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As you may have heard, the EU is debating a quite controversial proposal to reform its copyright laws. Now, a number of high-profile people, including the inventor of the World Wide Web himself, Tim Berners-Lee, has come out in opposition to the directive. So what’s going on?

The problematic provision is Article 13 of the Directive on copyright in the Digital Single Market. It reads: 

Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users

1.Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter.

2.Member States shall ensure that the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1.

3.Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments.

The concern here is that this provision requires internet service providers to use automatic filtering technologies that would remove content without any consideration for whether that content is lawful or fits under a copyright exception like fair use/fair dealing. Most of the time when people upload things to the internet, it is perfectly legal and this sort of technology could be used to improperly censor  content. In the words of Tim Berners-Lee and his colleagues: “By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users.

Consider something like a meme GIF or a mashup. These sorts of things use previously created content, but are basically accepted today, as permissible uses of copyrighted material. Sometimes they don’t fit under fair use, but often they do. Article 13, however, could cause them to be automatically removed as soon as they are put online, without any consideration for their legality. Think about how many truly original, creative, and great things would never see the light of day because of this. As a huge mashup fan, it makes me sad. 

The European Parliament’s Legal Affairs Committee will vote on the proposal on June 20-21. Currently there is a lot of opposition to the directive, so maybe it won’t pass. But who knows. We’ll definitely be watch. 

Posted by & filed under Copyright.

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. 


Posted by & filed under Copyright.

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



Posted by & filed under Copyright, Fair Use.

It shouldn’t surprise me that there’s a lot of bad information out there on ye olde World Wide Web. Still, every time I read something false about copyright, I get a bit annoyed. 

Take this article from Fast Company, for example, entitled This Copyright-Flaunting Music Video Imagines “Star Wars” with Really Long Lightsabers. The article addresses a video posted on YouTube by the Auralnauts that edits a scene from Return of the Jedi. If you’ve seen the movie, you surely remember the scene. It’s where where Jabba the Hutt’s thugs are about the feed Luke, Han, and Chewbacca to the Sarlacc Pit, when, at the last moment, Luke turns the tables on the bad guys and leads a daring rescue and escape. The Auralnauts — who are Craven Moorhaus and Zak Koonce — edit the scene in numerous ways, including extending Luke’s lightsaber blade to cut across the entire screen, adding hilarious and ridiculous music, and in general making fun of some of the scene’s silliest parts. Clearly, the video is designed to lovingly mock this iconic moment from the Star Wars series, and it’s great. 

Putting the aesthetic quality of the video aside, the Fast Company article makes some questionable statements about how copyright applies to it. The title alone suggests that the Auralnauts violated Lucasfilm/Disney’s copyright in creating this work. It then goes on to say that “this particular digital manipulation would appear to violate all sorts of copyrights” without clarifying why the author thinks this is the case. Indeed, it is a pretty serious statement to make without any reasoning. Copyright infringement can carry large civil penalties and even (potentially, tho unlikely) criminal charges. And after reading this article, someone who doesn’t know any better might assume the video is a clear instance of infringement and move on. After all, it comes from a reputable source like Fast Company; surely the author wouldn’t pass judgement on something if it wasn’t true, right? 

Well, as it turns out, these statements are at least misleading and at worst completely false. Consider four thoughts. First, the author writes that this scene may violate “all sorts of copyrights”? Really? If so, how many? Which ones? Who owns them? Without clarification, I’m pretty sure the author of the article wrote this line either because they don’t know any better, they assume there are multiple rights being infringed but didn’t actually look into it, or they just want to make the article seem more important than it actually is.

Second, what about fair use? It took me about 10 seconds to think of a plausible — and I think pretty strong — fair use argument in support of Auralnauts’s video. It’s clearly transformative in many ways; it is a parody that comments on the original; it only uses a little bit of Return of the Jedi — a couple minutes out of a 136 minute long movie; and I don’t think it’s really harms the market for the original. Yet the author of the article doesn’t even mention fair use. This is a noteworthy oversight. 

Third, if this video violates Lucasfilm/Disney’s IP rights, why is it still online? Major rights holders like Lucasfilm are normally very active about removing instances of copyright infringement from YouTube. If the company had a problem with the video, it would almost certainly try to get the video taken down. Yet it’s still there. This suggests either Lucasfilm doesn’t believe this is copyright infringement or doesn’t think the video is a serious enough threat to its IP rights to have it removed. 

Fourth, it is possible that the Auralnauts licensed the right to use this clip from Lucasfilm. I doubt that’s the case, but the truth is, we don’t know. And it is careless of the Fast Company author to assume otherwise, without at least acknowledging this assumption. 

Ultimately, the sort of statement made in this article frustrates me because it gives people a false perception that any use of a copyrighted work is automatically infringement. That is simply false; in fact, copyright has numerous exceptions that permit various types of uses. Fair use is one of them, but there are several others. Indeed, the purpose of copyright itself is to drive forward our culture, and it allows for some uses of copyrighted works to support this aim. And I’d argue this video firmly fits with this purpose.

All this is to say, be careful about what you read online about copyright. If something doesn’t seem true, don’t trust it (including this post!) Look deeper into the issue, and if you have a question, ask your friendly, neighborhood Copyright Librarian. We’re always happy to help. 


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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. 



Posted by & filed under Copyright.

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. 

Posted by & filed under Copyright, Fair Use.

As a huge Star Wars fan, I was super excited when I saw this on YouTube: 

That’s right, Star Wars: The Animated Movie. Hand-drawn by Jeronimus Dekker with “a monk’s sense of concentrating and dedication”, this short film is a 6-minute summation of the first Star Wars movie, A New Hope. And it’s amazing. Each frame drips with creativity, skill, and an obvious affection for the source material.

Needless to say, I love it. 

However, since I work in Copyright, my first thought after watching the video was about fair use. It seems to me this film presents an interesting fair use example because it definitely should be fair use, but it isn’t certainly protected by the law. 

As you may know, our fair use statute doesn’t give us a list of instances when it’s ok to copy another person’s work. Instead, it tells us to look at 4 different factors, weigh the arguments for and against fair use, and decide on balance whether it’s ok to copy something or not. The upside of this statute is that it’s very flexible and doesn’t limit fair use to specific types of copies. The downside, however, is that this balancing test is often quite unclear, even to experts, and it can be hard to decide with 100% certainty when something is fair use. In turn, this can chill the creation of new works that use other works at all because of the fear of infringement. 

It should be obvious why this is important for something like Dekker’s video. While I’d argue that his work is exactly the type of thing that fair use should protect, there are definitely arguments against fair use, here. And it’s not hard to imagine Dekker never creating a work like this because he was worried about Lucasfilm’s reaction.  

To be clear, I don’t think Lucasfilm is likely to sue Dekker or have this video removed from YouTube. Indeed, since it’s still there, it seems likely that Lucasfilm is ok with the work. Instead, what I’m saying is this sort of work definitely should be fair use, and we shouldn’t have to worry about it. 

This situation reminds me of my favorite Star Wars fan creation — Star Wars: Uncut. In 2010 Casey Pugh set out on an ambitious art project. He divided A New Hope into 473 fifteen second pieces, and asked people on the internet to take a piece and remake it however they wanted to. This could be as animation, papercraft, live re-creation, sock puppets — whatever. It was entirely up to the creator. He then took all the pieces and reassembled them into a new version of A New Hope. 

The result is a fascinating piece of art that can only exist thanks both to modern technology and the power of our fair use statute. However, while it strikes me that this work has a stronger fair use claim than The Animated Movie, it’s still not a slam dunk for Pugh. Indeed, our fair use statute guarantees that there are always arguments against fair use, even in the best cases.

Thankfully, Lucasfilm embraced Pugh’s work, and even actively supported the creation of its sequel, The Empire Strikes Back: Uncut. Nevertheless, it’s not hard to imagine a different copyright holder being less friendly to a work like this and blocking its creation/distribution.

Ultimately, all I’m saying here is that I wish the law more clearly supported fan creations like these because they are  tremendously creative, original works, and I think the world is better with them in it. Indeed, the purpose of copyright is to encourage creators to make works and advance our culture, and this this is exactly what works like Star War: The Animated Movie, Star Wars: Uncut, and The Empire Strikes Back: Uncut all do. 



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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.)

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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.  


Posted by & filed under 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.