Category: Copyright

Ninth Circuit Clarifies Transformative Fair Use in Dr. Seuss v. ComicMix

Post author By Joshua Grove
Post date December 22, 2020

a gavel lying on a desk in front of books This past Friday, the Ninth Circuit handed down its opinion in Dr. Seuss v. ComicMix, a closely watched transformative fair use case. The decision marks an important milestone in the development of the fair use doctrine, especially as applied to mash-ups—where two or more preexisting works are blended together to create a new work. However, the court’s careful explanation of what constitutes transformativeness is not limited to mash-ups, and it will surely be influential for years to come. In this post, I’ll look at the various views expressed by the parties, amici, and courts as to what it means for a use to be transformative, and I’ll explain how the Ninth Circuit’s new guidance on transformativeness reins in some of the overly broad positions that have been urged. This decision should be welcome news for those who worry that a copyright owner’s right to make derivative works has been excessively narrowed by ever-expanding notions of transformative use.

In Dr. Seuss v. ComicMix, the plaintiff, Dr. Seuss Enterprises L.P. (Seuss), was the assignee of the copyrights to the works by Theodor S. Geisel, the late author who wrote under the pseudonym “Dr. Seuss.” Seuss sued the defendants, ComicMix LLC and three individuals (collectively, ComicMix), for copyright infringement over, inter alia, ComicMix’s mash-up of Seuss’ iconic Oh, the Places You’ll Go! (Go!) with a Star Trek theme, entitled Oh, the Places You’ll Boldly Go! (Boldly). The Boldly mash-up featured slavish copies of the images and overall look and feel of Go!, but with the Seussian characters replaced with the crew of the Enterprise from Star Trek and the text and imagery reinterpreted for Trekkies.

ComicMix admitted that it copied Go! to create Boldly, and the issue on appeal was whether its use was fair. The district court held that it was fair use, finding in particular that ComicMix’s mash-up was “highly transformative.” After the decision was appealed to the Ninth Circuit, there were amicus briefs filed for both sides. Some argued that Boldly was transformative, and others argued that it was not. In the opinion for the unanimous Ninth Circuit panel by Judge McKeown, the court held that Boldly wasn’t transformative at all. This decision gives us what is perhaps the clearest explanation of what it means to be a transformative use to date by an appellate court. And the fact that it comes from the Ninth Circuit—the “Hollywood Circuit” as Judge Kozinski once called it—makes it all the more interesting and important.

The issue of transformativeness is primarily analyzed under the first fair use factor, i.e., the purpose and character of the use, but it also weighs heavily on the other three factors. If the use is transformative, courts often ignore the creativeness of the original work, give the copyist more leeway when assessing the amount and substantiality of the use, and overlook the copyist’s effect on the potential market for the original work. As some have observed, in a transformative use case, the fair use analysis tends to collapse into a single factor: Is the use transformative? Indeed, Jiarui Liu published a study last year showing that “transformative use appears to be nearly sufficient for a finding of fair use.” Once the dispositive decisions included in the study found transformative use, they eventually held that there was fair use 94% of the time.

District Court Finds Boldly Is “Highly Transformative”

In the district court, the parties filed cross-motions for summary judgment, with ComicMix claiming fair use. The court had assessed fair use earlier in the litigation when denying ComicMix’s motion to dismiss. There, the court rejected ComicMix’s contention that Boldly was a parody, reasoning that it did not comment on or criticize the original work. Parodies juxtapose the original work for comedic effect, and the necessity of referencing the original justifies the copying. However, the court found that there was no such juxtaposition here, instead noting that Boldly merely used the “illustration style and story format as a means of conveying particular adventures and tropes from the Star Trek canon.” Nevertheless, the court found that Boldly was “no doubt transformative” since it “combine[d] into a completely unique work the two disparate worlds of Dr. Seuss and Star Trek.” Even though many elements were copied, the court reasoned that Go! had been “repurposed” because ComicMix added “original writing and illustrations” that transformed its Seussian pages into “Star-Trek-centric ones.”

The district court ultimately denied the motion to dismiss as it had to take Seuss’ allegations of market harm in the complaint as true and there was no evidence to the contrary in the record. Lacking evidence of market harm, the court found a “near-perfect balancing of the factors” and held that ComicMix’s “fair use defense currently fails as a matter of law.” However, once the court turned to the summary judgment motions, it had a developed record from which to work. On market harm, the court placed the burden on Seuss—despite fair use being an affirmative defense—and found that it failed to demonstrate likely harm to Go! or its licensed derivatives. On the issue of transformativeness, the court adopted and then expanded on its reasoning when addressing the motion to dismiss.

Suess had asked the district court to reassess its fair use analysis given the intervening Federal Circuit decision in Oracle v. Google. In that case, it was not fair use when Google copied computer code verbatim and then added its own code. The court here distinguished Oracle, reasoning that ComicMix did not copy the text or illustrations of Go! verbatim. While ComicMix “certainly borrowed from Go!—at times liberally—the elements borrowed were always adapted or transformed,” and that made Boldly “highly transformative.” Furthermore, the court found that Go! and Boldly served different purposes, with the former aimed at graduates and the latter tailored towards Trekkies. And to Seuss’ argument that Boldly was a derivative work, the court responded that derivative works can be transformative and constitute fair use.

Strangely, when addressing the motion to dismiss and the summary judgment motions, the district court failed to cite the holding of Dr. Seuss v. Penguin Books—even though that binding precedent involved the same plaintiff making similar arguments about a similar mash-up (there, Dr. Seuss and the O.J. Simpson murder trial). In Penguin Books, the Ninth Circuit held that the accused mash-up, The Cat NOT in the Hat! A Parody by Dr. Juice, was neither parody nor fair use. Rather than ridiculing the Seussian style itself, the court held that it merely copied that style “to get attention” or perhaps “to avoid the drudgery in working up something fresh”—as the Supreme Court put it in Campbell v. Acuff-Rose. Indeed, because the mash-up failed to conjure up the substance of the original work by focusing readers instead to the O.J. Simpson murder trial, the court held that there was “no effort to create a transformative work with ‘new expression, meaning, or message’” as required by Campbell.

Amicus Briefs Offer Differing Views on Transformativeness

Once the case was appealed to the Ninth Circuit, amicus briefs were filed on both sides addressing the transformativeness issue. Some argued that Boldly epitomized transformative fair use, and others argued that it was the antithesis. It is difficult to exaggerate the doctrinal gulf between the views of these amici.

The Motion Picture Association (MPA) amicus brief, by Jacqueline Charlesworth, argued that ComicMix’s use was not transformative since it failed to comment on or add new meaning to Go! and instead merely used it as a vehicle to achieve the same purpose—entertaining and inspiring readers. Moreover, ComicMix admitted that it could have used a different book on which to base its mash-up, thus defeating any claim of necessity. The MPA brief explained that Boldly was indeed a derivative work (the district court had expressively reserved the point) as defined by the Copyright Act since it transformed or adapted a preexisting work. The district court had dismissed Suess’ argument that Boldly was a derivative work by pointing out that it transformed and adapted Go!, but the MPA brief called this “troubling logic” since it conflated derivativeness with transformativeness and presumably would make every derivative work a transformative fair use.

Peter Menell filed an amicus brief, joined by Shyam Balganesh and David Nimmer, taking issue with the district court’s “categorical determination” that mash-ups generally are “highly transformative” as it would “undermine[] the Copyright Act’s right to prepare derivative works.” The Menell brief argued that Boldly “might well strike a lay observer as clever, engaging, and even transformative in a common parlance sense of the term,” but this misunderstands the transformativeness inquiry, which turns on whether it “serves a different privileged purpose” such that it survives the “justificatory gauntlet.” The question was whether Boldly “merely supersede[d] the objects of the original” or instead used the copied material “in a different manner or for a different purpose.” Here, the Menell brief concluded, Boldly drew on Go!’s popularity to follow its same general entertaining purpose while adding little “new insight and understanding.”

Sesame Workshop filed an amicus brief by Dean Marks distinguishing transformativeness for derivative works from transformative use under the first fair use factor and arguing that the district court conflated the two. The Sesame brief explained that Boldly was only transformative in the fair use sense if it, per Campbell, added “something new, with a further purpose or different character” as “commentary” and provided “social benefit, by shedding light on an earlier work.” While Boldly did add new material, it did not add “any new meaning or message” or “provide any new insight or commentary on Go!.” It instead delivered “the exact same inspirational message” to appeal to Seuss’ “existing market.” The danger of the district court’s logic, the Sesame brief concluded, is that it “could stand for the proposition that all mash-ups constitute fair use, a holding that would greatly diminish the derivative work right.”

An amicus brief by Erik Stallman on behalf of a group of IP professors, including Mark Lemley, Jessica Litman, Lydia Loren, Pam Samuelson, and Rebecca Tushnet, took a broad view of transformative fair use, arguing that the district court properly did not require Boldly to criticize, comment on, or parody Go! itself. It also claimed that fair use is not an affirmative defense such that the district court properly put the burden on Seuss to show market harm. The crux of the IP professor brief was that, even though on a high level of abstraction both works had the same entertainment purpose, there were nonetheless “differences in expressive meaning or message” that made Boldly transformative. As there were such differences at a lower level of abstraction—e.g., Go! had a “hyper-individualistic character” while Boldly focused on “institutional structures that promote discovery through” combined “efforts”—the IP professor brief concluded that it was transformative in the fair use sense.

Finally, an amicus brief by Mason Kortz on behalf of the Electronic Frontier Foundation (EFF), Organization for Transformative Works, Public Knowledge, and others concluded that “Boldly is a significantly transformative work” that “recasts, recontextualizes, and adds new expression or meaning to Go! in order to create a new, significant work of creative expression.” The EFF brief argued that uses can be transformative even if “they fail to comment on or parody the original” so long as they have different “expressive content and message.” Here, Boldly was transformative because it “adapt[ed] the stylistic, visual, and rhyming elements from Go! to create new expression” and added “new meanings that speak with particularity to the themes of Star Trek beloved by its community of fans.”

Ninth Circuit Holds that Boldly Is Not Transformative

Turning back to the parties, Seuss argued on appeal that ComicMix’s “use was exploitative and intended to grab the attention of potential buyers, not transformative,” since it added no “new purpose or meaning.” ComicMix answered that its use was “highly transformative,” with a “radically distinct purpose and effect,” that crafted “new meanings from the interplay between Star Trek’s and Seuss’s creative worlds.” Judge McKeown, writing for the unanimous Ninth Circuit panel, sided completely with Seuss: While the “fair use analysis can be elusive,” if not metaphysical, “[n]ot so with this case.” The court held that “Boldly is not transformative” and that all of the fair use “factors decisively weigh against ComicMix.”

Quoting Campbell, the court started with the premise that a transformative work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message,” and a work that “merely supersedes the objects of the original creation” is not transformative. It also noted Campbell’s explanation that commentary with “no critical bearing on the substance or style of the original” and which is used “to get attention or to avoid the drudgery in working up something fresh” has less—if any—claim to fair use. The court then cited to its previous holding in Dr. Seuss v. Penguin Books (mentioned above as having been ignored by the district court below despite the glaring similarities) that the mash-up at issue there merely copied the Seussian style without critiquing it. The court there held that the defendant was only trying “to get attention,” and the court here found that the same result holds true. ComicMix’s “post-hoc characterization” that it was “criticizing the theme of banal narcissism of Go!” or “mocking the purported self-importance of its characters falls flat.”

The court then turned to ComicMix’s argument that, even if Boldly was not a parody or a critique, it was nonetheless transformative since it substituted Seussian characters and elements with Star Trek themes. The court rejected this framing as foreclosed by Penguin Books, noting that it “leverage[s] Dr. Seuss’s characters without having a new purpose or giving Dr. Seuss’s works new meaning.” And without “new expression, meaning or message” that alters Go!, ComicMix merely added “Star Trek material on top of what it meticulously copied” and failed to engage in transformative use. Helpfully, the court laid out three “benchmarks of transformative use,” which it gleaned from Campbell and Ninth Circuit precedent, to explain why Boldly was not transformative: “Boldly possesses none of these qualities; it merely repackaged Go!.”

First, the “telltale signs of transformative use” include a “‘further purpose or different character’ in the defendant’s work, i.e., ‘the creation of new information, new aesthetic, new insights and understanding.’” The court found that Boldly had neither a further purpose nor a different character since it paralleled the purpose of Go! and propounded its same message. Without a “new purpose or character” that would make it transformative, the court found that Boldly “merely recontextualized the original expression by ‘plucking the most visually arresting excerpt[s].”

The second of the “telltale signs” looks for “‘new expression, meaning, or message’ in the original work, i.e., the addition of ‘value to the original.’” The court found that ComicMix likewise failed to do this: “While Boldly may have altered Star Trek by sending Captain Kirk and his crew to a strange new world, that world, the world of Go!, remains intact.” The court’s focus was on whether Boldly changed Go! itself or merely repackaged it into a new format. Here, “Boldly does not change Go!,” and ComicMix’s admission that it could have used another work as the basis of its mash-up indicated that “Go! was selected ‘to get attention or to avoid the drudgery in working up something fresh,’ and not for a transformative purpose.”

The last of the “telltale signs” considers “the use of quoted matter as ‘raw material,’ instead of repackaging it and ‘merely supersed[ing] the objects of the original creation.’” The court, embedding several side-by-side images into the opinion to demonstrate the point, found that Boldly merely repackaged Go!. For the illustrations, the “Star Trek characters step into the shoes of Seussian characters in a Seussian world that is otherwise unchanged.” And for the text, rather than “using the Go! story as a starting point for a different artistic or aesthetic expression,” ComicMix instead matched its structure in a way that “did not result in the Go! story taking on a new expression, meaning, or message.” Since Boldly “left the inherent character of the [book] unchanged, it was not a transformative use of Go!.”

The court concluded that, “[a]lthough ComicMix’s work need not boldly go where no one has gone before, its repackaging, copying, and lack of critique of Seuss, coupled with its commercial use of Go!, does not result in a transformative use.” The first fair use factor thus “weigh[ed] definitively against fair use,” and the court went on to find that the other three factors favored Suess as well—without transformativeness to drive the analysis, ComicMix could not get the court to put its thumb on the scale in favor of fair use. Importantly, the court also rejected the holding below that the burden of proving likely market harm rested on Seuss: “the Supreme Court and our circuit have unequivocally placed the burden of proof on the proponent of the affirmative defense of fair use.” Additionally, the court chastised ComicMix for failing to address the “crucial right” of “the derivative works market,” noting that Boldly would likely “curtail Go!’s potential market for derivative works,” especially given that Seuss had “engaged extensively for decades” in this area.

Conclusion

All-in-all, the Ninth Circuit’s decision is a welcome development to the doctrine of fair use. Since Campbell was handed down over one-quarter of a century ago, the notion of transformativeness has taken on a central role—one that appears to be shrinking the exclusive right to prepare derivative works while expanding what it means to be transformative fair use. The accused work at issue here—Boldly—used the original work to create new expression, but lacking was any justification for the taking. ComicMix could have used any number of works for its mash-up, and the same nontransformative repackaging would have occurred because ComicMix’s purpose would not be tied to the particular work onto which it transposed the Star Trek universe. Thankfully, the Ninth Circuit was able to distinguish the transformative nature of a derivative work from the transformativeness that constitutes fair use. And given the prevalence of mash-ups in today’s culture, one suspects that this opinion will be cited and expanded upon for many years.

Tags Campbell v. Acuff-Rose, ComicMix, copyright, Dr. Seuss, fair use, Judge McKeown, Ninth Circuit, tranformative use, transformativeness

CPIP Applauds Congress on Passing CASE Act and Protecting Lawful Streaming Act

Post author By Joshua Grove
Post date December 22, 2020

U.S. Capitol building

As advocates for individual artists and small businesses in the arts, CPIP is grateful this holiday season for the inclusion of the CASE Act and the Protecting Lawful Streaming Act as part of the end-of-year omnibus and COVID-19 relief package: the Consolidated Appropriations Act, 2021. These measures enjoyed overwhelming support and address longstanding challenges in IP enforcement. While there are many additional obstacles for artists and arts venues to overcome stemming from the pandemic, we are hopeful that these measures, which artists have worked many years to achieve, will be a building block to a more equitable future for independent arts businesses.

Tags CASE Act, Congress, copyright, Protecting Lawful Streaming Act

Professor Shyam Balganesh on Understanding Privative Copyright Claims

Post author By Joshua Grove
Post date December 8, 2020

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

the word "copyright" typed on a typewriter By Liz Velander

Some argue that modern copyright law is decidedly market-oriented, almost entirely justified in utilitarian terms. By promising authors a set of marketable exclusive rights in their works, copyright is believed to incentivize the production of works of authorship. In his new paper, Privative Copyright, Professor Shyamkrishna Balganesh of the University of Pennsylvania Law School explains that this view produces a clear mismatch when using copyright law to remedy noneconomic harms. This paper was work-shopped at CPIP’s Philosophical Approaches to Intellectual Property research colloquium in 2019 and subsequently published in the Vanderbilt Law Review.

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of an author’s personal identity. They are driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, seeking to redress a particular form of copyright harm that Prof. Balganesh refers to as “disseminative harm.” An example of a privative copyright claim is found in the recent Ninth Circuit case, Monge v. Maya Magazines.

The plaintiffs in the case were a well-known pop music star and her manager, who got married in secret. To maintain the secrecy of the wedding, the couple limited the number of witnesses and took a very limited number of photographs that were intended for the couple’s private use. Through unscrupulous means, the photographs fell into the hands of an individual who sold them to the defendant, a gossip magazine that published them. The district court found for the defendant, concluding that the publisher’s use of the photographs constituted fair use. On appeal, the Ninth Circuit reversed in a rare denial of fair use for a privative claim.

To gain a full understanding of the Ninth Circuit’s opinion in this case, the nature of privative copyright claims in general, and why courts find them troublesome, Prof. Balganesh believes that one must trace the historic evolution of privative copyright claims in Anglo-American copyright law. Modern copyright scholarship is deeply critical of privative copyright claims, believing that the dignitary interests and harms that underlie such claims are best dealt with through privacy law. Prof. Balganesh’s article challenges this dominant view, arguing that privative copyright claims form a legitimate part of the copyright landscape. He demonstrates that protecting an author’s dignitary interest and the underlying commitment to authorial autonomy that motivates these claims have remained important normative goals of copyright law despite the multiple doctrinal variations and updates that the law has gone through over the last three centuries.

Prof. Balganesh explains that in its most basic form, copyright law functions by rendering forms of expressive harm privately actionable. He identifies three types of expressive harm protected by copyright law: (1) appropriative harm, (2) in situ reputational harm, and (3) disseminative harm. Appropriative harm is the primary form of expressive harm that copyright ordinarily centers around, typically resulting from instances of copying. In situ reputational harm originates from the U.S. copyright system’s limited recognition of moral rights protection in the form of the rights of integrity and attribution. A common feature of both rights is they derive from the need to protect an author’s reputation as manifested in the work. The integrity right focuses on protecting against a mutilation or distortion of the work in the recognition that this would impact authorial reputation directly. The attribution right focuses on ensuring that a work is not wrongly attributed to an author, again with the recognition that attributions contrary to the author’s actions and intent to do harm to authorial reputation.

The third category of copyright harm forms the basis of privative copyright claims. It emerges from the mere dissemination or use of a protected work without the creator’s authorization, regardless of the objective utility or value of such actions. The dissemination is harmful not for its economic effects, but instead because of its interference with the author’s unique dignitary interests. In various situations, such as in the Monge case, individuals produce original expression that they intend to keep private or limit to very particular recipients. When fixed in a tangible medium of expression, such as a photograph, the communications become eligible for copyright protection. When such expression is made public, it amounts to a direct infraction of its creator’s personal autonomy.

Prof. Balganesh sees this infraction as two-layered. First, it repudiates the creator’s choice to control whether, how, and when the work is to be shared. Second, it forces the creator to admit to being the author of the work, since elements of the creator’s persona and identity are often apparent on the face of the work. The publication thus forces authorship on the creator, with all its social, legal, and moral implications. Central to disseminative harm is the recognition that the work is personal to its author in a rather distinctive way.

Modern copyright scholarship believes that disseminative harm is best dealt with through privacy law, not copyright law. Prof. Balganesh argues that this approach misunderstands the nature of privative claims in copyright law and the centrality of authorial autonomy that underlies them. He sees it as being drive by three primary concerns: (1) copyright utilitarianism, (2) free speech concerns, and (3) perception that privacy torts are better suited to address dignitary harms.

Prof. Balganesh addresses each of these concerns in turn. First, while copyright law today is often justified exclusively in utilitarian terms, this was not always the case. Privative copyright claims actually predate the utilitarian turn in copyright law. Prof. Balganesh argues that the overt utilitarian turn in copyright law is far from a principled reason to critique the legitimacy of privative copyright claims. To the contrary, normative pluralism has remained a hallmark of the copyright landscape, much like it has for a variety of legal institutions. The logic underlying the functioning of privative copyright claims began to take shape shortly after the passage of the Statute of Anne in 1710. In the three centuries since, they have mutated and adapted to society’s changing concepts of privacy, personal autonomy, and copyright’s coverage of new subject matter.

Second, Prof. Balganesh dismisses the concern that copyright protection for dignitary or privacy interests risks converting authorship into censorship. He explains that copyright has various devices protective of free speech that can come into play in privative claims, the most notable being fair use. Courts use fair use as a stand-in for free speech concerns and balance the fair use factors against the plaintiff’s claims. Given the robustness of these mechanisms, Prof. Balganesh sees no credible free speech concerns with privative copyright claims.

Third, Prof. Balganesh argues that privacy torts are not better suited to protect dignitary interests because the dignitary interests underlying privative copyright claims entail more than just a concern with privacy. They implicate considerations of personality and personal autonomy, in the way of authorial autonomy. Privacy torts, most notably the tort of public disclosure of private facts, focus on representational autonomy and an individual’s ability to control public representations of her persona. They view the denial of such autonomy as emanating from the subject’s choice to keep certain facets of her persona private, and then scrutinize the existence and parameters of that choice rather carefully. The nonconsensual public disclosure of such facts is seen to cast the subject into the public and in turn produce potentially emotional and reputational harm. Privative copyright claims, on the other hand, involve a combination of representational and authorial concerns that an incapable of disaggregation.

With this understanding of privative copyright claims, the Ninth Circuit’s opinion in Monge v. Maya Magazines can be seen in a new light. Recall that the plaintiffs were a celebrity couple who had taken photographs of their secret wedding and the defendant magazine somehow obtained copies of those photographs and published them. The Ninth Circuit’s finding for the plaintiffs demonstrates the difficulty courts have with privative copyright claims and why it is tempting to place them in another legal realm.

The court’s decision was predicated on an analysis of the four fair use factors. Since the fair use doctrine was codified in 1976, courts have grown to place significant reliance on the fourth factor—the potential market harm for the copyrighted work. However, examining the existence (or absence) of market harm for privative copyright claims is an obvious mismatch considering the plaintiff’s work was intended to be kept private. In Monge, the Ninth Circuit refused to acknowledge this mismatch, instead presuming an actual market for the plaintiffs’ photographs because the couple was “in the business of selling images of themselves and had done so in the past.”

The Ninth Circuit’s reasoning is puzzling because, by its own admission, the plaintiffs’ primary (if not exclusive) motivation in retaining the photographs was for their own private use. The photographs were not for sale, they were intended to remain secret. Prof. Balganesh acknowledges that such secrecy has a potential price in that the scarcity renders the information more valuable. But he finds it to be a stretch to presume an actual market for the work.

Prof. Balganesh recommends an alternative approach for courts to use when applying the fair use defense to privative claims. He argues that courts should consider the “dignitary” nature of the work under the second factor, a combination of its being (1) unpublished, (2) private, and (3) embodying expression directly implicating the author’s persona and identity. While this classification should not be dispositive in the overall fair use analysis, it should weigh heavily and influence the interpretation and application of the other factors. The fourth factor, relating to market effect, should be understood as receding in importance once the work is classified as “dignitary” in nature.

Prof. Balganesh’s article makes a strong case for courts to adopt this approach through tracing the historic evolution of privative copyright claims in Anglo-American copyright law. He teases apart the theories behind copyright law and develops a theoretical basis for understanding the workings of privative copyright claims. Privative Copyright is an essential read for a deeper understanding of copyright law.

Tags copyright, fair use, Liz Velander, Monge v. Maya, privitive copyright, Shyam Balganesh

CPIP’s Sandra Aistars and Scalia Law Arts & Entertainment Advocacy Clinic Co-Host Virtual Copyright Event on Arts and the Pandemic

Post author By Joshua Grove
Post date November 23, 2020

The following post comes from Chris Wolfsen, a recent graduate of Scalia Law and a Research Assistant at CPIP.

flyer for Arts and the Pandemic event By Chris Wolfsen

On October 27, 2020, CPIP Director of Copyright Research and Policy Sandra Aistars and students from her Arts & Entertainment Advocacy Clinic at Scalia Law School co-hosted a virtual event with Washington Area Lawyers for the Arts (WALA) and the Copyright Alliance. This virtual copyright clinic, focused on Arts and the Pandemic, provided information to artists wishing to protect their works as well as educators incorporating creative works into distance learning and museums wishing to make work available during the pandemic.

The event kicked off with a testimonial from the Rock Creek King’s Evan Moses, explaining WALA’s assistance in pairing the band with an attorney who advised them in securing the proper permits and asserting their First Amendment rights to perform outdoors during the COVID-19 quarantine for the Save Our Stages Movement. The band continues to raise awareness of the need for legislation to support local music venues during COVID-19 shutdowns. The Rock Creek Kings are calling on both the D.C. City Council and the U.S. Congress to assist these small businesses until they can reopen safely again.

Professor Aistars then turned the event over so her clinic students could answer questions submitted by attendees, with former clinic student, now adjunct professor, Dr. Stephanie Semler moderating. First was an explanation from David Ward on how artists can copyright their artwork. He explained that artists have a copyright as soon as their work is fixed in a tangible medium, but that registering that copyright with the United States Copyright Office will benefit artists. This registration will allow people seeking to license works to find artists and for artists to recover statutory damages in the case of a successful infringement claim. David explained that there are six categories of protectable works and shared a quick walkthrough of the process on https://copyright.gov/.

Bernard Horowitz then fielded a question on the minds of many artists: should I sign a COVID waiver in the studio or for the live event I participate in? Bernard explained that this question is a moving target—COVID waivers have not yet been litigated and Congress has not acted on the matter. He noted that we can look to current personal injury laws to draw conclusions about what may happen with this type of waiver and went on to explain the sharp distinction between the laws in Maryland and D.C. compared to those in Virginia.

Another topic that has been brought to the forefront during the pandemic is collaboration between artists and teachers. Yumi Oda walked attendees through the concept of fair use—a defense to copyright infringement—explaining that teachers using creative works during a live stream of their lesson can take certain measures to improve the likelihood that they will have a good argument that their use of a work in a classroom setting is a fair use. She explained that fair use is a fact-specific inquiry, but that educational use in a classroom setting is a classic example. Yumi also recommended teachers take additional steps such as protecting the lectures, and the creative works within them, with a password and removing student access at the end of the semester.

In a similar vein, Emily Gunberg discussed how museums are adapting to life in a pandemic. Curators have to consider whether they have the right to display a visual work online, which requires making a reproduction. This is a right that does not automatically attach when a museum acquires the physical work for display within the museum building. Emily noted that some types of online postings are usually acceptable, such as thumbnail images due to their lower resolution and limited use. For general availability to the public, such as a feature in a museum’s virtual tour, curators should revisit licensing agreements to ensure they have permission from rights owners.

Heather Uzer was given a more holistic and open-ended question: is the pandemic a catalyst for reform, or a death knell for independent creators? She emphasized that it is within our capacity to use this moment as an opportunity and as a catalyst for change. Artists’ right to protect their works still remain and there are many resources available to help with that protection. WALA, the Copyright Alliance, and many others are committed to protecting independent creators. David Ward also noted that several legislative efforts have gained attention, and that some record labels are holding special days to acknowledge creator efforts and supplement revenue for broadcasting artists by returning all revenues to performing artists on those days.

The event concluded with a performance by the Rock Creek Kings, live, but socially distanced from Crescendo Studios in Falls Church, Virginia. You can watch the video of their performance here on YouTube. One of the owners of Crescendo Studios, Eddie Fuentes, spoke about the importance of art and music in a time where we cannot be physically connected, and Evan, the lead singer of the band, reinforced the message during the performance This has been a year where people have missed weddings, graduations, funerals, and birthdays. Our communities rely on creators now more than ever to bring us together through shared experiences when we are six feet, or even oceans, apart.

Tags Chris Wolfsen, copyright, Copyright Alliance, pandemic, Sandra Aistars, WALA

House Judiciary Committee Hearing Reacts to Copyright Office Report on Efficacy of Section 512

Post author By Joshua Grove
Post date October 28, 2020

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

U.S. Capitol building By Liz Velander

In late September, the House Judiciary Committee held a hearing entitled Copyright and the Internet in 2020: Reactions to the Copyright Office’s Report on the Efficacy of 17 U.S.C. 512 After Two Decades. As Chairman Jerrold Nadler (D-NY) explained, the hearing sought “perspectives on whether Section 512 is working efficiently and effectively for this new internet landscape.” The hearing was guided by the U.S. Copyright Office’s Section 512 Report, released in May, which concluded that the operation of the Section 512 safe harbor system disfavors copyright owners—contrary to “Congress’ original intended balance.”

The witnesses included: Jeffrey Sedlik, President & CEO, PLUS Coalition; Meredith Rose, Senior Policy Counsel, Public Knowledge; Morgan Grace Kibby, Singer and Songwriter; Jonathan Band, Counsel, Library Copyright Alliance; Matthew Schruers, President, Computer & Communications Industry Association; and Terrica Carrington, Vice President, Legal Policy and Copyright Counsel, Copyright Alliance.

Enacted in 1998 as part of the Digital Millennium Copyright Act (DMCA), Section 512 establishes a system for copyright owners and online service providers (OSPs) to address online infringement, including a “safe harbor” that limits liability for compliant OSPs. To qualify for safe harbor protection, an OSP must fulfill certain requirements, generally consisting of implementing measures to expeditiously address online copyright infringement. Congress sought to create a balance between two goals in enacting Section 512: (1) providing important legal certainty for OSPs so that the internet ecosystem can flourish without the threat of the potentially devastating economic impact of liability for copyright infringement as a result of user activity, and (2) protecting the legitimate interests of authors and other rights owners against the threat of rampant, low-barrier online infringement.

The Copyright Office’s Report determined that the balance Congress originally sought is now “askew.” It found that “despite the advances in legitimate content options and delivery systems, and despite the millions of takedown notices submitted on a daily basis, the scale of online copyright infringement and the lack of effectiveness of Section 512 notices to address that situation, remain significant problems.” The Report did not recommend any wholesale changes to Section 512, but instead identified certain areas that Congress could fine-tune in order to better balance the rights and responsibilities of OSPs and copyright owners. These include eligibility qualifications for the service provider safe harbors, repeat infringer policies, knowledge requirement standards, specificity within takedown notices, non-standard notice requirements, subpoenas, and injunctions.

At the hearing, the six witnesses reacted to the Copyright Office’s Report in dramatically different fashions. Representatives of OSPs disagreed with the Report’s conclusions, testifying that Section 512 is working as Congress intended. Mr. Band from the Library Copyright Alliance referred to Section 512 as a “shining example of enlightened legislation for the public good” that is responsible for the “golden age of content creation and distribution.” Mr. Schruers from the Computer & Communications Industry Association criticized the Report for inadequately reflecting the interests of users and “conspicuously” overlooking the problem of Section 512 misuse. Ms. Rose from Public Knowledge stated “the Office’s analysis performed a familiar sleight-of-hand by presenting user interests as coextensive with those of platforms, effectively erasing free speech concerns from its analysis.”

Representatives of content creators painted an entirely different picture of Section 512’s efficacy. They applauded the Copyright Office for calling attention to areas of imbalance related to Section 512 and to how overly expansive or narrow interpretations of the statute have aided in skewing the balance Congress intended. Mr. Sedlik, a photographer with over 35 years of professional experience and President & CEO of the PLUS Coalition, described how service providers take advantage of his and others’ copyrighted works while hiding behind Section 512’s safe harbors. He explained that, like many other copyright owners, he must spend an exorbitant amount of time searching for infringing materials online and sending takedown notices instead of creating new works.

Ms. Kibby, a singer and songwriter, testified that Section 512 is “undermining creativity, and more alarmingly, quietly undercutting our next generation of artists. It is jeopardizing livelihoods for working class musicians, obliterating healthy monetary velocity in our creative community. It is rewarding unscrupulous services that deal in the unauthorized trade and use of our works. It is fundamentally sabotaging the legitimate online marketplace that we all rely on and that Congress envisioned.” Responding to the argument that notice-and-takedown results in censorship of user-generated content, Ms. Kibby said that Section 512’s “stripping creators of their fundamental rights, their livelihood, and ultimately their creative contributions is the real censorship.”

Ms. Carrington from the Copyright Alliance identified three main problems with Section 512: (1) the ineffective notice-and-takedown process, (2) the effective elimination of the red flag knowledge standard, and (3) ineffective repeat infringer policies. She recommended adjusting the statute to clarify the difference between actual and red flag knowledge, enacting the Copyright Alternative in Small-Claims Enforcement (CASE) Act, and transparently developing effective standard technical measures (STMs).

Members of the Committee recognized the need for reform. Chairman Nadler remarked that the sheer volume of takedown notices being sent does not seem like the hallmark of a system functioning as intended. Some Members first spoke about the importance of copyright law before questioning the panelists. For example, Representative Hank Johnson (D-GA) said “it’s crucial that these creators are able to rely on copyright law protections to make their living. This is even more true in an age where the click of a button can plagiarize a lifetime of work.”

It was heartening to hear the Representatives’ positive response to the concerns of small, individual creators whose livelihoods depend on the commercial viability of their works. It was clear that the Committee is seriously considering the recommendations in the Copyright Office Report and looking for a way to rebalance Section 512 so that it respects what Congress originally intended—a system that respects the rights of authors and artists who face widespread infringement of their rights in the online environment.

Tags copyright, Copyright Office, Liz Velander, notice and takedown, Section 512, standard technical measures, STM, Terrica Carrington, U.S. Copyright Office

The Changing Nature of Sound Recording Rights

Post author By Joshua Grove
Post date October 23, 2020

The following post comes from Meghan Carlin, who is in her second year at Osgoode Hall Law School in Toronto, Ontario. In addition to her work with the IPilogue, Meghan is a Fellow with the Innovation Clinic and is Co-President of the Osgoode Entertainment and Sports Law Association. This post first appeared at IPilogue.

2020 Evolving Music Ecosystem Conference flyer By Meghan Carlin

The ongoing history of sound recording rights continues to provide a fascinating study in the United States’ copyright regime’s ability to contemplate and absorb new technologies into its framework. The evolution of these rights in America over the last 50 years charts alongside the country’s evolving music industry, crystallizing the importance, and distinctiveness, of music law in relation to the broader copyright regime.

Over the last 20 years, global music industry players have seen traditional revenue streams decrease as the shift towards digital distribution has intensified. In 2018, reported global revenues from recorded music were 25% lower than those reported in 1999 – without adjusting for nearly 20 years of inflation. With the worldwide concert industry grinding to a halt, removing a major source of revenue for performers and copyright owners alike, the effect of COVID-19 on the global music industry has placed a spotlight on moving the conversation on sound recording rights forward.

On September 9th through 11th, 2020, the Center for the Protection of Intellectual Property (CPIP) hosted The Evolving Music Ecosystem conference. Streaming online from George Mason University Antonin Scalia Law School in Arlington, Virginia, day one of the conference saw panelists tackling a number of topics in music law, including the colourful history of sound recording rights in America and their current status under the US copyright regime. The below provides a deeper look at the issues discussed during the Changing Nature of Sound Recording Rights panel on September 9th.

Looking Back: The Music Modernization Act

Revenues from recorded music have grown over the last five years in the US, with the Recording Industry Association of America (RIAA) reporting four years in a row of double-digit growth. In 2019, revenues from recorded music grew 13%, primarily through paid subscription services. Total revenues from streaming alone grew 19.9% in 2019, accounting for almost 80% of all recorded music revenues in the United States.

Consider these statistics against the legislative backdrop that governs the payment of royalties for recorded music. On October 11, 2018, the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (H.R. 1551) (“MMA”) was signed into law by President Donald Trump. The MMA combines three previously introduced bills intended to modernize copyright law as it relates to the music industry.

Title I of the MMA is the Musical Works Modernization Act, which impacts the conversation on sound recording rights in a number of ways. First, Title I changes the standard used by the Copyright Royalty Board (“CRB”) in setting digital royalty rates, bringing the standard used for digital radio stations up to date. Under the old regime, the standard used for setting statutory royalties relied on public interest considerations, preventing the CRB from considering what a licensee might pay as a market rate. Under the MMA, the rates for all compulsory blanket licences are to be determined through a market-based standard, sometimes referred to as a willing buyer/willing seller standard, ideally creating a fairer standard of compensation for the owners of sound recordings.

Further, Title I establishes the Mechanical Licensing Collective (MLC). While the primary role of the MLC is to collect and distribute section 115 mechanical publishing royalties, it has also been tasked with the creation of a Musical Works Database, intended to link sound recordings to their underlying compositions. In theory, the database will provide music users with a one-stop shop for uncovering all potential rightsholders involved in a song, on both the sound recording and the composition side.

Title II of the MMA tackles the grey zone inhabited by pre-1972 recording artists, otherwise known as “legacy artists”. The Classics Protection and Access Act extends the same protections to the digital public performance of pre-1972 sound recordings as those extended to post-1972 recordings. The practical outcome of this legislation? Digital radio stations and streaming services are now responsible for paying royalties for the expansive catalogue of pre-1972 recordings in their repertoires, according to the uniform rate setting standard outlined in Title I.

Title III, The AMP (Allocation for Music Producers) Act, creates a new “letter of direction” process, allowing recording artists to distribute a portion of the royalties collected for a sound recording to the producers, sound engineers or mixers involved in its production. Title III enables SoundExchange, the entity collecting and distributing sound recording royalties under section 114 statutory licenses, to distribute these royalties directly to the producers involved on behalf of recording artists who submit a “letter of direction” outlining their intention to make such a payment.

Simply put, and as it currently stands, the US legislation regarding sound recording rights maintains its focus on digital plays. What about analog?

Looking Forward: AM-FM Act

The AM-FM (Ask Musicians For Music) Act, introduced to Congress in November 2019, is a bi-partisan bill aimed at creating a terrestrial radio (AM/FM) performance right for sound recordings. The AM-FM Act arrives following the Fair Pay for Fair Play Act, introduced in both 2015 and 2017 with the same goal, but which failed to pass.

Supporters of the AM-FM Act describe it as ending a “a decades-long loophole” stemming back to the early days of radio that has allowed AM-FM radio broadcasters to play recorded music on air without obtaining the permission of the recording’s copyright owner, and without paying royalties for the use. In essence, it is argued, terrestrial radio broadcasters are being subsidized by the recording industry and will continue to be until the creation of an AM-FM radio performance right in sound recordings.

The National Association of Broadcasters has come out in opposition of the AM-FM Act, countering with their support of the Local Radio Freedom Act, stating that “Congress should not impose any new performance fee, tax, royalty, or other charge relating to the public performance of sound recordings on a local radio station for broadcasting sound recordings over the air, or on any business for the public performance of sound recordings on a local radio station broadcast over the air”.

In contemplating the ongoing battle over the creation of a terrestrial broadcast performance right in sound recordings, we’re provided with the opportunity to consider the role of analog radio in a digital era, and to think through the questions of promotion versus consumption that relate to music copyright as a whole.

Today: CUSMA

One argument made by proponents of the AM-FM Act is that while countries with a terrestrial radio performance right for sound recordings collect royalties for American artists whose sound recordings are played outside the US, they are unable to pass on these royalties to US rights holders as there is no domestic royalty scheme. In written comments filed in February 2020 in response to the USTR’s Request for Comments and Notice of Public Hearing Regarding the 2020 Special 301 Review, SoundExchange identified 6 territories which deny full national treatment to American recording artists – UK, France, Australia, Japan, the Netherlands, and Canada.

On July 1, 2020, the Canada-United States-Mexico Agreement (CUSMA) entered into force in Canada, providing full national treatment to sound recordings. Chapter 20 on intellectual property rights states at Article 20.8 that “in respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of another Party treatment no less favorable than it accords to its own nationals with regard to the protection of intellectual property rights”. As explained by panelist and Attorney Eric Schwartz of Mitchell Silberberg & Knupp, Canada’s implementation of its CUSMA obligation to give national treatment to sound recordings is sure to result in new payments to American copyright owners for uses occurring in Canada.

The effect of COVID-19 on the worldwide music industry has put the focus on the copyright regime’s ability to respond to change, both cultural and technological. For those interested in music law, and in the modernization of copyright more generally, the complicated and curious history of sound recording rights provides countless jumping off points for creatively thinking through the issues affecting artists and copyright holders today.

Tags copyright, Evolving Music Ecosystem, IPilogue, Meghan Carlin, MMA, Music Modernization Act, Osgoode Hall Law School, sound recordings

Google v. Oracle at the Supreme Court: Copyrightability, Fair Use, and Standard of Review

Post author By Joshua Grove
Post date October 15, 2020

The following post comes from Chris Wolfsen, a recent graduate of Scalia Law and a Research Assistant at CPIP.

U.S. Supreme Court building By Chris Wolfsen

Grocery store shelves, QWERTY keyboards, and restaurant menus. These are just three of the analogies that Supreme Court justices used to grapple with the complex issues in the long-awaited Google v. Oracle oral argument that was heard last Wednesday, October 7. The case between the two tech companies that has been brewing for over a decade comes down to 11,000 lines of Oracle’s Java code that Google copied, without permission, for use in its well-known Android smartphone platform—a competing product.

Oracle originally filed suit in 2010 against Google in the U.S. District Court for the Northern District of California for both patent and copyright infringement. In 2014, the Federal Circuit ruled that Oracle’s code was copyrightable, and Google appealed to the Supreme Court, only to be denied review. On remand, again in the district court, Google claimed that its use of the Oracle code was fair use—meaning that even if it were an infringing use it should still be allowed by law. In 2016, a jury sided with Google, and Oracle filed a motion to challenge the jury verdict, which was denied. So instead, Oracle appealed the case back up to the Federal Circuit where the court reversed the lower court’s judgment and held that Google’s copying of the code was not fair use and that the copyrightability issue that was resolved in its 2014 decision still applied. In 2019, Google filed its petition for Supreme Court review once again, and finally the time for oral argument arrived.

The main issues for the Court to decide are a review of the Federal Circuit decisions—whether Oracle’s code was copyrightable to begin with and whether Google made fair use of the code. But also, and perhaps most importantly, the Court must decide what standard of review should be used to make a fair use determination. This last question will have a lasting impact far beyond this particular dispute.

Copyrightability

Under the Section 102 of the Copyright Act, software is considered a “literary work” and is afforded legal protection. Oracle would therefore have the right to prevent others from using its code or, as was the case, license the use of its software for others to use. But Google makes an argument under the merger doctrine that the code was never subject to copyright protection. The merger doctrine states that when an idea and its expression are inextricably merged there cannot be any copyright protection for the idea. This doctrine gets right to the heart of copyright law: original expression is protectable; an idea—a method, a system, a way to explain something—is not. Google’s argument is that there is only one way to express Oracle’s code, and therefore the code itself cannot be copyrightable at all. Google repeatedly suggests that to rule otherwise would be imparting protection over a method, which is something reserved for patent law.

The Court, and perhaps the rest of us not well-versed in computer science, struggled with this concept in the context of a very technical set of facts. Google’s counsel, Thomas Goldstein, drew comparisons to the Baker v. Selden Supreme Court case where Selden created a new method of bookkeeping and attempted to assert copyright protection over his ledger forms. Goldstein likened Oracle’s code to those ledgers—innovative and hugely successful, but merely a methodology that does not warrant copyright protection. The justices took turns proposing different hypotheticals to challenge this argument. First was Chief Justice Roberts, “cracking the safe may be the only way to get the money that you want, but that doesn’t mean you can do it,” followed by Justice Thomas’s analogy to a football team’s playbook that Google swiped for its own win. Mr. Goldstein argued back that copyrighting the knowledge itself of how to crack a safe would not be allowed and that Google is not “trying to take someone’s fan base or their football players or anything else.” The justices did not seem convinced by Google’s assertion that Oracle’s method of writing code was the only way to create the function Google wanted for its Android platform.

It is easy to get lost in the technical language of the case, between declaring code and implementing code and shortcut programs. Oracle’s counsel, Joshua Rosenkranz, cut through all those distinctions saying, “code is code,” and he pointed out that no circuit court drew a distinction between the types of code. Congress could have carved out different types of code in its consideration of the Copyright Act, but it expressly chose otherwise. Mr. Rosenkranz also circled back to distinguish Oracle’s code from the accounting ledgers in the Baker v. Selden case, highlighting that Oracle is not trying to prevent others from creating their own programs. “Others are free to write and organize their own prewritten programs however they see fit, as long as they don’t copy ours.” Mr. Rosenkranz underscored, and multiple justices acknowledged, that other competitors like Apple and Microsoft did not resort to pure copying to create their products, and that companies like IBM and SAP paid Oracle to properly license the code. Just because Oracle’s method was the most elegant, and therefore popular, way of expressing the code does not make it the only method of doing so. Mr. Rosenkranz summarized this issue well, saying, “the Copyright Act does not give Google a pass just because it would be expensive to recreate our expression.”

Fair Use

Even if the code were copyrightable in the first place, Google argues, fair use still justifies its copying of the code. Fair use is an affirmative defense to an accusation of copyright infringement. A person or entity who has plainly copied another’s protected work can argue fair use to justify their taking and subsequent use of the copyrighted material. Congress has enumerated a four-factor test within the Copyright Act for courts to follow when evaluating a fair use claim—a test that the Supreme Court last used 26 years ago in Campbell v. Acuff-Rose Music—weighing the purpose and character of the use, the nature of the original work, the amount and substantiality of the portion used, and the effect of the use on the market value of the original work.

Modern courts, when evaluating the first factor of purpose and character of the infringing use, often focus on whether the use was transformative. Google has used this argument successfully in the past, in Authors Guild v. Google, defending its copying of millions of books for use in its Google Books search engine. The court in that case found that digitizing books for use in an online search database was highly transformative. In this case, Mr. Goldstein tried to make a similar argument that Google wrote an improved version of Oracle’s Java code to be more suitable for use in a smartphone. Mr. Goldstein said that this is “what Congress would want, that is to be able to take the functionality of a computer program, [and] someone else comes along and does it better.” He then stated that computer code only performs one function and therefore can still be considered transformative even if it does nothing different than the original work, only to later argue that the word “transformative” is not used in the Copyright Act and might not even be the correct standard of evaluation in this case.

Google also maintained a policy argument that “reusing software interfaces is critical to modern interoperable computer software,” and that to rule in Oracle’s favor would “upend that world” and make computer programming so inefficient as to have fewer creative computer programs. Justice Kavanaugh pointed out that despite Google and its amici claiming a dire result if the Court should rule for Oracle, in the years since the Supreme Court first denied certiorari, “I’m not aware that the sky has fallen.”

Oracle made a more direct argument based on legal precedent, noting that the Supreme Court had already held in Harper & Row and in Stewart v. Abend that no court had found or upheld a fair use verdict where an infringer copied so much of an original work for use in a competing commercial product, all while retaining the same meaning and purpose as the original work. Mr. Rosenkranz pointed out that Google conceded that every line of code copied serves the same purpose in Google’s Android platform as it did in the original software—there was no alteration or transformation of the original code—and Malcolm Stewart, arguing on behalf of the United States in support of Oracle, echoed that point. Mr. Rosenkranz then cited the Court’s own decision in Campbell, saying that what Google did is the “epitome of commercial superseding use: using a work ‘to get attention or to avoid the drudgery in working up something fresh.’”

Standard of Review

The discussion quickly turned to the standard of review that the Court should use to evaluate fair use—whether the determination must be left up to a jury, like the jury that ruled in Google’s favor previously, or whether it can be made by a court, such as the Federal Circuit that overturned the jury verdict to side with Oracle. Google argued that fair use is determined by “whether the jury could reasonably find fair use,” and that “no previous court ever held that only a court may decide fair use.” Mr. Goldstein argued that giving the decision to a jury is the better choice due to the numerous factors involved in a fair use verdict and that jury instructions exist to give appropriate legal certainty and guidance to the jurors.

Oracle disagreed and argued that de novo, meaning “anew,” is the correct standard to resolve this question. This would allow for a court to make a fair use determination without being bound by the decision of a previous court or verdict. Mr. Rosenkranz again cited Harper & Row: “an appellate court may conclude, as a matter of law, that the challenged use does not qualify as fair use once it has the factual record and resolves all subsidiary factual questions in favor of the fact-finder.” Judicial review provides certainty to a fair use determination that would be lost if left to a lay jury. Mr. Rosenkranz also noted that making fair use a fact-finding mission that only a jury may evaluate would all but preclude summary judgment determinations, which are exclusively judge-made decisions and currently comprise the vast majority of fair use cases.

Conclusion

The stakes in this case are extremely high—if it was not made clear by the number of times the justices and attorneys referenced the sky falling—not only for Oracle and Google and the computer science world at large, but also for any copyright creator or user who will eventually face a fair use determination. Joshua Simmons, co-counsel for Oracle and partner at Kirkland & Ellis, looks forward to the Court’s decision, writing:

Given that Google’s copyrightability argument would make it difficult for any code to be protectable, I am hopeful that the Court will follow the text of the Copyright Act and the intent of Congress that code, like Oracle’s, is protectable. Likewise, I hope that the Court will follow a century of precedent allowing courts to decide as a matter of law that, when the defendant creates a substitute that competes with the original, it simply is not fair use.

People of all industries, from professionals to hobbyists, should take note of last week’s oral argument and what will be an historic decision from the Court.

Tags Chris Wolfsen, copyrightability, fair use, Google v. Oracle, Joshua Simmons, Kirkland & Ellis, standard of review, Supreme Court

Nicola Searle on Business Models and Copyright: The Legal Business Model

Post author By Joshua Grove
Post date October 13, 2020

The following post comes from Dr. Nicola Searle, an economist who specializes in the economics of intellectual property and the creative industries. This post is derived from a paper that Dr. Searle prepared for CPIP’s Sixth Annual Fall Conference.

By Nicola Searle

The last two decades have made for interesting times in the media business. With rapidly changing technology, the digital era released content from the confines of physical formats and introduced a dazzling array of formats, channels, and other key elements of business models.

Business models describe how an organization creates, delivers, and captures value; business models have become increasingly important for companies to adapt to, and harness the opportunity arising from, the digital ear. In digital media, this transformation has been coupled with changing consumer preferences and delivery mechanisms, leading to increased copyright infringement. Unsurprisingly, copyright is a focal point of regulatory discourses in the digital media industry. A key theme has been the interaction of copyright and business models.

Thanks to support from CPIP, I have developed an in-depth analysis of the copyright-business models narrative in the digital media industry. My research uncovered different viewpoints, types of business models, and the existence of an unacknowledged theme in these debates: the legal business model.

Nicola Searle — Copyright: WIPO. Photo: Pierre Albouy. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 IGO License.

Two contrasting perspectives on copyright policy-business models emerge from the research: the first, as in the quote below, where copyright is a fundamental legal tool to support the industry’s business models and the fight against infringement. This view argues that without copyright protection, digital media business models will fail. For example:

Our business is based on a robust copyright framework which allows us to reinvest in the works we produce and licence, anything that could jeopardise it, such as a reduced copyright term or a fair-use system would result in our business model becoming redundant and therefore obsolete.[1]

A second view suggests copyright law restricts business model innovation. This take often cites the wild-west of the early Google business model, and its relatively liberal approach to copyright in the United States, in contrast to more restrictive jurisdictions, such as the UK, where business model innovation has been relatively tame. It is demonstrated by this quote:

Fair use [a copyright exception] may offer benefits for businesses which rely on the reproduction of creative content. To the extent that it offers a broader range of exceptions, it may encourage investment in new business models if firms believe they will neither infringe copyright nor incur licensing costs.[2]

The question then is, does copyright hinder or enable business models in digital media? The answer is that is not the question. This debate is not about business models—it is about the legal business model.

My analysis of over 300 documents from the UK digital media industry identifies a latent concept in these discourses: the legal business model. The discussion is not about business models as such, but as business models viewed via copyright—which I term “the legal business model.”

In a traditional concept of business models, the focus is on value creation through goods or services. In the copyright-business model narrative, the “business model” is actually the legal model shaped and sustained by external legal structures (copyright), where regulations (copyright) create and protect value. It is a subtle difference, but it explains why UK copyright regulations to encourage business model innovation have not been successful and why copyright does not actually feature heavily in the descriptions of business models.

The research identifies various, yet inconsistent, labels for business models, as listed in the table below. The most cited is that of the “traditional model,” namely a model where content is sold directly to the consumer. The “digital model” is very similar—perhaps a digital equivalent of the sales of physical products. Other models talk about delivery and price mechanisms; however, only one business model is directly related to copyright—the licensing model. Only 16% of the business models mentioned in the sample are based on copyright; all the rest are framed instead around elements of the traditional concept of the business model.

Name of business model with frequency and notes. Traditional model, 31. Digital model, 26. Licensing model, 24. Ad-funded model, 20. Subscription model, 14. Streaming model, 13 (overlaps with subscription). Freemium model, 10 (includes free-to-play). Miscellaneous, 11 (includes crowd-funding).

In contrast to the drama and dynamism of the digital era and its copyright narratives, business models in digital media are surprisingly stagnant or resilient, depending on the perspective. The core model has not changed. For example, the CEO of Phonographic Performance Limited (PPL), a sound recording collective society in the UK, stated in 2017:

We have a strong and steadfast business model that forms the foundation for our future progress, and positions PPL well to deal with today’s ever-changing, competitive and complex market.[3]

Other authors, such as Feng Li, have also found relative stability in business models in the sector.[4]

Coupled with a further analysis of the discourse, details available in the paper here, a paradox emerges. While copyright-business models insist on a strong link between the two, in practice the industry’s own framing and use of business models downplay copyright. The legal business model offers an explanation: the narrative is copyright-legal business models, not copyright-business models.

Yet, the stability of the existing business models and structure of the industry are not given. Market power has shifted to large technology platforms and gateways, and tensions have emerged. As streaming services that license-in content, such as Spotify, grow, they become increasingly dependent on external content owners. Services such as Netflix and Prime are now content creators, and content creators themselves are launching their own services, such as Disney+. Platforms have also been criticized, as described in the following quote from UK Music CEO Michael Dugher:

Google’s YouTube is the world’s most popular music platform, yet it deliberately chooses to return a pittance to those whose creativity it has built its multi-billion pound business model on. Google remain the vultures that feed off music creators.[5]

Business models and copyright continue to play a part in both regulatory narratives in the industry and the future of the industry itself. However, discussions thus far have not been a true engagement with copyright and business models in the traditional sense—only with debates over the legal business model. Perhaps the correct question is, should business models adapt to copyright, or should copyright adapt to business models?

To read the paper, please click here.

[1] Alliance for Intellectual Property, Trading Places: The UK’s IP Future, at 60 (2017).

[2] PricewaterhouseCoopers, An Economic Analysis of Copyright, Secondary Copyright and Collective Licensing, at 51 (2011).

[3] Phonographic Performance Limited, Annual Review, at 6 (2017).

[4] See Feng Li, The Digital Transformation of Business Models in the Creative Industries: A Holistic Framework and Emerging Trends, Technovation 92-93 (2020).

[5] See Chris Cooke, Music Industry Comments on Copyright Directive Ruling, Music Business Worldwide (July 5, 2018).

Tags business model, copyright, fair use, Nicola Searle

High Court Oracle-Google Copyright War May Benefit Artists

Post author By Joshua Grove
Post date October 9, 2020

This post first appeared on Law360.

U.S. Supreme Court building You might think that a copyright battle waged between tech behemoths Google LLC and Oracle America Inc. about computer code has little to do with the concerns of songwriters, authors, photographers, graphic artists, photo journalists and filmmakers. You would be wrong. These groups all filed amicus briefs with the U.S. Supreme Court in Google v. Oracle, argued on Wednesday Oct. 7.

Google v. Oracle is a long-running copyright dispute in which Google admits that, pressed for time, and wanting to compete with Oracle, it copied more than 11,000 lines of Oracle’s Java software code, as well as the organizational structure of the software program.

In doing so, Google avoided the research and development costs of authorship and even the licensing obligations to make its products interoperate with other Java products those using the code legally took on. Google then began competing with Oracle — earning billions of dollars in revenue using the code and structure it had copied.[1]

Google claims that either the portions of the code it took were not copyrightable or that Google’s use is a fair use.[2] It and its amici — many of whom would prefer reduced intellectual property protections for software to fuel their business models — deploy terms like “permissionless innovation” and “efficient infringement” as a public relations strategy.

However, the Copyright Act is clear that software is copyrightable as a literary work — with no carveouts for particular types of code — and that fair use is a defense to copyright infringement intended to excuse limited uses of works, especially for noncommercial purposes, where the use does not compete with the original work.[3]

That is why Google lost in the U.S. Court of Appeals for the Federal Circuit, where U.S. Circuit Judge Kathleen O’Malley opined “[t]here is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.”

The First Transformative Use Case at the Supreme Court in a Generation

The Supreme Court has not revisited the transformative use test articulated in Campbell v. Acuff-Rose Music Inc. in 26 years. That case added a new gloss on the first fair use factor — the purpose or nature of the use — courts consider when analyzing a fair use defense.

Artist advocates believe that some lower courts have improperly expanded transformative use over time so that it now includes uses that should be licensed, resulting in losses in income to creators.

Today it is not unusual for defendants to assert arguments that a given use is transformative even if it does not add new expression, meaning or purpose to a work, as Campbell required. It is common to hear policy arguments used to justify the need to copy the creative work of another for the sake of efficiency, or because it will reduce the cost of a product. Notable copyright scholars have even observed that transformative use is becoming a conclusory label that means all things to all people.[4]

Although cloaked in terminology related to software code, all of the familiar transformative use debates were present in Wednesday’s oral arguments in Google v. Oracle.

Google’s counsel, Thomas Goldstein, repeatedly resorted to the public policy arguments of efficiency and cost that rankle artists. At various points Goldstein was questioned by Chief Justice John Roberts and Justices Clarence Thomas, Elena Kagan, Neil Gorsuch and Brett Kavanaugh regarding why Oracle should be penalized for developing a “particularly elegant or efficient or successful or highly adopted solution in the marketplace.”

Goldstein ultimately replied that it would “upend the world” if later competitors were unable to copy popular computer code that programmers had become accustomed to using and “make the creation of innovative computer programs less efficient.”[5]

Google likewise argued that its use of Oracle’s code was transformative because it used the code on a mobile platform rather than a desktop. This argument was refuted by Deputy Solicitor General Malcolm Stewart, who noted that Google copied the portions of Oracle’s code that were used in the smart phone environment, so it did not transform anything.

Moreover, for app developers to have confidence that their programs would trigger the same functionality they had triggered in Java previously, the code had to perform exactly the same function it had always performed.

Hence, Google has not and could not do anything transformative in that sense either. To analogize to a motion picture that has only been released in theaters, he explained if one were to obtain a print of that film and instead stream it on a digital platform, no court would excuse that as a transformative fair use.[6]

Why the Standard of Review Matters

What might seem like an arcane civil procedure dispute over the proper standard of review for a fair use decision may well be the most important issue for artists in Google v. Oracle because it could determine whether cases in which fair use is asserted can be decided by a judge as a matter of law or instead require a trial and determination by a jury.

Google, which has routinely requested that fair use be decided by courts as a matter of law, has raised an argument through its amici that fair use is a question that must always go to the jury.

To put into perspective what this would mean for artists: Because copyright is a body of federal law that preempts state law, it must be tried in federal courts. Most individuals and small businesses cannot afford to bring or defend against even simple infringement actions in federal court. The American Intellectual Property Law Association has estimated that the mean cost of fully litigating a copyright infringement lawsuit is $397,000. Adding a jury trial requirement to these already astronomical costs would put justice ever further out of reach for the majority of the creative community.

Requiring a jury trial on fair use is outside the norm. As counsel for Oracle Joshua Rosenkranz noted, “Professor [Barton] Beebe has identified over 100 fair use cases decided by courts on summary judgment in a 30 year time span. Google could identify only five cases that went to a jury in a similar 30 year span.”[7]

Additionally, fair use is a defense on which both the public and creators depend and that requires stability and predictability so that individuals may make legal and commercial decisions with some certainty that they are not exposing themselves to undue risk. Google often makes these very arguments itself. To leave fair use determinations wholly to juries would undermine that stability and make innovation more dangerous and licensing more challenging.

What Artists Are Watching

Some amicus briefs filed by artist advocates invited the court to take this opportunity to clarify and rein in what they view are overly expansive fair use decisions since Campbell.[8]

Others express worry that

Google has used its unprecedented online footprint to dictate the terms of the market for creative works. By tying together a set of limited exceptions and exclusions within the U.S. Copyright Act and analogous laws in other countries, and then advocating for the radical expansion of those exceptions, Google has amplified its own market power to the great detriment of copyright owners.The more amorphous and unreasonably expansive the analysis and application of the fair use doctrine, the harder it becomes to establish the value of the copyrighted work during licensing negotiations that are the lifeblood of the creative ecosystem.[9]

Dale Cendali, co-counsel for Oracle, is optimistic after Wednesday’s argument and wrote to me in an email:

We are hoping that the Court will uphold the copyrightability of software and protect the incentive to create that the Constitution provides to all creators — big and small. We also are hoping the Court will agree it is fundamentally not fair use to use a work for the same purpose as the original for commercial gain. Moreover, fair use requires a complicated legal analysis that makes it suited to determination by a court as a matter of law — as has been the history of deciding fair use on summary judgment — as opposed to the often unpredictable and frequently unaffordable process of a jury trial.

Conclusion

Artists have much reason for optimism. The weight of the law and the diversity of amici arrayed against Google’s view of copyright is mighty. Beyond the wide variety of independent artists groups mentioned, amici aligned with Oracle also included:

The U.S. government, which has aligned with Oracle under the administrations of both former President Barack Obama and President Donald Trump;

Members of Congress who enacted the provisions of law in question, confirming that they intended to fully protect software without any carveouts or loopholes and that subsequent Congresses have only strengthened those protections;[10]

A member of Commission on New Technological Uses of Copyrighted Works, or CONTU, the special commission convened by Congress to advise it in the late 1970s on whether and how to protect software — confirming that software is protectable as a literary work and that CONTU considered and rejected the arguments Google raises in this litigation;[11]

The former Register of Copyrights Ralph Oman, who served during the time period that protections for software were enacted by Congress and whose role was to advise Congress on copyright matters as it drafted and implemented legislation — noting that Google’s arguments “fly in the face of long-standing principles of copyright law codified in the Copyright Act, which Congress extended to software in 1980 when it amended the Copyright Act explicitly to encompass computer programs”;[12] and

A variety of software and technology companies that depend on copyright protection to facilitate their participation in standards development as well as startup investment and innovation.

There is reason for optimism for all innovators and creators, as Rosenkranz summed up for the court:

The software industry rose to world dominance since the 1980s because of copyright protection, not unlicensed copying. And … the sky hasn’t fallen. [The] six years since the court of appeals’ first decision have brought new bursts of innovation and interoperability. In that time frame, we’ve seen the explosion of interoperability, cloud computing, 5G, machine learning, and autonomous vehicles.

Cases like Google v. Oracle illustrate how important copyright protections are to all authors in safeguarding the excruciating investment they make in taking their work from “the passable to the masterful.”[13]

[1] Brief of Respondent Oracle America Inc., Google v. Oracle, https://www.supremecourt.gov/DocketPDF/18/18-956/132891/20200212180251262_200208a%20Resp%20Brief%20for%20efiling.pdf.

[2] Brief of Petitioner Google LLC, https://www.supremecourt.gov/DocketPDF/18/18-956/127663/20200106172508533_18-956%20ts.pdf.

[3] 17 U.S.C. section 107.

[4] Brief of Amici Curiae Ten Creators’ Rights Organizations In Support of Respondent (Ten Creators Brief), https://www.supremecourt.gov/DocketPDF/18/18-956/133394/20200219112343394_18-956%20Amici%20Curiae.pdf.

[5] Transcript of Oral Argument, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/18-956_kifl.pdf.

[6] Id.

[7] Id.

[8] Ten Creators Brief.

[9] Brief of Amici Curiae Helienne Lindvall, David Lowery, Blake Morgan and the Songwriters Guild of America in Support of Respondent, https://www.supremecourt.gov/DocketPDF/18/18-956/133298/20200218155210566_18-956%20bsac%20Helienne%20Lindvall%20et%20al–PDFA.pdf.

[10] Brief of Former Congressmen as Amici Curiae in Support of Respondent, https://www.supremecourt.gov/DocketPDF/18/18-956/133486/20200219145736673_18-956%20bsac%20Former%20Congressmen.pdf.

[11] Brief of Amicus Curiae Professor and Former CONTU Member Arthur R. Miller In Support of Respondent, https://www.supremecourt.gov/DocketPDF/18/18-956/133407/20200219120149951_18-956bsacProfessorAndFormerContuMemberArthurRMiller.pdf.

[12] Brief Amicus Curiae of Ralph Oman, https://www.supremecourt.gov/DocketPDF/18/18-956/133418/20200219122526620_2020-02-19%20No.%2018-956%20Oman%20amicus%20brief%20supporting%20respondent.pdf.

[13] Joshua Rosenkranz, counsel to Oracle in closing to the court “who will invest the excrutiating time it takes to refine code from the passable to the masterful if all of it can be stolen?”

Tags Barton Beebe, CONTU, copyright, Dale Cendali, Google v. Oracle, Joshua Rosenkranz, Judge O'Malley, Ralph Oman, Sandra Aistars, Thomas Goldstein

Conferences Copyright

The Evolving Music Ecosystem Conference: Day Three Recap

Post author By Joshua Grove
Post date September 30, 2020

The following post comes from Bradfield Biggers, a graduate of Boston College Law School and Founder & CEO of Timshel Inc., a music fintech company that provides data-driven cashflow solutions to musical artists in Los Angeles, California. This is the third of three posts (see day one recap and day two recap) summarizing our three-day The Evolving Music Ecosystem conference that was held online from George Mason University Antonin Scalia Law School on September 9-11, 2020.

Rosanne Cash By Bradfield Biggers

On September 9-11, 2020, the Center for the Protection of Intellectual Property (CPIP) hosted The Evolving Music Ecosystem conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by singer, songwriter, and author Rosanne Cash.

This unique conference continued a dialogue on the music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aimed to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.

SESSION 5: THE POWER OF DATA OWNERSHIP & ANALYTICS

Access to consumer data and the ability to process and respond to it is perhaps the most valuable component of our digital global ecosystems—no matter the industry. In the music business, collecting and analyzing data about listeners and their habits is occurring on a massive scale, and it’s informing the development of new business models and platforms. But questions of ownership and data sharing loom large, as musicians increasingly realize the value of knowing more about their fans. This panel discussed the current state of data collection and analytics in the music industry and explored ways that big data can foster creative ecosystems for all stakeholders. The panel was moderated by Prof. Sean Pager of Michigan State University College of Law.

Prof. Serona Elton from the University of Miami Frost School of Music kicked off the panel by describing the various places where artist data is aggregated, such as Spotify for Artists, Apple Music for Artists, Soundcharts, and collective management organizations (CMOs). Prof. Elton emphasized that while the number of data sources and quantity of data is extraordinary, the quality of data and specificity of the sources vary drastically. Moreover, while that data is accessible to everyone, the utility and granularity of the data will vary depending on who you are and how you want to use it.

Joshua Friedlander from the Recording Industry Association of America (RIAA) then described the history of data tracking in the music industry. Data analytics became prominent in the 1990s when the RIAA was tracking roughly a billion point-of-sale transactions for recorded music annually. Nevertheless, those billion transactions have been dwarfed by the 1.5 trillion datapoints the RIAA now tracks annually in the U.S. alone. Moreover, where the data of the 1990s merely tracked when and where a record was sold, music industry data today is infinitely more complex. The music data we collect now includes the demographics of the consumer, how long they consumed the song, how often they consume it, and many more analytics that continue past the point of sale or download. As a result, record labels and marketing plans are so intricately related to data that few will approve a marketing campaign without data-backed guidance. Finally, Mr. Friedlander advised artists to retain only representatives who understand and use music data. Without looking at this data to understand the disposition of fans, contemporary artists will have a more difficult time achieving success in this data-driven music business.

Prof. Jake Linford from Florida University School of Law followed Mr. Friedlander’s discussion of the endless potential of artist data with a critical discussion of the safety and usefulness of current data collection and analytics efforts. Prof. Linford agrees that this extraordinarily granular data has unlimited potential, but he also thinks that not all aspects of its potential are positive. For example, the data technology companies collecting from your online consumption habits may be able to help artists and record labels understand what style of music is likely to create the next big pop song. Nevertheless, such data collection can also reveal potentially sensitive information about users, such as political affiliation and sexual orientation. Prof. Linford went on to discuss how this data can also allow AI-driven robots to create compositions without human intervention. While many are excited about the prospect of robot artists, this does create an interesting philosophical debate of what constitutes a creator.

Prof. Tonya Evans then led the panel into a discussion of disintermediation in the music industry. Prof. Evans explained how too many gatekeeper intermediaries in music needlessly create friction. She recommended that blockchain can streamline music distribution and remove many of these costly friction points, which would leave more money for artists. However, despite the promise of modern internet technologies, she recognized that the effectiveness of streamlining music distribution with current blockchain technology is curbed by the pervasiveness of piracy. Prof. Evans then suggested that a solution to music piracy—which could pave the way for efficient music licensing—could be through a disaggregated, decentralized network of blockchain payment and smart contracts. She anticipates that this sort of technological framework could provide the certainty and trust that music stakeholders need to distribute music securely and efficiently.

Finally, Will Page, the former Chief Economist of Spotify, began his presentation by rehashing and analyzing some of the main points made by the prior panelists. Particularly, he found blockchain to be a less capable solution in the music industry because of the issue of conflicting song metadata. Instead, he suggested the creation of a global repertoire database that would provide needed clarity in the music rights environment that regularly misattributes—or outright fails to attribute—artists to particular songs. Mr. Page later suggested that a country’s best solution to straightening out its broken song attribution status quo would be to create a natural monopoly to act as a central copyright depositor to coordinate with licensees. He then went on to stress the importance of music’s big data conversation, which he suggested should drive music innovation over longstanding industry customs. For example, the music industry continues to rely on country-level data for identifying fans because of longstanding touring customs, rather than the city-level data we have access to that is vastly superior due to its granularity.

SESSION 6: ARTIST MANAGEMENT & THE BUSINESS OF MUSIC

In today’s music business, when artists can act as their own producers, promoters, booking agents, managers, etc., is there still a need for traditional representation? What is the role of an artist manager? How has it evolved as the internet and interconnectivity have grown? This panel, moderated by Prof. Robert Heverly of Albany Law School, brought together artists, managers, lawyers, and venue owners to discuss the constant evolution of artist representation and the business of music.

Prof. Olufunmilayo Arewa from Temple University Beasley School of Law opened the panel by explaining how marginalized groups have been short-changed by record agreements in the past. Prof. Arewa described the financial discrimination and general injustice that has been felt by African American musicians for generations. For example, African American R&B artists between the 1960s and 1980s received royalty contract rates worth 20-60% of what were considered standard rates. Moreover, she noted that an additional consequence of failing to compensate African Americans and other groups fairly is that they cannot receive union sponsored health insurance. Finally, Prof. Arewa highlighted that considering the Black Lives Matter movement, there have been various proposals on how to make amends for past royalty rate inequities.

Attorney Lita Rosario carried on Prof. Arewa’s conversation about the injustices felt by marginalized groups by discussing her personal experience litigating unfair royalty agreements on behalf of African American artists. She then outlined her work in striking the down the “sharecropping” agreements between artists and record labels in favor of joint venture arrangements. Ms. Rosario noted that in the traditional sharecropping model, an artist’s royalties must recoup the recording costs before she is given any share of her royalties. In her proposed joint venture agreement, the artist would instead begin to earn royalties on the day the album breaks even. Also, Ms. Rosario noted, while it is a positive that major record labels have committed around $225 million to promote anti-racism, this gives little solace to those who continue to suffer from the chains of inequitable contracts.

Simon Tam of the award-winning band The Slants then brought home the conversation about systemic racism and marginalization in the music industry by speaking about his personal experience navigating injustice. He recalled an incident when a record executive offered his band a substantial record deal, so long as they replaced their Asian lead singer for a white person. The executive said this was because “Asians don’t sell.” Mr. Tam confronted the executive about the racism and walked out on the deal. Since then Mr. Tam and his band have leveraged online independent distribution platforms to release their music, which has allowed them to create a successful career without label involvement. However, he explained that artists who forgo record label agreements will generally need to find the right group of representatives to champion their careers. The music industry is full of complex arrangements and niches, which is extremely difficult to navigate on one’s own.

Ralph Jaccodine, who is an artist manager and a professor at the Berklee College of Music, then rounded out the panel by providing the perspectives of the record label and artist manager. Prof. Jaccodine emphasized that modern artists can no longer confine their activities just to creating music. Prof. Jaccodine believes that artists need to be able to wear a bunch of different hats in the music industry so they can delegate aspects of their business to effective representatives. Artists need to educate themselves about their business and understand how activities from concert promoting to publishing function so that they can hire the right representatives to drive their careers. Without a knowledge of their business, artists can be taken advantage of and will not know if a particular manager or agent is worth hiring. Prof. Jaccodine encourages artists that they don’t need record labels to be successful—just knowledge and a good team.

SESSION 7: SUPPORTING ARTISTS & COMMUNITIES

Recognition of and support for local artists and musicians is vital to the preservation of creative and culturally diverse communities. Whether full-time professional musicians or part-time hobbyists, creative individuals’ contributions to their communities are invaluable and difficult to measure. But like many who make a living through artistic endeavors, musicians often struggle to find steady work and lack the benefits that many of us take for granted. Musicians also often encounter mental health and substance abuse issues at a greater rate than non-artists. This panel discussed ways a vibrant music scene can benefit a community, ways that communities can give back, and resources available to musicians in need. The panel was moderated by John Good of the Washington Area Lawyers for the Arts.

Prof. Ying Zhen of Wesleyan College kicked off the panel by discussing her 2018 survey concerning the wellbeing of modern musical artists. This survey was an in-depth, multidimensional study involving 1,000 artists who identified as full-time musicians with sustainable careers and those who were transitioning into such careers. From this data, Prof. Zhen and her team were able to uncover interesting information about the modern working artist. For instance, Prof. Zhen identified that the median income from music for these artists was $35,000 per year, the median artist has around 3.5 different music income streams, and that one-third of their yearly income came from non-music sources. And while much of her research concerned the financial wellbeing of artists, Prof. Zhen also collected data on their general wellbeing. Unfortunately, this research tended to show that artists found the financial instability of music challenging, drug usage by artists in this survey was higher than the national average, and that 76% of women in music reported experiencing sexual harassment. Although these figures did not paint the rosiest portrait of artist wellbeing, Prof. Zhen hopes this survey will bring about social and financial change by educating artists and policymakers on the everyday struggles of artists.

Jennifer Leff from MusiCares then followed Prof. Zhen’s presentation by discussing the resources that MusiCares, one of the largest artist resource organizations in the world, offers to artists. Specifically, Ms. Leff spoke about MusiCare’s grant program that helps artists who are struggling financially due to the global COVID-19 crisis. To qualify for this program, artists must have five years of music industry experience or be able to show proof of six commercially released tracks. Qualifying artists can request small-quantity grants to pay personal expenses, such as rent, medical care, and other necessities. So far, MusiCare’s grant program has supported over 18,000 artists during the COVID-19 pandemic and distributed $20 million in grant relief. In addition to this grant program, Ms. Leff spoke about how MusiCares looks out for the broader music community by offering educational seminars ranging from money management and tax tips for musicians to addiction and recover information.

Yudu Gray Jr., the co-founder of House Studio, then transitioned the panel from discussing overarching artist support organizations to how artists are handling the state of the music industry today. Through his music production company, House Studio, Mr. Gray has not only helped artists create masterful music productions, but he also concedes that he has helped artists with the “boring stuff” such as LLC registrations and accounting practices. However, this more holistic approach to providing foundational artistic and business services has allowed his artists to achieve global notoriety, as in the case of the Gramm–winning artist Logic. Mr. Gray then discussed his firsthand account of watching artists he works with struggle to pay rent and access other necessities because of the COVID-19 global pandemic. He sees that technology and the music industry are trying to pivot to stay alive, which ends up leaving individual artists behind. Recognizing this inequity, Mr. Gray began to look for ways to help artists get money to finance their projects. This search resulted in House Studio connecting with technology companies like Apple and Amazon to help artists’ projects get funded. For example, Mr. Gray spoke generally of an upcoming project where artists could pitch music video ideas to an undisclosed technology company that would fund the project without demanding rights. The only catch is that the content the technology company funded would be exclusive on its platform for a period of time.

Erik Philbrook from the performing rights organization American Society of Composers, Authors and Publishers (ASCAP) rounded off the panel by providing artists with tips on how they can get compensated for their work. First, Mr. Philbrook emphasized that artists need to register their music properly so that ASCAP and other royalty distributors can identify and compensate artists for their works. Second, he noted that many artists are not collecting their full amount of performance royalties because they only register with performing rights organizations as writers. Mr. Philbrook explained that unless an artist has a relationship with a publisher, the artist herself needs to register as both a writer and publisher with her performing rights organization so that she can receive all of the performance royalties she is due. Finally, Mr. Philbrook wanted to publicize that ASCAP also supports artists with educational materials, seminars, and conferences to teach artists on how to navigate the nuances of the music industry.

CLOSING REMARKS

CPIP Executive Director Sean O’Connor closed the conference by expressing how pleased he was with how smoothly the conference operated and thanking everyone involved in making this conference possible. Prof. O’Connor provided special thanks to the CPIP team, including Prof. Sandra Aistars, Prof. Devlin Hartline, CPIP Deputy Director Joshua Kresh, Kristina Pietro, and Mary Clare Durel, for their phenomenal work behind the scenes. Additionally, Prof. O’Connor acknowledged the financial and general support of the conference’s sponsors, in particular the Recording Industry Association of America (RIAA) and Mitchell Silberberg & Knupp LLP.

Prof. O’Connor then invited artists, academics, and anyone else to join CPIP next year in a follow-up conference that he anticipates will be themed “Rebuilding the Music Ecosystem.”

Tags Bradfield Biggers, copyright, Devlin Hartline, Evolving Music Ecosystem, Kristina Pietro, Mary Clare Durel, music, Rosanne Cash, Sandra Aistars, Sean O'Connor, Sean Pager

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