Class 18 Copyright, Spring, 2007 Remixing: Characters and Music: Class 18 Copyright, Spring, 2007 Remixing: Characters and Music Randal C. Picker
Leffmann Professor of Commercial Law
The Law School
The University of Chicago
773.702.0864/r-picker@uchicago.edu
Copyright © 2005-07 Randal C. Picker. All Rights Reserved.
Two Poems/One Picture: Two Poems/One Picture A Poem
Never have I seen a lad so sad
Orphaned early, he saved us all
Pursued forever, rest ever fleeting
Oh for the future, oh for the past
Till peace comes to you perhaps at last
Copyright? In what?
Two Poems/One Picture: Two Poems/One Picture Perry Hotter
Never have I seen a lad so sad, Perry Hotter
Orphaned early, he saved us all, Perry Hotter
Pursued forever, rest ever fleeting, Perry Hotter
Oh for the future, oh for the past, Perry Hotter
Till peace comes to you perhaps at last, Perry Hotter
Copyright? In what?
Two Poems/One Picture: Two Poems/One Picture
Fixation: Fixation Question
I understand how to fix a text
I understand for to fix a drawing
How do I fix a character?
Owning Characters: Owning Characters Nichols (2nd Cir. 1930) (Learned Hand)
The Specificity Test
“It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”
Hand’s Characters: Hand’s Characters Malvolio
Protected but not a “vain and foppish steward who became amorous of his mistress”
Sparknotes on Malvolio
“The straitlaced steward—or head servant—in the household of Lady Olivia. Malvolio is very efficient but also very self-righteous, and he has a poor opinion of drinking, singing, and fun. His priggishness and haughty attitude earn him the enmity of Sir Toby, Sir Andrew, and Maria, who play a cruel trick on him, making him believe that Olivia is in love with him. In his fantasies about marrying his mistress, he reveals a powerful ambition to rise above his social class.”
Warner Brothers (9th Cir. 1954): Warner Brothers (9th Cir. 1954) Core Facts
Hammett authors The Maltese Falcon (TMF)
It is published in serial form by Pro-Distributors Corporation (PDC)
PDC copyrights TMF
PDC assigns the copyright in TMF to Knopf
Warner Brothers: Warner Brothers Hammett and Knopf enter into contract with Warner Bros.
Knopf does limited assignment of certain aspects of copyright to Warner Bros.
Warner sues CBS for copyright infringement when Hammett contracts with CBS regarding the use of the character Sam Spade
9th Circuit Analysis: 9th Circuit Analysis Contract
Characters not specifically referenced
Authors routinely use characters again, especially detective stories (Sherlock Holmes)
Interpret contract against sophisticated party like Warner Bros.
9th Circuit Analysis: 9th Circuit Analysis Copyright
“It is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by copyright.”
9th Circuit Analysis: 9th Circuit Analysis “We conclude that even if the owners assigned their complete rights in the copyright to the Falcon, such assignment did not prevent the author from using the characters therein, in other stories. The characters were vehicles for the story told, and the vehicles did not go with the sale of the story.”
101: Publication: 101: Publication “Publication” is
the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.
101: Publication: 101: Publication A public performance or display of a work does not of itself constitute publication.
Before 1976/After 1976: Before 1976/After 1976 Before 1976
Publication key act in copyright
Prior to publication, works protected by state law
After publication, works protected by federal copyright law
Before 1976/After 1976: Before 1976/After 1976 After 1976
Fixation is the key event in copyright
Publication matters for some items but much, much less important
Warner Bros. Again: Warner Bros. Again Prior to Publication
Hammett has state law rights in The Maltese Falcon as story and whatever rights attached in characters, such as Sam Spade
After Publication
PDC and then Knopf have copyright in TMF
Warner Bros. Again: Warner Bros. Again As to characters, 9th Circuit holds not copyrightable
This means
Not that characters enter public domain, but that characters remain outside of federal copyright and inside the state law system for protecting works
Hammett retains control over characters
Warner Bros. Now: Warner Bros. Now Copyright arises on fixation of TMF and in the characters if copyrightable
Anderson v. Stallone: Anderson v. Stallone Core Facts
Sly Stallone is Rocky: plays the character in three movies, authors the script for each one
May 82: Discusses potential plot for Rocky IV in public
June 82: Anderson sees Rocky III, authors script for potential Rocky IV, using characters from movies
Anderson v. Stallone: Anderson v. Stallone Anderson has some sort of contact with people high up at MGM
Stallone makes Rocky IV
Anderson sues for copyright infringement of his script
103(a)’s Penalty Regime: 103(a)’s Penalty Regime (a)
The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
Key Questions: Key Questions Does Stallone have a separately protectable interest in the Rocky character?
What lines separates the protectable from the unprotectable?
Is this different from our regime for famous trademarks?
Gaiman v. McFarlane: Text v. Pictures: Gaiman v. McFarlane: Text v. Pictures 360 F.3d 655 (7th Cir. 2004)
Core Facts
McFarlane invites four writers to help create scripts for issue of Spawn
Not does as work made for hire
Gaiman text creates three new “characters” illustrated by McFarlane
Are the characters copyrightable?
[Spawn]: [Spawn]
Spawn No. 9: Spawn No. 9
Count Cogliostro: Count Cogliostro
Medieval Spawn: Medieval Spawn
The Test in McFarlane?: The Test in McFarlane? Says the Court
“Although Gaiman’s verbal description of Cogliostro may well have been of a stock character, once he was drawn and named and given speech he became sufficiently distinctive to be copyrightable.”
Text vs. Pictures?
101: Phonorecords: 101: Phonorecords “Phonorecords” are
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.
101: Sound recordings: 101: Sound recordings “Sound recordings” are works
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.
102. Subject matter of copyright: In general: 102. Subject matter of copyright: In general (a)
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:
102 (Cont.): 102 (Cont.) (1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
106. Exclusive rights in copyrighted works: 106. Exclusive rights in copyrighted works 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:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
106 (Cont.): 106 (Cont.) (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;
(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;
106 (Cont.): 106 (Cont.) (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
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Sec. 114: Scope of Exclusive Right in Sound Recordings: Sec. 114: Scope of Exclusive Right in Sound Recordings (a)
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).
Playing Music: Playing Music Hypo
You write and record on a CD a new song, “The Copyright Blues”
WXRT, a Chicago FM radio station, buys the CD at Tower Records
WXRT plays the CD on the air
Copyright issues?
Answer: Answer Separate Works
The musical work
The sound recording
Act
WXRT has publicly performed the musical work and the sound recording
Answer: Answer Rights: Sound Recordings
Owners of copyrights in sound recordings have limited control over public performance of sound recordings
Under 106(6), only as to public performances by means of a “digital audio transmission”
No general public performance rights for sound recordings under 106(4); see also 114(a)
Answer: Answer Rights: Musical Work
Owner of copyright in musical work has full control over public performance rights under 106(4)
Absent consent, playing CD over-the-air violates public performance rights
ASCAP and BMI license these rights
Making Music: Making Music Hypo
You write a new song, “The Copyright Blues”
I buy the sheet music for the song and record it and distribute CDs of my sound recording
Copyright issues?
Answer: Answer Derivative Works Again
My sound recording will be a derivative work of the sheet music (sound recordings are specifically referenced in the derivative works definition)
You have the exclusive right to control derivative works under Sec. 106(2), unless something else calls off that right
Any call offs? Yes: Sec. 115
History of Sec. 115: History of Sec. 115 Piano Roll Monopolies!
Remember White-Smith (U.S., 1908): Piano rolls weren’t copies of sheet music; read by machines, not people
New 1909 Copyright Act overturns this, giving music composer the right to control “mechanical” reproductions, meaning piano rolls and phonographs
History of Sec. 115: History of Sec. 115 Aeolian Co., leader in player piano market, had contracted for mechanical recording rights in anticipation of legislation
1909 Act got around that in creating a compulsory license tied to first voluntary licensing
For more discussion, see Goldstein, Copyright’s Highway 51-53
Sec. 115: The Compulsory License for Covers: Sec. 115: The Compulsory License for Covers 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.
Sec. 115(a): Availability and Scope: Sec. 115(a): Availability and Scope (1)
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.
115(a) (Cont.): 115(a) (Cont.) A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery.
Limits on Cover Changes: Limits on Cover Changes 115(a)(2)
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.
Royalty Scheme: Royalty Scheme Elaborate; see 115(c)
Making Music: Making Music Hypo
You write and record a new song, “The Copyright Blues”
I buy the sheet music for the song and record my version of it and distribute CDs of my sound recording
Copyright issues?
Answer: Answer First Mover Advantage
Sec. 115 allows the second mover to distribute his/her “copy” of the musical work, once the owner of the copyright in musical work has allowed one distribution of a phonorecord of the work
Described as “mechanical licensing”
Answer: Answer Sound Recording Issues
Have I copied your sound recording?
114: 114 (b)
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.
114: 114 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.
114: 114 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.
Internet Radio/Webcasting: Internet Radio/Webcasting Hypo
I buy CDs
I broadcast them over the Internet, just like an over-the-air radio station
Any change in the analysis?
Answer: Answer Yes
Musical work analysis: Same
Sound recording
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
Answer: Answer Sec. 115 Has Elaborate Compulsory License for this Case
Entry Barriers
Disadvantages web entry relative to over-the-air radio
Over-the-air radio need not pay for use of sound recordings, just the musical compositions
Web radio pays for both
[SC: Grey Tuesday]: [SC: Grey Tuesday]
[SC: BannedMusic]: [SC: BannedMusic]
Remixes: Newton and Bridgeport: Remixes: Newton and Bridgeport Newton: Once Damned or Twice-Damned?
To sample music, do you need to license both the sound recording and the musical composition or can you just license the sound recording?
Bridgeport
To sample music, do you need to license both the sound recording and the musical composition or can you just license the composition?
Remixes: Newton v. Diamond: Remixes: Newton v. Diamond Core Facts
1978: Newton composes Choir
1988: Newton records Choir and licenses all rights in sound recording to ECM for $5000
1992: Beastie Boys get license from ECM to sample Choir, produce Pass the Mic
Newton sues for copyright infringement of his musical composition
Newton’s Composition: Newton’s Composition
The Music : The Music
The Newton-ECM License: The Newton-ECM License 1)
[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.
The Newton-ECM License: The Newton-ECM License 3)
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.
The ECM-Beastie Boys License: The ECM-Beastie Boys License [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”);
The ECM-Beasties Boys License: The ECM-Beasties Boys License 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.
Analysis: Analysis Understanding the Contracts
Presumption against fragmentation of rights?
Double marginalization concerns
Doing Copyright
Originality
Infringement: If you copy and no one can tell, have you infringed?
Separating the sound recording and the musical composition
Understanding the De Minimis Exception: Understanding the De Minimis Exception Framing This:
Just another version of fair use?
Ties infringement to recognition of the work: if unrecognized by average viewer, no infringement?
A prudential rule for controlling judicial dockets: “the law does not concern itself with trifles”?
Remixes: Bridgeport v. Dimension Films: Remixes: Bridgeport v. Dimension Films Core Facts
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
A new song, 100 Miles and Runnin, is created, in part, though sampling Get Off
Remixes: Bridgeport v. Dimension Films: Remixes: Bridgeport v. Dimension Films Bridgeport licenses the use of the musical composition, Westbound doesn’t license use of the sound recording
District Court
No reasonable juror would recognize the source of the sample without having been told of its source
The Central Question: The Central Question How does Sec. 114 apply to music sampling of a sound recording?