Monday, June 06, 2005

The Sixth Circuit Reaffirms Controversial Sound Recording Opinion

In 2004, a panel of the Sixth Circuit issued an opinion in Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004). On December 20, 2004, the full court of appeals denied a petition for rehearing en banc, but a panel rehearing was granted limited to discrete issues raised in Section II of the original panel opinion, 401 F.3d 647 (6th Cir. 2004)(perhaps the quid pro quo for the rehearing en banc being denied).

On Friday, June 3, 2005, the panel issued a new opinion in which it "adhere[d] to our conclusions and amend the opinion to further clarify our reasoning." 2005 U.S. App. LEXIS 10140 (6th Cir. June 3, 2005).

The original panel opinion, as well as Friday's, are controversial, for at least two reasons. First, the panel adopts a different approach to infringement of a musical composition embodied in a phonorecord than for infringement of the sound recording embodied in that same phonorecord; second, the difference lies in the lack of any requirement of even a de minimis taking for sound recordings. (While finding that a sampling of three notes was infringement, the court demurred on whether sampling of one note would be. I fail to see any basis in the court's reasoning for excusing the taking of one note when three is infringement).

While the court stated that its analysis began "and largely ended" with the language of Section 114(a) of the Act, there was no language cited to that supports the court's view that Section 114 abolished the previous substantial similarity test employed by the courts for all other subject matter. It is true, as the court stated that a bright line test, one which says "Get a license or do not sample" provides "ease of enforcement." But that is equally true of all other subject matter: you want to parody a work, get a license; you want to write a book review, get a license; you want to quote three words from a poem in a movie, get a license.

The court believed that samplers don't take accidentally, but that is true of all my examples, and the more than de minimis copying requirement for substantial similarity has never been based on unconsicious copying. Nor is there anything special about copying by sampling versus copying by incorporating three notes from a musical composition into another musical composition or into a phonorecord. The court also believed that even three sampled notes have value. Ditto other copying, but whether the portion copied has value has never been the test for infringement (although it is relevant at the much later fair use stage).

Bridgeport is policy making wrapped up in a truncated view of law and economics, shorn of analysis of all the public interest factors and harm to derivative creators that nuanced exponents, such as Judge Posner, engage in. It is also bad for record companies on two fronts (and I think it important to note that this is not an RIAA suit). First, it adds fuel to the fire for those who believe record companies are engaged in an effort to prohibit any and all unauthorized copying (I think this is not an accurate view, by the way). Second, it harms record companies by forcing them (at least in the 6th Circuit) to engage in a retroactive process of determining who they may have to pay off for past, unpaid samples and well as possibly requiring them to institute extremely restrictive future policies.

But in the end, it is creators of new sound recordings who build, transformatively on the works of predecessors who will suffer the most, and thereby all of us. Hopefully cert. will be granted, and the 6th Circuit reversed.


Anonymous said...

Music and literature thrive on creative copying . Copyright necessarily creates a bias against some forms of creative copying. No form of copyright law that is likely to exist in our lifetime will allow us the full range of freedom we had before copyright's scope came to be extended to individual musical airs. In theory the public has consented, through its elected representatives, to have some of its inherent rights in music and letters temporarily alienated and bundled into the exclusive privileges of copyright, in order to gain a greater variety of music and letters than it would otherwise have. But in practice we are getting a lousy deal. The Bridgeport decision shows how sensitive is our remaining margin of freedom in recent musical works to the whims of judges .

If we had a shorter term of copyright, our system of cultural law would be more robust: It would be better able to roll with judicial punches such as this Bridgeport decision. If more sound recordings and recent works of music were publici juris by now, those who wanted to practice sampling and other forms of creative copying would have a reserve of publici juris works from which to draw. Their ability to fall back on the public domain would in turn create economic pressure on licensors to lower their prices somewhat. And the publici juris reservoir would allow a fallback in case of adverse legal decisions such as the Bridgeport decision. But because the duration of copyright is now so absurdly long, this moderating effect of the public domain is reduced.

Anonymous said...

Footnote 6 may be instructive as to where the court began its detour -- they seem to have confused, inter alia, the distinction between "substantial similarity" (meaning improper appropriation) and probative similarity. The citation in the footnote is correct that in the case of admitted copying there is no question of probative similarity or access -- with an admission, there is direct evidence of copying. But that doesn't end the inquiry, because the probative similarity prong can include the copying of unprotected elements.

In the substantial similarity analysis (which is better referred to as the improper appropriation analysis since it avoids confusion), the question for the trier of fact is whether a sufficient amount of copyrightable authorship was improperly taken from the copyright owner.

Even though the three notes don't sound alike in the two works, we know it was copied from the undisputed facts, thus copying was proven and there was no need to consider whether the works were similar to establish copying. In the improper appropriation prong, however, the fact of copying does not do away with this ultimate question of whether an improper amount of copyrightable authorship was taken. As much as the court appeared to be annoyed with the lack of a necessity for copying (i.e., it would have been easy to recreate the sounds without infringing the sound recording), that is not sufficient justification for doing away with the improper appropriation analysis.

The courts apparent misunderstanding of section 114 is another matter.