on Vicodin and drunk for every interview he gave about the song. Ultimately, I’d bet that a jury might have come to a different decision if he was a more sympathetic party in the case. 

Still, we will have to watch to see if there is any fallout from this decision. Meanwhile, I’ll go back to listening to my favorite song that also “feels” a lot like Got to Give It Up, Word Crimes, by the truly inimitable Weird Al Yankovic. 

Today, in this brief post, I want to point you to a story from the Electronic Frontier Foundation about a recent case from New York that could have serious implications for how we use images we find on services like Twitter.   

In this case, Goldman v. Breitbart, Justin Goldman claimed that news organizations like Breitbart, Yahoo, and the Boston Globe has improperly displayed his photo of Tom Brady. He took the photo, and posted it on Snapchat. Someone saw the photo, Tweeted it out, and then several companies like Brietbart, Yahoo, and The Boston Globe all embedded it into articles of their own. So Goldman sued, believing that his right under copyright to control the public display of his photo was infringed. However, when you embed something like this, you don’t actually copy the image to your own servers. As such, the Defendants argued that since they didn’t actually posses the photo — the embed, in a way, only points to the image on Twitter — they couldn’t infringe Goldman’s copyright. The court, however, ultimately rejected this argument and sided with Goldman. 

Unsurprisingly, the EFF does not agree with this decision. It notes that there is a history of cases that permits the kind of embedding that occurred in this case, most famously, Perfect 10 v. Amazon. While the Southern District of New York addressed this case, the EFF is unsatisfied with the distinction it drew. More problematically however, is that this kind of embedding is extremely common online and is generally considered ok. If it suddenly becomes copyright infringement to do this, the EFF worries that it could threaten many more people with copyright infringement. 

As with many cases, this one is probably not quite done, yet. So we’ll have to keep our eyes on it.

(For another look at this case, check out this post from the Hollywood Reporter.)

Today’s blog post comes from a USA Today article about a copyright issue over American Airlines’s new logo. The airline recently ran into a bit of a snag when it tried to register its logo with the Copyright Office. So let’s take a quick look.

American Airlines adopted a new logo in 2013. As described by the article, “The logo looks like a white eagle’s head poking through a diagonal swoosh with blue on top and red on the bottom.” In 2016, the airline filed an application to register this work with the Copyright Office. The agency, however, rejected the registration, saying that the logo was not creative enough to have a copyright. 

As you may already know, artistic works need to meet three requirements to receive copyright protection. First, works must be “original.” This doesn’t mean works must be “new,” but instead they need to be the independent creations of their authors. That is, they can’t be copies. Second, works have to be “creative,” but only a little creative. And finally, works have to be “fixed,” meaning they have to be saved in some way. Purely ephemeral works do not receive copyright protection. 

Notably, these three requirements are very easy to reach, and most works do so. Still, they exist, and sometimes works don’t meet them. Turning to the creativity requirement, the U.S. Supreme Court looked at this in the famous case, Feist Publications v. Rural Telephone Service. The Court wrote that even “a modicum of creativity” is enough to satisfy this requirement. Still, some things just aren’t creative enough for copyright. Indeed, Feist held that a basic, alphabetical listing of telephone numbers wasn’t creative enough to receive protection. 

American Airlines found out first hand that you can’t ignore the creativity requirement when the Copyright Office rejected its registration application. So, the lesson is, while the copyright requirements may be minimal, we must pay attention to them; we can’t take copyright status for granted. 

But don’t be too sad for American Airlines. The company already registered the image as a trademark, so it has plenty of IP protection over its new logo. Nevertheless, this story is a good reminder that even a huge company like American Airlines is subject to the same requirements as the rest of us when it comes to copyright.  

I’ve said for a while that I doubt Congress will undergo major Copyright legislation anytime in the near future. Tho our aging law certainly needs some serious updates, our Federal government has more pressing things to do than deal with Copyright right now. That said, there recently has been some movement in both the House of Representatives and the Senate on amending at least a few outdated parts of our law, and something may, in fact, happen in 2018. 

On December 21, 2017, representative Doug Collins, a Republican from Georgia, introduced H.R. 4706, the Music Modernization Act of 2017. About a month later, Orrin Hatch (R-UT) introduced a Senate version of the bill into his chamber of Congress as S. 2334. Both bills have been referred to their respective Judiciary committees, and we’re now waiting for the next steps. 

One significant thing these bills do is set up a new system for mechanical licenses of musical works. Under our current law, if someone wants to use a musical work — say, they want to create a cover of a song — they can obtain a “mechanical license” by giving notice and paying royalties to the copyright owner(s) of that musical work. The Music Modernization Act creates a new system for these licenses and sets up a new agency to manage them and their royalties.

This law will probably benefit rightsholders because it will ensure that they receive the royalties the are owed under the law. As such, it’s not surprising that groups like RIAA, BMI, and ASCAP all back it. Indeed, with support by large, powerful groups like these, it seems likely like some version of these bills legislation will pass. Of course, like many bills, it’s not clear exactly what will happen, tho, and it’s similarly not clear what the final version of the law will look like. 

Who knows what will happen, or even if it’s a good idea, but I’m happy to see that Congress has taken some interest in copyright reform, at least in part. Hopefully we’ll see more movement in this space, and eventually maybe the government will finally bring Copyright law up to date. Either way, the Music Modernization Act has a long way to go before it becomes law, if it even does, so we will keep our eyes on what happens.