Copyright

Along with all the other nonsense being thrown about when copyright is mentioned, the most puzzling is the notion that somehow creative artists need for things to go into the public domain as quickly as possible, or else we cannot create. Somehow in their minds, copying is equivalent to creativity. I will be polite here, because many of the people saying this are very intelligent, including as we shall see, a Federal Circuit Judge. My only thought is that either they have not thought this notion through, because it sounds reasonable in the abstract, or because they have never been responsible for a creative work of their own. The argument goes something along these lines: "Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire is genuinely new: Culture, like science and technology grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture."[ref]Hon. Alex Kozinsky, dissenting opinion, White v. Samsung Electronics America, 969 F.2d 1512, Ninth Circuit Court of Appeals, 1993 at page 1513[/ref] To which I say: nonsense. First off, can we dispense with the notion that "[n]othing today, likely nothing since we tamed fire is genuinely new." Really? When we tamed fire, the following had yet to be invented: the violin, viola, cello, bassoon, oboe, trumpet, trombone, saxophone, flute, harp, guitar, organ or synthesizer. The following people would not be born for thousands of years: Bach, Beethoven, Brahms, Mozart, Debussey, Wagner, Ravel, Stravinsky or any of the Beatles. At this point, we still will lack for thousands of more years: Da Vinci, Michelangelo, Rembrandt, Titian, Degas, Van Gogh, Monet, Toulouse-Latrec, Picasso and Dali. And let's not forget eons would go by before the likes of Chaucer, Dickens, Melville, Dumas, Dostoyevsky, Twain, Poe, Steinbeck, or Ian Fleming would become known to us. And finally, neither the camera, nor the motion picture camera, was even a glimmer in the mind of tamer of fire. Now, since when did copying become creativity? True creative people create. True creative people do not just copy slavishly from others. That is why they are remembered hundreds of years after their death. Artists may be indeed be influenced by other artists, and this connection may be apparent in their work, but this is not the same thing as simply copying. Copying is not creativity. Copying is copying. Aha! You may be thinking, didn't Stravinsky say "good composers borrow, great composers steal"? Actually, he never said this.[ref]Phony Composer Quotes in History, Part I[/ref] Plus it is worth noting that this same quote has also been attributed to Picasso, who didn't say it either.[ref]Id.[/ref] The actual quote has been traced back to T.S. Elliot, who made this point: "Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different."[ref]Id.[/ref] Not quite the same sentiment is it? Seeing a good idea, poorly executed, and making it into something better is not copyright infringement, because copyright does not protect ideas. Previous blog posts have detailed the great level of ideas, themes and settings that can be adopted from previously existing works without committing copyright infringement.[ref]Copyright Stifles Innovation And Creativity! (Says The Internet): It Doesn't; And Here's Why[/ref] And a more recent blog post detailed what parts of a musical composition are, and are not, copyrightable.[ref]The Fight over "Blurred Lines:" What Parts of a Song are Copyrightable?[/ref] In preparing this blog post, I read a lot of posts from musicians and music educators saying this composer stole this from that composer, all without analyzing what evidence there was of direct copying (and ignoring the doctrine of independent creation) whether what was taken would have been protectable under modern copyright law at all. In short, there seems to be a cottage industry of accusing famous composers and writers of plagiarism, where nothing is put forward as evidence other than the works have similarities. Take for example, noted film composer John Williams, who seems to get accused of plagiarism a lot on the web. All composers have musical influences, and Williams is no exception; I hear a lot in his work that could have come from the pen of Beethoven, Wagner or Holst. Indeed, listen to Holst's "Mars: The Bringer of War" from the orchestral song suite "The Planets" and it is hard not to be reminded of the score for Star Wars. It is one thing to imitate, consciously or unconsciously another composer's style of writing, arranging and orchestration. It is quite another to openly plagiarize to the level of copyright infringement. Are there similarities between "Mars" and Star Wars? Absolutely. Are the two works substantially similar to the level of copyright infringement? Not even close. And note, Holst died in 1934,[ref]Gustav Holst[/ref] which means in those Berne countries which adhere to the life plus fifty copyright term, "The Planets" would have still been protected by copyright in much of the world in 1977, when Stars Wars premiered. To the best of my knowledge, no action was ever taken. As a more modern example, there is Phil Collins' "Sussudio," which Collins has admitted drew inspiration from Prince's "1999."[ref]Sussudio[/ref] They share a similar pounding mid-tempo beat, and that the underpinning of the song is a sequence of block chords played on a synthesizer. Otherwise, musically and lyrically, the songs are nothing alike.[ref]Does 1999 sound like Phil Collins' "Sussudio"?[/ref] Certainly, Collins was not sitting around moping that he wished Prince's song would hurry up and go into the public domain so he could copy it. And certainly Prince, who is ultra-protective of his work, was not sufficiently aggrieved that he had been done wrong to do anything about it. We as creative people do not need to move works into the public domain as quickly as possible. We can legitimately draw ideas and inspirations from other works, and build on them, without moving into the realm of copyright infringement. The restrictions of copyright do this rather well. You are allowed to copy all sorts of things from other creative works, but not make a slavish copy which adds nothing to our culture. As matter of fact, creative restrictions are your friend, not your enemy. Back in music school, in composition class, I was tasked with writing a piece using counterpoint. One of the rules in counterpoint is that you could not have two notes moving in the same direction at the same time separated by either a perfect 5^th or an octave, known as the rule against "parallel 5ths and parallel octaves." Why is there such a rule? They destroy the contrary motion required by counterpoint and sound bad. Yet, many times I found I had written myself into a trap, where parallel 5^th or octaves were unavoidable based upon the chord sequence I was following. This would lead to much cursing on my part as several bars of music would have to be erased, and I would have to find a solution to the problem. In other words, the restriction demanded that I get more creative. And currently there is the example of the movie Selma, about events in the life of Martin Luther King, Jr. Incredible as it may seem, the movie did not use King's famous "I Have a Dream" speech nor any other speech made by King. Why? The King family had registered all of the speeches for copyright, and sold the rights to Steven Spielberg.[ref]Oscars: How 'Selma' Filmmakers Made a Movie About MLK Without Using His Words[/ref] So, faced with this restriction, what did the filmmakers do? They got creative. "Because King's speeches were licensed to another project, Selma's filmmakers had to find a way to re-create the meaning of MLK's words without tres­passing on his actual, historic language. That means they had to rewrite MLK, though sometimes this meant just altering a verb or two. During the scene at the funeral of civil rights demonstrator Jimmie Lee Jackson, for instance, the MLK in the film gives a rousing oratory, asking the crowd, "Who murdered Jimmie Lee Jackson?" In real life, King asked, "Who killed him?" In another scene, King rallies protestors with the words, "Give us the vote," while in reality King said, "Give us the ballot." The film skirts close to the words without using them."[ref]Id.[/ref] "Once they realized how complicated the family situation was, the producers never even attempted to clinch a deal with the King heirs. ‘There were no negotiations,' says Sophie Glover, head of publicity for Pathe' UK, which co-financed the picture. "The film does not use any copyrighted material.'"[ref]Id.[/ref] The goal of copyright is to "promote the progress of… useful arts."[ref]U.S. Constitution, Article 1, Section 8[/ref] It does this in two ways. The first is to provide a monetary return to the author sufficient to incentivize the creation of the work. The second is that copyright allows for some copying of ideas, and even some expression, but prohibits slavish copying that does nothing to create new works of value that enhance our culture. This is the second part that never gets mentioned by anti-copyright critics. The restriction against slavish copying through the grant of a copyright means you have to get creative and work up something fresh. You are not allowed to just repeat what someone else has come up with. This has no value and does not promote the progress of the useful arts. For example, the anti-copyright forces laud the re-mixer as making some grand artistic statement that we should promote, forcing copyright owners into blanket licenses. To which my response is "what are they creating?" If you as a re-mixer, wish to use my song, you want it for two reasons; first, it's a good song or it's a popular song, perhaps both. Neither of these values were created by you, the re-mixer, they were created by me, the composer. So in essence the re-mixer wishes to take advantage of the value of a song without being the cause of the creation of that value in the first place. Put more succinctly, the re-mixer seeks to reap where they have not sown, which is why we have laws against common law misappropriation, as well as laws protecting copyrights. So my permission to lend my valuable property to your project should absolutely be required. Don't like that you need to get my permission? Then go write your own song. Get creative. No one has a copyright on a style. No one has a copyright on music theory. No one has a copyright on compositional techniques or methods. Creating a piece of music clearly inspired by another composer is not copyright infringement, unless and until it rises to the level of being substantially similar. This is the argument being played out in the "Blurred Lines" case, the subject of a previous blog post.[ref]The Fight over "Blurred Lines:" What Parts of a Song are Copyrightable?[/ref] And remember, creative restrictions are good for you. They force you to go beyond merely copying what has gone before and actually get involved in creating something. Copying is not creativity. Copying is copying. We don't need bad copies of what Mozart did. We need the next Mozart to start writing.

On February 5, 2015, the Copyright Office dropped their long awaited position paper on reforming the music licensing system, "Copyright and the Music Marketplace."[ref]Copyright and the Music Marketplace: A Report of the Register of Copyrights[/ref] I think "dropped" is an appropriate description, as the report runs for 202 pages of single spaced text, 975 footnotes and an additional 43 pages devoted to exhibits. My guess is most artists and legal followers of this blog will find the prospect of slogging through those 202 pages a bit daunting, even if the subject matter is easy to comprehend, which it most certainly is not. But fear not. As my position as Copyright Officer requires me to be as current as possible on all aspects of copyright, I have indeed read the report and shall take this blog space to illuminate the major proposals from the Copyright Office. My initial thought was simply to use excerpts from the actual text of the report and categorize them under broad headings, so the reader could read the actual words of the report. That thought lasted until I realized I had generated 10 pages of text containing 5,487 words. So, I will attempt to condense the main points, and where required, to give some explanation as to why a proposal is being made. Faithful readers of this blog will recognize some of the issues being dealt with, particularly sound recording rights, streaming services, etc. The report proposes the following:

Creation of Sound Recording Performance Rights for Broadcast Radio

Currently, a U.S. radio station need only pay one party when they play a song; the composer of the song. These rights are brokered through one of three performing rights organizations (PROs) that go by various "alphabet soup" identifiers, e.g. ASCAP, BMI and SESAC. There is no payment made to the owner of the sound recording copyright. The U.S. is the only major country in the world that does not pay to perform sound recordings. The result is that in other countries where sound recordings do generate performance payments, no payments are collected for U.S. sound recordings, resulting in a large loss of revenue to the owners of sound recordings.[ref]Copyright and the Music Marketplace at page 138[/ref] For their part, the broadcasters have always contended that the playing of music creates "free publicity" for the sound recording owners, justifying the payment of nothing for the performance right. The Copyright Office (CO) proposes to end this exemption, so that all performances of sound recordings must be properly licensed and paid for. This already occurs in the realm of digital performances, where the rates are set through the Copyright Royalty Board (CRB) and collected by SoundExchange, a recording industry collective, much like the PROs. For their part, the CO is unimpressed with the "free promotion" argument. "Significantly, as consumer preferences shift away from music ownership, the potential for sales is becoming less relevant, and the promotional value of radio less apparent… In this regard, the creation of a terrestrial sound recording performance right need not overlook or negate the question of promotional value, because this factor can be taken into account by a rate-setting authority, or in private negotiations, to arrive at an appropriate royalty rate."[ref]Id. t 139[/ref] The fighting over this will be intense. The broadcasters have a very large and powerful lobby in Washington, and have actively sought for years to roll back the payments they make to the PROs. Just because the CO is in favor of the proposal does not in any way make its passage a sure thing, and I, for one, would be very surprised if such a bill would pass.

Create Performance Rights for Pre-1972 Sound Recordings…With a Catch

Faithful readers of this blog will recognize this issue. The battles between Flo and Eddie and Sirius XM have been duly noted here[ref]Flo and Eddie v. Sirius XM Radio: Have Two Hippies from the 60's Just Changed the Course of Broadcast Music?[/ref] and are amongst the most read blog posts. The proposal of the CO is to clean-up the mess that would result with 50 different laws regarding the performance of pre-1972 sound recordings by granting Federal Copyright protection to those sound recordings. But that protection will come with a price. The CO is proposing "full federalization" of pre-1972 sound recordings. "After considering input from stakeholders, the Office concluded that pre‐1972 sound recordings should be brought under federal copyright law with the same rights, exceptions, and limitations as sound recordings created on or after February 15, 1972."[ref]Copyright and the Music Marketplace at page 141[/ref] This would mean that pre-1972 sound recordings would be subject to the application of the DMCA safe harbor rules and rights‐balancing exceptions such as fair use.[ref]Id.[/ref] Given the abuses of the DMCA safe harbors by Google and others already documented by this blog, I'm not sure that pre-1972 sound recording owners would find this such a great deal. There is pending in Congress the RESPECT act, which would only allow the collection royalties for pre‐1972 performances and provide a safe harbor from state liability for paying services.[ref]Id.[/ref] As noted before, the streaming service Pandora opposes the RESPECT act, but has stated it would support the "full federalization" proposed by the CO.

One "Rate Court," One Standard, One Set of Rules

The current system of setting rates is fragmented and unequal. Rates for the PROs are determined (when necessary) by a Federal Court in Manhattan. Rates for Sirius XM and Pandora are set by the CRB. The rate court for the PROs uses the "fair market" standard and the CRB uses the "willing seller/willing buyer" standard. Composers are subject to a compulsory licensing system, whereas sound recording owners are not. The CO proposes to consolidate all rate-setting authority in the CRB.[ref]Copyright and the Music Marketplace at page 155-156[/ref] It also proposes that the CRB adopt one standard, either "fair market" or "willing seller/willing buyer," which "should be designed to achieve to the greatest extent possible the rates that would be negotiated in an unconstrained market… there is no policy justification to demand that music creators subsidize those who seek to profit from their works."[ref]Id. at page 144[/ref] (Are you listening, Pandora?) Lastly, musical compositions and sound recordings should be treated equally. "The Office's approach would offer a free market alternative to musical work owners, in the form of an opt‐out right, in the most significant areas where sound recording owners enjoy unfettered digital rights—namely, interactive streaming uses and downloads. And where sound recording owners are subject to statutory rate-setting—i.e., in the case of non-interactive streaming—musical works would remain regulated."[ref]Id. at page 136[/ref] This would also require the repeal of the rate setting standard of Section 114(i), which the CO absolutely endorses.[ref]Id. at page 157[/ref] One has to question why the Government is setting rates at all. Google can charge anything it wants for advertising on YouTube. Likewise, Sirius XM, Pandora and Spotify can charge whatever they want for their services. So why should the Government mandate the rate that a copyright owner can charge for their product? Does this not go against the principles of free market capitalism? Some would argue that copyrights are a monopoly, and thus require government intervention. Yet, patents are also a monopoly and there is no government regulation on what a patent holder might charge for a license, nor is there any requirement that a patent owner license their product at all. So why is there compulsory mechanical licensing for musical works, and compulsory performance licensing by the PROs at rates set by the Government? As the CO pointedly observes: "Viewed in the abstract, it is almost hard to believe that the U.S. government sets prices for music. In today's world, there is virtually no equivalent for this type of federal intervention—at least outside of the copyright arena."[ref]Id. at 145[/ref] "Even given greater latitude to make licensing decisions, it would seem that musical work owners would be strongly incentivized to license services that they believed would pay a reasonable return. This seems to be true of the record labels, which have authorized a wide range of download and interactive music services outside of a mandatory licensing regime. But the labels are not required to license services that show little promise or value. Why is this demanded of music publishers and songwriters?"[ref]Id. at149[/ref] "The Office believes that the question of whether music copyright owners should be able to choose whether to agree to a license is an especially critical one. Understandably, those seeking permission to use music appreciate the security of compulsory licensing processes and certainty of government‐set rates—as buyers of content likely would in any context. But modern competition law does not view the rights enjoyed by copyright owners as intrinsically anathema to efficient markets. As the DOJ itself has explained, "antitrust doctrine does not presume the existence of market power from the mere presence of an intellectual property right."[ref]Id.[/ref]

Modify or Eliminate the Need for the PRO Consent Decrees

Two of the PROs, ASCAP and BMI operate under consent decrees with the U.S. Department of Justice, to avoid anti-trust issues and anti-competitive behavior. The CO does not call for the repeal of the consent decrees, but questions their continuing usefulness and instead recommends modification. The question of how this might be achieved looms large. It is not clear that Congress has the authority to repeal a legal judgment brought by the executive branch and administered by the judicial branch. It would seem that one of the parties to the consent decree would have to petition the court in order to make the changes suggested by the CO. The CO proposes these steps to radically alter the consent decrees:

• Allow publishers to withdraw their digital performance rights
• Allow PROs to issue mechanical licenses
• Migrate rate-setting to the CRB
• Institute "pay to play" requirements for licensees

Currently, the rule is that a publisher has to be "all in" or "all out" with regards to their rights. This is leading some of the major music publishers, namely Sony/ATV and Universal Music Group to contemplate removing their works from ASCAP and BMI entirely. If you want to see true chaos, contemplate what that might mean. In the absence of a new performance license, it would mean virtually every radio station and TV station, as well as YouTube, Sirius XM and Pandora would be operating illegally. So it might be better to allow the publishers to remove some rights, rather than risk the chaos that "no rights" would entail. Also consider that under the consent decrees, ASCAP and BMI are required to grant a license to any user who asks for one.[ref]Id. at 150[/ref] If the major publishers pull out, this right would vanish as to the songs controlled by them. Along with the compulsory licensing scheme, the CO recommends that "pay to play" be instituted for the PROs. Currently, the PROs must issue a license, but there is no mandated payment required of the licensee until the rate is set, either by negotiation or the rate court. The CO recommends that some payment be required until the final rate is set. "The problem is exacerbated by the substantial burden and expense of litigating a rate in federal court—a contingency both sides seek to avoid. Licensees may pay nothing or greatly reduced fees for years as negotiations drag on, while still enjoying all of the benefits of a license." "Once again, the Office does not see why music is treated differently from the goods of other suppliers in the marketplace. A fair and rational system should require licensees to pay at least an interim rate from the inception of their service, subject to a true‐up when a final rate is negotiated with the PRO or established by the rate-setting authority."[ref]Id. at 157-158[/ref] Currently, the PROs cannot issue mechanical licenses, that is, the right to reproduce a song in the form of a sound recording. The CO recommends removing this restriction as part of a larger scheme to allow the formation of "Music Rights Organizations" or "MROs" that would control both the reproduction right and the performance right, greatly simplifying the licensing process.[ref]Id. at 161[/ref]

Allow Creation of MROs or the "One Stop Shop"

The biggest proposal of the CO is to allow the creation of MROs, with the creation of a "Government Music Rights Organization" to act as a back-stop where a licensee wishes to license an unaffiliated work or an "orphan work" where the copyright owner cannot be located.[ref]Id. at 165[/ref] "An MRO could be any entity representing the musical works of publishers and songwriters with a market share in the mechanical and/or performance market above a certain minimum threshold, for example, 5%. Existing rights organizations, such as ASCAP, BMI, HFA and others, could thus qualify as MROs. Each MRO would enjoy an antitrust exemption to negotiate performance and mechanical licenses collectively on behalf of its members—as would licensee groups negotiating with the MROs—with the CRB available to establish a rate in case of a dispute."[ref]Id. at 190[/ref] The catch is that all MROs would be required to issue "blanket licenses," that is, "all rights" licenses for the payment of one set rate. "Ultimately, it is in the interest of music owners as well as licensees to improve the licensing process so it is not an obstacle for paying services. To further facilitate the rights clearance process and eliminate user concerns about liability to unknown rights owners, the Office believes that mechanical licensing, like performance licensing, should be offered on a blanket basis by those that administer it. This would mean that a licensee would need only to file a single notice to obtain a repertoire‐wide performance and mechanical license from a particular licensing entity. Song‐by‐song licensing is widely perceived as a daunting requirement for new services and an administrative drag on the licensing system as a whole. The move to a blanket system would allow marketplace entrants to launch their services—and begin paying royalties—more quickly."[ref]Id. at 170[/ref] Again, I fail to see the fairness in having the government mandate how and for what price I might sell my product, when it does not do this for any other business other than an electric utility. However, the one plus of the MRO blanket license system is that no one will be able to contend that they did not know how to properly license a musical work, and might lead to a much higher compliance rate.

Revise but Not Eliminate Compulsory Mechanical Licensing

Frankly, I think the entire compulsory mechanical licenses scheme should be scrapped. There is no reason why I should be forced to give a license at a rate set by the government. Too many times in my private practice I would receive notifications from record companies invoking their "compulsory license rights" while at the same time trying to change the requirements that would be imposed upon them by section 115. The compulsory license rates artificially set the ceiling for all mechanical licenses in a way that unfairly impinges my right to do business as I see fit. There are no statutory audit rights, and compulsory licenses frequently suffer from non-compliant accounting, as well as "slow pay" and "no pay." The CO proposes to do the following to section 115:

• Allow copyright owners to withdraw streaming and download rights from compulsory licensing.[ref]Id. at 164[/ref]
• Licensing of physical copies does not grant the right to stream or sell downloads.[ref]Id. at 166-167[/ref]
• Create specific audit rights for compulsory uses.[ref]Id. at 173-174[/ref]
• Sunset existing compulsory licenses in order to move them to the MRO system.[ref]Id. at 174[/ref]

Well, that's all for now folks. Obviously there is a lot more in the report, particularly in the area of requiring the proposed MROs to create certain databases, but these are the highlights of what seem to be the most significant and wide ranging proposals. Congress, it's over to you.

This blog post will serve to update several previous blog posts. There have been two previous blog posts regarding adult film producer Malibu Media and their strategy of filing thousands of lawsuits against Bit-Torrent file sharers.[ref]Copyright Infringement Litigation Over BitTorrent File Sharing: Truth or Troll? & Copyright Blog Update: Court of Appeals Rejects "Transformative Use" Test & Malibu Media Marches Along[/ref] Also, a previous blog post criticized the complete mess that the courts have made of the "transformative use" test in examining cases of fair use.[ref]Marching Bravely Into the Quagmire: The Complete Mess that the "Transformative" Test Has Made of Fair Use[/ref] As a part of my duties at Nova Southeastern University, all Federal Court decisions mentioning the word "copyright" get pushed to my computer desktop. As a result, I see all the cases, and more particularly, the judgments, involving Malibu Media. With the exception of the cases previously noted by this blog, virtually every case that has gone forward and resulted in a judgment (i.e. not counting dismissals), the judgments have been in favor of Malibu Media. Also, in virtually every case, the individual defendants, having been identified and served, never contest the lawsuit, resulting in a default judgment against them.[ref] This list is not meant to be exhaustive, but reflects the most recent judgments: Malibu Media v. Davis, 2015 WL 435146 United States District Court for the District of Colorado 2015, Assessing $2,250 statutory damages per work infringed for a total of $31,500.00 plus $1,652.00 in attorneys' fees. Malibu Media v. Min, 2015 WL 435461 United States District Court for the District of Colorado, 2015. Assessing $2,250 statutory damages per work infringed for a total of $27,000 plus $1,652.00 in attorneys' fees Malibu Media v. Romer, 2014 WL 5900402 United States District Court for the District of Colorado. 2015. Assessing $2,250 statutory damages per work infringed for a total of $40,500.00 plus $1,652.00 in attorneys' fees Malibu Media v. Cui, 2014 WL 5410170, United States District Court for the Eastern District of Pennsylvania, 2015. Assessing $750.00 statutory damages per work infringed for a total of $18,000 plus $1,677.00 in attorneys' fees. Malibu Media v. Schelling, 31 F.Supp.3d 910 United States District Court for the Eastern District of Michigan, Southern Division 2014. Assessing $750.00 statutory damages per work infringed for a total of $ 6,000.00 plus $1,000.00 in attorneys' fees. Malibu Media v. Flanagan, 2014 WL 2957701, United States District Court for the Eastern District of Pennsylvania 2014, Assessing $1,500.00 statutory damages per work infringed for a total of $ 30,000.00 plus $1,182.00 in attorneys' fees. Malibu Media v. Cowham, 2014 WL 2453027, United States District Court for the Northern District of Indiana, South Bend Division. Assessing $1,500.00 statutory damages per work infringed for a total of $ 36,000.00 plus $1,607.00 in attorneys' fees.[/ref] Until now. The case of Malibu Media v. Doe[ref]2015 WL 412855, US District Court for the Eastern District of Pennsylvania 2015. Pagination refers to the Westlaw citation.[/ref] is, to my knowledge, the first case that has gone to adjudication on the merits of the case since my first blog post that has been decided against Malibu Media. Recall that Malibu Media is the creator of pornography distributed under the brand name of "X-Art."[ref]Id. at 3[/ref] It identified the Defendant by his Internet Protocol (IP) address and alleged that not only did he use the BitTorrent protocol to download Plaintiff's works, but had been used to distribute 755 third party files from the period between July 20, 2012 and February 17, 2014.[ref]Id. [/ref] "Defendant, a computer technician familiar with BitTorrent, was the only resident of the apartment during the relevant period."[ref]Id. at 4[/ref] Malibu Media filed a subpoena for the Defendant Doe's computers and storage devices. Doe opposed the motion with a motion for protective order, which was denied, the Court ordering him to turn over for examination "all computers, storage devices and electronic media in his possession."[ref]Id. at 4[/ref] The problem for Malibu Media was that they found no BitTorrent files on any of his computers with one of their movies on it, only a "fragment file," which as the Court observed, may have been the result of a search or even a preview of one of Malibu Media's movies. Immediately, Malibu Media contended that the Defendant had destroyed the evidence. This contention has some merit, and even the Court stated it considered "troubling Doe's evasive and shifting answers…"[ref]Id. at 8[/ref]

• Malibu found evidence that a flash drive, specifically, a Kingston Data Traveler G3, had been connected to one of the computers. He denied in his deposition having such a flash drive. Later, he admitted that he did have such a flash drive, kept at his office, and despite the Court's order to turn it over to Malibu, he didn't turn it over because Malibu only asked him for the hard drives.[ref]Id. at 5[/ref]
• Doe testified that he had one other USB storage device. Later, he admitted he had several other USB storage devices, one of which was thrown away because it "failed."[ref]Id.[/ref]
• Doe denied he used BitTorrent, but Malibu found more than 300 file fragments on one hard drive. However, all of those predated the relevant dates of the lawsuit. Malibu also found that BitTorrent software had been installed on one hard drive, but removed on an indeterminate date.[ref]Id.[/ref]
• Despite denying he used BitTorrent, Malibu had, as previously noted, evidence from his ISP that his IP address had been used to distribute 755 third party files during the relevant time period.

Yet, despite all the evidence of "smoke," the Court refused to find "fire." Despite the fact that Doe had seemingly committed perjury about his BitTorrent usage, and the various USB devices in his possession, the Court found fault with Malibu for not moving to compel the production of the USB drives, once their existence was discovered. Much like a Mafioso who is undoubtedly a bad guy, the Court ruled that Malibu had failed to prove that any of the bad acts committed by Doe were done to infringe Malibu's copyrights. "Malibu Media of course has no standing to complain of alleged infringement of works to which it does not hold the copyrights. Because the alleged spoliation is not relevant to Malibu Media's claims in this case, and we hold there has been no actual suppression of relevant evidence, Malibu Media has failed to satisfy [the relevant] four-pronged test."[ref]Id. at 8[/ref] Indeed, the Court found "merit in the skepticism in which other district courts have greeted Malibu Media's discovery motions and subpoena request in similar matters."[ref]Id. at 6[/ref] Based upon this, the court seems to be operating with a less than even hand. On the one hand, it dismisses the bad acts of the Doe Defendant as "not relevant," but finds relevancy in the actions of Malibu Media in cases not before him personally, involving different facts and different evidence, to have "merit." Was there actual suppression of relevant evidence? Hard to say, but I think the Court should have been a bit more skeptical. Don't forget that Doe moved for a protective order that was denied. This delayed the production of relevant evidence and gave rise to the opportunity to tamper with the computers and suppress evidence. In the order denying his motion, Doe was ordered to turn over all the storage devices in his possession. He denied their existence and did not turn them over, even though they in fact did exist. Yes, Malibu should have moved to compel them once they learned about them, but my guess is the damage was done by that time. We'll never know what was on one of the USB drives because Doe tossed it in the garbage. On the one hand, I think the Judge let his prejudices get the better of him. On the other hand, if you're the Plaintiff, you've got to prove your case, not just that the Defendant is a bad guy. Previously, this blog lamented the state of the "transformative use" test particularly in the area of so called "appropriation art" where the first step is to make a copy of someone else's work.[ref]Marching Bravely Into the Quagmire: The Complete Mess that the "Transformative" Test Has Made of Fair Use[/ref] Highlighted in that blog post was the case of Blanch v. Koons.[ref]467 F.3d 244 Secord Circuit Court of Appeals 2006[/ref] Koons, the appropriation artist, won the case and as the prevailing party, moved for an award of attorneys' fees.[ref]485 F.Supp 2d 516, US District Court for the Southern District of New York, 2007[/ref] I'm not sure what took so long for this ruling to make it into the law reporters, but the 2007 decision was just released this week to the Federal Supplement reporter. Here, the trial Court took a very interesting tact. Even though the Plaintiff artist claimed no damages and her case was judged by the trial Court to be "weak," the Court refused to assess attorneys' fees against her, basically telling the Defendant "if you play with fire, you can expect to get burned."[ref]Id. at 518[/ref] "Because of [the appropriation artist's methods], done without giving credit to the original artist, the appropriation artists can expect that their work may attract lawsuits. They must accept the risks of defense, including time effort and expenses involved. While that does not remove the artist from the protection of the statute, litigation is a risk he knowingly incurs when he copies the others [sic] work."[ref]Id.[/ref] So, the risk of losing a copyright infringement case is not the only risk in "appropriation art." Perhaps the Pyrrhic victory is a risk as well.

Two recent court cases have put this question firmly in the spotlight: what parts of a musical composition are copyrightable? The first is the ongoing court fight between the Estate of soul legend Marvin Gaye on one side and Pharrell Williams and Robin Thicke on the other. Williams and Thicke have sued for a determination that their song "Blurred Lines" does not infringe the Marvin Gaye composition "Got To Give It Up." The two sides have sparred bitterly over what elements make up the "song" and how many of those elements made it into the sheet music that was deposited with the Copyright Office.[ref]Pharrell Williams Camp Ridicules "Desperate" Appeal Bid in 'Blurred Lines' Lawsuit[/ref] For their part, the Williams-Thicke attorneys argue: "No songwriter considered a hi-hat part, vocal 'woo,' falsetto vocal style, omission of a guitar, keyboard part, or other element of a sound recording of the song to be the song itself. And if they did, they included that element in the written composition they published with notice..."[ref]Id.[/ref] The Judge, after ruling that the copyright in "Got To Give It Up" is limited to what was in the sheet music in the Copyright Office, then ruled he would allow the playing of the sound recording, but only if stripped of the elements not included in the sheet music, including the "percussion and back-up vocals."[ref]Marvin Gaye - Judge Allows Marvin Gaye's Music To Be Played In Blurred Lines Trial[/ref] In case you are interested, here is a mash-up of the two songs:[ref]Robin Thicke feat. Marvin Gaye - Got To Give Up The Blurred Lines (Mashup)[/ref] http://youtu.be/dhr3XL78mk8 In the other case, a composer had sued various Defendants who had copied from 45 of his musical compositions into 63 other musical compositions.[ref]Batiste v. Najm, 28 F.Supp 3d 595, Eastern District of Louisiana, 2014[/ref] Twenty-two of the claimed infringements were based on alleged similarities only in the chords of the song, and another twenty-nine alleged similarity only in the "beat" of the song.[ref]Id. at 617[/ref] Prior to my present position, I taught undergraduate and graduate university courses in "Copyright and Music Publishing" and "Entertainment Law." The question of "what parts of a song are copyrightable" came up fairly frequently. Even further back in the mists of time, I received a Bachelors' of Music degree from the University of Miami. So hold on, this may get a little technical. From my point of view, the copyrightable elements of a song are the main melody line (always) and the lyrics (always). Everything else is "it depends." This is because the melody line can go virtually anywhere. The next note can go up or down, in a multitude of intervals, or be repeated. Then toss in the varying time values of the note (quarter note, eight note, etc.) and you have the potential for a nearly infinite number of variations. The lyrics, while most predictably commenting on the inherent vagaries of romantic love, are also infinitely variable. See e.g. Duran Duran's "The Reflex," which even the band's members have admitted, makes no sense at all.[ref]The Reflex by Duran Duran[/ref] The problem with claiming copyright in chord progressions is their function in the song. The chords have to support the melody line in a way that is pleasing to the ear, and makes melodic sense in the context of where they are in the song. All musical compositions use the same basic method. A musical "key" is established by playing a particular chord that establishes the song's "home base," known in music theory as the "tonic." Other chords are used that move away from the tonic in a way that creates tension and interest until the song inevitably heads back to "home base" and a feeling of pleasant resolution to the ears of the listener. Certain chords within that musical key can serve as substitutes for each other, and this is where the craft of the songwriter reveals itself. But there are only so many chords which are useful, and the basic chord progressions are as old as music itself. Here is a funny rant by a musician who shows us how many popular songs use the chord progression of Pachelbel's Canon in D, written before 1700:[ref]Pachelbel Rant[/ref] http://youtu.be/JdxkVQy7QLM Bass lines suffer from the same predicament. The bass note must not only support the melody notes and be pleasant to the ear, but must also support the chord being played at the same time. So while the melody note can go anywhere it wishes, the same is not true for chords or the bass line. The exception here is when the bass line is the melody of the song at the time it is being played, such as Queen and David Bowie's "Under Pressure," which was so famously copied by Vanilla Ice's "Ice, Ice, Baby." Another is the synth bass intro to Weather Report's "Birdland." And then there are the constrictions of musical genre. Consider this is this rather pointed mash-up which very humorously criticizes how much country music has become bland and homogenized:[ref]What do you mean all Country music sounds the same?!?[/ref] http://youtu.be/LD3DY7z-I8o Are these songs all infringements of each other? Not by a long shot. Country music is generally written on or for guitars. The guitar is basically tuned to the key of E minor, the pitches being E, A, D, G, B and E again. Since the guitar sounds the best when it is being played the lowest on the neck and using as many strings as possible, this will usually result in a sharp key being used. So, if you write in the key of E major, E will be your first chord (the tonic), A will be the "fourth" chord and B will be the "fifth." If you write in A, you share the A chord and E chord with the key of E, and you share the A and the D chord with the key of D. And so on. The result is that many songs will contain the same or very similar chords and chord progressions, and thus sound very much alike. Lastly, there is the "beat." Certainly music which contains only percussion instruments is capable of copyright protection, as the percussion family contains both tuned elements (marimba, vibraphone, tympani) and untuned elements (cymbals, woodblocks, cowbells). However, the modern drum set as we know it, a collection primarily of drums and cymbals, is a relatively recent 20^th century invention. When and who came up with the basic beat for swing jazz, rock, funk or reggae is lost in the mists of time, and drummers freely utilize these elements without fear of consequences. Probably the most famous drum beat in popular music, James Brown's "Funky Drummer,"[ref]James Brown Funky Drummer[/ref] which has been sampled by Run-D.M.C., N.W.A., Raekwon, LL Cool J, and The Beastie Boys,[ref]Funky Drummer[/ref] yielded no royalty payment to Clyde Stubblefield, the drummer on the recording.[ref]Id.[/ref] The Judge in the Batiste case proceeded in this fashion: if the Plaintiff claims was for chords only or beat only, that count was dismissed. Only where there was sufficient evidence of other copying, for example, beat and chords together or similarity in lyrics or the melody, any similarities in the beat or chord progressions would be considered as part of a "holistic impression of similarity."[ref]Batiste at 618[/ref] In the final analysis, only three of the 63 alleged infringements survived the Defendants' Motion to Dismiss.[ref]Id. at 626[/ref] Turning back to the "Blurred Lines" dispute, I think the Gaye estate is not going to prevail. Remember that the test for infringements is "substantial similarity," not just similarity. The basic rhythm tracks between the two songs are very similar, but I do not find that the melodies of the songs are substantially similar. And in my opinion, the former will not serve to bootstrap the latter. Certainly it does not rise to the similarity present in the "My Sweet Lord" case,[ref]Bright Tunes Music v. Harrisongs Music 420 F. Supp. 177, Southern District of New York 1976[/ref] (a case resulting in a finding of infringement) or the "How Deep Is Your Love" case (which resulted in a finding of infringement, reversed for lack of proof of access).[ref]Selle v. Gibb, 741 F. 2d 896 - 7th Circuit Court of Appeals, 1984[/ref] The lines between what is copyrightable and not copyrightable in a song is indeed, quite "blurred."