Copyright Talk

A couple of guys made a big splash on YouTube with somne video lessons on how to play guitar that became VERY popular.

Problem was, they had not obtained a license to publicly perform the popular songs they were teaching. Now before you worry about every music lesson going on in the back rooms of music stores and band halls of schools all over the world, this was not the normal music lesson scenario. Instead of a one on one lesson between a teacher and student, these were videos of a musician playing the songs, and the videos were placed on YouTube with the specific intent that they would be viewed by the public - and they were, viewed by hundreds of thousands of people, in fact.

Although the two guys teaching in the videos thought their use of the songs would be welcomed by the songwriters, that is not their call to make. The owners of the song get to decide whether they want the song used, and if they do, the owners of the song get to decide how much they think is a fair price. if the owners believe free is fair and they want to let the song be used for free, then they can decide that. But the other side - in this case the performer - does not have the right to move forward on a plan that THEY think is fair whether or not the other side agrees (and in this case, the other side hadn’t even been asked what they thought). It would be like a couple going to look at a house they were considering buying, and having the seller close the deal and obligate the couple to terms the seller determined were fair but that the couple were never told about until after the fact. it doesn’t matter how objectively “fair” or “beneficial” a use of a song is, the owner still gets to decide whether they want to agree.

In this case, the popular video lessons were saved when the two teacher guys and the owners of the song rights worked out a partnership on terms that all parties actively agreed to.

Here’s the full story.

A fascinating report on Wired.com highlights copyright fair use principals again. Apparently, the McCain presidential campaign has been attempting to use YouTube as part of its campaign strategy, but they have repeatedly seen their videos pulled by YouTube after DMCA takedown notices were sent to YouTube from various media companies. The McCain videos have been pulled for using clips from debates and speeches, and for using some pop songs without specific rights grants.

According to Wired, McCain’s legal staff has written to Google (which owns YouTube) complaining that the copyrighted material used in the pulled videos fell under the fair use doctrine, and should not have been pulled without a review by Google. Wired notes that Congress generally has been unwilling to listen to very much on the subject of fair use.

It’s an interesting shift in the perception of YouTube. Wonder what McCain will do on this subject when he returns to politics - either in the Senate or the White House, he’d be in a position to champion greater deference to fair use principals.

Remember the Boston Tea Party? Over “No Taxation Without Representation?” It was basically a big riot the American colonists had because the English were imposing laws on them without giving them a seat at the table when the laws were developed and decided upon.

If there had been lobbyists back then, we wouldn’t have had a cry for votes and a big riot, we would have had a coalition, probably called the Coalition of American Colonists with an office in Boston and a field office in London. The Coalition would have voiced an opinion on behalf of all the colonists, some of whom would have felt that the Coalition leaned too far Tory, and maybe even would have uncovered some supposed evidence that the rent for the office in Boston was being paid by a shell company for the King, and then we would have the formation of the True Dirt Farmers of America, and probably a lot of pamphleting around the major cities.

At any rate, that’s how it works today. We may be on our way to another Boston Tea Party over the music distribution and royalty conundrum, or we may be on our way to an explosion of “educational” (which is code for lobbying) groups.

The latest new group is the Featured Artists Coalition. Although based in the UK, it includes international recording artists and has legal issues from both the UK and the USA on its priority issues list. Any performer is invited to join, and membership is free. Hmmm. . . . wonder where the finding is coming from? If tehy plan to do very much lobbying they will need to spend time collecitng input from members, developing statements, and travelling to hearings and meetings of the lawmakers. There’s going to have to be some money somewhere, but I agree with their statement that performers have not been well represented - if at all - in copyright discussions. It’s a necessary addition to an increasingly complicated discussion.

There’s a saying among lawyers that bad facts make bad law. The point of the saying is that courts and juries really do try to be fair and just most of the time, and sometimes the facts of a case are just so bad that the court will try to make sure justice is done no matter how much the law has to be “twisted’ to get it done. But then you’re stuck with that twisted law the next time around.

I worry that the corporate copyright crusade will wind up causing some bad law. What is percieved as greedy overreaching by enormously wealthy corporate giants in trying to shut down copyright infringements may eventually cause the loss of some rights under copyright law. And that would be a shame.

I was reminded of this reading a story from Ireland about an attempt to collect royalties from nursery schools for showing movies owned by Disney and other big Hollywood studios. The story is here. The schools - called “playschools” in Ireland - were offered a single fee blanket license for each year, which would cover unlimited movie showings. This is the same type of license ASCAP and BMI grant to bars and restaurants for the use of recorded music in their establishments.

Legally, there is little question that showing studio movies in the schools is a public performance, and nearly all videos and DVD’s sold expressly say that the purchaser of the video or DVD does not have permission to use it for a public showing. The problem is, most people commonly believe that schools are, or should be, exceptions, and that showing the movie without charging money is, or should be, an exception. Even though neither of those things is true, people often operate on those incorrect assumptions, and there is a collective feeling of being “picked on” when someone like Disney comes knocking and tells you that you can’t do what you want with your property, even though you feel like you’re not hurting Disney in any way at all.

In the days before video cassettes, the problem rarely existed, because the cost of purchasing films was prohibitive for most individuals or schools. So if you wanted to show a Hollywood movie at a school, you rented it from a service, and the rental included the permission and royalty payment to actually show it in the school. So while schools that show movies had always paid the royalty prior to video cassettes, they didn’t really know it. So when videos, and now DVD’s, came out, it felt like they were just being cruelly picked on for showing the video that they had lawfuly paid for.

It’s difficult for most people to truly grasp the concept of owning an object while not owning the right to do anything you want to with it. Especially when it seems so difficult to try and do what you’re told you should do - have you ever tried to figure who to call at Disney to ask if you can show your copy of Lion King in your kindergarten classroom?

If the tide of public opinion continues to view lawful activities as overreaching intrusions, I fear we may begin to make bad law.

The Copyright Royalty Board, the entity that sets the statutory rates for use of songs in audio recordings, has been considering a proposed increase in the rate for digital downloads. Thursday they ruled to keep the rate at the present 9.1 cents per song per download. No written decision has yet been issued, so we don’t yet know the rationale used by the Board. The decision may shed some light on when and whether rates may increase in the future.

Generally, the owner of a copyright has the right to decide how, when, and by whom the copyrghted work is distributed. In the case of song copyrights, though, there are some uses that are automatically granted without the express okay of the owner.

The copyright owner must consent to the very first publicly released recording of a song. If your song has never been released before, no one has the right to record and release your song unless you say okay.

That all changes after you say okay. Once there is a publicly released recording of your song, anyone can re-record it under a compulsory mechanical license. You are entitled to royalty payments at a rate set by law for each copy of the recording produced, but you do not have the legal right to stop a heavy metal band from recording your folk protest song.

You also do not have the right to keep recordings of your songs from being played on the radio or over satellite, cable or internet stations, but you do have the right to collect royalties for those spins. Royalties for radio play are collected the performing rights societies on your behalf - ASCAP, BMI, and SESAC.

You do have the right to consent to any use of your song set to a visual medium, or to uses other than purely audio releases.

If you write and record your own songs, then you are affected by two separate copyrights.

The first is the copyright for the song itself (that’s lyrics and music).
The second is the copyright for the recording of the song. If the song is recorded multiple times, by multiple artists or even by the same artist, then there are as many recording copyrights as there are versions of the song on tape (or in files, as the case may be).

The writer, along with any co-writers, owns the copyright to the song.
The recording, on the other hand, may be owned by all the people who played or sang on it, and the producer and engineer may also own part of it. It just depends on who made a creative contribution to the recording. The only person involved in a recording that NEVER has an automatic ownership share is the person who pays for it. That doesn’t mean the moneybag isn’t entitled to get paid back, but the moneybag never owns the copyright just because they paid for the whole thing.

Common practice is for hired musicians and others to sign written agreements waiving any rights they may have to future royalties in exchange for whatever payment they have agreed to accept for playing on the recording. They also grant one person or company the exclusive right to license the recording. Essentially, these agreements mean the musician gives up any right he or she may have otherwise had to the copyright in the recording, leaving you free to make all decisions and collect all money (subject to any other agreements you have). When you record a song, it is vitally important to make sure that you have written agreements with all the participants so that you can grant clear licenses in the future.

The copyright statutes tell us that a lot of money can be awarded in copyrigt infringement cases, but we rarely see it happen except in big-operation piracy operations that also fall under the criminal codes. Last week, though, ordinary Joe (or Jeffery, actually) from Arizona, who was accused of illegal file sharing on his home computer, apparently for his own personal use, found out just how expensive a few illegal files can really be.

And it happened without a shred of evidence.

Let me explain, because this is important. The RIAA filed a lawsuit against Jeffrey Howell, and the judge issued a standard order to Howell not to mess with his computer hard-drive, because there might be evidence relevant to the case on it.

Howell, who represented himself and apparently never spoke to a lawyer, formatted the hard-drive and took other steps to wipe his computer clean, in clear violation of the judge’s order.

You can’t disobey a judge without running smack into serious consequences. Here, the judge said the extent of the evidence tampering indicated there was a good chance that evidence supporting the RIAA’s claims had been there, so he found in favor of the RIAA and ordered Howell to pay $40,500 in damages, plus court costs, which were tiny in comparison since not much had actually happened in court thanks to Howell’s destruction.

The bottom line is that destruction of evidence is NEVER a good idea.

Have you ever felt like this?

Stay Away!

When I was a kid we used to get these little cards sometimes that had a picture on it, but when you tilted it just a little bit, the picture would change, so you’d see, say, a smiling clown and then when you tilted it the clown would be crying. Or maybe it would be a picture of Clarke Kent and when you tilted it, Superman would appear!

If I had a card with a picture of a big media company on it, like the TV networks, or the record labels, and the company spokesperson was talking about the need to prevent piracy and to protect intellectual property so as to encourage innovation and yada yada yada, and then I tilted the card . . . I would probably see something like that little cat. Because while I firmly believe that copyright is good and fair and just and necessary to our society, I also believe that the current “anti-piracy” frenzy - as articulated by large media companies - has in large part been corrupted and is really about extending control and protection of valuable intellectual property far beyond the protection given by our current copyright policies.

I would have no problem with that debate being thrown into the public and policy making arenas. Debate on policies and the viewpoints of diverse groups are essential to democracy and, ultimately, to good public policy. What is not good for public policy and is not good for our society is a debate that is couched as one subject in order to hide the real subject when the debater does not believe it will be a popular position. Instead of doing the work to convince the policy makers that is a good policy, and then accepting the decision made in recognition of the need to live in a society whose needs as a whole may not necessarily match your own personal best case scenario, these media companies are trying to slip one by us in the name of something else altogether.

It’s a “debate” tactic used by teenagers against their parents all the time. In the case of teenagers, it happens because they are not fully developed into adult human beings capable of running a community, be that something as small as a family or as large as the country - notice we don’t let people vote until age 18?

Companies are run by folks over the age of 18. I have no doubt that they would lecture their own teenagers at length about the need for forthrightness and honesty in discussion. Shame on them for being hypocritical in their own participation in society.

Yesterday saw a possibly dramatic development in the YouTube world. The DMCA (digital millenium copyright act) includes a provision designed to address the concerns of copyrght holders over the computer technology that allows easy and instant infringement and, in the view of some large media companies, pervasive and extremely widespread infringment on internet sites such as YouTube. The DCMA allows a copyright owner who discovers an infringing use of their material on a website to deliver a “takedown” notice to the website, alleging copyright infringment and basically requiring the website to pull the material on the word of the owner in their takedown notice in exchange for protection from damages against the website.

Much criticism has been levelled at this process on different sides of the debate. On the one hand, media companies have complained that the burden of policing infringement should be on website owners, in the same way that newspapers and book publishers are responsible for what they print. But users of the sites complain that fair uses of copyrighted material have essentially been ignored in favor of a simple procedure that gives all the power to the owner of the copyright.

One YouTube user fought back, and yesterday won an important early legal argument. Here’s the background: a mother posted a short video to YouTube of her toddler dancing to a Prince song which could be heard fuzzily in the background. Universal Music issued a take down notice to YouTube, which removed the clip. The mother argues (1) that the 30 second clip of the song in the background of the video is a portected fair use, and (2) that Universal Music has a duty to consider in good faith whether there is a protected fair use before they jump in and send a take down notice which is nearly certain to result in the removal of the material.

Wednesday’s court ruling dealt solely with number two (2). The court said that fair use should be considered prior to the issuance of any takedown notice.

While this is a significant ruling in the legal analysis of the DMCA, in practice it may still not make much difference to YouTube users, as fair use is far from a black and white determination. But, it’s still heartening to find that the underlying principals of copyright have not entirely taken a back seat to zealous protection of business assetts.

You can read the short CBS news story here.

Sometimes you get a say, and sometimes you don’t.

Jackson Browne alleges he should have had a say is whether his recording of his song was used in a political commercial for John McCain, and he’s filed a lawsuit for copyright infringement. Reuters reported the story here.

The Jackson Browne song “Running on Empty” was used in an ad produced by the Ohio Republican Party that poked fun at a comment made by Barrack Obama. Jackson Browne, a committed liberal activist, alleges not only that the use violates his copyright because he never gave permission to use the song, but also violates his right of publicity because the use of his voice implies that he supports the views expressed in the commercial. Remember, the commercial used not just the song, but the Jackson Browne recording of it.

The use of a recording in a commercial, movie, television show, or other audio-visual media requires actual permission from the owner of the copyright for the use. While a songwriter cannot prevent anyone from making and publicly releasing a sound recording of their copyrighted song, they can prevent the use of their song in visual media.

McCain has not yet filed a response to the lawsuit, but I can’t wait to hear what it is, what with all the laws the government has been playing fast and loose with lately. Let’s see if his camp apologizes or digs in.

It seems obvious, but it never hurts to have a court say it’s true. Money is not the only thing that makes the world go ’round, and free does not mean anything goes.

Briefly, an open-source software provider sued a company that used a portion of their code in another program without attributing it to the orginator, as required by the open source license. Although the use itself was allowed, they failed to follow the condition of attributing the source. The district court said, in essence, that because the code was distributed for free, there could be no infringement, no damages and therefore no enforcement of the license terms.

The good news is that the software provider appealed and the appeals court said free does not mean abdication of copyright control. So, even though the program was free, the provider has the right to put conditions on the use and to sue for infringement if those conditions are violated.

While this is obviously a great decision for the open source software movement, it’s also a boost for musicians who distribute free music through Creative Commons licenses or their own versions. Many of the Creative Commons licenses allow free uses of the music but with strict guidelines on attribution and modifications. Now we know courts are likely to find infringement when conditions of an otherwise allowable use are not followed.

Good news indeed for the free love movement.

You can read the decision here, if you like to read such things.

Photos, of course, are covered by copyright. If you’ve ever been married, or had professional head shots taken, or you have kids whose after school activity hired a professional photographer to take wonderfully cute pictures of the tykes in their costumes/uniforms, then you know this. You’ve seen the warnings on all the material about what you can and can’t do with the pictures and why you have to go back to the original studio to get more copies even though we all have the machines to make really good copies. (This is very much like the whole music piracy situation, just not as well known or as much talked about.)

But there are times when you actually do own the right to make copies of a photograph. It can. however, be difficult to prove.

Witness the story that came out today about one consumer’s quest to make copies of very old family photographs. She went to WalMart to scan the pictures, and was told by an employee that she couldn’t because “copyright lasts forever.” Aside from that assertion beimg false, it’s still a problem if you have no way to prove you possess the right to make a copy, either because the photo is in the public domain or because you do in fact own either the copyright or an unlimited license. Many copy centers have a policy that they can ask for proof of your right to make copies - so if you’re a very good photographer and you printed you photo in such a way that it looks like a studio shot, you may find yourself being asked for a release or other proof from the “studio” that you have the right to make copies.

The Walmart story is here. And here’s another WalMart photo problem from a couple of years ago.

Every original work of authorship that is fixed in a tangible form is protected by copyright. That includes letters and - these days - email. Which means that when you die, those emails may be part of your estate.

Hmmm.

Is that something you want? Your executor (or next of kin) will already be poking through your underwear drawer. Will people also be able to read all your emails? The answer is: maybe.

If you keep email on your hard drive, then any files on it, including email, can be viewed after your death.

However, if you use a web based email service and store emails on their servers, then whether the email is accessible to others after your death depends in part on your wishes and in part on the policy of the email provider. Some email providers will not release email to anyone. Others will do so with specific documentation, or sometimes even a court order.

The bottom line is that if you want your email (and other types of internet accounts, as well) to be accessible to someone in the event of your death, then you need to leave your account information and passwords where they can be found when necessary. And if you do NOT want to have anyone reading your emails even after your death, then you’ll need to take specific steps, such as checking out the policy of your own email provider, or leaving instructions in your will that the executor is not to access or distribute your email accounts.

Broadcast

But if there is no written agreement otherwise, employees’s creations belong to their employer.

Mary J. Blige is being sued for copyright infringement because she recorded a song that was written by one of her producers, Theron “Neef-U” Feemster. No one disputes that the song was written by the producer. The problem is that a New York production company, Dream Family Entertainment, claims he wrote the song while working for it, and that the song belongs to Dream Family.

So is there any problem, beyond having paid the wrong person? Maybe.

Dream Family is asking for damages only, which may be good news for Blige. Here’s how the situation breaks down:
Blige released the song on an album and a single. The first time a song is ever recorded and released publicly, the copyright owner must give permission (or permission can be withheld). Once the song has been publicly released, then anyone can record it and pay the compulsory license fee to the owner. So if the song, “Work It,” had ever been recorded before, then Blige had a right to record it conditioned only on paying the compulsory fee. However, if it had never been recorded before, the compnay could ask for monetary damages as well as the withdrawal of the recording - which would mean recalling all unsold albums and re-pressing the album without the song. Apparently, Dream Family is not asking for this remedy.

The song was also used in a television commercial featuring Blige. Using a song in this way implicates what are known as “synch” rights, or the right to synchronize a song with a video recording. Using a song in this way always requires the permission of the owner, and the payment is individually negotiated. So, once again, Dream Family could ask for the commercial to be withdrawn in addition to any monetary damages they would be entitled to.

At this point, Blige’s camp could do a number of things. They could defend the suit and try to prove that Dream Family does not own the song. They could agree to pay Dream Family for the song and simply sit down with them and work out a number. And they could also turn back to the producer and claim fraud or some other harm caused by his assertion that he owned the song.