1. Class 19 Copyright, Winter, 2010 Music Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/r-picker@uchicago.edu Copyright © 2005-10 Randal C. Picker. All Rights Reserved.

2. September 4, 2015Copyright © 2005-10 Randal C. Picker2 101: Phonorecords n “Phonorecords” are u material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

3. September 4, 2015Copyright © 2005-10 Randal C. Picker3 101: Sound recordings n “Sound recordings” are works u 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.

4. September 4, 2015Copyright © 2005-10 Randal C. Picker4 102. Subject matter of copyright: In general n (a) u Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

5. September 4, 2015Copyright © 2005-10 Randal C. Picker5 102 (Cont.) u (1) literary works; u (2) musical works, including any accompanying words; u (3) dramatic works, including any accompanying music; u (4) pantomimes and choreographic works; u (5) pictorial, graphic, and sculptural works; u (6) motion pictures and other audiovisual works; u (7) sound recordings; and u (8) architectural works.

6. September 4, 2015Copyright © 2005-10 Randal C. Picker6 106. Exclusive rights in copyrighted works n 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: u (1) to reproduce the copyrighted work in copies or phonorecords; u (2) to prepare derivative works based upon the copyrighted work;

7. September 4, 2015Copyright © 2005-10 Randal C. Picker7 106 (Cont.) u (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; u (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;

8. September 4, 2015Copyright © 2005-10 Randal C. Picker8 106 (Cont.) u (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 u (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

9. September 4, 2015Copyright © 2005-10 Randal C. Picker9 Sec. 114: Scope of Exclusive Right in Sound Recordings n (a) u 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).

10. September 4, 2015Copyright © 2005-10 Randal C. Picker10 Playing Music n Hypo u You write and record on a CD a new song, “The Copyright Blues” u WXRT, a Chicago FM radio station, buys the CD at Walmart u WXRT plays the CD on the air n Copyright issues?

11. September 4, 2015Copyright © 2005-10 Randal C. Picker11 Answer n Separate Works u The musical work u The sound recording n Act u WXRT has publicly performed the musical work and the sound recording

12. September 4, 2015Copyright © 2005-10 Randal C. Picker12 Answer n Rights: Sound Recordings u Owners of copyrights in sound recordings have limited control over public performance of sound recordings w Under 106(6), only as to public performances by means of a “digital audio transmission” w No general public performance rights for sound recordings under 106(4); see also 114(a)

13. September 4, 2015Copyright © 2005-10 Randal C. Picker13 Answer n Rights: Musical Work u Owner of copyright in musical work has full control over public performance rights under 106(4) u Absent consent, playing CD over-the-air violates public performance rights u ASCAP and BMI license these rights

14. September 4, 2015Copyright © 2005-10 Randal C. Picker14 Making Music n Hypo u You write a new song, “The Copyright Blues” u I buy the sheet music for the song and record it and distribute CDs of my sound recording n Copyright issues?

15. September 4, 2015Copyright © 2005-10 Randal C. Picker15 Answer n Derivative Works Again u My sound recording will be a derivative work of the sheet music (sound recordings are specifically referenced in the derivative works definition) u You have the exclusive right to control derivative works under Sec. 106(2), unless something else calls off that right u Any call offs? Yes: Sec. 115

16. September 4, 2015Copyright © 2005-10 Randal C. Picker16 History of Sec. 115 n Piano Roll Monopolies! u Remember White-Smith (U.S., 1908): Piano rolls weren’t copies of sheet music; read by machines, not people u New 1909 Copyright Act overturns this, giving music composer the right to control “mechanical” reproductions, meaning piano rolls and phonographs

17. September 4, 2015Copyright © 2005-10 Randal C. Picker17 History of Sec. 115 u Aeolian Co., leader in player piano market, had contracted for mechanical recording rights in anticipation of legislation u 1909 Act got around that in creating a compulsory license tied to first voluntary licensing u For more discussion, see Goldstein, Copyright’s Highway 51-53

18. September 4, 2015Copyright © 2005-10 Randal C. Picker18 Sec. 115: The Compulsory License for Covers n 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.

19. September 4, 2015Copyright © 2005-10 Randal C. Picker19 Sec. 115(a): Availability and Scope n (1) u 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.

20. September 4, 2015Copyright © 2005-10 Randal C. Picker20 Limits on Cover Changes n 115(a)(2) u 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.

21. September 4, 2015Copyright © 2005-10 Randal C. Picker21 Royalty Scheme n Elaborate; see 115(c)

22. September 4, 2015Copyright © 2005-10 Randal C. Picker22 Making Music Again n Replay the Hypo u You write and record a new song, “The Copyright Blues” u I buy the sheet music for the song and record my version of it and distribute CDs of my sound recording n Copyright issues?

23. September 4, 2015Copyright © 2005-10 Randal C. Picker23 Answer n First Mover Advantage u 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 n Described as “mechanical licensing”

24. September 4, 2015Copyright © 2005-10 Randal C. Picker24 Answer n Sound Recording Issues u Have I copied your sound recording?

25. September 4, 2015Copyright © 2005-10 Randal C. Picker25 114 n (b) u 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.

26. September 4, 2015Copyright © 2005-10 Randal C. Picker26 114 u 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.

27. September 4, 2015Copyright © 2005-10 Randal C. Picker27 114 u 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.

28. September 4, 2015Copyright © 2005-10 Randal C. Picker28 Internet Radio/Webcasting n Hypo u I buy CDs u I broadcast them over the Internet, just like an over-the-air radio station u Change in broadcasting medium n Any change in the analysis?

29. September 4, 2015Copyright © 2005-10 Randal C. Picker29 Answer n Yes u Musical work analysis: Same u Sound recording w 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

30. September 4, 2015Copyright © 2005-10 Randal C. Picker30 Answer n Sec. 114 Has Elaborate Compulsory License for this Case n Entry Barriers u Disadvantages web entry relative to over- the-air radio u Over-the-air radio need not pay for use of sound recordings, just the musical compositions u Web radio pays for both

31. September 4, 2015Copyright © 2005 Randal C. Picker31 Screen Capture Slide

32. September 4, 2015Copyright © 2005 Randal C. Picker32 Screen Capture Slide

33. September 4, 2015Copyright © 2005 Randal C. Picker33 Screen Capture Slide

34. September 4, 2015Copyright © 2005-10 Randal C. Picker34 Old-School Copying n Facts u A buys Britney CD u A plays it and uses a tape recorder to copy it on a cassette to listen in his car. n What result for A?

35. September 4, 2015Copyright © 2005-10 Randal C. Picker35 Answer n OK u For sure after 1992, under the AHRA Section 1008 u Before 1992, fair use?

36. September 4, 2015Copyright © 2005-10 Randal C. Picker36 Sec. 1008 n Prohibition on certain infringement actions u No action may be brought under this title alleging infringement of copyright w based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or w based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

37. September 4, 2015Copyright © 2005-10 Randal C. Picker37 New-School Copying, Circa 1987 n Facts u A buys Britney CD u A establishes a direction digital connection between CD player and digital audio tape recorder and makes a copy n What result for A?

38. September 4, 2015Copyright © 2005 Randal C. Picker38 Screen Capture Slide

39. September 4, 2015Copyright © 2005 Randal C. Picker39 Screen Capture Slide

40. September 4, 2015Copyright © 2005 Randal C. Picker40 Screen Capture Slide

41. September 4, 2015Copyright © 2005-10 Randal C. Picker41 Copying under the AHRA n Three Types u Analog Recording w The old school original u AHRA Digital Recording w Recording that tracks the definitions set out in 1001 u Non-AHRA Digital Recording w All other digital recording

42. September 4, 2015Copyright © 2005-10 Randal C. Picker42 Protection under 1008 n For consumers engaging in noncommercial use u Of analog recording u Of AHRA Digital Recording n But u No protection for Non-AHRA Digital Recording

43. Tax and Compliance System for AHRA Digital n Statutory Deal u Get 1008 copying rights for qualifying digital devices u But that comes at a cost w Must pay royalties under 1003 w Must build in copying controls under 1002 September 4, 2015Copyright © 2005-10 Randal C. Picker43

44. For Non-AHRA Digital Recording n Trade-Offs u No 1008 protection u But no required 1003 royalties or 1002 copying controls n And Now the Key Question: Which Devices Qualify? u The PC? The iPod? September 4, 2015Copyright © 2005-10 Randal C. Picker44

45. September 4, 2015Copyright © 2005-10 Randal C. Picker45 Built-In Controls: AHRA 1002(2) n (a) Prohibition on Importation, Manufacture, and Distribution. u No person shall import, manufacture, or distribute any digital audio recording device or digital audio interface device that does not conform to ‑‑ w (1) the Serial Copy Management System;

46. September 4, 2015Copyright © 2005-10 Randal C. Picker46 Built-In Controls: AHRA 1002(2) w (2) a system that has the same functional characteristics as the Serial Copy Management System and requires that copyright and generation status information be accurately sent, received, and acted upon between devices using the system’s method of serial copying regulation and devices using the Serial Copy Management System; or w (3) any other system certified by the Secretary of Commerce as prohibiting unauthorized serial copying.

47. September 4, 2015Copyright © 2005-10 Randal C. Picker47 Obligation to Make Royalty Payments: AHRA 1003 n (a) Prohibition on Importation and Manufacture. u No person shall import into and distribute, or manufacture and distribute, any digital audio recording device or digital audio recording medium unless such person records the notice specified by this section and subsequently deposits the statements of account and applicable royalty payments for such device or medium specified in section 1004.

48. September 4, 2015Copyright © 2005-10 Randal C. Picker48 How Much?: AHRA 1004 n (a) Digital Audio Recording Devices. ‑‑ u (1) Amount of payment. ‑‑ The royalty payment due under section 1003 for each digital audio recording device imported into and distributed in the United States, or manufactured and distributed in the United States, shall be 2 percent of the transfer price. Only the first person to manufacture and distribute or import and distribute such device shall be required to pay the royalty with respect to such device.

49. September 4, 2015Copyright © 2005-10 Randal C. Picker49 How Much?: AHRA 1004 n (b) Digital Audio Recording Media. u The royalty payment due under section 1003 for each digital audio recording medium imported into and distributed in the United States, or manufactured and distributed in the United States, shall be 3 percent of the transfer price. Only the first person to manufacture and distribute or import and distribute such medium shall be required to pay the royalty with respect to such medium.

50. September 4, 2015Copyright © 2005-10 Randal C. Picker50 The Critical Question n What devices and what media are covered? u The personal computer? u MP3 players? w Then: The Diamond Rio? w Now: the iPod?

51. September 4, 2015Copyright © 2005-10 Randal C. Picker51 AHRA 1001(3) n A “digital audio recording device” is u any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use, except for ‑‑

52. September 4, 2015Copyright © 2005-10 Randal C. Picker52 AHRA 1001(3) w (A) professional model products, and w (B) dictation machines, answering machines, and other audio recording equipment that is designed and marketed primarily for the creation of sound recordings resulting from the fixation of nonmusical sounds.

53. September 4, 2015Copyright © 2005-10 Randal C. Picker53 AHRA 1001(1) n A “digital audio copied recording” is u a reproduction in a digital recording format of a digital musical recording, whether that reproduction is made directly from another digital musical recording or indirectly from a transmission.

54. September 4, 2015Copyright © 2005-10 Randal C. Picker54 AHRA 1001(5) n (A) A “digital musical recording” is a material object ‑‑ u (i) in which are fixed, in a digital recording format, only sounds, and material, statements, or instructions incidental to those fixed sounds, if any, and u (ii) from which the sounds and material can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

55. September 4, 2015Copyright © 2005-10 Randal C. Picker55 AHRA 1001(5) n (B) A “digital musical recording” does not include a material object ‑‑ u (i) in which the fixed sounds consist entirely of spoken word recordings, or u (ii) in which one or more computer programs are fixed, except that a digital musical recording may contain statements or instructions constituting the fixed sounds and incidental material, and statements or instructions to be used directly or indirectly in order to bring about the perception, reproduction, or communication of the fixed sounds and incidental material.

56. September 4, 2015Copyright © 2005-10 Randal C. Picker56 Different Devices n The Cassette Recorder u I play a music CD in a CD player u I record it over the air using a cassette recorder u I play the cassette in my car n Does the AHRA apply? Is the cassette recorder a taxable device? Do I get the benefits of 1008?

57. September 4, 2015Copyright © 2005-10 Randal C. Picker57 Answer n What kind of device is it? u Is the cassette recorder a digital audio recording device? w That turns on, among other things, whether it can make a “digital audio copied recording” w That, in turn, requires a “reproduction in a digital recording format” w The cassette tape won’t qualify so the cassette recorder shouldn’t be a DARD

58. September 4, 2015Copyright © 2005-10 Randal C. Picker58 Answer n Consequence? u No triggering of 1002 copy control engineering rules u No triggering of 1003 royalties

59. September 4, 2015Copyright © 2005-10 Randal C. Picker59 Answer n 1008? u Cassette recorder should be analog recording device and recorded tape should be analog musical recording u Copying owned CD for cassette use in car will probably be noncommercial use u 1008 then insulates this copying from infringement action

60. September 4, 2015Copyright © 2005-10 Randal C. Picker60 Answer n Can I give the tape to a friend as a birthday present? u Does the copying and distribution qualify as “the noncommercial use by a consumer of such a device or medium for making digital music recordings or analog music recordings?”

61. September 4, 2015Copyright © 2005-10 Randal C. Picker61 Different Devices: Walkman DAT Recorder n Hypo u I use a digital cord to attach a CD player to my Walkman DAT recorder u I record the CD onto the DAT n Does the AHRA apply? Is the Walkman DAT recorder a taxable device? Do I get the benefits of 1008?

62. September 4, 2015Copyright © 2005-10 Randal C. Picker62 Answer n Answer u Yes, yes and yes u Yes, AHRA should apply u Yes, that triggers the royalty and copy management scheme obligations u Yes, the consumer gets the safe harbor of 1008

63. September 4, 2015Copyright © 2005-10 Randal C. Picker63 Different Devices: Walkman MP3 player n Hypo u I use a digital cord to attach a CD player to my Walkman MP3 player u I record the CD onto the hard drive built into the MP3 player n Does the AHRA apply? Is the Walkman DAT recorder a taxable device? Do I get the benefits of 1008?

64. September 4, 2015Copyright © 2005-10 Randal C. Picker64 Answer n Answer u Probably yes, yes and yes again w Easiest if hard drive of MP3 player just holds music and doesn’t have computer programs stores on it Is this MP3 player a computer? n Is this the Diamond Rio?

65. September 4, 2015Copyright © 2005-10 Randal C. Picker65 Different Devices: The PC n The Personal Computer u I pop a music CD into my PC u I used iTunes to rip the CD and copy the music to my PC’s hard disk u I listen to the music over speakers attached to the PC. n Does the AHRA apply? Is the PC a taxable device? Do I get the benefits of 1008?

66. September 4, 2015Copyright © 2005-10 Randal C. Picker66 Answer n What kind of device is it? u Is the PC a digital audio recording device? w Recall the definition of a DARD: any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use w Focus on the “primary purpose” of the copying capability of the PC. n PC Isn’t a DARD and so says the court in Diamond

67. September 4, 2015Copyright © 2005-10 Randal C. Picker67 Answer n Consequence? u No triggering of 1002 copy control engineering rules u No triggering of 1003 royalties

68. September 4, 2015Copyright © 2005-10 Randal C. Picker68 Answer n 1008? u Hard to think that PC should qualify as analog recording device or that digital files copied from music CD should qualify as analog musical recording u If that is right, 1008 does not insulate this copying from infringement action

69. September 4, 2015Copyright © 2005-10 Randal C. Picker69 Taking Stock of 1 st Generation Copies n Four Results u Cassette recorder w No copy-protection engineering requirements, no royalties and protected copying under 1008 u Walkman DAT Recorder w Copy-protection engineering requirements, royalties and protected copying under 1008

70. September 4, 2015Copyright © 2005-10 Randal C. Picker70 Taking Stock of 1 st Generation Copies n Four Results u Walkman MP3 Player (direct connection to CD player) w Copy-protection engineering requirements, royalties and protected copying under 1008 u PC w No copy-protection engineering requirements, no royalties but not protected copying under 1008

71. September 4, 2015Copyright © 2005-10 Randal C. Picker71 Different Devices: MP3 Player n MP3 Player through PC u 2 nd generation copies u My MP3 player doesn’t connect directly with a CD player u Instead, I copy content from a CD to a PC and then via the PC to the MP3 player n Does the presence of the PC change the result? Can CDs be laundered through the PC?

72. September 4, 2015Copyright © 2005-10 Randal C. Picker72 Answer n What kind of device is it? u Is the MP3 player a digital audio recording device? w Won’t be excluded by “primary purpose” test w Does it make a “digital audio copied recording?” That, in turn, requires a “reproduction in a digital recording format of a digital music recording”

73. September 4, 2015Copyright © 2005-10 Randal C. Picker73 AHRA 1001(1) n A “digital audio copied recording” is u a reproduction in a digital recording format of a digital musical recording, whether that reproduction is made directly from another digital musical recording or indirectly from a transmission.

74. September 4, 2015Copyright © 2005-10 Randal C. Picker74 AHRA 1001(1) Rewrites n A “digital audio copied recording” is u V1: a reproduction in a digital recording format of a digital musical recording, whether that reproduction is made directly from another digital musical recording or indirectly from a transmission. u V2: a reproduction in a digital recording format of a digital musical recording u V3: a reproduction in a digital recording format of a digital musical recording made directly from another digital musical recording or indirectly from a transmission.

75. September 4, 2015Copyright © 2005-10 Randal C. Picker75 AHRA 1001(1) Rewrites n A “digital audio copied recording” is u V4: a reproduction in a digital recording format of a digital musical recording, including, without limitation, a reproduction made directly from another digital musical recording or indirectly from a transmission.

76. AHRA Legislative History n Copying u Can’t copy talking books u Can’t copy computer programs n Personal computer u Generally out, but see peripherals September 4, 2015Copyright © 2005-10 Randal C. Picker76

77. AHRA Legislative History n Senate Report 102-294 u Letter from Computer and Business Equipment Manufacturers Association w “The difficulty with S. 1623 as introduced is that not only was there no explicit statement in the statutory language clarifying that computer programs may not be copied, but the definition of ‘phonorecord’ * * * was drafted so broadly as to encompass all, ‘material objects in which sound, other than those accompanying a motion picture or other audio- visual work, are fixed * * * ‘.” September 4, 2015Copyright © 2005-10 Randal C. Picker77

78. AHRA Legislative History n House Report 102-873 u “A definition of ‘digital musical recording’ has been added, with revisions reflecting exemptions for talking books and computer programs.” September 4, 2015Copyright © 2005-10 Randal C. Picker78

79. AHRA Legislative History n Senate Report 102-294 u Thus, a digital videocassette recorder though capable of making digital audio copied recordings would not qualify as a "digital audio recording device" because the primary purpose of the recording function of the device is not to make "digital audio copied recordings," but rather to make digital video recordings. September 4, 2015Copyright © 2005-10 Randal C. Picker79

80. AHRA Legislative History n Senate Report 102-294 u Similarly, neither a personal computer whose recording function is designed and marketed primarily for the recording of data and computer programs, nor a machine whose recording function is designed and marketed for the primary purpose of copying multimedia products, would qualify as a "digital audio recording device." September 4, 2015Copyright © 2005-10 Randal C. Picker80

81. AHRA Legislative History n Senate Report 102-294 u Although the typical personal computer would not fall within the definition of "digital audio recording device," a separate peripheral device with an independent recording function would be a "digital audio recording device" if the recording function was designed or marketed for the primary purpose of making digital audio capied recordings for private use. In that case, only the peripheral device would be subject to the royalty payment requirements of subchapter B. September 4, 2015Copyright © 2005-10 Randal C. Picker81

82. September 4, 2015Copyright © 2005-07 Randal C. Picker82 Different Devices: the iPod n Hypo u I buy a CD, pop it into my computer, rip it and copy the tracks to my iPod n What result?

83. September 4, 2015Copyright © 2005-10 Randal C. Picker83 Answer n Answer u iPod is the laundered MP3 player, just like the Diamond Rio u No copy engineering obligations, no royalty obligations, no 1008 safe harbor protection

84. September 4, 2015Copyright © 2005-10 Randal C. Picker84 Remixes: Newton and Bridgeport n Newton: Once Damned or Twice-Damned? u 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? n Bridgeport u To sample recorded music, do you need to license both the sound recording and the musical composition or can you just license the composition?

85. September 4, 2015Copyright © 2005-10 Randal C. Picker85 Remixes: Newton v. Diamond n Core Facts u 1978: Newton composes Choir u 1988: Newton records Choir and licenses all rights in sound recording to ECM for $5000 u 1992: Beastie Boys get license from ECM to sample Choir, produce Pass the Mic u Newton sues for copyright infringement of his musical composition

86. September 4, 2015Copyright © 2005-10 Randal C. Picker86 Newton’s Composition

87. September 4, 2015Copyright © 2005-10 Randal C. Picker87 The Music

88. September 4, 2015Copyright © 2005-10 Randal C. Picker88 The Newton-ECM License n 1) u [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.

89. September 4, 2015Copyright © 2005-10 Randal C. Picker89 The Newton-ECM License n 3) u 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.

90. September 4, 2015Copyright © 2005-10 Randal C. Picker90 The ECM-Beastie Boys License n [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”);

91. September 4, 2015Copyright © 2005-10 Randal C. Picker91 The ECM-Beasties Boys License n 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.

92. September 4, 2015Copyright © 2005-10 Randal C. Picker92 Analysis n Understanding the Contracts u Presumption against fragmentation of rights? u Double marginalization concerns n Doing Copyright u Originality u Infringement: If you copy and no one can tell, have you infringed? u Separating the sound recording and the musical composition

93. September 4, 2015Copyright © 2005-10 Randal C. Picker93 Understanding the De Minimis Exception n Framing This: u Just another version of fair use? u Ties infringement to recognition of the work: if unrecognized by average viewer, no infringement? u A prudential rule for controlling judicial dockets: “the law does not concern itself with trifles”?

94. September 4, 2015Copyright © 2005-10 Randal C. Picker94 Remixes: Bridgeport v. Dimension Films n Core Facts u Bridgeport and Westbound claim music composition rights and sound recording rights regarding “Get Off Your Ass and Jam” by George Clinton Jr. and the Funkadelics u A new song, 100 Miles and Runnin, is created, in part, though sampling Get Off

95. September 4, 2015Copyright © 2005-10 Randal C. Picker95 Remixes: Bridgeport v. Dimension Films u Bridgeport licenses the use of the musical composition, Westbound doesn’t license use of the sound recording n District Court u No reasonable juror would recognize the source of the sample without having been told of its source

96. September 4, 2015Copyright © 2005-10 Randal C. Picker96 The Central Question n How does Sec. 114 apply to music sampling of a sound recording?