Tag: fair use

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

Posted by Ari Good, JD LLM on July 2, 2013

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:

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.

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

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.

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Royalty Free Samples: A Peculiar Problem of Producing Music

Posted by Ari Good, JD LLM on May 9, 2013 with 1 Comment

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:

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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The Six Rights of Copyright – Part II: The Right to Distribute

Posted by Ari Good, JD LLM on April 23, 2013

This is the second part in our series on what makes a copyright: the Right to Distribute. If you’ve not already been so kind, have a look at Part I (the right to reproduce the work). 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 going to individually explore 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.

II. The Right to Distribute

The exclusive right to distribute ensures that only you, or someone you authorize, can lawfully share your copyrighted work. Distribution not only covers direct sales of things like CD’s, DVD’s, and music files, but also their leasing, rental, and lending. This right, when paired with the right to reproduce, gives financial teeth to copyright protection. Only you, the copyright owner, can profit from the distribution of your copyrighted work through its sale, lease, or rental. An obvious violation of this right occurs when another sells your work without permission, but also occurs when it is given away, too. Peer to peer file sharing, internet piracy, and posting to a website are all common examples.

The right also lets you control how the work is distributed. The copyright owner, for instance, can dictate the price for a sale, the stores where someone can make a purchase, or if he/she lets someone borrow and use it for charitable reasons.

An important restriction on the distribution right is the Doctrine of First Sale. Once a person buys a physical copy of the copyrighted work, they can resell or otherwise do away with the copy as they see fit. A buyer, after purchasing a CD for example, owns that CD but not the copyright to the music itself. They can resell it at a garage sale, give it to a friend, or even use it as a target for skeet shooting. First Sale is the mechanism that allows Netflix and Blockbuster to rent out physical copies (not internet streaming) of movies. The right to first public distribution is another way of thinking and naming the issue.

The First Sale Doctrine, however, is not without its own limitations:

First Sale Doctrine only applies if a copy was lawfully made and sold under the U.S. Copyright Act. The U.S. Supreme Court is currently considering whether the Copyright Act can ever apply to copyrighted works made overseas.
First Sale Doctrine does not permit a person to rent out Computer software or CD’s they’ve purchased.
More recently, a federal court also ruled that First Sale Doctrine does not allow the resale of digital music files.

As a finale note, people can potentially invade your right to distribution if they’re making Fair Use. In plain English, people can make limited distribution of copyrighted works if it’s legitimately done for educational, commentary, criticism, parody, or other similar reasons.

Chime in with any questions or comments that you may have about the right to distribute.

– Ari Good, Esq.

Copyright Goes Crazy: Mother’s Claim Of Fair Use Via YouTube On Trial

Posted by Ari Good, JD LLM on February 6, 2013 with 2 Comments

FBI Warning - Fair Use — FBI Warning: Fair Use

A California case is drawing the eyes of the music industry and helping to define what constitutes the “fair use” of copyrighted material. In Lenz v. Universal Music, Stephanie Lenz uploaded a 29-second clip to YouTube of her toddler dancing while Prince’s 1984 hit “Let’s Go Crazy” was playing in the background. Universal, owner of the copyright to “Let’s Go Crazy,” requested that YouTube remove the video, which they did, further banning Ms. Lenz from uploading any more videos for good measure. Incensed by the possibility of having her toddler’s future in show business cut short, Lenz sued, arguing that Universal’s takedown request to YouTube was deceitful because it failed to consider fair use of copyrighted material.

Lenz’s argument was that Universal abused the Digital Millennium Copyright Act (“DMCA”) by sending a frivolous takedown request to YouTube. The DMCA provides that a copyright owner may demand that an offending party remove material that they have used without permission. The Court ruled, however, that copyright owners must consider whether a person has made fair use of the copyrighted material before sending a takedown request.

But what does the law consider fair use? Fair Use is a legal doctrine that allows a party to use copyright material without permission as long as the party follows certain guidelines. This case is unusual because fair use typically works as a defense to copyright infringement. The issue is not whether the copyright protects the work, or whether the accused made use of it without permission, but rather whether the unauthorized use is allowed. The fair use of copyrighted material provides a legal safe harbor for commentary, criticism, or parody of the material. Although there are no hard and fast rules for defining precisely what fair use is, the U.S. Copyright Office has issued the following guidance to help you decide:

What is your reason for using the copyright material? Is it for nonprofit, educational purposes or for business goals?
What is the nature of the copyright material?
How much of the copyright material do you plan to use when compared to the work as a whole (e.g. how many seconds or minutes from a whole song)?
How much less money, if any, would the copyright owner make because you are using their work?

The more your use of copyrighted material leans toward educational rather than commercial purposes, the more likely you’re making fair use of the material. The same is true when the use is of only a small part of the total work, and where the copyright owner is unlikely to lose much money due to the use. The type of work also matters. Copying a rare documentary will not have the same impact as copying a famous pop song.

The Court’s decision that a copyright owner must consider fair use before sending a takedown notice, however, didn’t end the case. The judge left open whether Universal made a sufficient fair use consideration before sending its takedown request. While Universal conceded that it may not have considered fair use per se prior to issuing the takedown notice, the record showed that its employee was able to clearly identify the song in the video (which was titled “Let’s Go Crazy #1”), suggesting that Lenz’s work would not have had the same visibility or appeal without the Prince song. Universal also noted that Lenz played the song loudly throughout the video and asked the toddler whether he liked the song.

Lenz’s attorneys argued that Universal made no real analysis of whether the video was fair use of the song, issuing its takedown notice simply because it considered the use excessive. Neither side won the judge’s heart completely. The court commented that a fair use evaluation does not require a full-blown, detailed analysis but does, however, require that the copyright owner show some evidence that it had applied doctrine of Fair Use to all the facts and circumstances prior to issuing a takedown notice.

The Court also offered a mixed bag of conclusions on the issue of damages. It reasoned that Lenz suffered no harm by being YouTube’s ban (it being a free service), or that Universal violated her first amendment rights (secondary damages argument) by issuing the takedown notice. The Court left open the possibility, however, that Lenz could recover for expense of resources (electricity, phone and internet bills, etc.), her time, and attorney fees in fighting to get her video up on YouTube again. The case is now set for trial, as the judge was not willing to settle these matters without a full exploration of the facts.

If you were sitting on the bench, how would you decide the case? Was Lenz’s use of “Let’s Go Crazy” fair use?

– Ari Good, Esq.