At FMC we’re all about artists getting paid for the use of their work, particulary when the music is used by large, publicly traded companies. But if the labels are so keen to make sure that performing artists (or their heirs) are being properly compensated, there’s a better way to do it.
Maybe it was in celebration of International Happiness Day, or maybe it was just coincidence, but this week saw three high-profile copyright cases all resolved through out-of-court settlements.
First, upstart toy company GoldieBloxsettled with Beastie Boys over the unauthorized use of a version of the Beasties song “Girls” with altered lyrics in an online ad video. As we reported in December, the case was framed initially as a question of whether the video qualified as fair use, but it also raised issues of trademark infringement, false endorsement, unfair competition, and misappropriation of publicity rights. In the end, the Beasties got what The Hollywood Reporteroriginally reported that they were after: a donation by Goldieblox to a charity of the Beasties’ choice, based on a percentage of revenue, and a more substantive apology:
That process continued last Thursday with an examination of Section 512 of the Digital Millennium Copyright Act (DMCA). This section contains “notice and takedown” provisions, under which internet service providers are sheilded from liability for infringement committed by users. Such “safe harbors” are only extended if an online service expeditiously complies with rightsholders’ requests to take down infringing content upon receiving notice. (You can watch the hearing online and read witnesses’ written testimony at the Judiciary Committee’s website).
The safe harbor protection provided by the DMCA is important to musicians and other creators because it enables the existence of many services that we use every day to communicate with fans, express ourselves creatively and sell our wares. Without the safe harbor, it would be difficult for services like Bandcamp, Soundcloud, Twitter, YouTube, and countless others to have gotten off the ground and remain in business, due to potential damages for the actions of their users.
However, assessments of how well the notice and takedown requirements are working in practice vary widely.
If you’re a copyright nerd (wait, you’re not?), you may have come across the issue of “pre-’72s.” In a nutshell, recordings made before February 15, 1972 are not protected by federal law, which can complicate how—or whether—royalties are paid for certain uses, like plays on internet or satellite radio.
Many people are unaware that there wasn’t even a copyright for recordings until 1972. Well, that’s not entirely true—some sound recordings made before ’72 are copyrighted at the state level. Still, federal protections are relatively new. At least when compared to compositions, which have been protected since the early 1800s (public performances of musical works came under federal law in 1897).
Debates about pre-’72 recordings might seem arcane, but there are major implications for today’s music ecosystem. First there’s artist compensation. The absence of a performance right for pre-’72s means that there’s no guarantee that recording artists are going to get paid fairly for the use of their work when played on Internet or satellite radio. (AM/FM broadcasters aren’t obligated to pay performers anything, though they do pay songwriters; more info on this crazy loophole here.) The lack of federal recognition also makes it more complicated for services to obtain a license to play music—and where there is no permission, there’s potential liability.
Judiciary Subcommittee on Courts, The Internet, & Intellectual Property
Tuesday, April 8, 2014
FMC has been closely monitoring the Subcommittee’s ongoing review of the Copyright Act, with special attention to musicians’ needs and perspectives. Here’s a chronology of events so far, with links to our coverage and commentary, along with video of the archived hearings.
Here at FMC, we regularly engage in a kind of protracted dialog with government through public comments and other filings that can extend over years (actually, thirteen and counting!). While we don’t claim to have all the answers, we do believe that our history of direct engagement with musicians, composers, independent labels, publishers, PROs, unions and others is useful for policymakers to consider as they grapple with the many questions facing creators in the digital age.
On Wednesday, Nov. 14, 2013, FMCfiled comments with the United States Patent and Trademark Office (USPTO) regarding their recent “green paper”—itself a product of the Internet Policy Task Force comprised of USPTO, the Department of Commerce and the National Telecommunications and Information Administration. Way back in 2010, we filed comments in the original proceeding that resulted in this year’s report, Copyright Policy, Creativity, and Innovation in the Digital Economy [PDF].
Future of Music Coalition filed the following comments with the United States Patent and Trade Office (USPTO) in an inquiry related to a previously published “green paper” from the Internet Policy Taks Force (a joint effort also including the United States Copyright Office and the National Telecommunications and Information Administration).
This just in (again): if you’re an online service provider and want to enjoy safe harbor protections under the Digital Millennium Copyright Act (DMCA), you’ve got to play by the rules.
That’s the lesson storage locker service Hotfile learned the hard way when it was sued by all five major motion picture studios (Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Columbia Pictures Industries, Inc., and Warner Bros. Entertainment Inc.) in the Southern District Court of Florida. U.S. District Court. In her ruling on Aug. 28 (and just recently made public), Judge Kathleen Williams found that Hotfile could be held liable for the infringing material users uploaded to its site.
[UPDATE: Read our written testimony before the committee here.]
On Wednesday September 18, The House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing to discuss “The Role of Voluntary Agreements in the U.S. Intellectual Property System.”
Uh-oh, did we lose you already? Hearings always sound boring; they don’t have punchy names like SXSW panels, but we promise this one was relevant to musicians, fans, and Internet users. Keep reading. read more
Having had time to digest a 100+ page report on digital copyright policy, we can report back that this “green paper” covers a range of issues around copyright and technology with an understanding of the complexities for creators. The report is a product of the Department of Commerce’s Internet Policy Task Force (IPTF) with input from the U.S. Patent and Trademark Office (USPTO) and the National Telecommunications and Information Administration (NTIA). We wouldn’t say that the green paper is a good beach read — and not just because it’s after Labor Day — but it does lay out very clearly the challenges and opportunities of the digital marketplace.
Of course, we’re mostly concerned about how these issues impact musicians and composers. This is why we’re also delighted to announce that one of the contributors to this report, Shira Perlmutter, Chief Policy Officer and Director of International Affairs at USPTO, is going to give a keynote at the Future of Music Summit (Oct. 28-29, Georgetown University, Washington, DC). Don’t miss the chance to hear from the horse’s mouth about how executive branch agencies are dealing with the issues that impact YOUR livelihood — registration is open now (with a limited number of musician scholarships available)!