Tuesday, March 04, 2008

An Interesting Fair Use Project

Professor Peter Friedman of Case Western Reserve University, in the very hot political state of Ohio, has started a unique blog that is well worth visiting. As part of his legal analysis and writing class, his students are compiling briefs on either side of a lawsuit alleging copyright infringement in connection with real actors, but supplemented by fictional materials to squarely frame the fair use issue. The name of the site is "What is fair use. Here’s the URL: http://whatisfairuse.blogspot.com/

As explained on the site:
Students are writing cross-motions for summary judgment in a fictional lawsuit brought by ASCAP and the owners of the copyright to "Que Sera, Sera (Whatever Will Be, Will Be)." The Plaintiffs (represented by half of my students) allege infringement of their copyright in Que Sera, Sera by the KLF, the creators of a recording entitled "K Cera Cera."

There are also many other posts on fair use issues, including embedded links to video satires. Check it out.


paul said...

It's a clever idea, but if I read the Complaint correctly it doesn't involve any rights that ASCAP has from its members, so the Soceity isn't a proper party.


Peter Friedman said...

Paul, you make a good point, but please note it's a fictional class project, and I wanted to bring up the possibility of associational standing. Arguably, though not likely, ASCAP has associational standing in the lawsuit (and obviously would provide a nice deep pocket to fund the lawsuit). At any rate, the students will focus their efforts entirely on the fair use issue. But there's so much to teach in this first year of law school, and I thought it was at least worth raising the standing issue.

Peter Friedman

Anonymous said...

I also think that music cases are particularly problematic in assessing fair-use questions for two reasons: (1) unlike any other type of copyright, Section 115 prevents the holder of a music copyright from withholding permission for many uses and so the normal fair use issues become murky. For example, what does a copyright owner do where he objects to the new version on content-related grounds, but the creator of the new version complies with the requirements of Section 115? Music is a murky area because it blurs the distinction between a monopoly right for creative integrity and a monopoly right to create an economic incentive. If the incentive prong is satisfied, does copyright give a creator the right to exclude? In the US, I can't give an unqualified yes to this question. (2) With music parodies, the parody/burlesque distinction can't be as sharply drawn than it is with other types of works. This is because irrespective of how one characterizes the new lyrics, the music is almost always used without any alteration at all. If the requirement for the parody fair-use defense is that it "criticizes" the original work, how does reproducing the original music note-for-note accomplish that? Shouldn't the parodist also have to alter the music as well as the lyrics (which it can be argued that 2 Live Crew did do)? And what about using an instrumental piece and writing "parody" lyrics? If the requirement is "criticism," can this ever be fair use?

William Patry said...

I don't think associational standing applies. I think Section 501 limits those who may sue to legal or beneficial owners. That's why ASCAP suits are brought in the copyright owners' names. You will though find cases brought in BMI's name, which a few courts have rejected, but all should, since I beleive under the consent decree they can only own non-exclsusive rights, and hence can't sue on that basis.

Anonymous said...

ASCAP's membership agreement, in addition to granting non-exclusive rights and thus potentially tanking its standing, specifically includes the right to bring suits (this from the Writer's Agreement): "...(a) All the rights and remedies for enforcing the copyright or copyrights of such musical works, whether such copyrights are in the name of the Owner and/or others, as well as the right to sue under such copyrights in the name of the Society and/or in the name of the Owner and/or others, to the end that the Society may effectively protect and be assured of all the rights hereby granted." (full agreement available at www.ascap.com)

Peter Friedman said...

Mr. Patry is correct in stating that the lawsuit does have to be brought in the copyright holders' names, but ASCAP can and often does bring it, in their names, on their behalf. Thus, though ASCAP should not nominally be a plaintiff in my fictional lawsuit, it could nevertheless be the party prosecuting the lawsuit on behalf of the copyright holders. In other words, ASCAP is often the driving force behind these lawsuits even if it is not named as a plaintiff. Thus, the fact ASCAP is actually named as a plaintiff in my fictional case is, for all practical purposes, a moot issue. Thus, the court in Ocasek v. Hegglund, 116 F.R.D. 154, 1987 U.S. Dist. LEXIS 5193, *7-8; 4 U.S.P.Q.2D (BNA) 1127; Copy. L. Rep. (CCH) P26,149, 157 (D. Wyo. 1987), explained:

“Yet for all of ASCAP's broad power to enforce its members' copyrights, it cannot bring an infringement suit in its own name. ASCAP's Achilles' heel, if it has one, is that it lacks standing to sue for infringement of its members' copyrights. See, e.g., Broadcast Music, Inc. v. CBS, 1983-2 Trade Cas. (CCH) P 65,661 (S.D. N.Y. July 20, 1983); Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 526 F. Supp. 1187, 1190 (S.D. N.Y. 1981), rev'd and remanded in part on other grounds, aff'd in part, 697 F.2d 27 (2d Cir. 1982).

“ASCAP's rather odd status as ghost-plaintiff is due to the combination of copyright and antitrust laws. The Copyright Act has always specified that only the copyright owner, or the owner of exclusive rights under the copyright, as of the time the acts of infringements occur, has standing to bring an action for infringement of such rights; a non-exclusive licensee does not have standing. 17 U.S.C. § 501(b). Prior to 1950, ASCAP did operate as an exclusive licensee of the copyright owners. However, in response to antitrust suits brought by some ASCAP licensees, the government amended a prior consent decree between ASCAP and itself (also in response to antitrust litigation) such that after 1950, ASCAP was prohibited from acquiring exclusive performing rights and was thus limited solely to non-exclusive rights. United States v. ASCAP, 1950-51 Trade Cas. (CCH) P 62,595 (S.D. N.Y. 1950); see also, Buffalo Broadcasting v. American Soc. of Composers, 744 F.2d 917 (2d Cir. 1984). The cumulative effect of these various laws and rights is that while ASCAP bears the primary responsibility for enforcing its members' copyrights and has authority to bring enforcing lawsuits on behalf of its members, it must remain a non-exclusive licensee and, therefore, cannot bring the suit in its own name. This dichotomy between ownership and enforcement of copyrights creates this rather unique situation wherein the plaintiff has little or no information about a lawsuit to enforce his or her rights while a non-party, ASCAP, is fully informed, available and responsible for the legal action.

“In this case, as is typical of most ASCAP-assisted infringement suits, two ASCAP investigators visited the defendant's establishment in Douglas, Wyoming, on February 1 and 2, 1985. See, e.g., Stone City Music v. Thunderbird, Inc., 116 F.R.D. 473 (N.D. Miss. 1987). They noted which of their members' compositions were performed and subsequently submitted a written report to their regional director. Based on this report and ASCAP's own records that the defendant was not licensed by it, ASCAP initiated this lawsuit for copyright infringement on behalf of their members, the plaintiffs herein.”