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.

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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…]

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