Transcript Standard Setting in High

Class 23
Copyright, Winter, 2014
Music
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
The Law School
The University of Chicago
773.702.0864/[email protected]
Copyright © 2005-14 Randal C. Picker. All Rights Reserved.
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.
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101: Phonorecords

“Phonorecords”
are
term “phonorecords” includes the material
object in which the sounds are first fixed.
The
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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.
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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;
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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.
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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;
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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;
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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.
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Creating a Poem I

Hypo
In
my office, on paper, word by word, I create a
poem
I stop writing and declare my poem completed

Do I have a copyright in the poem?
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Answer

Answer
Sure
102(a):
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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.
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Creating a Poem II

Hypo
In
my office, speaking into a tape recorder, word
by word, I create a poem
I stop dictating and declare my poem completed

Do I have a copyright in the poem? Is the tape
recording a distinct copyright object?
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Answer


As to the poem, sure
102(a) embraces a media neutrality idea
The
poem is fixed on the taped and can be
perceived from the tape with the aid of a machine
or device
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Answer

Understanding Fixation
The
poem is no less “fixed”—fully specified and
defined—on tape 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 well
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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.”
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Answer

See Legislative History
“Under
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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.’”
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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 poem continues to exist as separate literary
work, just as it did when it was “recorded” on
paper
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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 poem—or a derivative work
of that poem
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1971 Sound Recordings Act Legis History
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1971 Sound Recordings Act Legis History
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1971 Sound Recordings Act Legis History
Sec. 114: Scope of Exclusive Right in
Sound Recordings

(a)
The
exclusive rights of the owner of copyright in a
sound recording are limited to the rights specified
by clauses (1), (2), (3) and (6) of section 106, and
do not include any right of performance under
section 106(4).
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Creating a Tune I

Hypo
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?
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Answer

Q1: Yes
Assuming
minimal originality, this will qualify as a
musical work covered by 102(a)(2)

Q2: No
Requires
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sounds and no sounds so far
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Creating a Tune II

Hypo
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?
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Answer

Q1: Yes
Fixation
is media neutral; no preference for paper
vs. recording device
There was no preexisting work in either version of
the hypo; it was created note by note in both
cases
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Answer

Q1: Yes
The
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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Answer

Q1: Yes
This
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is a classic sound recording.
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Creating a Tune III

Hypo
At
a club in public before an audience, sitting at
the piano, 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
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Creating a Tune III

Do I have a copyright in the new song? Is there
a sound recording? Does the fact that this as
done as a public “performance” alter the
analysis somehow?
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Answer



Q1: Yes, as before
Q2: Yes, as before
Q3: No
Doing
this in public or while being watched by
others says nothing about whether I have or have
not composed a new melody
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Answer

Q3: No
Compare
definition of “perform”
 “To ‘perform’ a work means to recite, render,
play, dance, or act it, either directly or by means
of any device or process or, in the case of a
motion picture or other audiovisual work, to
show its images in any sequence or to make the
sounds accompanying it audible.”
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Answer

Q3: No
With
definition of “create”
 “A work is “created” when it is fixed in a copy or
phonorecord for the first time; where a work is
prepared over a period of time, the portion of it
that has been fixed at any particular time
constitutes the work as of that time, and where
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Answer

Q3: No
With
definition of “create”
 “the work has been prepared in different
versions, each version constitutes a separate
work.”
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Playing Music

Hypo
You
write and record on a CD a new song, “The
Copyright Blues”
WXRT, a Chicago FM radio station, buys the CD
at Walmart
WXRT plays the CD on the air

Copyright issues?
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Answer

Separate Works
The
musical work
The sound recording

Act
WXRT
has publicly performed the musical work
and the sound recording
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Answer

Rights: Sound Recordings
Owners
of copyrights in sound recordings have
limited control over public performance of sound
recordings
 Under 106(6), only as to public performances by
means of a “digital audio transmission”
 No general public performance rights for sound
recordings under 106(4); see also 114(a)
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Answer

Rights: Musical Work
Owner
of copyright in musical work has full control
over public performance rights under 106(4)
Absent consent, playing CD over-the-air violates
public performance rights
ASCAP and BMI license these rights
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Making Music

Hypo
You
write a new song, “The Copyright Blues”
I buy the sheet music for the song and record it
and distribute CDs of my sound recording

Copyright issues?
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Answer

Derivative Works Again
My
sound recording will be a derivative work of
the sheet music (sound recordings are specifically
referenced in the derivative works definition)
You have the exclusive right to control derivative
works under Sec. 106(2), unless something else
calls off that right
Any call offs? Yes: Sec. 115, if phonorecord has
already been distributed
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History of Sec. 115

Piano Roll Monopolies!
Remember
White-Smith (U.S., 1908): Piano rolls
weren’t copies of sheet music; read by machines,
not people
New 1909 Copyright Act overturned this, giving
music composer the right to control “mechanical”
reproductions, meaning piano rolls and
phonographs
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History of Sec. 115
Aeolian
Co., leader in player piano market, had
contracted for mechanical recording rights in
anticipation of legislation
1909 Act got around that in creating a compulsory
license tied to first voluntary licensing
For more discussion, see Goldstein, Copyright’s
Highway 51-53
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Sec. 115: The Compulsory
License for Covers

In the case of nondramatic musical works, the
exclusive rights provided by clauses (1) and (3)
of section 106, to make and to distribute
phonorecords of such works, are subject to
compulsory licensing under the conditions
specified by this section.
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Sec. 115(a): Availability and
Scope

(1)
When
phonorecords of a nondramatic musical
work have been distributed to the public in the
United States under the authority of the copyright
owner, any other person, including those who
make phonorecords or digital phonorecord
deliveries, may, by complying with the provisions
of this section, obtain a compulsory license to
make and distribute phonorecords of the work.
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Limits on Cover Changes

115(a)(2)
A
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compulsory license includes the privilege of
making a musical arrangement of the work to the
extent necessary to conform it to the style or
manner of interpretation of the performance
involved, but the arrangement shall not change
the basic melody or fundamental character of the
work, and shall not be subject to protection as a
derivative work under this title, except with the
express consent of the copyright owner.
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Royalty Scheme

Elaborate; see 115(c)
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Making Music Again

Replay the Hypo
You
write and record a new song, “The Copyright
Blues”
I buy the sheet music for the song and record my
version of it and distribute CDs of my sound
recording

Copyright issues?
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Answer

First Mover Advantage
Sec.
115 allows the second mover to distribute
his/her “copy” of the musical work, once the owner
of the copyright in the musical work has allowed
one distribution of a phonorecord of the work

Described as “mechanical licensing”
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Answer

Sound Recording Issues
Have
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I copied your sound recording?
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114

(b)
The
exclusive right of the owner of copyright in a
sound recording under clause (1) of section 106 is
limited to the right to duplicate the sound recording
in the form of phonorecords or copies that directly
or indirectly recapture the actual sounds fixed in
the recording.
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114
The
exclusive right of the owner of copyright in a
sound recording under clause (2) of section 106 is
limited to the right to prepare a derivative work in
which the actual sounds fixed in the sound
recording are rearranged, remixed, or otherwise
altered in sequence or quality.
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114
The
exclusive rights of the owner of copyright in a
sound recording under clauses (1) and (2) of
section 106 do not extend to the making or
duplication of another sound recording that
consists entirely of an independent fixation of
other sounds, even though such sounds imitate or
simulate those in the copyrighted sound recording.
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Internet Radio/Webcasting

Hypo
I
buy CDs
I broadcast them over the Internet, just like an
over-the-air radio station
Change in broadcasting medium

Any change in the analysis?
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Answer

Yes
Musical
work analysis: Same
Sound recording
 This triggers the 106(6) right: in the case of
sound recordings, to perform the copyrighted
work publicly by means of a digital audio
transmission
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Answer


Sec. 114 Has Elaborate Compulsory License
for this Case
Entry Barriers
Disadvantages
web entry relative to over-the-air
radio
Over-the-air radio need not pay for use of sound
recordings, just the musical compositions
Web radio pays for both
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Remixes: Newton and Bridgeport

Newton: Once Damned or Twice-Damned?
To
sample recorded music, do you need to
license both the sound recording and the musical
composition or can you just license the sound
recording?
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Remixes: Newton and Bridgeport

Bridgeport
To
sample recorded music, do you need to
license both the sound recording and the musical
composition or can you just license the
composition?
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Remixes: Newton v. Diamond

Core Facts
1978:
Newton composes Choir
1988: Newton records Choir and licenses all rights
in sound recording to ECM for $5000
1992: Beastie Boys get license from ECM to
sample Choir, produce Pass the Mic
Newton sues for copyright infringement of his
musical composition
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Newton’s Composition
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The Music

Link Here
http://mcir.usc.edu/cases/2000-
2009/Pages/newtondiamond.html
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The Newton-ECM License

1)
[Newton]
herewith grants, transfers and assigns to
ECM without limitations and restrictions
whatsoever the exclusive rights to record his
performances and to exploit these recordings in
perpetuity throughout the world in any manner
whatsoever.
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The Newton-ECM License

3)
3) The grant of rights according to section 1)
especially, includes the rights to manufacture in
quantity [sic], to distribute, to license to others, as
well as to perform the recordings in public and to
utilize it in radio, TV, or in other ways without any
restrictions.

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The ECM-Beastie Boys License
[ECM
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Records], as owner of the applicable sound
recording rights, including but not limited to
recording, reproduction, synchronization and
performing rights, grants to Beastie Boys, its
licensees, assigns, employees and agents (the
“Licensed Parties”), the irrevocable non-exclusive
license and right to copy portions (if any) of the
sound recording entitled “Choir” performed by
James Newton (the “Sample”);
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The ECM-Beasties Boys License
to
embody the sample in some or all versions of
the selection entitled “Pass the Mic” by the Beastie
Boys (all versions of “Pass the Mic” which contain
the Sample are referred to as the “Selection”); to
reproduce, distribute and otherwise exploit the
Sample as part of the Selection in all media,
whether now known or hereinafter developed,
including, without limitation, all record formats
throughout the world in perpetuity.
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Analysis

Musical Works
How
many musical works does Newton have
here?
 Just the work fixed in the musical score?
 An additional work, say a derivative work of the
musical score, fixed in the sound recording?
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Analysis

Musical Works
Or
is the thing captured in the sound recording a
performance of the first musical score?
 Such a performance would violate 106(4) if done
by someone other than Newton
 But does the performance as such have
copyright significance if done by Newton?
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Majority Opinion in Newton

Per the Court
“Here,
the only time any sound was fixed in a
tangible medium was when a particular
performance was recorded. … Newton’s copyright
extends only to the elements that he fixed in a
tangible medium—those that he wrote on the
score.”
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Analysis

Understanding the Contracts
Presumption
against fragmentation of rights?
Double marginalization concerns
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Analysis

Doing Copyright
Originality
Infringement:
If you copy and no one can tell,
have you infringed?
Separating the sound recording and the musical
composition
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Understanding the De Minimis
Exception

Framing This:
Just
another version of fair use?
Ties infringement to recognition of the work: if
unrecognized by average viewer, no infringement?
A prudential rule for controlling judicial dockets:
“the law does not concern itself with trifles”?
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Remixes: Bridgeport v.
Dimension Films

Core Facts
Bridgeport
and Westbound claim music
composition rights and sound recording rights
regarding “Get Off Your Ass and Jam” by George
Clinton Jr. and the Funkadelics
A new song, 100 Miles and Runnin, is created, in
part, though sampling Get Off
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Remixes: Bridgeport v.
Dimension Films
Bridgeport
licenses the use of the musical
composition, Westbound doesn’t license use of
the sound recording

District Court
No
reasonable juror would recognize the source
of the sample without having been told of its
source
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The Central Question


How does Sec. 114 apply to music sampling of
a sound recording?
Start with the music:
http://mcir.usc.edu/cases/2000-
2009/Pages/bridgeportdimension.html
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