Wednesday, August 8, 2007

Copyright Law and The Flow of Information

Hi, welcome back to Trebor's Bite-Sized Bits! As our regular readers know, this little blog/newsletter is intended to offer some basic background on copyright law, trademark law and other related areas of interest. It is not intended to be legal advice in any way, shape or form. If you have copyright or trademark issues, always consult an attorney experienced in those areas.

There's a lot of nonsense and misinformation being bandied about attacking copyright law these days. I will confess that this installment of TBSB is a bit of a rant against what I regard as some of the worst of that, rather than my usual cool, detached and admirably (ahem) objective approach.

Just to get it out of the way, let me make it clear that there are certain things that I am NOT talking about. I am aware that the denizens of the mainstream media have sometimes used copyright law to harass and bully smaller fry. I am also aware of litigious smaller fry that bring frivolous or near-frivolous suits in copyright in order to extract settlements from larger companies. Like any law, copyright law can be misused. This misuse does not go to the merits and function of copyright law itself.

I also know that there are some fairly recent changes in core copyright law itself that are regarded as problematic by some. I've spoken to some parties who have expressed real and honest concern that Congress, with the aid of the Supreme Court, has, arguably, stretched beyond reason the duration of copyright protection. For reasons that may be the subject of a future TBSB, it is important that copyrighted material pass into the public domain in some sort of reasonably timely fashion. In fact, the passing of copyrighted material into the public domain is central to the constitutional purpose of copyright protection. As I say, this is worth an entire discussion in itself at some future date.

I am also keenly aware that issues currently exist as to certain copyright royalty matters. By way of example, many of those who create, distribute and/or sell truly independent music feel passionately that royalties for the use of copyrighted independent music in independent media cannot be set so high that it allows the major music industry to control the public's access to the rich diversity of music available to it from both mainstream AND independent sources.

I would be the last one to make light of any of the legitimate concerns outlined above. But these concerns have nothing to do with nonsense and misinformation I spoke about earlier. My pet peeve in this area is the assertion or suggestion that there is something inherently and wrongfully restrictive about copyright law because "information wants to be free".

In fact, it is a primary concern of copyright law NOT to restrict the flow of information. As faithful readers of TBSB know, a central tenet of copyright law is that copyright does NOT protect ideas. Everyone is free to express an idea no matter how many others have expressed the same idea. Only the particular expression of an idea is protected. TBSB readers also know that copyright law does not protect facts. Generally, anyone is free to set forth facts, even if someone else first expressed these facts. Again, to the extent that facts are protected at all, it is only the particular and original expression of facts that are protected.

Copyright law even goes a step further. In order to make sure that copyright law does not impede the flow of information, a fair use doctrine has been constructed first by the courts and later implemented by the legislature. As TBSB readers will remember from a prior blog/newsletter, fair use allows copyrighted materials to be employed in a limited fashion for such purposes, by way of example, as comment, criticism and parody. Fair use also allow uses where fresh creations use prior creations in a manner that is "transformative". A transformative work is a new work which is different from the original work and is used in a different manner and for a different purpose than the original work. ("Transformative" use as I said in the prior blog/newsletter is a still evolving area of law).

As a bit of an aside, I think fair use is a remarkably useful and flexible doctrine that can adjust to a changing world and which will help keep copyright law vital and alive through the foreseeable future (I am not, obviously, one of those who think that copyright law, in its essence, is "dead" or even seriously broken).

But back to nonsense and misinformation. Given the purposes of copyright law and its commitment to NOT restricting society's flow of information, I find it particularly offensive when I see, as I sometimes do, some individual using the "information wants to be free" argument or some variation thereof to excuse that individual's freeloading on the creative expression of others. To use a very technical legal term, that stinks.

Putting aside dishonest gasbags for a moment, there are those thinkers, I am sure, who do not infringe the copyrights of others but still honestly advance this theory. I can only say that in my mind, such a theory is a deeply flawed one that misunderstands, or shows extensive ignorance of, basic copyright law.

What do you think? I'm interested in your opinion on this.

Well enough of my rant. Thank you, dear readers, for your kind indulgence. Let me just say this in closing: I know most of you are creators in one field or the other. The drafters of the constitution thought the work of creators was important enough to society that the protection of it for a limited time was considered to be of constitutional magnitude. I think this is an essential truth that remains unchanged. Copyright law is your friend. Use it wisely and well. See you next time.

Monday, July 2, 2007

Trebor’s Bite-Sized Bits: Work Made for Hire Agreements and Sound Recordings

Hi, welcome back to Trebor's Bite-Sized Bits! As our regular readers know, this little blog/newsletter is intended to offer some basic background on copyright law, trademark law and other related areas of interest. It is not intended to be legal advice in any way, shape or form. If you have copyright or trademark issues, always consult an attorney experienced in those areas.

I've gotten a very strong response to my last TBSB offering concerning Work Made for Hire ( hereinafter "work-for-hire") agreements, all of them from persons involved in one way or the other in the music industry.

As you'll recall, there are two branches of work-for-hire agreements under Copyright Law--one relates to employees and the other relates to independent contractors. Under the independent contractor branch, as you may also remember, there are nine narrow categories of works done by an independent contractor that could qualify as works-for-hire.

What I pointed out in my work-for-hire column was that sound recordings are not included as one of the nine narrow categories. Most recording contracts have a work for hire provision but back that provision up with an alternative provision that if the work for hire provision is invalid then the artist assigns his work to the label. (As I pointed out in the last column, there's actually a very substantial difference between an assignment of rights and a work-for-hire but, again, that's a subject worth an entirely different column if you are interested, gentle readers).

Again, a sound recording simply is not one of the categories listed. There has been some argument by the record industry that even if a sound recording isn't listed expressly as a separate category, a recording artist's work should be allowed as a work-for-hire as a contribution to a collection, a category that IS enumerated as one of the nine narrow areas that qualify as works-for-hire.

In the light of court opinions that have held that a sound recording is not a work for hire, in light of the difference between sound recordings and other types of "collections" that have been accepted as works-for-hire and in light of the concern of many (including the Copyright Office it would appear) about the fairness of a theory that would allow the work of recordings artists to become forever the property of record labels, one wonders if the record industry's view is likely to prevail in the courts or find much traction in the legislature. All of us--music industry, recording artists and lawyers-- are going to have to wait and see what develops with said courts and legislature.

However, whether or not a work-for-provision is likely to be valid in the case of a key contributor such as a featured recording artist may be an entirely different proposition than the validity of such a provision in the case of a back-up singer or non-featured musician. In fact, it is entirely possible that non-key contributors may actually fit under the first branch of the work-for-hire statute, as a kind of employee. An employee doesn't have to be someone that gets a W-2 form and benefits to qualify as an employee.

What courts often consider in deciding whether a party is an employee are such factors as: 1) the skill required; (2) the source of the instrumentalities and tools; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; (6) the extent of the hired party's discretion over when and how long to work; (7) the method of payment; (8) the hired party's role in hiring and paying assistants; (9) whether the work is part of the regular business of the hiring party; (10) whether the hiring party is in business; (11) the provision of employee benefits; and (12) the tax treatment of the hired party.

The courts also weigh in any other factors that seem to make sense, will ignore some of the factors above, or give them extra or different weighting depending on each individual case.
I was particularly asked about the case of demo recording, where producers and artists get together and make a sound recording with the idea of testing it in the market, getting it out there and seeing what industry response is. Well I can't, and wouldn't, comment on an agreement I've haven't read and this column is NEVER intended to give legal advice, just some legal background. Having said that, it is possible that in the case of a pure demo sound recording, the recording may fit under the first (employee) branch of the work for hire doctrine depending on an analysis of the factors noted above. However, if the sound recording, for any reason, fits under the second (independent contractor) branch, you should be very aware by now that the analysis is very different.

Something you should be very cautious about, particularly if you are on the recording/production side of the business: Don't think because everyone in an industry is doing something that it must be legally valid. First, things change. It may be that early on in the recording industry, sound recordings were often clearly works-for-hire. Certainly, the work for hire law prior to the effective date of the 1976 Copyright Act was very different than the law thereafter. Also, labels, by way of example, once had much more control over every aspect of the creation and production of records. But that was then, and this is now.

Secondly, while courts (and the legislature) certainly do consider the practices of an industry in deciding and making law, it does not mean that the practices of an industry dictate what the courts will decide. I'm reminded, by analogy, of the copyright case where a movie industry person assured the court that in his industry, people didn't necessarily put assignments of copyright on paper but just shook hands. While the court recognized that this might be the practice of the industry, since the copyright law specifically required that assignments be in writing, the court found that industry practice was pretty much irrelevant.

So no matter how the music industry conducts itself, be aware, as I said above, as to sound recordings, all of us or going to have to wait and see what happens in the courts and in the legislature.
Oh, also just in passing, I got a query from a songwriter about whether her song was a work-for-hire under a recording agreement. Assuming that the songwriter is not an employee, I'm a little stunned by this question. If anyone out there thinks they have any viable theory that could explain how a songwriter's song could be categorized as a work-for-hire for the purposes of a sound recording, let me hear it.

Well, that's it for now. See you in a month or so with another issue of TBSB. Feel free to forward TBSB as always. Just let 'em know it came from Trebor Lloyd, aka "Big T".

Monday, May 21, 2007

Work Made For Hire Agreements

Hi, welcome back to Trebor's Bite-Sized Bits! As our regular readers know, this little blog/newsletter is intended to offer some basic background on copyright law, trademark law and other related areas of interest. It is not intended to be legal advice in any way, shape or form. If you have copyright or trademark issues, always consult an attorney experienced in those areas.

I've been getting a lot of questions lately about Work Made for Hire Agreements. The usual rule is that the person who creates a work is the owner of the copyright in that work and is free to exploit it. However, under a work made for hire agreement, the person who employs the creator of a work or commissions a legally valid work made for hire is the owner of that work upon its creation.

If you are clearly a regular employee of a person or entity, get paid a regular salary, get W-2s, benefits, health care, etc. there is little doubt that if you create a work within the scope of your employment, it belongs to the boss. However, there's a wrinkle to this. Notice the words "scope of your employment". If you create a work outside the scope of your employment, on your own time using your own resources, the authorship of that work may very well vest in you, absent some agreement with your boss to the contrary. This may be true even though the idea for the work might have been inspired somehow by your workplace and relate to your employment.

In a copyright ownership litigation, if there is some question about whether you are an employee or not, a court deciding that issue will look at all the circumstances of the relationship between you and the person claiming to be your employer to determine the real nature of that relationship. Generally speaking, if a person controls the means and methods of how you do your work, you are an employee. If that persons has only the right to control or direct the result of the work without more, you are an independent contractor.

If you are clearly an independent contractor or free-lancer, whether or not a work is a work made for hire depends on two things: (1) a written agreement between the parties agreeing that the work is indeed a work for hire and (2) the type of work it is. Here is the language of the United States Copyright Act:

Works Made for Hire. -- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. 17 U.S.C. sec 10.

It is important to note that BOTH conditions must be met for a work to be considered a work made for hire. There must be an agreement and the work must fit within one of the nine rather narrow categories outlined above. If both of these conditions are not met, the work is NOT a work for hire. Tricky business. I'd definitely consult a lawyer before entering into a work made for hire agreement.

Those in the music industry, both on the talent and production end, should note that a sound recording is generally not currently included in any of the nine categories named above. However, most recordings contracts will provide that should a sound recording not qualify as a work made for hire under the recording contract, then, alternatively, the recording artist agrees to assign the artist's rights in the sound recording to the record label. While there are some important differences between a work made for hire agreement and an assignment, I'm going to save that topic for a later date.

Since it is somewhat related conceptually, I'm also going to touch briefly here on another topic that was raised by someone in a recent communication. Suppose you commission a photographer to do some photographs or an artist to do an oil painting. Be aware that physical ownership of the photographs or the oil painting generally gives you no rights in the images that constitute the photographs or the oil painting, absent an agreement to the contrary.

In other words, gentle readers, if any of you are ever struck by the bright idea that you suddenly want to incorporate the lovely painting you purchased as a design on some china plates and sell those plates on E-Bay, put that idea right out of your adorable heads--at least absent a talk with the artist and a very carefully drafted written agreement that allows you to use her images from your oil painting.

Again the TBSB battle cry rings out: For heaven's sake, be careful out there people!

See you next time with another issue of TBSB.

Sunday, May 6, 2007

Fair Use in Copyright Law

Hi, welcome back to Trebor's Bite-Sized Bits! This little blog/newsletter is intended to offer some basic background on copyright law, trademark law and other related areas of interest. It is not intended to be legal advice in any way, shape or form. If you have copyright or trademark issues, always consult an attorney experienced in those areas.

I was going to write more about the exclusive rights of copyright owners in this issue of Trebor's Bite-Sized Bits but an e-mail I got from a reader recently gave me great pause—and caused me to decide to discuss an entirely different topic: the issue of fair use in copyright law.

This reader, who shall remain nameless, said that he/she was going to use a 30-second segment of music as background music for a film the reader was creating and assumed that the use of this "small" segment" would be a fair use under copyright law.

A very dangerous assumption.

Let's assume hypothetically, gentle reader that you are considering incorporating another copyrighted work within a work that you are creating in much the same way as the reader who e-mailed me planned to do. Let's see how a fair use analysis might come out.

Bear in mind, however, that what follows is a very simple breakdown of fair use. If you REALLY have questions concerning whether your use of another person's copyrighted work is a fair use, get authorization from the copyright owner to use that work (nearly always the best idea) or consult a lawyer. You do NOT want to find yourself in federal court trying to resolve the issue of whether your use of another's work was a fair use. And remember—if it's not a fair use, generally speaking, it's an infringing use.

Fair use is a doctrine that allows non-infringing use of copyrighted material in certain instances. There are four main factors that figure into determining whether a use is a fair use. The factors are considered together and in any particular case one factor can predominate, although all factors are considered to the extent relevant to the specific facts of a case:

1. The purpose and character of the work. Certain activities such as criticism and comment require that some portion of the copyrighted work needs to be reproduced. Reviews, teaching and news reporting may fall within the fair use exception. A parody, a work that ridicules a copyrighted work by imitating the copyrighted work in a comic way, may also be a fair use. These are called "transformative uses" and fall within the scope of the fair use doctrine. The amount of the work used must be reasonable in light of the particular fair use. A few lines of lyrics may be appropriate for a music review, for instance, while a more sizable chunk of the copyrighted work may be appropriate for a parody. There are also trickier "transformative" uses. For example suppose an artist creates a work of art that is a collage of other copyrighted works but the new work arguably changes the "borrowed" works so completely that the new work constitutes a radically new work that has an entirely different purpose and meaning than the borrowed works. Is that a fair use? Maybe. But, again, you really don't want to go into federal court to find out.

2. The nature of the copyrighted work. You have more leeway using copyrighted material that is factual in nature than in using material from more "creative" works, e.g. fiction vs. non-fiction. You also have more leeway in using published works than you do in using works that have not yet been published.

3. The amount and substantiality of the portion taken of the copyrighted work. If you copy a large portion of the work, it is highly unlikely that your use will be considered a fair use. Even you copy a very small portion of a work, but that portion is very important to the work as a whole, it is highly unlikely that your use will be considered a fair use. More about that below.

4. The effect of the use on the market for the copyrighted work. This factor considers the effect of a use of a copyrighted work on the copyright owner's ability to exploit that work. If you are going to license, sell or otherwise exploit your work in a market where the copyright owner could have exploited the original work, well, it's clear that there will considerable question as to whether that use is a fair use.

So let's look at the use a segment of music as background music in a new work-- a film--through the fair use lens.

As to factor one, the use doesn't fall under criticism and comment category. Even if the new work itself is criticism and comment, it's not criticism and comment on the original copyrighted work. There is nothing transformative about the use. Merely using the music in the context of a new medium isn't transformative. As to factor two, the original copyrighted work is a "creative" work and less likely to be found to be a fair use.

As to factor 3, while it's possible to use a very small amount of a copyrighted work in such a fleeting (often accidental) manner that it won't even raise a fair use issue--for example where a copyrighted photograph appears for a couple of seconds accidentally in the background of a film (called a "de minimus" use) —30 seconds of music is not very likely to fit in that category. As to the substantiality of 30 seconds of music, a segment of that length is likely to be an identifiable portion of music, perhaps the very heart of the work. As to quantity, much smaller time segments of music or other copyrighted works incorporated into new works have been found not to be a fair use but an infringing use.

As to factor 4, the use of 30 seconds of music is exactly the kind of use that tgw copyright owner might negotiate in a synchronization license (a license using timed music with film or video images). In this case, if you've used that segment of music without permission, you've already deprived the copyright owner of at least once chance to market that music, haven't you?

Consider all those fair use factors together, and you see the problem with our hypothetical use of someone else's musical composition, right? For heaven's sake, be careful out there people!

See you next time with another issue of TBSB.

Wednesday, April 25, 2007