Transcript Slides from Class 19 (March 24, 2003)

COPYRIGHT LAW: THE CASE
OF THE MUSIC INDUSTRY
Professor Fischer
The Catholic University of America
Columbus School of Law
March 24, 2003
Music: Two Separate Copyrights
• Musical Work (both musical notes and
lyrics – may be a joint work)
• Sound Recording – no federal protection
until 1971 (though some states had
protection)
• What’s the difference between a musical
work and a sound recording?
Some Music Industry Players
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Performing artists
Songwriters
Music publishers
Record companies
Collective rights organizations (like Harry Fox
Agency, ASCAP, BMI)
• Radio stations, concert venues, nightclub owners
• Trade associations (like RIAA)
We Will Look At 3 types of
compromises in copyright law
•
•
•
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1. Compulsory licenses
2. AHRA – royalty pooling system
3. CROs
All reduce transaction costs
ALISON and s. 115
RIGHT TO
MAKE/DISTRIBUTE
PHONORECORDS
• What would Linda Ronstadt have to do to
ensure that her recording of Alison did not
infringe Elvis Costello’s copyright in the
song?
RIGHT TO
MAKE/DISTRIBUTE
PHONORECORDS
• What would Linda Ronstadt have to do to ensure
that her recording of Alison did not infringe Elvis
Costello’s copyright in the song? Either comply
with requirements under s. 115 to obtain or (more
typical) contact the Harry Fox Agency (agent for
music publishers) and obtain a Harry Fox Agency
license.
• What does she have to do to get a mechanical
license?
MECHANICAL LICENSE
• Primary purpose to distribute to public for private
use
• Phonorecords must have been distributed under
authority of copyright owner
• Can’t use for pirating of sound recordings
• Must serve TIMELY notice of intention on
copyright owner
• Must pay royalty established now by ad hoc
arbitration panels (Copyright Arbitration Royalty
Panels or CARPS) (now 8c/song or 1.55 cents per
minute of playing time whichever larger, slated to
go up in 2004)
• Applies to digital downloads but may also violate
sound recording copyright
CHANGING THE SONG
• To what extent can Linda Ronstadt
validly change the song Alison in her
recording of it under a compulsory
license?
• Can she get a derivative work copyright
in her new arrangement?
CHANGING THE SONG
• See s. 115(a)(2) - she can make a musical
arrangement “to the extent necessary to
conform it to the style or manner or
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” without Costello’s express
consent.
• ;
HARRY FOX AGENCY
• What is the Harry Fox Agency?
THE HARRY FOX AGENCY
• The Harry Fox Agency is a organization by a
trade association of leading music publishers
(NMPA) to represent music publishers. For a
fee, HFA issues mechanical (and
synchronization) licenses and collects royalties
due under those licenses from record
companies.
• For a great book on the music industry, see
Krasilovsky/Shemel, This Business of Music.
HARRY FOX LICENSE
• The HFA mechanical license has some
special features, for example, the service of
notice of intention to obtain a compulsory
license is waived.
• Courts have held that this license is still a
variant of a compulsory license and should
be treated as a compulsory license rather
than a private contract.
OTHER MECHANICAL
RIGHTS LICENSING
ORGANIZATIONS
• Harry Fox Agency is not the only
mechanical rights licensing organization.
Others include the American Mechanical
Rights Agency (AMRA), Copyright
Management, Inc., and Publishers Licensing
Corp.
• They are all very small in comparison to
Harry Fox Agency.
INT’L MECHANICAL RIGHTS
ORGANIZATIONS
• Other nations have mechanical rights
organizations, e.g. Canadian Musical
Reproduction Rights Agency Ltd.
(CMRRA), British Mechanical Copyright
Protection Society (MCPS), French Societé
pour l’Administration du Droit du
Reproduction (SDRM), etc...
REPRODUCTION RIGHT IN
SOUND RECORDING
• How does section 114 limit the rights of the
copyright owner in sound recordings?
• Can sampling be copyright infringement – of a
musical work? Of a sound recording? Why or why
not? What is the test for infringement? See Jarvis
at p. 433. Note that fair use may apply as a
defense. Remember also that state law rights of
publicity may apply – see, e.g. Midler v. Ford
Motor Co., 849 F.2d 460 (9th Cir. 1988)
LIMITS IN SECTION 114
• Like section 115, 114 limits reproduction
rights of the copyright owner but here the
relevant copyright owner is the owner of
rights in sound recordings.
• It only protects against reproduction of
sound recordings that directly or indirectly
recapture the actual sounds fixed in the
protected recording.
PUBLIC PERFORMANCE
RIGHTS AND CROS
• S. 106(4) a general right of public
performance. Does this apply to musical
works AND sound recordings?
• What is ASCAP? BMI? What do they do?
• What is a blanket license?
• How does a blanket license differ from a
compulsory license or royalty pooling?
Another example of a compusory
license – jukeboxes
• BCIA - Compulsory
license available only if
agreement is not reached
• Jukebox License
Agreement (established by
ASCAP, BMI, SESAC) –
see
www.jukeboxlicense.com
Fairness in Music Licensing Act
• What did this act do?
• Why did the EU allege that this violated the
TRIPS Agreement?
• How did the WTO DSB rule?