COPYRIGHT LAW 2008 Columbus School of Law The Catholic University of America Prof. Fischer Class 23 November 5, 2008

WRAP-UP POINTS: INFRINGEMENT To sustain an action for infringement, copyright owner must prove 1. Ownership of valid copyright 2. Copying by D 3. Unlawful Appropriation by D

NON-LITERAL COPYING In Nichols v. Universal Pictures (2d Cir. 1930), Judge Learned Hand made clear that non-literal copying could be actionable. He stated that copyright “cannot be limited literally to the text, else a a plagiarist would escape by immaterial variations”.

TYPES OF SIMILARITY Comprehensive nonliteral similarity Fragmented literal similarity

NICHOLS v. UNIVERSAL PICTURES (2d Cir. 1930) Did the film “The Cohens and the Kellys” infringe the play “Abie’s Irish Rose”? NB. Character test

Nichols : Abstractions test “When a plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome. Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out…there is a point in this series of abstractions where they are no longer protected.” [since they are idea]

What do you compare? The whole of the copied portions of the P work including individually uncopyrightable elements like ideas and scenes a faire? OR only the copied portions that are copyrightable?

SHELDON V. MGM (1936) Does the motion picture “Letty Lynton”infringe the play “Dishonored Lady”? How would you distinguish this case from Nichols? Note the judge is the same: Learned Hand

SHELDON V. MGM (1936) Does the motion picture “Letty Lynton”infringe the play “Dishonored Lady”? How would you distinguish this case from Nichols? Note the judge is the same: Learned Hand

“TOTAL CONCEPT AND FEEL” What is meant by this? See Roth Greeting Cards v. United Card Co.

RIGHT TO MAKE PHONORECORDS See s. 106(1) Definition of Phonorecords: 101 Must be fixed A phonorecord often embodies two fixed copyrighted works

COPY OR PHONORECORD? Copies and Phonorecords are mutually exclusive – why did it matter whether smething was a copy or a phonorecord in ABKCO v. Stellar? CB p. 591

Compulsory License White Smith Music Publishing v. Apollo (1908) : was a piano roll a copy? Result of case: compulsory license adopted in 1909

ALISON

RIGHT TO MAKE/DISTRIBUTE PHONORECORDS What would Linda Ronstadt have to do to ensure that her recording of Alison did not infringe Elvis Costello’s copyright in the song?

MECHANICAL LICENSE What’s a mechanical license? See section 115

MECHANICAL LICENSE Primary purpose to distribute to public for private use Phonorecords must have been distributed under authority of copyright owner Can’t use for pirating of sound recordings Must serve TIMELY notice of intention on copyright owner Must pay royalty established now by 3 judge Copyright Royalty Board (now 9.1c/song subject to overtime rate if song over 5 minutes)

CRB Ruled in early October 2008 not to raise mechanical license royalties Surprise ruling

WHAT HAPPENS IF YOU FAIL TO SERVE TIMELY NOTICE UNDER s. 115(b)? See Cherry River Music v. Simitar Entertainment (S.D.N.Y. 1999)

CHANGING THE SONG To what extent can Linda Ronstadt validly change the song Alison in her recording of it under a compulsory license?

CHANGING THE SONG See s. 115(a)(2) - she can make a musical arrangement “to the extent necessary to conform it to the style or manner or 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” without Costello’s express consent.

Harry Fox Agency What does it do?

: THE HARRY FOX AGENCY The Harry Fox Agency is a organization by a trade association of leading music publishers (NMPA) to represent music publishers. For a fee, HFA issues mechanical licenses and collects royalties due under those licenses from record companies. For a great book on the music industry, see Krasilovsky/Shemel, This Business of Music.

HARRY FOX LICENSE The HFA mechanical license has some special features, for example, the service of notice of intention to obtain a compulsory license is waived. Courts have held that this license is still a variant of a compulsory license and should be treated as a compulsory license rather than a private contract.

OTHER MECHANICAL RIGHTS LICENSING ORGANIZATIONS Harry Fox Agency is not the only mechanical rights licensing organization. Others include the American Mechanical Rights Agency (AMRA), Copyright Management, Inc., and Publishers Licensing Corp. They are all very small in comparison to Harry Fox Agency.

INT’L MECHANICAL RIGHTS ORGANIZATIONS Other nations have mechanical rights organizations, e.g. Canadian Musical Reproduction Rights Agency Ltd. (CMRRA), British Mechanical Copyright Protection Society (MCPS), French Societé pour l’Administration du Droit du Reproduction (SDRM), etc...

Digital Phonorecord Deliveries In 1995 copyright law extended compulsory license (for nondramatic musical works) to digital phonorecord deliveries.

LIMITS IN SECTION 114 Like section 115, 114 limits reproduction rights of the copyright owner but here the relevant copyright owner is the owner of rights in sound recordings. It only protects against reproduction of sound recordings that directly or indirectly recapture the actual sounds fixed in the protected recording.

SAMPLING Bridgeport Music v. Dimension Films (6 th Cir. 2005)