Category: Art

Music Modernization Act Passes Senate by Unanimous Consent

Well, at least bipartisanship still exists when it comes to protecting America’s music creators.  Late yesterday, the omnibus bill known as the Music Modernization Act passed the Senate by unanimous consent.  On Monday, the chamber initiated a hotline process, which may be implemented when a bill is presumed to be uncontroversial.  Once triggered, Senators have 24 hours to raise any objections—one objection will kick the bill back into the normal debate/vote process—after which the bill will pass unanimously.  The MMA, to be renamed the Orrin G. Hatch Music Modernization Act in honor of the Senator’s retirement and the fact that he is a songwriter, ultimately earned 81 sponsors.

The soul of the MMA is a new royalty system designed to fairly compensate songwriters and composers in the digital marketplace.  This aspect of the bill has been hailed by multiple stakeholders in both the music and digital services market as a landmark achievement in private-sector and legislative compromise.

For too long, this class of creators was subject to a royalty system initially designed in the age of player pianos, so it has hardly reflected the market realities of the digital age.  The MMA establishes a new digital licensing collective, overseen by both songwriters and digital platform owners; it creates a new blanket mechanical license to enable easier and more complete licensing; and it reshapes the manner in which rates are set in order to better conform to fair-market prices.

ASCAP Chairman of the Board, songwriter Paul Williams stated, “”Today, we made history by joining together and working for Senate passage of the Music Modernization Act, bringing us one step closer to a music licensing framework that reflects how people listen to music today.”

This digital-royalty spine of the MMA met with relatively little debate among nearly stakeholders and passed the Senate in the same form* in which it passed the House in April with a vote of 415-0.  Likewise, the AMP Act segment of the MMA, which compensates engineers, producers, and sound mixers passed without objection or modification.  The only part of the omnibus bill that did invite debate—not to mention some outlandish claims by the anti-copyright crowd—was the CLASSICS Act, which is designed to compensate owners of sound-recordings for public performance via non-interactive streaming services like Sirius XM.

Amended CLASSICS Passes and Returns to the House

It was no surprise of course that Sirius XM opposed the CLASSICS Act.  They didn’t want to pay royalties to pre-1972 artists if they could avoid it.  But some of the usual suspects in the anti-copyright crowd also sought to oppose the bill on ideological grounds, calling it a massive term extension, a land-grab by the labels, and even a “reversal of copyright doctrine.”  As usual, the librarians and archivists jumped on this bandwagon (I still don’t get these folks), claiming that, if passed, CLASSICS would create new uncertainty for their institutions.

While most of these objections were a bit overwrought—and some were just plain made up—in response to so narrowly-written a bill, CLASSICS does unquestionably highlight the hodgepodge body of law (i.e. common law and federal statute) theoretically governing sound recordings made before 1972.  Nobody disputes that it’s a mess, but some of the opponents to CLASSICS argued that the law should be overhauled entirely (a monumental task) rather than ameliorate one small aspect of the law in order to get these musical artists paid by Sirius et al right now (a far more moderate task).  Nevertheless, in response to some of the concerns about duration of terms and the interests of libraries, the Senate made a few key modifications to CLASSICS that are expected to be adopted by the House for final congressional passage of the law.

The Senate version of CLASSICS creates a specific regime for use of these sound recordings by non-commercial entities, and it establishes a “rolling basis” duration of protection of 95 years after publication.  The House version had left the status quo intact, whereby all pre-1972 sound recordings are protected by state law until 2067.  These amendments look like reasonable concessions in keeping with the spirit and intent of CLASSICS; and it seems unlikely that any objections will be raised to alter the course of the MMA toward full passage. (This does not mean, of course, that the anti-copyright crowd won’t complain. Some already have.)

Not only should the many stakeholders who worked for years on this legislation be proud of what they have accomplished—let alone in such a schismatic political climate—but the MMA is entirely consistent with the history of copyright amendment in the United States.  While anti-copyright academics and tech-industry pundits continue to insist that copyright law must be weakened in order to foster innovation and serve the public interest, the historical narrative has been quite different.  Rather than bluntly weakening the law, it has always been the case that copyright is rewritten to fit the contours of new markets—responding to but not at all stifling new technologies.

UPDATE:  Having seen the latest language of the bill, there are a few small changes, including a five-year moratorium on rate increases.  Perhaps a more detailed in a future post.

The CLASSICS Act is Not a Reversal of Copyright Doctrine

As the world mourns the passing of Aretha Franklin, we need no further discussion about the value of recording artists. The anthem of a generation, Franklin’s first hit, “Respect” was not written by her but by Otis Redding, who first recorded the song in 1965. But in 1967, Aretha made that song what it is—“owned it” as we say today—along with the work of producer Jerry Wexler, engineer Tom Dowd, and the studio musicians at Muscle Shoals Sound Studios, including King Curtis, who gave us that instantly-recognizable saxophone solo, and who was murdered in 1971.

We also need no further evidence that the somewhat arbitrary line in copyright law, which places pre-1972 sound recordings in a class separate from those made after February of that year, has little to do with the timelessness of many recorded songs. Who knows how many times Aretha’s records will be played over the coming decades via Sirius XM or Pandora or other non-interactive digital services, but is it truly unreasonable that these corporations should pay a license fee for that privilege? Is it wrong, for instance, that the heirs of engineer Tom Dowd, who passed away in 2002, receive some fraction of a royalty for his contributions to the sounds of Franklin, Coltrane, Mingus, Clapton, Charles, Rod Stewart, et al?

Some critics of the CLASSICS Act seem to think it is wrong on principle—that CLASSICS creates a royalty “windfall” that these authors never expected at the time in which they made these sound recordings. This is how copyright critic and scholar Annemarie Bridy described her antagonism toward CLASSICS via Twitter a couple weeks ago, and it is the reason she calls the bill a reversal of copyright doctrine. “My only dog in this fight is not wanting to see © created retroactively for existing works whose very existence is proof that their creators needed no copyright incentive for their creation. I see no doctrinal justification for it,” Bridy tweeted.

And I wouldn’t pick on one critic alone for her tweets except for the fact that I’m sure Bridy represents the views of many who feel likewise, despite the fact that her position—although posing as a statement of raw principle—is doctrinally unsound, historically inaccurate, just plain mean-spirited, and kinda dangerous as a rationale.

By dangerous, I mean to say that even if CLASSICS does represent a shift in legal doctrine (and I hold that it does not), why should this alone be an argument against its adoption? Doctrinal change is the reason Bridy has advanced degrees and a job at a university instead of being restricted to “women’s work.” Doctrinal change is the reason Aretha’s “Respect” became an anthem that added the essential ingredient of boogie to the civil rights movement. What exactly is wrong with doctrinal change? It’s the only way this country has ever managed to live up to the grand promises in its founding documents.

With regard to copyright law, Bridy’s premise is that because copyright’s purpose is incentive, it is therefore superfluous to establish a new copyright protection for works for which the incentive obviously existed at the time of their authorship. In my view, this is the mean-spirited part of her argument—and it is a view shared by others—which espouses a too-mercenary approach to copyright’s purpose. It is an extension of the sentiment that copyright is a “devil’s bargain” which society makes with artists in order to get them to produce what we want out of them. (And it is a sentiment I find especially unpalatable in context to artists of color.)

But in addition to this being a rather craven way to relate to any artist, it is also historically oversimple—particularly with regard to the public performance right and pre-72 sound recordings, which are technically protected by common-law copyright due to a rather muddled definition of the word “published” in the evolution of statutory copyright. (See new post by copyright historian Zvi Rosen for more details).

Suffice to say that Bridy poses an argument which, to the casual observer looks reasonable, but which the copyright expert recognizes as glossing over the complicated legal status of pre-72 sound recordings. Nobody I know disagrees that the 1972 threshold created a copyright mess, but Bridy’s opinion does little to untie that know when she conflates constitutional copyright (i.e. its foundational purpose) with statutory and common-law copyright in the service of blasting a very narrow, and very simple, amendment to the law.

A Doctrinal Shift?

As a broad rebuttal to Bridy’s premise that CLASSICS represents a dramatic shift in principles, it is neither settled legal doctrine, nor settled history, that copyright’s sole purpose is incentive. While the debate continues as to whether intellectual property rights are indeed grounded in natural rights, there is at least enough scholarship on this subject to reject Bridy’s over-reliance on the assumption that once incentive has been achieved, copyright has fulfilled its only value. (Moreover, even the incentive calculus entails a bundle of rights, enforceable over many years, and includes more than pecuniary transactions.)

But we don’t even need to get into the more theoretical aspects of intellectual property law, or debate the extent to which Lockean principles of property and labor informed the Constitution and the earliest American statutes. Because even without all that, CLASSICS is just a tiny amendment to the Copyright Act that accomplishes more or less what every amendment to copyright law has always done: respond to changes in technology.

Nearly every update to copyright law represents an effort to identify and protect the creative expressions of authors in the context of new technologies, whether these have been new means of producing and distributing works or new means of copying and potentially infringing works. And it is also worth noting that many of the limitations to copyright’s protections have also been written in response to new technologies.

So, when Bridy declares that the recording artists working before 1972 had no expectation of this royalty stream, she’s overstating what CLASSICS does by understating the obvious—that no artist working well into the 1990s likely imagined the expansion of non-interactive, digital streaming “radio” services. Yet, somehow the artists whose recordings were made after 1972—and are, therefore, receiving royalties from these services—are not the beneficiaries of a copyright “windfall” in Bridy’s view? She’s conflating a technological change in the market with an aberration in copyright history to make a case that this amounts to a doctrinal reversal.

As discussed in this post, the sound-recording right itself has almost never played much of a role between artists and their consumers. Artists like Aretha Franklin made sound recordings, consumers bought physical copies, and the radio broadcasters successfully argued against paying royalties on the (then not unreasonable) grounds that radio play sold records.

Today, digital streaming has largely replaced sales of recordings, and relatively new players like Pandora provide a radio-like experience, including thousands of pre-72 sound recordings because, like Aretha’s classics, they still kick ass. But they also earn revenue for these services, which can no longer claim that their play promotes record sales. And all CLASSICS does is insist that a portion of the revenue earned from streaming these songs goes back to the artists, supporting artists, and supporting creators who made them. That is anything but a reversal of copyright doctrine. It’s a reaffirmation of a founding principle of copyright: R-E-S-P-E-C-T.

Incoherent Copyright Ruling Should Anger Photographers

My colleague Stephen Carlisle at Nova Southeastern University already made short work of the aberration of copyright law and fair use analysis that occurred recently in the District Court for the Eastern District of Virginia. But I wanted to expand on a few elements that caught my attention. In the case Brammer v. Violent Hues Productions, LLC, the court’s deference to the defendant’s appeals to good faith and fair use resulted in an opinion that so dramatically flies in the face of legal doctrine that (as Carlisle notes) it would obliterate copyright in photography altogether.

At issue is a time-lapse photograph of Washington D.C.’s Adams Morgan neighborhood taken by Russell Brammer in 2011 and registered for copyright in 2016. Also in 2016, a cropped version of the image was used without license on a website suggesting “things to do” in Washington as ancillary promotion of the Northern Virginia Film Festival, which is organized by Violent Hues Productions.

Brammer sent a Cease & Desist letter in 2017, and Violent Hues immediately removed the image; but Brammer then sued for copyright infringement, and Violent Hues moved for summary judgment, arguing that it had made a fair use of the photograph. Before we get to that defense, though, we have to note this statement of facts from the opinion:

“Violent Hues’ owner, Fernando Mico, found the photo online. He alleges that he saw no indication that the photo was copyrighted and believed he was making use of a publicly available photograph.”

So, even prior to the court’s fair use analysis, it allows two substantial errors to be dispositive in this case. The first is overlooking the fact that an “indication” of copyright is not required. All works are automatically protected, if they were produced after January 1, 1978; and it’s hard to fathom how any judge would not know this. Hence, Mico’s assumption that a work is “publicly available” because it was found online is plainly invalid as a matter of black-letter law.

Second, even where a court might consider leniency for an unintended infringement made in good faith, then it seems this court did not consider it relevant that Fernando Mico is a professional filmmaker. Violent Hues is a production company offering “Script to Screen” services, and Mico even signed a distribution contract for his indie feature film in 2014. This is not some teenager who might be confused about the use of images in the digital age. This is a professional image-maker and copyright owner, who cannot reasonably claim to be so naive about images he “finds online.”

Transformativeness is Still a Doctrine Without Definition

The truly staggering aspects of this opinion are found in the court’s rationale for finding fair use. The fact that the interpretation of “transformativeness” here negates more than a century of copyright law related to photography should serve as compelling evidence that the doctrine remains incoherent and meddlesome at best. The opinion states:

“Here, Violent Hues’ use of the photograph was transformative in function and purpose. While Brammer’s purpose in capturing and publishing the photograph was promotional and expressive, Violent Hues’ purpose in using the photograph was informational: to provide festival attendees with information regarding the local area.” [Emphasis added]

This confluence of vagueness undermines copyright in photography at its core. By the logic of this opinion, if the makers of a pregnancy test want to make unlicensed use of Annie Leibovitz’s famous portrait of pregnant Demi Moore in a print ad, they’re free to do so because their “purpose” is different from Leibovitz’s original “purpose.”* And we could keep conjuring such examples ad infinitum. Based on this holding, any photograph may be used by any party as long as it can be argued that observers will interpret a meaning that is distinct from the photographer’s original intent.

That reasoning does not even square with the history of creative expression itself—let alone copyright law. It is widely understood in the world of art that the creator’s intent may vary considerably from the viewer’s interpretation, and neither understanding is necessarily “incorrect.” What are we to make, then, of photographs that are simultaneously expressive and informative—images that may be considered both journalism and fine art by one set of viewers, but perhaps scorned for various reasons by a different set of viewers? Unless a court is required to compare and contrast two expressive works (i.e. in a real fair use case), it has no basis for wandering into this semantic and subjective minefield.

Ordinarily, the courts are not expected to concern themselves with the metaphysics of art when straightforward, unlicensed copying of a work occurs, as it did in this case. The court contends that by placing an “expressive” work on an “informational” website, the use was “transformative,” thus tilting toward fair use. As Carlisle notes, however, the broadly-informational nature of the site itself has nothing to do with the fact that Mico selected Brammer’s photograph because it’s a “cool” image. In other words, it was chosen because of its expressive qualities, regardless of the context in which it was used.

This reasoning is supported by the fact that, as a professional image-maker, Mico can be presumed to have judged the difference between Brammer’s expressive work and a more pedestrian, informative, photo of the same neighborhood. In fact, the more expressive a work is, the less we can generally consider it to be informative, and a time-lapse photo of Adams Morgan is hardly a literal representation of the experience the visitor is likely to have (at least while sober). Then, because the photograph was chosen to promote tourism as a feature of attending the film festival, the court erred in finding the use to be non-commercial under the first factor.

Still, even if Brammer’s photo were less “cool,” (i.e. more informative), it should not matter; and the court has no legal grounds for even weighing the amount of expressiveness in this particular case. Exploitation of a copyrighted photograph — even a “pedestrian” image — without a license is an infringement. End of discussion.

Regardless of anyone’s opinion of the original work, the grounds for fair use analysis under the “transformativeness” test are a) if the user alters the original work in a way that creates a truly new expression; or b) if use of the work is essential to the functioning of a new technology or service that is itself transformative to society—and this includes the case (Vanderhye v. iParadigms) cited by the Court to support its application of “transformativeness.”

In Brammer, Violent Hues makes no claim of fair use to create a new expression, and there is nothing transformative—based on either case law or common sense—about using a photograph to boost tourist attractions while promoting an event. Since Violent Hues’s use meets neither standard, “transformativeness” should not have received much consideration, let alone a finding in the defendant’s favor.

Undermining Copyright in Photography

The real hazard in this ruling—the one that should make photographers apoplectic—is that the court contends that Brammer’s photograph is expressive but that Violent Hues made a fair use because Mico somehow used only the informative aspects of the image based on the factual nature of the subject matter. The opinion states…

“The photograph in question contained creative elements (such as lighting and shutter speed choices) but was also a factual depiction of a real-world location: the Adams Morgan neighborhood in Washington, D.C. Violent Hues’ [sic] used the photo purely for its factual content, to provide festival attendees a depiction of the Adams Morgan neighborhood.”

This metaphysical parsing of the expression from the information in Brammer’s photograph inverts 124 years of legal doctrine. Since the mid-19th century, it is well- established law that ideas and facts are not protectable while creative expressions are protectable; and this principle collided with photography near the end of the century because it was plainly understood that a camera always captures whatever “facts” are placed before the lens. Thus, the copyrightability of photographs was challenged in 1882 in Burrow-Giles v. Sarony, and affirmed by the Supreme Court in 1884.

Since then, both copyright law and our understanding of photography have evolved. And in both cases, it is sufficient that a human actor create the photograph, whether he painstakingly arranges every element in front of the lens or makes snap decisions to capture ephemeral chaos on a city street. In neither case do we apportion incremental authorship of a photo relative to the “amount of factual information” it contains. The whole work—expressive and informative together—is protected and the bundle of rights are vested in its creator. Such subtle distinctions are only made when a court must consider whether a subsequent work infringes a prior work, but that is not the circumstance in Brammer.

This may be confused with the doctrine of independent creation, which allows for the fact that two photographers are likely to capture nearly identical images of a given subject (e.g. of Niagara Falls). But this only means that Photographer A may not sue Photographer B for infringement since neither can copyright Niagara Falls itself. But apropos this particular case, both photographers would have copyrights in their individual images, and neither photo may be used to promote a Niagara Falls hotel without license.

To underscore how absurd this ruling is, if it is truly the Virginia Court’s opinion that Brammer’s “expressive” photograph is separately an “informative” photograph, then Brammer should not only appeal, but he should also sue for infringement of his right to prepare derivative works. This is preposterous, of course, because a copy of a work cannot be a “derivative” work; but somehow, by virtue of internet magic and the fog of the transformativeness doctrine, the court here sees a separate image fixed in an identical copy.  Expect this ruling to be appealed and overturned.
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* I purposely cited the Moore photograph because Leibovitz lost an important fair use case when this image was parodied by Paramount studios in 1998 for the promotion of the film Naked Gun 33 1/3. The distinction is essential to illustrate how far the idea of “transformativeness” has strayed from finding fair use that supports new forms of expression.