Tag: copyright

The Right to Digital Public Performance

The Six Rights of Copyright – Part VI: The Right to Digital Public Performance

 

The Bundle of Rights That Make Up Copyright

 

The digital public performance right is the sixth and final part in our series on what makes a Copyright. The prior five rights reviewed are linked below. To refresh, the six parts of copyright are:

We’re individually exploring each of these rights to get behind the opaque curtain of copyright. An understanding of each right and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution. First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.). Second, these are exclusive rights. The law allows the copyright holder only to exercise these rights.

VI: The Right to Digital Public Performance of Sound Recordings

 

The right to digital public performance of sound recordings is an extension of the traditional right to public performance. Copyright holders have the exclusive right to publicly perform their sound recordings–a particular recording of a musical composition (e.g. master recording, masters)–via digital transmission (e.g. internet, satellite radio). The older right to public performance specifically excludes sound recordings. This right is limited because it does not cover analog transmissions such as traditional radio or television.

Why the Right to Digital Public Performance?

 

Digital Public Performance - Webcasting
Digital Public Performance: Webcasting

Congress created this copyright protection (DPRSRA legislation) because of advances in technology. High quality digital copies of sound recordings became easy and cheap to make in the 1990’s. Suddenly, people could readily profit from this practice and artists had little legal recourse. The digital public performance right creates a partial solution for this gap in copyright law. Groups that want to legally play sound recordings via digital transmission (think Spotify and Pandora) now must pay for that right. It was perfectly legal to not pay prior to this legal update. An organization called Sound Exchange currently administers the licensing of sound recordings.

There is a three-tier system that sets the licensing fee for sound recordings. The first tier doesn’t require certain broadcasters to pay any licensing fees. The second tier requires broadcasters to pay a “statutory” licensing fee set by the Copyright Board. The third tier requires broadcasters to negotiate the licensing fee directly with the copyright holders. Much of the highly publicized dispute over fees for sound recordings is about this second tier payment structure. Artists, broadcasters, and other interested groups vehemently disagree about the correct licensing fee amount and how to calculate that fee.

Limitations on the Right to Public Display

 

The most important limitation on copyright protection for sound recordings is that it only covers digital transmission. It’s business as usual for analog broadcasters in radio and television. The details of the digital public performance right also has many more nuances. It’s a fair complaint by sound recording copyright holders that they’re treated unfairly when compared to musical composition copyright holders. It’s also safe to say that no one (artists, broadcasters, and copyright holders) is actually satisfied with this copyright protection.

Ari Good, JD LLM, is a Miami entertainment lawyer and aspiring musician himself who represents DJs, live musicians, fashion models, and other entertainers in copyright, licensing, and contract matters.

Contact us toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com.

Image by Doug Symington

The Six Rights of Copyright – Part V: The Right to Public Display

The Six Rights of Copyright – Part V: The Right to Public Display

 

Public Display and the Bundle of Rights That Make Up Copyright 

 

This is the fifth part in our series on what makes a Copyright, the right to public display.  The prior four rights reviewed are linked below for you to get up to speed.  To refresh, the six parts of copyright are:

To try to get behind the curtain of copyright, we’re individually exploring each of these six rights.  An understanding of each and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution.  First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.).  Second, these are exclusive rights.  The law allows only the copyright holder to exercise these rights.

V: The Right to Publicly Display the Work

 

Copyright owners have the exclusive right to display or permit others to display the copyrighted work publicly. The public display right is similar to the public performance right, except that it is applicable to public “display” rather than a performance.  This right applies to musical works (the lyrics, composition, and arrangement), but not to sound recordings (a particular version of a musical work).

The Right to Public Display Protects what People can See

 

Right to Public Display
Sheet music on public display

A public display of copyrighted means to show a visual copy of the work to others.  This covers individual images (stills) from a film, reproductions of paintings and drawings, sheet music from a musical works, or photos from other performance pieces.  Public display can occur directly or indirectly through the use of film, slides, or television.  It’s important to bear in mind what is a pubic display vs. a private display.  In general, it’s a private display if you’re showing a work to a small circle of family and friends.  It’s a public display when the showing goes beyond that small circle of family and friends.  See the prior article on the right to public performance for more detail.  A museum exhibit, a television show, or transmission vis the internet are good examples of public displays.

Limitations on the Right to Public Display

 

An important limitation on the right to public display covers the situation when a person buys a lawfully made copy of the copyrighted work. Under this scenario, the owner of the copy can display it directly (e.g. the buyer of a copy of a DaVinci painting can display in their office).  The owner can also display it indirectly, but only one image at a time (e.g. the buyer of a music video cannot display the entire video, only a still).

The ubiquitous Fair Use exception to copyright protection can come into play for the public display right, too.  Other limitations to the right of public display are out there, but are beyond the scope of this article.

            – Ari Good, Esq.

Ari Good, JD LLM, is an experienced Miami entertainment lawyer and aspiring musician himself who represents DJs, live musicians, fashion models, and other entertainers in copyright, licensing, and contract matters.  For a free and confidential consultation to discuss your legal rights, contact Ari of Good Attorneys at Law, P.A., in Miami-Dade County at (239) 216-4106 or toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com.  Visit goodattorneysatlaw.com  for more information.

Image by Josh Gross

Bieber and Usher Not Feeling the Love over $10 Million Copyright Lawsuit

The Music Pitch

Songwriters Devin Copeland and Mareio Overton have filed a $10 million copyright lawsuit against Justin Bieber and Usher over their hit single, “Somebody to Love.”  This sordid ditty begins back in 2008 when Copeland and Overton claim they first recorded the song for Copeland’s album, “My Story II,” and registered the copyright.  Music scouts Sangreel Media, in a conference call with Copeland, then pitched their copyrighted music to Jonetta Patton, Usher’s mother.  This presentation led to Patton telling Copeland that Usher wanted Copeland to re-record the album and tour with him.  But Copeland never from Patton again and Sangreel Media never returned the copies of his music.

The Copyright Infringement

Bieber copyright infringement
Bieber and the Law

Fast forward to 2010 and when Overton first heard Justin Bieber’s version of the song on the radio.  Overton contacted Copeland believing their song had been “clearly copied.”  Their copyright lawsuit claims that Usher and other songwriters directly copied “Somebody to Love” and tried to pass if off as their own.  This occurred after Patton never followed up on her offer for Copeland to tour with Usher and Sangreel Media never returned copies of his music.  Usher uploaded the demo track to YouTube by February 2010, but did not use it for his album.  He instead offered it Bieber, a YouTube sensation at the time working on his first full-length album.  The lawsuit alleges Bieber agreed to record the infringing version of “Somebody to Love” and Usher provided the background vocals.  The song was an immediate hit and Usher went on to release a remix with him singing lead and Bieber performing backup.

“Somebody to Love,” ultimately, helped propel Bieber up the charts.  He performed it at the 2010 MTV Music Video Awards, the Today Show, and other television appearances.  It also became a backbone for Bieber’s “Believe” tour.

The Lawsuit

Copeland and Overton ‘believe’ many similarities exist between their version and Bieber’s according to the lawsuit.  This includes opening lyrics that are nearly identical and the same beat pattern.  They claim that that Bieber’s copyright infringing song has been exploited through the sale of albums and singles, but also through the sale of sheet music and live concert performances.

Their lawsuit demands $10 million in compensation from Bieber, Usher, Usher’s mother, and others.  They also want punitive damages on top of the $10 million because of the heinous nature of the copyright infringement.  Copeland and Overton have stated that they are not willing to settle the lawsuit unless it’s proven in court that they are owed less, too.

A big payday awaits if Copeland and Overton can prove their copyright infringement claims in court.  The lawsuit also shows the importance of songwriters and composers registering the copyright to your music.

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

Image by Mt. T in DC

The Six Rights of Copyright – Part IV: The Right to Publicly Perform

The Right to Publicly Perform is the fourth part in our series on what makes a Copyright.  The prior three rights reviewed are linked below for you to get up to speed.  To refresh, the six parts of copyright are:

  • The right to reproduce the copyrighted work
  • The right to prepare derivative works based upon the work
  • The right to distribute copies of the work to the public
  • The right to publicly perform the copyrighted work
  • The right to publicly display the copyrighted work
  • (sound recording only) The right to digitally transmit to publicly perform the copyrighted work

To try to get behind the curtain of copyright, we’re individually exploring each of these six rights.  An understanding of each and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution.  First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.).  Second, these are exclusive rights.  The law allows only the copyright holder to exercise these rights.

IV.  The Right to Publicly Perform the Copyrighted Work

 

The right to publicly perform means only the copyright owners, or others they authorize, may perform their works publicly. 

 

This right prohibits would be thieves from performing a copyrighted work before the masses and profiting from that theft.  As an exclusive right, anyone wishing to perform a copyrighted work publicly must first obtain permission from the copyright owners.   Copyright owners, at least in the music industry, are often different from the people who created the work in the first place.  How far this right extends depends on answering two questions.

  1. What acts does a performance cover?
  2. When is that performance public?

The definition of performance under the Copyright Act goes beyond the usual examples of live works.  

 

Right to Publicly Perform
Live Public Performance

The term performance certainly covers situations when a person executes a copyrighted work live.  Examples of this include a band playing music in front of a crowd, a theater company performing a ballet before an audience, or people watching a film at the movie theater.  However, it also covers analog or digital transmission of performances by radio, television, and internet streaming.  Examples of transmitted performances include a song played on the radio, a recording of the ballet played on television, and a film screened for locals at a community park.  A performance occurs when the work is done live and when someone transmits a recording of the work.

The definition of public under the Copyright Act means any group beyond family and close friends.

 

A performance is public when the work is performed: (1) in a place open to the public, or (2) at a place where a substantial number of persons outside of a normal circle of a family and its social acquaintances are gathered.  In plain English, music you play for your family (3rd cousins need not apply) or close friends (not everyone on your Facebook friends list) will be a private performance.  Putting out flyers for your upcoming rendition of Britney Spears’ greatest hits, however, would be a public performance.  A performance is also public when you transmit the copyrighted work to a general audience.  This happens when a radio station plays a song, a television show includes that song during a dramatic break up scene, or you stream the song from your internet radio station.  Transmission of a performance will be public unless you restrict it to only your family or close friends.  As a general rule, live or recorded performances that can reach more than a few people will be public performances.

The traditional right to public performance applies to musical works, but not sound recordings.

 

Copyright owners of musical works (songwriters and music publishers) gain the traditional right to public performance.  Copyright owners of sound recordings (record labels), however, are left out in the cold.  A musical work is the composition, arrangement, lyrics, and other details that embody a song.  A sound recording is a specific performance of that musical work.  A musical work results when a band gets together to create an album.  A sound recording results when that same band goes into the studio to record the album.  The practical effect of this distinction is that analog radio stations must obtain a license only for musical works before playing songs on the air.  They don’t need permission from the owners of sound recordings that they actually broadcast.  This is true even though radio stations would have nothing to play without these sound recordings.

Three U.S. Performance Rights Organizations (PRO’s) (BMI, ASCAP, and SESAC) handle the vast majority of licensing and royalty issues for musical works.  There is a vast sea of musical works out there.  PRO’s strive to organize this complex network by licensing musical works on behalf of songwriters and bands.  The PRO’s then collect royalties for the licenses and send checks to the songwriters and bands.  The PRO’s are certainly not charitable entities, however, and take a cut of the royalties to cover the expenses in managing the system.  Some would say too big of a cut.

This oddity of the traditional public performance right has its roots in the history of Copyright.  Copyright protection existed long before people could record music and sheet music (an example of musical works) was the standard.  Copyright protection for musical works was necessary at that time, but obviously not so for non-existent sound recordings.  Copyright law failed to keep up with evolving technology, however, when sound recordings emerged to provide people with a different way to access music.

Congress tried to fix the problem by passing the Digital Performance in Sound Recordings Act (DPSRA).  This created the sixth right of Copyright: the right to perform publicly by digital transmission.  The DPSRA did provide relief for sound recording owners, but also created a volatile two-class system.  Internet radio stations like Pandora and Spotify now have to obtain licenses and pay royalties to copyright owners of musical and sound recordings.  Analog radio stations, on the other hand, continue to enjoy preferential treatment and only have to answer to copyright owners of musical works.  Analog radio stations have a huge financial advantage over internet radio stations as a result.

The right to public performance does have its limitations.

 

For every rule, there are exceptions.  The right to public performance is no different.  Charitable, non-profit, and educational groups may publicly perform copyrighted works without permission if it’s for a reason recognized by law.  Certain businesses may also play copyrighted music without permission for their customers if they play by the rules.

  • The business must receive the music from a licensed radio, cable, satellite, or television broadcast;
  • The business must be on the smaller side;
  • The business must play it only in their establishment;
  • The business cannot charge an admission fee.

A club that charges admission to listen to a recording of the latest, greatest pop album is not going to fall into this exception.  The ubiquitous Fair Use exception to copyright protection can come into play for the public performance right, too.

That’s a lot to go over!  Go ahead and ask questions if you have them, or leave a comment if have an interesting anecdote about the public performance right.

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

Image by Wootang01

The Six Rights of Copyright – Part III: The Right to Prepare Derivative Works

This is the third part in our series on what makes a copyright.  If you’re just jumping in, take a look at the first two parts linked below to get caught up.  To refresh, the six parts of copyright are:

  • The right to reproduce the copyrighted work
  • The right to prepare derivative works based upon the work
  • The right to distribute copies of the work to the public
  • The right to publicly perform the copyrighted work
  • The right to publicly display the copyrighted work
  • (sound recording only) The right to digitally transmit to publicly perform the copyrighted work

To try to get behind the curtain of copyright, we’re individually exploring each of these six rights.  An understanding of each of these rights and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution.  First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.).  Second, these are exclusive rights.  The law allows only the copyright holder to exercise these rights.

III.  The Right to Prepare Derivative Works

A derivative work starts with a pre-existing, copyrighted work.  A different author then recasts, transforms, or adapts it to create something new and original.  The exclusive right to prepare derivative works is also known as the adaptation right.  As an exclusive right, the copyright owner of the pre-existing work alone has authority to prepare derivative works.  Derivative rights also tend to overlap with the reproduction right because you’re reproducing a part of the original in the derivative work.  The derivative right exists primarily to prevent others from stealing your ideas for their gain.  It also works, however, to stop others from changing the meaning of an original work unless they have the author’s permission.

Derivative Rights
Mona Lisa with a Moustache – A Derivative Work

Derivative works come in many shapes and forms.  Mona Lisa with a Moustache is a famous scholarly example, but films from Harry Potter to the Godfather are ripped from the pages of books.  Hip hop is rife with beats, samples, and lyrics taken from earlier songs (although this musical practice has been going on for ages).  Even the popular Ecards with sarcastic messages on Facebook are derivative works.  Adaption may also occur when there is a:

      • Translation
        • Dramatization
  • Fictionalization
  • Editorial revisions
  • Annotations
  • Elaborations
  • Abridgment

Compilations (musical or factual) are NOT derivative works, but can still enjoy copyright protection under a different part of the law.

Copyright protection extends to derivative works, just as it does to the original work.  This protection, however, only covers the new and original material added to a pre-existing work. There must also be a substantial difference between the new and original work.  Creating a derivative work doesn’t give that creator any ownership over the original work.  It also doesn’t enlarge or extend the copyright protection of the original work.  The following is an example to illustrate the point:

Mario Puzzo originally penned The Godfather as a book in 1962 by Mario Puzzo.  The book Godfather has copyright protection.  Francis Ford Coppala and Mr. Puzzo took this pre-existing work, with Mr. Puzzo’s permission, and adapted it into a screenplay.  The screenplay Godfather also has copyright protection as a derivative work, but only for the new and original material.  Mr. Coppala did not gain ownership rights to the book, and Mr. Puzzo did not get added time for his copyright to the book.  The 1972 movie Godfather, in turn, was a derivative work of the pre-existing screenplay with its own copyright protection.  The two Godfather sequels also were derivative works of screenplays (these screenplays also being derivative works of the original Godfather film).

Derivative works are very common to the entertainment industry.  We could create an equally complex scenario as the Godfather example above for many musical works.

As a finale note, people can potentially invade your right to prepare derivative if they’re making Fair Use of your copyrighted work.  In plain English, people can make limited, derivative copies of pre-existing works if it’s legitimately done for educational, commentary, criticism, parody, or other similar reasons.  Technically speaking, Mona Lisa with a Moustache would be a potential example of a parody that is also fair use (if copyright protected the original Mona Lisa).

The world of derivative works is an extraordinarily complex area of law and this article only touches upon its diversity.  Artists file lawsuits everyday claiming copyright infringement and derivative rights are a big part of the reason.  Just ask the label for the Harlem Shake.

What other current and popular work out there can you think that may violate a creator’s derivative right?

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.