1. Class 14 Copyright, Autumn, 2016 Music
9/19/2018
Class 14 Copyright, Autumn, Music
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
Ludwig & Hilde Wolf Teaching Scholar
The Law School
The University of Chicago

2. Picker, Internet Giants: The Law and Economics of Media Platforms
9/19/2018
The Victrola
Popular Mechanics, Nov (via Google Books)

3. Picker, Internet Giants: The Law and Economics of Media Platforms
9/19/2018
Sales and Distribution
Popular Mechanics, Nov (via Google Books)

4. Picker, Internet Giants: The Law and Economics of Media Platforms
9/19/2018
Use Restrictions?
Popular Mechanics, Nov (via Google Books)

5. Picker, Internet Giants: The Law and Economics of Media Platforms
9/19/2018
Use Restrictions!
“This machine is manufactured by us under our patents hereinafter noted, and is licensed for use only for the term of the patent having the longest term to run, and only with sound records, sound boxes and needles manufactured by us; and our records and sound boxes are licensed only for use with our machines.”
Victor Talking Machine Co. v. Strauss, 230 F. 449 (2nd Cir, 1916, reversed, 243 U.S. 490 (1917) (via West Publishing)

6. Picker, Internet Giants: The Law and Economics of Media Platforms
9/19/2018
Market Separation and Price Discrimination
“This machine is not licensed for use for public entertainments for profit; for a license for such public use an extra license fee of ten per cent. (10%) of the full royalty shall be payable.”
Reversed as Dr. Miles end run.
Victor Talking Machine Co. v. Strauss, 230 F. 449 (2nd Cir, 1916, reversed, 243 U.S. 490 (1917) (via West Publishing)

7. Picker, Internet Giants: The Law and Economics of Media Platforms
9/19/2018
Legends for Records
Image taken from:

8. Picker, Internet Giants: The Law and Economics of Media Platforms
9/19/2018
More Market Separation and Price Discrimination
“Congress has created the monopoly in exchange for a dedication, and when the monopoly expires the dedication must be complete. If the records were registrable under the act, the restriction would therefore certainly not limit the dedication.”
RCA v. Whiteman (2nd Cir. 1940)

9. 101: Sound recordings “Sound recordings” are works
9/19/2018
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.
September 19, 2018

10. 102. Subject matter of copyright: In general
9/19/2018
102. Subject matter of copyright: In general
(a)
… Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
September 19, 2018

11. 102 (Cont.) (4) pantomimes and choreographic works;
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102 (Cont.)
(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.
September 19, 2018

12. 106. Exclusive rights in copyrighted works
9/19/2018
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;
September 19, 2018

13. 9/19/2018
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;
September 19, 2018

14. 9/19/2018
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.
September 19, 2018

15. 1971 Sound Recordings Act Legis History
September 19, 2018

16. 1971 Sound Recordings Act Legis History
September 19, 2018

17. 1971 Sound Recordings Act Legis History
September 19, 2018

18. 1971 Sound Recordings Act Legis History
September 19, 2018

19. Sec. 114: Scope of Exclusive Right in Sound Recordings
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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).
September 19, 2018

20. 9/19/2018
Creating a Tune
Hypo
At a club in public before an audience, sitting at the piano, I create a new song (just notes, no words) and I record that song as I play it
I stop playing, turn off the recorder and declare my song completed
September 19, 2018

21. 9/19/2018
Creating a Tune
Do I have a copyright in the new song? Is there a sound recording? Does the fact that this as done as a public “performance” alter the analysis somehow?
September 19, 2018

22. Answer Q1: Yes Q2: Yes Q3: No
Doing this in public or while being watched by others says nothing about whether I have or have not composed a new melody
September 19, 2018

23. Playing Music Hypo Copyright issues?
9/19/2018
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?
September 19, 2018

24. Answer Separate Works Act The musical work The sound recording
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Answer
Separate Works
The musical work
The sound recording
Act
WXRT has publicly performed the musical work and the sound recording
September 19, 2018

25. Answer Rights: Sound Recordings
9/19/2018
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)
September 19, 2018

26. Answer Rights: Musical Work
9/19/2018
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
September 19, 2018

27. Making Music Hypo Copyright issues?
9/19/2018
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?
September 19, 2018

28. Answer Derivative Works Again
9/19/2018
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, if phonorecord has already been distributed
September 19, 2018

29. History of Sec. 115 Piano Roll Monopolies
9/19/2018
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 overturned this, giving music composer the right to control “mechanical” reproductions, meaning piano rolls and phonographs
September 19, 2018

30. 9/19/2018
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
September 19, 2018

31. Sec. 115: The Compulsory License for Covers
9/19/2018
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.
September 19, 2018

32. Sec. 115(a): Availability and Scope
9/19/2018
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.
September 19, 2018

33. Limits on Cover Changes
9/19/2018
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.
September 19, 2018

34. 9/19/2018
Royalty Scheme
Elaborate; see 115(c)
September 19, 2018

35. Making Music Again Replay the Hypo Copyright issues?
9/19/2018
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?
September 19, 2018

36. Answer First Mover Advantage Described as “mechanical licensing”
9/19/2018
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”
September 19, 2018

37. Answer Sound Recording Issues Have I copied your sound recording?
9/19/2018
Answer
Sound Recording Issues
Have I copied your sound recording?
September 19, 2018

38. 9/19/2018
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.
September 19, 2018

39. 9/19/2018
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.
September 19, 2018

40. 9/19/2018
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.
September 19, 2018

41. Internet Radio/Webcasting
9/19/2018
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?
September 19, 2018

42. Answer Yes Musical work analysis: Same Sound recording
9/19/2018
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
September 19, 2018

43. Answer Sec. 114 Has Elaborate Compulsory License for this Case
9/19/2018
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
September 19, 2018

44. Newton and Ciccone Once Damned or Twice-Damned?
9/19/2018
Newton and Ciccone
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?
September 19, 2018

45. Remixes: Newton v. Diamond
9/19/2018
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
September 19, 2018

46. 9/19/2018
Newton’s Composition
September 19, 2018

47. The Sound Recordings Link Here Newton
9/19/2018
The Sound Recordings
Link Here
Newton
Beastie Boys
September 19, 2018

48. The Newton-ECM License
9/19/2018
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.
September 19, 2018

49. The Newton-ECM License
9/19/2018
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.
September 19, 2018

50. The ECM-Beastie Boys License
9/19/2018
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”);
September 19, 2018

51. The ECM-Beasties Boys License
9/19/2018
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.
September 19, 2018

52. Analysis Musical Works How many musical works does Newton have here?
Just the work fixed in the musical score?
An additional work, say a derivative work of the musical score, fixed in the sound recording?
September 19, 2018

53. Analysis Musical Works
Or is the thing captured in the sound recording a performance of the first musical score?
Such a performance would violate 106(4) if done by someone other than Newton
But does the performance as such have copyright significance if done by Newton?
September 19, 2018

54. Definition of “Created”
“A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.
September 19, 2018

55. Derivative Work Definition
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.
September 19, 2018

56. Derivative Work Definition
A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
September 19, 2018

57. Majority Opinion in Newton
Per the Court
“Here, the only time any sound was fixed in a tangible medium was when a particular performance was recorded. … Newton’s copyright extends only to the elements that he fixed in a tangible medium—those that he wrote on the score.”
September 19, 2018

58. Analysis Understanding the Contracts
9/19/2018
Analysis
Understanding the Contracts
Presumption against fragmentation of rights?
Double marginalization concerns
September 19, 2018

59. Analysis Doing Copyright Originality
9/19/2018
Analysis
Doing Copyright
Originality
Infringement: If you copy and no one can tell, have you infringed?
Separating the sound recording and the musical composition
September 19, 2018

60. Understanding the De Minimis Exception
9/19/2018
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”?
September 19, 2018

61. Ciccone: The Sound Recordings
Ooh I Love It (Love Break)
Vogue
September 19, 2018

62. 9/19/2018
The Central Question
How does Sec. 114 apply to music sampling of a sound recording?
September 19, 2018