Several times in the recent years, cases have been brought against those who use MLK’s “I have a dream” speech for unauthorized use of a recording of the speech. The very first time a case was brought for this infringement was shortly after the speech was given in August 1963. CBS and other radio shows had played the speech on radio and TV shows, and MLK sued to protect the use of his speech because he didn’t want his message to be used in any negative light. CBS argued that MLK did not have a valid copyright because of the way he published the speech.

CBS argued that because the speech was given and performed live, that it was a general publication and would belong to public domain. Also, MLK had made no effort to register the copyright in the US Copyright office, but the court still found that without the copyright registered, the speech still had a common law protection, and that giving the speech publicly, was a limited publication which still receives protection. Soon after the judge determined this, CBS was force to stop use of the recordings and then settled out of court for the infringement.

MLK soon did register the copyright with the US Copyright Office and has had protection ever since. The “I have a dream” speech will not be added to public domain until 2038. Until then if anyone wishes to use a recording of the speech they had to contract for a license to use it, which has gotten up to $700,000 recently in the past.

I begin to wonder if this was what MLK wanted for his message. Because this speech was so powerful and the entire country needed the strength which that speech epitomized. Would he what it to be only publicized after buying an expensive license?

It makes me think of defamation law, which is harming someones reputation with speech or press. In defamation, there is a greater protection for a non-public figure. Essentially, celebrities and public figures get less protection, because they have chosen a lifestyle that depends on the public eye. You want to be famous, you cannot complain when people talk about you. You knew what you were getting into when you started this career.

But what if certain careers, like politics, social movement, and other public figures had less copyright protection based on the fact that their creation had one purpose, to fall upon the ears of the world and hopefully, change a way of thinking or call people to action. What if these works belonged to the people, because the people were purpose of writing it or speaking it in the first place. What if something as powerful as the “I have a dream” speech was public domain just because it should be considered educational to anyone?

Unfortunately, that’s not what public domain means. People would like to think that it’s a gift to the people, that creators have decided that their financial gain from their creation is less important than the availability of their work to people who care about it. However, public domain is more effectively used as an expense avoidance by large corporations, almost a safe haven to avoid paying the true creators. True creators then have to find a way to fight for their benefits, which is necessary for them to continue their craft. This creates new monsters, in the form of monopolized Performing Rights Organizations, who act like debt collectors for performers and creators. For a small cut of the return, they will enforce your protection against those who participate in the unauthorized use of the copyright. Some times, it just seems like the law forgets who it is protecting.

I missed Thanksgiving and the Friday after, so I am catching up posts today. I wanted to explain work for hire and joint works. I feel like companies frequently use these to take advantage of new artist, who may lack experience with these terms.

First, a work for hire is a work prepared by an employee, but the employer retains the ownership and right to control. For DJ, this is like being hired to perform, but the singer or the label keep the recording and the profits. For a song writer, it’s like writing the song, which you’re paid for, but you have no rights or protections to the song.

I have seen label contracts where this is hidden in fine print. Some put this clause right out in the open because the drafters of the contract thought the artists would not know what it meant. Later, when the artist realizes they aren’t being paid much, they ask if they can leave or self-promote their song or album, only to find out, it never was their song or album.

Next, I wanted to explain joint works. Joint works are works prepared by two or more authors with the intention that their contributions merge into a inseparable whole. They can’t divide the work into each person’s part or contribution, it only  exists as one unitary work. However, both authors enjoy he rights of authorship, like right to make copies and sell or perform the work.

The biggest dispute with joint works is when the two or more authors actually decided to join their ideas into one work. The group must decide to work together from the beginning. Many people want to add on to a work created by one artist and claim that they have equal rights to the final product. I have even seen where these “coat-tailing” contributors ask the artist to rewrite or re-record the song. This way, they could argue that the two intended on working together from the beginning and both have equal rights.

My advice to artist: Read the contract, and ask for explanations about things not understood. If the other person wants you to sign it, they will explain. If the explanation sounds too good to be true, get a second opinion. Your signature is yours alone and if someone wants it, they can earn it.

I apologize for the brief pause in posts, thanksgiving was also my birthday and I was spending time with love ones. But my birthday brought to my attention a recent case regarding the happy birthday song.

The happy birthday song was written by a teacher and her sister, who sold it to a publishing company in the late 1800s. The company registered the copyright in 1935. However, a group of filmmakers, obviously sick of paying to use the song, argue that the copyright is invalid and the song is public domain. 

In the first part of the case, the filmmakers argued about what parts of the song were actually transferred from the sisters to the company. The judge found that the copyright covered the melody, including the piano composition or sheet music. Warner/Chappell, the company that “inherited” the copyright from the original company, argued that the copyright also covered the lyrics and protected the entire use of the song. 

However, the judge found that the lyrics were not covered by the original copyright, which means only the music was protected. So, if someone were to use the happy birthday song without using the original music, that song would not be infringing on the copyright and would not require payment to the company. 

However, the filmmakers are arguing that the song is public domain. Public domain is the legal equivalent to saying that no one owns the copyright and it is free to use the song. There are many more decisions that must be made before the court can determine if happy birthday is public domain. I personally think that this is a holiday that happens everyday, and is agreed on by most religions that don’t agree. Why would it not belong to the public?

Today I read about a bar in Colorado Springs, that was sued by BMI for playing a Toby Keith song without authorization. Karaoke has some unique parts, so bare with me.

First, BMI is a company that collects  licenses fees for different artists. They are like the repo man for artist who want to get paid for someone using their creative work. Most people contract for the use of the art, through a license, or written agreement to use the work. BMI collects on these contracts and will also sue on behalf of the artist for any unauthorized use of the artist.

There are three companies that provide these services: BMI, SESAC, and ASCAP. Apparently, this bar has licenses with ASCAP and SESAC, but not for BMI. I find this odd, it would make more sense to think that they would forget all three than to think they paid two of them and forgot one.

Next, if a establishment provides an artist’s protected work to entertain their customers, they have to pay for licenses to use it. This is true even if it’s just music or TV. However, most entertainment has found a way to provide this license very easily. For things like TV, CDs, and jukeboxes, the licenses are included in the cost of purchasing the music or the TV subscription. Usually, this license is covered in the cost of the karaoke machine.

The issue with karaoke is that there is two protected works involved in the use. One protected work is the song being played, even if the vocals have been deleted to allow the performer to sing as their favorite rockstar. The second protection is the video that shows the lyrics. Typically, karaoke machine companies get rights in both the song and lyrics, but still have to pay a “synchronization” fee. Essentially, they have to pay to sync the song with the visual work video. The karaoke company covers this cost in the sales price of the machine. But, what happens when the songs you bought get old or overused?

People have been looking for ways to update their karaoke, so new technology has been created. New karaoke albums have been made for basic systems, called “Compact Disc + Graphics” or CDGs. These CDGs play the songs with a basic lyric display, just like the karaoke machine discs.  However, a lot of the new CDGs don’t pay the synchronization fee or some other fee involved in the license. 

When the license collection companies find bars or restaurants making this mistake, they strike, mostly to set an example and discourage others from infringing. This bar specifically was charged with a twenty-one thousand dollar fine for a couple of Toby Keith songs. 

This typically puts many business owners in a double-edged choice between paying the fees regularly or trying to hide their unauthorized use and avoid the fines involved. So the next time your drunkenly belting out your favorite song in front of a bunch of unknown people, think about how much money was exchanged in order for you to do it.

Today, I was reading about Google offering to help people who have been accused of posting infringing material on YouTube. So I decided to explain how YouTube handles copyright infringement and its DMCA takedown procedures. 

When YouTube first started, the site was accused of being a tool for infringement, much like VCRs back in the day. People could take videos and images of copyrighted material and repost them online, where others could watch and rewatch for free. 

YouTube was staring down the same barrel as Napster, until YouTube had an idea. YouTube claimed that there are so many posts and people involved in an infringing video, that there is no way to regulate every post. Some of the posts will be infringing and they will never know.

YouTube finally agreed to a system to deal with infringing videos. If someone found a video that infringes their rights, they can notify YouTube and YouTube must take the post down. I’m sure we’ve all been on the site and realized that a video recently watched is no longer available. Unfortunately, the website must take down these videos without determining whether they are infringing or not.

The owner of the accused post does have a chance to counter with a notice that claims the video is fair use or non-infringing. If YouTube agrees that the post was not infringing, and the person that made the claim has no other objections after notice of the counter, the video is reposted. However, most owners of these posts know that the videos are infringing, and never bother to counter. They just repost under another name.

The strike system of the website controls how many claims you can get under one account. The first strike is just a warning, but after two, the user cannot post for two weeks. If the user gets another strike within six months of getting their posting ability back, the user will be kicked off and YouTube cancels their account. Typically, the pros just open new accounts and start all over, and have created multiple accounts that they maintain.

Some people who accuse a user of infringing will follow the take down with a lawsuit to stop the user from using the video again and to get compensation for the unauthorized use. Google has offered to help YouTube users that have been accused of infringing, because Google believes that some of the accused were not actually infringing but can’t necessarily fight the claim in court, due to time and money constraints. It will be interesting to see how these cases work out, now that the regular user has a Daddy Worbucks to fund the case.

Welcome back! Yesterday I began a post about music sampling, and some ways to determine if you have infringed someone’s rights by sampling. Today I wanted to follow up with the traditional test and the fair use elements.

The traditional test is also two part and focuses on quantitative and qualitative aspects of both songs. The quantitative test asks, how much of the original was taken. This is similar to the 9th circuits extrinsic test, where the person attempting to protect their copyright must dissect both songs and prove that parts or elements were taken from the original. This is called fragmented literal similarity, which means broken down pieces of the song literally match up in both songs. Most cases even loop the songs together to be played in court, like a mash-up, to show the similarities.

Next, the qualitative test asks, how important was the samples to the original song. If the sample was a main part or theme, or was a hook or predominant line in the first song, then the sampling looks more like infringement. This is similar to the 9th circuit’s intrinsic test, where courts focus on the heart or theme of the original song, and whether the second song recreates that theme.

If the court finds that the second song took enough parts from the original and that the parts sampled where very important to the first song, then the accused has infringed someone’s rights in their song and owe them compensation. If the court finds the sample to be small and unimportant, then the sample is not infringing. Beastie Boys once got sued for using three notes from a flute soloist, but the court found that it was a de minimus sample, which means it was far too small to infringe.

Now, I would like to talk about fair use. Fair use limits people’s ability to claim infringement, by permitting certain use of copyrighted works without permission. One way to get to fair use, is by parody, or to imitate an artist with humor and exaggeration for comic effect. However, parody requires the second creator to refer back to the original work as much as possible, like to intentionally infringe as many parts of the original as you can. Parody should be based on the first song, otherwise the second artist is just making a funny substitute, and won’t be protected. Some artist struggle with the parody protection, and others like SNL and weird Al make millions  doing it.

The other way to fair use is based on what samples were used and how were they used in the second work, similar to the unlawful appropriation tests we talked about before. However, this test also asks about the economics and income of an original song having a infringing look-a-like. Fair use has four elements, that each have their own sliding scale. Each element has a comparison between two opposing characteristics, one leaning towards infringement and one leaning away. The court will use all of these characteristics together to determine if the second work is fair use or infringing.

The first element is the purpose and character of the use, which means how did the accused infringer use the samples. The sliding scale is between commercial use and non-profit use. Here, the court wants to know why the artist created a song that infringes. If it is for non-profit, than it looks more like fair use, because the infringer wasn’t trying to make money. If the infringer wasn’t trying to make money,what money did the original creator lose? The courts use this element to protect things like education and the promotion of sciences and art, most of which would be considered non-profit ventures.

The second element is the nature of the original work, or the value of the samples used. (Just to clarify, the first element focused on the second song that used the samples, this element focuses on the first song and the value of the samples taken.) The sliding scale is between whether the work was original and whether the work was public domain or unprotectable. This element makes sure the samples were protectable, and that the samples had value to the original artist. In literature, this would be the difference between fiction and non-fiction. Fiction would be your own creative baby, and your idea would have lots of value to yourself. Non-fiction would be like a historical event, that anyone could talk about without needing permission.

The third element focuses on the amount taken from the first song. This is like the different tests I have talked about before, where the court wants to see how much was taken and how important that sample was to the original song. The more that is sampled, and the more important those samples are to the original song, the more it looks like infringement.

The last element is the second song’s effect on the potential market of the first song. This is like my replacement test, I mentioned in the 9th circuits extrinsic/intrinsic tests. The sliding scale is between whether the second song was a substitution to the first or something completely different. The courts look to see how the first song was marketed and determine if the second song was trying to enter the same market. Different markets look more like fair use, whereas similar markets look like infringement. I always say, you can make your own money, but you can’t make someone else’s money.

Warning: some courts have found sampling to be illegal…always. In a 6th circuit case(New jersey), a judge compared intellectual property to physical property and said that sampling is like slowly taking an inch or two from my neighbors land and keeping it for myself. I have to think this guy doesn’t listen to new music very much, or just assume that he is that type of person. I bet he routes for the up-tight parents when watching Footloose.

In wrapping up, sampling is possible! However, not understanding what and how you are sampling can get you in trouble. A little paranoia goes a long way in avoiding lawsuits, but keep your wits, DJs, and the beat will go on.

Today, for all of my DJ friends, I would like to talk about Sampling. First, let’s get some definition. A sound recording is a work that fixes a series of musical, spoken, or other sounds, not coupled with a motion picture or any visual works. So, speeches, poems, phone conversations, and music are included in a copyrightable sound recording. But also note that most sound recordings are a second copyright, a recorded performance of another copyrightable work. A speech on tape is a copyrightable recording of someone reading aloud, a written speech, which is copyrightable under a literary work. A CD of poems being read is a copyrightable sound recording of a copyrightable group of written poems. A song is a copyrightable sound recording of a written musical composition being performed. Any creative work that can be audibly performed and recorded, can possibly have two distinct copyrights. One is on paper, and one is a recorded performance.

Now, Sampling is the act of taking a portion, or sample, of one sound recording, and adapting it to a different sound recording. In these type of infringement cases, usually the injured party sues someone for using their protected sound recording without their permission. The unusual facts of the case are that the accused infringer typically is not arguing that they never copied and used the sample. They admit they took it without permission and used it to make a new sound recording. Instead they argue that what was taken was very small, unimportant, or unprotected.

To prove that someone has infringed or stolen you copyrighted work, you must prove that the act of using samples of your song to make their own song was unlawful and requires the infringer to compensate the first artist for their loss. This is typically called substantial similarity, but the term similarity is used so much for different meanings in these cases and elements, that I prefer to call this unlawful appropriation. But the test is to answer one question: Did they steal enough from the first artist?

The 9th circuit(West Coast) developed a test using extrinsic and intrinsic determinations. First, the extrinsic test requires the injured party to provide a list of specified items, that are the same or similar in both songs. It’s like the court wants to see every thing the second song copied from the first. Most injured parties dissect the song, and list and compare similarities. The more similarities there are, the more it looks unlawful.

Next, the intrinsic test is based on the response of the ordinary reasonable person, and courts focus on the total concept and feel of both songs.  The more the songs feel similar or have matching concepts, the more it looks unlawful.  I think it is more like a replacement test; and I like to say, If you were listening to the first song and it cut out, and the second song came on, would you be listening to a replacement or a new, different song? Combining these test usually finds that if you took enough parts, and your song seems like the original, you infringed upon the original and would be liable to the first artist.

From the 2nd circuit(New York), there is a different test using abstraction and filtration. First, the court breaks down both songs into their smallest structural parts, similar to how most artists sample music. Then the court filters out all the parts of the song that are unimportant or unprotected, like basic ideas and things that are public domain. Then the court compares only the “kernels” or “choice nugs” of creativity to determine whether the infringer actually took and used something protected.

This is running long so I think I’ll pause for today. Most of this information can be found on google scholar under this case, Batiste v. Najm, 28 F. Supp. 3d 595. This was an infringement claim from last year by a New Orlean’s band against the artist T-pain. Tomorrow I want to share the traditional test and how to determine if a sampling is fair use, So, watch that dial, and tune in tomorrow!

 

My first post will be a fun and easy one. Recently this year, an article was posted on Facebook saying that an elderly man had passed away, and to locate his family, someone did a DNA test that found the man to be a 99% match with Elvis Aaron Presley. Stories began to surface about Elvis’ behavior before his death in 1977, including that he was sick of the celebrity lifestyle and was feeling depressed. Also, with the new details that he might have lived longer, people began to speculate about whether his relationship with President Nixon before his alleged death gave him access to a witness protection program. The world thought that Elvis hated his fame and asked Nixon to hide him from his fans, until 2015 when he actually died, happy and humble.

This was quickly discovered to be a hoax. Elvis did indeed die August 16, 1977. However, what would be the legal effect of his secret death on his intellectual property?

The Copyright Act says that a copyright is valid when the work is fixed in a tangible medium, which is a recording, usually hard-copy. (a law that is becoming obsolete in a world where more and more works are being transferred and stored without hard-copies) The protection continues for typically seventy years after the death of the artist that created the work, given some variation based on how it was created, published, or registered. So when Elvis died in 1977, his seventy year clock began ticking, and around 2047, his copyrights will expire and his works will become public domain. However, if he did not die until 2015, his works will be protected until 2085, almost 40 more years of protection from infringement, or the improper or unauthorized use of the work.

This would not affect his Trademarks in the same way. Trademarks are valid as long as the owner continues the registry on it and continues to use the name, symbol, mark, or logo. So his trademark protection will continue as long as someone from his estate files with the USPTO, and uses the images of him.

Its always fun to speculate about celebrity scandal or secrets lost throughout history, but for some of us, it’s just as much fun to hypothesize about the legal effects of these circumstances. Some stories die, and some just go home to Graceland.

the story on the Hoax

http://www.ibtimes.co.in/hoax-busted-report-claiming-body-elderly-homeless-man-identified-elvis-presley-false-622217

My name is Tyler Robertson, and I am a 3rd year law student at South Texas College of Law in Houston, Texas. I am scheduled to take the Bar in July of 2016. I have been studying Intellectual Property such as Copyright and Trademark Law. Unfortunately, without a science or engineering background, I do not focus on Patent Law very much.  Do not fret Patent patriots, there are many Patent Blogs in this vast world of information. I will try to include links to a few below.

My background was music. I performed all my life,  in church, grade school, and high school. I was in praise bands, jazz bands, pep bands, marching bands and orchestras. My classical instrument was tuba.  (For those of you who can identify a personality from the instrument you play, I am such a tuba.) I studied low brass at Northwestern State University in Louisiana, where I received a minor in musical performance and a bachelors in business administration.

Once in law school, I wanted to continue my creative arts education, and began studying intellectual property.  In doing so, I began to hear the entertaining “water cooler” stories that were passed around the IP field. When I shared these stories with friends from other fields, I realized that most issues were typically more interesting than your basic trial suit or client case. So I thought it would be nice to start complying these stories for myself, my friends, and hopefully a few good fans.

Patent Patriots!

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