Public Performance and Ringtones

As if to demonstrate why the general public continues to question the validity of all copyright claims in music, ASCAP recently provided us with one of the stupidest and greediest copyright cases in the recent past. (opinion at www.eff.org). After being sued in relationship to the reasonableness of its blanket licenses (related to its antitrust exemption), ASCAP argued that when someone's cell phone rings with a musical ringtone, the ring is a public performance of the composition and therefore the phone companies owe licensing fees for each call. The Electronic Freedom Foundation, who filed an amicus brief in the case, noted that: “Under this reasoning from ASCAP, it would be a copyright violation for you to play your car radio with the window down!" While I am not sure it is quite this bad, the arguments advanced by ASCAP do require a great deal of legal gymanstics in order to work.While the law of copyright...
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Public Performance

What is a performance license?One of the exclusive rights of composers of songs is to control the right to publicly perform the song publicly. Of course with the way that the music industry has developed, it is not practical in most cases to go to the composer each time a radio station or concert hall wants to play a song for their customers. Coming to the rescue (Debatable, but that's another post) are the folks at ASCAP, BMI, and SEASAC (and a few others). These organizations, commonly referred to as Performing Rights Organizations (“PROs”), have entered into agreements with thousands of composers and music publishers for the right to represent them and to license their music to radio stations and venues. While technically everyone involved (DJ, sponsor, and venue) can be held to jointly infringe a copyright, in practice the venue and promoter is most often the one that is expected to have obtained a license for music performed.What is...
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Bratz Revisted

In the continuing case of the Bratz doll, the Ninth Circuit recently ruled in the case of Art Attacks Ink, LLC v. MGA Ent'mt. Inc. While the case dealt with several issues, of interest to me is the portion of the ruling dealing with whether Art Attacks had proved adequate access to their character that they sold at fairs and on their website.In the opinion, the court went out of its way to note technical weaknesses of the website as evidence of the small likelihood that there has been any access to the designs. In particular, the court noted that it "took a full two minutes" for the website to fully load; and that the website did not use meta tags that contained the words "Spoiled Brats." The court then drew the conclusion that:A website with such limitations could not have widely disseminated the copyrighted Spoiled Brats material.It is not clear from the opinion how this...
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Music Publishing Administrator

I recently had the opportunity to consider whether a US artist with airplay in Europe would be better served to find a publisher or to simply hire an agency to administer his rights overseas. While it is hard for any self-reliant musician to pay an extra percentage for doing something that they do themselves in the US, not considering such an arrangement might be leaving money on the table.These agencies can provide independent musicians and small publishers with instant international reach, which includes their bookkeeping expertise, use of sub-publishers in other countries, administrative services to register the copyrights and to affiliate with performing rights groups, and options related to their services in shopping the music for other uses.What to look forWhen considering these groups, I recommend that you ask them about the following:Do they have experience with your type of music? (Yes)Will they register the copyright in the songs on your behalf? (Yes)Will they handle the administration of...
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Work for Hire

One issue that people often overlook when drafting agreements involving creative works is the copyright concept of “work for hire.” Failing to come to a clear understanding of the parties intention can cause unnecessary conflict that neither party really benefits from.What is Work for HireSimply put, work for hire addresses issues of copyright ownership when the work has been created for the benefit of someone other than the creator. Typically, the owner of a copyrighted work is the person who creates it, however, if a work is deemed to be a Work for Hire then ownership belongs to the hiring party. Work for hire situations occur in two basic ways; 1. works created by employees and 2. works created by independent contractors.Federal law states that Works Made for Hire is:(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for...
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Forum Selection in Creative Commons Licenses

Users of Creative Common's licenses beware!Chang v. Virgin Mobile USA, LLC 2009 WL 111570 (N.D.Tex. January 16, 2009)Texas plaintiffs posted a photo to a popular picture sharing website using a Creative Commons licenses. The photo was then down loaded by an Australian company who used the photo inconsistent with the Creative Commons 2.o license and Plaintiff's wishes. Plaintiff sued Defendant in a Texas court and Defendant moved to dismiss for lack of jurisdiction. While many factors were considered, of particular note is how to court pointed out that the license did not require the license to take place in Texas.In fact, the Creative Commons license used specifically does not contain either a forum selection clause or a choice of law clause that would outline where cases should be heard and under what state law a dispute will be analyzed. T he Creative Commons FAQ specifically notes that the selection of jurisdiction in the...
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An Oldy But Goody: Copyright & Fireworks

The following is from a response I made to a listserv (remember those?) over ten years ago. I got to thinking about the subject again yesterday after The Colbert Report made a reference to a fireworks display I worked on a long time ago. From: Kenneth L. Kunkle XXXXXXXXXXXXXXXXXXXXXXXXXX Date: Tue, 06 Oct 1998 22:59:52 -0500 I regret that I have not been looking at the list for a few days, as this is a topic I may be able to shed some light on. For background, prior to entering law school I was employed by a firework display firm with my primary responsibility being in the area of... you guessed it... choreography and design of large scale displays set to music (referred to as pyromusicals). It was standard for all of our work to be submitted to the copyright office for registration and to my knowledge they were always accepted. There is a great deal of work that goes into choreographed displays, timing colors,...
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Copyright Basics

Every once and a while it is good to go back to basics.What is a copyright?A copyright is a set of rights (often referred to as a "bundle of rights") afforded to the owner of original works. Under federal law these rights include the right to reproduce the work, prepare derivatives of the original, and the right to perform the work publicly. By controlling these rights the owner may receive income from licenses in the form of royalties or directly from the sale of these rights.How do I get a copyright?Under current U.S. law all that is required to get a copyright is that the original work be "fixed" in a "tangible form." For example, if you are a writer, once the words appear on the page (or on computer disk) you have a copyright. There are no registration requirements to obtain the copyright, however, in order to enforce the copyright the work must be registered with the Copyright Office...
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Poor Man’s Copyright

A frequent comment I hear when talking with musicians is that they think mailing a copy of their music to themselves will work just like a copyright registration, but cheaper. This is sometimes known as a "Poor Man's copyright." While this might (and I use the term loosely" be helpful from an evidence standpoint, it doesn't really help with who created it and it will likely run into all kinds of evidentiary problems. Writers are much better off going ahead and filling out the copyright application. By filing a registration you set yourself up to collect attorney's fees and potentially higher damages if you have to file a lawsuit. By the way, in order to even get into a court on a claim of copyright infringement you have to file a registration, but if you wait to long to register you may lose out on some forms of damages.The better advice is to always put together a...
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