ROYAL PAIN: Brits Can’t Even Copy Their OWN Music
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.
SHEPARD FAIREY TAGGED: Detroit Issues Arrest Warrant
Shepard Fairey, viewed by some as a cutting edge and important “street artist” and by others as a vandal for his works of graffiti on both public and private property, has had a warrant for his arrest issued by the City of Detroit. Fairey is no stranger to legal controversy, previously having faced both felony and misdemeanor vandalism charges relating to his graffiti activities and also charges that his iconic “Obama Hope” poster was based on a copyrighted photograph that he had not obtained permission to use. Fairey visited Detroit last month to create, at the request of the owners of an 18 story building, the largest mural of his career. However, while in Detroit, Fairey decided to tag other properties across the city without the permission of the building owners. Detroit officials say he did over $9,000 in damage. He now faces felony criminal charges in Motown.
You can read more about it in the Detriot Free Press
http://www.freep.com/story/news/local/michigan/detroit/2015/06/24/shepard-fairey-arrest-warrant-detroit-police/29239929/
FUSE@PSO: A New Twist on Symphonic Music
I went to a very interesting and enjoyable concert this past week. The Pittsburgh Symphony Orchestra, as part of the FUSE@PSO series, presented Brahms v. Radiohead, a symphonic mashup of Brahms’ Symphony No. 1 and Radiohead’s OK Computer album.
The work was arranged and conducted by Steve Hackman. The crowd was a really interesting mix of typical symphony concertgoers dressed in business attire and 20-something fans of Radiohead dressed in t-shirts and jeans.
The next symphonic synthesis in the FUSE series will feature Hackman’s fusion of Beethoven and Coldplay.
Here is a review in the Pittsburgh Post-Gazette of the concert: http://www.post-gazette.com/ae/music-reviews/2015/06/26/Concert-review-PSO-composer-light-up-audience-in-FUSE-debut/stories/201506260122
TRUMP GOES A ROCKIN’: Neil Young Comes a Knockin’
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.
RICHARD PRINCE’S INSTAGRAM ART: Do You Know Where Your Face Is?
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.
