Is The DMCA Working? Call for Comments From U.S. Copyright Office

Is The DMCA Working? createprotect.com attorney-tamera-bennett

Announced December 30, 2015, the United States Copyright Office is undertaking a public study to evaluate the impact and effectiveness of the safe harbor provisions contained in section 512 of title 17, United States Code - the DMCA Safe Harbor Provision.

While Congress understood that it would be essential to address online infringement as the internet continued to grow, it may have been difficult to anticipate the online world as we now know it, where each day users upload hundreds of millions of photos, videos and other items, and service providers receive over a million notices of alleged infringement.
— Copyright Office

Section 512 was added to the U.S. Copyright Act in 1998 to help foster growth of the Internet and provide protection to internet service providers for copyright infringement liability when certain procedures were followed.

Currently, Google receives close to 20,000 DMCA takedown requests per week. In light of a Sept. 2015 holding in Lenz v Universal, Google and other service providers must now consider a fair use analysis before taking down content once a DMCA takedown notice is received.

What do you think, is the DMCA working? Should the burden be on the content owner to send the takedown notice? Should the burden be on the Internet Service Provider to analyze fair use? Should the burden be on the content user to get a license or determine fair use?

Leave your thoughts in the comments section below and file comments with the Copyright Office.

Entertainment Law Update Podcast - Episode 67

Music In Political Campaigns - What Licenses Do I Need?

music-in-political-campaigns-tamera-bennett-createprotect.com

As the 2015/16 presidential election campaign trail heats up, we will hear more and more music and perhaps see more and more demand letters from artists/songwriters to the presidential candidates.

In the podcast below, Dallas copyright and music attorney Tamera Bennett explores questions related to public performance licenses, synchronization licenses, master use licenses and right of publicity -- all related to music used in presidential campaigns.

Theme Songs |

Presidential candidates love to pick theme songs. That's all fine and dandy when the artists and songwriters behind the selected tune support the candidate - - Bill Clinton and Fleetwod Mac ("Don't Stop").

So far this season, Donald Trump's campaign has heard from REM and The Rolling Stones.  Neil Young wasn't thrilled about Trump using "Rockin' in the Free World." And,  Aerosmith front man, Steven Tyler asked Trump to stop dreaming and stop using "Dream On."

Legal Issues Stay The Same |

There's nothing new to the legal issues. Do you remember the band Heart being so upset that candidate Sarah Palin used "Barracuda" in the 2008 presidential campaign? How about Newt Gingrich using "Eye of the Tiger?"

The podcast above will answer your questions on how you can use music in a political campaign.  Want to hear even more from Tamera Bennett and Gordon Firemark on the topic - click here for the Entertainment Law Update Podcast where they discuss the latest on Trump and Steven Tyler.

Join Us |

Leave a comment below with your favorite campaign song.

Entertainment Law Update Podcast - Episode 66 - Live from Dallas

entertainment law podcast live dallas tamera bennett gordon firemark september 2015 episode 66

Dallas trademark lawyer Tamera Bennett and Los Angeles film lawyer Gordon Firemark presented the Entertainment Law Update Podcast before a live studio audience at the Dallas Bar Association on September 23, 2015.

With a full house of sports and entertainment lawyers, Gordon and Tamera chatted in detail about the "Happy Birthday" copyright decision, the DMCA dancing baby decision, and other cases of interest. There's also bonus material revealing "behind the scenes of podcasting for lawyers."

Click the arrow below to listen to Episode 66.

Tamera was also interviewed on KRLD radio about the "Happy Birthday" decision. Click here to listen.

Image is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license. Attribution: Drumguy880.

 

Tamera Bennett Interviewed on Happy Birthday Copyright Case

happy-birthday-no-copyright-interview-tamera-bennett

Dallas copyright and music attorney Tamera H. Bennett was interviewed today by KRLD Radio News Anchor Mitch Carr regarding the Central District of California court ruling on the song "Happy Birthday To You."

Interview

A federal judge has ruled a music publisher does NOT hold a valid copyright on the song "Happy Birthday to You."   Royalties have been paid for years to use the song in movies and TV shows and such. Tamera Bennett is a copyright attorney in North Texas . . . What does this ruling mean?

Click the arrow below to hear the full interview.

Transcript of Interview By Mitch Carr of Copyright Lawyer Tamera H. Bennett

Mitch Carr -- A federal judge has ruled a music publisher does NOT hold a valid copyright on the song "Happy Birthday to You."   Royalties have been paid for years to use the song in movies and TV shows and such. Tamera Bennett is a copyright attorney in North Texas . . . What does this ruling mean?

Tamera Bennett -- So now it means we can sing "Happy Birthday," it can be included in film and TV and there's not going to be a license that would need to be paid to the copyright holder.

Mitch Carr --  Yeah Warner Chappell Music owns it now and it was originally the Clayton Summey Company. But does this mean that YouTube, and as you mentioned TV shows, now and movies too don't have to worry about it?

Tamera Bennett --  That's exactly right. And I mean the decision that the judge came down with was that the lyrics, and again the music has long since been unquestionably in the public domain, that there was no valid copyright assignment was part of the issues that they talked about in the twenties and thirties. That perhaps Summey may never actually owned the lyrics at all. And, it also means it is in the public domain.

Mitch Carr -- Is there any expectation that this will be appealed by Warner Chappell or anybody else?

Tamera Bennett -- I suspect it will be. I think they earn two million a year in fees. I believe that was either part of the opinion or some of the press that's been out. So at 2 million a year I suspect it's worth a fight to appeal the case.

Mitch Carr -- Can I get money back?

Tamera Bennett -- You know that's a great question. Because what about all of the -- even taking it out of the realm of the folks who maybe posted their birthday celebration on YouTube -- but let's put it into the realm of it was used in a movie.  And in this case it was used in a documentary -- is what spurred this lawsuit. You know, can those folks come back and get their money back? I don't know how that's logistical going to happen. I suspect anybody who has secured a license and going forward they're going to stop paying. And I think they can unless there's some contractual reason in the contract that they have to keep paying even though copyright has expired.

You know people wonder why when you go into certain restaurants and the servers are going to greet you for your birthday and they don't sing the happy birthday song -- they make up a song to sing to you?

Mitch Carr -- Right

Tamera Bennett -- No more. They'll now be singing it to you.

You can follow Tamera on Twitter @tamerabennett and Mitch on Twitter @mitchcarrnews.

The clip is used by permission of KRLD-CBS Dallas.

Image CC2.0 By Will Clayton.


Entertainment Law Update Podcast - Live - Belo Mansion - September 23

entertainment-law-update-live-dallas-tamera-bennett-gordon-firemark

Tamera Bennett and Gordon Firemark meet up in Dallas to record Episode 66 of the Entertainment Law Podcast - live - in front of a studio audience.

Join us at the Belo Mansion, Noon on September 23, 2015 for lunch, CLE, and the Podcast.

We will discuss the latest ruling in Lenz v. Universal (aka Prince v. The Dancing Baby). Other topics include extensions to the Canadian Copyright term, the latest in Fashion law and IP rights, and "knock-knock," "who's there?" "Stolen Joke on Twitter. Take it down."

 

Dallas Bar Association

Belo Mansion

2101 Ross Avenue

Dallas, Texas 75201

214-220-7400

How Do I Research Fair Use?

research-fair-use-tamerabennett-creatprotect

"I'm going to use three measures of a song. That's fair use, right?" And, the lawyer answers, "it depends."  I think "it depends" is the number one legal response.

When it comes to intellectual property, and in particular fair use of copyrights, it can be hard to tell if you need a license to use a portion of a copyrighted work you don't own or your use is fair use. Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.

Section 107 of the Copyright Act provides four factors to evaluate a question of fair use:

Four Factors

  1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.
  2. Nature of the copyrighted work.
  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. Effect of the use upon the potential market for or value of the copyrighted work.

The Fifth Factor

While not part of the statutory analysis of copyright fair use, the courts have added a "transformative use" determination. Whether or not the new work transforms the old work is often analyzed as part of Factor One - the purpose and character of the new use.

Fair Use is Case-by-Case

Fair use is determined case-by-case. That means there are no standards out there that apply saying it's okay to take a percentage of the book, or a certain number of measures of the song.  If you use something you did not create, you run the risk of your actions constituting copyright infringement and being sued.

The U.S. Copyright Office offers a great research tool by aggregating all the recent copyright fair use court decisions. You can search the legal opinions by jurisdiction and type of case, i.e., computer program, music, internet/digitization.

Fair Use Is a Defense

Don't forget, fair use is a defense. That means if you are sued for copyright infringement, you - the defendant - have the burden to prove your use was "fair use."  The plaintiff only has to prove you infringed their copyright.

Entertainment Law Update Podcast: Episode 65 Tamera Bennett & Gordon Firemark

"Texas Longhorn" Larry D. Moore CC BY-SA 3.0 

"Texas Longhorn" Larry D. Moore CC BY-SA 3.0 

Click the arrow below to listen to Episode 65 of Entertainment Law Update.

Live from Fort Worth, Texas it's Episode 65 of the Entertainment Law Update Podcast.  Film lawyer Gordon Firemark and Texas music lawyer Tamera Bennett record their first face-to-face episode of the podcast.

Gordon and Tamera chat about SESAC buying HFA, the Black Swan Intern cases, and whether or not Lion's Gate can "put Baby in the corner."

 

What's The Impact of SESAC Buying Harry Fox (HFA)?

sesac-hfa-tamerabennett

It's been almost two months since SESAC, Inc. announced its acquisition of the Harry Fox Agency (HFA). The deal, which merges the largest U.S. mechanical rights licensing association with the smallest U.S. performance rights organization, still needs approval by the membership of the National Music Publisher Association.

HFA has always been in the business of licensing and collecting mechanical royalties for each time a record is sold, downloaded or streamed. At one time, that meant when a physical record album was sold. Today, we usually think in terms of when a track is downloaded.

SESAC is the smallest of three public performance rights organizations in the United States. Songwriters and music publishers are members of SESAC. When you hear a song played on the radio or in a club, a public performance royalty is paid to SESAC (or ASCAP or BMI - the two other performance rights organizations).  In turn, SESAC pays a performance royalty to the songwriter and music publisher.

In the U.S., the mechanical rights collection agencies and the public performance organizations have always been separate, until now. SESAC's acquisition of HFA begins to replicate they way mechanical and performance rights have been licensed for years throughout most of Europe.

New media companies that provide streaming and locker services should be rejoicing. The merger should streamline some of the right's clearance processes. Services like Spotify, and the now defunct Grooveshark, provide music to consumers in a way that triggers both a mechanical royalty and a public performance royalty. The merger would allow for some one-stop shopping when it comes to music clearance.

We may also see an uptick in music publishers joining SESAC so the publisher can benefit from centralized licensing. The publisher would still be responsible for issuing other licenses, such as synchronization and print.

When Your Legal Blog Takes On The World

createprotect-lawyer-tamerabennett

World dominance wasn't our goal. But, a little blog featuring current issues on trademark, copyright and entertainment law has readers from 128 countries.

One thing trademark lawyer Tamera Bennett enjoys is helping U.S. clients protect their trademarks and copyrights in foreign countries. Most people don't realize that a federal U.S. trademark registration does not extend to Canada, Mexico or other foreign countries.

When your brand is launching outside the United States of America, you need a plan for protecting your trademark in foreign countries. There may be certain benefits to timing the filing of trademark applications in foreign territories based on when you file a trademark application with the U.S. Patent and Trademark Office.

Give Texas trademark lawyer Tamera Bennett a call when you are ready to take on the world.

Entertainment Law Update Podcast - Episodes 63 and 64 - Tamera Bennett and Gordon Firemark

Copyright Update Part 4: Digital Music Streaming

Image Ryan McGuire

Image Ryan McGuire

This paper was written and presented by Tamera H. Bennett at the 28th Annual Technology Law seminar hosted by UTLaw CLE. It has been edited into multiple blog posts. Enjoy Part 4 below, Part 3, Part 2, and Part 1.

While music publishers and record labels are fighting their own issues on getting paid (and sometimes against each other), this series of posts focuses on new media recent legal issues facing sound recording copyright owners.

ARE PRE-72 SOUND RECORDINGS PROTECTED?

Sound recordings are the fixation of a series of musical, spoken, or other sounds capturing a particular performance of an underlying musical composition. Congress acted in 1971 to grant federal copyright protection to sound recordings by extending federal protection prospectively to recordings created on or after February 15, 1972 (“Post-72” sound recordings). Sound Recording Act of 1971, 85 Stat. at 392. Sound recordings fixed before February 15, 1972 are protected by a patchwork of differing state laws (“Pre-72” sound recordings). (Bringing Pre-72 recordings under Federal Copyright Protection is outside the scope of this paper. Learn more by reading the December 2011 Copyright office report: Federal Copyright Protection for Pre-1972 Recordings).

One of the current hot litigation topics is whether or not Pre-72 recordings include a digital “public performance” right. Sound recording copyright owners for Post-72 works enjoy the exclusive right to control the public performance of their works by means of a digital audio transmission and be paid for such performances. 17 U.S.C. §106 (6). This means when you listen to a Post-72 sound recording on a non-interactive streaming services such as Sirius XM or Pandora, a payment should be made by the streaming service to Sound Exchange  - the entity that collects the payments and distributes the royalties to the sound recording copyright owners and recording artists. See Webcaster Settlement Act of 2008 and 2009.  As discussed in Part 3, interactive streaming services such as Spotify and Grooveshark must secure direct licenses with the sound recording copyright owner.

Sirius XM plays music of all genres and all decades. Sirius XM has never paid public performance royalties for digital streams of Pre-72 recordings. In 2014, three courts—two in California and one in New York—held that Sirius XM’s unauthorized public performance of Pre‐72 sound recordings violates applicable state law. Because there’s no federal copyright protection for Pre-72 sound recordings, the Pre-72 copyright owners must rely on statutory or common law rights that vary from state-to-state.

The Central District of California Court ruled that sound recordings published prior to February 15, 1972 include a public performance right under common law and codified under Cal. Civ. Code § 980

A California federal district court ruled that Sirius XM infringed rights guaranteed to plaintiffs by California state statute. See Flo & Eddie Inc. v. Sirius XM, No. 13‐cv‐5693, 2014 U.S. Dist. LEXIS 139053, at *22‐23 (C.D. Cal. Sept. 22, 2014). Flo & Eddie of the musical group The Turtles sued Sirius XM in August 2013 for infringement of sound recording copyrights because Sirius XM was not paying public performance royalties, yet performed the sound recordings owned by Flo & Eddie, Inc.  The Central District of California Court ruled that sound recordings published prior to February 15, 1972 include a public performance right under common law and codified under Cal. Civ. Code § 980  and such right may be infringed if permission is not secured before the sound recording is played on satellite radio. The Flo & Eddie No. 13cv5693 Fed. Cal. case continues on other grounds with the assumption the summary judgment ruling will be appealed by Sirius XM. 

In Flo & Eddie litigation in federal court in New York, the district court indicated that the public performance of Pre-72 sound recordings constitutes common law copyright infringement and unfair competition under New York law. See Flo & Eddie Inc. v. Sirius XM, No. 13‐cv‐5784, 2014 U.S. Dist. LEXIS 166492, at *40‐44, *50‐52 (S.D.N.Y. Nov. 14, 2014) (denying Sirius XM’s motion for summary judgment, and asking Sirius XM to show cause why judgment should not be entered on behalf of plaintiffs), reconsideration denied, 2014 U.S. Dist. LEXIS 174907 (Dec. 12, 2014).  The court held:

the New York Court of Appeals would recognize the exclusive right to public performance of a sound recording as one of the rights appurtenant to common law copyright in such a recording.

Id.  An interlocutory appeal in the case was granted on April 15, 2015.

A settlement was reached in June 2015 in similar pending litigation in a California state court case brought by major record labels against Sirius XM.   Capitol Records, LLC v. Sirius XM, No. BC520981 (Cal. Super. Ct. Oct. 14, 2014) (order regarding jury instructions).  Arguably many of the plaintiffs that settled out with Sirius XM would have joined the Turtles class action which was certified in May 2015. How does that impact the Turtles and their ability to reach a settlement?

Taking cases coast-to-coast, Flo & Eddie, Inc. also sued Sirius XM in Florida.  Flo & Eddie, Inc, v. Sirius XM Radio, Inc., No. 1:13-CV-23182 (S.D. Fla. filed Sept. 3, 2013).  

Conclusion:

New media always brings about new questions on how far copyright protection extends.  When looking at interactive and non-interactive digital services, the courts may be applying federal or state law depending on what year the sound recording was “fixed.”  In addition the courts have to look at the DMCA to determine how far the Safe Harbor provisions reach to protect the services providing the digital content.

Again, this article does not address the concerns of the music composition copyright owner.  That side of the equation has its own issues, some similar and some different, that are also being addressed via the court system and the Copyright Royalty Board.  In addition to the cases discussed, there’s plenty of pending litigation to keep an eye on for the future. 

To find links to most of the cases and articles cited herein (and bonus materials) visit https://delicious.com/tamerabennett/utlaw15.

Other cases to watch:

Flo & Eddie, Inc. v. Pandora Media, Inc., No. 2:14-cv-07648-PSG-RZ (C.A.C.D. filed Oct. 2, 2014).

Capitol Records, LLC v Pandora Media, Inc., No. 651195/2014 (N.Y. Sup. Ct. filed Apr. 17, 2014).

Zenbu Magazines LLC v. Escape Media Group, Inc., No. 1:15-cv-00349-MKB-RER (N.Y.E.D. filed Jan. 22, 2015).

Zenbu Magazines LLC v. Sony Computer Entertainment America LLC, No. 3:15-cv-00310-VC (C.A.N.D. filed Jan. 22, 2015).

UMG Recs., Inc. v. Escape Media Group, Inc., No. 1:2011cv08407 (N.Y.S.D. filed Nov. 18, 2011).