Audio Technology from a Legal Perspective Updates in 2014/2015 – IP Law Kevin D. Jablonski.
-
Upload
aron-hamilton -
Category
Documents
-
view
215 -
download
1
Transcript of Audio Technology from a Legal Perspective Updates in 2014/2015 – IP Law Kevin D. Jablonski.
Audio Technology from a Legal Perspective Updates in 2014/2015 – IP Law
Kevin D. Jablonski
Overview of Discussion Topics
Proposed legislation regarding music licensing recently embraced by the US Copyright Office
Alice Corp. v. CLS Bank – Is software still patentable?
Marvin Gaye or Robin Thicke/Pharrell Williams/T.I. – the Blurred Lines of copyright infringement.
Additional mind-numbingly boring cases before the Supreme Court
Overview of Intellectual Property
Patent
Copyright
Trademark
Trade Secret
Publicity
Rights Conveyed by Copyright
The right to reproduce the work
The right to prepare derivative works based on the original
The right to distribute copies to the public
The right to perform the work publicly
The right to display the work publicly.
The right to digitally stream a work.
Copyright and the Music Marketplace
On February 5 2015, US Copyright Office “embraces” proposed legislative rules changes.
Regulate Musical works and Sound Recordings in a Consistent Manner
Extend Public Performance Rights in Sound Recordings to Terrestrial Radio
Federalize pre-1972 Sound Recordings Establish Government enforced Fair-Market
rate setting.
Regulation of Musical Works vs. Sound Recordings Sound Recordings are distinguished from
underlying musical works in terms of rights reserved by a creator
17 USC 112 exempts terrestrial radio from paying royalties on performances of sound recordings but not underlying musical works
17 USC 114 makes licensing of a digital performance of a sound recording mandatory but not the underlying musical work
Terrestrial Radio and PRO
Currently, sound recordings are exempt from requiring a public performance license on terrestrial radio
But, internet radio stations, satellite radio, and generally anything else (other than AM and FM) does require a public performance license from a PRO
Proposal would eliminate the terrestrial radio exemption
Federalize Pre-1972 Sound Recordings
Currently, record labels and artists (sound recording owners) are not paid for digital performances of the sound recordings that are prior to 1972
Proposed legislation would fold pre-1972 sound recordings into Sound Exchange (or whatever new government-controlled “free-market” entity is established).
Rate Setting
Currently, mechanical rights are set to 9.1 cents per copy (per CD or download)
Department of Justice oversees royalty rates at PROs (ASCAP and BMI)
Proposal would enable Copyright Royalty Board and set market rates for public performances
Proposal would offer bundled rights that include synchronization rights
Proposal would also provide for opt-out rights
Fair Play Fair Pay Act of 2015
Jerrold Nadler, John Conyers, Jr., John Deutch and Marsha Blackburn introduced this legislation in the House on April 13, 2015.
Addresses the terrestrial radio issue and the pre-1972 issue
Has been tried before.
Songwriter Equity Act of 2015
Introduced to the House by Hakeem Jeffries and Doug Collins on March 4, 2015
Addresses the Rate Setting issues
Alice Vs. CLS
Decided by The Supreme Court on June 19, 2014 by unanimous decision
The issue – Is a computer-implemented, electronic escrow service for facilitating financial transactions simply an “abstract idea” ineligible for patent protection?
Established a two-part “Alice” test as to whether claims are eligible subject matter for patents
The Alice effect
USPTO is now rejecting claims having any manner of software
Courts have been invalidating existing patents at a four to one rate when any manner of software is involved
Likely to have crippling effect on economies reliant upon software innovation
Patent Bar pushing back and USPTO and Courts are running amok
Blurred Lines of Copyright Infringement
Marvin Gaye is famous
Robin Thicke/Pharrell Williams/T.I. are less famous but want to be more famous
When young less-than-famous artists want to become more famous, artist do well to emulate famous artists
E.g., who are your influences?
Historical Perspective of Copyright Infringement by Substantial Similarity Bright Tunes Music v. Harrisongs Music – aka George
Harrison and The Chiffons
The Chiffons recorded “He’s So fine” in 1962
George Harrison recorded “My Sweet Lord” in 1970
Case established the “substantial similarity” test
George Harrison ordered to surrender a majority of royalties for his song
The Chiffons later covered “My Sweet Lord”
George Harrison later purchased “He’s So Fine”
HORRIBLE JURY DECISION
Jury awarded 7.4 million dollars to the estate of Marvin Gaye on March 10, 2015
Jury based in decision on the sheet music – was barred from actually hearing Marvin Gaye’s recording of Got to Give it Up
Thicke et al. plan to appeal
Interesting Case:Garcia V. Google
Cindy Lee Garcia appeared for five seconds in the 12-minute You Tube video “The Innocence of Muslims”
Sued You Tube (Google) for copyright infringement claiming that she did not perform as a work for hire because she was tricked
Ninth Circuit agreed with Garcia and held that she has copyright in her performance
Now before the Ninth Circuit en banc (all the judges)
Copyright Office denied the registration and also stated “[her claim] runs contrary to basic tenets of copyright and First Amendment law”
Interesting Case:American Broadcasting v. Aereo Aereo is (was) a company that records broadcast
television and provides time-shifted viewings to paying customers or customers who are subject to advertisements (as directed by Aereo) while watching
Supreme Court held (6-3 decision) that the transmission of the recorded show is a public performance and is not licensed
Justices Scalia, Thomas and Alito dissented “The Court manages to [conclude public performance]only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come.