Copyright

On June 16, 2016, the Second Circuit Court of Appeals released a truly horrific opinion in the case of Capitol Records v. Vimeo.[ref]2016 WL 3349368 Second Circuit Court of Appeals[/ref] The case involved the Plaintiffs, all record companies with ownership of pre-1972 sound recordings, which are not governed by Federal law but have been ruled as having performance rights in California and New York.[ref]Flo and Eddie v. Sirius XM Radio: Have Two Hippies from the 60's Just Changed the Course of Broadcast Music?[/ref] Vimeo, as Jonathan Bailey over at Plagiarism Today quipped is best known as "not You Tube,"[ref]Understanding Capitol Records v. Vimeo[/ref] makes performances of these sound recordings by allowing users to upload videos containing these sound recordings. Not only does Vimeo make performances of these sound recordings, but distributes copies of them by allowing viewers to download the videos and copy them for free.[ref]Vimeo at page 5[/ref] If I might steal a page from the Electronic Frontier Foundation, the decision is "dangerous" in every sense of the word. It threatens to undo the clear intention of Congress by making the most basic error that a Court can make: ignoring the "plain meaning" of a statute. In sum, the Court:

• Ruled that even though "Pre-1972 recordings have never been covered by the federal copyright"[ref]Vimeo at 6[/ref] they nevertheless are covered by federal copyright for the purposes of notice and takedown.
• Ruled the "safe harbor" provisions of section 512 apply to pre-1972 sound recordings, even though section 301 clearly says they cannot.
• Ignored the contrary opinion of the Copyright Office that said safe harbor did not apply to pre-1972 sound recordings.
• Called the notice and takedown system "an augmentation of rights of copyright owners,[ref]Id. at 3[/ref] but when challenged on this position by an amicus curae that the system "shortchanged" copyright owners, contradicts itself and says "we have no way of knowing."[ref]Id. at 15 endnote 4[/ref]
• Says workers at Vimeo can't be held responsible for knowing when something is infringing because they are not "an expert in music or the law of copyright." [ref]Id. at 10[/ref]
• Examples of Vimeo employees encouraging users to upload infringing content "cannot support a finding of…generalized encouragement of infringement."[ref]Id. at 13[/ref]

So what happened? To my reading, the Court decided the result that it wanted to achieve, then worked backward to try and muster up some reason why this was so, tossing away all logic and the plain meaning of section 301 in the process. Consider this passage: "To construe § 512(c) as leaving service providers subject to liability under state copyright laws for postings by users of infringements of which the service providers were unaware would defeat the very purpose Congress sought to achieve in passing the statute. Service providers would be compelled either to incur heavy costs of monitoring every posting to be sure it did not contain infringing pre-1972 recordings, or incurring potentially crushing liabilities under state copyright laws."[ref]Id. at 8[/ref] Gosh, did they just cut and paste this from a brief by the Electronic Frontier Foundation? The problem is that federal copyright law has never, ever applied to pre-1972 sound recordings. Who said so? You did, Second Circuit. In this very same opinion. "Pre-1972 recordings have never been covered by the federal copyright. Accordingly, copyright protection of pre-1972 sound recordings has depended on the copyright laws of the states." Precisely. And most importantly, existing copyright law cannot diminish those state law rights. Section 301 of the copyright act is very plain about this. "With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067."[ref]17 USC 301 (c)[/ref] In other words, nothing in the remaining portions of the copyright act can serve to limit my remedies under any state law or common law in my pre-1972 sound recording. Which is exactly why the Second Circuit ruling is clearly wrong. Section 512 takes away my right to sue a service provider from infringing my pre-1972 sound recordings. This limits my remedies under state law. Unless Congress is going to amend 301 to provide for an exception for "safe harbor" it cannot act in the way that this Court has just ruled that it did. This is the most basic form of statutory construction: what is the "plain meaning" of the words in the statute. The plain meaning is: the remainder of the copyright act does not apply to pre-1972 sound recordings if it acts to limit or take away my rights under state law. This is why the Copyright Office came to the conclusion that even though there was no "policy reason" not to grant safe harbor for pre-1972 sounds recordings, it was plain that "Congress did [not] in fact subsequently regulate pre-1972 sound recordings in section 512(c)."[ref]Id. at 7 citing UNITED STATES COPYRIGHT OFFICE, FEDERAL COPYRIGHT PROTECTION FOR PRE-1972 SOUND RECORDINGS 5 (2011), available at http://copyright.gov/docs/sound/pre-72-report.pdf[/ref] Said the Copyright Office: "The court in MP3tunes stated that ‘[t]he text of the DMCA limits immunity for the ‘infringement of copyrights' without drawing any distinction between federal and state law.' The court in MP3Tunes made this determination despite the fact that section 301(c) states ‘[w]ith respect to sound recordings first fixed before February 15, 1972, any rights or remedies under the common law or statute of any State shall not be annulled or limited by this title until February 15, 2067.' The court in MP3Tunes correctly observed that ‘section 301(c) does not prohibit all subsequent regulation of pre-1972 recordings.' However, its conclusion that Congress did in fact subsequently regulate pre-1972 sound recordings in section 512(c) is difficult to square."[ref]UNITED STATES COPYRIGHT OFFICE, FEDERAL COPYRIGHT PROTECTION FOR PRE-1972 SOUND RECORDINGS at 131 (emphasis added)[/ref] "The statute's plain text reveals a narrow definition of ‘copyright infringement' which is buttressed by the language of section 301(c). The court in MP3Tunes concluded that such a narrow reading would be at variance with the policy of the DMCA as a whole and would ‘spawn legal uncertainty' and that therefore such an interpretation should be rejected. However, the court in MP3Tunes did not offer any evidence that Congress intended section 512(c) to apply to pre-1972 sound recordings. The court in MP3tunes not only ignored the plain text of the statute, it also ignored the general rule of statutory construction that exemptions from liability, such as those established in section 512(c), must be construed narrowly, ‘and any doubts must be resolved against the one asserting the exemption.'"[ref]Id. at 132 (emphasis added)[/ref] Faced with this conclusion, the Second Circuit goes into full harrumph mode. "While we unhesitatingly acknowledge the Copyright Office's superior expertise on the Copyright Act, we cannot accept its reading of § 512(c). It is based in major part on a misreading of the statute. The Report's main argument—that § 501(a) defines the words ‘infringement of copyright' as meaning infringement of the rights granted by the federal statute—misreads this provision. And as for the arguments based on canons of statutory construction, a subject not within the special expertise of the Copyright Office, we respectfully conclude that the pertinent canons were misunderstood and misapplied."[ref]Vimeo at 7[/ref] The main argument of the Copyright Office is not the definition of "infringement of copyright" which prohibits the application of 512, it's that section 301 says "you can't do it." Go back and read the excerpt. Section 301 is mentioned three times in two paragraphs, and the phase "plain text" is mentioned twice. Backed into this logical corner, the Court pulls this one out of thin air: "Here, to the extent that Congress can be said to have repealed by § 512(c) an aspect of the rule it had previously enacted in § 301(c), it was not by implication but by specific statement…. Here, in contrast, the partial repeal of § 301(c) was by the explicit statement in § 512(c) that "[a] service provider shall not be liable ... for infringement of copyright ...."[ref]Id. at 7[/ref] This is absolute nonsense. A partial repeal rendered by an "explicit statement" that never says it's a partial repeal? Not very explicit, wouldn't you say? Nowhere in section 512 does it ever mention section 301 or say it is making this applicable to pre-1972 sound recordings. Where is the legislative history that states that Congress intended a "partial repeal" of section 301? Absolutely nowhere. This is just an out and out rewrite of the copyright law by a Court that has no power to do so. And dangerously so. The Copyright Office had already thought of this and pointed out the logical flaw in such thinking. "The Office observes that numerous other limitations and exceptions in Title 17, including those in sections 107 and 108, are also express limitations on the right to recover for ‘infringement of copyright.' Yet none of these exceptions in the federal copyright statute has ever been applied directly to any claims under state law. In short, it is for Congress, not the courts, to extend the Copyright Act to pre-1972 sound recordings, both with respect to the rights granted under the Act and the limitations on those rights (such as section 512) set forth in the Act."[ref]UNITED STATES COPYRIGHT OFFICE, FEDERAL COPYRIGHT PROTECTION FOR PRE-1972 SOUND RECORDINGS at 132[/ref] Precisely. If Section 512 involves a "partial repeal" of section 301, then so does section 107 which provides that fair use "is not an infringement of copyright" and section 108 which provides that libraries' reproductions of phonorecords in certain circumstances "is not an infringement of copyright." In other words, the Second Circuit has just ruled that Section 301 is meaningless. They have ruled that the entire remainder of the copyright act does apply to pre-1972 sound recordings, regardless of the plain text of 301 which states that it does not. Not content to re-write the copyright act by eviscerating section 301, the Court then further rewrites section 512 by now requiring that judgments of infringements can only be done by "experts." "The hypothetical ‘reasonable person' to whom infringement must be obvious is an ordinary person—not endowed with specialized knowledge or expertise concerning music or the laws of copyright…the mere fact that an employee of the service provider has viewed a video posted by a user (absent specific information regarding how much of the video the employee saw or the reason for which it was viewed), and that the video contains all or nearly all of a copyrighted song that is ‘recognizable,' would be insufficient for many reasons to make infringement obvious to an ordinary reasonable person, who is not an expert in music or the law of copyright."[ref]Vimeo at 10[/ref] Where on earth did that come from? The Court makes no citations to any authority from any source for this new radicalized gloss on section 512. It's ipse dixit, or "it is so because I say it." Now, let me get this straight. The Ninth Circuit Court of Appeals in the "Prince-Dancing Baby" case says that I must engage in "fair use" analysis before I can validly send a takedown notice.[ref]Lenz v. Universal Music Group, Ninth Circuit Court of Appeals 2015 WL 5315388[/ref] If I'm your average John or Jane Doe independent artist, I may not be either an expert in music or copyright law. But before I can send a takedown notice, I must engage in a complex four part legal analysis that even Judges sitting on the Courts of Appeals of this nation have sharp disagreements about.[ref]Is a "Mirror Copy" a Transformative Fair Use? This Court Says Yes...These Courts Say No...and the Supreme Court Says Nothing[/ref] However, the Second Circuit says the opposite is not true. Consider this: "Employees of service providers cannot be assumed to have expertise in the laws of copyright. Even assuming awareness that a user posting contains copyrighted music, the service provider's employee cannot be expected to know how to distinguish, for example, between infringements and parodies that may qualify as fair use."[ref]Vimeo at 12[/ref] So, if I work for Vimeo, a video that contains Bobby McFerrin's "Don't Worry Be Happy"[ref]Vimeo at 5[/ref] does not give me "red flag knowledge" as an infringement because I am not an "expert in music or the law of copyright." Ridiculous. This is the ruling even where it was shown that Vimeo's team was in fact giving out legal advice! "The Official answer I must give you is: While we cannot opine specifically on the situation you are referring to, adding a third party's copyrighted content to a video generally (but not always) constitutes copyright infringement under applicable laws ... Off the record answer ... Go ahead and post it ...."[ref]Id.[/ref] Or the fact that Vimeo's employees were encouraging the posting of infringing material. "Blake Whitman, a member of Vimeo's Community Team, responded to a question regarding Vimeo's "policy with copyrighted music used as audio for original video content" by telling the user, "[d]on't ask, don't tell ;)."[ref]Id.[/ref] So, the bottom line is that a person sending a takedown notice must engage in expert music and copyright law analysis, but a website hosting user generated content gets to encourage the posting of infringing material and escape liability because they are not music or copyright law experts. As Mr. Spock would say: "highly illogical." And, further doubling down on its fallacious reasoning, the Court states: "[that] Vimeo employees inappropriately encouraged users to post videos that infringed music cannot support a finding of the sort of generalized encouragement of infringement supposed by their legal theory."[ref]Id. at 13[/ref] Ahem. The person writing this is the Vice-President of Product and Development at Vimeo: "Who wants to start the felons group, where we just film sh*tty covers of these [Plaintiff EMI] songs and write ‘F**K EMI' at the end?"[ref]Id. at 5[/ref] Really? "F**k EMI" is not a generalized encouragement of infringement? As noted above, the entire opinion reads as if it was a cut and paste job from an EFF polemic. Consider this passage: "Congress's objective was to serve the public interest by encouraging Internet service providers to make expensive investments in the expansion of the speed and capacity of the Internet by relieving them of burdensome expenses and liabilities to copyright owners, while granting to the latter compensating protections in the service providers' takedown obligations. If service providers were compelled constantly to take stock of all information their employees may have acquired that might suggest the presence of infringements in user postings, and to undertake monitoring investigations whenever some level of suspicion was surpassed, these obligations would largely undo the value of § 512(m). We see no merit in this argument."[ref]Id. at 15[/ref] You have got to be kidding me. These "compensating protections" are a joke, and everyone knows it. The RIAA and the Copyright Alliance made this point explicit in their amicus curae brief with the Court, which as typical for this decision, is relegated to an endnote. "Plaintiffs and their amici protest that copyright owners are shortchanged by the compromise. They argue that the notice-and-takedown provisions are of little value… It may be that Congress overestimated the value to copyright owners of the notice-and-takedown provisions of the statute. We have no way of knowing."[ref]Id. at endnote 4[/ref] Yes you do. You are making that exact argument by calling notice and takedown a "compensating protection" as if it is a given fact, when your assertion has no citations whatsoever. If this fact is not true, then your argument has no merit. Yet, there is still time for one final fallacious frippery: "But assuming copyright owners' complaint has merit, the need for remediation is a question for Congress. We have no choice but to apply the statute as Congress wrote it."[ref]Id.[/ref] No. Applying the statute as Congress wrote it is exactly what you did not do.

On May 30, 2016, a District Court in California dropped a bombshell. It ruled that the act of re-mastering a sound recording created a new sound recording copyright.[ref]ABS Entertainment v. CBS Corporation 2016 U.S. Dist. Lexis 71470 (C.D. Cal. May 30 2016)[/ref] This paves the way for a host of unintended consequences, including the elimination of termination rights and the possibility that sound recordings could in effect receive "perpetual" copyright. This dispute is simple enough. The Plaintiffs are several recoding companies that own the copyrights in numerous pre-1972 sound recordings, including those by Al Green, Andy Williams, The Everly Brothers, Ray Stevens, Jackie Wilson, The Chi-Lites, King Floyd and Mahalia Jackson.[ref]Id. at 1. Citations are to the pagination in the original order.[/ref] The Defendant, CBS, owns and operates terrestrial radio stations that play these recordings.[ref]Id. at 2.[/ref] In the wake of the now famous Flo and Eddie case against Sirius XM and Pandora, which ruled that California and New York State law granted performance rights to pre-1972 sound recordings,[ref]Flo and Eddie v. Sirius XM Radio: Have Two Hippies from the 60's Just Changed the Course of Broadcast Music?[/ref] these Plaintiffs sought similar relief against CBS. In defense, CBS raised a novel defense: that it was not performing pre-1972 sound recordings, but "remastered" versions of those sound recordings which now contained additional elements, and thus were covered by Federal, not State laws.[ref]ABS at 3.[/ref] "The question presented by this Motion asks whether a sound engineer's remastering of a pre-1972 sound recording-through subjectively and artistically altering the work's timbre, spatial imagery, sound balance, and loudness range, but otherwise leaving the work unedited-is entitled to federal copyright protection. Based upon the record in this matter, the Court concludes that this question must be answered in the affirmative."[ref]Id. at 4-5.[/ref] The Court starts off by noting that the Copyright Office's Circular 56 provides that a derivative sound recording can result from "a remix from a multi-track recording" as well as "a remastering that involves multiple kinds of creative authorship such as adjustments of equalization, sound editing, and channel assignment," but that "[m]echanical changes or processes applied to a sound recording, such as a change in format, declicking, and noise reduction generally do not represent enough original authorship to be registered."[ref]Id at 5, citing Circular 56 of the Copyright Office.[/ref] The Court found persuasive the testimony of William Inglot, who supervised the remastering of 46 of the recordings at issue stating that he adjusted "the bass, treble, mid-range, and other frequencies" and "mastered the loudness profile of each track, to create a balanced, consistent profile across the entire album."[ref]Id. at 7.[/ref] The Court also quoted at length from the testimony of Dr. Durand R. Begault, "an acoustic engineer and research scientist specializing in forensic investigation of audio evidence."[ref]Id.[/ref] At this point, I get a little uneasy. Yes, there are changes being made, but are they audible to the ordinary listener and do they make a difference artistically? The Court doubles down on its process by belittling the expert offered by the Plaintiff, who performed waveform and spectral analysis along with "critical listening," which the Court derides as appearing "to involve listening while paying attention."[ref]Id. at 10.[/ref] Ouch. In particular, the Court recounted the changes made to Ace Cannon's "Tuff" which included additional reverberation, and being played in a different musical key and at a faster tempo.[ref]Id.[/ref] Here's the problem with this analysis. Merely speeding up the rate at which the source tape is played back will both increase the tempo and change the key in which the song is heard. Not being a musician, the Judge would not know this. To me, merely speeding up playback is a fairly mechanical act, and not nearly as complex artistically as re-adjusting the bass, mid-range, treble and equalization on a multi-track recording. So, what we have is an opinion that ticks all the logical boxes, but falls flat in the one area in which the courts are ill-equipped to decide: does it make an artistic difference? Would the average listener notice? Remember, just a few weeks ago, the 9^th Circuit made its ruling in the Madonna sampling case partly because the sample was so small and fleeting that the average listener would not notice it,[ref]VMG SALSOUL, LLC, v. CICCONE, et al. United States Court of Appeals, Ninth Circuit. June 2, 2016— F.3d —-2016 WL 309078[/ref] a ruling which is binding on this Court. Let's go back to when the CD first came on the market. Everything, and I mean everything, got "remastered," or so it was claimed to be included on the new media. Mostly, this was to take advantage of the expanded frequency range of the CD over the vinyl recording. I remember being wowed at the depth and volume of the bass pedals in Genesis' "Firth of Fifth" middle section. I was also aghast at the remaster of Kansas' "Carry On Wayward Son" that was now awash in reverb. Some things were carefully reworked. It's hard not to say that those remixes and remasters don't deserve protection as a derivative work, and that the Judge's ruling is correct. But some things were not carefully re-worked. Many times, the two track masters were simply digitized and then released. In fact, many CDs carried the legend that the CD was so superior in audio quality that there was frequently a warning that the "CD might reveal limitations of the source recordings." There are also changes that can be done which make the recording seem better, without making any real artistic choices. I recall a conversation I had with a studio engineer (he worked with The Eagles, among others) about the relative merits of new "super-audiophile" formats such as SACD and DVD audio. He told me that loudness was a great way to "trick the ear." That in merely making the sounds louder, the general perception of the public was that the recording was now "better." So, simply making the elements louder in volume is a change in the master, and makes the recording seem better, but does not strike me as an "artistic choice" that warrants new copyright protection. So, how am I, as both musician and attorney supposed to know which pre-1972 sounds recordings have been carefully remixed and remastered (and qualify for new derivative work status), and which ones have not? I don't think that even with a musically trained ear and a knowledge of copyright law, that I could. So, the result is that everything which has been digitally remastered now presumptively qualifies for a new derivative work copyright, and a new 95 year term from that date for the "remastered" recording. And this is an event which is capable of being repeated, which could extend the copyright life of all sound recordings into perpetuity. The Judge dismisses this possibility in a footnote. "Plaintiff's also assert a policy based argument than an adverse ruling in this case will result in potentially endless extensions of copyright protection of pre-1972 Sound Recordings as they are remastered into new formats. (citation omitted) Plaintiff's concerns are unwarranted because the Court's finding of copyrightable originality is based not on a mere conversion between formats, but on the original expression added by a sound engineer during the remastering process. Such original expression is entitled to copyright protection, regardless of whether the underlying work was fixed before or after 1972."[ref]ABS at 12, footnote 11.[/ref] Yes, but once again, how is anyone to know whether the remastering process contained enough "original expression" to qualify for a new derivative work copyright, or was just a "mere conversion"? The Judge knows because he had the benefit of witnessing testimony and expert testimony. Not so with the general public or anyone else who now wishes to make use of the sound recording. The bedrock principle of derivative works the Judge seems to be sidestepping here is that the new copyright only applies to what is new about the work, it does not revive the old.[ref]17 USC Section 103[/ref] "The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."[ref]Id.[/ref] But again, how are you going to know? If a new author added a chapter to Huckleberry Finn, it would be pretty obvious what was new, and what was old. When George Lucas revised the Star Wars films with new digital effects, the changes were fairly obvious to anyone familiar with the films (Greedo shot first?). But recordings are a very different beast. For example, changes in the quality of playback equipment will definitely alter your listening experience without changing the nature of the underlying recording. Anyone who has added a sub-woofer to their stereo system will know what I am talking about. So, changes to the bass or treble, or to the equalization, or to even the channel assignment may not be noticeable to the average listener. Perhaps the test should not have been, "what changes have been made?" but "would these changes be significant enough artistically so that a listener familiar with the recordings would notice the difference?" The next problem is the effect that this will have on artists' termination rights. I know, because it was done to my client. The renewal period on a sound recording my client made for a major label was approaching. We made a special filing with the Copyright Office to recapture the recording under a little known device known as the Abend recapture, which is too complicated to explain here. Needless to say, the strategy of the record company was to re-issue the recording in question as "remastered" with two additional songs on it, and pulled the old recording from distribution. Since the claim was only to the original sound recording, the client's sole recourse would be to go to Court and challenge the new copyright afforded the "remastered edition." The same tactic could now be used against any musician seeking to terminate their sound recordings under the provisions of Section 203 as well. Just "remaster" the recording, and pull the old one. Remember, section 203 explicitly provides that: "A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination."[ref]17 USC Section 203 (b) (1)[/ref] The last problem, one that has drawn the attention of the RIAA (who you would think under normal circumstances would be happy about the decision), is that this ruling effectively nullifies section 301 of the Copyright Act which provides in part that "any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067." As well as the provision of section 103 (b), which states that as to a derivative work "The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material." Which, of course, this decision does by taking the position that these remastered sound recordings have effectively swallowed up the State law protections afforded pre-1972 sound recordings under the Flo and Eddie decisions. Note that since the performances that occurred in Flo and Eddie were by digital transmissions, they are governed by different laws and this ruling does not affect those decisions. You can read the letter of the RIAA asking to be allowed to intervene as an amicus curae here.[ref]ABS Entertainment, Inc. et al. v. CBS Corporation, et al.[/ref] So, the decision is certain to be appealed, where the always unpredictable 9^th Circuit will weigh in on the controversy. But in the meantime, as the late Peter Allen once sang… Don't throw the past away You might need it some rainy day Dreams can come true again When everything old is new again[ref] Songwriters ALLEN, PETER W. / SAGER, CAROLE BAYER Published by Lyrics © Universal Music Publishing Group, CARLIN AMERICA INC, BMG RIGHTS MANAGEMENT US, LLC[/ref]

For years, I've been saying that the internet proved two things: we're all a bunch of thieves and we're all a bunch of perverts. I just didn't know how right I was, or that these two phenomena had merged until l saw this post by Jonathan Bailey over at Plagiarism Today.[ref]3 Count: Rule 34[/ref] Titled Rule 34, it linked to an article describing the efforts of video game maker Blizzard to stop porn editions of its popular game Overwatch.[ref]Blizzard are taking down Overwatch porn[/ref] To quote the article: "The thing is, a bunch of this porn is being made in Valve's Source Filmmaker kit. The porn creators are ripping the assets straight out of a game, modeling genitals onto them and bashing them together really fast. So these aren't even artistic impressions - they're essentially stolen character models being used for something they shouldn't be."[ref]Id.[/ref] Thus the need for the DMCA takedown notices being sent on Blizzard's behalf. But what the hell is "Rule 34"? Apparently, it's internet shorthand for the proposition that "If it exists, there is porn of it – no exceptions."[ref]Rule 34 (Internet meme)[/ref] And, as it turns out, there are literally, no exceptions. If anything has ever been a popular form of entertainment from "I Dream of Jeannie" to "Scooby-Doo" to the "Lord of the Rings" to virtually anything created by the Disney studios, somewhere on the internet, there is a porn version. So what's the legal justification for this? Uniformly, the makers and consumers contend that these are "parodies" and thus exempt as a fair use. Many times, the word "parody" is prominently mentioned as part of the title. Or as this website put it: "Content on this site are not intended as a true representation of actual events but fantasy and parody, not representing reality, real events of real persons!" This site in particular specializes in cartoon porn of everything from "The Simpsons" to "The Family Guy" with a heavy dose of Disney. So, if you've ever wondered what Princess Jasmine and Aladdin did after they rode off on their magic carpet into the sunset, this site will help you fill in the blanks. Even more risibly, the artist in question here has the chutzpah to put a copyright notice on his artwork, as if it was something more than a smutty rip-off of what Disney has already done. Make no mistake though, some of the artwork is very well done. So well done in fact, that some of it is indistinguishable from the work of the studios that created it, as with this picture of Helen Parr from "The Incredibles," in red lingerie, which I have cropped to make it suitable for work, and unsuitable for being further passed around the internet: So what do the Courts say on this subject? Mostly, they say that simply taking a work and making it dirty, does not make it a parody or fair use. The oldest and most widely cited case is Walt Disney Productions v. Air Pirates,[ref]581 F.2d 751 9^th Circuit Court of Appeals (1978)[/ref] which dates from 1978. "The individual defendants have participated in preparing and publishing two magazines of cartoons entitled "Air Pirates Funnies." The characters in defendants' magazines bear a marked similarity to those of plaintiff. The names given to defendants' characters are the same names used in plaintiff's copyrighted work… the "Air Pirates" was "an ‘underground' comic book which…centered around "a rather bawdy depiction of the Disney characters as active members of a free thinking, promiscuous, drug ingesting counterculture."[ref]Id. at 753[/ref] "Defendants do not contend that their admitted copying was not substantial enough to constitute an infringement, and it is plain that copying a comic book character's graphic image constitutes copying to an extent sufficient to justify a finding of infringement. (citations omitted) Defendants instead claim that this infringement should be excused through the application of the fair use defense, since it purportedly is a parody of Disney's cartoons."[ref]Id. at 756[/ref] The 9^th Circuit wasn't buying it. It upheld the District Court's grant of summary judgment finding copyright infringement stating: "[W]hen persons are parodying a copyrighted work, the constraints of the existing precedent do not permit them to take as much of a component part as they need to make the "best parody." Instead, their desire to make the "best parody" is balanced against the rights of the copyright owner in his original expressions. That balance has been struck at giving the parodist what is necessary to conjure up the original, and in the absence of a special need for accuracy (citation omitted) that standard was exceeded here. By copying the images in their entirety, defendants took more than was necessary to place firmly in the reader's mind the parodied work and those specific attributes that are to be satirized."[ref]Id. at 758[/ref] From then on, any claim of "parody" where the resulting parody was sexually explicit, fared very poorly in the Court system. An off-Broadway show that rewrote the lyrics to "Boogie Woogie Bugle Boy of Company B" to become the "Cunnilingus Champion of Company C" was held not to be a parody and not fair use.[ref]MCA, Inc. v.Wilson 677 F.2d 180 2nd Circuit Court of Appeals 1981[/ref] "We are not prepared to hold that a commercial composer can plagiarize a competitor's copyrighted song, substitute dirty lyrics of his own, perform it for commercial gain, and then escape liability by calling the end result a parody or satire on the mores of society. Such a holding would be an open-ended invitation to musical plagiarism. We conclude that defendants did not make fair use of plaintiff's song."[ref]Id.at 186[/ref] Even further, the mere use of the costume of the Dallas Cowboy Cheerleaders in a porn film was deemed not to be a fair use and was sufficient to sustain a preliminary injunction against the showing of the film.[ref]Dallas Cowboy Cheerleaders, Inc. v. Pussycat Cinema, 604 F.2d 200 2^nd Circuit Court of Appeals 1979[/ref] "The public's belief that the mark's owner sponsored or otherwise approved the use of the trademark satisfies the confusion requirement. In the instant case, the uniform depicted in "Debbie Does Dallas" unquestionably brings to mind the Dallas Cowboys Cheerleaders. Indeed, it is hard to believe that anyone who had seen defendants' sexually depraved film could ever thereafter disassociate it from plaintiff's cheerleaders. This association results in confusion which has "a tendency to impugn (plaintiff's services) and injure plaintiff's business reputation…[ref]Id. at 205[/ref] Although, as defendants assert, the doctrine of fair use permits limited copyright infringement for purposes of parody, (citations omitted) defendants' use of plaintiff's uniform hardly qualifies as parody or any other form of fair use."[ref]Id. at 206[/ref] But then, there was a split decision out of Georgia where Pillsbury, being offend by a "parody ad" in Screw Magazine depicting "Poppin' Fresh" and "Poppy Fresh" engaged in sexual relations, sued for both copyright and trademark infringement.[ref]Pillsbury Co. v. Milky Way Productions U.S. District Court for the Northern District of Georgia, 1981 WL 1402[/ref] There, the Court found that the use was indeed a "fair use" because Pillsbury's "failure to show any appreciable harm to the potential market for or the value of its copyrighted works bears significantly upon the relative fairness of Milky Way's unauthorized use of these copyrighted works. There is no showing that Milky Way intended to fill the demand for the original or that its presentation had this effect."[ref]Id.[/ref] The Court did, however, find that the use had "diluted" the effectiveness of Pillsbury's trademarks in the characters and that Pillsbury "has sustained its burden on its claim that the defendants infringed its copyright on the cinnamon roll label, [and] that the plaintiff has sustained its burden on its claim that the defendants infringed its copyright on its jingle, the two stanza refrain of ‘The Pillsbury Baking Song.'"[ref]Id.[/ref] Flash forward 20 years. George Lucas, unhappy about a porn parody of "Star Wars" titled "StarBallz," sought a preliminary injunction against its further distribution, and was turned down flat.[ref]LucasFilm Ltd. V. Media Market Group, 182 F.Supp2d 897 U.S. District Court for the Northern District of California, 2002[/ref] Without any analysis of the four fair use factors at all, the Court blithely concludes that "[a] preliminary analysis of the fair use factors indicates that LucasFilm is not likely to succeed in its copyright claim because the parodic nature of Starballz may constitute fair use."[ref]Id. at 901[/ref] Remember that this Court is under the jurisdiction of the 9^th Circuit, where the Air Pirates case is good law. This decision invokes the very question: what does a "porn parody" say about the work it is copied from? What aspect of the original work is being criticized, commented on, or being made fun of? What does the portrayal of Disney Princesses having sex with their "handsome princes" (presumably the "happily ever after" part of the relationship) say about them? Anything at all? Where, in fact, is the "parody" that is being asserted? But what of the Judge's reasoning that such uses do not do "appreciable harm to the potential market for or the value of its copyrighted works"?[ref]Pillsbury Co. v. Milky Way Productions U.S. District Court for the Northern District of Georgia, 1981 WL 1402[/ref] Well, in 1981, the Judge could not foresee the effect of the internet, where certain uses become so popular that they overwhelm the primary use. According to this article in PCGamesN.com: "The internet has gone Overwatch mad. At one point on Monday, the game's subreddit actually had more readers than Reddit's own front page - it's that popular. Of course, with this level of popularity, there's also porn - loads and loads of porn, to the point where there's even a subreddit entirely dedicated to Overwartch sexytimes…During Overwatch's beta, there was a rise (yes) of around 800% in searches for Overwatch porn, according to a release from [website omitted], with Tracer bagging the dubious honour of being the most searched character."[ref]Blizzard are taking down Overwatch porn[/ref] So, searches for Overwatch porn overwhelm searches for Overwatch itself. Consider what happened to the character "Erin Esurance," the spy-like cartoon mascot of the Esurance company, inspired by the "Alias" character Sydney Bristow. As this post from the Price Economics[ref]How Esurance Lost Its Mascot to the Internet[/ref] recounts, "porn" images overwhelmed searches for the regular "Erin Esurance," once again subtly aided by Google's auto-complete function: "Within 24 hours of the cartoon's television commercial debut, the first nude drawing of her hit the Internet. In underground "adult art" circles, the pink-haired vixen quickly became the new, exciting ‘toon on the block." "Over the next five years, the market for lewd artistic renditions of Erin grew in tandem with her commercial ubiquity. [Website omitted] and other online art hubs became something of a stomping grounds for peddlers of cartoon porn, and many artists made a healthy supplemental income by selling Erin Esurance drawings through various platforms."[ref]Id.[/ref] "The commercial inspired this particular gentleman to create a series of 15 "extremely NSFW" Erin Esurance paintings, which he later sold for up to $120 through [website omitted], a "giant, searchable archive" of cartoon porn."[ref]Id.[/ref] So, in addition to being on shaky grounds as a "parody," the purpose and character of the use seems more and more to be one of commercial gain by the artists themselves. Clearly, the websites know they are on the wrong side of the law on this one. Consider this actual TOS from one website: "You will not hold the webmasters and staff of this website liable for any damages incurred by viewing the content contained herein. No harm is or ever will be intended against the financial earnings of the copyright owners of the characters and related properties depicted within. This site is not affiliated with the copyright owners of any characters or related properties depicted in anyway on this site. Anyone who enters this website that is affiliated with any characters / series depicted on the images within this site must do so in their own private time and not use the content of this site to issue lawsuits against the owners or staff of [website omitted] or our webhost." I like to see that one tested in Court. Even further, in the sites FAQ's with regards to reasons for having images taken down, one of the reasons is not "copyright infringement" but the fact that a submitted illustration does not contain porn, for which there is an additional handy definition of what does and does not constitute porn. So why doesn't Disney do something? Beats me. Especially for a company known to be very litigious and very protective of their characters. Disney can't possibly not know that this is happening all over the internet. In fact, one website has both the words "Disney" and "porn" in its domain name. Many sites are posting the illustrations themselves, which takes them out of DMCA safe harbor. And some of the stuff is pretty nasty. Bestiality anyone? Surely Disney is not losing money here, as it has no real intention of entering the pornography market. But the artists behind the so-called "porn parody" market are making money, in some cases what appears to be a significant amount, all based on a value they did not create. People are going to these websites because of what Disney did first, not what they did after it became popular. So, it boils down to the age-old schoolboy tactic of entertaining yourself by making a child's plaything do something salacious and out of character. But as the majority of the cases show, simply calling something a parody does not make it so, just as calling wholesale copying of another's work "fair use" is not a magic trump card that makes it legal.

UPDATE: Arrghh! The dangers of writing a topical law blog on copyright is that new court opinions are issued every day. This blog post was published just before the 9^th Circuit issued its ruling in the Madonna "Vogue" sampling case. I will discuss that case at the end of the blog post. Two events popped up this week in the never-ending quest of people seeking to use the creative works of others without showing the simplest kind of consideration: asking for permission and paying a license fee. The first was a reversal by the German Constitutional Court of a lower Court's determination prohibiting the distribution of the 1997 song called "Nur mir" ("Only to me") because it included a two second sample of the 1977 song "Metall auf Metall" by the German electronic pioneers Kraftwerk.[ref]Kraftwerk suffer court setback in bid to prevent sampling without asking permission[/ref] Though only two seconds long, the sample was "looped" so it played throughout the resulting song.[ref]Id.[/ref] The second was a post on MTV's website titled "Steal This Riff: How To Fix Copyright Law And Set Musicians Free," calling again for the passage of legislation forcing musicians to give up their rights to control derivative works.[ref]Steal This Riff: How To Fix Copyright Law And Set Musicians Free[/ref] Both of these events suffer from the same illogical mindset: that musicians cannot be creative unless they can make note for note copies of something another composer has already done. The Kraftwerk case is the perfect example. "In the court battle, [producer and composer[ref]Kraftwerk suffer court setback in bid to prevent sampling without asking permission[/ref] Moses] Pelham argued that sampling is common practice in the hip hop genre. He said he works from a set of interesting music sequences and was not aware at the time that the sample in question stemmed from Kraftwerk's work. Germany's constitutional court acknowledged sampling as one of the "style-defining elements" of hip-hop in overturning the previous court verdict that was in favour of Kraftwerk. It noted that imposing royalties on composers could be crippling as copyright owners can demand any amount, or they can simply reject the request for usage."[ref]E-music pioneers Kraftwerk lose copyright case[/ref] Think about this for a second. Someone who claims to be a "music producer and composer" states, in effect, that he cannot work unless he can copy note for note what others have already done. And also, that one of the "style-defining elements" of hip-hop is copying what others have done, without permission or payment, but claiming the resulting song is 100% your creation. If that's the only way you can work, then you're not much of a composer, are you? If Pelham was "not aware" that the sample came from Kraftwerk, then the simple thing would be once he had found out, and Kraftwerk had lodged their objections, to take the loop out and create a new loop to replace it. That's what people who are "composers" do. Even if Pelham was "not aware" that the sample came from Kraftwerk, it had to come from somewhere. Unless it was composed by him, the sample did not just magically appear in his computer. So yes, German Constitutional Court, the royalties could be "crippling" on a "composer." Why? Because the "composer" is not "composing." He's just copying note for note what someone else has already done. Yes, the copyright owner could reject the request for usage. Why? Because someone took the time and effort to sit down and "compose" something and then take the time and effort to generate a recording of it. That's what musicians and composers are supposed to do. This is the mindset of people who spend too much time fiddling with their computers and mistaking it for the creation of music. Which leads us to the MTV blog post. It has all the earmarks of tired tech talking points. "The U.S. copyright system is hopelessly broken. It's an outdated regime, completely unequipped to deal with the realities of a modern world where cheap audiovisual software has made remix artists out of everyone from grade school kids to multiplatinum pop stars."[ref]Steal This Riff: How To Fix Copyright Law And Set Musicians Free[/ref] Ah, yes, the remix "artist." Whose first step of "creation" is to make a note for note copy of a song someone else composed and recorded. And of course, like all tired tech talking points, it confuses the "ability" to do something with the "right" to do something, and everyone else's "rights" are an inconvenience that needs to be swept out of the way as soon as possible. "In effect, artists are being forced to choose between having their music zapped off the most popular listening hubs on the Internet, or hiring a lawyer to sort out clearances for them. If clearing a sample were as easy and affordable as buying an audio plug-in, owners of desirable sampling material could make up for a drop in individual unit price by selling in bulk."[ref]Id.[/ref] It's not hard to see where this is going. The solution, of course, to making it "easy" and "affordable" is to have the government step in and force songwriters to allow their creative efforts to be placed in a digital blender for a below market rate, a/k/a the compulsory license. This idea was already considered and rejected by the U.S. Commerce White Paper report earlier this year. As I noted in this blog post: "'[T]he record has not established a need to amend existing law to create a specific exception or compulsory license for remix uses,' [the study said] noting that one comment called it "a solution in search of a problem."[ref]The Good, the Bad and the Strange of the Department of Commerce's White Paper on Copyright[/ref] And, as I said back then: "[M]y speech is my speech. Copying my speech does not make it your speech. And you have no absolute Constitutional right to make my speech. Plus, according to the Constitution, I have the "exclusive right" in my "writings." So, no you don't have a right to take my speech in order to make it yours. Plus, if you have sampled so many different artists that the licensing fees exceed 100% of your revenues, the failure is not in the copyright laws, but instead is the logical consequence of your failure to do anything creative. Slapping together a bunch of segments you copied from other people's musical compositions does not make you Mozart."[ref]Id.[/ref] And here: "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."[ref]Copying Is Not Creativity! Why Creative Artists Don't Need the Public Domain[/ref] Make no mistake. As an attorney, I have many times licensed client material to hip-hop artists. One became a #1 rap hit and as I sit here typing, I am finalizing a new license with a famous hip-hop artist. But in each case the artist took the time to acknowledge the source and properly license the material they did not compose. Which is exactly what Mr. Pelham did not do with Kraftwerk. Should we be buying into his argument that stealing is some kind of art form? I don't think so. And the Court in Germany should have known better. Certainly courts in the U.S. faced this question head on in Grand Upright Music Ltd. V Warner Bros. Records,[ref]Grand Upright Music Ltd. v. Warner Bros. Records, Inc. 780 F.Supp. 182 United States District Court, S.D. New York (1991)[/ref] way back when, in 1991, over 25 years ago: "'Thou shalt not steal.' has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country."[ref]Id.[/ref] Exactly. Copyright is my right. Remixing is not a right. UPDATE: Just after this blog post was published, the 9^th Circuit Court of Appeals published its opinion in VMG SALSOUL, LLC, v. CICCONE, et al.[ref]United States Court of Appeals, Ninth Circuit. June 2, 2016--- F.3d ----2016 WL 3090780[/ref] a/k/a the sampling which occurs in Madonna's "Vogue." Though the reasoning of the court does not contradict the views expressed in the initial blog post, it does bear explaining. In the Cicconne case, the reasoning of the court was that the sample, a .23 second sample of a horn blast, was too small to be actionable copyright infringement, invoking the long standing principal of de minimus non curiat lex or "the law does not concern itself with trifles."[ref]De minimis[/ref] It did so in the face of a case directly on point from the 6^th Circuit Bridgeport Music, Inc. v. Dimension Films,[ref]410 F.3d 792 (6th Cir. 2005)[/ref] "which adopted a bright-line rule: For copyrighted sound recordings, any unauthorized copying—no matter how trivial—constitutes infringement."[ref]United States Court of Appeals, Ninth Circuit. June 2, 2016--- F.3d ----2016 WL 3090780[/ref] In doing so, the Court intentionally creates a direct split with another Circuit Court, a point that is not lost on the dissenting opinion: "The majority chooses to follow the views of a popular treatise instead of an on-point decision of the Sixth Circuit, a decision that has governed the music industry in Nashville – "Music City" – and elsewhere for over a decade without causing either the sky to fall in, or Congress to step in. And just exactly what is the Sixth Circuit's radical holding in Bridgeport Music, Inc. v. Dimension Films that the majority finds so distasteful? It's this: if you want to use an identical copy of a portion of a copyrighted fixed sound recording – we're not talking about "substantially similar" tunes or rhythms, but an actual identical copy of a sound that has already been recorded in a fixed medium – get a license. You can't just take it…In this case Bridgeport has not been hiding out in the woods, waiting to be found: it has been governing the music industry in Nashville and elsewhere for eleven years. The majority now proposes to introduce a different rule for this circuit, creating a circuit split, and providing a lower level of protection for copyright holders in a different area of the country. (emphasis supplied and citation omitted) This inconsistent approach is plainly in contravention of Congressional intent that copyright laws be predictable and uniform, yet the majority defends its rogue path on the ground that Congress must have intended something other than what the Sixth Circuit has concluded, even though we've heard not a peep from Congress, or for that matter the Supreme Court, in the eleven years since Bridgeport has been on the books."[ref]Id. dissenting opinion of Judge Silverman[/ref] So the blog post's main point remains intact: there is not, nor should there be, an absolute right to copy another's musical composition or sound recording, regardless of the fact that it is a common practice in "hip'-hop" music, or that someone with a computer finds it inconvenient to write their own song. Whether that copy is too small to be legally actionable apparently is an issue for the Supreme Court of the United States to decide.