The Digital Music Performance Royalty Apocalypse: Fakler Speaking at SXSW Music Conference

SXSW2014I will be giving a presentation titled “The Digital Music Performance Royalty Apocalypse” at the SXSW Music Conference next Wednesday, March 12, at 2pm.   The title does not imply that my speaking at the conference is, itself, a sign of the coming apocalypse.  Rather, I will be discussing the history, current state of affairs, and hot topics looming in the next year, relating to the various copyright license fees paid by digital music streaming services.  Topics will include the upcoming Webcasting IV Copyright Royalty Board proceeding, the “problem” of pre-1972 sound recordings, and the recent attempts by some of the major music publishers to selectively withdraw their catalogs from the ASCAP and BMI repertories for certain digital music service licensees only.

More info here:


The Oscar Selfie: Why Copyright Analysis Should Be Left To Copyright Lawyers

oscar_selfie_twitterGood grief.  There are thousands of interesting copyright issues, and trust me, “who owns the copyright in the Oscar selfie?” is not one of them.  I mean, who really cares?  Is it going to matter, ever?  But there has been so much awful “analysis” by non-copyright lawyers holding themselves out as copyright experts that I cannot help myself.  BTW, Mr. or Ms. “entertainment lawyer,” you are not a copyright lawyer.  In fact, I am not even sure you are a lawyer.

In any event, here is the deal:  It is quite possible that nobody owns a copyright in this photo because nobody contributed sufficient original photographic authorship.  Contrary to what you may have read elsewhere, the fact that Ellen had the brilliant idea to take the photo does not make her an author.  Ideas are not copyrightable.  The arrangement, position, lighting, etc. (elements that often comprise authorship in a protected photograph), from everything I have read, appear to have been spontaneous and undirected.  This is typically the case with a selfie.  If anyone could possibly own a copyright in this photograph it would be the person who selected the framing and angle of the photo and actually took the shot, which I understand was Bradley Cooper.  Looking at the photograph above, however, it seems like a stretch (assuming as I do that nobody made creative decisions as to where to place each celebrity, how to light the scene, etc.) that Bradley contributed sufficient original and creative authorship merely by making sure as many celebrities as possible were in the frame and quickly hitting the snapshot button to engender copyright protection.

Of course I recognize that even a minimal spark of creative authorship is sufficient to engender copyright ownership, and I am not saying that on a given day a particular court might not find that there is a copyright.  But if that were to happen, the only possible owner of the copyright would be Bradley Cooper.  It is not a thorny question.   Perhaps the most silly “analysis” I have seen so far has been the suggestion that because Ellen had the idea to take the photo and asked Bradley to take the picture, she owns the copyright as a work for hire.  Anyone with even a passing familiarity with the actual copyright law would know this is a non-starter.  Given that Bradley Cooper is not an employee of Ellen acting within the scope of his employment, the only way that the photograph could be owned by Ellen as a work made for hire would be if (1) the photograph were one of the expressly enumerated types of works listed in Section 101’s definition of a work made for hire and (2) Bradley were specially commissioned pursuant to a written agreement signed by both Ellen and him, expressly specifying that the photograph would be a work for hire.  Any work for hire claim with respect to the Oscar selfie would fail on both counts.  First, photographs are not among the types of works that can possibly be a work for hire when created by a non-employee (unless they are commissioned as contributions to collective works, which is not the case here).  Second, as far as I have read, there was no written work for hire agreement.  Contrary to some of the “analysis” floating around out there, there is no “industry custom” or “he’s an actor” exception to these statutory requirements.

Nor does a celebrity have any copyright ownership in their physical appearance as embodied in a photograph (although they may well have a right of publicity, but that is another matter entirely), so there is no way that any of the subjects in the photograph would have any claim to copyright.  I should note, however, that this photograph was taken within the jurisdiction of the Ninth Circuit.  Given the bizarre recent Garcia decision, which recognized an actor’s independent copyright interest in their performance embodied in a motion picture, perhaps all bets are off.  (Please note that my tongue is held firmly in cheek on this one, even if correct the Garcia decision could not reasonably be extended to recognizing an actor’s copyright in their physical experience embodied in a photograph).

Ninth Circuit Rules Acting Performance Independently Copyrightable and Not Part of Joint Work

Copyright SymbolIn what appears to be an appellate case of first impression, the Ninth Circuit has issued a remarkable decision in which the majority holds that an individual actor’s performance of a minor role in a motion picture is independently copyrightable, is not part of a work of joint authorship as embodied in the motion picture, and therefore the performance or distribution of the motion picture without the actor’s permission infringes the actor’s copyright, in the absence of a license.

This case involved the now-infamous Innocence of Muslims film, which offended a large segment of the Islamic community and led to riots and protests overseas.  According to the facts as set forth in the decision, the Plaintiff, Cindy Lee Garcia, was hired by an amateur film-maker to play a minor role in what he described as an action film titled Desert Warrior.  She was only given the four pages of the script in which her character appeared, and worked three and a half days on the set.  That footage was eventually used in an anti-Islamic film titled Innocence of Muslims, in which at least some of Ms. Garcia’s lines were dubbed over so that she appeared to ask whether Mohammed was a child molester.  When the film was aired on Egyptian television and uploaded onto YouTube, protests ensued and fatwas were issued, including one calling for the death of Ms. Garcia.

You might well ask what this all has to do with copyright law.  The answer lies in the DMCA. [Read more…]

ASCAP Court Rules for Pandora: Music Publishers Cannot Partially Withdraw Songs From ASCAP Catalog for Only Certain Users

Judge using his gavel In a major victory for Pandora (and all other digital music services), the ASCAP Rate Court has ruled this evening that ASCAP’s recent changes to its governing rules, which purported to allow music publisher members to selectively withdraw their catalogs from the ASCAP repertory for certain digital music services while keeping the songs in the repertory for other licensees (such as broadcasters, bars and restaurants), violated the ASCAP consent decree and therefore any purported withdrawals were ineffective.

This whole mess started a couple of years ago.  After a series of losses in the ASCAP and BMI Rate Courts (in cases where ASCAP and BMI sought outrageously high royalty rates and were rebuffed by the Courts), various ASCAP members wanted to find a way out from the scrutiny provided by the Rate Courts.  [Read more…]

Second Circuit Vacates Google Books Class Certification

Judge using his gavelThe Second Circuit has vacated the district court’s class certification ruling in the Google Books case (Authors Guild v. Google), holding that Judge Chin must rule on Google’s fair use defense before considering class certification.  The panel, comprising Judges Leval, Cabranes and Parker, noted that Google’s objections to class certification “may carry some force,” but ruled that the fair use defense should be resolved first, and that such resolution “will necessarily inform and perhaps moot [the Second Circuit’s] analysis of many class certification issues.” [Read more…]