Copyright Talk

ASCAP (the American Society of Composers, Authors, and Publishers) has just created and released a Bill of Rights for Songwriters and Composers. In other words, a bill of rights on creators, and whether you spell “creator” with an upper case or lower case “c” here depends in large part on how you view the role of copyright as it concerns music in these digital times we live in.

There is nothing new or startling or even controversial, really, in the bill of rights. Everything in it is merely a restatement of the law, or a clearly common sense statement. But what the release of this document does is shift the focus of the copyright debate from the view that the “big guys” are picking on the poor little average guy who just wants to listen to music, to a focus on the (C)c)reators of the music and their place in the universe. Music and songs are not natural resources just lying around for the taking. They aren’t a finite product that once you have it you can possess to the exclusion of everyone else. Music is different than most things, and therefore, the use of it - and payment for that use - must be governed by slightly different rules than those that govern use, sale and possession of, say, a hammer.

So you sold or licensed the rights to a copyrighted work. Congratulations! Now comes the part that is hard for most creative folks - keeping track of the project and your payments. Whether you handle it yourself, or whether you hire an administrative service to do it for you, it must be done. This is remarkably important when dealing with copyright licenses and waivers and agreements, because the “tail” on these things can be oh so very long, especially in light of the technological explosion we’ve been undergoing for the last hundred years or so.

A great example of this appears in a recent lawsuit filed by the estate of JRR Tolkien, author of the books collectively known as the “Lord of the Rings.” The estate alleges that the makers of the recent film adaption of the books, which was hugely successful (unlike several previous films of the series), owe several million dollars to the estate. New Line Cinema has been sued a number of times by various parties over payments related to these movies. It’s not clear to me whether the suits are happening because New Line is not paying close attention to the royalties they owe, or because the sheer amount of money (in the billions of dollars) that these movies have generated makes them a target, but the fact remains that accounting for royalties can be complicated, and is always tedious and detail laden.

Actually, Tolkien originally sold the film rights, with royalty payments specified, back in 1969, when he was still alive. I believe the first movie based on the books, was not made until 1978. And of course, the live films with the huge gross were released 2001 - 2003. That’s a lot of years to wait, pen in hand, to begin counting (and accounting) for royalties. Without a system in place to track your rights, you could lose significantly. While the Lord of the Rings is unusual in that it would have been hard for anyone associated with the estate to miss the fact that several major Hollywood films had been made and were doing quite well, it could easily have been that the estate would have trouble finding the original 1969 terms of the sale in order to ensure proper payments.

Every copyright owner who sells rights of any kind needs a good record-keeping system.

If you have trouble organizing, you may have health problems as well, says Jummy. Read here.

Last year - actually, almost exactly a year ago - I wrote about a lawsuit filed by several students over a school requirement that all papers be submitted to a web-based plagiarism checking site. The gist of the dispute was that submission to the site came with a requirement that permission be granted to archive copies of all papers for use in future plagiarism checks.

Earlier this month, the district court ruled in the case, and the students lost. Thanks to William Patry at The Patry Copyright Blog for a summary of the opinion.

The students lost on two fronts. First, the court ruled that they had entered into valid contracts with the company that allowed the company to do what they did. Second, even without the contracts, the company’s use of the student papers fell within protected fair use.

Fair use usually, but not always, assumes the use of a portion of a written work, not the entire piece, as was the case here. The finding of fair use in this case is based much more heavily on the purpose of the use and the affect on the author’s ability to commercially exploit the work. This is a good sign that actual legal analysis of fair use cases is not entirely dead.