Tag: Donald Trump

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Copyright

For You and Me or Private Property?: Evaluating the Copyright Claim in Woody Guthrie’s “This Land Is Your Land”

By Jason Lee Guthrie

For the Center for Intellectual Property x Innovation Policy blog, in fulfillment of obligations for the Thomas Edison Innovation Law and Policy Fellowship

Al Aumuller, Woody Guthrie, half-length portrait, facing slightly left, holding guitar 1943

In early 1940, Woody Guthrie was on the road to New York City, and he was tired. Tired of traveling. Tired of the cold. Tired of having to hobo and hitchhike his way across America (again). He nearly froze to death in a Pennsylvania snowstorm along the way. He eventually made it to New York, though, alive but exhausted.

He was also tired of hearing Kate Smith’s patriotic anthem “God Bless America” on the radio. It had been an instant hit since its debut more than a year prior, but its ubiquity bothered Guthrie as did its use of religious imagery to inspire nationalist feeling. He was so tired of hearing it that when he finally got to New York he wrote his own song in response. Entitled “God Blessed America,” the song’s first three verses were an artistic rendering of his recent travels across “golden valleys” and “diamond deserts.” The fourth verse shifted somewhat in tone, though, and perhaps revealed something about Guthrie’s philosophical outlook:

Was a big high wall there / That tried to stop me
A sign was painted / Said: Private Property
But on the back side / It didn’t say nothing
God blessed America for me

“This Land” in Court

This song would eventually replace the line “God blessed America for me” with “This land was made for you and me” and change its title to “This Land Is Your Land.” The song’s development has been discussed in previous scholarship.[1] Here, I’ll focus on revisions only insofar as they relate to its copyright claim. The validity of this claim has received significant scholarly attention in recent years and even spilled over into public discourse as the copyright has been challenged in court. Research that I conducted while completing a Thomas Edison Innovation Law and Policy Fellowship revealed important details that can reframe scholarly discourse about the copyright in “This Land,” and may inform legal arguments if it is challenged again.[2]

As of this writing, the most recent litigation occurred in 2016 when the law firm of Wolf Haldenstein Adler Freeman & Herz filed a complaint on behalf of the band Satorii against The Richmond Organization (TRO), current publishers of “This Land” and other Guthrie works.[3]  In 2015, the same firm successfully litigated a high profile case against Warner/Chappell Music, Inc. that established “Happy Birthday” in the public domain.[4] Buoyed by this success, the firm hoped to similarly invalidate the copyright claim in both “This Land” and the civil rights anthem “We Shall Overcome.”[5] While the cases involving “Happy Birthday” and “We Shall Overcome” were relatively clear-cut, the facts of the copyright claim in “This Land” are more complicated and warrant an in-depth look.

Writing – and Protecting – “This Land”

Having a song undergo several rounds of revision was a normal part of Guthrie’s creative process. Also common to Guthrie’s process was the practice of pairing original lyrics with an established melody.[6] “This Land” is an example of this practice as the melody line and chord progression are based on an old Carter Family song entitled “Little Darling, Pal of Mine,” which itself was based on a gospel hymn entitled “Oh My Loving Brother.”[7]

The original lyric sheet for “This Land” evidences its evolution as lines from the first draft are crossed out and replaced with new ones.[8] The earliest known recording of the song was made in the mid-1940s with producer Moe Asch, and by that time the references to “God Bless America” had been dropped.[9] It was recorded again in the late 1940s and a third time in 1951.[10] As initiates into the byzantine world of music copyright will know, however, copyright in these specific sound recordings is distinct from a copyright in the words and music of the song itself.

“This Land” debuted on the radio in the mid 1940s as merely one song in Guthrie’s vast repertoire. One of the ways that musical acts on the radio generated income at this time was to sell songbooks to listeners that contained the sheet music for tunes they heard on the air.[11] Guthrie had been creating such songbooks for years by this point, and in 1945 he created one that included “This Land” along with other titles. Mimeographed from a handmade manuscript and advertised at a selling price of 25 cents, this document included an explicit copyright claim on both its cover and first page.[12] Such a notice met the basic requirements for claiming copyright at the time. Moreover, Guthrie was generally aware of these requirements and had made efforts to comply with them before.[13]

Card Catalog Entry for Woody Guthrie, “This Land is Your Land,” March 30, 1956

Yet, “This Land” was not officially registered with the Copyright Office until 1956. By this time, Guthrie was profoundly debilitated by Huntington’s Disease. Management of his affairs was handled by his second wife, Marjorie Mazia Guthrie, and her designees. It is possible that when they submitted the application for copyright registration they were unaware of the songbook’s existence. In the mid-1950s, “This Land” was just beginning to achieve the popular recognition it would eventually enjoy, and a hastily drawn songbook he had made a decade prior would likely not even register on their radar as they worked to untangle the myriad contracts and assignments of rights Guthrie had signed since he arrive in New York.[14]

The question of the copyright claim’s legitimacy hangs on a comparative evaluation of the 1945 manuscript and the 1956 registration. Records in the archives of the Woody Guthrie Center demonstrate that the successive entities who managed the copyright, including TRO, believed the 1956 registration to be valid.[15] Yet, when the copyright was challenged in 2004, the Electronic Frontier Foundation (EFF) discovered the 1945 manuscript and positioned it as evidence of “first publication.”[16] That case, like the one in 2016, eventually settled without ruling on the validity of the copyright claim, but the question of first publication will be important if suit is filed again in the future. TRO correctly filed for an extension of the 1956 registration in the twenty eighth year timeframe required at the time (i.e. pre-1976 Copyright Act). If the copyright clock legally began with the publication of the 1945 manuscript, however, the extension window was missed and the song would have fallen into the public domain twenty eight years later in 1973.

Conclusion

Ultimately, if a ruling is made, it will come down to a judge’s decision on whether the 1945 manuscript should count as first publication. When I began this research, I had hoped to produce a definitive recommendation similar to what Robert Brauneis was able to do with his work on “Happy Birthday.”[17] While I am not able to say definitively whether or not the copyright claim in “This Land” is valid, I do believe the case for its validity is stronger than many previous commentators have suggested.

It does not take a professional musicologist to note several differences in the sheet music from 1945 and 1956. They are in different keys and different time signatures. The melodies notated are both recognizable as “This Land,” but they have differences that even an untrained ear can easily distinguish. There are differences in the lyrics as well. For example, the 1945 manuscript has “Canadian Mountain” in place of the more familiar “Redwood Forest” in the first verse, and that difference is just one of many. Even the title on the 1945 manuscript is simply “This Land” rather than the full “This Land Is Your Land.” These discrepancies suggest a strong case that the manuscript accompanying the 1956 registration can reasonably be considered an updated arrangement or version deserving of its own unique copyright. If a judge were to rule the 1956 registration valid, then the current copyright claim would stand as legitimate.

The stakes of “This Land”’s copyright legitimacy are not insignificant. Nora Guthrie, Woody’s daughter and President of Woody Guthrie Publications, has stated explicitly why the claim is still asserted: “Our control of this song has nothing to do with financial gain. . . . It has to do with protecting it from Donald Trump, protecting it from the Ku Klux Klan, protecting it from all the evil forces out there.”[18] In my research, I did not find any scholarship that advocated for “This Land” to become public domain that also seriously addressed the ramifications of that outcome. The copyright claim may be disputed, but it is the only thing currently keeping the song from being appropriated into any number of commercial or political purposes that would have been anathema to Guthrie. It would be ideal, perhaps, if there were a mechanism other than copyright to restrict harmful use of “This Land,” but absent such a mechanism copyright is, in this case, the only thing helping to prevent appropriation and commodification.

References

[1] Most biographies of Guthrie have a section that covers the composition of “This Land Is Your Land.” See Robert Santelli, This Land Is Your Land: Woody Guthrie and the Journey of an American Folk Song (Philadelphia: Running Press, 2012) for an accurate yet accessible narrative. See John Shaw, “The Textual History of ‘This Land Is Your Land” in This Land That I Love: Irving Berlin, Woody Guthrie, and the Story of Two American Anthems (New York: PublicAffairs, 2013), 211-218 for a more detailed analysis.

[2] Jason Lee Guthrie, “This Copyright Kills Fascists: Debunking the Mythology Surrounding Woody Guthrie, ‘This Land is Your Land,’ and the Public Domain,” Information & Culture 58, no. 1 (2023): 17-38.

[3] Plaintiff’s Complaint, ECF No. 6, Saint-Amour et al v. The Richmond Organization, Inc. (TRO Inc.), June 15, 2016, (S.D.N.Y. 2016) (No. 16 Civ. 4464).

[4] Christine Mai-Duc, “All the ‘Happy Birthday’ song copyright claims are invalid, federal judge rules,” Los Angeles Times, September 22, 2015, https://www.latimes.com/local/lanow/la-me-ln-happy-birthday-song-lawsuit-decision-20150922-story.html.

[5] Niraj Chokshi, “Who Owns the Copyright to ‘This Land Is Your Land’? It May Be You and Me,” New York Times, June 17, 2016, https://www.nytimes.com/2016/06/18/business/media/this-guthrie-song-is-your-song-a-lawsuit-claims.html

[6] See, for example, Alonzo M. Zilch’s own Collection of Original Songs and Ballads (Songbook), April 1935, Item 87, Woody Guthrie Notebooks (Diaries), Woody Guthrie Center Archives, Tulsa, Oklahoma (hereafter WGC), Guthrie’s earliest known songbook, which included the quote: “At times I cannot decide on a tune to use with my words for a song. Woe is me! I am then forced to use some good old, family style tune that hath already gained a reputation as being liked by the people.”

[7] Ed Cray, Ramblin’ Man: The Life and Times of Woody Guthrie (New York: W. W. Norton & Company, 2004), 165-166.

[8] https://www.rollingstone.com/wp-content/uploads/2022/02/This-Land-v1.jpg?w=1280

[9] Woody Guthrie, “This Land Is Your Land (Alternate Version),” c. mid-1940s, on Woody at 100: The Woody Guthrie Centennial Collection, Smithsonian Folkways, 2012.

[10] See Woody Guthrie, “This Land Is Your Land”, c. late-1940s, on This Land Is Your Land: The Asch Recordings, Vol. 1, Smithsonian Folkways, 1997; and Woody Guthrie, “This Land Is Your Land,” 1951, on This Land Is My Land: American Work Songs: Songs to Grow On, Vol. 3, Smithsonian Folkways Archival, 2007.

[11] Peter La Chapelle, I’d Fight the World: A Political History of Old-Time, Hillbilly, and Country Music (Chicago: The University of Chicago Press, 2019), 165-166.

[12] “‘Ten Songs of Woody Guthrie’ 1945 Pamphlet,” Electronic Frontier Foundation, June 29, 2007, https://www.eff.org/document/ten-songs-woody-guthrie-1945-pamphlet.

[13] See, for example, Copyright Office to Woody Guthrie, September 22, 1937, Series 4, Box 6, Folder 3, Maxine Crissman “Woody and Lefty Lou” Radio Show Collection, WGC; and Copyright Office to Woody Guthrie, n.d., Series 4, Box 6, Folder 4, Maxine Crissman “Woody and Lefty Lou” Radio Show Collection, WGC.

[14] Joe Klein, Woody Guthrie: A Life, 2nd ed. (New York: Random House, 1999), 430-432.

[15] See, for example, Harold Leventhal to Woody Guthrie, August 27, 1956, Series 2, Box 2, Folder 13, Woody Guthrie’s Correspondence Collection, WGC; Harold Leventhal to Cisco Houston, November 25, 1958, Series 3, Box 1, Folder 10, Harold Leventhal Collection, WGC; Al Brackman to Harold Leventhal, January 13, 1959, Series 1, Box 1, Folder 16, Harold Leventhal Collection, WGC; Jay Mark to Harold Leventhal, December 7, 1959, Series 3, Box 1, Folder 8, Harold Leventhal Collection, WGC; Al Brackman to Harold Leventhal, December 22, 1959, Series 1, Box 1, Folder 16, Harold Leventhal Collection, WGC; and Howard S. Richmond to Harold Leventhal, December 28, 1959, Series 3, Box 1, Folder 8, Harold Leventhal Collection, WGC.

[16] Fred von Lohmann, “This Song Belongs to you and Me,” Electronic Frontier Foundation, August 24, 2004, https://www.eff.org/deeplinks/2004/08/song-belongs-you-and-me; and Parker Higgins, “This Song (Still) Belongs to You and Me,” Electronic Frontier Foundation, February 2, 2015, https://www.eff.org/deeplinks/2015/02/song-still-belongs-you-and-me.

[17] Robert Brauneis, “Copyright and the World’s Most Popular Song,” Journal of the Copyright Society of the U.S.A 56, no. 2–3 (Winter-Spring 2009): 335–426.

[18] Ben Sisario, “A Fight to Make ‘We Shall Overcome’ and ‘This Land is Your Land’ Copyright Free,” New York Times, July 12, 2016, https://www.nytimes.com/2016/07/13/business/media/happy-birthday-is-free-at-last-how-about-we-shall-overcome.html. For an interesting account of the relationship between Woody Guthrie and Donald Trump’s father Fred, see Will Kaufman, “Woody Guthrie, ‘Old Man Trump’ and a real estate empire’s racist foundations,” The Conversation, January 21, 2016, https://theconversation.com/woody-guthrie-old-man-trump-and-a-real-estate-empires-racist-foundations-53026. For a recent example of appropriation, see Daniel Desrochers, “Woody Guthrie’s family to Josh Hawley: Stop using his lyrics, ‘insurrectionist’,” The Kansas City Star, March 13, 2023, https://www.kansascity.com/news/politics-government/article272998185.html.

Categories
Copyright Infringement Journalism

Trump Interview Lawsuit Exposes Uncertainty in a Corner of Copyright Law

Will Donald Trump’s lawsuit against Bob Woodward and publisher Simon & Schuster[1] finally resolve the question of who owns the copyright over interviews? While the complaint has other challenges, it calls out a surprisingly muddled and unresolved area of copyright law.

One might assume that the copyright ownership of interviews is a settled question. But two major questions have never been resolved:

    1. Are interviewee’s responses to an interviewer’s questions copyrightable?
    2. If they are, then who owns that copyright?

C-IP2 2022-2023 Edison Fellow Mary Catherine Amerine presciently identified and analyzed these issues in a 2017 article in the Marquette Intellectual Property Law Review.[2] We relied on her article and current expertise in producing this blog post.

Courts were considering the first question as early as the 1960s, when the estate of Ernest Hemingway claimed that Papa Hemingway, a book that included lengthy quotes from conversations between Hemingway and an interviewer, infringed the estate’s copyright over the interviews themselves.[3] The court ruled on an implied license theory and thus dodged the copyrightability of Hemingway’s conversational statement as captured in an audio recording. In dicta, the court speculated that an interviewee would need to make some clear statement bracketing parts of their extemporaneous responses to an interviewer’s questions “to mark off the utterance . . . from the ordinary stream of speech, . . . to adopt it as a unique statement and that he wished to exercise control over its publication.”[4]

A decade later, a different court employed different reasoning to rule against Jerry Falwell’s copyright infringement claims for republication of interviews in Penthouse Magazine.[5] Whereas the Hemingway dicta suggests that copyrightability turns on an objective manifestation by the interviewee that a particular oral statement has the requisite authorial intent and thus is not mere extemporizing, the Falwell holding turns on whether the content of the particular oral statement is “concrete” enough to indicate authorial intent.[6] This holding then curiously (albeit perhaps unintentionally) imports patent law’s exclusion of “abstract ideas” from patent eligibility into copyright law: “However different or unique plaintiff’s thoughts or opinions may be, the expression of those opinions or thoughts is too general and abstract to rise to the level of a literary or intellectual creation . . . .”[7]

Courts have followed this reasoning ever since, distinguishing off-the-cuff extemporizing typical of unrehearsed oral responses to media questions from the sort of carefully planned oral statements of executives of publicly traded companies on analysts’ earnings calls.[8] At the same time, some courts have upheld copyright in the interviewer for interview quotes as a compilation (which avoids ownership of individual quotations).[9]

While the exact contours of whether there is copyright in any particular interview source material are still not clear, the question of who holds that copyright, should it exist, is even less certain. Trump’s Complaint requests a declaratory judgment for his ownership of the entirety of the interview’s sound recordings,[10] audiobook, and all derivative works, or, in the alternative, “copyright in his responses . . . . ”[11] Trump’s ownership of the entire copyright in the interviews would be unprecedented; no court has held that an interviewee could own the copyright over an entire interview. But the question of ownership of the copyright to an interview—in whole or in part—turns on three other questions:

    1. Can the interviewer seek to claim copyright of all contents of the interview on the theory that they directed and recorded the interview?
    2. Can neither party own copyright to the other’s statements because they did not create or make them, and hence each owns only their own contribution (“divided copyright”)?
    3. Should the entirety be viewed as a work of joint authorship by the interviewer and interviewee?

The court in Suid v. Newsweek Magazine, addressing a reporter’s attempt to claim the entirety of copyright in interviews he conducted, adopted “B” and divided copyright: “The author of a factual work may not, without an assignment of copyright, claim copyright in statements made by others and reported in the work because the author may not claim originality as to those statements.”[12] By contrast, the court in Foundation for Lost Boys v. Alcon Entertainment, LLC was inclined to adopt “C” when it held that interviewee plaintiffs had pled facts sufficient to support a finding of joint authorship with interviewer defendants. Ruling on defendants’ motion to dismiss, the court rejected the argument that plaintiffs’ interview responses were not copyrightable, as telling “personal stories in response to questions designed to elicit material” likely rose to the required level of creativity. Further, the court held that “[T]he interplays between prompts and responses in the Interviews necessarily merged the respective contributions of the [Plaintiffs and interviewers] into inseparable parts of a whole,” even though the refugees had not specifically asserted that they had intended to create a joint work.[13] However, the case settled, leaving the interview copyright ownership question unanswered.

A final wrinkle in interview copyright cases arises when the party asserting copyright does not have physical custody of the interview materials and so cannot register the copyright with the U.S Copyright Office. Parties in similar circumstances have attempted to skirt this issue by positioning their claims as declaratory judgment actions rather than directly claiming infringement, as copyright registration is a requirement for filing a copyright infringement lawsuit. These declaratory judgment actions have generally requested that the court grant an injunction requiring defendants to provide copies of the work in question to allow the plaintiffs to register their copyright. So far, courts have been divided on whether this strategy is a permissible circumvention of the copyright registration requirement.

In Johnson v. Magnolia Pictures LLC, the court granted a motion to dismiss by a producer who created a movie about comedian Gilda Radner based on recorded interviews found in an attic. The court ruled that a declaratory judgment is not an independent cause of action that could survive without the underlying copyright infringement claim, which was itself dismissed for lack of copyright registration.[14] Similarly, in Whistleblower Productions, LLC v. St8cked Media LLC, the court dismissed a copyright infringement case because even as plaintiff claiming ownership of the interview footage used to make a documentary, they did not possess the footage and hence had been unable to register the copyrights.[15] But in Lost Boys, the Sudanese refugees case, the court stated that if the refugees proved facts sufficient to show copyright infringement in a trial on the merits, then they would be entitled to an injunction compelling defendants to turn over the interview materials needed for the plaintiffs to register the copyrights.[16]

Trump’s lawsuit faces a similar registration challenge: the Complaint conspicuously fails to plead that Trump has a copyright registration. According to Trump’s attorney, he was unable to register the copyright because he does not have the interview tapes.[17] Thus, similar to the cases above, he does not plead copyright infringement directly, but instead seeks a declaratory judgment that he owns the interview copyright, in whole or in part. However, distinct from the above cases, Trump does not currently seek an injunction to obtain the interview materials copyright registration. Further, because Trump has filed in the U.S. District Court for the Northern District of Florida, where no local or circuit decisions bind the court on these issues, it is unclear whether the court will allow the suit to proceed as an action for declaratory judgment, or whether the lack of copyright registration will be fatal.

If Trump’s suit survives the likely motion to dismiss for lack of copyright registration, then the court would still need to decide whether to find no copyright, divided copyright, sole copyright owned by either Trump or Woodward (or Simon & Schuster), or joint authorship. Trump has already sought to reject the latter, pleading in the Complaint that “President Trump never sought to create a work of joint authorship, and in the hours of the Interviews, there is neither allusion to nor confirmation of such.”[18] The Lost Boys decision indicates that this lack of intent does not necessarily preclude joint authorship, as interview questions and responses may be “inseparable or interdependent parts” that create a “unitary whole.”[19] However, this is the only case that has directly addressed the possibility of joint authorship of an interview in these circumstances. It remains to be seen whether the court would find this reasoning persuasive or would return to earlier decisions to hold either that interview responses cannot be copyrighted at all, or that interview questions and responses are protected by two separate copyrights owned by the interviewer and interviewee, respectively.[20]

Regardless of the outcome of Trump’s case, this high-profile lawsuit has made it impossible to ignore the unsettled nature of a copyright question that has been long overlooked.

[1] Trump v. Simon & Schuster, Inc., Case No. 3:23-cv-02333-RV-ZCB (Dkt. 1, Complaint, Jan. 30, 2023).

[2] 21 Marq. Intell. Prop. Rev. 159 (2017) available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2878800. Drafts of the article won both AIPLA’s Robert C. Watson National Writing Award and the Virginia State Bar Intellectual Property Section’s Student Writing Competition. Amerine is currently an associate at Shearman & Sterling.

[3] Estate of Hemingway v. Random House, Inc., 244 N.E.2d 250 (N.Y. 1968). While this and the Falwell case discussed below were brought under common-law copyright, the courts’ analyses are still relevant to the copyright of interviews under the Copyright Act of 1976.

[4] Id. at 256.

[5] Falwell v. Penthouse Intern., Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

[6] “There is nothing concrete which distinguishes his particular expression of his ideas from the ordinary.” Id. at 1208.

[7] Id. Notwithstanding, the court also relied in part on the reasoning of the Hemingway dicta: “the actual dialogue, including the unprepared responses of plaintiff, was spontaneous and proceeded in a question and answer format. There is no defined segregation, either by design or by implication of any of plaintiff’s expressions of his thoughts and opinions on the subjects discussed which would aid in identifying plaintiff’s purported copyrighted material.”  Id.

[8] Compare Taggart v. WMAQ Channel 5 Chicago, No. 00-4205-GPM, 2000 WL 1923322 at *5 (S.D.

Ill. Oct. 30, 2000) (“comments during the interview were unprepared and spontaneous responses,” and therefore “simply do not rise to the level of a literary or intellectual creation enjoys the protection of the copyright law.”) with Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 808 F. Supp. 2d 634, 638 (S.D.N.Y. 2011) (oral statements of executives “possess the requisite creativity to qualify for copyright protection.”).

[9] Quinto v. Legal Times of Washington, Inc., 506 F. Supp. 554 (D.D.C. 1981).

[10] The question of sound recordings adds a layer of complexity beyond the scope of this post. It will be addressed in a subsequent post.

[11] Trump v. Simon & Schuster, supra Note 1 at ¶¶ 64-65.

[12] Suid v. Newsweek Mag., 503 F. Supp. 146, 147 (D.D.C. 1980).

[13] Foundation for Lost Boys v. Alcon Ent., LLC,  No. 1:15-CV-00509-LMM, 2016 WL 4394486 at *2-4 (N.D. Georgia Mar. 22, 2016).

[14] Johnson v. Magnolia Pictures LLC, No. 18 CV 9337, 2019 WL 4412483, at * 1-2 (S.D.N.Y. Sept. 16, 2019) (reconsideration denied, Johnson v. Magnolia Pictures LLC, No. 18 CV 9337, 2019 WL 5569610 (Oct. 29, 2019). The interviews formed the basis of the film Love, Gilda.

[15] Whistleblower Prods., LLC v. St8cked Media LLC, No. 18-CV-5258, 2019 WL 3082482 (E.D.N.Y. July 15, 2019)

[16] Found. for Lost Boys and Girls of Sudan, Inc. et al v. Alcon Ent. at *9.

[17] Kyle Jahner, Trump’s Woodward Lawsuit Called Flawed, Intriguing by IP Lawyers, Bloomberg News, Feb. 3, 2023, available at https://news.bloomberglaw.com/ip-law/trumps-woodward-lawsuit-called-flawed-intriguing-by-ip-lawyers#:~:text=Trump’s%20Woodward%20Lawsuit%20Called%20Flawed%2C%20Intriguing%20by%20IP%20Lawyers,-By%20Kyle%20Jahner&text=Former%20President%20Donald%20Trump’s%20copyright,property%20rights%20over%20recorded%20interviews.

[18] Trump v. Simon & Schuster, supra Note 1 at ¶ 47.

[19] Found. for Lost Boys and Girls of Sudan, Inc. et al v. Alcon Ent. at *8.

[20] A fourth alternative, not yet adopted by courts but proposed by Amerine in her article, is that the journalist own copyright over the entire interview as the “mastermind” who controls the project and can be considered the “author” under the Ninth Circuit’s authorship analysis in Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000). Supra note 2 at 182-184.

Categories
Copyright

Copyright Notebook: The Importance of Artists’ Agency

the word "copyright" typed on a typewriterI am looking forward to hosting a keynote conversation with Grammy-winning composer, performer, songwriter, best-selling author, and essayist Rosanne Cash this week at CPIP’s The Evolving Music Ecosystem conference. One part of Rosanne Cash’s “music ecosystem” is the Artist Rights Alliance (ARA), where she serves as a member of the board. Preparing for that conversation, I am thinking a lot about the importance of artists’ agency. Over the summer, the ARA “rebooted,” relaunching itself with a powerhouse music council of artists and experts. The ARA is “an alliance of working musicians, performers, and songwriters fighting for a healthy creative economy and fair treatment for all creators in the digital world. [They] work to defend and protect artists, guided by [their] Artists’ Bill of Rights, which outlines fundamental principles for today’s music economy.”

Those principles:

The Right to Control Our Work
The Right to Economic and Artistic Freedom
The Right to Attribution and Acknowledgment
The Right to a Music Community
The Right to Competitive Platforms
The Right to Information and Platform Transparency
The Right to Political Participation

 

All share one core attribute—an artist’s agency—over their work, their livelihood, their community, themselves. That the ARA found it necessary to relaunch this summer is not surprising. The triple threat of a pandemic decimating artists’ livelihoods, the surging power of technology platforms, and the challenges of ensuring one’s work is not distorted by others or used to send disagreeable political messages has heightened awareness among artists about the issues for which ARA stands.

Several notable lawsuits have also brought these issues to the forefront this summer that may shape the nature of artists’ agency over their work for years to come. Here are some thoughts about why they are significant and some issues you may not have noticed.

Hachette Book Group et al. v. Internet Archive

On June 1, 2020, four of the world’s preeminent publishing houses sued Internet Archive (IA) for willful mass copyright infringement. The IA styles itself an online library, open to anyone to borrow books, music, and other works. It scans millions of copyrighted as well as public domain works and makes them available to “borrowers” for free. It had previously operated under an already controversial policy of “controlled digital lending” (more on that below), but in response to the COVID-19 pandemic, dropped even these minimal restrictions on its distribution of works. As the Authors Guild put it in an open letter to the IA:

[B]y declaring a spurious “copyright emergency” and making a massive trove of copyrighted books available for free without any restrictions, Internet Archive has demonstrated a shocking disrespect for the rule of law—the cornerstone of our civil, democratic society—at a time when we most need it to prevail. You cloak your illegal scanning and distribution of books behind the pretense of magnanimously giving people access to them. But giving away what is not yours is simply stealing, and there is nothing magnanimous about that. Authors and publishers—the rights owners who legally can give their books away—are already working to provide electronic access to books to libraries and the people who need them. We do not need Internet Archive to give our works away for us.

 

In their complaint, the publishers argue that IA’s assertion that it should not be liable for infringement is based on “an invented theory called ‘Controlled Digital Lending’ (‘CDL’)—the rules of which have been concocted from whole cloth and continue to get worse.” As the complaint sets forth:

[A]t first, under this theory IA claimed to limit the number of scanned copies of a title available for free download at any one time to the number of print books of that title in its collection—though no provision under copyright law offers a colorable defense to the systematic copying and distribution of digital book files simply because the actor collects corresponding physical copies. Then, in the face of the COVID-19 pandemic, IA opportunistically seized upon the global health crisis to further enlarge its cause, announcing with great fanfare that it would remove these already deficient limitations that were purportedly in place. Today, IA offers an enormous universe of scanned books to an unlimited number of individuals simultaneously in its “National Emergency Library.” IA’s blatant, willful infringement is all the more egregious for its timing, which comes at the very moment that many authors, publishers, and independent bookstores, not to mention libraries, are both struggling to survive amidst economic uncertainty, and planning deliberatively for future, changing markets.

 

The publishers’ lawsuit is important because it is the first “live” judicial challenge to the legal theory of “controlled digital lending”—a legal theory which was announced by certain academics and internet advocates in 2018. They argue that it should be fair use for libraries to scan or obtain scans of physical books they own and lend them electronically, provided certain restrictions are applied, such as limitations that attempt to emulate the limitations of lending in the physical world (e.g., limits on lending periods and on numbers of copies that can be loaned at a given time).

I refer to this as the first “live” judicial challenge because, while it is the first time CDL has been challenged in the courts, the supporters of CDL sought and failed to receive the blessing of the Second Circuit for IA’s original Open Library service when that court was reviewing the decision in Capitol Records v ReDigi. Unsurprisingly, the court declined to do so. In an opinion written by Judge Leval, the Second Circuit rejected ReDigi’s and its amici’s fair use argument because market harm would be likely since the sales of ReDigi’s digital files would compete directly with those of Capitol Records. Because “used” digital files do not deteriorate like used physical media, there would be no reason for customers to buy new licenses from Capitol Records if they could obtain the files from ReDigi at a lower price.

One imagines that the impact of free CDL on e-book sales would only be worse—first, because it is free, rather than merely a reduced price for “used” files, and second, because it would be usurping a valuable market authors and publishers have continued to actively develop and license for several years since the ReDigi decision. This includes licensing to libraries for free lending via services like OverDrive. It is likewise significant that the “Emergency Library” at issue in the publishers’ case against IA is far less restricted than the version of IA’s “Open Library” the amici sought and failed to have blessed by the Second Circuit in ReDigi.

Maria Schneider et. al. v. YouTube

Another case to watch is the class action lawsuit filed by composer and jazz performer Maria Schneider against YouTube and its parent companies Google and Alphabet in July. The lawsuit alleges that “YouTube has facilitated and induced [a] hotbed of copyright infringement [on its website] through its development and implementation of a copyright enforcement system that protects only the most powerful copyright owners such as major studios and record labels.” Because members of the class are denied access to the copyright management tool YouTube offers its corporate partners—Content ID—the lawsuit alleges that rather than preventing repeat infringements of works, the tool “actually insulates the vast majority of known and repeated copyright infringers from YouTube’s repeat infringer policy, thereby encouraging its users’ continuing upload of infringing content.”

This is all part of a deliberate strategy, according to the complaint:

Defendants Alphabet, Google, and YouTube reap billions of dollars annually from the online hosting of videos, including millions of works that infringe on the exclusive copyrights of Plaintiffs and the Class. Defendants permit and facilitate this infringement because it furthers their growth and revenue strategies and because they have determined that Plaintiffs and the Class—unlike YouTube’s preferred Content ID partners—lack the resources and leverage necessary to combat copyright infringement on the scale at which it is perpetuated on YouTube.

 

Maria Schneider argues many of the same things she and other artist advocates have asserted before Congress, the U.S. Copyright Office, and the U.S. Patent and Trademark Office in hearings and roundtable proceedings exploring the provisions of Section 512 of the Digital Millennium Copyright Act (DMCA):

Faced with litigation by major music studios and other significant rights holders, Defendants have crafted distinct and disparate systems of copyright “enforcement” on their platform. For those entities with vast stores of copyright material and thus the leverage to require Defendants to appease their copyright management concerns, YouTube created its Content ID program, which allows qualifying copyright owners automatically to identify and manage their content on YouTube. . . . Smaller rights holders, including [Schneider], are, however, denied access to Content ID and thus are relegated to vastly inferior and time-consuming means of trying to police and manage their copyrights such as scanning the entirety of YouTube postings, searching for keywords, titles, and other potential identifiers.

 

They must then send notices identifying infringements URL by URL, filling out cumbersome webforms, often laden with advertising, struggle with captcha codes, and contend with requests for additional information or challenges from employees reviewing the requests.

While many artists have neither the pocketbook nor the backbone to stand up to an adversary like YouTube in federal court, this lawsuit seems particularly well-timed given that the ongoing focus on Section 512 in multiple government venues over the past decade has developed a solid record articulating the scope and the magnitude of the problem, as well as that the complaints against YouTube and other web platforms by individual artists seem to be almost universally shared.

Regardless of Maria Schneider’s lawsuit, the Senate and the U.S. Copyright Office are not done considering the issue. The Copyright Office released its much-anticipated Section 512 Report earlier this May and engaged in a subsequent exchange of letters with Senators Thom Tillis and Patrick Leahy regarding additional statutory clarifications that the Senate might consider and other approaches that could improve the operation of the DMCA without legislative amendment. Among the issues addressed in that letter is a request from the Senators to the Copyright Office to conduct stakeholder meetings to identify and adopt standard technical measures (STMs) as was anticipated in Section 512(i) of the DMCA. It is notable that Maria Schneider has herself been an active participant in the Copyright Office’s Section 512 proceedings, and in February of 2017, she submitted comments to the Copyright Office urging that Content ID be recognized as a STM under the DMCA and that all creators be granted access to it in order to be able to more efficiently police YouTube’s platform. The Copyright Office did not take up her suggestion.

In answer to the Tillis/Leahy request, on June 29, 2020, the Copyright Office responded in part that it will convene virtual meetings in late summer/early fall “focused on identifying any potential obstacles to the identification of potential STMs, as well as the requirements that must be met in order to adopt and implement an STM,” and to “begin identifying the kinds of technologies that may meet the statutory definition. Once the bounds of potential qualifying technologies have been identified, the Office would then convene further discussion to evaluate whether individual technologies meet the other requirements of section 512(i), including discussions to learn more about the terms upon which the technologies are offered in the marketplace.”

To date, hypothetical discussions (as well as lawsuits and licensing) have focused on digital fingerprinting technologies. Such technologies are designed to identify content by taking a “fingerprint” of a file that is being or has been uploaded to a platform and matching it to a database of sample content submitted by copyright owners. Regardless of the technology identified as an STM, the challenge may come not from choosing the technology, but rather in applying it. What one copyright owner is willing to tolerate in the name of marketing and fan word of mouth, another will not be. What a technology platform may set the technology to overlook, a filmmaker on the eve of a festival premiere will consider a “match.” Hence the importance of artists’ agency. Or as the ARA would have it: the right to competitive platforms and the right to information and platform transparency. Unless artists are informed about the STMs platforms apply and how they apply them, and unless they have the ability to keep their work from platforms that don’t meet their requirements, identifying an STM on its own won’t make much of a difference. Without artists’ agency and the right to control what happens to their creative output, we may just have the digital fingerprint version of the notice-and-takedown “whack-a-mole” game.[1]

Neil Young v. Donald J. Trump for President

Musicians have perpetually battled with political campaigns over the unauthorized use of their music at rallies and other campaign events. Given the particularly heated nature of this year’s presidential contest, it is perhaps not surprising that Neil Young has sued the Trump campaign for copyright infringement for publicly performing his musical works Rockin’ in the Free World and Devil’s Sidewalk at numerous campaign rallies and events, including one in Tulsa, Oklahoma. The complaint alleges: “The Campaign has willfully ignored Plaintiff’s telling it not to play the Songs and willfully proceeded to play the Songs despite its lack of a license and despite its knowledge that a license is required to do so.”

Neil Young is not the only musician battling the Trump campaign. Leonard Cohen’s estate is considering whether to file suit for the campaign’s use of Halleluiah during the last night of the Republican National Convention, and the Rolling Stones are working with ASCAP and BMI to persuade the Trump campaign to stop playing You Can’t Always Get What You Want at rallies. Campaigns typically assert that they are permitted to play any songs included in the Performing Rights Organizations’ political entities licenses, from which artists may seek to exclude their works if they object to use at political rallies. The allegations by Neil Young, the Cohen estate, and the Stones seem to be that the particular uses by the Trump campaign have gone beyond what a venue license for a political gathering envisions and that the campaign is instead using the songs to either distort their meaning or suggest an endorsement by the artist.

As the members of the Artist Rights Alliance wrote to all of the Republican and Democratic National Campaign Committees this July: “Like all other citizens, artists have the fundamental right to control their work and make free choices regarding their political expression and participation. Using their work for political purposes without their consent fundamentally breaches those rights—an invasion of the most hallowed, even sacred personal interests.”

These lawsuits are interesting because, until now, due to a combination of the veneer of protection offered by the venue licenses, and the time constraints imposed by campaign season, the only viable mechanism for discouraging unwanted uses of an artist’s work by a campaign has been public shaming via social media or statements by the artist publicly disowning and rejecting the candidate. Consequently, neither the moral rights or right of publicity-like qualities of the complaints nor the availability of damages for the infringing use have been explored. Since the Trump campaign is unlikely to settle a lawsuit, this case may define the boundaries of political entities licensed uses or add a new tool to musicians’ arsenals in ensuring they are not unwillingly conscripted into the service of a campaign they do not support.

RIP Matt Herron[2]

A civil rights era photographer I admired and came to know when I was CEO of the Copyright Alliance—Matt Herron—recently passed. Matt was inspiring on many levels. He described himself as an “activist with a camera,” and he covered some of the most meaningful moments in the effort to gain voting rights for Black people in the 1960s—including the Selma to Montgomery march.

“I photograph things I believe in. I try to photograph the things that are important in my life,” said Herron during a panel I moderated in 2011. He felt so strongly about what he saw happening in the 1960s south that he picked up his family and moved from Philadelphia to Mississippi because he thought they could be more relevant there. In doing so, through his photographs, he gave countless generations a front row seat to history. He described the five days he spent documenting the march from Selma to Montgomery:

As photographers, we are mostly voyeurs. We stand a little bit aside from an event. Part of our mind is clicking through F Stops and the rest of it is trying to figure out where images and angles are. But sometimes something happens that sucks us in and we lose that voyeuristic element and become part of the event itself. Certainly for me, the Selma March—five  days of walking in rain and sunshine and all kinds of conditions—was one of those moments. I have no memory of where I slept, what I ate, how I handled any of my basic physical problems. All I remember is the camera, the walking, and the faces.

 

Matt Herron lived by the copyright of his photographs and used them to further education about the social causes he covered. Besides the Selma march, he shot whaling protests by Greenpeace and the AIDS quilt. He explained that copyright laws help him keep collections of his images together and allow him to present them for the benefit of the causes covered:

I’ve put some effort into making not just single photographs but collections. I have historical collections and copyright allows me to decide how these images will be presented and how these historical moments can be disseminated. If I didn’t own the copyright some of these pictures of Martin Luther King might be used to advertise shoes. As it is, I can disseminate these images in ways that add to our national heritage, in educational ways for school children and to preserve a piece of history. Copyright allows me to retain this control not so I can keep them to myself but present them to the world in a way that’s coherent.

 

Matt Herron’s lifetime of work demonstrates in a way that is perhaps clearer this summer than any in recent memory why ensuring that artists are guaranteed agency over their creative output—whether they be photographers chronicling our history, musicians expressing our yearning, or authors giving words to our conscience—is crucial to democracy.

[1] Although it is approximately a decade old, this article, The (Im)possibility of “Standard Technical Measures” for UGC Websites, written by then student, now partner at Wilson Sonsini, Lauren Gallo, is the most thorough, balanced, and articulate examination of the issues the USCO is undertaking to date. Gallo notes that already in 2011 when her note was published, rights owners and UGC service providers were deploying fingerprinting technology to protect copyrighted works on the internet and operate repeat infringer policies. She writes: “In light of the widespread use of this successful technology and Congress’ mandate that ‘standard technical measures’ be developed ‘expeditiously,’ individual or infrequent holdouts should not obstruct the consensus necessary to define the term. . . . [F]ingerprinting technology should qualify as ‘standard technical measures’ under section 512(i), so that right holders and service providers may be on notice of their statutory obligations and may continue to develop ‘best practice’ applications for that technology.”

Ms. Gallo’s current practice focuses on novel legal questions online, involving among other issues, the Digital Millennium Copyright Act, and she has represented Google and YouTube in cases challenging their decisions regarding whether or not to remove or limit access to online content.

[2] Portions of this section appeared as a blog post in June of 2011 on the Copyright Alliance website, when I was CEO of that organization.