That Tweet that has been making the rounds, and maybe even gone viral, should be fair game, right? Everyone has been retweeting it, so embedding the original tweet into my website isn’t hurting anyone…riiiight? Well, not so fast. The answer may depend on where the case is heard.
Katherine B. Forrest, a U.S. District Judge for the Southern District of New York, recently issued an interesting order on this issue. Seems that Breitbart News Network, Yahoo, and a number of other online news outlets failed in making the same argument.
It seems that they all embedded a tweet (which had gone viral) into their own online websites. The tweet included a photograph of Tom Brady taken by Justin Goldman, and originally posted by him to Snapchat.
The photograph caught fire and several users uploaded it to Twitter, and eventually landed on the news websites. Goldman argues that he never publicly released or licensed the photograph, so he’s suing for infringement of his exclusive copyrights in the image.
The news outlets claim that they never actually downloaded or copied the photograph because it technically remained housed on the Twitter servers, linked through the embedding code on their own websites.
In what some have labelled a “surprising” decision, Judge Forrest set aside the 9th Circuit’s “Server Test”, which would determine infringement based upon whether an image is hosted on the alleged infringer’s server. Rather, she granted partial summary judgment to Goldman, holding that the fact that the image was never stored on the news websites’ servers was not dispositive.
Judge Forrest did leave the issue open as to whether the news outlets had raised effective defenses against infringement—citing potential arguments under fair use, the Digital Millennium Copyright Act and innocent infringement theories.
In reaching her decision, Judge Forrest examined the exclusive right to display the photograph (as opposed to copy or make a derivative work) granted to Goldman under the Copyright Act of 1976. Her opinion delves into a history of the right to display and the fact the drafters of the Copyright Act wanted it to encompass “new, and not yet understood, technologies,” such as Twitter.
Her decision also references a 10th Circuit decision, out of the U.S. District Court for the District of Colorado, which came to a different result. In Colorado, the District Court has (at least for the time being) applied the “Server Test” to a similar case.
In the 2016 Grady v. Iacullo decision, the Court held that, when a website includes a hyperlink to a copyrighted work, a copy has been created and infringement may have occurred. “transferring a copyrighted work into a computer’s RAM can create a copy under the Copyright Act.” However, the court requested that additional information be provided to it by the parties and a final ruling has not been made.
While final rulings and appeals are yet to be announced, beware the shifting sands of technology…embedding another’s image in your website may be more trouble than it’s worth.
If you have questions about this or any other copyright or licensing issue, contact our Arts & Entertainment attorney Caroline Kert at email@example.com or 303-763-1615.
In 2016, a group of museums and researchers in the Netherlands unveiled a portrait entitled The Next Rembrandt. This painting was actually generated by a computer, which had analyzed thousands of works by the 17th-century artist Rembrandt Harmenszoon van Rijn, and then used the data to create its own work in the same style. In the same year, a Japanese computer program wrote a novel called The Day A Computer Writes A Novel, which remarkably passed several rounds of judging for a national literary prize.
Meanwhile, Google is developing an artificial intelligence program that it hopes will write news articles, and already owns an artificial intelligence company called Deep Mind that has created software that can generate music.
Creating copyrightable works using artificial intelligence (AI) will undoubtedly have very important implications for copyright law. Traditionally, determining the owner of a copyright in computer-generated works was not a problem because the computer or software was merely a tool that supported the creative process, analogous to a pen and paper or camera and film. Now, AI is now creating works free from any direction or assistance from humans!
Since the advent of mechanical ways to play music (think player piano rolls in the 1880s), new technologies have always exceeded the boundaries of the existing copyright law, meaning the courts and the lawyers have been forced to stretch existing doctrines in their attempts to encompass the novel and unprecedented scenarios presented by this new technology.
The next frontier in copyright law, and issue that will test the language in our current statutes, will involve works created directly by computers. Right now though, these copyright implications are by no means clear. Should these original and creative works still be deemed to be made by a human author (i.e., the individual who designed or programmed the AI or initiated the “go” command) or independently by the AI alone? Would it be legally just to refuse to grant copyrights to music, novels, dramatic works and art created by AI? Would this refusal harm the content creation industry?
Our Intellectual Property Team will certainly be following these efforts!
By: Caroline R. Kert, Esq.
I’ve noticed a recent trend with artists calling to get help resolving a contract issue. The scenario usually unfolds something like this:
- The Artist had been contacted by a promotor/client/other artist to help capture photos or video.
- There is no written agreement, other than a few texts back and forth about payment rate and when to show up to the shoot.
- The Artist does the shoot, edits their product, and provides one or several complete products. This can be a series of photos or a few versions of a promotional video.
- The client begins using the completed works or forwards them on to their own client. The Artist usually finds this out by seeing the work on a website or FB feed.
- The Artist never gets paid and receives continued assurances that payment will come once the client receives payment from their own client.
What a horrible position for the Artist to find themselves in, and what an unsustainable reputation for the client to establish within the market!
But, not all hope is lost—copyright law can help the Artist gain some leverage in negotiating a resolution. The main thing the Artist should remember is that copyright in the images remain with the Author until there is an affirmative act to assign or license those rights to another. The Artist is the Author and retains copyright, unless they are 1) the employee of the client or 2) there is a written, signed agreement that defines the work as a Work Made For Hire, assigns the work, or licenses the work.
Without a WRITTEN AGREEMENT, a contract Artist has not given the client any rights to reproduce, display, or otherwise use the work. This can often provide a lot of pressure to get payment when the Artist clarifies this to the client. Without rights in the work, the client is arguably infringing on the Artist’s copyright when reusing the work or selling it to a third-party. In our experience, a well-crafted cease and desist notice to the third party can generate immediate attention and payment.
Even with a written agreement, the doctrine of Work Made for Hire is often misunderstood by artists and their clients. Very few types of projects qualify for treatment as a Work Made for Hire. Even if there is a clause that attempts to identify the client as the copyright owner, it often fails.
Of course, every situation is different and you should contact a lawyer that specializes in artist representation before taking action. Your attorney can help you review communications and written agreements to assess what next steps can help you get paid.
To help minimize the potential for conflict, always get your agreement in writing and clarify when payment is due (payable in stages with various deliverables, and never dependent upon whether the Artist’s client gets paid by a third party).
Copyright is a type of intellectual property that protects “original works of authorship.”
Literary works (poetry, novels, newspaper articles), musical works (songs and their lyrics, orchestral compositions, movie scores), dramatic works (films, plays) and visual arts (paintings, prints, comics, sculptures) easily come to mind when thinking of works that probably have copyright protection.
However, copyright can be a lot broader! U.S. law allows you to claim copyright in software, architecture, fictional characters (for example, Superman), pantomimes and even your business’s logo. Online, the contents of a website or blog, including its text, graphics and videos, can also have copyright protection.
This broad nature of copyright is no accident. The Copyright Act acknowledges that future technologies may create new kinds of content that can be protected. When the founding fathers provided for copyright in the U.S. Constitution more than 200 years ago, they surely could not fathom billion-dollar superhero movie franchises or the Internet!
So, instead of providing an exhaustive list of things that can have copyright, the law simply establishes certain elements that must be met for a work to have copyright protection.
Elements of Copyright
To be copyrightable, a work must:
- Contain a minimal degree of creativity
- Be created by a human author
The recent case of Naruto v. Slater confirmed animals are not afforded rights under U.S. copyright law. This ruling meant “Naruto”, a crested macaque monkey who took a charming and commercially-viable selfie, could not sue to own the copyright of the photograph.
- And be fixed in a tangible medium
The work has to be captured in a way to that it can be perceived, reproduced, or communicated for more than a short time.
Copyright protection in the U.S. exists automatically from the moment the original work of authorship is fixed. You do not have to register the copyright, print a copyright notice on the item, or publish the work to have copyright protection!
(But read more about why you should register your copyrights in our blog post here.)
Exceptions to Copyright
Copyright does not protect ideas, procedures, systems or methods of operation.
Copyright also does not protect facts and mechanical, clerical content (for example, a phone book).
Copyright does not protect simple, short phrases. If you wrote a pop song with only one lyric – “Baby, I really love you…” – you probably wouldn’t be able to copyright this phrase and prevent other songwriters from authoring similar sentiments.
Copyright also does not protect content authored by the U.S. Government. Thus, you can freely quote federal governmental reports, publications, websites and laws. Be careful though! This exception is not true for other governments, such as the U.K.
If you have questions about copyright law, how to register your works with the U.S. Copyright Office, or what to do if you think someone is violating your copyrights, contact our Intellectual Property team today.
 15-CV-04324-WHO (N.D. Cal. Jan. 28, 2016).
Photo Credit: Kelli Tungay on Unsplash
We get this question a lot. Artists, designers and other creative entrepreneurs are busy people! So, why should you go through the trouble of registering your copyrights and putting copyright notices on your works if, under U.S. Copyright law, you have copyright protection as soon as your work is “fixed” in a tangible medium?
We understand the instinct that you surely have better things to do with your time and money, but notice and registration are what give our copyright law its teeth!
Let’s say you discover that a major fashion retailer has copied your artwork on t-shirts and has been selling it all over the world? You file a lawsuit and the judge finds in your favor. You won!
Or maybe you wrote a catchy melody and uploaded a YouTube video of yourself playing your guitar and singing it. A major brand uses part of your melody in its new commercials for cleaning products. You file a lawsuit and the judge finds in your favor. You won!
Having a valid copyright registration may mean the difference of being awarded $100,000 in statutory damages, plus an order that the other side has to pay your attorneys fees, versus having only a piece of paper from the Court saying you were right and a $15,000 bill from your lawyer you now have to pay.
In other words, to really benefit from copyright law, you need to have a copyright registration certificate from the U.S. Copyright Office, and you have to let others know you claim copyright protection in your content.
Statutory Damages and Attorneys’ Fees
Current copyright statutory damages are set out in 17 U.S.C. § 504. They range from $750 to $30,000 per work, an amount to be determined at the discretion of the Court depending on the facts of the case. However, if a defendant can show that they were “not aware and had no reason to believe” they were infringing copyright, they may ask the Court to have the damages reduced to $200 per work. This is why providing notice is key.
If you can show the defendant was willful when it infringed on your copyright – it was deliberate, voluntary and intentional – a judge is authorized to award you damages of up to $150,000 per work!
Also, if you did properly place some kind of copyright notice information on or in your work, and the defendant intentionally removed it before they copied you, they could be liable for an additional $200 to $25,000 per occurrence under the Digital Millennium Copyright Act (DMCA)! An example of this would be a website owner cropping your photograph in a way that the copyright notice information you’d place in the bottom corner, and then publishing the image online without your permission.
In other words, statutory damages can really add up, and they allow you to avoid having to hire damages experts to prepare costly reports and testify on exactly how much you were financially damaged by your infringer’s activities. Moreover, attorneys’ fees provisions means if you are successful in your lawsuit, the other side pays your lawyer’s bill. Even if a lawsuit is never filed, copyright registration and the mere threat of statutory damages can provide you leverage to protect yourself and your business.
What Is “Notice”?
A good copyright notice lets the public know that (1) the content is protected by copyright; (2) who the author or owner is; and (3) when it was first published.
Beyond this, there is no required form or method for providing this information.
One way is:
Copyright © 2018 Sally Jones. All rights reserved.
© 2018 Sally Jones
You could also provide more detail:
Copyright by Sally Jones. Originally published November 29, 2017. Revised on January 2, 2018.
You may have noticed major movie studios like Roman numerals:
© Time Warner Studio MCMXCVIII
In other words, so long as you provide the required notice, the form and format is up to you.
If you have more questions about registering your copyright, or think your copyright is being infringed upon, give our Intellectual Property team call.
 17 U.S.C. § 504(c)(2)
 17 U.S.C § 1203(d)
We are watching the lawsuit between This is Spinal Tap creators, Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner, and Vivendi very closely. This case revolves around issues that we always pay close attention to for our creative clients: net profit definitions, copyright termination, and work-for-hire.
On October 20, 2017, Shearer, McKean and Reiner joined Guest in a Second Amended Complaint as individual Plaintiffs. This followed the dismissal of their loan-out companies, which were originally named as Plaintiffs, but found to have no standing. The pre-trial grappling will continue over the next months and this case is expected to have far-reaching implications for Hollywood’s “inventive” accounting practices.
Essentially, studios enter internal contracts with their own subsidiaries that fall far short from arms-length transactions. This allows the studios to deduct enormous expenses against the gross profits of a film, sometimes package them together with the expenses of poorly performing films, declare that there are no net profits in a project, and make no payouts under the net profits provisions of contracts with creatives. These accounting practices have meant that actors and writers associated with such “unprofitable” blockbusters as Return of the Jedi, Ghostbusters, Harry Potter and the Order of the Phoenix, and Forrest Gump have had to bring or threaten legal action before receiving their fair cut of royalties.
Not only have the co-creators of This is Spinal Tap requested a proper accounting of the net profits derived from the distribution and merchandizing of the film, but they are exercising their rights to terminate the copyright assignments in their works. Copyright law permits termination of rights 35 years after the assignment, and the co-creators have filed Notices of Termination. Their suit requests confirmation that the copyrights will revert to them in March, 2019. Reversion of the copyrights will entirely cut off the studio’s ability to distribute and otherwise commoditize the film and brand.
Ironically, the studio has now been placed in a position of fighting to retain interests in a “non-profitable” enterprise. The studio is fighting to retain its copyrights in the This is Spinal Tap brand by arguing that the co-creators were never copyright owners in the first place and that there is no assignment to terminate. The studio is relying on the work-for-hire doctrine to show that it was always the copyright owner of the film and music. At issue is the timing of the development of the copyrighted material—was it already in existence before the studio stepped into the picture, or were the requirements for work-for-hire in place when the material was created?
We love these kinds of cases because they are accessible and interesting to artists, and they help the public understand some of the nuances of copyright law. And, they help the artistic community understand why it is crucial to have an attorney review your contracts and catalogue your creative works. When we work with clients to review contracts, net profit definitions and work-for-hire provisions are often over-reaching and unfair to our clients. These are complex areas of law and are often misapplied in contract language. We work with artists to understand their rights and renegotiate fair terms. We also help our clients track creative assets and file timely Notices of Termination when the time is right.
If you need support understanding your rights under a film or other entertainment contract, contact arts & entertainment attorney Caroline Kert at 303-763-1615 or firstname.lastname@example.org. We are here to help.
A good website for your business can be an invaluable marketing tool. However, if you’re not careful, you could get into trouble for using images, photos, videos and other content in violation of copyright law.
Rights Granted under Copyright
Under the U.S. Copyright Act, the owner of a creative work is granted certain rights, including the right to prevent others from reproducing or copying their work, publicly displaying their work, or distributing their work.
Posting copyrighted material, say, a photograph, on your website arguably violates all these rights! Moreover, your Internet service provider (ISP) can also be found liable for copyright infringement, even if they played no part in designing or maintaining your website.
All small business owners must therefore be extremely careful about what goes on their website!
Even big companies with sophisticated marketing campaigns get into trouble. In May 2017, world-renowned luxury brand Tiffany & Co. was sued by photojournalist Peter Gould for using his photograph in an ad campaign for a line of jewelry designed by Elsa Peretti. The photo at issue was a shot of Ms. Peretti back in the day. The case was quickly settled and dismissed in July 2017, presumably because Tiffany’s agreed to write a nice fat check to Gould.
Tiffany certainly had the deep pockets to quickly deal with the lawsuit and settle, but your small business may not have these kinds of resources.
As a general rule, we tell our clients to assume any content they may want to use for their website, brochure, promotional video or other project is protected by either copyright or trademark law unless they can confirm otherwise. A work is not in the public domain simply because you found it up on the Internet already (a common misconception) or because it lacks a copyright notice (another misconception). Just because you are a local small business with not a lot of revenue and not a great understanding of copyright law does not mean you can claim “fair use” for the content either. There are no safe harbors in the Copyright Act if you just made a mistake or misunderstood.
Finally, be aware: If you do see an image or video is affixed with a copyright notice (or “copyright management information“) and choose to remove the info and use it anyway, this makes you liable for additional statutory damages under copyright laws.
Statutory damages range from a few hundred dollars to $25,000 per violation, meaning a mistaken infringement on your website can cost you a lot.
Investigate Infringement Claims Promptly
If someone complains about an unauthorized use on your website, remove the offending material at once and begin to investigate the claim immediately. If necessary, consult with an attorney on how to handle the investigation and how to respond to the claimant appropriately.
You may find after your research that your use is perfectly legal. However, you should remove the material while you investigate in order to limit your possible damages should the claimant file a lawsuit. Continuing to use the infringing material after receiving notice will increase the chances of you being found liable and increase the amount of damages you may have to pay.
Removal of infringing material is also an element of the Digital Millennium Copyright Act (DMCA), a 1998 law establishing that an ISP can avoid liability by following certain rules, including speedy removal of infringing material. Thus, if you don’t stay on top of copyright infringement complaints about your website, your ISP may get dragged into your mess as well.
Don’t let your dad who wanted you to major in business administration tell you otherwise – In today’s economy, making a living as an artist is probably more viable than it has ever been before.
Many individuals (including your dad) are under the impression that the only way to succeed in the arts is to become a superstar. Media representations tend to present the arts as an all-or-nothing proposition, with the spotlight only given to the celebrity successes.
However, a viable career in the arts can encompass a broad range of options for those of us who aren’t necessarily nobodies, but whose lives aren’t fodder for PerezHilton.com either. The arts are not a competition, and you don’t need to be a superstar to make a living doing what you love!
Here are some key points, some legal but many non-legal, we try to relay to our artist and creative entrepreneur clients:
- Identify and Maximize Various Revenue Streams
It can’t be denied that those working in creative professions often lack traditional benefits and job security. There is nothing in this post that offers solutions towards finding a tradition 9-to-5-with-health-insurance job in the arts. Instead, those who are able to pursue multiple sources of income and become comfortable (or even thrive) with a lifestyle with no promises of a paycheck can find career sustainability.
Experimenting with a variety of moneymaking options allows artists to discover which methods are the most lucrative. Here in Colorado, we unfortunately do not have a long-established art collector scene like on the coasts. However, traditional gallery art sales and online art sales may be complemented by speaking gigs, public art commissions, publishing, teaching, commission projects, crowdfunding and grants.
In other words, we believe it is a good investment for artists just beginning to establish their careers (but also for those looking to give a boost to current careers) to participate a little in a lot. If one revenue stream (for example, gallery sales) is not doing so well, you ideally should have multiple other sources of income to fall back on. The downside is that your schedule may be very full. The potential upside after several years of pursuing all options is that you’ve found something that really works for your medium, personality, lifestyle and business model, and you have found financial security.
- Be Weird
Being “weird” could be a bad idea at a lot of jobs, but it is definitely an asset in the creative professions. To sell art or become known as an artist, it helps to grab your audiences’ attention by creating works that are distinctly different from what is already out there.
Moreover, artists who devote time beyond their actual artwork to create a unique brand around themselves will likely have more opportunities to engage in various projects and receive more invitations to work, speak, sell and teach (all towards, see above, diversifying income streams!). Individuals who succeed in branding themselves aren’t necessarily the most talented and brilliant artists out there, but they do produce more bankable work. Navigating the fine line of being your authentic self yet making an impression on those around you can be tricky, but finding that balance can yield profitable results.
- Be Professional
Passion, talent and weirdness aren’t the only qualifications for becoming a successful professional artist. A creative individual pursuing a career in the arts should also be able to successfully navigate the business side of their own enterprise.
For example, grants can be a good source of income for an artist or arts organization. There are even some arts grants where, if you’ve received it once and demonstrated you were able to meet the objectives of the grant program, you can receive the same grant several years in a row.
However, groups that award such grants want to ensure their money is going to be used appropriately. They require clear and straightforward descriptions of how the grant funds will be used, and they also need assurances that the funds will be properly accounted for once received. This kind of due diligence is legally required for most of the foundations, endowments, 501(c)(3)s, and other organizations who are in the business of making arts grants.
If you never know the balance of your bank account or choose a casual attitude towards the financial aspects of your business, this is trouble! It is critical to establish, and continually maintain, a high level of professionalism in your arts business. Certain actions that can go a long way include:
- Setting yourself up as a legal business entity with a separate business tax ID (an EIN);
- Having separate business bank accounts;
- Staying on top of deadlines and document requests from grant organizations, vendors, and other collaborators or colleagues;
- Recognizing and protecting your intellectual assets (copyrights and trademarks);
- Having a good professional services contract when you are hired for projects, shows, etc.;
- Maintaining an active and professional online presence (social media and your website); and
- Sustaining a solid network of mentors, colleagues, and professional advisors such as accountants and attorneys who are on your team as you navigate your career in the arts.
Today, music is cheap, easy, and everywhere.
Sound recordings can be instantaneously accessed via terrestrial, Internet or satellite radio, YouTube, online streaming, or downloading. Nearly all of us carry around a mobile device that gives us access, whenever we desire, to vast catalogs of recordings. We play our music in the car, at home, and at work, and when we go out, it’s played for us at coffee shops, bars, gyms, stores and restaurants.
Perhaps because music has become so ubiquitous, many have a hard time understanding when and why anyone would have to actually pay for it.
Public Performance Licenses
A growing number of small businesses and nonprofits are thus unpleasantly surprised when they receive a letter, phone call, or even a personal visit from a performing rights organization (“PRO”) agent warning that they are playing music without the proper license and are thus participating in copyright infringement.
These business owners may be hostile to the idea of paying for something that they perceive to be free or to already own. Music sales among American record labels have plummeted since the early 2000s and in 2008, 40 billion songs were downloaded illegally. It is also estimated that 95 percent of music tracks are downloaded without payment to the artist or music company that produced them.
Nevertheless, under U.S. copyright law, owners of copyrights in sounds recordings have the exclusive right to reproduce, adapt, distribute and publicly perform the recordings. This means that under the law, purchasing a copy of a sound recording, whether an entire album or downloading one digital track from iTunes, does not permit the purchaser to further reproduce, distribute or perform the recording in public.
Performing Rights Organizations
PROs are responsible for licensing the music of the songwriters and music publishers they represent, collecting royalties whenever that music is played in a public setting, and distributing quarterly royalty checks to the copyright holders of their catalogs.
There are three PROs in the U.S.: (1) the American Society of Composers, Authors and Publishers (ASCAP); (2) the Broadcast Music, Inc. (BMI); and (3) Society of European Stage Authors and Composers (SESAC). A copyright holder can only sign up with one of the three PROs, which means each PRO holds rights to completely different catalogs of musical works.
PROs spend much of their time negotiating with television and radio broadcasters and large entertainment companies who operate stadiums, clubs and theaters. However, a not-insignificant amount of time is also spent educating small business owners all across the country that they are legally required to pay for the music they use.
Today, researching small businesses has never been easier for PROs thanks to the Internet. PRO agents watch for small businesses who advertise live music, karaoke or dancing, but under the law, any business that plays music is likely responsible for paying PRO licensing fees, including grocery stores, hair salons, sports venues, retirements homes, and funeral parlors.
Although “education” is the key word as far as how PROs view their work with small businesses, individuals who get a visit or phone call may remain resistant to the idea of paying fees to play music. Some small business may find PRO’s license fees to be cost-prohibitive. However, many simply believe that playing music is free or that we should be able to do whatever we want with the music we already own.
As an example of such resistance, the owner of Roscoe’s House of Chicken and Waffles ignored ASCAP for seven years before they finally sued him for copyright infringement. The 9th Circuit Court of Appeals eventually found Herbert Hudson and his corporation liable for nearly $200,000 in damages and attorney’s fees for playing eight unlicensed songs that were held by ASCAP!
This risk of lawsuit is real. ASCAP files between 250 and 300 copyright infringement lawsuits annually and BMI files between 100 and 200 lawsuits annually.
Do I Need a License?
Any store or other small business playing musical recordings through a playback device or radio receiver is engaged in a performance under the Copyright Act. Those who “participate in, or are responsible for, performances of music are legally responsible” for obtaining permission from music copyright holders. The law applies very broadly, so it is safer to assume you do need a license than don’t!
If a PRO is bringing a charge of copyright infringement against a business owner, generally there are two defenses:
- Section 110(5) Exemption (the “Homestyle Exemption”)
The Copyright Act provides an exemption for the reception of radio or television broadcasts in an establishment open to the public for business. This means a business can switch on the radio or TV and play broadcasted music performances without paying for a license. This exemption does have more nuanced rules that consider gross square footage, number of loudspeakers, number of devices, etc., and does not explicitly include Internet radio or streaming serves like Pandora.
- No “Public Performance”
Under current copyright law, a “public performance” occurs when music is played “in a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”
This means that playing music from a purchased CD at your 500-attendee family reunion is not a public performance, but playing the CD for just 2 patrons sitting in your bar on a Wednesday afternoon is. Courts have ruled public performance occurs even where the customers are not directly charged for listening to the music. Gray areas are “semi-public” places such as factories or condominium common rooms. The legislative history of the 1976 Copyright Act makes it clear “semi-public” performances are to be treated as “public performances” under the statute, but this language did not actually make its way into the final law.
As such, arguably music being placed for relatively-small work staff, say, the kitchen employees at a restaurant, that is not distinguishable to customers is likely not a public performance.
How to Avoid Copyright Violations for Playing Music
- Play music broadcasted from radio or television only.
As stated above, this could fall under the Homestyle Exemption, but care must be taken that your performance falls within the boundaries of the exemption rules. If your location is more than 3,750 square feet for a food or drinking establishment or 2,000 feet for any other type of business, you may be subject to additional rules that impact whether you need a license or not.
- Pay the annual PRO fees.
Licenses can range from $200-$500 up to $8,000 annually, depending on the type and size of business, how many speakers or playback devices are in the establishment, and the prominence of the music to business operations. Again, because there are three different PROs, businesses must either obtain three separate licenses or be carefully selective of the music played to ensure only one PRO’s catalog is used.
- Use music licensed from the Creative Commons.
Music publically performed from the Creative Commons typically still requires a license, but costs significantly less than the PRO fees. However, music under this license includes primarily less well-known songs from independent and emerging artists.
- Play only original content.
A business can host live bands and musicians, but generally the performers must be instructed that they cannot play cover songs unless the performer has already formally obtained permission from the original songwriter to play it.
A business owner can also write his or her own original compositions to be played at the establishment.
- Enroll with a music service provider.
Have you received a letter from ASCAP, BMI or SESAC? Are you opening a new business and need help navigating the licensing process or rules? Contact the Law Offices of Daniel T. Goodwin today to speak with an attorney.
In the last blog post, we discussed Katy Perry’s attempts to secure a trademark in “Left Shark” and a design image of a shark. That discussion focused on trademark, which protects phrases and images that identify and distinguish a source of goods or services. Copyright, on the other hand, protects works of authorship, such as drawings, songs, musical recordings, or books.
Cease and Desist Letter
Florida-based artist Fernando Sosa markets himself as “Political Sculptor,” [http://politicalsculptor.com/] and creates irreverent 3D-printed figurines inspired by current events and world politics. Immediately after Katy’s halftime show, Fernando began selling Left Shark figurines. On February 3 (the Super Bowl took place on February 1), Katy’s legal team sent Fernando a Cease and Desist letter asserting that he was violating Katy’s rights under U.S. copyright law. They also sent a takedown notice to Shapeways, the website selling Fernando’s figurines, and Left Shark was promptly removed from the site. Fernando decided to make the fight public, explaining on his blog: “Usually when it comes to small business owners, when the lawyers come after you the outcome is usually pretty predictable. I decided to finally take a stand and break the usual cycle of rolling over or giving into legal threats.” He engaged the services of a prominent intellectual property attorney, NYU Law Professor Christopher Sprigman, to respond to Katy’s lawyers. Fernando also shared the electronic files online so that anyone with a 3D printer would be able to create their very own Left Shark sculptures.
Cease and Desist Responses
Professor Sprigman’s response letters brought up two points of copyright law. First, under U.S. copyright law, costumes and clothes are generally not copyrightable. He asked Katy’s lawyers to explain why the Left Shark costume should be treated any differently. He also questioned whether Katy Perry actually was the author of any Left Shark works of authorship, citing to Katy’s interview in Elle magazine where she explained: In my show, I am boss daddy. I am boss mommy. They call me Boss. Everything goes through my eyes; I call all the shots, 100 percent of it. With the NFL, I have to be accountable to several levels of red tape. There are many committees I have to go through for my costumes, the budgets of my show, every interview – everything, I have to report to somebody. So I am no longer the boss; I have to relinquish that control.” The Copyright Act requires all transfers of copyright ownership to be in writing. [https://www.law.cornell.edu/uscode/text/17/204] Thus, Professor Sprigman brought up a cogent point that the Left Shark design may belong to another individual or the NFL. Katy’s lawyers answered Professor Sprigman’s first point by explaining that Katy’s team created multiple shark drawings in the process of designing the costumes, and those were copyrightable. They also explained that “multiple elements” within the costume itself were copyrightable, though did not explain specifically which elements these were. Katy’s lawyers also quickly asserted that Katy did, “pursuant to the terms of multiple agreements,” own all relevant copyrights to her dancing sharks.
After receiving Professor Sprigman’s first letter, Katy’s legal team asserted in addition to copyright infringement claims, they would also bring claims under unfair competition law, because “it is clear that any commercial value that your client’s sculptures have derives solely from the public’s association of them with Ms. Perry.” Unfair competition is a set tort claims that can be brought against a party that causes an economic injury to a business through a deceptive or wrongful business practice. In the intellectual property context, unfair competition often is an accompanying claim to trademark infringement and the attempt to use an already-established name, logo, or other identifying characteristic to deceive consumers into thinking that they are buying the product of a competitor.
“Left Shark Belongs to Us All”
In the last exchange between Professor Sprigman and the Katy’s lawyers, the professor made a salient point about the collective capabilities of the Internet: “No one knew that one of the sharks dancing next to Katy Perry during the Super Bowl halftime show was Left Shark until the Internet told us so. The Internet decided that Left Shark’s flubbed dance moves were hilarious. [The Internet] gave Left Shark his name, and then made him into a meme. Left Shark isn’t really about Katy Perry.” In April 2015, Fernando retained a new attorney in Florida to continue work on his instinctual property infringement/unfair competition case with Katy Perry but, as of the date of this writing, any new developments between the two have yet to be publicly shared.
Photo taken by ShoreShot Photography