Copyright Power Struggle Gets a New Twist

A broad range of media outlets publicized the “Blurred Lines” copyright infringement case.  Marvin Gaye’s family won a multimillion dollar jury verdict against Robin Thicke and Pharrell Williams for infringing Gaye’s song “Got to Give it Up” with the Thicke and Williams song “Blurred Lines.”

Much criticism has been directed at the trial process in the Blurred Lines case.  However, legal scholars Sean O’Connor, Lateef Mtima and Lita Rosario articulate a different view of the case.  Traditionally, the focus in copyright infringement cases has been on the written music.  “Stuck on the page,” as one of my jazz musician friends says.  In a recent Seattle Times editorial, O’Connor, Mtima and Rosario assert that

The travesty of the old lead-sheet system means that distinctive parts of Gaye’s composition, especially percussion and backing vocal parts, were not before the jury.

The older focus on literal melodic copying systematically disfavored artists of color. Relying on this presumed exclusion of harmonic and rhythmic elements, record companies perennially promoted white artists from Elvis Presley to Iggy Azalea who could perform songs imitating artistic innovations of black artists. Many copyright experts have been content to live with this system, so long as marginalized artists of color were the ones to suffer the inequity.

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No Twisting Copyright Law to Remedy Other Tort Injuries

Cindy Lee Garcia agreed to act in the film, “Desert Warrior.”  The film’s producer dubbed blasphemous language into Garcia’s part and renamed the film “Innocence of Muslims.”  Garcia received death threats after the film went viral on You Tube.  Garcia sued Google for copyright infringement to force Google to take the film down.  The district court ruled in Google’s favor.  A three judge panel from the Ninth Circuit Court of Appeals disagreed and ordered Google to take down the film.  The Ninth Circuit sitting en banc agreed with the district court’s initial ruling and dissolved the earlier injunction.

As Garcia characterizes it, “the main issue in this case involves the vicious frenzy against Ms. Garcia that the Film caused among certain radical elements of the Muslim community.” We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act. Putting aside the rhetoric of Hollywood hijinks and the dissent’s dramatics, this case must be decided on the law.

(Opinion pdf page 8).

The Ninth Circuit en banc opinion discusses both copyright and injunction issues.  This post focuses on the Ninth Circuit’s copyright analysis.  I previously wrote about this case in Actress’ “Innocence of Muslims” Copyright Claim Forces Google to Take it Down

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ASCAP Consent Decree Prevents Music Publisher User Discrimination

American Society of Composers, Authors and Publishers (“ASCAP”) is a performing rights organization.  ASCAP represents almost 50% of U.S. composers and music publishers in licensing and distributing royalties for the non-dramatic public performances of the composers’ and publishers’ copyrighted works.  Due to its power in the performance-rights market, ASCAP operates under a judicially administered consent decree. 

Some ASCAP members became concerned that new media companies, such as Pandora, were paying below-market rates for public performance licenses.  These ASCAP members forced ASCAP to modify its rules to permit the members to withdraw ASCAP’s right to license their works to new media companies, while retaining ASCAP’s right to license their works to other media companies.  These ASCAP members then directly licensed their works to the new media companies.  Pandora filed a lawsuit challenging ASCAP’s new partial withdrawal practice.

The Second Circuit Court of Appeals addressed the question of whether, under the ASCAP consent decree, publishers may withdraw from ASCAP their rights to license their works to certain new media music users (including Pandora) while continuing to license the same works to ASCAP for licensing to other users.

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Laminate Floor Competitors Go to the Mat Over Copyrighted Design

Mannington Mills manufactures and sells laminate wood flooring.  Laminate wood flooring consists of several layers.  The “décor paper” layer goes underneath the transparent overlay, which is the top layer.  Mannington designers created Mannington’s Glazed Maple design to replicate what they thought a floor might look like after twenty or thirty years of wear.  The Mannington team created the Glazed Maple design by starting with new wood, gauging and staining the boards, taking digital photos and retouching digital photos until they arrived at the 120 inch by 100 inch Glazed Maple design.  Mannington obtained a copyright registration for its Glazed Maple design in November 2010.

Home Legend, a Mannington competitor, started selling a laminate floor design that was virtually identical to Mannington’s Glazed Maple design.  When Mannington requested Home Legend to stop selling the design, Home Legend filed a declaratory judgment action against Mannington.  The district court granted Home Legend’s motion for summary judgment.  The district court ruled that Mannington’s Glazed Maple design was ineligible for copyright protection because 1) Mannington’s Glazed Maple design lacked originality; 2) the Glazed Maple design could not be separated from the functional element of the flooring; and 3) the Glazed Maple design was directed to an idea or process.  The Eleventh Circuit Court of Appeals reversed the district court’s ruling that Mannington’s copyright was invalid.

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Reporter Hat On for the Fair Use Conference!

I recently attended the University of Washington School of Law’s fair use conference:  Fair Use in the Digital Age:  The Ongoing Influence of Campbell v. Acuff-Rose’s “Transformative Use Test.”  What is Campbell v. Acuff-Rose and what’s the big deal about the “transformative use test” you may be asking yourself.  In Campbell v. Acuff-Rose, the question was whether 2 Live Crew’s commercial parody of Roy Orbison’s song, “Oh, Pretty Woman,” was a fair use.  In addressing that question, the U.S. Supreme Court asked for the first time whether the new work “adds something new, with a further purpose or different character, altering the first work with new expression, meaning, or message; in other words, whether and to what extent the new work is ‘transformative.’”   Judge Pierre N. Leval created the transformative use test in his article, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).  Judge Leval honored us with a key note speech at the fair use conference.

Over forty fair use scholars and practicing attorneys from across the country gathered at the conference and gave presentations on various aspects of fair use.  It was mindboggling to attend a day and a half conference focusing on fair use and to rub elbows with so many fair use super stars!  I can’t possibly describe the entire conference in detail in one blog post.  Instead, I’ll recount a few moments that I found particularly insightful.

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