Copyright - Sherman Library at Nova Southeastern University

"I have songwriting credits…even though I don't know how to write a song."[ref]We've Been Warned About AI and Music for Over 50 Years, But No One's Prepared[/ref]

The speaker of this statement is not a musician and has no musical training. His involvement with "creating" the songs in questions? Virtually none. He writes computer code. He helped create an app called Endel, which is self-described as "a cross-platform audio ecosystem."[ref]Endel About Page[/ref] Endel is part of a larger part of the current hot debate over works of art being "created" by computers using programs employing "artificially intelligent" modes of computer learning, or AI for short. As reported by The Verge: "Dmitry Evgrafov, Endel's composer and head of sound design, says all 600 tracks were made ‘with a click of a button.' There was minimal human involvement outside of chopping up the audio and mastering it for streaming. Endel even hired a third-party company to write the track titles."[ref]Warner Music Signed an Algorithm to a Record Deal - What Happens Next?[/ref] What makes this notable is that Endel has a record deal with Warner Bros. Music.[ref]Id.[/ref] "Five Endel albums have already been released, and 15 more are coming this year — all of which will be generated by code. In the future, Endel will be able to make infinite ambient tracks."[ref]Warner Music Signed an Algorithm to a Record Deal - What Happens Next?[/ref] But what makes this problematic, is that there is serious doubt as to whether the output of Endel is capable of copyright protection at all. First, there is the rule that in order to be protected by copyright, the work must have a human author. The authority for this is the U.S. Copyright Office's Compendium of US Copyright Office Practices, Section 305: "U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects ‘the fruits of intellectual labor' that ‘are founded in the creative powers of the mind.' (citation omitted) Because copyright law is limited to ‘original intellectual conceptions of the author,' the Office will refuse to register a claim if it determines that a human being did not create the work."[ref]Copyrightable Authorship[/ref] But didn't the Endel engineers create the software in question? And isn't software copyrightable? The answers, of course, are yes and yes. But just because a computer software exists, and might be used as a creative utility, it does not follow that the software authors are now authors or co-authors of the output. Put more succinctly, is Microsoft an author or co-author of this blog post because it is being written using MS Word? Then we move to the questions of what was the AI program told to do? Were the instructions to the program "creative choices" that might entitle the authors of the software to claim authorship of the output? And further, how did this information get in the AI database? "AI is essentially a pattern-recognition system. Feed it enough data, and it will find patterns within that information that it can use to make decisions."[ref]AI can now compose pop music and even symphonies. Here's how composers are joining in.[/ref] According to this article by the BBC: "In 2017, one of DeepMind's AI programmes beat the world's number one player of Go, an ancient and highly complex Chinese board game, after apparently mastering creative new moves and innovative strategies within days. [Cognitive neuroscientist Romy Lorenz says] ‘Google would say that was creativity - new ways of finding solutions that it was not taught.'"[ref]Could a computer ever create better art than a human?[/ref] The difference is that Go is a game, which, like chess, has a fixed set of rules. These rules do not change and cannot be altered. A computer might have a distinct advantage over a human player. Like Dr. Strange in "The Avengers" the computer is capable of analyzing thousands, perhaps hundreds of thousands of future possibilities arising from a single move. Unlike a human, the computer is never tired, stressed or lacking focus. Music does not have such rigid rules. It has some preferences, as some notes sound better over certain bass notes and chord progressions than others. Melodies within an octave and small jumps between notes are preferred because they are easier to sing. But there are no rigid rules, as with a game like chess or Go. Plus, interesting things happen when you break the "rules." Both 10cc's "The Things We Do for Love" and Elton John's "Goodbye Yellow Brick Road"[ref]Whitney Houston, I Have Nothing and Elton John, Yellow Brick Road[/ref] have verses which are in different musical keys than the chorus. Or take Queen's "Bohemian Rhapsody." Each musical sequence in the song is different than the one immediately preceding. And no two sequences of the song are ever repeated. In order for an AI enabled machine to "create" art, it first has to be fed the necessary data. So, the AI program is not going to be wise to the possibility of changing the musical keys within one song, unless it is fed an example of something like that happening. And the necessary part of this, is making copies of other people's work. In order to paint a portrait in the "style" of classical painters, it was necessary to feed the computer 15,000 portraits painted between the 14th and 20th Centuries.[ref]Could a computer ever create better art than a human?[/ref] The BBC called the result "a bit rubbish."[ref]Could a computer ever create better art than a human?[/ref] The painting is a shade blurry and would never be confused with a Rembrandt. But follow the link in the previous endnote and judge for yourself. Then according to the Entrepreneur: " Just this past [April]Google's Magenta and PAIR teams created a Google Doodle which celebrated Johann Sebastian Bach's 333rd birthday. The Doodle, which lets users create their own music by using machine learning to harmonize melodies, analyzed 306 of Bach's original chorale harmonizations to create a tune with the user's notes."[ref]The Future of AI in the Music Business[/ref] Then there's this story from NBC News about LA composer Lucas Tanner's attempt to "finish" Franz Schubert's famous Symphony Number 8, known colloquially as the "Unfinished Symphony," using AI. "In the end, Cantor and engineers from Huawei fed as much of Schubert's catalog as they could find — roughly 2,000 pieces of piano music — into the software inside the company's new Mate 20 phone. The goal was to teach the AI to think like Schubert and to compose new passages, including what Cantor calls the ‘heart and soul of any piece of music:' the melody."[ref]AI can now compose pop music and even symphonies. Here's how composers are joining in.[/ref] So what do we have at the outset? Copying. Lots and lots of copying. Some 2,000 pieces of piano music. Some 15,000 portraits. None of this is important when the object is to come close to what Schubert or Rembrandt might have done in their day. All of their works entered the public domain many, many years ago. But what happens when the intent is not to sound like Schubert, but Ed Sheeran? Or Stevie Wonder? Or Paul McCartney? Then we have a different problem. Recall that the very first requirement for a work to be protected by copyright is that the work be "original."[ref]17 USC 102[/ref] According to the Courts, "originality requires ‘a work independently created by its author, one not copied from pre-existing works…'"[ref]Boisson v. Banian, Ltd., 273 F.3d 262, 267 (2d Cir.2001)[/ref] So if the AI was instructed to compose songs like Paul McCartney, we face three problems:

There is doubt whether a computer can qualify as an "author"
The AI computer would have to be fed copies of Paul McCartney songs since it would not discover his "style" by accident
The resulting output would be necessarily copied from the existing input

In essence, either there is no copyright since a human being is not the author, or there is copyright infringement from violating the reproduction right[ref]17 USC106 (1)[/ref] by imputing complete copies into to computer and then using an AI blender to make a similar sounding song. Take your pick. Let's take the hypothetical and expand a bit, since it is doubtful that a programmer would limit the input to that of one composer, even though that composer is probably the most successful composer in the history of modern recorded music. Let's say that the programmers fed the computer 100,000 songs. And not surprisingly, one of the songs popped out by the AI computer sounds an awful lot like an existing song. As an attorney who might litigate this case, before I even get to an analysis of whether the existing song and the AI song are "substantially similar" to each other, I must prove "access." Since a lot of songs sound similar to each other, I must prove that the AI computer actually had the opportunity to analyze the song in question. In a deposition, I ask the programmer: "Was the AI computer fed a copy of the song?" "I don't remember." "Is there a list of songs that the AI computer was fed?" "No. We did not keep any records." So, now that it has come down to a question of copyright infringement, and paying potential damages, the incentive for hazy memories, sloppy record keeping, or even out and out cheating become more and more appealing. Might, under the duress of contemplating damages, a programmer remove a song from a master list and then delete it from the memory of the computer, so I cannot prove access? Possibly. But the one thing I cannot do is cross-examine the computer. Because it is not a human being. The other avenue of deflection is that the programmer does the usual tech liability avoidance dance and points to the computer: "It was the computer, not me, who did the infringing." But you are the one claiming copyright in the AI song. If you are the one claiming to be an "author" as a result of what the computer has done, shouldn't you also be liable for when the computer infringes? After all, fair is fair. But tech companies are so used to avoiding liability for what they do through things like Section 512 of the Copyright Act and Section 230, that they continually act as if they are above the law. Yet, in the distance I can hear the Electronic Frontier Foundation crowd braying that "all musicians copy from each other and this is no different." Sorry, but we do not just sit around and make copies of each other. This argument fails to distinguish between copying and inspiration, something which is apparent to musicians, not lawyers, especially those lawyers with an anti-copyright agenda. This subject was thoroughly discussed in the blog post Copying Is Not Creativity.[ref]Copying Is Not Creativity! Why Creative Artists Don't Need the Public Domain[/ref] I have written more than a few songs, and I honestly cannot tell you I do not know where they come from. They come from somewhere inside my head. In looking (hearing?) back over the years I can hear inspiration, in that certain sections sound like what some musical groups "might have done" but never what one actually did. Usually a song was started through improvisation, either by myself or with a group in a jam session. Once I hit upon a melodic fragment that was pleasing or "catchy" I would toy with it, trying various possibilities until I felt the song was done. But I also had the advantage of musical training. I knew what I was doing, and why I was doing it. For example, if I was trying to write a "pretty" song I would not start out with a melody note of "C" over a C# minor chord, because it would be dissonant and sound bad. However, if I was trying to write something that sounded ominous or eerie, I just might do that, for the exact same reason: I'm trying to express an emotion I'm feeling or I want the listener to feel. Again, this is the difference between humans and computers. Music hits an emotional place that cannot be replicated by a computer extrapolating "if this, then that." This is because the computer will only recognize the material that is fed to it. Without it, does a computer EVER make the series of "rule-breaking" choices that lead to "Bohemian Rhapsody"? With the Schubert project, this was the result: "Once the AI suggested a series of new melodies, Cantor used his professional expertise to choose one. Then he elaborated on the software's notes, adding instruments and harmonies to flesh out the AI's contribution into a full movement." Now we have something that might qualify for copyright: a human being, making artistic choices of selection and adding new creative material. Not just "pushing a button." This is why my conclusion is without more, or some sort of human collaboration, AI generated music should be instantly in the public domain. With AI, a human being is not involved in the creation, and the AI program simply copies what has gone before. Now, the final reason why AI music should be public domain: Just how did the songs get into the computer? Obviously they copied them in. But how? In the hypothetical of the 100,000 song database, did they actually pay for all those songs? Or did they just stream-rip them off of Spotify? I think we all know the answer. Heck, Spotify didn't even pay all the people whose songs they streamed.[ref]How Spotify Pays (or Doesn't Pay) Songwriters[/ref] Is it right that an AI database be built without payment to the creators of the songs they are copying? The standard response is that we are "standing in the way of innovation." To which a colleague of mine at a recent roundtable discussion on the topic succinctly put it: "it is not up to me to subsidize your business model by giving away my property for free." Which brings us to this unsettling question: Why do we need AI generated music? Is there now a world-wide shortage of music to be listened to? Again, I think we know the answer. As we watch Google, Spotify, Pandora et al press ahead with litigation designed to pay songwriters less and less, the motivating reason for AI music seems to be that computers will work cheap. At least cheaper than humans do. And it should be obvious that the intention of AI music is to directly compete with music created by humans, and the starting point is to make exact copies of what we have created. This article from The Industry Observer lays it out fairly clearly: "In contrast, there is a wide perception that streaming and digitization have not only driven down the value of music, but have also inextricably complicated the concept of a song's ‘market value' altogether…" "For instance, Spotify could use creative AI to slash licensing costs and populate a hypothetically infinite landscape of mood and activity playlists (hello, ‘fake artists')…" "The worst-case scenario is that AI becomes sufficiently ‘independent' creatively such that it can churn out hundreds of songs in a day, register the proper copyrights for those songs and then flood platforms like Spotify and SoundCloud, which would make the online music landscape even noisier and more unnavigable than it already is today. And then the answer to ‘how much would you pay for an AI-generated song?' would probably be, well, nothing." (emphasis original)[ref]Is AI-generated music worth anything?[/ref] Which is why AI songs should be in the public domain.

Recent Posts

The “Art of No Deal” Will Cost Trump Plenty in Copyright Infringement Case

On September 13, 2024, a Federal Court Judge issued summary judgement against Donald Trump and his campaign in the long running copyright infringement dispute with Barbadian based musician Eddy Grant over the Trump campaign’s use of Grant’s song “Electric Avenue” in a Trump campaign video. 1 I have been following this case for a long time and have blogged about it previously. 2 To anyone who read the Judge’s initial ruling on Trump’s Motion to Dismiss, the ruling against Trump should not be surprising. The only real surprise is why the case got this far.As I suggested in my previous blog post, the case should have quickly been settled. Yet for whatever reason, including Trump’s own pugnacious personality, it was not, and now it will cost him. According to the complaint, Grant is seeking $300,00 in statutory damages, the maximum for infringement of not only the song “Electric Avenue” but sound recording as well. 3 The attorney’s fees, for four years of litigation, will easily top the amount of damages. And Trump is personally liable for both amounts.“It’s everything we asked for,” one of Grant’s lawyers, Brett Van Benthysen, told Business Insider. “100%.” 4The real question is why litigate? This crops up time and time again in copyright cases, where copyright defendants take to the costly step of litigating such malleable issues as “fair use” when a simple settlement, or license fee for that matter, would resolve the issue once and for all and make it go away, for a lot less money. And for Trump, the result is the prospect of a very large judgment against him, creating a lot of negative publicity around him at a time when negative publicity is very much not in his best interest. To which we can add the recent injunction granted against Trump for his use of “Hold On, I’m Comin” and a lawsuit filed by The White Stripes over use of the song “Seven Nation Army.” 5As I noted three years ago:Many times, an [infringement claim] occurs when songs are used at campaign rallies. The composers feel that this is an implied endorsement. The campaigns usually rely on a license from the performing rights organizations. However, sometimes the use is in a campaign video, and since this is a “synchronization” use, it absolutely requires a license and absolutely requires permission, even in the internet age. 6To this, Trump trots out the same fair use argument that got pummeled in the Court’s rejection of his Motion to Dismiss. Indeed, large sections of the Court’s opinion on summary judgement could have been cut and pasted from its previous ruling. For the fine details of that ruling, I invite you to read my previous blog post. 7The only new matter Trump brings to the Court is the contention that the “Electric Avenue” sound recording was not properly registered with the U.S. Copyright Office.Interestingly enough, there is no discussion about whether the “Electric Avenue” sound recording had to be registered with the Copyright Office in the first place. Eddy Grant was born in Ghana, raised in the UK, and presently resides in Barbados, 8 and as such is protected by the Berne Convention.In that situation, according to the expert folks at the Copyright Alliance:“A foreign author may bring a copyright infringement action in a U.S. district court without registering his or her work with the U.S. Copyright Office. However, a foreign author must register his or her work with the U.S. Copyright Office in order to obtain certain statutory benefits that are provided under the 1976 Copyright Act, such as the presumption of validity and the ability to claim statutory damages and attorney’s fees in an infringement action.” 9So, Grant’s lawsuit would have been sustainable in any event. The real crux would be his ability to ask for statutory damages and attorneys fees, which he clearly is asking for.Now, while the song “Electric Avenue” was registered for copyright in the U.S. in 1983, 10 it does not appear that the sound recording was registered until many years later. “Electric Avenue” was recorded at Grant’s studio in Barbados and he is the sole musician on the recording, so the sound recording copyright unquestionably belongs to him. The sound recordings rights to “Electric Avenue” (amongst others) were licensed to Warner Music UK in 2001 for a five-year period, and for a territory which included the United States. 11 During this agreement, a “Greatest Hits” compilation was released which included “Electric Avenue.” This collection of sound recordings was registered with the U.S. Copyright Office in 2002. 12 The license agreement expired in 2006, by which all rights reverted to Grant. 13For his part, Trump contends the “Greatest Hits” registration was insufficient to register the component part of “Electric Avenue.” All of these arguments fail.The Court cites to previous Second Circuit precedent that held:“a publisher that filed collective works copyright registrations for issues of its magazine would have thereby obtained copyright registration for…the articles contained in the issue if the publisher owned the copyrights for those articles.” 14The Court also notes that:“[Trump argues] that the registration for a collective work does not include the registration for any previously published part but have failed to point out any case that supports that position.” 15Not a good strategy.Also in his answer, Trump asserted that he had “absolute presidential immunity” from Grant’s lawsuit. 16 This argument was apparently so ridiculous that it didn’t even merit discussion in the summary judgement opinion.But once again, why litigate this issue when a quick settlement and a much smaller fee would have made the entire matter disappear from the public eye? Further, why not take the video down after the cease and desist letter? Why wait until a lawsuit is filed until the video is removed from the public eye?I’m not alone in this thought. As my colleague David Newhoff wrote at the Illusion of More website:“When I wrote about the Grant v. Trump copyright case on October 1, I was wrong about one thing: that Team Trump would quickly settle the matter as a relative storm in a teacup within the legal tornadoes swirling around the ex-president.” 17Even the website Torrent Freak wondered:“In an ideal world, the failure of Trump’s motion to dismiss in September 2021 should’ve been seen as an opportunity to settle the case privately.A very small slice of humble pie and some tea, perhaps, so that everyone could move on. Or even negotiating the terms of the settlement Grant offered in August 2020 before filing the lawsuit.” 18And as a high-profile individual that once published a book under his name about “The Art of the Deal,” Trump should have known that “The Art of No Deal” can be much costlier.Notes:Grant v. Trump 2024 WL 4179057 SDNY 2024 (citations are to the WestLaw pagination) ↩“Electric Avenue” Derails Trump Train ↩Donald Trump Loses ‘Electric Avenue’ Legal Battle With Eddy Grant; Jury Could Be Convened Over Compensation From Ex-POTUS – Update ↩Donald Trump loses legal fight over using Eddy Grant song without permission ↩Id. ↩“Electric Avenue” Derails Trump Train ↩“Electric Avenue” Derails Trump Train ↩Wikipedia – Eddy Grant ↩Are Foreign Creators Protected in the US? ↩Grant v. Trump at 1 ↩Id. at 2 ↩Id. ↩Grant v. Trump at 2 ↩Grant v. Trump at 3 ↩Grant v. Trump at 5 ↩Trump Claims “Absolute Immunity” in Eddy Grant Copyright Suit ↩Id. ↩Eddy Grant Wins: Trump’s ‘Fair Use’ of ‘Electric Avenue’ Was Anything But ↩...

Test

Many headlines were generated on September 24, 2021, when Marvel Characters, Inc. filed a series of lawsuits against many former Marvel Comics illustrators.1 The suits, filed in New York and Los Angeles, all have the same basic fact pattern and asked for the same relief. The suits sought a declaratory decree that the termination notices served on Marvel by the authors and heirs of the former Marvel illustrators were invalid. At stake are the characters Iron Man, Spider-Man, Daredevil, Ant-Man, Hawkeye, Dr. Strange, Black Widow, Falcon, Thor and more.2When the Copyright Act was re-written, eventually enacted in 1976, for the first time, the right of an individual author to terminate a grant of copyright, and reclaim ownership, was added. But to make matters even more confusing, there were two different termination schemes enacted, one for post-1978 grants3 and one for pre-1978 grants.4 Yet, both systems have the same legal trap, the author cannot terminate a work that was prepared as a “work made for hire.” That is the central dispute in the suits that were filed. Yet, what constitutes a work made for hire after 1978, is largely governed by the Copyright Act. For pre-1978 works, it is largely a question of court decisions on the topic. Unfortunately for the Marvel illustrators, the case law does not favor their position.The case law on the subject indicates that a pre-1978 creative work is “made for hire” when it is prepared at the “instance and expense” of the hiring party. This is the rule in the Second, Ninth and Fifth Circuits, and cited as controlling by a Bankruptcy Court ruling involving, interestingly enough, Marvel Comics.5“If the employer can meet its burden to show some credible evidence that an employee worked at the ‘instance and expense’ of the employer, then the court will presume that the employer holds the copyright to the material produced.”6The Second Circuit defines “instance and expense” as “when the ‘motivating factor in producing the work was the employer who induced the creation.’”7The Fifth Circuit adds that another factor is “whether the employer had the right to direct and supervise the manner in which the work was being performed. Actual exercise of that right is not controlling, and copyright is vested in the employer who has no intention of overseeing the detailed activity of any employee hired for the very purpose of producing the material.”8According to the Second Circuit: “[t]he ‘expense’ component refers to the resources the hiring party invests in the creation of the work. We have, at least in some cases, continued the tradition of treating the incidents of a traditional employment relationship as relevant to the analysis. (Citation omitted) We have, moreover, suggested that the hiring party’s provision of tools, resources, or overhead may be controlling…In other cases, however, we seem to have focused mostly on the nature of payment: payment of a ‘sum certain’ suggests a work-for-hire arrangement; but ‘where the creator of a work receives royalties as payment, that method of payment generally weighs against finding a work-for-hire relationship.’”9The last quote is telling, as it came in a lawsuit bearing what Marvel calls “virtually identical circumstances,” Marvel Characters, Inc. against former Marvel illustrator Jack Kirby.That case described in detail “The Marvel Method”:“Under the Marvel Method, [Stan] Lee would not write a detailed script for a story before assigning an artist to draw it. Instead, at a ‘plotting conference,’ or in a ‘plot outline,’ Lee gave the artist the general contours of the story he had in mind: an outline of the plot, a description of the hero, and suggestions for how the story should look. The artist would draw the story along the lines of Lee’s ‘main theme.’ After an artist completed the pencil drawings, Lee edited his work and added dialogue and captions. Use of the Marvel Method allowed Lee to keep multiple artists working on assignments simultaneously.”10Here’s where it starts to get sticky. Stan Lee was certainly an employee of Marvel. Whatever his contributions to the creation of a character were certainly works for hire which would remain with Marvel. Even though individual authors can terminate individual author’s shares, the questions then become “who created what” and “is this still relevant today”?Let’s take Daredevil for example. His original costume was yellow. Who decided to change it to all red? So does the termination notice apply to “yellow” Daredevil or “red” Daredevil?Or let’s look at Iron Man, whose suit of armor and look have changed vastly over the years:Does the termination only apply to the original Iron Man? Who gets authorship over the changes? Or, let’s take on the character of Tony Stark. For the most part, Stark has been Iron Man. Sometimes Iron Man has been other characters, most notably James Rhodes.11This is important because despite termination, Marvel gets to keep the derivative versions of the character made while they held the copyright.12And then we get to the problems of proof on these issues. Stan Lee is dead. So are Gene Colan, Don Heck and Don Rico.13 Stan Lee was deposed extensively in the Jack Kirby litigation, but these may not have any bearing on the creation of Iron Man or Spider-Man. While it is true that Marvel as Plaintiff has the burden of proof, how are the various defendants going to introduce evidence to the contrary?Then there is the ruling on how “the Marvel Method” results in a decision of “work made for hire.”“In the work-for-hire context, ‘an essential element of the employer-employee relationship is the right of the employer to direct and supervise the manner in which the [artist] performs his work.’ (citation omitted) If the hiring party ‘took the initiative in engaging [the artist]’ and had ‘the power to accept, reject, or modify her work, then the work is a work for hire. (citation omitted) It is undisputed that at all times between 1958 and 1963 Lee had complete editorial and stylistic control over all work that Marvel published…. If Lee did not approve of the artist’s work, it was not published. (citation omitted) Kirby was no exception. Lee edited Kirby’s work and reviewed and approved all of his work prior to publication. (citation omitted) Lee’s testimony is consistent with the recollection of Kirby’s daughter, Susan Kirby, who testified that Lee asked her father to ‘redo pages.’ (citation omitted) Neal Kirby testified about one instance where Lee rejected a ‘cover’ created by Kirby.”14In affirming, the Second Circuit wrote:“Understood as products of this overarching relationship, Kirby’s works during this period were hardly self-directed projects in which he hoped Marvel, as one of several potential publishers, might have an interest; rather, he created the relevant works pursuant to Marvel’s assignment or with Marvel specifically in mind. Kirby’s ongoing partnership with Marvel, however unbalanced and under-remunerative to the artist, is therefore what induced Kirby’s creation of the works…Marvel’s inducement, right to supervise, exercise of that right, and creative contribution with respect to Kirby’s work during the relevant time period is more than enough to establish that the works were created at Marvel’s instance.”15As to the “expense” prong:“The facts underlying the expense component are not in dispute. Marvel paid Kirby a flat rate per page for those pages it accepted, and no royalties. It did not pay for Kirby’s supplies or provide him with office space. It was free to reject Kirby’s pages and pay him nothing for them. The record contains anecdotal evidence that Marvel did in fact reject Kirby’s work or require him to redo it on occasion, if less often than it did the work of other artists, but with what frequency is unclear… In the final analysis, then, the record suggests that both parties took on risks with respect to the works’ success—Kirby that he might occasionally not be paid for the labor and materials for certain pages, and Marvel that the pages it did pay for might not result in a successful comic book. But we think that Marvel’s payment of a flat rate and its contribution of both creative and production value, in light of the parties’ relationship as a whole, is enough to satisfy the expense requirement.”16Given that the facts surrounding the current dispute are bound to be the same, how does the Marvel illustrator’s cases succeed?According to the Marvel illustrator’s attorney, “At the core of these cases is an anachronistic and highly criticized interpretation of ‘work-made-for-hire’ under the 1909 Copyright Act that needs to be rectified.”17Except that in this instance the appellate court in both jurisdictions where the suits have been filed have both affirmed the “instance and expense” test.And if they succeed, what do they get? Certainly not total ownership of the copyrights at issue, since, as noted, Stan Lee was definitely an employee of Marvel. Co-ownership?Co-ownership of a copyright means all parties own the copyright equally. And being a co-owner means that you can license a work without the permission of the other co-owners, subject to your duty to account for all the compensation one would receive. Could this happen?Doubtful. The movie business is not like other businesses and thrives on exclusivity. Would a movie company really make a deal for one of the Marvel characters knowing that they would not have exclusive rights and that Disney would in essence be looking over their shoulder?All likely outcomes point to a settlement at some point. This is what happened to the Kirby case even after the affirmance by the Second Circuit.18Notes:The suits are Marvel Characters Inc. v Lieber, 21-cv-7955; Marvel Characters Inc. v Ditko, 21-cv-7957; and Marvel Characters Inc. v Dettwiler, 21-cv-7959, all in U.S. District Court, Southern District of New York (Manhattan); Marvel Characters Inc. v Solo, 21-cv-5316, U.S. District Court, Eastern District of New York; and Marvel Characters Inc. v Hart-Rico, U.S. District Court, Central District of California (Los Angeles.)Marvel Suing to Keep Rights to ‘Avengers’ Characters From Copyright Termination, Marvel Sues to Prevent Losing Copyrights to ‘Avengers’ Characters, Disney sues former Marvel artists over Iron Man and Spider-Man rights17 USC 20317 USC 304(c)In Re: Marvel Entertainment Group 254 B.R. 817 (D. Del 2000)Id. at 828Sigel v. National Periodical Publications 508 F.2d 909 (2d. Cir.1974) at 914Murray v. Gelderman, 566 F.2d 1307, 1310 (5th Cir.1978) at 1310Marvel Characters Inc.v. Kirby 726 F.3d 119 (2d. Cir. 2013) at 140Marvel Worldwide v.Kirby 777 F.Supp. 2d 720 (SDNY 2011) at 732Wikipedia – Iron Man17 USC 304 (c) (6) (A)Disney sues former Marvel artists over Iron Man and Spider-Man rightsMarvel Worldwide v.Kirby 777 F.Supp. 2d 720 (SDNY 2011) at 740Marvel Characters Inc.v. Kirby 726 F.3d 119 (2d. Cir. 2013) at 141Id. at 142Disney sues former Marvel artists over Iron Man and Spider-Man rightsId....

Appellate Court Rules That “Sophisticated Plaintiffs” Are Entitled to Equal Protection Under the Copyright Laws

Appellate Court Rules That “Sophisticated Plaintiffs” Are Entitled to Equal Protection Under the Copyright LawsIt’s one of those principles that should not need to be debated: people are entitled to equal protection under the law. Yet strangely, one Federal Court went out of its way to penalize a litigant, because they were a “sophisticated copyright litigator” causing the dismissal of the case. Now, the Second Circuit has reversed this erroneous decision, stating “[t]here is no ‘sophisticated plaintiff’ exception to the discovery rule or to a defendant’s burden to plead and prove a statute of limitations defense.”The Plaintiff here is Michael Grecco Productions, Inc., the business arm of photographer Michael Grecco. In an appendix filed with the case, it was claimed that MGP had filed more than 100 copyright lawsuits. Why this matters is beyond me. Anyone with a clear mind knows that the internet is a cesspool of copyright infringing material, with photographers taking the brunt of the injuries. According to the website Torrent Freak, Google processed over one BILLION takedown notices in the first four months of 2024 alone. 2 One hundred lawsuits is not even a drop in the ocean.This legal squabble arises because the defendant here claims that MGP’s lawsuit was filed too late and thus barred by the statute of limitations under Section 507(b). The question arose as to the proper time using the “discovery” rule. The Court below ruled that MGP’s “relative sophistication as an experienced litigator in identifying and bringing causes of action for unauthorized uses of Grecco’s copyrighted works leads to the conclusion that it should have discovered, with the exercise of due diligence, ‘Davis’s alleged infringement ‘within the three-year limitations period.’” 3Rather than trying to amend its complaint, MGP stood by its original filing and the Court dismissed the case. MGP filed an appeal. The second Circuit made quick work of the District Court’s reasoning.“Although the district court claimed to apply the discovery rule, its calculation actually employed the injury rule; it started the three-year clock when the infringement allegedly began, while also implying that some extension of time might be available if MGP was unable to discover the infringement within those three years. In essence, the calculation incorrectly reflected the discovery rule as an equitable extension and not the rule of accrual.” 4“MGP filed its complaint on October 12, 2021. Thus, to be timely, MGP must have been unable, with the exercise of due diligence, to discover the infringing activity prior to October 12, 2018, three years before the complaint was filed. [Citation omitted] By contrast, the district court held that MGP “must have been unable, with the exercise of due diligence, to discover the infringing activity prior to August 16, 2020, three years after the infringing activity allegedly began.” 5“Although the district court claimed to apply the discovery rule, its calculation actually employed the injury rule; it started the three-year clock when the infringement allegedly began, while also implying that some extension of time might be available if MGP was unable to discover the infringement within those three years. In essence, the calculation incorrectly reflected the discovery rule as an equitable extension and not the rule of accrual.” 6In simpler terms, for purposes of the Copyright statute under the “discovery rule,” the three-year term runs from when the suit is filed and looks backward. Did the Plaintiff know, or with the exercise of due diligence, reasonably know, or should have known about the infringement more than three years from the date of filing of the lawsuit?And (in the words of Frank Zappa) here’s the crux of the biscuit: does the sophistication of the Plaintiff matter at all in assessing the “should have known” portion of the test? The answer is no.“In the context of the Copyright Act’s three-year limitations provision, the discovery rule is the rule of accrual, not an equitable tolling or estoppel doctrine. The discovery rule is not an exception to the injury rule that only applies to some infringement claims; it is not a benefit for which only some plaintiffs qualify. Rather, ‘the discovery rule, not the injury rule’ determines, in the first place, when a copyright infringement claim accrues.” 7“This ‘sophisticated plaintiff’ rationale has no mooring to our cases. First, to the extent this rationale arose out of treating the discovery rule as an equitable doctrine for which only some plaintiffs in some circumstances will qualify, it is wrong. As already noted, because we have previously determined that the discovery rule is Congress’s intended rule of accrual for civil actions under the Copyright Act, it is the rule in every such action and not an equitable exception to the injury rule.” 8“Second, to the extent the district court’s rationale recognizes the discovery rule as one of accrual, but nevertheless suggests different rules of accrual for different plaintiffs—the discovery rule for copyright holders not sophisticated in detecting and litigating infringements, but the injury rule for copyright holders who are—it also is wrong. We have never understood the Copyright Act to employ different rules of accrual for different plaintiffs. The Supreme Court has made clear that the Act’s “clock is a singular one.” 9“Third, even if the district court’s ‘sophisticated plaintiff’ rationale is merely a presumption that sophisticated plaintiffs can discover infringements immediately or nearly so, such that the date of earliest diligent discovery would always be the date of injury (or approximately so), the rationale remains flawed. A plaintiff’s ‘sophisticated’ nature does not automatically relieve a defendant of her burden to plead and prove a Copyright Act limitations defense… A sophisticated plaintiff may well discover an infringement sooner than their less practiced neighbor. But the answer to the discovery question turns on due diligence—the fact-intensive inquiry of the copyright holder’s efforts to discover the infringement. An overly simplified ‘sophisticated plaintiff’ presumption is antithetical to the nature of the task.” 10And there you go. Equal protection under the law.Notes:Michael Grecco Productions Inc. v. RADesign, Inc. 2024 WL 3836578, 2d Cir. Court of Appeals 2024 ↩Google Search Processed a Billion DMCA Takedowns in Four Months ↩Michael Grecco Productions Inc. at 2 ↩Id. at 4 ↩Id. ↩Id. ↩Id. ↩Id. at 5 ↩Id. ↩Id. ↩...

The Beat Goes On - and So Do the Royalty Payments

The late Sonny Bono now adds his name to another chapter of copyright law. The first, of course, was the Sonny Bono Copyright Term Extension Act, The Shocking Truth Behind the Passage of the Sonny Bono Copyright Extension! (Is That It's Not Really Shocking) which extended copyright protections for an additional 20 years. Now, his name gets attached to a very novel copyright fight: can the copyright termination provisions of Section 304 trump the terms and conditions of a State marital property settlement agreement? The facts of the case are simple and largely not in dispute. Sonny Bono was half of the very popular 1960's musical group "Sonny and Cher,"[ref]Wikipedia - Sonny Bono[/ref] who in the 1970's had their own TV Variety Show.[ref]Wikipedia - Sonny Bono[/ref] After their divorce, Cher became the far more popular and successful of the duo and is better known to modern audiences than Sonny. Indeed, Cher is so popular that she is now legally known only as "Cher" as the headings to this case indicate.[ref]Cher v. Mary Bono LA Cv21-08157 JAK (RAO) U.S. District Court for the Central District of California (Slip Opinion)[/ref] Sonny went into politics before dying in a skiing accident in 1998.[ref]Wikipedia - Sonny Bono[/ref] The epitaph on his gravestone is "And the Beat Goes On," a nod to Sonny and Cher's 1967 hit single "The Beat Goes On."[ref]The Beat Goes On (Sonny & Sher song)[/ref] As a result of their 1978 divorce, Sonny agreed that Cher would continue to receive "an undivided 50% interest" in the continuing royalties derived from sales and performances of their songs, less an administrative fee.[ref]Cher v. Mary Bono LA Cv21-08157 JAK (RAO) U.S. District Court for the Central District of California (Slip Opinion)[/ref] In 2016, Sonny's widow Mary Bono served termination notices under section 304(c) of the Copyright Act to reclaim ownership of Sonny copyrights on "various music publishers to which Sonny had granted a transfer or license of copyright in musical compositions that had authored or co-authored."[ref]Id. at 2[/ref] When the termination notices took effect, Mary stopped paying the royalties to Cher and in 2021 informed her that she no longer was entitled to any further royalties under the Marital Settlement agreement.[ref]Id. at 2-3[/ref] Cher sued in 2021 for declaratory judgement that "the notice of termination does not affect her royalty rights or approval rights under the [Marital Settlement Agreement]."[ref]Id. at 9[/ref] Both sides moved for summary judgement. On May 29, 2024, the District Judge sided with Cher, ruling that the MSA entitled Cher to a royalty stream, not necessarily an ownership interest in the copyrights themselves to which Section 304(c) termination would apply. "Consequently, Plaintiff's rights under the MSA are linked to the musical compositions and Sonny's corresponding property interests. Because in granting the royalty and approval rights at issue, the MSA did not refer to a "grant of a transfer or license" of the underlying copyrights, Plaintiff's rights under the MSA arise solely under state law. Further, because section 304(c) expressly provides that it "in no way affects rights arising under any other Federal, State, or foreign laws" (Citation Omitted) the Notice of Termination cannot affect Plaintiff's contractual right to receive financial compensation in exchange for the release and permanent discharge of any and all claims arising out of her marital relationship with Sonny. Notwithstanding the plain language of the MSA, Defendant argues that, under 17 U.S.C. § 304(c)(5), "[t]ermination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant," and the MSA constitutes such an "agreement to the contrary." (citation omitted) However, the only rights that are terminable under section 304(c) are copyright grants. (citation omitted). Therefore, an "agreement to the contrary" under section 304(c)(5) is only a "contractual device that purports to divest" authors and successors of the right to "terminate copyright assignments." (citation omitted) Because the MSA does not refer to the underlying copyrights, it did not affect the ability of Sonny's heirs to terminate the copyrights. Therefore, it is not an "agreement to the contrary."[ref]Id. at 10-11[/ref] In rendering this decision, the Judge has side-stepped one of the more thorny issues of copyright law: marital community property. Under the laws of States that recognize "community property," all assets acquired during the marriage belong equally to the parties to the marriage. This would include all copyrights to works created by one of the spouses during the marriage. So here, absent an agreement, Cher would be a 50% owner of all of Sonny's copyrights due to the laws of community property. What the MSA agreement did was merely formalize this into an agreement where Sonny would keep 100% of the ownership of the copyrights, subject to Cher's right to receive 50% of all future income. If the Judge were to side with Mary Bono, it would mean that parties to a divorce proceeding could agree to a similar arrangement, only to have one party renege on that agreement years later, using the Copyright Act termination provisions of section 304. "The MSA … assigned to Plaintiff a right to the "contingent receipts ... from musical compositions and interests therein" in exchange for the release of "any and all claims ... arising out of the marital status of the parties." (citation omitted) Consequently, the conclusion "that an author-spouse in whom a copyright vests maintains exclusive managerial control of the copyright but that the economic benefits of the copyrighted work belong to the community while it exists and to the former spouses in indivision thereafter ... is consistent with both federal copyright law and [California] community property law and is reconcilable under both."[ref]Id. at 11[/ref] So, the beat goes on – and so do the royalty payments....

Should Music Created by Artificial Intelligence Be Protected by Copyright?

NSU Partner Libraries

Attractions

Resources

Help