Category: Copyright

What does Public Knowledge have against the CLASSICS of music?

On April 25, a pretty extraordinary thing happened. Especially in a time of staggering political dysfunction, it was pretty impressive to see the House of Representatives pass an omnibus bill overhauling copyright law for music in the digital market with a vote of 415-0. Now headed to the Senate, the bill, known generally as the Music Modernization Act (MMA), combines three major pieces of legislation that have been in development for several years—the MMA, the CLASSICS Act, and the AMP Act.

In very simple terms, the legislation achieves the following results: 1) better and more accurate payments by digital service providers (e.g. Spotify) to songwriters (MMA); 2) federal protection for certain digital public performances of pre-1972 sound recordings (CLASSICS); and 3) compensation for engineers, mixers, or producers where they contribute to co-authorship of sound recordings (AMP). The entire package represents unprecedented examples of compromise between the digital service providers (DSPs) and the music industry; and in simple terms again, what the DSPs get out of the deal is an easier licensing regime and a new blanket liability protection that will put an end to the types of class-action lawsuits that Spotify faced for streaming unlicensed songs.

As the entire bill moves to the Senate, certain critics like Public Knowledge are now targeting the CLASSICS Act as “bad law,” recommending the Senate “consider” it separately from the rest of the omnibus bill passed by the House. Of course, if PK thinks CLASSICS is “bad law,” then I assume we can read “consider” to mean “kill,” which is certainly the assumption made by David Lowery in this post on The Trichordist. “Now it appears that through the use of proxies and two-faced lobbying DiMA [Digital Media Association] is trying to abrogate the entire compromise by stripping out the Pre-1972 and producer/mixer protections,” Lowery writes.

For an organization that claims to be a public advocate, Public Knowledge demonstrates remarkable consistency in advocating copyright policy most favorable to the business interests of internet service providers; and their objection to the CLASSICS Act is just the latest example. I’ll address a few specifics in a subsequent post, but the bottom line for the average consumer is this: having the digital service companies pay license fees to stream pre-1972 recordings will not in any way negatively affect the quality of our music-streaming experiences. I mean you don’t walk into a coffee bar with its comfy couches, free WiFi, and friendly service and say, “Wait a minute! They sell fair-trade coffee in this place?? I’m outta here.”

What the CLASSICS Act Addresses

Sound recordings were added as a category of works protected by federal copyright law on February 15, 1972. But for reasons nobody is quite sure about, recordings fixed prior to that date were exempted from the federal statute and left to the protection of common law copyright in each state. At the time, all copyrights and works were still subject to the 1909 Act until the new federal law, the 1976 Act, went into effect for works created after January 1, 1978. And although sound recordings were a protected category, the radio broadcasters successfully lobbied against licensing for “public performance” of sound recordings on the then not-unreasonable claim that radio broadcast played a substantial role in record sales.

Later, with advances in digital and subscription services, a 1995 amendment added copyright protection (§106(6) of the statute) for “public performance of sound recordings by means of digital transmission.” But this still did not apply to recordings made before February 15, 1972. Fast forward to the current market, when digital streaming now owns a huge portion of the “radio” market and obliterates the need for record sales for a growing number of consumers, and this leaves performance licensing as almost the only source of revenue for sound recordings. Meanwhile, more than a few great sound recordings were made before 1972 that consumers are going to stream millions of times. So, the CLASSICS Act creates a means by which the performing artists who made those recordings can share in the new market.

Why Does Public Knowledge Care?

If streaming services have to pay royalties for these sound recordings, that’s as it should be; and if it has no bearing on consumers (in fact, it is more likely to improve our listening experience), why is Public Knowledge even piping up on the issue? It’s tempting to say that organizations like this just plain hate copyright and will, therefore, assail any proposal that strengthens the position of any rights holder. Or one might conclude, as Lowery does, that PK is acting as an industry-funded proxy to save the streaming services money by trying to kill this bill in the Senate.

Still, PK and other critics have presented a few law & policy arguments, and I’ll look at those in my next post on this topic. As a prelude, let me say for now that pre-72 recordings is an oddball in copyright law, allowing critics to cite a lot of draconian-sounding theory, even fogging the discussion by alluding to Edison’s 1877 sound recordings as remaining in a theoretical state of perpetual copyright. In practical terms, the CLASSICS Act is simply about compensating the artists (most likely active from the 1950s-1970s) who made the sound recordings you and I listen to all the time. And in legal terms, the bill actually appears to solve some of the problems Public Knowledge cites in its objections. But that’s for the next post.

The CASE Act: The Big Value of Small Returns

by Lisa Shaftel & John Schmelzer
Shaftel & Schmelzer, Advocates & Consultants for Visual Artists

Representative Hakeem Jeffries introduced the Copyright Alternative in Small-Claims Enforcement Act of 2017 (the “CASE Act”) H.R. 3945 in October 2017. The CASE Act was created in response to the Copyright Office Study Report on Remedies for Copyright Small Claims released September 2013. The CASE Act establishes a “small-value copyright court” within the Copyright Office so that copyright owners can pursue infringement cases where damages are too low for cost-effective litigation in federal court. Visual creators’ organizations have been asking for this recourse for creators’ lost income for well over ten years.

There are many businesses large and small that have been built on the model of not paying for the images they use. Licensing images—certainly for commercial reproduction and display—is a standard and customary business practice for creators and users of images. It is the cost of doing business, as well as a legal obligation for the user.

Using images without permission and without paying a licensing fee to copyright owners is simply stealing. It’s no different than stealing paper or lumber or a truck. These businesses have been able to get away with not paying for the images they use because they know that copyright owners cannot afford to file an infringement lawsuit in federal court for lower-value licensing fees and actual damages.

Authors and creators trying to earn a living from their work suffer death by a thousand cuts with no practical legal recourse to stop the bleeding. Image theft has devalued our creative product to the extreme. The thought process has become; Why pay for something that can be stolen without recourse? The internet is populated with stolen images that drive traffic to commercial sites, but image creators reap no financial benefit from those who drive the traffic or those who sell the goods or services. More traditional businesses observe this trend and take advantage of the infringing activities believing they too can steal without recourse. Some websites and businesses, such as the online “corkboard,” have based their entire business model on unauthorized use of copyrighted works.

The CASE Act creates a simplified and less costly alternate dispute resolution process for creators and copyright owners to recover the licensing fees owed them by businesses that have already made unauthorized use of their photos, illustrations and graphics. The ADR process will provide the means for authors and creators to get injunctive relief from an offensive unauthorized use of their work as well. It also serves notice to the business community that there will be a low cost legal opportunity for authors and creators to enforce their ownership and copyrights, and underscores the value of creative works. Unless the value of assigned original images is reestablished, an entire industry that has already been crippled by image theft will disappear completely in the United States.

In 2012, England and Wales established a Small Claims Track for low-value copyright infringement cases. It’s working. It motivates settlements between the parties, and most claims don’t proceed to the hearing. The CASE Act would do the same in the U.S.

Businesses and their trade associations that object to the establishment of a small-value copyright tribunal fear that their business model of ripping off visual creators won’t be viable anymore. These organizations oppose the bill because they want to protect the member businesses and people who steal copyrighted works. The CASE Act doesn’t change copyright law, nor does it change our court system. The CASE Act would level the playing field by enabling authors and creators to enforce their copyrights without being required to hire an attorney and file a lawsuit in federal court that would cost more than the damages they’ve suffered. The only reason to oppose the CASE Act would be because the users do not want to pay the author/creator for the unauthorized use of their creative work.

If you’re worried about what Facebook did with your data, you should see what they do with your pictures.

Lisa Shaftel is a scenic artist, graphic artist and illustrator who has been working on creating a small-value copyright claims court system with the US Copyright Office for over 12 years. John P. Schmelzer is an illustrator and cartoonist.

Shaftel & Schmelzer is a consulting firm established in 2016 with a mission to promote and protect the economic and professional interests of visual artists through advocacy and education.

Hi resolution and low resolution versions of John P. Schmelzer’s cartoon are available for both print and online use.

Blurred Lines in More Ways Than One – Part III

As mentioned in Part II, I didn’t expect to write several posts about this litigation, but it turns out that “Blurred Lines” (Williams v. Gaye) raises several copyright issues—doctrinal, cultural, and historical—worthy of consideration and not easily condensed into a single article. In the first post, I alluded to an editorial written in 2015 by scholars Lateef Mtima and Sean O’Connor supporting the outcome in Williams from a historical perspective, asserting that traditional means of registering works and identifying infringement disfavored artists of color.

Citing this OpEd drew some criticism from a few readers, particularly musicians, who noted that people of color comprised two-thirds of the authors of “Blurred Lines” and that the Mtima/O’Connor opinion seems to be a matter of looking for a problem that doesn’t exist, comparable to often-overwrought and ahistorical complaints about “cultural appropriation.” But discussions about cultural cross-pollination in art are largely separate from the issues these scholars are raising about copyright law. Still, for context, we must  acknowledge that a vast amount of American popular music in the 20th century—jazz, blues, rock, funk, soul, R&B, rap, etc.—is more deeply rooted in African-American traditions than Euro-American traditions.

The amicus brief Mtima and O’Connor wrote with colleague Steven D. Jamar was submitted to the Ninth Circuit in 2016 on behalf of the Institute for Intellectual Property and Social Justice. It argues for affirming the jury’s verdict in Williams, concurring in part and dissenting in part with regard to the evidence admitted at trial. Although the jury arrived at the opinion favored by the brief’s authors, the reasons why Gaye’s sound recording was not admitted as evidence points to the fact that “Got To Give It Up” is among thousands of musical works that happen to fall within an abstruse window in copyright history that, the authors argue, especially disfavored artists of color. For concision I’ll refer to the amicus brief as the IPSJ Brief, which states …

“For reasons not fully known and not linked to any further change in the statute, at some point (in the 1930s we believe) the Copyright Office began requiring written notation deposits, before again allowing deposits of phonorecordings for musical compositions beginning in the 1980s, and again not linked to statutory changes.”

Like many artists who did not receive formal training, least of all in European staff notation, Marvin Gaye composed by getting the music that was inside him to come out through the instruments and the players and then record the finished sounds in the studio. Many composers—regardless of race or culture—work this way today, of course, and their sound recordings are both valid for copyright registration and as evidence in a prospective infringement litigation.

But Gaye’s 1977 hit was subject to the 1909 Copyright Act, and it predated the apparently inscrutable shift in USCO policy that finally allowed sound recordings as registration deposit copies in the 1980s. Although the IPSJ Brief cannot fully explain a rationale for the fifty-year period when only written-notation scores were accepted for deposit (e.g. the statute did not mandate this), the brief’s authors do allude to lingering, judicial ambiguity stemming from White-Smith v. Apollo, which held in 1908 that piano rolls were not copies of compositions because they were not readable by humans.

Had that ruling gone the other way, it might have set a precedent for accepting sound recordings as deposit copies much earlier in the 20th century. And although SCOTUS held that sound recordings are, constitutionally, “writings” in Goldstein v. California in 1973, there is apparently no clear explanation as to why the Copyright Office did not amend its deposit requirements for musical works for nearly another decade.

As a matter of social justice, and in the service of demanding that copyright must empower the broadest diversity of authors, the IPSJ Brief asserts that the seemingly arbitrary emphasis on written notation between the 1930s and the 1980s was especially harmful to artists of color, who composed almost exclusively in aural traditions. Certainly, it is hard to miss the fact that this period encompasses the span of time when certain styles of black music sneaked into the mainstream via white artists beginning in the 1950s and slowly gained wider acceptance as black music by black artists through the 1960s and 70s.

Partly because written-notation scores were required as registration deposit copies, composers like Gaye relied on other parties to transpose their sound recordings into musical notation. This practice led to two recurring problems, according to the IPSJ Brief: 1) the scores did not always adequately represent the compositions; and 2) unscrupulous managers, label owners, et al sometimes exploited the opportunity to falsely assert co-authorship of the compositions. The brief states …

“The Copyright Office should have accepted phonorecordings as registration deposits throughout the entire period in which the 1909 Act was in effect. Neither Gaye nor other composers should today be penalized by restricting evidence of their compositions to a stripped-down lead sheet deposit created to comply with an extra-statutory administrative practice, especially where that deposit does not match the work composed by the author in the studio.”

In the “Blurred Lines” case, the jury was not allowed to compare the two sound recordings but was allowed to consider the “lead sheets” and expert testimony by musicologists. As the IPSJ Brief explains, lead sheets are somewhat rudimentary versions of musical scores that are generally of use only to professional musicians, who can interpolate what’s not on the page and play the song (by ear or from memory) the way the composer meant for it to be played. To get an idea of the difference, I’ll borrow a reference cited in the Brief and direct you to the musicnotes.com page for “Got To Give It Up,” where you can play a computer’s interpretation of the score and decide how much those lifeless and literal beeps and bloops sound like the Marvin Gaye song you know.

The IPSJ Brief asserts that only the sound recording correctly represents the originality (ergo the protectable aspects) in Marvin Gaye’s composition—and that the same is true for thousands of compositions made by artists, who worked in aural traditions rather than standard notation during the roughly half-century at issue. Thus, the brief’s authors support the evidence presented by the Gayes’ musicologists, asserting that these experts correctly identified the protectable elements in the work, giving the jury fact-based reason to find infringement. Nevertheless, the authors remain critical of the fact that the sound recording of “Got To Give It Up” was not admitted into evidence.

The IPSJ Brief also argues that the outcome in Williams does not, as many fear, “copyright musical style.” To the contrary, the authors assert that the lines separating “style” (idea) from “originality” (expression) have instead been too often drawn incorrectly due to bias tilting toward certain musical traditions. In practical terms, this means that a composer like Gaye can arrange a dozen unprotectable ideas in a manner that is uniquely expressive, and this can only be analyzed in context to his studio-based process rather than on paper alone.

Whether or not one agrees with this analysis—or with the jury in Williams—Mtima, O’Connor, and Jamar offer an intriguing discussion about copyright history and practice during one of the most prolific, experimental, and culture-shattering periods in Western music. As much as it would be absurd to overlook American musicians of color between the 1930s and 1980s, it seems likewise inappropriate to ignore this aspect of the “Blurred Lines” case rather than to view it in tandem with the subjects of infringement doctrine, case law, and circuit court splits that this litigation has inspired other scholars to address.