There the RIAA goes again

In a 1980 debate with then President Jimmy Carter, Ronald Reagan, remarked, "There You Go Again." In a 1989 interview with Reagan by Jim Lehrer, Reagan explained "it just seemed to be the thing to say in what he was saying up there, because it was to me it felt kind of repetitious, something we had heard before." And so it is with the RIAA.

Last Friday, I and many others participated in an all-day, closed congressional staff-Copyright Office round table meeting about the statutory damages provision in the so-called Pro-IP bill. The session was wonderfully free of rancor. The Copyright Office had prepared a list of issues that were thoroughly explored in great detail by the participants in a professional, constructive manner, with the exception of a gratuitous, buffoonish attack on the Google/YouTube deal by the NMPA. David Carson, Associate Register of Copyrights, was the moderator, and did a masterful job of keeping the proceedings on track and on point.

Speaking were proponents of the provisions, opponents, and those who were neutral. Legislative history, Congressional intent, and case law were also reviewed. Lawyers who litigated spoke of their experiences; non-lawyers spoke of their experiences. RIAA's representative said little. I had not intended to say anything about the meeting, but I was provoked by a comment from a representative of the RIAA quoted in an article by Andrew Noyes in the current issue of TechDaily: "[A] lobbyist for the Recording Industry Association of America said opponents of the section tried to turn what was supposed to be a narrow conversation "into a referendum on the copyright system in general."

That statement is completely false, and is a sad effort to denigrate what was a productive exchange of views among a diverse cross-section of interests. The statement is at the same level as Bill Clinton's remarks after Barack Obama's win in South Carolina. The parties who opposed the provision as well as those who supported it stayed on the high ground (with the one exception of NMPA), focusing on the question of statutory damages and how to recompense copyright owners for their monetary injury. No one attacked the system of copyright, and no one suggested that copyright owners should not receive every penny of their actual harm, nor that they shouldn't receive statutory damages at their election. Opponents of the proposal asserted that the existing regime did adequately recompense copyright owners, a point the proponents were never able to dispute despite repeated requests to do so by the Copyright Office. Their silence was prolonged and embarrassing. But a request that proponents of legislative change make their case is in no way a "a referendum on the copyright system in general." And if it is, Mr. Carson was a part of the cabal because he repeatedly pressed the proponents too.

When the RIAA was falsely accused recently by the Washington Post of taking a position in a brief it hadn't taken, I stood up for RIAA, and would do it again, but RIAA should itself do unto others as it would have them do unto it. Moreover, it is most ironic that a process set up by the sponsors of the legislation to flesh out the need for legislation supported by RIAA should under attack by RIAA.

It is also time for the RIAA (and NMPA in its usual role of Toto) to stop hiding behind photographers' skirts in pushing what is an unwise, gluttonous proposal: the proposal is not new and has nothing to do with photographers; it is a recycled proposal whose origins lie in the MP3.com litigation. The purpose of the amendment is not to clarify Congress's intent because Congress's intent is already clear; the purpose of the amendment is not to correct the courts, because the courts have done a pretty good job in interpreting the statute; the purpose of the amendment is not to provide needed flexibility in the award of damages because the current law already has tremendous flexibility; rather the purpose of the amendment is to hand a windfall to those who have too much already and who will never be satisfied with more.

Personal Jurisdiction and eBay

The Tenth Circuit has issued an interesting opinion on personal jurisdiction, Dudnikov v. Chalk & Vermillion Fine Arts, Inc. (No. 06-1458).

Plaintiffs were Power Sellers on eBay. Among the things they sold were two prints that were a parody of images by the (I think kitschy) artist Erte. Using eBay's verified rights owner program, licensees of Erte got the plaintiffs' auction for the goods terminated. Plaintiffs sent a notice trying to get the action reversed, but defendants refused. Plaintiffs filed a DJ action in Colorado, where they live, claiming that not only did defendant's termination cause them economic loss, but that it took its actions well aware that plaintiffs' use was a fair use. Defendant is a Delaware corporation with its principal place of business in Connecticut.

Defendant moved to dismiss for lack of personal jurisdiction. The district court granted the motion, the 10th circuit reversed in the attached 36 page opinion. The court of appeals held that by sending eBay a letter invoking the verified rights owner provision, defendant intentionally took action to cause harm to plaintiffs in Colorado under the Supreme Court's Calder decision. The court held that defendant's sending the termination notice to eBay in California could fairly be considered the proximate cause of plaintiff's claim, distinguishing cases involving cease and desist letters. Defendants' letter as deemed to have been "expressly aimed" at Colorado even though it was sent to California, the court writing that defendants "'express aim' ... can be said to have reached into Colorado in much the same way that a basketball player's express aim in shooting off of the backboard is not simply to hit the backboard, but to make a basket." The court must have been thinking of the Denver Nuggets rather than the NY Knicks.

Jokes and Copyright

Jay Leno, NBC, and others (Rita Rudner, Jimmy Brogan, Diane Nichols, Sue Pascoe, Kathleen Madigan and Bob Ettinger) against comedy author Judy Brown and her publishers for the unauthorized publishing thousands of their jokes in 19 books over 10 years, entitled “The Funny Pages, Squeaky Clean Comedy, Funny You Should Know That, Getting Old Is a Joke and Joke Stew. (I wonder about the statute of limitations defense for the stuff older than three years). Leno is quoted as saying “I thought it was important to make it clear that jokes are protected like any other art form…. On behalf of the tremendous and talented group of writers we have at The Tonight Show and many other hardworking comedians, I'm very glad we've been able to stop this practice once and for all."

Brown, issued an apology : "In my books, I have published jokes of Jay Leno and the other comedians in this lawsuit without their permission.... I sincerely apologize for doing so. I greatly admire the creativity, wit and energy of stand-up comedians, and I recognize that comedy is as much an art form as other types of creative expression...This is why I am settling this lawsuit by agreeing never again to publish their jokes without asking their permission to do so."

While Ms. Brown was made to repent, some of our top comedians are alleged to have very sticky fingers with their colleagues’ materials. Many articles have been written about Robin Williams. Here is one from a Feb. 14, 2007 article in Radar, which begins:

Anyone who has ever performed stand-up is familiar with the red light, the universal signal that warns dawdlers it's time to wrap things up. In the '80s, comics at the Hollywood Improv came up with a novel use for the light. When shining steadily, it had the conventional meaning. But if the bulb began sputtering, it was the comedic equivalent of an air-raid siren, warning performers to lock up their original material immediately unless they wanted to lose it to a master thief.

Robin Williams, comedy's most notorious joke rustler, was in the house.

Though the rap has followed Williams for years, he's not alone. In the world of stand-up, joke-jackers are as common as exposed brick walls and liquored-up hecklers—an occupational hazard that eventually robs every working comic of time-tested material. It's the dirty little secret of the comedy world, a crime committed at every level—from amateurs at open mikes to big-name pros on late-night TV. Though rarely discussed outside the clubby, if sharp-elbowed, comic community, the subject is the surest way to wipe the grin off a funnyman's face. Daily Show correspondent Demetri Martin learned the lesson during his first year on the circuit, when he watched in horror as a comic brazenly recycled a joke he had told the previous evening. "I thought, Jeez, this is how it works?" he recalls.

George Lopez accused Mencia of ripping off his act for an HBO special. "One night, I picked him up and slammed him against the wall," Lopez told Howard Stern. Unfortunately, it is. While most comics take pride in performing their own material, many have built lucrative careers on borrowed bits.

There are numerous others mentioned in the article to including this rather unusual one out of many about Dane Cook:

Joe Rogan, host of Fear Factor and formerly of The Man Show, says he experienced this firsthand with a routine he spent months developing on the topic of tiger fucking. When Rogan saw a friend he'd performed with many times recycle his bit on Comedy Central after simply changing the tiger to a rhino, his claws came out.

The friend? Future megastar Dane Cook.

Here is a passage about Dennis Leary

Accusations of comedic skullduggery have also dogged Denis Leary, who has spent much of his career denying that he borrowed his act wholesale from Bill Hicks, the edgy, anti-establishment legend who died of cancer in 1994. Critics have long cited a laundry list of alleged similarities between Leary's 1993 album No Cure for Cancer and Hicks's earlier work, from Leary's angry, chain-smoking persona to specific jokes about tobacco, health nuts, and lame bands. The charges grew so widespread that they inspired a scathing joke among some of Hicks's friends that Leary had become famous only because, well, there's no cure for cancer.

Colleen McGarr, a onetime talent coordinator for the Montreal Comedy Festival and a close friend of Hicks's was backstage at the fest in 1991 when she first saw Leary perform what seemed to her an uncomfortably familiar set. "I was aghast," says McGarr, who later became Hicks's manager and fiancée. "To me, it was Bill's material done in a shabby, humorless way, but shocking enough that people would respond to it."

"I was shocked that [Leary] could still work in Boston," says Rogan, who claims he has also watched Leary recycle old bits by Ray Romano.

Compendium II of Copyright Office Practices § 420.02 states: “Jokes and other comedy routines may be registered if they contain at least a certain minimum amount of original expression in tangible form. Short quips and slang expressions consisting of no more than short expressions are not registrable.” In other words, jokes are to be considered under the ordinary originality standard applied to all other material.

What have the courts held? In Jeff Foxworthy v. Custom Tees, Inc., 879 F. Supp. 1200, 1217–1219 (N.D. Ga. 1995), the court gave very expansive to Jeff Foxworthy’s “You might be a redneck if …” one-line jokes, jokes which seem to fit within the final, non-protectible part of the Compendium, taken individually. The court however, saw things differently:

Defendants argue that the jokes are not original to plaintiff because he receives ideas, often in the form of jokes, from others. To support this assertion, defendants point to the Foreword to plaintiff's book, Red Ain't Dead, where plaintiff wrote

[N]ot a day goes by that someone doesn't offer me a new example of ‘redneckism’ ... With the help of my wife and friends, I add several to the list almost daily. I have collected numerous Redneck Lines from radio audiences and even from my live show audiences.

… Defendants therefore argue that “plaintiff's work consists of preexisting ‘public domain’-[sic] material that was ‘authored’ by many persons over the years.” …

Plaintiff testified at the hearing in this matter that he does in fact receive ideas from other sources, but more than 95% of his redneck joke ideas are original to him. … More important, plaintiff testified that, even when he receives an idea from another person, it is plaintiff who takes the idea and gives it the expression in the form it appears in his books. In other words, plaintiff testified unequivocally that he wrote every word in his books, calendars, etc. Finally, plaintiff testified that he wrote and had the ideas for each joke appearing on defendants' t-shirts produced at the hearing.

….
In the same way, two entertainers can tell the same joke, but neither entertainer can use the other's combination of words. This is where defendants' argument misses the mark. Copyright is concerned with the originality of the expression, not the subject matter. Plaintiff repeatedly stated that he uses other people's ideas, but he puts them in his own words. At the hearing, he explained why:

A joke is [...] a strange thing. And probably to the public, they never realize this. But I have-with a comic, we all have the same bowl of words to work with, and the whole trick is to take the smallest amount of words and put them in the proper order. You know, I've sat backstage with Jay Leno or Gary Shandling and sometimes for ten or fifteen minutes argued about a particular one line in a joke, which word should go where, should you delete this, which word should go to the end of the joke, and so that's why it changes. I mean, it's to get the maximum laugh from, you know, the shortest amount of material.

Q. How important is the particular expression of the joke versus the underlying idea of the joke?

....

A. Well, I mean the idea is key in coming up with the wording. You need-the idea comes first and then you play with it to get the wording correct.

Unofficial Trans., at 18-19. Plaintiff clearly established at the hearing that all of the jokes copied by the defendants were not only his own ideas, but his own expression. His expression clearly evidenced a “modicum of intellectual labor,” Feist, 499 U.S. at 346, 111 S.Ct. at 1288 (quotation marks and citation omitted), and defendants clearly copied that expression verbatim. Accordingly, plaintiff has shown a likelihood of success on the merits of his copyright claim.

Another case involved the classic humor-grabber, the fart joke, JCW Investments, Inc. v. Novelty, Inc., 289 F.Supp.2d 1023 (N.D. Ill. 2003), in which the trial court was offended by defendant’s association of such jokes with a specific class of people:


Defendant directs the court's attention to excerpts from Jim Dawson's Who Cut the Cheese? A Cultural History of the Fart, Ten Speed Press (1999), as evidence that “ ‘fart jokes’ have long been popular ‘among the lower classes’ and ‘poor people.’ ” Assuming arguendo that this proposition is true, however, does not dictate that it is “standard” to depict a farting character as having low socioeconomic status.

On appeal to the Seventh Circuit, 483 F.3d 910 (7th Cir. 2007). the great Judge Diane Wood expressed that court’s surprise: "Somewhat to our surprise, it turns out that there is a niche market for farting dolls, and it is quite lucrative."

Whether Mr. Leno is blowing hot air with suit, it does seem that the practices of some other comedians is less respectful of those (still striking) writers and whose behalf of course the suit was brought.

Gutiar Hero Opinion

The District Judge in the Romantics v. Guitar Hero suit has issued her opinion, The Romantics v. Activision Publishing, Inc., 2008 WL 186370 (E.D. Mich. Jan. 22, 2008). Relevant excerpts are reproduced below. On the right of publicity claim, the judge notes that Michigan has not recognized a right of publicity claim in ones’s voice (as compared to image), and further relied on the argument I made in the earlier posting that the claim even if it existed would be preempted by 17 USC §114(b). There is also discussion of a First Amendment defense.

NANCY G. EDMUNDS, District Judge.
On November 20, 2007, Plaintiffs filed a motion seeking a preliminary injunction enjoining Defendants, during the pendency of this action, from advertising, offering for sale, selling, distributing or otherwise making or selling the video game “Guitar Hero Encore: Rock's the 80s” (the “Game”), or otherwise using the identities, persona, or allegedly distinctive sound of Plaintiffs in connection with the Game. On December 18, 2007, the Court heard argument on Plaintiffs' motion.

Having given due consideration to the parties' written and oral arguments, the Court hereby DENIES the motion in its entirety.


I. Facts

A. The Defendants and the Game
The Game is a part of the “Guitar Hero” video game franchise which includes a series of games, guitar shaped game controllers, accessories and merchandise under the “Guitar Hero” trademark. This franchise has been very successful, winning numerous accolades and becoming the top selling franchise for console video games as of September 2007.

The Game is a complex artistic work combining visual, audio and narrative elements for which Defendants spent months developing the unique theme and technology. The Game allows players to pretend they are playing guitar in a rock and roll band. Play begins as players choose among options such as character, costume, and model of guitar, and then simulate the guitar play of various songs by correctly timing the pressing of fret buttons and strum bars on a guitar-like controller. The Game includes thirty songs from the 1980s to add to the realistic experience of playing in a rock band from that era. Each song in the Game has a level of difficulty, and only after reaching a certain proficiency on a song can a player advance to another more difficult song. The graphic video elements of the Game require complex synchronization with each song to enable the realistic simulation of guitar play.

Defendant Activision Publishing, Inc. (“Activision”), the distributor of the Game and the parent of Defendant RedOctane, Inc., the publisher of the Game, obtained a valid nonexclusive synchronization license from EMI Entertainment World, Inc., the owner of the copyright in the musical composition entitled “What I Like About You” (written and originally recorded in 1979 by the band, The Romantics, and published in 1980) (the “Song”). A synch license, in the context of a video game, permits Defendants to make a new recording of the underlying composition and to use that recording in synchronization with visual images in the video game to enable game play. In accordance with this license, Defendant WaveGroup Sound (“WaveGroup”) recorded a new version of the Song which was incorporated, or synchronized, into the Game. The Game was commercially released in July 2007.

While playing the Game, a player can encounter the Song or any reference to The Romantics only if the player obtains an advanced player status. Theoretically, a player could play the Game and never reach the advanced level of play necessary to encounter the Song among the thirty tracks included in the Game. Even when a player encounters the Song, it is part of the content in the Game, and is clearly identified by the Song title and the words “as made famous by the Romantics,” thus informing players and onlookers that The Romantics are not actually performing the Song. Defendants have never used the Song for the purpose of advertising or marketing the Game, and neither the name of Plaintiffs' band nor any of the names of the individual Plaintiffs appear on the product packaging.

…

B. The Plaintiffs and The Song
Plaintiffs Wally Palmar, Mike Skill, and Coz Canler are current members of the rock band The Romantics. The Romantics created the original master recording embodying the Song in 1979, which was released in 1980. Not all Plaintiffs participated in the master recording of the Song and the lead singer on the master recording of the Song is no longer with The Romantics, nor is he a party to this action. Plaintiffs do not allege that they currently own any rights in the Song.

….




1. Right of Publicity Claim
2.
Plaintiffs have not made the requisite showing that there is a likelihood of success on the merits for their state law claim of a violation of the right of publicity. Under the circumstances of this case, this claim would be governed by Michigan law. However, Michigan has never recognized right of publicity in the sound of a voice, even if distinctive, nor has it recognized a right of publicity for a combination of voices, and thus Plaintiffs fail to state a cognizable claim for violation of the right of publicity. Moreover, as indicated above, not all of the Plaintiffs performed on the original master recording of the Song, and the lead featured singer on the original master recording of the Song is not even a Plaintiff. Accordingly, there be substantial issues concerning Plaintiffs' standing to assert such a claim even if one were to exist.

Moreover, the First Amendment protects commercial actors' use of a song in a work where such use is related to the content of the work and is not a disguised commercial advertisement for the misleading sale of the commercial actors' goods or services. Parks v. LaFace Records, 329 F.3d 437, 461 (6th Cir.2003). Here, the Game is an expressive artistic work entitled to First Amendment protection because the Game contains significant transformative elements and is not likely to interfere with the economic interest protected by the right of publicity, even if such a right applies to a “distinctive sound” and if Plaintiffs had made a showing that their sound is unique or distinctive such that it has a specific value.

Also, the Copyright Act pre-empts Plaintiffs' purported state law right of publicity claim. A state law cause of action is preempted by the federal Copyright Act if: (1) the work involved falls within the “subject matter” of the Copyright Act; and (2) the rights that a plaintiff asserts under state law are “rights that are equivalent” to those protected by the Copyright Act. Kodadek v. MTV Networks, Inc. 152 F.3d 1209, 1212 (9th Cir.1998). Here, Plaintiffs' “identity” claims to the sound of the Song are essentially claims regarding the licensing of a copyrighted work, falling squarely within the “subject matter” of the Copyright Act. Moreover, Plaintiffs' right of publicity claim, as pleaded, arises from Defendants' arrangement and production of musical and vocal performances that allegedly sound similar to those embodied and reflected in a copyrighted sound recording released by The Romantics in 1980, as distinct from the sound of any individual's voice or musical performance existing separate and apart from a copyrighted work. Thus, the rights asserted by Plaintiffs are “rights equivalent” to those protected by the Copyright Act under Michigan law. Wrench LLC v. Taco Bell Inc., 256 F.3d 446, 455 (6th Cir.2001) (“Equivalency exists if [the state law right] may be abridged by an act which in and of itself would infringe one of the exclusive rights [granted by the Copyright Act]”); Sinatra v. Goodyear Tire & Rubber Co., 435 F.2d 711, 716 (9th Cir.1970) (rejecting plaintiff's right of publicity claim based on her purportedly unique sound in performing copyrighted song).

In addition, sections 106 and 114(b) of the Copyright Act permit the owner of a copyright in a musical composition to license others to make specified commercial uses of the composition. This expressly allows third parties such as Defendants to make a sound-alike recording of a song. Further, the Copyright Act, 17 U.S .C. § 114(b), expressly disallows any recourse for such sound-alike recordings of a song.

As Defendants possess a valid synchronization license, they have the right to make their own recording of the Song to integrate into the Game without violating Plaintiffs' right of publicity.

FreeLaw

An important rationale for the lack of copyright in judicial opinions is the belief that the public should have free access to the laws they are commanded to obey. But lack of copyright is not the same thing as providing access. The Internet is beginning to solve the access problem, although difficulties remain. Court websites vary wildly, and none as far as I am aware of make available all the material they receive in electronic form.

A number of companies and organizations beside the well-known paid services of Westlaw and LEXIS/NEXIS have stepped in to fill the void, although these tend to focus on court opinions. Yesterday there was an article in Law.com was about one person who is trying to provide broader protection, Carl Malamud:


In November, Malamud and the legal research company Fastcase announced an agreement to publish 1.8 million pages of federal case law in the public domain. The archive, to become available sometime in 2008, will include all U.S. courts of appeals decisions since 1950 and all Supreme Court decisions since 1754. Notably, this public database will come about with the cooperation of Fastcase, which has agreed to sell this case law with no strings attached.



Another project is the Atlaw joint project of Columbia Law School and the University of Colorado Law School, which contains federal decisions to the early 1990s from the Supreme Court and federal appellate courts. Franklin Pierce's law school has an extensive online library of material related to IP, called the IP Mall. Last but definitely not least is The Internet Library of Law and Court Decisions is an online case digest providing in-depth analysis of over 520 court decisions affecting those who do business on the Internet. As the site states:

Court decisions are organized by subject matter. The user is provided with a brief synopsis of the court's decision. If the decision is of interest, a link takes the user to a more thorough analysis. Pdfs of, or links to the full text of most court decisions analyzed are also provided. A free electronic newsletter, Internet Law Update, is available to provide users with the latest cases added to the Library. A full text search engine is also available to assist in utilizing the Library's resources.

The Internet Library has analyzed cases covering a broad array of topics, including trademark and copyright infringement, dilution, use of meta tags, links, thumbnails and framing, browse wrap, click wrap and shrink wrap agreements, domain name disputes, internet service provider liability, subpoenas, online defamation, gripe sites, the Digital Millennium Copyright Act, the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, jurisdiction, the legality of gambling on the Internet, search engine advertising, licensing requirements for the operation of an online pharmacy and automobile distributorship, the legality of keying and cookies, use of e-mail in the work place, spam, the legality of pop-up ads and spyware, and First Amendment issues arising out of governmental regulation of the Internet, among others.

There are also links to other sites.

Eighth Circuit Gives Give Permanent Hall Pass to Teacher

Continuing my review of the large number of unpublished court of appeals decisions, the 8th Circuit recently rejected a probationary teacher’s claim of copyright infringement in a hall pass for elementary school students. The opinion doesn’t reveal what the parties' hall passes said, but the room for creativity would seem remote. Clark v. Crues, 2008 WL 145255 (8th Cir. Jan. 8, 2008).

As explained by the court, per curiam:

This appeal concerns a “behavioral modification program,” known as the “Out of Area Program,” that Clark claims he developed and implemented while he was employed by the St. Louis, Missouri public school system as a probationary teacher. The Out of Area Program consists of a set of written materials intended for use by teachers and other school personnel to help control and modify disruptive behavior by students. After Clark's employment was terminated for reasons that the defendants assert are unrelated to this appeal, Clark sued the defendants, asserting, inter alia, patent and copyright infringement. On appeal, Clark challenges the district court's dismissal of his patent and copyright claims. …

As to the copyright claim, the district court held that the “Out of Area Program constitutes a business idea, excluded from copyright protection under 17 U.S.C. § 102(b).” Memorandum & Order at 10. We agree. The Complaint alleges that the defendants “used the same concept referencing Hall Pass procedures” as in the Out of Area Program. See id. at 9. Such general concepts and ideas are beyond the purview of copyright law. See Mazer v. Stein, 347 U.S. 201, 217 (1954) (“[A] copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea-not the idea itself.”). At best, Clark alleges that his hall pass, Appellant's Br. attach. 24d, and a hall pass that was used in the 2004-05 school year at Roosevelt High School, id. attach. 24e, share language that restricts the use of hall passes during the first and last ten minutes of class. However, the passes are not otherwise alike, and the district court correctly concluded that this limited use of similar functional language does not constitute copyright infringement even if, as Clark alleges, the defendants deliberately copied Clark's ideas. See CMM Cable Rep, Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1519-20 (1st Cir.1996) (denying copyright protection to phrases such as “clock in” used in a radio promotional contest as an employment metaphor, and stating that “copyright law denies protection to ‘fragmentary words and phrases' and to ‘forms of expression dictated solely at functional considerations' on the grounds that these materials do not exhibit the minimal level of creativity necessary to warrant copyright protection”).

I also wonder why work for hire didn’t play a role: I would have thought that even probationary employees are employees, if not under state labor laws, under federal copyright law.

Copyright Claim in Frog Croaks

The Ninth Circuit has taken a singularly restrictive approach to claims of copyright in sculptural works depicting real animals. For example, See Satava v. Lowry, 323 F.3d 805, 810 (9th Cir.2003) the court held that a glass jellyfish sculpture was unprotectible as “commonplace and typical of jellyfish physiology.” The most recent case is George S. Chen Corp. v. Cadona International, Inc., 2008 WL 152651 (9th Cir. Jan. 17, 2008). The opinion is marked not for publication, but it contains a substantial dissent by Betty Fletcher, illustrating once again the lawless of courts in attempting to deny precedential value to opinions that contain important discussions of law: if the issues were important enough for Judge Fletcher to dissent, the opinion is enough to issue as published.

Plaintiff claimed infringement of copyrights on dolphin, frog, and moon/star wind chime ornaments, and on a stand-alone frog ornament. The district court granted summary judgment to defendant; the court of appeals affirmed.

Plaintiff testified that it tried to make its works “approximately true to life,” testimony that the court of appeals seemed to be quite important, but why? There is no Platonic frog, and even among frogs, there are many different types, and among types many different looking individual specimens. Additionally, all sculptors must decide which features to emphasize, de-emphasize, delete, or add. As a parent who has bought dozens and dozens of stuffed animal toys, I can testify that even among frogs there is a wide variety to choose from, some of which are a hit at home, and others rejected.

The court placed on plaintiff, apparently, an obligation “to identify any elements of the dolphin or frog that it selected that are not commonplace or dictated by the idea of a swimming dolphin or sitting frog sculpture” According to the majority, plaintiff’s owner’s concept was

“to make a ‘cute’ dolphin-with an open mouth and an uplifted, twisted tail which made it appear to be swimming-but these features necessarily follow from the idea of a swimming dolphin.… There is no indication that the frog is anything but a stereotypical frog, sitting as a frog would sit in nature. Although a combination of unprotectable elements may qualify, [plainfitiff] points to no elements that, considered together, have a sufficient quantum of originality for copyright protection. …Nor does [plaintiff] show any respect in which George Chen made choices that contributed a non-trivial, original feature. Accordingly, [plaintiff] has failed to show the quantum of originality that is required … for even thin protection.

In her dissent, Judge Fletcher noted that plaintiff’s registration entitled it, prima facie, to protection, and that defendant:

“Cadona did not offer any evidence of its own to rebut that presumption, relying instead on the bare legal argument that under our decision in Satava v. Lowry, GSC's works do not merit copyright protection because they are based on items that exist in nature. 323 F.3d 805 (9th Cir.2003). Satava, which was not a summary judgment case, does not so hold. Id. at 812 (“We do not hold that realistic depictions of live animals cannot be protected by copyright.”). It is true that in Satava the court found that copyright protection for items from nature does not extend to aspects of a work “resulting from [an animal's] physiology.” Id. at 810. But this language from Satava does not empower the district court, nor this court, to act as fact-finder and arbiter of originality on summary judgment. North Coast, 972 F.2d at 1035 (“The plaintiff was entitled to have the validity of its copyright determined by a trier-of-fact.”).

Even if Cadona had carried its burden on summary judgment-and it did not-contrary to the majority's suggestion, [plaintiff] placed in the record a declaration from [plaintiff’s- president identifying artistic choices made in creating the ornaments sufficient to raise a triable issue of fact on originality. …

The majority apparently shares the district court's subjective opinion that the plaintiff's works are simply too “stereotypical” to warrant copyright protection. Maj. op. at 2. But the Copyright Act does not allow copyright registrations to be invalidated on nothing more than a failure to conform to a particular judge's idiosyncratic notions of creativity. An artist or craftsperson can create a work based on an animal using his skill and artistry and imagination that is “original.” He can copyright his creation. And if a defendant makes an exact copy of that work, that artist is entitled to have a jury decide whether or not his work is original enough. I respectfully dissent.

Without having seen the works oneself, it is not possible to take sides, but in the abstract, Judge Fletcher states the better case.

The Natural Rights Issue

Claims that copyright involves human rights or is a property right are based on the theory that copyright is also a natural right -- a right that exists independent of legislative enactment, even if there are legislative enactments. In the United States, copyright is not a natural right, since the Supreme Court has said so twice, first in 1834 in Wheaton v. Peters, and then in 1932 in Fox Film Corp. v. Doyal. Yet, rhetoric based on a natural rights basis for copyright are behind all the claims that those who use copyrighted works without permission are thieves or pirates. If copyright is instead a limited privilege that parcels out limited control to copyright owners, one might view issues differently.

Professor Tom Bell has a draft of a book that takes on these issues and many others, called "Intellectual Privilege: Copyright, Common Law, and the Common Good," available here. There is a lot of good thinking and research, and I encourage others to read it.

Appeals to Human Rights: The Next Battlefield?

In yet another sign that the water will never be safe when it comes to proposals to grant copyright owners ever greater rights beyond the current Incredible Hulk level, the groundwork is being laid for a new source of law: human rights. In this battle, the push may be limited to individual copyright owners, although recently at an International Governance Forum meeting in Rio on the proposed broadcast treaty, a speaker from the Council of Europe, billed as an "international human rights attorney" stated that intellectual property rights are human rights. I confess to being moved to tears by European human rights attorneys taking up the cause of very large U.S. broadcasting corporations: Donald Rumsfeld was so wrong.

The beauty of the approach to new rights as human rights is that according to some of its advocates it doesn’t have to rely on new legislation – much like Jimmy Stewart woke up one morning and discovered to his amazement that he had been speaking prose his whole life – some day soon we may wake up and find that vague human rights declarations bind nations to grant authors new, formidable rights. Like Winston Churchill, I say we must oppose this effort with everything we have:

We shall go on to the end, we shall fight in France,
we shall fight on the seas and oceans,
we shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be,
we shall fight on the beaches,
we shall fight on the landing grounds,
we shall fight in the fields and in the streets,
we shall fight in the hills;
we shall never surrender


The effort to shoehorn copyright within human rights is not an overnight phenomenon, see e.g., F. Dessemontet, ‘Copyright and Human Rights’, in: Jan J.C. Kabel and Gerard J.H.M. Mom (eds.), Intellectual Property and Information Law - Essays in Honour of Herman Cohen Jehoram, The Hague/London/Boston: Kluwer Law International 1998, p. 113; M. Vivant, ‘Le droit d’auteur, un droit de l’homme’, [1997] 174 RIDA 60; A. Kéréver, ‘Authors’ rights are human rights’, [1999] 32 Copyright Bulletin 18. Article 27 (2) of the 1948 Universal Declaration on Human Rights reads:

“Everyone has the right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” Article 19 of the Convention states, “Article 19: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” And Article 27(1), which proponents of copyright as a human right do not cite in favor is Article 27(2), reads, “(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”

Article 15(1)(c) of the United Nations Covenant on Economic, Social and Cultural Rights reads: “The States Parties to the present Covenant recognize the right of everyone: […] (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” But neither of these lofty statements requires implementation in any specific form, and for good reason: that was the job of the Berne Convention. Nor do they forbid any exceptions to the rights; phrased more accurately, they do not state how far the author’s rights must go.

On November 21, 2005, the UN High Commissioner for Human Rights issued a document (called General Comment No. 17) on Article 15(1)(c), available here.

The document is a call to arms by fellow travelers, one of whom appears to be Professor Graeme Austin of the University of Arizona law School. In a paper authored with a law student at the school, and posted here on ssrn.com, Professor Austin tries to make the case for copyright as human right. Here I face a problem: even though the paper has been posted on ssrn.com and is accessible to anyone around the world, and may be freely downloaded from that site, there is the following legend on the bottom of every single page: “Graeme W. Austin, Copyright Law Reform Through a Human Rights Lens. Working draft: please do not quote or cite without permission. To be published in: Intellectual Property and Human Rights (Paul Torremans, ed. Kluwer Law International 2008). I fear I may have already contravened the legend merely by quoting it. What should a conscientious person do when faced with such a dilemma: a freely available work that the author has tried to make not citable or quotable from? Is doing so bad manners, copyright infringement, or, dare I ask, a violation of human rights? This last possibility would be ironic since Professor Graeme attempts to justify treating copyright as a human right in part by asserting concerns over censorship of authors (see pages 13-14), but as in all paeans by maximalists, there is also only one author, the copyright owner who claims foul, even if crying foul suppresses other authors; those other authors either are not authors or are a subspecies of authors who are not entitled to human rights.

Professor Graeme also trots out the old saw of protecting what he calls creators’ vulnerability; we are told attacks against authors, both blatant and covert continue today, although none of the examples cited have a thing to do with copyright issues. (see pages 11-14. Again, only one type of author is vulnerable; those authors who have been subject of oppressive claims of infringement by other authors in an effort to stifle them are apparently not authors or are a subspecies of authors who are not entitled to human rights.

The purpose for asserting a human right of copyright is clear enough though: to avoid the meager limitations and exceptions that exist, and to avoid any sort of check on copyright by messy theories of instrumentalism, instrumentalism being the theory that copyright is designed to serve a socially useful purpose, as compared to vesting copyright owners with the unfettered right to stop all uses of their work. Lest readers think I am overstating this, I will do what the legend on each page says I shouldn’t do, quote from the article. I do this not to make a point about the legend, which I find obnoxious, but because I cannot criticize Professor Austin’s article without doing so: the passage in question is so remarkable that it must be read, for in it he expresses quite clearly the human rights agenda. Here it is (pages 8-9):

Considerable embarrassment for the human rights agenda might be caused if a human right to intellectual property were understood as coinciding exactly with the :instrumentalist” intellectual property rights protections required by the TRIPS Agreement. Rather than providing a source of limiting principles, human rights could instead establish a basis for assertions of requirements for stronger protections than are provided by existing intellectual property laws. If human rights “trump” intellectual property law, their power to constrain intellectual property may be undermined if human rights law itself requires protection of intellectual property.

That last sentence is an oxymoron, and he later acknowledges (quoting again!,for the same reason, here from pages 34-35):

[L]egal obligations relating to creators; human rights do not of course enjoy the same dispositive ‘bite’ as specific obligations in the international intellectual property regime. But creators’ human rights should have at least some, and perhaps powerful, normative claims that should be reckoned with in the context of domestic law reform agenda. Acknowledging creators’ human rights may deepen our understanding of the implications of law reform deliberations.

So what are the human rights in question: fish or fowl, real rights in the sense of obligations that are binding on states, or are lofty statements like those in the U.S. Declaration of Independence that express principles but not law. And what are the rights at issue any way? Would they reach my quoting in this blog against the author's legend? I can’t say I know, but I do know that they would not, according to the article, be subject to the U.S. constitutional objective of promoting the progress of science: no such grubby aspirations for human rights advocates!

At this point one might sit back and say, ah idle academic prattle. Not so, arguments are being made in EU courts on the issue, and in the recent UK Lord Triesman follow up report to Gowers, this remark is made in paragraph 37:

Ministers will be required to make a statement in accordance with section 19 of the Human Rights Act of 1998 that the provisions of any amending instrument are, in their view, compatible with the European Convention on Human Rights (“ECHR”). The primary relevant ECHR consideration is whether Article 1, Protocol 1 ECHR is engaged. We will need to consider this once the proposals are developed following this consultation and will comment further when we consult on the draft statutory instrument.

How, for example, will permissible limitations and exceptions work out with the famous three-part test, or parodies, if as Professor Austin advocates, the instrumentalist approach to copyright as a human right is not employed: so what if the use doesn’t harm the market; all that matters is that the authors’ dignity has been impaired. Indeed, in the U.S., a prominent scholar at a New York City University opposed permitting fair use to act as a defense to the artists’ rights granted in the 1990 Visual Artists Rights Acts. Fortunately, I convinced Congress otherwise, but these and other issues will be raised again if the human rights approach gains traction.

Winston Churchill, where are you now that we need you?

Scrabbling Copyright

A recent suit in India, followed by Hasbro, over an online version of Scrabble called Scrabulous shows another side of social networking sites: the ability to change a gaming experience between two people into one taking place over continents, involving, it is reported, 2.3 million daily users on Facebook. Permission was allegedly sought, but not received; not surprising since Hasbro granted Electronic Arts exclusive rights. But I don't think EA had put out a social networking version, which is reportedly quite addictive, and can be played out over days, not hours, and across continents, not just living rooms. (I played Candyland with my twins this morning, so traditional board games are still viable too).

There are unauthorized versions of other games, including of Hasbro's Monopoly and Boggle, but in those cases, the games were altered. Copyright in games extends only to the graphic elements and textual explanations, not to the way the game is played, so it is possible to make some changes and avoid infringement. The reaction of fans of Scrabulous Hasbro's actions has not been positive.

Appropriation Art Again

Shepard Fairey had a solo art exhibit in LA in December. Among those commenting on the exhibit was Mark Vallen, who with the help of other artists, published online a lengthy, fairly savage attack on Fairey's unattributed appropriation from a vast number of sources. Vallen provides side by side comparisons and detailed discussions of each piece. Vallen's article is noteworthy in a number of respects: it represents one group of artists challenging another artist, and it sets out some thoughts on what he thinks represents genuine appropriation art from mere plagiarism. I imagine not all will agree with Vallen's approach, but the article is thorough, and would make for an excellent presentation at a seminar or law school class. Here is the link. Hat tip by the way to my favorite online sneaker website, hypebeast.com

The Dead Hand of widows, including Zappa's

In arguing for meaningful fair use of unpublished works, Second Circuit Judge Pierre Leval expressed worry about what he called the dead hand of widows (not as many men get to claim widower status): widows of authors who suppress biographies they don't like (and they only ones they ar elikely to like are the ones that they pre-approve and get license fees for). The blight extends to children and especially grandchildren, who under the guise of protecting the artistic vision of a dead relative they may have only slightly known, also seek to suppress performances they don't like; the dust-up with James Joyce's relatives being a recent one on the English-speaking world, and Victor Hugo's being one in France.
Now we have an example of the dead widow syndrome that takes the cake, one involving Frank Zappa, whose band "The Mothers of Invention," gives the story a very ironic twist. The item comes from my favorite UK website, IPKat:

The IPKat's friend Ben Challis of Music Law Updates has sent him this item, which he describes as "disturbing", about the current state -- or is it fate -- of Frank Zappa tribute bands. According to the Herald & Review

" ... Frank Zappa died 14 years ago, just short of his 54th birthday. While it might be hard to believe for those who know Zappa for "Valley Girl" and "Don't Eat the Yellow Snow," his 60-plus albums represent a valuable canon to a pocket of fans ...

That music has also launched about a dozen tribute bands that play both here [ie the US, or "there" as it is known to us Europeans] and in Europe. In addition, Zappa Plays Zappa, a group headed by Frank's son Dweezil, has conducted a pair of tours of the United States, recently toured Australia and is planning shows in Japan this month.

The problem is, Zappa Plays Zappa is the only group authorized by the Zappa Family Trust, the group that controls Frank Zappa's estate. And the trust spent much of December sending out cease-and-desist letters to blogs, to tribute bands and to a European memorial concert that's been going on since 1990 (one that Frank Zappa endorsed during his life).

The trust's cease-and-desist case - which has altered but not shut down any blogs, and which failed to stop at least two tribute band performances it was designed to halt - seems to rest on the interesting yet dubious assertion that, quoting the letter from trust lawyers posted on the Web site of tribute band Bogus Pomp:

" ¦ (ASCAP) licenses ¦ limit the grant of rights to nondramatic performances ¦ Many works by Frank Zappa are inherently dramatic in nature."

Carried to a logical extreme, any band that performs a tribute to another band in some "dramatic" form is performing against the law. Isn't any performance on a stage "dramatic" by definition?

...

The law certainly has its place in the entertainment industry. Unreliable acts and unscrupulous promoters and venue owners need to have their feet held to the fire.

But lawyers are out of place when they begin to affect the art, and the audience's enjoyment of same.

Frank Zappa said it best during his lifetime:

"If you're a musician, play my music. If you're not a musician, play my music."

The IPKat would like to know what's going on here. If a licence to perform has been obtained and the performer is neither infringing any Zappa trade mark nor passing itself off as the long-dead hero, and no representation or suggestion is made that the tribute band has been officially endorsed, isn't that enough? Merpel says, one should not forget the extent to which the deceased promoted the image of the furry feline through such oeuvres as Yo Cats and Alley Cat.

As those playful kittens might have noted, limitation of the term of protection to life of the author (for copyright, right of publicity, and all rights) would take care of these problems. I note too this entry from wikipedia:

Situated in New York, and only interrupted by the band’s first European tour, the Mothers of Invention recorded the album widely regarded as the peak of the group's late Sixties work, We're Only in It for the Money (released 1968).

CNN Tells Us How to Burn Analog Music to Digital

Whether as a follow-up to their segment on the RIAA v. Howell dust-up about personal copying or not, CNN did a story today how to transfer your LPs or cassettes to digital form: here is the link, which is an interview with datadoctors.com. A future segment will deal with how to transfer video tape.

A Friday Grab Bag

Two items from Canada are much in the news. The first is the Canadian Court of Appeals reversal, within 24 hours of oral argument, of the imposition by the Copyright Board of a levy of up to $75 on iPods. See here. (Congrats to Howard Knopf). Then, following up on an earlier posting, Avril Lavigne has confidentially settled her copyright dispute, see here. In the UK, after issuing the comprehensive follow-up to Gowers discussed in this blog two days ago, Lord Triesman has apparently abandoned the topic entirely, resigning his government position and taking a job as President of the Football Association, see here. He has a longstanding interest in the subject, as a player, referee, and coach. His appointment surprised many, especially those at Manchester United, who had expected one of their own to be appointed.

Back in the U.S., Professor Tim Wu has a piece on Slate about the Harry Potter Lexicon suit, here, in which he states:

Rowling is overstepping her bounds. She has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn't. Rowling owns both the original works themselves and any effort to adapt her book or characters to other media—films, computer games, and so on. Textually, the law gives her sway over any form in which her work may be "recast, transformed, or adapted." But she does not own discussion of her work—book reviews, literary criticism, or the fan guides that she's suing. The law has never allowed authors to exercise that much control over public discussion of their creations.

Unlike a Potter film or computer game, the authors of the Lexicon encyclopedia are not simply moving Potter to another medium. Their purpose, rather, is providing a reference guide with description and discussion, rather like a very long and detailed book review.

Architects, Profits, and Hearsay Objections

Cases involving damages for infringement of architectural plans and works raise some interesting questions, ones that have been discussed on this blog before. A recent Fifth Circuit per curiam opinion, Powell v. Penhollow, 2007 WL 4513119 (5th Cir Dec. 21, 2007), also brings in the perils of proof. The facts are fairly routine: architect hired to create plans, client without permission gives them to other architect who finishes job. First architect sues. There are a few twists, though: the first architect initially sued in state small claims court for unpaid fees and obtained a default judgment which was satisfied (thereby precluding an award of actual damages), and the defendant in the infringement case did not appeal an infringement finding. The appeal was by the successful plaintiff who complained about the amount of the award of defendant's profits by the magistrate judge and the judge's admission of a summary of defendant's profits without the originals being made available. The Fifth Circuit vacated a portion of the award and remanded for a new trial, which may or may not increase the damages, which were: $546.

The evidence point is a common one: defendant was trying to prove the amount of its overhead, in order to deduct it from any award. It had a summary document created which it offered into evidence; plaintiff objected, but the judge let it in, remarking as judges are wont to do: "The court will give it such credit as it deserves in the way of accuracy and so forth." Very reassuring; and also in conflict with Federal Rule of Evidence 1006 which requires that where there are voluminous writings etc. that cannot be conveniently examined by the court, a summary is fine, so long as the underlying originals are made available for examination or copying," which wasn't done. As a result, the court of appeals tossed that part of the award that relied on the summary.

The court of appeals then went on to the apportionment of damages issues; the magistrate had awarded only 1% of defendant's profits to plaintiff. The infringing house (or more accurately, a house built by using infringing plans), was sold for $950,660.42. Defendant claimed its direct costs were $837,672.15, with additional direct overhead costs of $41,280.76 and what were called "allocated overhead costs" of $56,810.25, leaving net profits of $14,696.65 . The magistrate never explained how he or she go to the $564.40 figure, but the court of appeals believed it represented 1% of total revenue for the house ($56,439.62). Plaintiff disagreed with all but the amount the house sold for. But even if plaintiff is successful in upping the amount, one imagines the case is a net loss: two trial and one appeal, and (I think but don't know for sure) no attorney's fees due to failure to register until after infringement.

The UK Consultative Document and the Problems of Private Copying

In December 2006, Andrew Gowers, an editor of the Financial Times, issued a report and recommendations to Gordon Brown, then Exchequer, on various issues related to copyright. One controversial part of the Gowers report was his rejection of a call by dinosaur rockers for an extension of the term of copyright for sound recordings. But there were other, meat and potato recommendations too. Yesterday, the UK Intellectual Property Office, under the auspices of Lord Triesman, the Parliamentary Under Secretary of State for Intellectual Property, which issued a very substantial document, “Taking Forward the Gowers Review of Intellectual Property: Proposed Changes to Copyright Exceptions.” The document begins a formal process of implementing recommendations, in two stages: (1) the submission of public comments by April 8; (2) followed by a draft law, which will be the subject of its own consultative process.

“Taking Forward” is an exceptionally thorough, careful document, setting out the issues and laying out a number of options. It does not propose specific statutory language and in some cases does not make recommendations, in favor of discussing problems and options. There are five categories of issues covered: (1) educational exemptions (2) format shifting; (3) research and private study; (4) libraries and archives; (5) parody. I will focus only on the format shifting issue because it is meaty enough by itself and because it relates to the Howell case in the U.S. The remainder of the document should be carefully studied though.

In a déjà vu to the recent brouhaha over the RIAA’s position in the Howell case, “Taking Forward” notes in connection with format shifting (para. 81): “The current law is difficult to enforce in this area. Not only may it be difficult to justify the illegality of such activity but, because the restrictions are seen as unreasonable, they can often be damaging to the public’s perception of copyright. Many consumers simply do not understand why the act of transferring music from CDs they own to their MP3 players is illegal.” “Taking Forward” proposes (but with lots of alternative options) a format shifting exception for personal, private use. Format is defined to include not just CD to MP3 but also PC to portable player or CD (the last of these less likely). File sharing is not regarded as format shifting. There would be no right to give away or distribute the copy made; third parties could not make copies for individuals' personal use, and most significantly, the document recommends that the exception only apply to works copied after the exception is enacted. This last recommendation leaves in limbo the status of copies made before legislation is enacted, an approach that will leave a legacy of uncertainty about the law in an initiative whose purpose is to bring certainty.

“Taking Forward” does a very good job of reviewing the complexity of possibilities. Readers can review the document themselves (see pp. 15-20), so I summarize some of the issues.

1. The classes of works to which the exception would apply, i.e., just music, or audiovisual works, photographs, literary works, artistic works, computer games. and other works too? If works beyond music, should the exception be the same for all types of works or should it be different for each type of subject matter?

2. Which format shifts should be covered: analog to digital, digital to digital, CD to MP3, CD to PC?
3. Should consumers be permitted to give away the original once a copy has been made? What about giving away an iPod with burned copies in it?
4. Should third parties be able to make copies for consumers?
5. Should consumers be limited to making one copy if the purpose of the other copy is also to use on a different device?
6. Should the exception apply retrospectively or only prospectively, and on what basis?
7. Should levies be imposed for some or all of the exceptions?
8. Should DRM attach?


Note that the format shifting proposals do not attempt to solve all noncommercial copying; there are still fair dealing issues, covered in the recommendations on private research and copying, as well as educational and library issues. On amending current fair dealing provision in Section 29 of the CDPA, the Document makes a polite criticism of Gowers: "The recommendation made by the Gowers Review were fairly broad brush and leaves a number of questions to be resolved concerning the appropriate scope and form of any amended exception for research and private study." (Para 131). As an American, one thing that particularly interested me was the Document's recognition of the conflicting needs for clear guidelines so that people can know what they may do and what they may not, and the countervailing ad hoc nature of so many determinations. In my opinion, these needs should be addressed separately, but in tandem: there should be clear guidelines where it is possible to have them, but there should also be a safety valve provision for those where it is not possible to foresee specifics, but where a policy can be articulated. English courts operate very well in the period between the Statute of Anne (1710) and the 1911 UK Act in forging such ad hoc principles and in their application and there is no reason to think they cannot do so now.

Karaoke Blues

Jewishmusic.com sent me an email the other day touting the release of "Jewish Karaoke and Band Music" CDs. From the pictures on the CDs, they contain the type of music that would turn any bar/bas mitzvah into a relic of the 1950s, fond or not depending on one's nostalgia level. There have been two court of appeals opinions on copyright and karaoke in 6 months, a number that bears no relationship to the complexity of the issues raised. The recent, and the first appellate opinion on copyright in the new year is Leadsinger, Inc. v. BMG Music Publishing, 2008 WL 36630 (9th Cir. Jan. 2, 2008), from the Ninth Circuit. The earlier opinion is Zomba Enterprises, Inc. v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007). (See also ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60 (2d Cir. 1996)).

Leadsinger was a declaratory judgment action, and had a few inconsequential twists, like printing out the lyrics and not just displaying them alongside a performance of the music. The courts have agreed with copyright owners that karaoke manufacturers require a sync right and are not entitled to the Section 115 compulsory license, the difference being that a sync license is issued at a market rate. The sole wild hair seems to be EMI Entertainment World, Inc.v. Priddis Music, Inc., 505 F. Supp.2d 1217 (D. Utah 2007).

It is not the result in the Leadsinger opinion that interests me, but rather some weird language in the opinion. For example, “As the definition of phonorecords indicates, audiovisual works are not phonorecords. See id. §101. Thus, §115’s compulsory licensing scheme does not apply to audiovisual works.” (page 7). True enough that audiovisual works aren’t subject to the Section 115 compulsory license, but not because they are not phonorecords: no works of authorship are phonorecords. Phonorecords are the physical embodiments of works, not the works themselves. Only nondramatic musical works are subject to the Section 115 compulsory license, and audiovisual works aren’t nondramatic musical works. Audiovisual works are, by the way, embodied in copies, not phonorecords; the definition of phonorecords explicitly excludes the embodiment of audiovisual works, and that was the simple answer to the case before the Ninth Circuit.

Can nondramatic works that contain lyrics be subject to the Section 115 compulsory license? Yes, when they are part of a performance of the musical composition in a cover. While there is no definition of musical work in Section 101, Section 102(a) protects “musical works, including any accompanying words.” The Ninth Circuit though, for reasons that escape me, wrote that “Song lyrics are copyrightable as a literary work and, therefore, enjoy separate protection under the Copyright Act.” (p. 8). Nu?

Then, the court really goes off the deep end: “That the definition of literary works includes the phrase ‘other than audiovisual works,’ confirms that a literary work may constitute an audiovisual work if it also fulfills the definition of an audiovisual work.” (p. 10). Huh? Am I alone in thinking this makes no sense?

What RIAA Has Said About Home Taping

There is no substitute for actually reading what people say about issues, although I remain surprised that there are still seem to misreadings of the RIAA’s supplemental brief in the Howell case. After listening to the NPR interview last week with Marc Fisher and Cary Sherman about the Washington Post’s misreading of the Howell complaint, I went out into my back garage where I keep, in no order at all, hundreds of older Congressional committee reports and hearing transcripts. After two trips, I found what I was looking for: the transcript of a Joint Hearing in 1987 held by the Senate and House IP subcommittees. The title of the hearing is “Copyright Issues Presented by Digital Audio Tape,” 100th Congress, First Session, April 2, 1987, Senate Serial No. J-100-13, House Serial No. 6. If you get a copy of it, it is well worth reading for the Yogi Berra feeling it gives, especially quips "It's like déjà vu all over again" and “I never said half the things I really said.”

The lead witness was Jason S. Berman, President of the RIAA. (He was followed as RIAA President by Hilary Rosen and then by Cary Sherman. He and Ms. Rosen now have a consulting company.) The hearing was an oversight hearing, meaning there was no bill on the table, but rather an issue, and that was issue was the existential threat allegedly posed by DAT (digital audio tape). Mr. Berman began by testifying “DAT poses the most significant technological threat the American music industry has ever faced.” (page 4). After invoking such a folk devil, there was of course a solution: more rights!: “At the same time it offers a significant opportunity for Congress to craft a timely and uniquely suitable legislative response as we enter what will be the next phase of the home taping problem, a problem that has worsened over the years.” This much is standard fare: the set-up is so ubiquitous that I could draft testimony like this in my sleep.

What interested me was how analog home taping was put forth as an epidemic (or in the current hyped-up environment what would be called a "global pandemic" and "a dagger into the heart of America's future economic security," and how there was no mincing of words that copying of analog tape for personal use was infringing and not fair use. (I am leaving out the numerous, blatant xenophobic attacks on Japanese manufacturers). In written questions sent to Mr. Berman by Senator DeConcini after the hearing, Mr. Berman was asked:

There are two kinds of home taping. Copying copyrighted material for commercial use is clearly illegal, and I will strive as Chairman of this subcommittee to protect copyright holders from piracy. But home taping for personal use is arguably “fair use” under the copyright laws. How does the proposed DAT legislation maintain thus distinction? (Page 36).

Here is as much of Mr. Berman’s response as makes sense to reproduce here to avoid any conceivable claim of quoting out of context; I will, moreover, create a pdf of the whole answer Tuesday and send it to those who want it. Bear in mind that he is referring to copying of analog tape by individuals at home for what everyone else would call noncommercial purposes. Here are RIAA’s answers to Senator DeConcini, reproduced in the hearing transcript:

Under Section 106(1) of the copyright law, the copyright holder is granted an exclusive right to reproduce the copyrighted work. There is no statutory exemption that permits “personal” copying merely because it is not commercial. Nothing in the copyright statute distinguished between “personal” copying and commercial copying.
…
The only conceivable basis for exempting home taping from the provisions of Section 106 would be the fair use doctrine, addressed in Section 107 of the copyright law.
[quotes statute]
None of these factors, however, justifies the conclusion that home taping of copyrighted sound recordings should be considered a fair use.
First, home taping is a commercial use within the meaning of the “fair use” provision despite the fact that the home taper may not charge for his or her copies. [quotes Harper & Row v. Nation].
Second, copyrighted works are sold for the purpose of entertainment. The home taper seeks to use the copyrighted work for the same purpose. …
Third, home tapers record entire musical collections. Their appropriation of the copyrighted work is total.
Fourth, the economic effect of copying on the potential market for the copyrighted work grows is so sever that the defense of fair use cannot be invoked. The studies, the market statistics, and economic analysis of the home taping problem vividly document home taping’s adverse effect on sales of records and prerecorded tapes. The displaced sales, lost because of home taping, cost the industry $1.5 billion annually.
…
Thus, there is no personal use exemption, nor any fair use immunity for home taping. Contrary to the premise of the question, there is no distinction between commercial and home personal taping.
(pages 37-39, emphasis in original).

Senator DeConcini then asked “Can you cite any case law for the proposition that home audio taping for noncommercial purposes violates the copyright laws?” (Page 39). Mr.