Copyright Office Requests Comments on Eliminating Compulsary License for Cable Providers

In April the Copyright Office published a notice in the Federal Register seeking comments related to a proposed change to the current method that cable and satellite providers license broadcast television from stations (e.g., local network affiliates).  Currently, three sections of the Copyright Act provide a compulsory (statutory) license for these broadcasts, meaning that negotiations are not required, the content is simply licensed automatically and  the cable or satellite provider simply pays a predetermined fee.  These sections are contained in  Section 111, 119 and 122 of the Copyright Act and must be periodically renewed by Congress.

The Copyright Office is requesting comments on eliminating these licenses, making them permanent, and alternative licensing arrangements.   Three specific proposals have been put forward as alternatives:  1) Sublicensing the transmissions – shifting responsibility for payment of copyright holders to the original broadcast providers as a part of their original broadcast license; 2) Private licensing – requiring the satellite and cable providers to seek individual licenses from each copyright owner; and 3)  Collective licensing – converting the system to something akin to the current system used for music performance copyrights (BMI. ASCAP, SEASAC, etc).

The complete text of the notice can be found at

Copyright Office Calendar

April 29, 2011 April 29, 2011: Copyright Office website and online registration unavailable from 5:00 p.m. through May 2, 2011, at 6:00 a.m. Eastern Time.
May 1, 2011 Effective date of final rule on deposit accounts
May 11, 2011 Due date for notices of participation in public meeting on technical aspects of mandatory deposit of published electronic works available only online
May 23, 2011 Due date for affidavits stating that a television station qualifies as a specialty station
May 24, 2011 Public meeting on technical aspects of mandatory deposit of published electronic works available only online
May 25, 2011 Due date for reply comments on marketplace solutions to statutory licensing
June 2, 2011 Roundtable on copyright protection for pre-1972 sound recordings
June 10, 2011 Hearing on marketplace solutions to statutory licensing

Copyright Office Extends Deadline for Reply Comments in Inquiry on Pre-1972 Sound Recordings

From the Library of Congress NewNet

Issue 412 – February 18, 2011
The Copyright Office is extending the deadline for filing reply comments in response to its Notice of Inquiry requesting public input on the desirability and means of bringing sound recordings fixed before February 15, 1972, under federal jurisdiction. Reply comments must be received in the Office of the General Counsel of the Copyright Office no later than April 13, 2011, and should be submitted through the Copyright Office website at Initial comments (including one comment that was received late and that was only recently posted) are available for review on the Copyright Office website at For more information, go to the Office’s website at

I am NOT a Gleek – Glee on Copyright

First off, I am not a “Gleek”; however after watching a recent episode with my family, I got to thinking about what a great illustration about copyright law that the show and the production of the show provides.

The first issue that came to mind was – beside the producers of Glee, who is making money off the music?  Under US copyright law, royalties for music generally fall into three categories: (1) For reproductions (CD, downloading), (2) Grand Performance Rights (commonly known as sync rights), and (3) performance rights (radio play). There are other categories but rest assured sure I doubt that copies of “Glee for ukulele” sheet music is making ton of money.

So let’s use a hypothetical, let’s say I have a band and we record and make popular a new song written solely by our bassist. The bassist is the sole copyright holder. Under our recording agreement, all the band members get a percentage of all sales of their recording of the song. However under copyright law, the bassist / songwriter also received a mechanical royalty (disregarding controlled compositions clauses) and is paid for every time it plays on the radio.

Now let’s suppose we work hard and promote ourselves, and the song gains just enough popularity that the folks at Glee decide that they want their precocious group of oppressed teenage songbirds to break into song (and coincidentally mimic the exact style of the original recording) – Glee will pay the songwriter/bassist a synchronization fee (for putting it into a TV show)[not everyone jumps at the chance, BTW], and mechanical fees for including it on a cast recordings. Additionally, the Performing Rights Organizations (ASCAP, BMI, etc)will collect royalties for the songwriter/bassist for every time the cast recording is played on the radio. The drummer, lead singer, and guitarist get zilch.

So as sales dry-up for the original recording, our songwriting bassist gets paid over and over again while the band’s hard-working drummer is left out in the cold with only the comfort that the Cast of Glee are themselves complaining that they aren’t getting paid enough in royalties for their recording of the very same song.

More “Glee on Copyright” to come.

SPNN Workshop: Copyright Myths

When: Sat, March 5, 1pm – 3pm

Where: SPNN – 375 Jackson Street, Suite 250 Saint Paul, Minnesota 55101

Description: What is a copyright and how does it affect you as a video producer? Kenneth Kunkle of Kunkle Law Office will go over common questions creative people may have concerning copyright issues. Kenneth is a Minnesota lawyer and a graduate of Hamline University School of Law. Kenneth has been providing legal services to the Twin Cities business community, and focuses on issues affecting the technology, graphic and fine arts, and entertainment (music, film, and publishing) industries.

Cost: $25 for current members, $40 for non-members, $15 fimited income.

Call (651) 224-5153 for more information.

New Copyright Rules on Registering Photo Databases

In a nod to the reality that most photographers have gone digital and use databases to store anWomen with media photosd display their work,  the Library of Congress (where the Copyright office is) recently announced an interim rule concerning registration of databases of photographs and group registration of published photographs (previously electronic group registration was limited for unpublished photos).  In summary, the Copyright Office noted in the the Federal Register:

    The Copyright Office is adopting interim regulations governing the electronic submission of applications for registration of automated databases that predominantly consist of photographs, and applications for group registration of published photographs. This interim rule establishes a testing period and pilot program during which the Copyright Office will assess the desirability and feasibility of permanently allowing such applications to be submitted through the Copyright Office’s electronic filing system (‘‘eCO’’). Persons wishing to submit electronic applications to register copyrights of such photographic databases or of groups of published photographs should contact the Visual Arts Division for permission and guidance on electronic registration.

    Notwithstanding the ordinary deposit requirements for group registration of automated databases, an electronic application for group registration of an automated database that consists predominantly of photographic authorship must include the image of each claimed photograph in the database. The interim regulations also allow applicants to use forms other than Form TX, as appropriate, when submitting paper applications to register group automated databases.

While most registrations are simple and easy to complete, this new registration method will greatly enhance the ability of photographers to easily and economically secure and enforce their intellectual property rights.  Previously, electronic registration of published works were limited to combined works (in which the series of photos constituted a single work – think calenders, photo books, etc); however, this new rule provides greater flexibility by allowing photographers to register entire databases of photographs as individual works by extending the registration of databases to include the individual component photographs.  Full text of the notice can be found at 76 FR 4072.

Gray Market Goods in Legal Gray Area

In what is perhaps a fitting end to the only copyright case before the Supreme Court during this term, the Court sitting without Justice Kagen issued its first split decision of the term – leaving the issue of “gray-market” goods in a gray area.

    ‘Gray-market’ goods, or ‘parallel imports,’ are genuine products possessing a brand name protected by a trademark or copyright. They are typically manufactured abroad, and purchased and imported into the United States by third parties, thereby bypassing the authorized U.S. distribution channels.” Parfums Givenchy, Inc. v. Drug Emporium, Inc., 38 F.3d 477

The case centered on Costco’s sale of imported watches manufactured in other countries.  The watches manufacturer alleged that the unauthorized sale of the watches constituted a violation of their rights to control importation under 17 USC 602(a).   Costco’s defense rested on the “first sale doctrine” The case centered on Costco’s sale of imported watches manufactured in other countries.  The watches manufacturer alleged that the unauthorized sale of the watches constituted a violation of their rights to control importation under 17 USC 602(a).   Costco’s defense rested on the “first sale doctrine” 17 USC 109(a)which holds that while a copyright holder may control the first sale of their copyright protected work, the subsequent sale of the item cannot be controlled.   Omega, however, argued that the first sale doctrine only applies to the goods manufactured in the United States and that since the watches were made outside the country, their subsequent purchase by Costco from a company that did not have authorization to import them to the United States does not provide Costco with a defense of copyright infringement based on the first sale doctrine.

As the Court was split, the lower courts opinion holding that the first sale doctrine does not apply to foreign manufactured goods remains in place and is considered the controlling law for the Ninth Circuit.

Tattoo Copyrights

Tattoo Copyrights

Can I Copyright my Tattoo?

A while back someone asked me about writing a blog post on copyright law and tattoos. After thinking about it, I realized that the issue is one that provides a great opportunity to illustrate (no pun intended) some core concepts about copyright law that are often misunderstood by the general public and sometimes by creatives.

At issue is who owns the copyright in that tat on your forearm. After all, a tattoo is really no different than other creative work and as long as it is an “original work of authorship” (Most likely) and “fixed in a tangible form” (most defiantly), US law states that the subject matter is subject to copyright protection. A person who originally creates something generally has the exclusive right to control how that “expression” is used by others – they can give it away, sell it, or just prevent anyone else from using it. Tats are no different. When a tattoo artist does a design, whether directly on flesh or inked on a stencil, that creative work is his to control. The fact that it is a work being put onto the body of the customer is really no different than a wedding photographer’s right to control prints of a wedding, a musician controlling copies her composition, or a fine artist preventing prints being made of their work.


The same holds true for the stencils and “flash.” Flash is the process of putting a design on paper and tattoo designers committing their work to paper, which is then used by tattoo artist to ink the design. Over the years, the creation of “flash” has become an industry in itself, with designers being able to get their designs out to far more people than they could personally ink, by providing the designs to other tattoo shops.

Which leads me to language I found in a licensing agreement for a tattoo flash website “You may not . . .Remove the (c) from any design.” At least on its face, meaning that even when the design is inked, the © must appear. We hope they wont be this literal.

Now where can go out and get that tattoo on my backside “© my mama 1967” ?

Updated: 5/18/2017

8th Circuit Adopts Fair Housing Council CDA Analysis.

When Cozy Kitten Cattery spotted what it felt was defamatory comments concerning their business on it raised their hackles and the fur started flying.  After a series of complaints were filed in state and federal courts, the district court dismissed the complaint against InMotion after raising, Sue Sponte (on its own), the issue of whether 47 U.S.C. 230 of the Communications Decency Act shielded InMotion as the ISP which hosted the offending website. (on its own), the issue of whether 47 U.S.C. 230 of the Communications Decency Act shielded InMotion as the ISP which hosted the offending website.

Noting that the case was the first opportunity for the 8th Circuit Court of Appeals to hear a case involving Section 230, the court adopted the reasoning of of the 9th Circuit that it interpreted as holding that CDA immunity did not apply to websites that are designed to encourage or facilitate defamatory, or other wrongful speech, however, CDA immunity does apply to voluntary information and speech created by third parties and not required by the website ISP.  Citing, Fair Housing Council of San Fernando Valley v., LLC, 521 F.3d 1157, (9th Cir. 2008).     Most commentators have noted that the tension that the reasoning of Fair Housing Council creates by not allowing absolute immunity to ISP’s is that courts must weigh when affirmative actions in facilitating comments crosses the line into becoming an active participant, rather than merely a conduit.

The CDA was initially drafted in response to a series of court cases which began placing liability on ISP if they took on the role of a publisher through editing and affirmative management of comments.  Recognizing that it was bad policy to hold ISPs liable because the elected to try and take steps to mitigate harm, Congress enacted the CDA (which was largely thrown out in subsequent challenges – with section 230 surviving) to provide ISP with a means of managing content without assuming liability. Fair Housing Council recognized the intent of of Congress, while recognizing that the lines between conduit  and speaker is sometimes blurred.  While retaining the CDA’s intent to protect ISPs and allow them to exercise control over speech that occurs on their watch, Fair Housing Council strips websites attempting to hide behind it when they take an active roll in shaping the speech in the first place.


Ringtone Copyright Royalty Rates

“Answer the phone, answer the phone” – that’s what my cell phone screams in the voice of my daughter whenever someone tries to reach me. I recorded it a while back and it amuses me and everyone around me every time it plays. What happens, however, when you record someone else’s creative work as your ring tone?

Under US copyright law, users of compositions must pay copyright owners when recording a composition. When the recording party and the copyright owner do not negotiate a license, Section 115 of the Copyright Act provides that the Copyright Royalty Board can establish a predefined rate which allows the recording party to record the composition without the explicit permission of the owner of the composition’s copyright. In traditional recording settings, this is often refereed to as a mechanical.

In the recent decision DC Circuit decision Recording Indus. Assn. of Am. v. Library of Cong., No. 09-1075 ruled that the Copyright Royalty Board’s decision that royalties paid for use of compositions as ring-tones should be be paid as 24 cents per recording (penny-rate) rather than as percentage of the wholesale rate (the RIAA argued the rate should be 15% of the whole rate charged). The court affirmed the reasoning of the Copyright board who found that “that a single penny-rate structure is best applied to ringtones as well as physical phonorecords and digital permanent downloads” because of “the efficiency of administration gained from a single structure when spread over the much larger number of musical works reproduced.”

The basic reasoning – which I agree with – was that a flat penny rate is the fairest and simplest method of compensating individual songwriters. This is usually true for most creatives. Keeping licensing of copyright and trademarks as simple as possible reduces disputes over the method of calculations.