Archive | Copyright

Speaking of Copyright and Public Performances

The BBC reports:

A shop assistant who was told she could not sing while she stacked shelves without a performance licence has been given an apology.

Sandra Burt, 56, who works at A&T Food store in Clackmannanshire, was warned she could be fined for her singing by the Performing Right Society (PRS)….

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Copyright Infringement in Playing Loud Music to Soften Up Guantanamo Detainees?

CNN reports that “A coalition of top musicians, including R.E.M. and Pearl Jam, want to know if their music was used by the U.S. military as part of controversial interrogation methods at the detention facility at Guantanamo Bay, Cuba.” I don’t know whether such information is discoverable using the Freedom of Information Act, but my correspondent (David Cavanagh) and I noticed that there’s talk of possible copyright infringement liability:

It is unclear if any of the artists plan to pursue legal action, but [Kate] Doyle said she’d be “surprised if some of them weren’t thinking about it.”

And I do know something about copyright law, so I thought I’d speak to that. Copyright law gives the owners of copyrights in musical compositions — basically, the lyrics and the tunes — the right to control public performances of the work. (Performances here includes simple playing of CDs and the like.) But it doesn’t give copyright owners the right to control private performances. If the music was played to just one terrorist at a time (or even a few at a time), there’d be no infringement of the public performance right.

If the music was played to the entire prison (which I doubt), that might be a public performance, defined as a performance “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” I suspect that the Guantanamo detainees don’t qualify as “a normal circle of a family and its social acquaintances.” Then the question would be whether the military has a blanket license for public performances of this music, for instance via ASCAP and BMI — quite possible, given that the military doubtless performs music in other venues, though one [...]

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Going Rogue, Going Rouge

So here’s a cute little copyright (or trademark?) problem (or, depending on your viewpoint, an outrageous rip-off). According to Entertainment Weekly (and the Gateway Pundit) start-up publisher OR Books has announced plans to publish Going Rouge: Sarah Palin An American Nightmare, a collection of essays about the former Alaska governor with a title — and cover design — remarkably similar to Palin’s upcoming memoir (entitled Going Rogue: Sarah Palin, An American Life). And the OR paperback will be released on Nov. 17, the same day that Palin’s book is scheduled to hit the shelves.

As Thom Geier at EW puts it: “don’t these jackets look too similar to be, well, fully kosher? At the very least, might some hockey-mom-loving conservatives be confused enough to pick up the wrong book? You betcha!” It may not be fully kosher, but it’s not infringement, as I see it — copyright law doesn’t protect people against “confusion,” it protects against copying. There’s a long-standing tradition in copyright law that book titles are not protected, so the going Rogue/Going Rouge similarity is not actionable. And if you look at the two covers carefully, you’ll see that actually not much else (other than the picture of Palin, about which she surely has no copyright complaint) has actually been copied. (And, if there were a viable copyright infringement claim, OR might well have a very strong fair use/parody defense).

A claim sounding in trademark (or its close state law cousin, unfair competition) might have a somewhat better chance of success here. The Lanham Act, the federal trademark statute, imposes liability on:

“Any person who . . . uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false [...]

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And Speaking of Copyright

VC readers in New York City might be interested in this talk I’m going to be giving at lunchtime this coming Thursday, Oct. 22. It’s co-sponsored by the Copyright Society of the US and the Internet Society’s NYC chapter, and is my (latest) attempt to get people to think about how we might fashion a copyright law for the Internet age that actually makes some sense (as opposed to the copyright law we actually have, which doesn’t). [Oh yeah, it’s about my book, too – and why Jefferson sent a moose to Paris, and how we find a “moose” for the Net that will do for us what Jefferson’s moose did for him]. I gave a version of this talk last week at the University of Virginia Law School, and I think I can guarantee you a pretty lively discussion — in fact, I’ll be a tad disappointed if fisticuffs do not break out in the audience as a result of some of the ideas I propound. [...]

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Copyright Kerfuffle:

You probably read about the little copyright flare-up that accompanied the recent posthumous release of Michael Jackson’s new single, “This is It.” The song is, apparently, almost identical to an earlier song “I Never Heard,” co-written by Jackson and rock-and-roll legend Paul Anka many years ago but never released. Anka immediately gave an interview in which he was quoted as complaining that he hadn’t been consulted or given his permission, and saying “They have a major, major problem on their hands, [and] they will be sued if they don’t correct it.”

It looked pretty straightforward. When you think about it, though, it’s not at all clear what Anka was complaining about. Jackson’s estate, as co-owner of the copyright, is perfectly within its rights to license the distribution of the song, with or without Anka’s permission or even his knowledge – that’s what copyright co-ownership entitles you to. And secondly — I’m a songwriter, and if I found out that Sony Records released a song that I had co-written with Michael Jackson (ok, it’s a null set, but just suppose . . .), I’d get down on my knees and sing Hallelujah — estimates of the royalties that will accrue as a result of this distribution run into the tens of millions of dollars, and Anka, as co-owner of the copyright, is entitled by law to half of those. Now, I know that Paul Anka is a very rich man, but even very rich men, ordinarily, do not complain about making more money. What was he so upset about?

Apparently, what he was angry about was the omission of his name from the song-writing credits. Understandable, perhaps – but that’s one thing he does not have the right to under the statute – copyright owners do not (with some exceptions [...]

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