Class 19 Copyright, Winter, 2010 Music Randal C. Picker Leffmann Professor of Commercial Law The Law...

Class 19Copyright, Winter, 2010

Music

Randal C. PickerLeffmann Professor of Commercial Law

The Law School

The University of Chicago

773.702.0864/[email protected] © 2005-10 Randal C. Picker. All Rights Reserved.

April 21, 2023 Copyright © 2005-10 Randal C. Picker 2

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. The term “phonorecords” includes the material object in which the sounds are first fixed.


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.


102. Subject matter of copyright: In general

(a) 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. Works of authorship include the following categories:


102 (Cont.) (1) literary works; (2) musical works, including any accompanying

words; (3) dramatic works, including any accompanying

music; (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.


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;


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;


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.


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).


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?


Answer

Separate Works The musical work The sound recording

Act WXRT has publicly performed the musical

work and the sound recording


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)


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


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?


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


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 overturns this, giving music composer the right to control “mechanical” reproductions, meaning piano rolls and phonographs


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


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.


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.


Limits on Cover Changes 115(a)(2)

A 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.


Royalty Scheme

Elaborate; see 115(c)


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?


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”


Answer

Sound Recording Issues Have I copied your sound recording?


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.


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.


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.


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?


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


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

April 21, 2023 Copyright © 2005 Randal C. Picker 31

Screen Capture Slide


Old-School Copying

Facts A buys Britney CD A plays it and uses a tape recorder to copy

it on a cassette to listen in his car. What result for A?


Answer

OK For sure after 1992, under the AHRA

Section 1008 Before 1992, fair use?


Sec. 1008

Prohibition on certain infringement actions 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.


New-School Copying, Circa 1987

Facts A buys Britney CD A establishes a direction digital connection

between CD player and digital audio tape recorder and makes a copy

What result for A?


Copying under the AHRA

Three Types Analog Recording

The old school original AHRA Digital Recording

Recording that tracks the definitions set out in 1001

Non-AHRA Digital Recording All other digital recording


Protection under 1008

For consumers engaging in noncommercial use Of analog recording Of AHRA Digital Recording

But No protection for Non-AHRA Digital

Recording

Tax and Compliance System for AHRA Digital

Statutory Deal Get 1008 copying rights for qualifying digital

devices But that comes at a cost

Must pay royalties under 1003 Must build in copying controls under 1002


For Non-AHRA Digital Recording

Trade-Offs No 1008 protection But no required 1003 royalties or 1002

copying controls And Now the Key Question: Which Devices

Qualify? The PC? The iPod?



Built-In Controls: AHRA 1002(2)

(a) Prohibition on Importation, Manufacture, and Distribution. No person shall import, manufacture, or

distribute any digital audio recording device or digital audio interface device that does not conform to‑‑

(1) the Serial Copy Management System;


Built-In Controls: AHRA 1002(2)

(2) a system that has the same functional characteristics as the Serial Copy Management System and requires that copyright and generation status information be accurately sent, received, and acted upon between devices using the system’s method of serial copying regulation and devices using the Serial Copy Management System; or

(3) any other system certified by the Secretary of Commerce as prohibiting unauthorized serial copying.


Obligation to Make Royalty Payments: AHRA 1003

(a) Prohibition on Importation and Manufacture. No person shall import into and distribute, or

manufacture and distribute, any digital audio recording device or digital audio recording medium unless such person records the notice specified by this section and subsequently deposits the statements of account and applicable royalty payments for such device or medium specified in section 1004.


How Much?: AHRA 1004 (a) Digital Audio Recording Devices.‑‑

(1) Amount of payment.‑‑The royalty payment due under section 1003 for each digital audio recording device imported into and distributed in the United States, or manufactured and distributed in the United States, shall be 2 percent of the transfer price. Only the first person to manufacture and distribute or import and distribute such device shall be required to pay the royalty with respect to such device.


How Much?: AHRA 1004

(b) Digital Audio Recording Media. The royalty payment due under section 1003 for

each digital audio recording medium imported into and distributed in the United States, or manufactured and distributed in the United States, shall be 3 percent of the transfer price. Only the first person to manufacture and distribute or import and distribute such medium shall be required to pay the royalty with respect to such medium.


The Critical Question

What devices and what media are covered? The personal computer? MP3 players?

Then: The Diamond Rio? Now: the iPod?


AHRA 1001(3)

A “digital audio recording device” is any machine or device of a type commonly

distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use, except for‑‑


AHRA 1001(3)

(A) professional model products, and (B) dictation machines, answering

machines, and other audio recording equipment that is designed and marketed primarily for the creation of sound recordings resulting from the fixation of nonmusical sounds.


AHRA 1001(1)

A “digital audio copied recording” is a reproduction in a digital recording format

of a digital musical recording, whether that reproduction is made directly from another digital musical recording or indirectly from a transmission.


AHRA 1001(5) (A) A “digital musical recording” is a material

object‑‑ (i) in which are fixed, in a digital recording format,

only sounds, and material, statements, or instructions incidental to those fixed sounds, if any, and

(ii) from which the sounds and material can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.


AHRA 1001(5) (B) A “digital musical recording” does not include

a material object‑‑ (i) in which the fixed sounds consist entirely of

spoken word recordings, or (ii) in which one or more computer programs are

fixed, except that a digital musical recording may contain statements or instructions constituting the fixed sounds and incidental material, and statements or instructions to be used directly or indirectly in order to bring about the perception, reproduction, or communication of the fixed sounds and incidental material.


Different Devices

The Cassette Recorder I play a music CD in a CD player I record it over the air using a cassette

recorder I play the cassette in my car

Does the AHRA apply? Is the cassette recorder a taxable device? Do I get the benefits of 1008?


Answer

What kind of device is it? Is the cassette recorder a digital audio recording

device? That turns on, among other things, whether it can

make a “digital audio copied recording” That, in turn, requires a “reproduction in a digital

recording format” The cassette tape won’t qualify so the cassette

recorder shouldn’t be a DARD


Answer

Consequence? No triggering of 1002 copy control

engineering rules No triggering of 1003 royalties


Answer

1008? Cassette recorder should be analog

recording device and recorded tape should be analog musical recording

Copying owned CD for cassette use in car will probably be noncommercial use

1008 then insulates this copying from infringement action


Answer

Can I give the tape to a friend as a birthday present? Does the copying and distribution qualify as

“the noncommercial use by a consumer of such a device or medium for making digital music recordings or analog music recordings?”


Different Devices: Walkman DAT Recorder

Hypo I use a digital cord to attach a CD player to

my Walkman DAT recorder I record the CD onto the DAT

Does the AHRA apply? Is the Walkman DAT recorder a taxable device? Do I get the benefits of 1008?


Answer

Answer Yes, yes and yes Yes, AHRA should apply Yes, that triggers the royalty and copy

management scheme obligations Yes, the consumer gets the safe harbor of

1008


Different Devices: Walkman MP3 player

Hypo I use a digital cord to attach a CD player to

my Walkman MP3 player I record the CD onto the hard drive built into

the MP3 player Does the AHRA apply? Is the Walkman

DAT recorder a taxable device? Do I get the benefits of 1008?


Answer

Answer Probably yes, yes and yes again

Easiest if hard drive of MP3 player just holds music and doesn’t have computer programs stores on it

• Is this MP3 player a computer?

Is this the Diamond Rio?


Different Devices: The PC

The Personal Computer I pop a music CD into my PC I used iTunes to rip the CD and copy the

music to my PC’s hard disk I listen to the music over speakers attached

to the PC. Does the AHRA apply? Is the PC a taxable

device? Do I get the benefits of 1008?


Answer What kind of device is it?

Is the PC a digital audio recording device? Recall the definition of a DARD:

• any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use

Focus on the “primary purpose” of the copying capability of the PC.

PC Isn’t a DARD and so says the court in Diamond


Answer

Consequence? No triggering of 1002 copy control

engineering rules No triggering of 1003 royalties


Answer

1008? Hard to think that PC should qualify as

analog recording device or that digital files copied from music CD should qualify as analog musical recording

If that is right, 1008 does not insulate this copying from infringement action


Taking Stock of 1st Generation Copies

Four Results Cassette recorder

No copy-protection engineering requirements, no royalties and protected copying under 1008

Walkman DAT Recorder Copy-protection engineering requirements,

royalties and protected copying under 1008


Taking Stock of 1st Generation Copies

Four Results Walkman MP3 Player (direct connection to

CD player) Copy-protection engineering requirements,

royalties and protected copying under 1008 PC

No copy-protection engineering requirements, no royalties but not protected copying under 1008


Different Devices: MP3 Player

MP3 Player through PC 2nd generation copies My MP3 player doesn’t connect directly with a

CD player Instead, I copy content from a CD to a PC and

then via the PC to the MP3 player Does the presence of the PC change the result?

Can CDs be laundered through the PC?


Answer

What kind of device is it? Is the MP3 player a digital audio recording

device? Won’t be excluded by “primary purpose” test Does it make a “digital audio copied

recording?”• That, in turn, requires a “reproduction in a digital

recording format of a digital music recording”


AHRA 1001(1)

A “digital audio copied recording” is a reproduction in a digital recording format

of a digital musical recording, whether that reproduction is made directly from another digital musical recording or indirectly from a transmission.


AHRA 1001(1) Rewrites

A “digital audio copied recording” is V1: a reproduction in a digital recording format of a digital

musical recording, whether that reproduction is made directly from another digital musical recording or indirectly from a transmission.

V2: a reproduction in a digital recording format of a digital musical recording

V3: a reproduction in a digital recording format of a digital musical recording made directly from another digital musical recording or indirectly from a transmission.


AHRA 1001(1) Rewrites

A “digital audio copied recording” is V4: a reproduction in a digital recording format of a

digital musical recording, including, without limitation, a reproduction made directly from another digital musical recording or indirectly from a transmission.

AHRA Legislative History

Copying Can’t copy talking books Can’t copy computer programs

Personal computer Generally out, but see peripherals



Senate Report 102-294 Letter from Computer and Business Equipment

Manufacturers Association “The difficulty with S. 1623 as introduced is that not only

was there no explicit statement in the statutory language clarifying that computer programs may not be copied, but the definition of ‘phonorecord’ * * * was drafted so broadly as to encompass all, ‘material objects in which sound, other than those accompanying a motion picture or other audio-visual work, are fixed * * * ‘.”



House Report 102-873 “A definition of ‘digital musical recording’

has been added, with revisions reflecting exemptions for talking books and computer programs.”



Senate Report 102-294 Thus, a digital videocassette recorder though

capable of making digital audio copied recordings would not qualify as a "digital audio recording device" because the primary purpose of the recording function of the device is not to make "digital audio copied recordings," but rather to make digital video recordings.



Senate Report 102-294 Similarly, neither a personal computer whose

recording function is designed and marketed primarily for the recording of data and computer programs, nor a machine whose recording function is designed and marketed for the primary purpose of copying multimedia products, would qualify as a "digital audio recording device."



Senate Report 102-294 Although the typical personal computer would not fall

within the definition of "digital audio recording device," a separate peripheral device with an independent recording function would be a "digital audio recording device" if the recording function was designed or marketed for the primary purpose of making digital audio capied recordings for private use. In that case, only the peripheral device would be subject to the royalty payment requirements of subchapter B.



Different Devices: the iPod

Hypo I buy a CD, pop it into my computer, rip it

and copy the tracks to my iPod What result?


Answer

Answer iPod is the laundered MP3 player, just like

the Diamond Rio No copy engineering obligations, no royalty

obligations, no 1008 safe harbor protection


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?

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?


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


Newton’s Composition


The Music


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.


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.


The ECM-Beastie Boys License

[ECM 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”);


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.


Analysis Understanding the Contracts

Presumption against fragmentation of rights? Double marginalization concerns

Doing Copyright Originality Infringement: If you copy and no one can tell, have

you infringed? Separating the sound recording and the musical

composition


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”?


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


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


The Central Question

How does Sec. 114 apply to music sampling of a sound recording?

Class 19 Copyright, Winter, 2010 Music Randal C. Picker Leffmann Professor of Commercial Law The Law...

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Transcript of Class 19 Copyright, Winter, 2010 Music Randal C. Picker Leffmann Professor of Commercial Law The Law...