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Bridgeport Music, Inc. v. Dimension Films, No. 01-00412—Thomas A. Higgins, District Judge (2005).
This case involves N.W.A.'s song "100 Miles and Runnin" which has a two second sample from George Clinton Jr. and the Funkadelic's song "Get Off Your Ass and Jam". N.W.A. just took that 2 second clip, lowered the pitch and looped it on their song. Since this was done without getting consent from Bridgeport Music, Dimension Films was brought to court because N.W.A.'s song was featured on the soundtrack of one of their movies, I Got the Hook Up. Bridgeport, however, entered into two agreements with two of the owners of "100 Miles and Runnin", which granted them the license to sample so Bridgeport was originally ruled against by the U.S. district court. Bridgeport argued that "(1) that the sample was not protected by copyright law because it was not "original"; and (2) that the sample was legally insubstantial and therefore does not amount to actionable copying under copyright law." Then the case was taken to the Sixth Circuit. Here the court used the factors for exclusive rights in the Copyright Act of 1976 and ultimately ruled that Bridgeport's copyright rights had been violated.
One of the most important issues here would be that of de minimis. It is defined as something that is so small and insubstantial that it can be overlooked, which three notes seemed to be initially. The Sixth Circuit ruled that this and substantial similarity should not be factored in when ruling on a sound recording. Since there was no debate about whether or not part of "Get Off Your Ass and Jam" and was copied, which it was, the court ruled in favor of Bridgeport Music. This ruling ties heavily into the rap industry as de minimis is often relied upon by producers. While Vanilla Ice shouldn't be able to get away with using virtually the same song as another group without permission, it was often acceptable to take a small piece of another work and build off that. This ruling causes the prevention of this in many cases. Producers would not be able to borrow anything due to de minimis becoming outlawed in a sense for sound recording cases, which is where hip hop music needs it. If the law were to continually make rulings that further narrow the range for sampling, those rappers/producers without much money would be scared off because they could not borrow even the tiniest bit from another song, stifling their creativity due to a ruling against one of the conventions of their genre of music.This section of the United States Code prohibits the "unauthorized Fixation and trafficking in sound recording and music videos...without the consent of the performer or performers involved." In other words, it makes it clear that it is illegal to distribute music or music videos, online for example, without consent. According to the language used, it sounds like music videos are defined as recordings of live performances, rather than more abstract videos edited to reflect the content of the music. Elsewhere in the Copyright Code, phonorecords are defined as being separate from audiovisual works. But when music videos are available online, they become one more way for internet "pirates" to obtain a digital "phonorecord" without paying or receiving permission from the artist or copyright holder.
This is the only area where noticeable steps have been taken to stop the distribution of anime music videos. That is, stepping in on behalf of the interests of the musicians to control the distribution of their songs. Record companies are not beholden to the niche audience of anime fans, so are willing to act on the law when an infringement is brought to their attention. For the record company an entire creative work is being reproduced and transmitted in a music video; whereas for the copyright holders of a given anime, only relatively small portions of (if even the "heart" of) their works are reproduced. As they have done in various areas of internet music trafficking, music companies have the (moral or ethical) right perform the same way a domestic anime copyright holder would when faced with illegal distribution of an entire film or series. When a music video is downloaded, it is possible to detach the audio from the video and acquire the song on its own, or even just enjoy it in full as it plays over the video. Therefore using a song in a music video is closer to a clear-cut act of piracy than editing the video.
With this piece, James Johnson aims to provide guidance and an advanced starting point for general practitioners, intellectual property lawyers and entertainment attorneys on music licensing. To explain music licensing Johnson first imparts a fundamental understanding of relevant copyright law. It enumerates five exclusive rights of music copyright owners. (1) Reproduction is the right to reproduce the copyrighted work in copies or phonorecords. (2) Adaptation is the right to prepare derivative works based on the copyrighted work. (3) Distribution is the right to distribute copies or phonorecords of the copyrighted work to the public by sale, rental or lease. (4) Public performance is the right to publicly perform the copyrighted work including by means of a digital audio transmission. (5) Public display is the right to publicly show a copy of sheet music or lyrics by means of a film, TV, motion picture or on the Internet. Therefore, inherent in these rights music has two distinctive sets of copyright protection: the rights to the musical composition, and the rights to the sound recording of the musical composition. The article offers a brief history of copyright acts of 1790, 1909, and 1976 as well as the 1995 Digital Performance Right in Sound Recording Act and the DMCA. It also walks through the various licenses necessary to utilize copyright music in different mediums and formats.
The article also urges practitioners to have clients who are songwriters join a performance rights organization such as ASCAP, BMI, or SESAC. The article describes the functions of the organizations to grant licenses, collect the license fees, and pay the royalties for a particular song to the copyright owner and to the songwriter, usually on a 50/50 basis. However, many recent agreements between songwriters and music publishers are allocating a greater share of the publishing income to songwriters, up to a 75 percent. A major task for practitioners is to determine when a license is required, who has the right to grant the desired license and what type of license is appropriate. For example, a blanket license allows a radio or TV station to perform any works in the performance rights repertory during the term of the license for a specific negotiated fee. The blanket license permits a licensee to perform or broadcast a large variety of copyrighted works without worrying about illegal infringements. It also facilitates administrative record keeping, which can result in more accurate payment of license fees to the correct parties.
Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)
The rap group 2 Live Crew used a sample of Roy Orbison and William Dees' "Oh, Pretty Woman" for their track, "Pretty Woman", on their album As Clean As They Wanna Be without Orbison's permission. This led to a copyright infringement case being filed by Orbison and a ruling by the Supreme Court which has great implications for both rap and music as a whole. 2 Live Crew's defense was that their song was a parody, and as such should be seen as fair use since a parody must borrow heavily from the original artwork in order to spoof it.
The court went through the 4 factors that typically determine fair use as outlined by the Copyright Act of 1976. On the first factor (The purpose and character of the use) the court determined that since 2 Live Crew's version of the song was fairly transformative, this outweighed the commercialism that would rule against fair use. As for the second factor (the nature of the copyrighted work), the Supreme Court decided that because the song is a parody, it intrinsically borrows heavily from a public, copyrighted work, and thus does not put too much weight on this factor for determining fair use. The third factor, (the amount and substantiality of the portion of the original work used), the court decided that as a parody, it was necessary for 2 Live Crew to borrow the "heart" of the work, however they differentiated their song enough from Orbison's by changing the lyrics heavily. For the fourth factor, (the effect of the use upon the market (or potential market) for the original work), they determined that it is unlikely for this work to substitute the original, and thus would not harm Sony's market.
This case is very important to music because it was one of the earliest to set down guidelines as for sampling in music, though it was a parody. Also, at this point, these types of cases were rare for courts to see, so the legislation for ruling on them was ill-defined. It was determined that parodies can not be automatically determined by an aggregate set of laws and must be tried on a case to case basis. Since rap music often samples in ways like 2 Live Crew did, this ruling essentially let the reigns free for other artists to sample music by diminishing their fears of it not being fair use. However, this is a parody and majority of rap songs are not, meaning that they are given less leeway when it comes to fair use.
Go to this site: http://www.findlaw.com/casecode/courts/6th.html and search for Bridgeport. Click Bridgeport v.WB Music Corp.
Bridgeport Music, Inc. v. Warner Bros. Music Corp., 2004 FED App. 0233P (6th Cir.)
Bridgeport once again claims that due to sampling by Ice-T of the opening three notes of George Clinton's "Get Off Your Ass and Jam" in his song "99 Problems" on the Home Invasion album, their copyright rights had been infringed upon. A key factor that differentiates this case is that there is approval of the sampling, but Bridgeport believed it was entitled to more money than they initially received due to profit being made after the limitations period. UPIP, the label under which Ice-T recorded the song, had a mechanical license for the song and received royalties for it. This is not an issue because Bridgeport never asked for the license to be revoked, and thus could not be considered infringement. Bridgeport also targeted Ammo Dump Music and Carrumba Music, which it ultimately failed to win anything from.
This case is different from the others in that it is one that is both positive for the rap industry and for the evolution of copyright case law. Essentially, this case helped to solidify the fact that once rights are obtained to do something, such as sample music and make money off that new music, then it is hard to be taken away. Bridgeport received money to let the rights for "Get Off Your Ass and Jam" go, yet they were not satisfied with just that and attempted to glean more money off of the success of the derivative work. This case prevented them from doing so by outlining how the distribution of money and rights are once sampling is allowed. The immediate label Ice-T was part of here had 66.7% of the rights to his song while UPIP managed to acquire the other 33.3%. Bridgeport wanted that 33.3%, but was denied. This helps to further the rap industry because with its large amount of sampling, there has to be a certain amount of security in order to protect the money received from the money acquired after the rights for the sample are acquired. A label should not be able to get extra money off of a product unless it was agreed upon initially.
Grand Upright Music v. Warner Bros. Records, 02-cv-01662-RPM 780 F. Supp. 182 (S.D.N.Y. 1991)
This case involves Biz Markie's sampling of Gilbert O'Sullivan's, "Alone Again (Naturally)" for a song on Markie's album I Need A Haircut. Markie, under Warner Bros. Records, claimed that his sampling of 3 words and a small portion of O'Sullivan's song was fair use because Grand Upright Music did not have a valid copyright of the song. This turned out to be false as it was learned that Sullivan had indeed transferred the rights of the song to Grand Upright Music.
This is an important case to look at because unlike 2 Live Crew, who were told that they could not use the original work and did it anyway, Markie claimed that he sampled a song that he legitimately believed the rights were up in the air for. Also, 2 Live Crew set a precedent for the rap industry to begin using samples, whether they were approved of or not. This became part of rap music itself, and this point was argued by Markie's camp. The court did not factor this into their decision, ruling for an injunction against Warner Bros. citing that there was evidence that they tried to obtain permission for the song and was not able to, and thus had infringed on Grand Upright Music's rights. Their ruling was also rooted in the fact that the album could become commercially successful using a song that willfully infringed upon the rights of another.
Rap music as stated above hinges on the fact that sampling is part of the industry. Markie's loss in court serves as an antithesis to what happened in the 2 Live Crew case. Here, a rapper is penalized for sampling a song, even with the attempt of trying to secure the rights. Instead of rappers and producers gaining more confidence in sampling music, this case most likely drove some away. At that point, it could even be seen as the catalyst to a fall in the genre. It also sent a message that the attempt to obtain rights was not heavily valued, just whether they were attained in the end or not.
Randal Picker's article characterizes scope-of-permission goods and discusses the ramifications of allowing or limiting such goods. The article describes scope-of-permission goods as a form of private public goods, exclusion is possible but an individual's consumption of the goods does not impair another's consumption of identical goods. Therefore, the same goods are delivered with arbitrary amounts of access. In the absence of rivalry in consumption, the use of the goods does not prevent or limit another's use. Examples of these goods which are operated by granting different levels of access to individuals include satellite TV, computer software, and copyrighted works. Therefore, these markets exist due to entry barriers, pre-existing as with copyright or created by the organizations in the field as with Microsoft's development of software. Excluding individuals' opportunity for consumption through market organization, technology, or law raises the issue of whether or not barriers should be diminished to allow for greater entry.
The section of copyright focuses mainly on performing rights organizations. The article focuses on how in recent years ASCAP's blanket licenses have been reduced. Additionally, there have been measures to impose greater pricing consistency for blanket licenses and newly established sublicenses. Reducing the scope of ASCAP's permission control is theoretically designed to lower costs for licensees when they reduce the use of PROs' music. This also makes it possible for broadcasters to substitute music from another source, which can encourage competition in the provisions of music by copyright collectives.
Marshall, Wayne. "Giving Up Hip-hop's Firstborn: A Quest for the Real after the Death of Sampling" Callaloo Vol 29 (2006)
This journal article uses ?uestlove of the hip hop group, The Roots, to highlight how today's artists are dealing with copyright law. The Roots are notorious in the modern day industry because they sample very minimally due to the fact that they play their own instruments, and thus, create their own music with them. Because of this they are able to create hip hop without conforming to the traditional method of sampling in order to create beats. The traditional method is often seen by as consumers as a necessary element to create "authentic" hip hop music. While ?uestlove obviously believes real hip hop can be made other ways, he acknowledges that sampling is too common for the art to thrive under current copyright law. To show how difficult it is, he provides real examples of the costs of some samples, with the average being $8,000 each. Most hip hop artists that have not broken out yet would not be able to pay such ridiculous fees.
The most important thing about this journal is the issue of authenticity. This helps to understand why it is essential for rap artists to have samples instead of just accepting it as a given. Not only does it create a connection to the origins of the musical style, especially when it comes to vinyl records, samples also challenge the idea of musical ownership. This is to say that, hip hop is based on a belief that music ultimately does not belong to anyone, it is for the community to enjoy, and as such should be used by anyone freely. This closely coincides with pushes for the public domain to be expanded. ?uestlove also incorporates anti-copyright messages into his music in order for fans to realize the bleakness of the situation. An example is given where a DJ begins to manipulate beats but is abruptly stopped stating that showing off his talent "would cost too much".Susan A. Russell's article consists of four parts: an overview of web casting, groups and arguments involved in the web casting debate, web casting legislation, and the future of web casting. The overview in part one defines web casting as internet radio. It is considered different from over-the-air-broadcasts in that it offers more highly-themed genres. Part two divides the debating parties into two groups: those in favor of governmental regulation and those opposed. The groups seeking governmental regulation are concerned with the copying and broadcasting of illegal recordings such as the unauthorized broadcasts of live concerts and illegal downloads, which can adversely affect CD sales. These groups also defend CD prices because of the factors that go into production: recording costs, studio fees, studio musicians, sound engineers and producers, marketing and promotion costs. Due to these costs less than ten percent of all new CDs that enter the market each year are profitable. Opposing organizations such as Boycott-RIAA and CAR (Citizens Against RIAA) claim governmental regulation cannot benefit both artists and record companies. These groups claim web casting can have a beneficial promotional effect. Furthermore, they claim that overall production costs are typically deducted from the artists' royalties so CD sales primarily benefit record companies. Part four concludes the article by expressing concern for blocking the internet's ability to divest information.
Part three brings performance rights organizations into the discussion. The Digital Performance Rights in Sound Recording Act of 1995 and the Digital Millennium Copyright Act addressed the issue of digital technology and web casting since previous copyright acts could not anticipate the influential effects of these media. The 1995 act created provisions that cable and satellite audio should pay royalties through a subscription service; however, it did not address web casting. Therefore, the DMCA was faced with formulating governmental regulations during its consideration of web casting. Congress set conditions that licensees must meet in order to obtain a statutory license. First, licensees must agree to pay royalties in addition to licensing fees. Second, they must follow Congress' set limitations as to the frequency and the diversity of songs web cast. Third, web casters must employ available measures to ensure that the listener does not copy the music broadcast over the Internet. While ASCAP, BMI, and SESAC provide the standard license agreements, Congress created a new governmental organization, SoundExchange, to collect additional royalties.
Call#: Van Pelt Library ML74.7 .A94 2004
Chapter 2 "Print Music Royalties, Copyright Laws, Formats, and Terms" examines the transition of initial royalties from the sale of sheet music to the adoption of mechanical, synchronization, and performance royalties. To further illustrate the issue, the chapter presents a concise history of relevant copyright law. In the United States, musical rights were first granted copyright protection in the Copyright Act of 1831. Consequently, the original source of income for music copyright owners came from the sale of printed editions of songs. However, this simple model would change with the development of new auditory technology. Due to the development of piano rolls, the 1909 Copyright Act introduced the first law regarding mechanical right, the exclusive right to record copyrighted work. The 1909 act also helped strengthen the performance right, the exclusive right to publicly perform copyrighted works. The act established the Compulsory Mechanical License which required the payment of a 2 cent licensing fee to the copyright owner per recording. With the improvement of the phonograph and vinyl record, musical recording began selling millions. Therefore, in 1978 the Copyright Act of 1976 allowed for the negotiation of progressively higher mechanical licensing fees. In 2004 the typical rate was 8.5 cents per recording (it has risen since).
In recent years digital technology has spurred new, significant legislation: the Audio Home Recording Act of 1992, the Digital Performance Rights in Sound Recording Act of 1995, and the Digital Millennium Copyright Act of 1998. The increasingly complicated systems of music availability and distribution have contributed to the rise of performance rights organizations, licensing organizations that exist solely to collect performance royalties for copyright owners. In America, these organizations (in order of magnitude) include ASCAP founded in 1914, BMI founded in 1939, and SESAC created in 1930. These organizations are charged with the daunting task of cataloging and surveying musical broadcasts in restaurants, clubs, stores, radio, film, television, and web casts.
Kersting, Jeffrey F. "Singing a Different Tune: Was the Sixth Circuit Justified in Changing the Protection of Sound Recordings in Bridgeport Music, Inc. v. Dimension Films?" University Of Cincinnati Law Review Vol 74 (2005)
Though Bridgeport v. Dimension has been touched upon, this journal article helps to understand why sampling is outlawed and questions whether the ruling was fair. The author has a clear disapproving view of the Sixth Circuit circumventing law conventions that were already in place such as testing for substantial similarity and considering de minimis. Here, their methodology is key, and is broken up into seven parts.
The first is that the ruling only applies to sound recordings. The second is that it acknowledges that this is a completely brand new test as it found the district court's testing, using substantial similarity and de minimis, inappropriate for the case. Third, it was decreed that originality of the derivative did not matter as long as it could be proven that a copyright existed for a work that was sampled from. Fourth and fifth, all samples would be defined as digital samples and tried as such. Sixth, there is acknowledgement that the popularity of hip hop music and technological innovation has increased the amount of sampling taking place. Seventh, the court believed that this new test would be beneficial for both the courts themselves and for the music industry as a whole. The argument behind this is that they are allowing artists to duplicate sounds independently, but not in arranged way that has already been copyrighted. Their claim is that this still allows for creativity to flourish. Also, the fees for licenses will be kept in check. Last, they feel this is necessary because there is no accidental copyright infringement when it comes to samples.
The author believes that this method is flawed because it does not differentiate between different types of copyrighted works and points out loop holes that would allow de minimis and substantial similarity to be used. This would greatly help the hip hop industry in that their specific type of music would no longer be pigeon-holed. This article illuminates the fact that special case law had been created to judge a specific type of music. Even the creators of the legislation mention it. If rap artists and producers were to be judged by the standard that most copyright infringement cases were, it would help them win more cases and would be fairer.William Nye's article deals with the issue of blanket licensing by performance rights organizations. The article addresses the concern of PROs that they do not have enough control of royalty distribution because mechanical and performance compensation is separated, and the opposing view that organizations such as ASCAP, BMI, and SESCA already have too much control. The article examines the antitrust litigation pertaining to blanket licensing of music catalogues which went on for nearly 60 years. The most notable cases concerning television involved CBS and the Buffalo trial. Following the court's decision to uphold the legality of blanket licenses in the CBS trial, the Buffalo trial raised "competing away" and "public good" arguments. This article examines both positions from a purely economic standpoint. "Competing away" claims that if copyrighted music was licensed at its source, competition would lower the up-front fees for television production. PROs supported the "public good" argument which states blanket licenses allow for lower synchronization fees and encourage the use of music in television. The article examines the economic value of both arguments. While it finds some merit in both positions the author sides with "competing away" as slightly more cost effective than the "public good" model.
This article provides some insight into the complexity of the litigation by demonstrating the effort economists, attorneys, judges, and the public have put in determining the net value licensing options. The magnitude of concern regarding PROs is also verified by the fact that the entire dissertation focuses on only two of the numerous competing hypotheses surrounding the issue. While the findings of the article do not make a strong claim, it seems clear that there is room for logical debate in several of the fields of music broadcasting.
Michael Einhorn addresses the precedents, factors, and practices that led to the 2001 motion to amend the monopolistic licensing practices associated with performance rights organizations. Music licensing had grown to a billion dollar industry and two organizations, ASCAP and BMI, controlled 97 percent of American compositions in their catalogs. ASCAP generated a substantial amount of its license revenues from blanket licenses, 45 percent from television and 36 percent from radio. The decree replaced this "all or nothing" policy and allowed broadcasters more competitive substitutes to the previous blanket contracts. In past antitrust litigation, ASCAP's blanket licenses have been upheld because they were considered non-exclusive and its license fees were under the surveillance of the district court. Previous cases could only speculate as to the cost saving benefits that would derive from the injunction of blanket licensing without offering empirical support. Further weakening the argument was the fact that the markups of individual program licenses, in part because of blanket licensing, made the blanket policies seem reasonable.
The new decree is considered an improvement to save shareholders in the broadcast industry considerable amounts through competition. However, the decree also receives criticism for being too optimistic in its assessment of the health of competition in the market for performing rights organizations. ASCAP and BMI do not currently operate under administrative rules that can consistently adjust blanket license fees in response to differing uses of their catalogs. Consequently they lack the financial ability to rely on market-based competition as a means of compensation for all songwriters.
The "Music Copyright FAQ" section of the Broadcast Music Incorporated (BMI) website offers insight into both music licensing and the importance of favorable public reception for PROs. This portion of the website contains an overview of BMI's copyright ownership, the basic rights and licenses associated with music copyright, and examples when music licensing is required. The portion on mechanical rights, for example, offers illustrative anecdotes about music copyright. Such as, the music in The Big Chill soundtrack requires a master use license for the use of the original recordings as well as a mechanical license granting the right to record the musical works onto the soundtrack. However, for the soundtrack of the film The Bodyguard in which Whitney Houston sings "I Will Always Love You" by Dolly Parton, it was not necessary to obtain the master use license since Whitney created an original recording of the song. The Bodyguard still needed a synchronization license to use the song in the film, and a mechanical license to produce the song on the soundtrack.
This section also provides up-to-date information on licensing such as the fees for mechanical licensing: 9.1 cents to record songs less than 5 minutes long or 1.75 cents per minute to record songs over 5 minutes. The BMI website as with other PRO sites offers a common sense argument for music performance agreements, why businesses should accept them, and the benefit the program has for music artists. While the site offers an abundance of practical information, it presents a clear bias for performance licensing with no mention of the potential lack legitimacy of copyright exclusion or shortcomings of the business model.
McGraw, Molly. "Sound Sampling Protection and Infringement in Today's Music Industry" Berkeley Technology Law Journal Vol 4 (1988)
This journal article is quite useful because it provides a lot of background for copyright as sampling applies to it. Also, the journal article is old, allowing to help see how copyright law has changed. One key point is that originality is not a prominent factor in determining copyright infringement, but there does have to be a certain amount of "personality". At the same time though, the smaller the effort put in, the greater this "personality" becomes weighted. It also goes on to state that a sample must be a literal copy of an original sound in order be considered copyright infringement. The article references the need for substantial similarity, which is typically an important part for determining infringement. However, in Bridgeport v. Dimension, this need for substantial similarity was bypassed essentially because with all of the technology available to alter samples, it may not be fair to judge them on similarity since they may sound different, but are still stolen.
It also states "Theoretically, the question turns on whether the similarity relates to a substantial portion of the plaintiff's work, not whether the material constitutes a substantial portion of defendant's work. In the typical case, the trier of fact is instructed not to inquire into the value of the allegedly appropriated portion standing alone, but rather into its importance to the effect of the complaining song." This helps to clarify that samples were not originally looked at as stand alone pieces of importance, rather that the original piece as a whole was the most important part. This ties into rap music because while a producer might have been able to get away with taking a sample that alone anyone would think is insignificant, when it is then applied to the original song, it automatically gains more importance and would hurt the producer's chance of using it.
This case provides one of the numerous examples of antitrust litigation levied against performance rights organizations such as ASCAP and BMI. CBS contended that blanket licenses to copyrighted musical compositions at fees negotiated by PROs were an illegal form of price fixing. The District Court dismissed the complaint, but the Court of Appeals reversed and remanded the issue for consideration. The Supreme Court divided the reason for its verdict into four parts. The first part of the decision called attention to the nature of the organizations involved in the suit. CBS was a national commercial television network, and that ASCAP and BMI while they owned the copyright to almost every domestic composition, three million and one million compositions respectively, were nonprofit organizations. Another factor that weighed against CBS was that it had failed to attempt to acquire any other form of license before filing its antitrust suit. Part two focuses on the application and interpretation of the Sherman antitrust act regarding contracts, conspiracies, and combinations in restraint of trade. In this part, the court also found that the business practices of the PROs were not infringing. The third part examined the practice of blanket licensing independently, and while the practice was somewhat questionable the court determined that it was not a clear economic threat. Part four ordered the reversal of the Court of Appeals opinion.
While in this case the traditional licensing practices of PROs were upheld, the verdict did not close the door on antitrust suits against the organizations. Instead it is marked by clear ambiguity regarding the policy of blanket licensing. A recurrent theme in the courts verdict is that the specific circumstances and presentation of the case dictated the outcome of the case rather than the inherent legality of PRO business models. This prompted further litigation and challenging of PRO policy which led to the adoption of smaller piecemeal licensing agreements in addition to blanket licensing.
This section of a Communications Law website provides two articles which document the 1996 controversy when the ASCAP threatened a Girl Scout day camp for its music copyright infringing practices. The first article blasts ASCAP for the fear and discontent the threats instilled in the camp administrators and girl scouts. It depicts scenes of young campers learning to dance the Macarena in silence, and not being allowed to sing happy birthday for a six year old. The article also provides support for the legality of ASCAP's actions by listing its customary fees, and the general acceptance of its standards by the American Camping Association. The second article demonstrates ASCAP's attempt to save face after the horrific press the incident caused. ASCAP executives claimed they made a mistake in indiscriminately informing over 8000 summer camps of federal copyright law. They stated that they intended to collect fees from large, profitable summer camps, but should have done more research in compiling their mailing list. The article also commented on how ASCAP provided a valuable service for collecting monetary compensation for its musicians and songwriters.
This entry helps to illustrate the dichotomy of public opinion pertaining to performance rights organizations. On one hand, they seem to be copyright trolls that bully innocent groups of people. On the other, they seem fair, but staunch defenders of artists' welfare. While the articles primarily focus on ASCAP since it is the most prestigious PRO, the first article also mentions SESAC warning the camp that it will collect additional royalties for Bob Dylan songs. These articles highlight the importance of legitimacy for licensing organizations in general. ASCAP trades off its ability to appear as a benevolent organization. When public reaction lampoons its collection habits, it rescinds its efforts.
Unamed Author "Grey Tuesday" Tech Law Advisor February 14, 2004 - March 5, 2004
This piece highlights the battle between DJ Danger Mouse and EMI Records for the creation of The Grey Album, a musical work that samples both Jay-Z's The Black Album and The Beatles' The White Album. Capital Records, owners of The Beatles' works issued a statement before the album was released warning DJ Danger Mouse of his copyright infringement of their songs. Even though he had not officially released it, the album had time to circulate. Danger Mouse did not receive the proper permission from Capital Records and agreed to stop distribution of the album, but it had already leaked to too many sources. This caused an infamous day as the hip hop community rebelled against copyright law itself on "Grey Tuesday", where many sites would allow the album to be downloaded and distributed in order to "force reforms to copyright law that can make sampling legal."
This is a notable event because on top of it being a public outcry against copyright law and favoring hip hop sampling, it also provides a scenario where the one that created the infringing product agrees to stop his actions, but the public continues, thus making him liable for their actions. Danger Mouse was asked to identify everyone it had distributed the album to and account for all of units distributed, which is virtually impossible to do. The hip hop community clearly realizes that copyright law regarding sampling of music is hurting the art. Attacking a DJ that created an album which was clearly doing to be an underground project was the last straw. While most of the sources I have used make comments about how certain cases affect the rap industry itself, it is important to consider the fans responses to legislation. If the uproar is consistent and loud enough, then maybe a change will be made to the law.
Young, Gary. "6th Circuit Clamps Down On Sampling" The National Law Journal September 30, 2004
This article references Bridgeport v. Dimension Films, but has some particular feelings about how this law works, particularly focusing on the death of hip hop. One of the representatives for DJ Jazzy Jeff, a popular rapper in the 80s that was usually alongside Will Smith, believes that this legislation alone is enough to kill the art of hip hop. Even a member of the Recording Industry Association of America, RIAA, which one would think would support most copyright legislation believes it is a bad idea that will do more harm than good. The article also brings up a good point in that there could be retroactive liability created for people that were previously judged under the former method. In addition, another valid point is given in that licensing of samples has become so common that the problem may be overstated. Though this may be true for the recording industry as a whole, when applied specifically to hip hop, this argument holds less weight due to the fact that there is a heavy amount of unlicensed samples present on a majority of mixtapes.
This article is important to consider because it is one of the few that actually shows that there is not only a backlash from artists themselves but from prominent figures in the industry such as the RIAA. The RIAA has been notorious in the last decade for cracking down on file sharing in order to curb the loss of profits that arise when people download instead of purchase music. With the RIAA having such a firm stance on public, one could assume that they would also back one that limits artists from illegal activity, but they do not. It is also worthwhile to note that DJ Jazzy Jeff was the artist that was referenced in the article. Jazzy Jeff has been relatively dormant on the hip hop scene for quite some time. This could be because as a DJ, he is no longer allowed the amount of leeway and freedom that allowed him to create hit songs in the 80s. New legislation effectively hinders re-entry into the market for artists like DJ Jazzy Jeff.Wu, Tim. "Jay-Z Versus the Sample Troll" Slate November 16, 2006
In order to show that sampling lawsuits in rap music still exist, this article condemns Bridgeport Music for suing Jay-Z over sampling some notes from a Madonna song. This article references many of the others I have because Bridgeport has become notorious for capitalizing on the fact that they go after anyone who samples from any of the songs they own no matter how minimal and insignificant the sampling is. In fact, "Bridgeport launched nearly 500 counts of copyright infringement against more than 800 artists and labels." Bridgeport is also going after dead artists like Notorious B.I.G. and was able to recently cash in on his album Ready to Die, which is over a decade old, due to the illegal sampling that was on it. This is a direct result of hip hop booming within the last decade, which is sad because they are able to capitalize off an industry norm. This article shows the depth to which Bridgeport Music has gone in order to obtain more money, and with this many cases, is instrumental in the possible demise of rap music.
This article also brings up an interesting point of view in that, up until now I have written about Bridgeport being a money-grubbing corporation, but it could also be construed that its doing older artists justice by giving them their due off from today's popular songs. Though they might get some recognition from the lawsuits, Bridgeport ultimately keeps all of the money, so older artists don't really receive what they should. It also brings up a good point in that, thanks to Bridgeport's case against Dimension, many popular albums of the past would not be able to be created today, such as Public Enemy's, It Takes a Nation of Millions to Hold Us Back. This supports the theory that as copyright law regarding sample continues, more and more restrictions are placed on rap artists.
Songwriter Harvey Reid's article expresses his intrigue with the complexity of music licensing. A significant portion of his curiosity is aimed at the circumstances surrounding PROs including ASCAP, BMI, and SESAC. In the article Reid divides his understanding of PROs into three sections. The first relays the history of ASCAP and BMI. The second section divulges Reid's understanding of the function and methods of PRO systems. In this section he compiles a partial list for some of the uses that are exempt from performance licensing fees: religious organizations (during worship only), non-profit educational institutions, record stores and other establishments where the primary purpose of the performance is to sell the music, government bodies, state fairs and agricultural events, certain veterans and fraternal organizations during charitable social functions, various "non-commercial" and charitable performances, and movie houses.
The third section clearly conveys the tone of the article as it consists of a list of grievances and complaints of unfair practices against ASCAP. There is concern that license fees are poorly distributed as royalties to the appropriate artists. For example, it is doubtful that the fees paid by several smaller performance venues ever reach the musicians and songwriters who perform on the stage. Another concern is the arbitrary treatment of works in the public domain. For example, ASCAP has over 40 cataloged version of Beethoven's "Moonlight Sonata" and almost 80 arrangements of "Row, Row, Row Your Boat" despite the fact the songs are in the public domain. Radio stations that pay higher licensing fees are more likely to have the songs they play receive royalties because of the ASCAP surveying process. Reid also expresses concern that ASCAP is inefficient and spends too much on self-promotion and legal fees. While some of Reid's research and proposed solutions seem as shadowy as he claims ASCAP to be, the article voices the concern and frustration of many songwriters in relation to PROs.
This essay describes what an MP3 blog is, and how record labels want to capitalize on the promotion that they provide while fighting file sharing at the same time. The essay discusses the types of copyright infringement and fair use and how they apply to MP3 blogs, as well as the factors that cause the court to view MP3 blogs more favorably than peer-to-peer networks. It discusses law suits against Napster and also by the RIAA against peer-to-peer users. The article explains what establishes liability for infringing use, and the different expansions of the Copyright Act which have been brought by copyright owners in addressing new technologies. It then discusses some of these acts and gives some examples of violators. The next section explains the defense used when copyright owners bring suits, which is fair use, and it lists and describes the four factors in deciding fair use on a case by case basis.
This essay incorporates basically every aspect of my research into why copyright holders are willing to waive certain copyright in cases such as MP3 blogs, while they continue to fight against much of new technology such as peer-to-peer services. It describes what MP3 blogs are and how they are used and different sites that can link to the unauthorized music. It shows what the copyright holder needs to look for in order to bring a suit against infringing users, and also explains how the user of the work can try to use fair use as a defense.
This article is written by Cary Sherman, president of the RIAA as a response to a speech by Consumer Electronics CEO Gary Shapiro in which Shapiro stated that downloading off the Web is neither illegal nor immoral. Sherman says that statement is wrong and misleading. Shapiro says that legal downloading from record companies and legitimate online music companies is fine but there is a problem with unauthorized downloading of copyrighted material, and sites Title 17 of the United States Code. Sherman writes that the fair use argument employed by Shapiro makes falsely seem as if copyright owners are against fair use, and that the fair use claim is unsupported when it comes to unauthorized use. Sherman argues against Shapiro's claim that downloading is different from taking a tangible property by writing that both owners have been deprived of something of value. Sherman refutes Shapiro's use of the first amendment and also says that companies are in fact aggressively pursuing a more flexible business model that does take advantage of new technology. Shapiro writes that the industry using technology and the internet is beside the point and that the real issue in what Shapiro is saying is that "digital stealing isn't really stealing" and the last thing we need is more polarizing rhetoric.
For my research on why copyright holders are willing to waive copyright in some instances such as MP3 blogs because the new technology has benefits in promotion, this article is a firm example of the view from the record labels about copyright law and internet uses. It is written by the president of the RIAA, Cary Sherman and gives an argument in favor of strong copyright law, and a rebuttal to a speech by the Consumer Electronics CEO Gary Shapiro in favor of weaker copyright law. It provides the viewpoint of the music industry about downloading, but it is interesting in that it does not mention anything about record companies such as Warner who at times chose to solicit certain independent blogs and will send the bloggers music with the hope that the blog will help promote the record label's artist for free.
This is a speech given by Gary Shapiro, the President and CEO of the Consumer Electronics Association about growing tension between copyright owners and new technology. Shapiro speaks about how new reproduction technology and transmission technology has increased the fears of the music and motion picture industries. He draws parallels to new technology in the past such as the VCR, and CD and cassette recording. Today with mass availability of copies of music and movies, the content community has used congress, courts, and the media to challenge new technologies. Shapiro says that he believes that hardware and software companies have an interest in working together to see more products, and that they can misuse source protection and DVD encryption to sell more products while limiting new technologies. Shapiro says that lawsuits have shut down file -sharing services, threaten peer-to-peer networks, challegenged as illegal devices which allow consumers to skip commercials, and has subpoenaed ISPs to identify downloading subscribers. Congress has introduced legislation that will require technology to be shaped by a government-mandated copy protection system. Shapiro comments on the language used by Hollywood and the music industry using words like "piracy" and "stealing" to describe downloading. Shapiro asserts that downloading is neither illegal nor immoral. He says that downloading is not taking away a copy of the product from someone, and in some cases helps promotion. His principles for policymakers to follow ask that a very high amount of evidence be found before restricting technology.
For my research on MP3 blogs and why copyright holders are willing to waive some of their copyrights and allow the blogs to post their music this speech shows a view which is far to the fair-use and weak copyright law. It is clear support for allowing the new technologies and the internet to be created and exist, and for there to be significant evidence of a negative effect on the copyright holder before the technology is restricted. The key line by Shapiro for my project is when he submits that downloading off the Web is neither illegal nor immoral. He sites fair use as being given on a case by case basis and that in many cases of downloading the use has "been shown to be neutral or beneficial to the copyright owners, and have either been tolerated or accepted as fair use." He also discusses how downloading can even lead to further sales, when people buy the whole CD from the song he or she heard on the internet.
In this article, the Boston Globe reporter talks to several bloggers and discusses what motivates audiobloggers otherwise known as MP3 bloggers to create sites and post songs. In these blogs, the author finds a song he or she wants to share, and posts it online as an MP3 file along with a commentary or review about the song so that readers can learn about the band and download and listen to the song if they choose. Bloggers will do this for free, as one blogger says "Selfishly, I get validation that people like my music taste... But I want people to find new music that they love." The music industry tends to leave blogs alone because they promote artists for free and are capable of creating "buzz" for an unknown artists and quickly establishing them among a loyal fan base. Litigation is expensive and MP3 blogs are small-scale and some labels have begun supplying blogs with music so there have not been many confrontations between record labels and bloggers. Some bloggers receive "cease and desist" letters from labels and although a code of conduct has not been written, there is a concept of ethical audioblogging. Songs are removed after being posted for typically around one or two weeks, no more than two tracks are posted from each album, and links to sites where readers can buy the albums are provided.
For my research on why copyright owners are willing to waive some of their copyright when it comes to MP3 blogs, this is a useful article in seeing a little bit of the motivation for both bloggers and record labels to coexist. It provides some commentary by the bloggers themselves as to why they put work into blogs and what makes it important for them to exist. It also discusses blog ethics which are part of the reason labels are not against MP3 blogs, and looks at one blogger's idea for a possible future move for the labels which could start their own blogs in order to promote their back catalogues. That provides an interesting comparison between a legal MP3 blog created by a label and an illegal MP3 blog which may have more credibility among the blogging community.
This is a copy of the lawsuit Universal filed against MySpace on November 17, 2006, in the United States District Court of Central California. In the suit, Universal claims that MySpace is guilty of copyright infringement. Universal claims that the songs and music videos shown on MySpace are done so illegally and without permission from copyright holders. Universal uses Jay-Z as an example in their case against MySpace, saying that songs from his new CD, "Kingdom Come", are available on MySpace even though, at the time the suit was filed, the record had not been released. Universal says that MySpace is well aware of the copyright laws that it is breaking and continues to support the "user-stolen"content distributed on the site. They also say that MySpace knows that they don't have a liscense from the copyright holders of the songs and videos it distributes. The proof, says Universal, lies in the agreement each MySpace user makes with the site that gives MySpace control over what can be done with the content. Universal says that MySpace knows that these are not the real copyright holders, and yet continues to show infringing content without permission.
This case is extremely relevant to the YouTube copyright discussion. First off, it could convince MySpace and other similar sites to follow YouTube's lead and strike revenue sharing deals with major studios. The YouTube business model would then be seen as a blue print for similar companies, and this in turn would help shield YouTube and other sites from future lawsuits. However, this case could end up hurting YouTube. Universal claims that since MySpace edits and posts much of the content on the site, they are knowingly infringing upon the copyrights of the videos and songs available on their site. Although YouTube's users do much of the posting and editing, YouTube itself still edits user content. If the courts buy Universal's arguments, YouTube could be in grave danger of future lawsuits.
Peter Fader of Wharton called the agreement between Warner Studios and YouTube, which allows Warner music videos to be played on YouTube in return for a portion of the ad revenue, the "single biggest business development deal in the history of digital media". Internet mogul and Dallas Mavericks owner Mark Cuban, on the other hand, believes that YouTube will ultimately have the same fate as Napster and be crushed by copyright lawsuits. The real answer may lie somewhere in the middle.
The article mediates a debate between naysayers, such as Cuban, and optimists, like Fader, over what the fate of YouTube will be. Cuban states that YouTube is "in the same boat as Napster". He argues that although YouTube may do a lot of good things for copyright holders, such as the promotional benefits, it will not be enough to make every single copyright holder happy. Cuban notes that it would only take one successful lawsuit against YouTube to bankrupt the company. Fader, on the other hand, suggests that the Warner deal could lay the groundwork for future deals between YouTube and other major Hollywood studios. His prediction seems to be right on the money. Since this article was published, YouTube has made agreements with CBS, the NHL, NBC, and most notably, Universal Studios, which had previously been YouTube's most outspoken critic.
Also discussed is the significance of the agreement between Warner and YouTube. Fader notes that this agreement represents a sort of paradign shift, mentioning that Warner took a completely opposite stance when it was fighting Napster in court. Also, the agreement sets a trend for other companies to follow suit. This prediction by Fader was also proven true with the new YouTube agreements mentioned earlier. Fader also predicts that these deals will allow YouTube to "call the shots" in the video industry, much the same way Google runs the search industry.
The debate in this article is the fundamental issue regarding YouTube and its legitimacy. It is important for YouTube to secure protection from copyright lawsuits, and they seem to be doing that with recent agreements and their willingness to takedown copyrighted material. However, Cuban's view does hold true that one lawsuit could cripple the company, and that lawsuit could be Tur v. YouTube. The ruling of this case and others like it may ultimately determine YouTube's future.
Cox describes the deal struck between Warner and YouTube. Warner agreed to post its entire catalog of music videos on the site, while YouTube agreed to share any ad revenues gained from these videos, as well as the "65,000 daily submissions which incorporate Warner music." The CEO of Warner is quoted in this article as saying basically that technology is changing and that Warner needs to adapt to these changes. The article also brings up some of YouTube's arguments on why their business model is legal, while Napster's was not. YouTube's founders argue that, unlike Napster, the site knows exactly what material is being posted and that they are willing to take down any material that infringes upon copyright. The article also notes that YouTube is a great place to publicize videos, TV shows, songs, and other forms of entertainment. Cox points to the example of "Lazy Sunday", a Saturday Night Live skit that became immensely popular because of YouTube and led to a resurgence in Saturday Night Live's ratings.
One of the interesting things about this article is that, although it was only written about two months ago, it is already very outdated. It talks about the problems companies encounter when suing YouTube, noting that the company doesn't really have millions in capital to sue for. That is no longer the case after Google's $1.6 billion aquisition of YouTube. It also quotes a Universal representative as saying that YouTube infringes on copyright and is an illegal site. This is no longer Universal's position, being that they, like Warner, recently reached a revenue sharing agreement with YouTube. This article demonstrates how quickly YouTube is moving in its attempts to be seen as a legitimate, legal business.