Copyright Law Ronald W. Staudt

Class 20November 5, 2013

Class Overview

Right to Make Phonorecords Musical compositions and compulsory licenses--115

Karaoke, ringtones, XM-MP3 Reproduction rights in sound recordings—114

Remix, mash ups and Bridgeport

Performance Right in Musical Works and Sound Recordings Musical composition performance right Sound recording performance right by digital audio transmission 106(6)

Right of Public Performance and Display Sect 106(4)- performance Sect 106(5)- display

Perfect 10 v. Amazon

Reproduction Right in Musical Works

Musical works and sound recordings on phonorecords

Mechanical License to reproduce and distribute phonorecords of nondramatical musical works—Sect 115 Prior distribution to the public Mechanical license intended for distribution of

phonorecords to the public for private use Imitation, rearrangement, derivative limit

Section 115---Availability and Scope of Compulsory License

1) When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person, including those who make phonorecords or digital phonorecord deliveries, may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work.

*** (2) A compulsory license includes the privilege of making a

musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.

Reproduction Right in Musical Works

Musical compositions and compulsory License under 115

ABKCO Music Inc.—karaoke?

CD+G = phonorecord? Compulsory license royalty growth Harry Fox License

Digital delivery (iStore)

Ringtones?

Reproduction Rights In Sound Recordings

Reproduction rights in sound recordings—114

Remix, mash ups and Bridgeport

•Elvis Costello – Radio, Radio•Gregg Gillis- Girl Talk authoring

§ 114. Scope of exclusive rights in sound recordings

(a) The exclusive rights of the owner of copyright in a sound recording are limited to the rights specified by clauses (1), (2), (3) and (6) of section 106, and do not include any right of performance under section 106(4).

(b) The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality. The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.

Bridgeport

by clarifying the rights of a sound recording copyright owner in regard to derivative works, Section 114(b) makes it clear that the digital sampling of a copyrighted sound recording must typically be licensed to avoid an infringement . . . . The import of this language is that it does not matter how much a digital sampler alters the actual sounds or whether the ordinary lay observer can or cannot recognize the song or the artist's performance of it. Since the exclusive right encompasses rearranging, remixing, or otherwise altering the actual sounds, the statute by its own terms precludes the use of a substantial similarity test."

Phonorecords-musical works and sound recordings reproduction rights overview

Professor Bell’s table.

Reproduction rights in musical works - compulsory license under 115 ABKCO Music Inc.—karaoke? CD+G = phonorecord? Royalty growth, Harry Fox, Digital delivery (iStore)

Reproduction rights in sound recordings under 114 Digital sampling-Bridgeport Audio Home Recording Act—Rio and XM-MP3

Performance Right

Musical Works

ASCAP and BMI

Sound Recordings In 1995 Sound recording performance right by digital audio

transmission– Section 106(6)—” in the case of sound recordings, to

perform the copyrighted work publicly by means of a digital audio transmission.”

• Three tiersPerformance, distribution and reproduction?

Performance Rights

Is it a performance? Allen v. AGLOA US v. ASCAP

In re Cellco Partnership-ring tones

Is it public? Redd Horne Aveco Cartoon Network v. CSC Holdings WNET v. Aereo Fox Television v. BarryDriller Warner Bros v. WTV Zediva

Is it exempt? Questions on 764-5

§ 106.  Exclusive rights in copyrighted works

Subject to sections 107 through 121, the owner of a copyright under this title has the exclusive rights to do and to authorize any of the following:

***    (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; ***    (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

To "perform" a work means

to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

To perform or display a work "publicly" means--

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Public Performance and DisplaySect. 106(4), (5), & (6)

Allen v. AGLOA US v. ASCAP

Contemporaneous perceptibility—downloads v. streaming In re Cellco Partnership-ring tones

Columbia Pictures v. AvecoPublic? Compare Redd HorneFirst sale doctrine?Columbia Pictures v PREI (hotel rooms and vcrs)On Command Video v Columbia (hotel rooms and transmissions)

Cartoon Network Transmit clause and “potential audience” Question of framing?

Arroyo Server

Primary ingest buffer

Secondarybuffer

Discstorage

“ReservationDatabase”

?

Trash

Yes

ReadyTo watch

Programs

Programs

1

3.5

8

3

2

5

4

7

6

“Reservations”

Delayed programperformed

0.1 sec1.2 sec

Professor Perritt’sCartoon Network Diagramw/ RWS amendments

BMR1.2 sec

WNET v. Aereosupp. at 109

Is an Aereo transmission a public performance?1. Capable of being received by the public2. No aggregation if copies are individual3. Multiple private transmission from one copy

are aggregated4. Limits on potential audience are relevant

Dissent distinguishes Cablevision…Remote dvr used with licensed stream different from

unlicensed copy delivered to internet

Fox Television Stations v. BarryDrillersupp. at 113

Rejects 2nd circuit majority in Cablevision & WNET

Sect 101: “whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

Performance of the work, not performance of the performance???

Fortnightly and CATV cases

Warner Bros v. WTV

Zediva Streams New Releases Through Copyright LoopholeBy Ryan Singel 03.16.11Quite simply — the company literally rents you a DVD and a DVD player, with your computer, tablet or Google TV as the remote control. Unlike the other streaming movie services, Zediva doesn’t turn a movie into a file on its servers that it can serve to as many users as care to see it at once.

Instead, Zediva’s servers have DVD drives and actual DVDs. So when you rent a movie, that disc goes out of circulation until you release it back to the company, just like in one of those increasingly rare real-world video stores.

And like those video stores, Zediva doesn’t need to get permission from the studios to rent out discs, since once they buy the DVD they are free to rent it out or re-sell it, thanks to the first-sale doctrine in U.S. copyright law.

Streaming Movie Service Zediva Pays Hollywood $1.8M, Shuts Down By Ryan Singel 10.31.11

Last Friday, the Motion Picture Association of America announced that the spunky streaming movie startup Zediva agreed to close down permanently and to pay the studios $1.8 million and end its court battle with Hollywood.

Zediva argued that it’s more like a traditional video rental store like Blockbuster, which needs no licensing agreement to rent movies, than a video-on-demand service like Netflix, which must sign deals to stream movies to subscribers. Zediva can only rent out DVDs to one customer at a time, and makes no copies of the DVDs.

The MPAA, by contrast, argued that any streaming of a DVD or movie was illegal without their permission, and called the final shutdown a win for the movie industry.

Warner Bros v. WTV

Facts: How did Zediva work? Channels of distribution and distribution window. DVRs and DVDs in Santa Clara- 14 days, 4 hour window on

same DVR Definition of performance- transmit clause

Did D “transmit”---On Command analogy, Redd Horne analogy

“To the public”—different times and different places

Right of Public Display

Sect 106(5) and its exceptions “in the case of literary, musical, dramatic, and choreographic

works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly”

Sect. 109(c) “Notwithstanding the provisions of section 106(5), the owner of a

particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.”

Right of Public Display

Playboy cases and RTC v. Netcom

Perfect 10 v. Amazon Thumbnails and full sized in-line linked images

Server test