Tag Archives: publishers

Great Day in Nashville with Maria Pallante, Register of Copyrights

Maria Pallante, the current Register of Copyrights, along with Steve Ruwe, an attorney in the Copyright Office General Counsel’s Office,  came to Nashville yesterday (Dec. 17th) to meet with a number of Nashville’s leaders in publishing and copyright. Maria presented parts of her vision for “The Next Great Copyright Act”, as well as addressing other areas of the Copyright Office.

She said a lot of great things, and was careful to NOT use the word “reform” when talking about what is being discussed in committees related to the Copyright Act.

She also mentioned, but did not dwell on, the idea of shortening the life of post 1978 copyrights to life plus 50 (rather than 70), unless the heirs update their registration with the Copyright Office. Not sure how I feel about that one.

Her complete speech from the Manges Lecture “The Next Great Copyright Act” can be viewed at the link below:
http://www.copyright.gov/docs/next_great_copyright_act.pdf

Now the push is to get DC to focus on Nashville to participate in a future round-table discussion related to changes in the law.

The sponsoring organization, The Copyright Society of the South, has posted links on their website for those of you who are interested in connecting for various newsletters, to read some of the mentioned lectures, or to connect with various legislative groups involved in the Copyright Law review process.

The Copyright Society of the South’s website is www.copyrightsocietyofthesouth.com.

Also, some discussion has begun on the Copyright Society’s LinkedIn page. Whether you were a part of yesterday’s presentation, or missed it and would like to see what others are saying, you may click below to join the discussion. Make sure you join the LinkedIn group.

http://www.linkedin.com/groups/Copyright-Society-South-4830259?gid=4830259&mostPopular=&trk=tyah&trkInfo=tas%3Acopyright%20society%20of%20the%20south%2Cidx%3A1-1-1

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Maria Pallante, U.S. Register of Copyrights, in Nashville Tomorrow (Tue. 12/17)

Maria Pallante, the current U.S. Register of Copyrights, will be presenting “The Next Great Copyright Act” in Nashville tomorrow, (Tuesday, Dec. 17th) at the First Amendment Center (1207 18th Avenue South) at 2:00PM. If you would like to go, there are still a limited number of seats available. Email me at jbarker@clearboxrights.com and I will get your name on the list. The cost is $20.00. (Checks made payable to Copyright Society of the South).

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A New Music Theory

I’d like to propose a new music theory. But first, to set things up, see if any of the equations below look familiar from past school days.

E = mc²

Einstein’s famous equation says that energy (E), is equal to mass (m) multiplied with the square of the speed of light (c). Einstein came up with this in 1905. He wasn’t the first to propose a mass-energy relationship (Sir Isaac Newton did in 1717), but Einstein was the first to publish it in this equation.

π = c/d

This is the definition of Pi, calculated to be the ratio of the circumference of a circle (c) divided by its diameter (d), which is always 3.14159….. This is a mathematical constant, and was first “published” in a similar geometrical statement on a clay tablet in Babylon dating back to 1900-1600 B.C. The Greek letter “π” was added around the mid-18th century.

a² + b² = c²

This is called the Pythagorean Theorem, and states that, in a triangle with a right angle, the square of the length of the side opposite the right angle is equal to the sum of the squares of the other two sides. This formula is about 2,350 years old, and is used all over mathematics.

Each of these famous formulas existed and were practiced before they were formalized in the written form in which they now exist. They were complex theories, argued over a period of time, but ultimately accepted as simple calculations which show a mathematical constant.

Okay, here’s a formula that has been practiced for decades, but I can’t find where it has yet been published, nor has it reached its total acceptance in the music industry. At least…not yet.

© =

This simply says the song copyright © (Songwriters/Publishers), is of equal value to the sound recording (Artists/Record Companies). In other words, the “idea” has equal value to the “expression” of that idea.

Song copyright rates were initially set under the 1909 Copyright Act, when congress defined the “compulsory license” at the rate of 2 cents. Prices for products to play music, which at that time were piano rolls, record cylinders and record discs, were left up to “fair market”. The United States tax law defines fair market as “…the price at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts.” (United States v. Cartwright). There were no restrictions on the pricing of these recorded products.

Fast forward over 100 years, and the song copyright rates are still restricted (although they have been increased to 9.1 cents), yet recorded products continue to enjoy fair market, or “willing buyer/willing seller”, price freedom. However, in certain areas that fall outside of the compulsory license restrictions, song copyrights have been negotiated for decades at the same value as the sound recording, such as synchronized uses in film, television, and commercials. For decades, where there was no physical product involved, the industry seemed okay with the idea of  © = .

Then came digital. iTunes, and other digital downloads, continued along the physical product balance of 8 to 1 (99 cents, with record companies receiving approximately 70 cents, and paying 9.1 cents for the song copyright). However, when Apple and record companies raised prices on many single downloads to $1.29 (their right in the fair market), the song copyright remained restricted at 9.1 cents, and the resulting ratio is more like 10 to 1. Other widely publicized digital providers have any greater out of balance ratios, such as Pandora, at 14 to 1. Even though the song copyright is not restricted in the same way for streaming (Pandora) as it is in downloads, there are still restrictions with the license entities (PROs), not to mention the licenses for song copyrights and recordings were negotiated separately, and without any consideration as to a proper “ratio” between the two. The historic anomaly of imbalance between the two continues, even though there is no physical product involved.

To be fair, a more accurate way to state the formula should probably take into account that no physical product exists. Looking back at references, the symbol ∄ means “there does not exist”, and the symbol (m) means mass, or physical matter. Adding those to the end of the new formula, it now reads:

© = (∄m) – Song Copyright equals Sound Recording if there does not exist physical Matter (or product).

I like it. This is a new paradigm, or new way of thinking, for the future of music licensing. Now, I realize there are arguments that can be made against this, such as terrestrial radio currently paying 100% to song owners, and 0% to artists and record companies. And there is the statement made by various record people that they would be willing to negotiate a different balance if songwriters and publishers would be willing to take a more equal risk in getting the recordings to the marketplace. Good points. I plan to address those arguments in the coming blogs.

Bottom line, it is clear that no one knows all the right answers at this moment in time. But, until we change our paradigm related to the value of each part, we may never see a correction occur.

Let’s prove this formula correct.

© = (∄m)

John Barker
ClearBox Rights

“Almost every significant breakthrough in the field of scientific endeavor is first a break with tradition; with old ways of thinking, with old paradigms.” – Thomas Kuhn

 

© 2013 John Barker.  All rights reserved.  Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice.  Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.

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That’s Not Fair

While at SXSW in Austin, Texas last week, I heard something from a panel discussing music licensing that was quite disturbing. A panelist told a roomful of independent artists something like “before you use part of another song or recording as fair use, you should consult an attorney.” The disturbing part was not the recommendation that an attorney be consulted. What was alarming is that he was implying the artists can start with the idea that their use falls under “fair use”, then simply verify that it does. Shouldn’t that panelist have instead implied that you should begin with the idea that you will need permission to use a part of a protected copyright and consult an attorney if you believe that use could fall under the fair use doctrine? It seems we’ve thrown around the fair use idea so much, with misdirected understanding of what it is intended for, that it has become a starting place for using songs over the idea of getting permission from the rights owners.

That same week, our office heard from a lady who is self-publishing a fiction book, saying that a book publishing company had told her that she could use up to 4 lines of a song in her book under “fair use”. Churches and other non-profit organizations frequently ask about making copies of music with the belief that their specific use of music is allowed under fair use. And I get asked all the time how much of a song can be used, that is, how many notes or measures or words, without needing to get permission or a license. These questions are all based on erroneous interpretations of the proper intent of the “fair use” doctrine.

Let’s set things straight. “Fair Use” was not mentioned in the 1909 Copyright Act. Until 1978, fair use was defined and applied by the judicial system as specific exceptions to the exclusive rights granted to the owners of copyrights. Congress realized the need to define this in the law, so it was included in the U.S. Copyright Act of 1976. However, the language of the current Fair Use statute is said to be illustrative rather than absolute, with the intent to restate, but not replace, the prior rulings determined by judges. Today’s courts regularly consider other factors as well.

The exact language in the Copyright Act (section 107) states fair use is “…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…”. That’s it. So it’s a little difficult to justify those misdirected notions I described earlier as being allowed under this stated purpose.

The Act then lists four factors to be considered, under the umbrella of the above stated purpose, when determining whether a use is “fair”:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

Fair Use is not intended as a substitute for the purchase of music, or to allow the copying of performances, workbooks, tests, or other copyrighted material in normal settings. It is not intended to allow a small but recognizable portion of music to be borrowed and included in a new work. Generally speaking, it is not intended as a method to circumvent the copyright law in order to use a copyrighted work for a standard use.

Fair Use is intended to be used as a “right” under certain, limited situations, and not as a “defense” against practical infringement claims.

Through recent decades, there have been many court cases involving a wide variety of confusing and unclear exceptions of Fair Use. Interestingly, most of these cases were infringement cases, and Fair Use was introduced into the case as an affirmative defense, many times with successful judgments allowing the use as “fair”. Personally, I believe the courts got some of those decisions wrong. But I realize anyone can argue pretty much anything in the court of law, and when it comes to complex matters like determining Fair Use, you just never know which side the final decision will support.

Without arguing over the fine points of precedent setting cases and decisions, my hope is that we can agree to look at Fair Use as a limited right in certain situations, and not promote fair use as a method to cheat the system or defend a stupid act. Let’s promote the idea of respecting and using copyrights by starting with seeking permission from the rightful owners. If the use of an existing work really is for the purposes of criticism, comment, news reporting, teaching, scholarship, or research (which should obviously be known at the outset of such a use, and not brought up only when a defense is needed), then fair use is a fair option.

Otherwise….it’s just not fair.

John Barker
ClearBox Rights, LLC

“We want the facts to fit the preconceptions. When they don’t, it is easier to ignore the facts than to change the preconceptions.” – Mary Jessamyn West, U.S. Novelist

© 2013 John Barker.  All rights reserved.  Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice.  Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.

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