Entertainment & Media, Law, Music, Technology
This blawg focuses on US law as it pertains to technology and entertainment, but a recent decision of the High Court of the United Kingdom just caught my interest. The High Court of the United Kingdom held that certain “private copying” exceptions to the UK’s copyright law (which had allowed for private home copying of copyrighted materials such as musical recordings) is unlawful. (The High Court has no direct counterpart in the US Federal court system. It deals as the court of first resort in all high value and high importance cases in the UK, and also has a supervisory jurisdiction over all subordinate courts and tribunals, with a few statutory exceptions.) What this means is that, under British law (at least according to that court), a consumer may no longer make copies of CDs or even backup copyrighted programs on their computers without engaging in unlawful copyright infringement.
Accordingly, popular services such as iTunes (which is designed to allow for CD ripping) are now illegal in the UK. According to the UK Intellectual Property Office, it is now unlawful to make private copies of copyrighted works owned by an individual (such as a lawfully purchased CD or lawfully purchased copy of software) without first obtaining permission from the copyright owner. That office expressly stated that unauthorized format shifting from one medium to another (e.g., copying a purchased CD onto a computer or MP3 player) is now unlawful.
US copyright law, however, expressly allows consumers to make private copies of lawfully purchased or obtained audio recordings. The Audio Home Recording Act of 1992 (“AHRA”) (embodied in Section 1008 of the Copyright Act) provides:. “No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.” The AHRA was a result of a compromise with interested parties (such as the then –fledgling digital recording device industry and the music industry) to address the desire for additional copyright royalties from digital uses of music while recognizing consumers’ personal copying behaviors. While there is some scholarly debate over whether all private digital copying is allowed under the Act, the prevailing view is that an individual consumer is allowed to make copies, either analog or digital, of musical recordings. (Note: The Copyright Act amendment did NOT address video recordings, only audio.)
What is going to happen next in the UK is anyone’s guess. To the extent that Apple continues to distribute iTunes in the UK without disabling the CD ripping functionality, it appears to be in violation of UK law and may be accused of engaging in copyright infringement. Even cloud services (which allow for making and uploading digital copies of copyrighted materials) may face legal action.
According to reports, the British government is not pleased with the High Court’s decision in this matter, rightfully concluding that it is likely to cause chaos and concern (and is likely to be highly unenforceable against individuals). As a result, I would not be surprised to see the British Parliament revise UK copyright law to make explicit that such home copying is lawful, similar to the American model.
Entertainment & Media, Law, Music
Donald Trump, the New York real estate mogul and self-proclaimed business genius, just kicked off his campaign for the Republican Presidential nomination at Trump Tower in Manhattan to the tune of Neil Young’s Rockin’ In The Free World.
Risky business, Mr. Trump. Just recently, musical artists Axwell and Ingrosso asked another GOP candidate, Florida Senator Marco Rubio, to stop using their song Something New on his campaign stops. During the last presidential election, Mitt Romney was asked not to use Silversun Pickup’s Panic Switch. The Talking Heads song, Road to Nowhere, was used without permission by Democrat Charlie Crist in his Florida Senate campaign in attack ads against Republican Marco Rubio in 2010. The group’s leader, David Byrne, filed a $1 million lawsuit, and as part of a settlement Crist had to publicly apologize for using the song.
In fact, Neil Young objected to the use of his song, and declared that Trump did not have permission to use his song. In a statement, Young’s representatives said: “Donald Trump was not authorized to use Rockin’ In The Free World in his presidential candidacy announcement. Neil Young, a Canadian citizen, is a supporter of Bernie Sanders for President of the United States of America.”
In response to the statement, Trump’s campaign manager stated that the campaign had obtained a license from ASCAP to perform the song. ASCAP (along with BMI and SESAC) is a music public performance rights society. It represents over 525,000 songwriters, composers and music publishers. ASCAP grants licenses (on behalf of its publisher and songwriter members who authorize it to do so) for the public performance of musical compositions. ASCAP does NOT license the public performance of the actual recordings of those compositions, whose rights normally are owned by the record company or recording artist, not the music publisher. However, for “analog” public performances of a sound recording, such as that employed by Trump in this case, (as opposed to the digital public performance of a song such as via Internet radio or a digital music subscription service like SiriusXM radio), copyright law does not include a public performance right. In this case, if Trump’s campaign did have such a public performance license from ASCAP, it complied with copyright law.
So, does Neil Young have a legal right to stop Trump from using his song as the musical background for his campaign? Maybe. Copyright claims aside, Young might assert his right of publicity or even a claim of unfair competition.
As I wrote in my last blawg post, the “right of publicity” (the right to control the commercial exploitation of one’s name, likeness, image and persona) is often overlooked as a legal right in situations like this one. The law of “unfair competition,” similar to trademark law, prohibits the creation of a false designation of sponsorship, affiliation or other connection. Laws prohibiting such activities exist under both Federal law (in Section 43(a) of the Lanham Act) and under various state laws. Both laws can be used to prevent false associations between an artist and a cause (or a candidate).
Asserting a right of publicity claim even where copyrights have been licensed properly has been done with success in the past. In two landmark cases, singers Bette Midler and Tom Waits brought lawsuits to prevent the use of “sound-alikes” in advertising to which they objected. In Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1989) and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992) the singers declined to lend their distinctive voices to advertising jingles for two prominent manufacturers. Both Ford and Frito-Lay had obtained the appropriate copyright licenses to record the songs. When Midler and Waits refused to sing for the ads, both Ford and Frito-Lay took the same approach: they simply found sound-alike performers who could duplicate the vocal timbre and styling of Bette Midler and Tom Waits. Midler and Waits both won their lawsuits based on right of publicity claims and were awarded substantial damages ($400,000 for Midler and $2,500,000 for Waits).
Another landmark case did not involve an impersonation of a voice of a celebrity, but instead an “impersonation” (in the form of a cartoon drawing, no less) of the look of a celebrity. In the case, White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992), Vanna White, the well-known letter turner on Wheel of Fortune, sued Samsung over an advertisement it ran. In the ad, Samsung utilized an image of a cartoon robot dressed in a long gown, wearing a wig and elegant jewelry and posed next to a wall of letters (resembling the Wheel of Fortune set). The court held that Samsung had violated Ms. White’s right of publicity because, in the court’s view, Samsung had deliberately pawned the image and popularity of White and because White was readily identifiable from the context of the use. She was awarded $403,000. While the White case is characterized as a right of publicity case, in many ways the court was swayed by the “false association” arguments that go to the essence of an unfair competition claim.
While Neil Young is still a Canadian citizen, he is a long time resident of Northern California. California has a robust right of publicity law that could be cited in this case, since the essence of Young’s objection is that he does not want to be associated with the Trump campaign. He also might claim that the use of his music in this way implies sponsorship or endorsement of the candidate, an act of unfair competition.
In this case, the right of publicity and the law of unfair competition might be enough to trump Trump.
Entertainment & Media, Law, Technology
Social media, it seems, has turned us all into photographers. Anyone with a Facebook page, an Instagram account or any of the other methods for socializing on the web, can post original photos for all the world to see, possibly forever. (Even after a posted photo is “removed,” it might be archived to one or more search engines.) Thus, the Internet is full of millions of photos by millions of photographers.
Richard Prince, a successful photographer and painter, sees this vast array of Internet photos as his personal image gallery. In fact, he enlarges copies of Instagram photos that strike his fancy and sells them as his own work for huge amounts of money—reportedly $90,000 a pop. He calls his work “re-photographing.” So what’s the problem? They are not HIS Instagram photos. For a recent gallery show in New York, Prince selected photos that appealed to him, blew them up without any of the accompanying comments (this is what he calls “re-photographing”), and called them “New Portraits.” He then proceeded to sell them without having first obtained any consent from the photographers or subjects of the Instagram photos (in many of the photos, the photographer and subject were, quite possibly, one and the same) and without paying any compensation to them.
What is going on here? Doesn’t copyright law protect these kinds of things? What about the right to prevent the commercial exploitation of one’s name and likeness (referred to as the “right of publicity”)?
Prince has been “re-photographing” since the 1970s. He takes photographs of existing photos in ads, magazine, books—anywhere he can find them—and then he tweaks the photos. However, many of these “re-photographs” consist of nothing more than reproducing the originals in larger formats.
Prince’s work has created controversy for quite a while. Back in 2008, a photographer, Patrick Cariou, sued Prince after Prince
re-photographed Cariou’s images of Jamaica’s Rastafarian community. At the trial court level, the court sided with Cariou and held that Prince had committed copyright infringement. However, on appeal, the court ruled that Prince had not committed copyright infringement because his works were “transformative” and, therefore, the “fair use” defense applied to Prince’s works. Emboldened by that decision, Prince has continued his re-photographing activities, believing that the courts will protect such activities as allowable “fair use.” In fact, he has posted a series of tweets in which he has mocked and insulted those who feel that his actions are unlawful.
Under copyright law, the owner of a copyright (in this case the copyright to a photograph) owns a bundle of rights. Included in that bundle is the right to create “derivative works” based upon that work. The Copyright Act defines a “derivative work” as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” Prince’s “re-photographs,” I believe, are a form of an art reproduction.
The language in the Copyright Act, at first blush, seems to lead to the conclusion that Prince’s works are merely unlawful derivative works. However, a landmark U.S. Supreme Court decision from 1994, in which the Court was asked to interpret the Copyright Act’s “Fair Use Doctrine” as set out in Section 107 of the Copyright Act (which provides a defense to a claim of copyright infringement), may allow Prince’s work to be deemed to be “fair use” of the Instagram photos. In the case of Campbell v. Acuff-Rose Music (a case involving rapper Luther Campbell’s unauthorized cover version of Roy Orbison’s classic song, Oh, Pretty Woman), the Court established another element to be considered in assessing whether a use is a “fair use:” whether or not the unauthorized use is a “transformative use.” While some consider this to be a new “fifth element” to be considered, most legal scholars consider the “transformative work” test to be an element to be considered as part of the analysis of the first of the four statutory factors set out in Section 107 of the Copyright Act, i.e., the purpose and character of the work.
Recognizing that this new element to be considered might be viewed as a direct contradiction of the Copyright Act’s concept of the “derivative work,” the Campbell Court stated that a derivative work becomes a “transformative work” (and, thus, entitled to fair use treatment) if it uses a source work in a completely new or unexpected way. In other words, even though the statute says that a copyright owner may stop others from preparing derivative works based on their copyrighted work, if that new work is “transformative” enough, the copyright owner may not be able to stop the use, even if the other four fair use factors set forth in the statute weigh against a finding of fair use. One thing that has led to quite a bit of confusion over the years is that the definition of a “derivative work” includes a work that is “transformed.”
There have been numerous court decisions since 1994 in which a party has claimed that its use of a copyrighted work constituted “fair use” where the courts have applied the Campbell case’s “derivative work vs. transformative use” test. However, in my view, this is still a very muddled area and predicting how a court will treat any particular set of facts is somewhat of a mystery. In the current situation with these Instagram photos, Prince’s “transformative use” consisted of removing the original comments from the posts, blowing up the photos and adding his own comments. Even with the Supreme Court’s broad view of “fair use,” I fail to see how Prince’s work can be seen as using the Instagram photos in a “completely new or unexpected way.” Still, in light of the 2008 case referred to above, no party has stepped forward to bring legal action against Prince as a result of his use of the Instagram images.
Apart from copyright claims against Prince’s work, I think that there also may be right of publicity claims here. The right of publicity (which is the subject of a prior blawg post is a state law right that protects various aspects of a person’s name, likeness and persona. The scope of the protection varies from state to state, and the right is not recognized in every state. There is no uniform Federal right of publicity (like copyright law). Prince’s works are images of people. They are being commercially exploited. Under some state’s right of publicity laws, this may be actionable as a violation of the pictured individual’s right of publicity. However, many right of publicity statutes, where such laws exist, exempt from protection the use of an image in connection with the creation of a work of art (what I like to call in Pennsylvania, the “Andy Warhol Exception”). To my knowledge, nobody has asserted any such right of publicity claims against Prince.
So, be careful about what you post. Your face, or the faces of your family and friends, could end up staring down from the walls of a wealthy art collector.
Entertainment & Media, Law, Music
Former Eagles drummer and co-lead singer Don Henley has just agreed to settle a lawsuit that he filed against Duluth Trading Co., the clothing retailer best known for its goofy cartoon ads on television. The crux of Henley’s lawsuit was that Duluth Trading, without Henley’s permission, sent out email advertisements (shown in the photo accompanying this post) for henley-style shirts (a “henley” is a type of shirt that resembles a collarless polo shirt) with the following text: “DON A HENLEY AND TAKE IT EASY.” While the song “Take It Easy” was not written by Henley (it was co-written by Jackson Browne and Eagle Glenn Frey who also sang lead on it), it was a huge hit for the Eagles. Henley claimed that the ads for the henley shirts purposely were designed to commercially exploit Henley’s name and persona, thus violating both his right of publicity and his trademarks. Henley owns two Federal trademark registrations for his name.
The right of publicity (which is the subject of a prior blawg post) is a state law right that protects various aspects of a person’s name, likeness and persona. The scope of the protection varies from state to state and the right is not recognized in every state. There is no uniform Federal right of publicity (like copyright law).
The case against Duluth was filed by Henley last October. It alleged that Duluth’s ad “deliberately invoke[d] Mr. Henley’s name and his association with the Eagles (via an Eagles hit song title) to sell its apparel.” Duluth Trading responded at the time by arguing that the “obvious joke” was not a violation of Henley’s publicity rights or trademark rights and was protected by the First Amendment as free speech. For its part, Duluth pointed out that the “henley” is named for the English town of Henley-on-Thames, not for the musician. Duluth Trading claimed that its use was a “transformative use” of portions of Mr. Henley’s name and, thus, constituted fair use. The concept of a “transformative use” is an element of a copyright concept called “fair use” and is not one that has been applied to right of publicity or trademark cases in the same way. (For a broader discussion of the Copyright Act’s Fair Use Doctrine, see my blawg posts of February 20, 2013 and November 21, 2013.) Since this case settled before the court issued a ruling on this issue, whether or not the court in this case would have applied the concept of a “transformative use” beyond the scope of a copyright claim is not clear.
As part of the settlement, Duluth Trading has publicly apologized to Henley on its Facebook page and on its website. In the apology, Duluth Trading claimed that the henley shirt ad, like its other advertisements, was intended to be a funny pun. Duluth apologized for using Henley’s name without his permission and also agreed to make a donation to one of Henley’s favored charities.
The lesson to be learned from this case is that celebrities increasingly are asserting their publicity rights to prevent third parties from commercializing products using their names, likenesses or personas. Businesses who desire to create parody advertisements need to consider how far they can go and also should factor into their decision the litigious reputation of the party whom they are going to parody. Don Henley, who has a long history of assorted legal battles against various members of the music industry, was apparently not going to keep his shirt on for this one.
Entertainment & Media, Law, Music
A Los Angeles Federal court jury decided this week that singer Robin Thicke’s and singer/producer Pharrell Williams’ megahit, Blurred Lines, infringed upon Marvin Gaye’s 1977 hit Got to Give It Up. The jury’s verdict, reached after eight days of trial testimony, awarded the Gaye family $7.4. $4 million of that award represents the estimated license cost for the right to use the Gaye-penned song, $1.8 million were profits earned by Thicke from his exploitation of it, and $1.4 were profits earned by Williams from his exploitation of it. This is one of the largest jury awards for a music copyright infringement case. Most of these cases, like the recently settled Sam Smith/Tom Petty copyright infringement dispute, are settled out of court or are dismissed by the court as a matter of law on summary judgment. This case is notable not only for the size of the verdict, but the strategies employed by the lawyers for both sides.
This case also illustrates the difference between the copyrights to a musical composition (which protects the chords, melody and lyrics of a song and is normally owned by a songwriter or musical publisher) and the copyrights to a sound recording (which protects the performances of the artist and recording engineer/producer as captured on a recording and is normally owned by an artist or record label). That distinction was a critical part of the case.
Interestingly, the case started with a filing by Thicke and Williams seeking a declaratory judgment that Blurred Lines did not infringe Got to Give It Up. Last October, the U.S. District Court in Los Angeles failed to grant Thicke and Williams a judgment based on summary judgment. However, the judge ruled that, under the Copyright Act of 1909, the copyright statute that was in effect as of the time of the publication of the Marvin Gaye recording in 1977 (the current Copyright Act of 1976 did not become effective until January 1, 1978), the Gaye family had not made the necessary deposits of the sound recording of Got to Give It Up with the US Copyright Office and, as such, could not claim a copyright on the sound recording. Subsequently, Williams and Thicke filed a motion with the court right before the trial was scheduled to begin to bar the sound recording from being played. Gaye’s family argued that the musical composition (the copyright status of which was not in dispute) is embodied in Gaye’s sound recording of it and that it was good evidence of Williams’ and Thicke’s infringement of the musical composition copyright. The court was not persuaded by that argument and, in a very unusual ruling, barred the playing of the Marvin Gaye sound recording at trial. Instead, the only thing that the court allowed the jury to hear was the sheet music of Got to Give It Up played on a keyboard and sung exactly as written. That sheet music lacked a good deal of the elements that seemed to be most similar between Blurred Lines and Got to Give It Up, in particular the unique percussion and Marvin Gaye’s distinctive vocal delivery (both of which arguably seem to be copied in Blurred Lines).
Thicke, whose credibility at trial really became an issue, admitted in depositions that he had lied to the media and was high on Vicodin and drunk during the recording sessions for Blurred Lines. While Thicke is credited as a co-writer of Blurred Lines, at trial he admitted that Williams had done virtually all of the writing of Blurred Lines. For his part, Williams claimed that he did not copy the Gaye classic, but rather only took its “feel” (that “late 70’s feeling”) to create an entirely new song. Williams testified that he is a huge Marvin Gaye fan and he claimed that he was inspired by Gaye’s music, but did not copy it.
The attorney for Williams and Thicke (and a third defendant, rapper T.I., whose rapping also appears as part of the Blurred Lines recording), emphasized that the Gayes only owned compositional elements that were reflected in the sheet music for Got to Give It Up, and that their rights did not extend to the other well-known elements of Marvin Gaye’s recording of that song, including the distinctive percussion and his vocal style. That attorney brought in a musicologist as an expert witness who testified as to the differences between the two songs and to show similarities between other famous songs.
Faced with this tactical obstacle, the lawyers for the Gaye family brought in their own musicologist to assess the similarities of the two songs. That musicologist testified to similarities in a “signature phrase” for each song, the “hook” in each song, the keyboard-bass interplay in each song and the themes and lyrics of each song.
As a trained musician, I have listened to both songs, although I have not listened to the stripped down version of Got to Give it Up that was played for the jury. Listening to the two recorded versions, you can hear certain similarities, although I thought that it was mostly just because the two songs share the same basic feel or groove. Those general elements of similarity normally are not enough to constitute copyright infringement. Remember, the jury did not have the ability to listen to the Marvin Gaye recording, but rather only a playing of the more stripped down sheet music for the song.
Despite the fears by the Gaye family that the judge’s ruling of the inadmissibility of the recording, the jury found that Thicke and Williams improperly used copyrighted elements of Gaye’s composition and ordered the payment of damages. While the decision is likely to be appealed, both Williams’ and Thicke’s reputations have been damaged, not to mention their respective bank accounts.
Entertainment & Media, Law, Technology
In a 3-2 vote along party lines, on February 26, 2015, the United States Federal Communications Commission voted to approve the so-called “net neutrality” rules. By treating all Internet traffic equally, these rules are designed to preserve online competition. FCC Chairman, Democrat Tom Wheeler (reflecting the position of the Obama Administration), announced that broadband access to the Internet was to be classified as a “telecommunications service” and, as a result, the FCC would be applying Title II of the Communications Act of 1934 (which prior to now has applied to telephone carriers) to Internet service providers. With this ruling, the FCC declared that there would be governmental enforcement of the concept of “net neutrality.”
While the detailed rules were not released at the time of the FCC’s announcement, the FCC did announce a few key elements of its ruling. First, and most profoundly, the FCC has stated that it will regulate the Internet, just as it regulates other telecommunications and broadcasts. Second, the newly approved rules prohibit Internet service providers (“ISPs”), such as Comcast, Verizon, AT&T, etc., from blocking or slowing the traffic of their rivals. Third, and probably most significantly, the rules prohibit ISPs from imposing new fees for faster download speeds that would create paid prioritization (or “fast lanes”) for certain Internet traffic. The FCC’s ruling seeks to protect smaller websites and Internet services who could not compete with larger, more commercially successful websites if they could not afford to pay higher fees to ISPs who imposed a “fast lane” fee. The FCC also felt that allowing for such “fast lane” fees would lead to higher charges to consumers because the companies who chose to pay those fees would simply pass along the increased costs to its customers.
What does this all mean? For companies that rely on the ability to move massive amounts of data over the Internet quickly (such as Netflix), this ruling means that ISPs like Comcast (which also is a competitor of Netflix for streaming movies through its Xfinity service) cannot charge higher fees to Netflix than it charges to any other customer, even though Netflix uses enormous amounts of bandwidth.
Proponents of net neutrality (which includes representatives of many in the technology industries) have argued that FCC enforcement of net neutrality was essential to ensure that there would be a “level playing field” for small companies to compete in the Internet space. By prohibiting the large ISPs from deciding whether to allow faster downloads of certain sites, these proponents argued that net neutrality would protect Internet entrepreneurs, small websites and consumers, by enabling greater competition and consumer options. These proponents seem comfortable with the U.S. government taking a role in regulating the Internet.
While there are many supporters of net neutrality (the FCC reportedly received over four million comments from the public supporting it), the FCC’s newly announced rules are not universally being applauded. In fact, it is highly likely that they will be challenged in court (AT&T already has announced that it will be filing such a suit) and the Republican-controlled Congress may introduce new legislation to overturn the rules. Interestingly, free speech advocates seem to fall on both sides, depending on their view of what interests are being protected by these rules.
The opponents of the net neutrality rules have various reasons for opposing them. Some feel that it will be the first step to a government takeover of the Internet in the U.S. While other countries (such as Russia and China) long have advocated and imposed governmental control over access to the Internet by its citizens, the US historically has sought to preserve an open and unregulated Internet. Second, Title II of the Communications Act, say the opponents, was never designed to be used with 21st century cyber-technology; rather, it was enacted in 1934 to regulate the telephone companies. Third, the opponents fear that these rules will allow the FCC to set rates that can be charged and by imposing burdensome regulations, both of which will lead to increased costs to consumers. Finally, and perhaps most significantly, the opponents fear that these rules will stifle competition in the Internet space by discouraging investment by the larger ISPs in new technologies.
The proponents of net neutrality have won the first round. However, given the changed makeup of Congress following last November’s mid-term elections and the likely litigation challenging these rules, it is clear that the net neutrality debate is far from over.
