1. COPYRIGHT LAW 2004 Columbus School of Law The Catholic University of America Prof. Fischer March 29, 2004

2. WRAP-UP POINTS: MECHANICAL LICENSE Section 115 of the Copyright Act is a limitation on the scope of the reproduction and distribution right of the copyright owner in section 106. It provides for a type of compulsory license known as the mechanical license This is a compromise designed to protect composers but prohibit music monopolies

3. : MECHANICAL LICENSE Section 115 entitles musicians and record companies to make and sell (for private use) their own recordings of copyrighted musical works of another artist if (1) those copyrighted musical works have already been recorded with that other artist’s permission (2) the musicians and record companies pay a set statutory fee to the copyright owner and (3) they don’t change the “basic melody or fundamental character of the work.”

4. HARRY FOX AGENCY What does this organization do?

5. WRAP UP POINT: 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.

6. 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.

7. 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.

8. 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...

9. 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.

10. PRIVATE COPYING OF SOUND RECORDINGS Section 1008 of the Copyright Act of 1976, which was added by the Audio Home Recording Act of 1992, permits “consumers” to make copies of sound recordings for “noncommercial use”. This provision was a compromise over “digital audio tape” DAT technology.

11. AUDIO HOME RECORDING ACT 1. Infringement actions barred for home audiotaping (digital or analog) 2. Royalty charges imposed on sales of digital audiotape recorders and blank tapes (paid by manufacturers/importers). Pay into 2 funds - (musical works, sound recordings) 3. Obligation to include serial copy management systems in consumer digital audio recording devices to prevent copying copies.

12. RIAA v. Diamond The Rio was a handheld digital playback device that stored and played compressed music files from a PC. It could not copy files or upload files to a computer or another Rio. – did it violate copyright law?

13. RIAA v. Diamond Ninth Circuit held that Rio was not a “digital audio recording device” under the Copyright Act of 1976 and so it did not violate the Copyright Act.

14. RIGHT TO PREPARE DERIVATIVE WORKS See s. 106(2 Overlaps the right of reproduction but is somewhat broader. Is it necessary?

15. Is Section 106(2) necessary Some commentators, such as Paul Goldstein think it is. They argue that protecting derivative works serves to ensure that there are adequate incentives to develop new works. Others, e.g. Nimmer, think it is superfluous due to overlap with reproduction or public performance rights

16. Effect of section 103 All new expression in a derivative work is separately copyrightable. However, section 103(b) extends copyrights only to new expression, not the original material. Section 103(a) provides that only the original author or a licensee can get copyright in a derivative work. Is this fair?

17. HORGAN v. MACMILLAN Issue: Can a book amount to an infringing derivative work where the original work is a work of choreography? Why or why not?

18. HORGAN v. MACMILLAN 2d Circuit found the District Judge applied the wrong test Correct standard is whether copy is substantially similar to original NOT whether original work could be recreated from copy

19. MICRO STAR V. FORMGEN (9th Cir 1998) - Why did Micro Star file suit? Is Nuke It an infringing derivative work? Why or why not? Does putting a piece of pink saran wrap across your TV create an infringing derivative work?

20. COPYRIGHTABILITY OF VIDEO GAMES Computer programs are copyrightable - so if you copy game you will infringe If you copy audiovisual display have you infringed?

21. COPYING VIDEO GAMES Audiovisual display has been held to be separately copyrightable as an audiovisual work - though some doubts as to whether original or fixed because user can alter, to some extent, display

22. LEE v. A.R.T. Co. (7th Cir. 1997) Did A.R.T. infringe Annie Lee’s copyright in her artworks by creating derivative works? Why or why not? How does the First Sale doctrine affect the court’s reasoning? Is this like framing?

23. LEE v. A.R.T. Co. (7th Cir. 1997) Note split in Circuits - 9th v. 7th What is the economic argument for he court’s decision?

24. NATIONAL GEOGRAPHIC V. CLASSIFIED GEOGRAPHIC Did D’s compilations amount to infringing derivative works? What if D had just purchased and sold back issues? What if D sold individual torn-out articles? How can this case be reconciled with Lee?