Copyright in Music and Sound Recordings Introduction and

Copyright in Music and Sound Recordings Introduction and legislative updates Copytalk American Library Association 7 September 2017 American Music Research Center University of Colorado Boulder

Ground Rules • • I’m not here to give legal advice I’ll be generalizing. Your mileage may vary I’ll be discussing U. S. law only I’ll assume some knowledge of copyright American Music Research Center University of Colorado Boulder

COPYRIGHT IN MUSIC AND SOUND RECORDINGS American Music Research Center University of Colorado Boulder

An important first question Why? American Music Research Center University of Colorado Boulder

Quick Review The five exclusive rights (Sec. 106) • Reproduce the work • Prepare derivatives of the work • Distribute copies of the work • Perform the work publicly • Display the work publicly American Music Research Center University of Colorado Boulder

Quick Review • Right to decline • Limited times American Music Research Center University of Colorado Boulder

Music and SR differences Musical works – Excluded by Sec. 108(i) • But see Sec. 108(h) – Compulsory licenses (Sec. 115) – Rental music and restored copyrights • Limited first sale rights – Sec. 110(4) public performance exception American Music Research Center University of Colorado Boulder

Music and SR differences Sound recordings – Not excluded by sec. 108(i) (!!) – Compulsory licenses (Sec. 114) – Limitations on exclusive rights • Reproduction, derivative works, distribution limited to actual sounds • Recordings in educational TV/Radio excluded • Public performance limited to digital (e. g. , pandora) American Music Research Center University of Colorado Boulder

Music and SR differences Performances – Bootleg recordings • • Sec. 1101, 18 USC 2319 A ) Limited to unauthorized fixation and “trafficking” No time limits Applicability to limitations and exceptions American Music Research Center University of Colorado Boulder

Music and SR differences Sound Recording Musical Work Literary Work Other layers American Music Research Center University of Colorado Boulder

Music and SR differences © © Used John Lennon’s “Imagine” as a commentary against teaching of evolution American Music Research Center University of Colorado Boulder Lennon, et al. v. Premise Media Filed in S. D. N. Y. Found: Fair Use EMI v. Premise Media Filed in State of New York Found: Fair Use

Music and SR differences State copyright laws!! February 15, 1972 Fixed Before On/After Jurisdiction State* Federal Term Varies 70 years PMA or 95 years Library/Archives exceptions Sometimes Yes! Fair use Maybe/Sometimes Yes!** Statutory damages No Yes Public domain Mostly no No American Music Research Center University of Colorado Boulder * If fixed outside U. S. , federal rules apply **But see: Bridgeport Music v. Dimension Films

Patchwork of State Laws: Definitions of SR Ownership American Music Research Center University of Colorado Boulder

Patchwork of State Laws: Definitions of SR Ownership American Music Research Center University of Colorado Boulder

Patchwork of State Laws: Definitions of SR Ownership American Music Research Center University of Colorado Boulder

Patchwork of State Laws: Definitions of SR Ownership American Music Research Center University of Colorado Boulder

RECENT LITIGATION American Music Research Center University of Colorado Boulder

LITIGATION Pharrell Williams v. Frankie Gaye (Blurred Lines): District Court for plaintiff; On appeal • Can you copyright a groove? American Music Research Center University of Colorado Boulder

LITIGATION ABS Entertainment v. CBS • FOUND: new mastering creates new, independent copyright American Music Research Center University of Colorado Boulder

LITIGATION VMG Salsoul, LLC v. Madonna Louise Ciccone, et al: • Found: 0. 23 second sample is de minimis use, not actionable • Creates circuit split with 6 th Circuit, Bridgeport Music v. Dimension Films (“get a license or do not sample. ”) American Music Research Center University of Colorado Boulder

LITIGATION Estate of James Oscar Smith v. Cash Money Records, Inc. , et al. No. 1: 14 -cv-02703 (S. D. N. Y. May 30, 2017) • Found: use of sampling was transformative, fair use. American Music Research Center University of Colorado Boulder

LITIGATION Flo & Eddie v. Sirius XM, et al. • State public performance rights, pre-1972 • NY Court of Appeals: – No common law right of public performance – Performance-related copies dismissed • 9 th Circuit – SLAPP lawsuit (Pandora) on appeal, certified • 11 th Circuit – District court judgment on appeal, certified American Music Research Center University of Colorado Boulder

CURRENT LEGISLATION American Music Research Center University of Colorado Boulder

LEGISLATION • CLASSICS Act, HR 3301 (Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society) – Introduced July 19, 2017 – Reps. Issa (R-CA) – Co-sponsors Nadler (D-NY), Conyers (D-MI), Blackburn (R-TN), Rooney (R-FL), Deutch (D-FL) – Would create 17 USC Chapter 14 – Prohibits unauthorized digital performances of pre 1972 SRs, creates a compulsory licensing mechanism American Music Research Center University of Colorado Boulder

LEGISLATION • CLASSICS Act, HR 3301 (Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society) – Good news: • Fair use, Sec. 108 clauses: applies federal copyright to pre-1972 SRs for the first* time. • Creates compulsory licensing for pre-1972 recordings American Music Research Center University of Colorado Boulder

LEGISLATION • CLASSICS Act, HR 3301 (Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society) – Bad news: • Fair use, Sec. 108 clauses ONLY apply to public performance • Fails to solve the rest of the problem • Removes Congress’ incentive to fix the whole problem (as recommended by USCO) • Outside of normal Title 17 American Music Research Center University of Colorado Boulder

LEGISLATION • Transparency in Music Licensing and Ownership Act, H. R. 3350 – Introduced July 20, 2017 – Rep. Sensenbrenner (R-WI) – Co-sponsors Chabot (R-OH), Del. Bene (DWA), Farenthold (R-TX) – Would create a database of non-dramatic musical works and sound recordings American Music Research Center University of Colorado Boulder

LEGISLATION • Transparency in Music Licensing and Ownership Act, H. R. 3350 – Good news: • Requires 8+ data points, including ISMN, registration date, names of owners, catalogue numbers • Requires publicly available, free database (and exportable XML!) made available for searching • Requires compliance before statutory damages, attorney’s fees are available American Music Research Center University of Colorado Boulder

LEGISLATION • Transparency in Music Licensing and Ownership Act, H. R. 3350 – Bad news • Damage reduction doesn’t apply to everyone. Only “establishments, ” broadcasting entities, and others making use of statutory licenses. • Applies to all exclusive rights, but only useful to public performance situations American Music Research Center University of Colorado Boulder

THANK YOU Comments? Questions? Eric Harbeson harbeson@colorado. edu American Music Research Center University of Colorado Boulder