“Original works of authorship” such as:

› Lyrics of a song

› Musical composition/beats

Whether published or registered

With copyright notice or not

“The owner of a copyright is granted certain exclusive rights, including the right

to reproduce the work; to prepare

derivative works; to distribute copies to the

public by sale or lease; and to publicly

perform or display the work.”

13 Witkin, §66, see 17 U.S.C. §106

Violation of a copyright owner's

exclusive rights constitutes

infringement, for which the owner

can obtain legal and

equitable relief.

17 U.S.C., §501 et seq.

All rights have expired; or

The authors have explicitly put

a work in the public domain; or

They were never protected by

copyrights

Date of publication often controls. Publishing is the act of “distribution

of copies or phonorecords of a work to the public by sale or other

transfer of ownership, or by rental, lease, or lending.” 1976 Copyright Act

The law changed a number of times, creating a

headache for anyone trying to figure out whether

their works are protected. In general…

Pre-1923 works: In the public domain

1923-1963: If published w/ notice and copyright renewed, then 95 years after publication date

1964-1977: If published w/ notice, then 95 years after publication date

1989 on: Use of a copyright notice becomes optional.

AKA: Sonny Bono Act, or “Mickey Mouse Protection Act”

General rule:

› For individual artists: A work may be copyrighted for the

life of author plus 70 years

› Corporate authorship: 95 years from publication or 120

years from creation, whichever is earlier.

Also, works made in 1923 or after that were still protected

by copyright in 1998 were extended by 20 years, so those

works will not enter the public domain until 2019 or after.

So Mickey will need protection again in 2019!

Eldred v. Ashcroft (2003) 537 U.S. 186

› Justice Breyer’s Dissent

GW Law Professor Robert Brauneis (Giles S. Rich AIOC)

› Deficient authorship records

› Defective defense

Good Morning to You Productions v. Warner/Chappell

It might seem crazy what I heard today,

“Injunction here, you must take a break.”

I’m a shocked hare cartoon, who can’t show my face,

With no gig, no Porky Pig on your Saturday.

Clap along if you feel like a lonely Looney ‘toon.

’Cause I feel crappy

Clap along if you feel there’s more bad news comin’ soon

Because I’m crappy

Clap along if you feel that there is no hope for you,

Because I’m crappy

Clap along if you feel like you don’t know what to do.

Since Warner Chappell wants their cut of cash,

(Yeah) I can’t serenade you at your birthday bash,

’Cause, I just can’t afford it, ain’t got a dime,

Don’t try to help, you’ll just waste your time.

Here’s why

Clap along if you feel like you’re too long in the tooth.

You should feel crappy

Clap along if you feel obsolete to all the youth.

Because they’re crappy

Clap along if you know that crappiness is your truth,

Because we’re crappy

Clap along if you feel crap is happening to you.

Don’t you-

Help me now, can’t nothing, Help me now, why bother to try,

Help me now, can’t nothing, Help me now, I said, I tell you now

Help me now, can’t nothing, Help me now, just leave me to die,

Help me now, can’t nothing, help me now, I said

I FEEL CRAPPY!

“…the fair use of a copyrighted work, including such use by reproduction in copies or

phonorecords or by any other means specified

by that section, for purposes such as criticism,

comment, news reporting, teaching (including

multiple copies for classroom use), scholarship,

or research, is not an infringement of copyright.”

(1) The purpose and character of the use,

including whether such use is of a commercial

nature or is for nonprofit educational purposes;

(2) The nature of the copyrighted work;

(3) The amount and substantiality of the portion

used in relation to the copyrighted work as a

whole; and

(4) The effect of the use upon the potential market

for or value of the copyrighted work.

For further information on this topic,

please refer to this academic guide:

Association of Research Libraries, Code

of Best Practices in Fair Use for Academic

and Research Libraries (2012)

http://www.arl.org/storage/documents/

publications/code-of-best-practices-fair-

use.pdf

“A parody is a work that ridicules another, usually well-known work, by imitating it in a

comic way. Judges understand that, by its

nature, parody demands some taking from the

original work being parodied. Unlike other forms

of fair use, a fairly extensive use of the original

work is permitted in a parody in order to

“conjure up” the original.”

http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

The 2LiveCrew v. Roy Orbison case

Commercial use not presumptively unfair

Parody relies upon recognition of the

original’s most recognizable features

› “oh pretty woman”; music composition

› 2LiveKrew version: “big hairy woman”

A parody that kills demand for the

original is not a harm protected under

the Copyright Act of 1976.

Compare this to copyright infringement,

which usurps demand from the original.

The 2LiveCrew version does not replace

the market for the Roy Orbison version.

Synchronization: Case law; see Leadsinger,

Inc. v. BMG Music Publishing, 512 F.3d 522 (9th

Cir. 2008)

Mechanical: 37 CFR § 385.3(a)

Master Use: Case law; see Newton v.

Diamond, 388 F.3d 1189, 1191 (9th Cir. 2004)

Performing Rights: 17 USC §106

§

§

“CAN THEY DO THAT?” EDITION

§

“CAN THEY DO THAT?” EDITION

SURVEY

SAYS?

INFRINGEMENT

“Ice Ice Baby” by Vanilla Ice sampled the 1980

song “Under Pressure by Queen and David Bowie, but Vanilla Ice never got permission to use it.

Without a lawsuit even being filed, Vanilla Ice

paid Queen and Bowie and they have been

given songwriting credit for the sample.

NO DICE, ICE!!!

NO DICE, ICE!!!

NO DICE, ICE!!!

NO DICE, ICE!!!

NO DICE, ICE!!!

§

“CAN THEY DO THAT?” EDITION

SURVEY

SAYS?

NO INFRINGEMENT

(Northern District of CA)

JURY VERDICT:

SAME STYLE ≠ SAME SONG

Real case name is Fantasy Records v. Fogerty, 510 U.S. 517 (1994).

Fogerty assigned the copyright for his song “Run Through the

Jungle” to Fantasy Records.

Later, he wrote “Old Man Down the Road” that was distributed

by Warner Bros. and Fantasy Records claimed that it was “Run

Through the Jungle.”

The district court rejected Fogerty’s claim that he was immune

from claims of copyright infringement of “Run Through the

Jungle” given his interest in the economic success of the song.

A jury found that “Old Man Down the Road” was not unfairly

derivative of “Run Through the Jungle.”

§

“CAN THEY DO THAT?” EDITION

SURVEY

SAYS?

INFRINGEMENT

‘SUBCONSCIOUS

PLAGIARISM’ COSTS OVER HALF A MILLION

In Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177

(S.D.N.Y 1976), the district court found Harrison liable for

copyright infringement.

The court found that it was apparent from the testimony

that Harrison and the other songwriter were not conscious

of the fact that they were using the “He’s So Fine” theme.

The court found that the songwriters subconsciously used

“He’s So Fine” in creating “My Sweet Lord” because it is perfectly obvious to a listener that in musical terms, the two

songs are identical except for one phrase.

§

“CAN THEY DO THAT?” EDITION

SURVEY SAYS?

INFRINGEMENT

SAME SONG =

$5.4 MILLION

In 1994, a jury found that Michael Bolton’s 1991 pop hit, “Love is a Wonderful Thing,” infringed on the copyright of a 1964 Isley Brothers’ song of the same name and awarded the Isley Brothers $5,400,000 in damages. Bolton appealed.

In Three Boys Music v. Michael Bolton, 212 F.3d 477 (9th Cir. 2000), the Ninth Circuit affirmed the district court decision.

A central issue in this case was whether Bolton had access to the Isley Brothers’ version of the song. Bolton denied ever hearing that version, but the Ninth Circuit held that it was entirely plausible that two Connecticut teenagers (Bolton and his brother) obsessed with R&B music could remember an Isley Brothers’ song that was played on the radio and television for a few weeks, and subconsciously copy it twenty years later.

§

“CAN THEY DO THAT?” EDITION

SURVEY SAYS?

INFRINGEMENT

THE HEADLINES READ:

“AMICABLY RESOLVED” SETTLEMENT

WITH CONFIDENTIALITY

AGREEMENT

In 1984, Ray Parker Jr. was signed by the

producer of the movie Ghostbusters to

develop the film’s title song.

Huey Lewis and the News sued Parker, citing

the similarities between “Ghostbusters” and

their song, “I Want a New Drug.”

Parker and Lewis settled out of court with a

confidentiality agreement.

“The offensive part was not so much that Ray Parker Jr. had ripped this song off, it

was kind of symbolic of an industry that

wants something — they wanted our wave,

and they wanted to buy it. … [I]t’s not for sale. … In the end, I suppose they were

right. I suppose it was for sale, because,

basically, they bought it.”

§

“CAN THEY DO THAT?” EDITION

SURVEY SAYS?

NO INFRINGEMENT

THREE NOTES =

DE MINIMIS

In Newton v. Diamond, 204 F. Supp. 2d 1244

(C.D. Cal. 2002), the District Court granted

Defendant’s MSJ. Plaintiff appealed.

In Newton v. Diamond, 349 F.3d 591 (9th Cir.

2003), the Ninth Circuit affirmed that the use

of a sampled segment of three notes

separated by a half-step over a C note was

de minimis use and therefore not actionable.

BUT: Does it make sense that

you can directly lift these notes

from someone else’s song and plop them into yours?

§

“CAN THEY DO THAT?” EDITION

SURVEY SAYS?

UNDETERMINED…

Pharrell Williams, et al. v. Bridgeport Music,

Inc., et al, LA CV 13-06004 – JAK-(AGRx)

Williams, Robin Thicke, and TI pre-

emptively sue Bridgeport Music and

Marvin Gaye’s Estate to determine the rights to their song.

Their suit claimed: "The intent in producing

'Blurred Lines' was to evoke an era. In reality, the

Gaye defendants are claiming ownership of an

entire genre, as opposed to a specific work, and

Bridgeport is claiming the same work.“

Marvin Gaye’s estate and Bridgeport file a countersuit, claiming copyright infringement.

MSJ denied on October 31, 2014: “Defendants have made a sufficient showing that elements of 'Blurred Lines' may be substantially similar to protected, original elements of 'Got to Give It Up.'"

Trial Date on February 10, 2015

§

“CAN THEY DO THAT?” EDITION

Bugs Bunny

Weird Al Yankovic

Queen & David Bowie

CCR / John Fogerty

The Chiffons & Ronnie Mack

The 80’s

The Isley Brothers

Huey Lewis and the News

James Newton

Marvin Gaye

Dr. Dre

Lady Gaga

Vanilla Ice

John Fogerty

George Harrison, MBE

Stanley Burrell (MC Hammer)

Michael Bolton

Ray Parker Jr.

The Beastie Boys

Pharell Williams & Robin Thicke

Glove and Boots

For permission to use their original work https://www.youtube.com/channel/UC1qC39KQoTG6LqgL_YnjSSQ

Jocelyn Burton

for the use of her office for meetings and practice

Magistrate Judge Kandis Westmore

for the use of her courtroom

Our Audience!