Category: Music

She & Them: Photographer Loses Copyright Battle Over Profits with Apple

She & Them: Photographer Loses Copyright Battle Over Profits with Apple

 

Apple’s Commercial Uses Copyrighted Image Without Permission

 

profits
She & Him Copyright Battle

A federal judge has ruled that Apple doesn’t have to share profits with a photographer over their infringing use of an image in an iPhone commercial. This lawsuit started when prominent fashion photographer Taea Thale snapped a promotional photo of the band She & Him. Hipster actress Zooey Deschenel (of TV and movie fame) is one half of the band duo and a former Apple endorser. Ms. Thale registered her copyright to the photo and then licensed it with Merge Media for band promotion. That license prohibited specifically the use of the photo to hawk other products.

Apple would later air a commercial for 2 weeks in 2010 that advertised its iPhone 3GS. The 30 second commercial was a montage of images showing the iPhone’s latest innovations, including including album cover art. 5 seconds of that commercial used Ms. Thale’s image of She & Him as part of the montage, despite Apple never getting permission to use it. When a royalty check never arrived from Apple, Ms. Thale sued the company for copyright infringement.

So What’s the Harm from Apple’s Infringement?

 

Ms. Thale’s lawsuit asked specifically for profits from Apple’s sale of iPhones that the infringing commercial promoted. The Court, however, shut this claim down. A copyright lawsuit typically complains of infringement that creates direct profits for the offender. A musician who rips off lyrics profits directly from album sales. An author who steals a plot from another writer profits directly from book sales. And a magazine that uses photos without permission profits directly from subscription sales. The facts of Ms. Thale’s case, on the other hand, could only support that Apple profited indirectly from its infringement. Apple didn’t profit by people viewing its infringing commercial (rather, it likely paid large sums to air the commercial), but could only have profited indirectly through the sale of the iPhone on the back end.

Ms. Thale’s copyright claim ultimately failed because she couldn’t prove Apple profited from its infringement. Apple’s copyright infringement was not an issue. In a claim for indirect profits, however, the plaintiff must offer concrete evidence of that profit. The Court decided in this case that the facts showed that Apple only hoped to generate iPhone sales from the commercial. Ms. Thale didn’t offer any actual proof of boosted profits and could only speculate that the commercial generated increased iPhone sales. The Court also noted a logical and reasonable argument (such as Ms. Thale’s) is still just speculation and does not add up to proof of profits. It’s not enough to show there is some relationship between the infringement and profits, there must be a cause and effect relationship between the two.

Does Apple Just Get Away with its Copyright Infringement?

 

Apple is not off the hook just yet. The Court only decided Apple doesn’t have to share profits. Ms. Thale can continue to seek damages for any actual harm that Apple’s infringement caused her (e.g. her lost profits!). This case teaches what’s necessary to make a claim when infringement creates indirect profits.

Join the discussion and leave a comment.

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.

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Filmmaker Ungrateful About Claimed Copyright Infringement

Filmmaker Ungrateful About Claimed Copyrighted Infringement

 

The Back Story for the Copyright Infringement Lawsuit

 

Grateful Dead copyright infringement
Grateful for copyright law

A California filmmaker, Len Dell’Amico, is suing the Grateful Dead for copyright infringement over his allegation that the band leased documentaries and concert films that he created and owned. This long, strange trip begins in 1980 when Dell’Amico, a NYU film and television grad, first worked with the band on it’s live TV broadcast and home video ‘Dead Ahead.’ Dell’Amico would go on to be the Dead’s ‘film and video guy’ for the next 11 years, producing and directing their film projects from 1984 to 1991. Dell’Amico also claims in his lawsuit that they negotiated a deal for back-end compensation from the video release of these works. The years rolled along and, in late 2006, Grateful Dead Productions leased the films to Rhino Entertainment for 10 years. Rhino never credited Dell’Amico for producing and directing the films, nor paid him the promised back-end compensation (“royalties”). The lawsuit was on.

Failure to Register Copyrights Creates a Problem

 

But here’s the rub: Dell’Amico never applied to register any copyrights to the films until recently. The registrations are currently pending at the U.S. Copyright Office. Dell’Amico lacks definitive proof that he actually owns the right to the films. And this is exactly what the band is arguing. The Grateful Dead recall things differently from Dell’Amico and claim he was only a hired gun to produce and direct their films. The band owns all rights to the films because Dell’Amico was compensated for his work and their arrangement kept copyright ownership with the band. As it stands, without the clear proof of copyright registration, it’s a he said, they said matter.

Copyright Ownership Can Still be Proven in Other Ways

 

This doesn’t mean that Dell’Amico’s lawsuit is busted down on Bourbon Street. A 2002 agreement for a Grateful Dead documentary “So Far” gives Dell’Amico a 50 percent cut of the film’s revenue up to $25,000 and 15 percent of gross income over $750,000. This agreement does provide some proof that Dell’Amico created and owns the rights to the films that are the subject of his lawsuit. That agreement clearly came about because there was a belief Dell’Amico owned the copyright to the film. It may also show that he owns the copyright to the films that are the subject of his lawsuit.

Two Important Lessons from this Copyright Infringement Lawsuit

 

However the lawsuit plays out, the dispute highlights two important principles. The first is an overwhelming reason to register your copyrights. Dell’Amico likely would have a much easier time proving his allegations if he had taken the time to register any copyrights two decades ago. This lack of foresight could cost him big time. The second is over the issue of copyright ownership. If you are hired to create works that are covered by copyright law (music, film, television, dance, etc.), an important part of that arrangement is who keeps ownership of the copyright to the works.

Add a comment to share your own story or your thoughts on these issues.

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.

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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

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.

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Royalty Free Samples: A Peculiar Problem of Producing Music

A common question from DJs and music producers is: “what right do I have to create and protect my own music using ‘royalty free’ samples, beats, and loops?”  Can you copyright work that you derive from these sources?  The simple answer is yes, if certain requirements are met.  This situation is a textbook example of derivative works and rights (one of the six exclusive rights of copyright).  Artists can copyright derivative musical works as long as they had the necessary permission to use the original source material.  Let’s break down the issue in detail:

Royalty Free
DJ Equipment

1.      The source material must be “royalty free”, or really, “royalties paid”, for you to use them in your own music.

 

As a refresher, there are typically two parties in music business who own the bundle of rights we call “copyright” and would want a royalty if their music is used.  The first are the owners of the musical compositions themselves (the arrangement, lyrics, etc.), typically music publishing companies, who have purchased these rights from the original musicians.  The second are the owners of the master recordings, typically the record labels.

Say, for example, you wanted to use a sample from the Rolling Stones song Shattered from their studio album, Some Girls (and who wouldn’t?).  You would need to obtain permission from (and pay royalties to): (1) the Rolling Stones’ music publisher, for the music composition, and (2) the Rolling Stones’ record label, for the master rights to the recording.  (Quiz: if you recorded your own version of Shattered, you would only need to obtain permission from the Rolling Stones’ music publisher, since the master recording is no longer involved).

Now, in the case of commercially available loops and samples, it’s usually a bit of a misnomer that samples you purchase are royalty free.  Rather, the company offering the loops has paid the necessary royalty or royalties that allows them to copy and resell the loops to you.  You, as the loop buyer, may then use the loops to create derivative works.  Getting beyond use, however, requires some additional steps.

2.      In order to protect your new creation, the loop seller’s terms and conditions must grant you the right not only to use and make derivative works, but also to copy the royalty free source material.

 

You must have permission to copy and prepare derivative works from royalty free source material before you can copyright your new creation. The following is an example of terms and conditions that give you the right to use your loops to create derivative works and copy the material into your own, protectable creation:

The Sounds remain the property of its manufacturer and/or Loopmasters Limited. (Collectively, “Licensor”) and are licensed to you as the original end-user (“Licensee”), for use subject to the provisions below. All rights not expressly granted herein are reserved exclusively by Licensor.

The Sounds in a category of ‘Sample Pack’:

1.  The Licensee may use the Sounds in combination with other sounds in music productions (which include soundtracks of such as films, video productions, radio/TV programs or commercials, computer games and multimedia presentations, library music), public performances, and other reasonable musical purposes within musical compositions.

English:  You can use the loops in multiple ways, when combined with other music.

2.  The Licensee may modify the Sounds and may use the Sounds for commercial purposes as part of a musical composition with other sounds.

English:  You can alter the loops and use them in your own musical creations.

3.  The Licensee MAY NOT use the Sounds in isolation as sound effects (i.e. a sequence of musical events) or within any competitive products that are sold or relicensed to multiple third parties.  In these scenarios, the Licensee must arrange an extension with Loopmasters Limited.

English: You can’t just take our loops, then turn around and use them other than as something of your own.  Also, you can’t just turn around and resell our loops again without talking to us first.

4.  A right to use the sounds is granted only to the Licensee and is NOT transferable. This license expressly forbids resale, re-licensing or other distribution of the Sounds, either as they exist or any modification thereof. You cannot sell, loan, rent, lease, assign, upload to or download from any server, or transfer all or any of the enclosed sounds to another user, or for use in any competitive product.

English: Only you, not others, can use the loops.

5.  Licensor will not be responsible if the sounds does not fit the particular purpose of the Licensee.

English: If you’re not happy with the loops, tough luck.

PLEASE NOTE:

This is a general licence which covers all Loopmasters products, it may not apply to products from other labels that we represent at Loopmasters.com – if in doubt please email us or contact the label directly.

English: If you’re unsure that you’re using the loops properly, ask before that use.

You can only copyright musical derivative works if you have the necessary license for the royalty free source material.

3.      The musical derivative work must be substantially different from the royalty free source material.

 

Although it’s common sense, a work must be noticeably different from the royalty free source material to be derivative.  A purchased music sample is not a derivative work unless you somehow alter, transform, or adapt it.  This is usually not a problem for DJs, who may merge multiple samples or layer their own musical ideas over the sample.  Even the act of arranging different samples in a unique way is enough.  Your editorial idea for the arrangement is the added element making it a new, derivative work.

You can only copyright derivative works if they are substantially different from the royalty free source material.

4.      Derivative works do not have copyright over the royalty free source material.

 

It’s worth noting that creating a derivative work from royalty free samples, drum beats, or loops doesn’t give you copyright to the source material.  You don’t become free to do whatever you want with the source material once you create a derivative work.  This means that you can’t sell, give away, or publicly play the source material as a stand alone.  Your rights to the source material only cover its use in your new creation.

If you have any questions about royalty free music that were not discussed, leave a comment and I’ll respond.

 

–          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.

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