Copyright, Fair Use, and Music Licensing Playlist | Leo Versel | April 18, 2016

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Copyright, Fair Use, and Music Licensing Playlist

by Leo Versel Show/Hide

Harvard Law School H20 Project

Group Members: Casey Ek, Toni Marie Peake, Elise Smith & Leo Versel

*Set Browser to Open All Links in New Tabs to Allow for a More Seemless Experience and Easier Navigation. Thank you. 

With online music platforms like SoundCloud, Spotify, and Youtube sweeping the music industry, music law is becoming an increasingly nuanced issue. 

This page is designed to be a digestion of the matters of copyright and fair use as it pertains to music sampling, licensing and parody. This website is designed to be a tool one can use to obtain all information regarding the topics previously listed.

We have annotated primary sources, which include case laws and summaries. Additionally, online expert source materials, which have also been annotated, provide analysis and further discussion of various aspects of the cases and concepts of which they involve.

Our team has even created various legal hypotheticals to encourage class discussion on these pertinent issues in communication law. We have augmented the nuts and bolts of our playlist with outside videos, recordings, and interviews with the parties involved. 

Overall, we hope that this Playlist serves as an educational tool that will enhance knowledge and provoke further discussion, that will hopefully result in  these issues receiving greater attention and awareness.

(Audio Visual Material)

https://www.youtube.com/watch?v=tk862BbjWx4

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  1. 1 Show/Hide More Music Sampling Grand Upright Music v. Warner Brothers Music (1991)
    Original Creator: Leo Versel
    For decades musicians have been ‘borrowing’ the work of other artists. Dating back to early reggae, artists have been cutting tracks on turntables to include portions of someone else’s work. Often, there is no issue with this practice, either because the original artists do not mind, or because the portion borrowed from another source is too small for anyone to notice. But, as we enter an era in which information can be sent across the internet in a matter of seconds, grey areas are forming and becoming highlighted. With this project, we will explore those legal grey areas and how they have changed over time, and as the tools of the trade have evolved.On this page and subsequent subpages, you'll find case law, summaries and videos to better explain what sampling is, when it is legal, and when it is not. 
    More on the case
    In 1991 Gilbert O'Sullivan sued the rap artist Biz Markie for intellecual property theft over the rapper's use of his song “Alone Again (Naturally)”. Biz Markie and his producers ripped the piano audio from O'Sullivan's track and rapped over it. Listen to Biz Markie's Song “Alone Again” and a live version of O'Sullivan's song below by clicking play on the videos.
    https://www.youtube.com/watch?v=cKB6MnTaNJc
    https://www.youtube.com/watch?v=OebqNsNRBtU
     

     
     
    1. 1.1 Show/Hide More Grand Upright v. Warner Brothers Music (1991)
      Included is an annotation of the central case we have chosen, Grand Upright v. Warner Brothers Music. Many believe this case was hastily executed, claiming the defendant, rapper Biz Markie, was well within the confines of fair use. Nonetheless, this case set an important precedent in favor of original artists vis-a-vis music sampling.
    2. 1.2 Show/Hide More Mark Ronson Takes to the TED Stage to Explain and Explore Music Sampling
      Recording artist Mark Ronson is renown for his sampling techniques. This video shows his performance at the TED conference. Including this video is intended to supplement the case law included so anyone viewing this page may have a better idea of what music sampling includes.
    3. 1.3 Show/Hide More Scholarly articles and external links
      Below are links to additional information from experts. Other links include patent documents and news articles.
    4. 1.4 Show/Hide More Unkle's "Rabbit in Your Headlights"
      This music video for the band Unkle features a sample not from another musician but from the film Jacob's Ladder. It demonstrates the complexity of music sampling and legislation behind fair use.
  2. 2 Show/Hide More Music Licensing
    Original Creator: Leo Versel

    History of Music Licensing:

    The very beginning of music licensing began in the 20th century with the creation of ASCAP.  In 1914, a group of composers got together and created the American Society of Composers, Authors, and Publishers which was to be used as a joint pool of music that could then be sold to music users. After it’s creation, ASCAP created a blanket license that would allow for users to use any musical composition for anything by just paying one single licensing fee. This blanket license was beneficial because it made sure that artists were actually getting paid at least some money for the use of their songs. Before ASCAP was created, there was no central company that would collect performance rights royalties for the artists, so lots of money was getting left on the table. However, since ASCAP was the only company working on licensing, they had tremendous leverage that began to push fees to an extremely high amount and because of these extremely high demands, the radio broadcasters created BMI (Broadcast Music, Inc). The main difference between the two companies was ASCAP continued to have strict membership rules, while BMI had open enrollment which allowed for more composers and artists to start collecting on their licensing.


    The most damaging piece of legislation that would affect music licensing companies were the Consent Decrees that were put into place in 1941. The Consent Decrees were created because of the fear that ASCAP was becoming too similar to trust and needed to have the DOJ step in. In an agreement with the Department of Justice, BMI and ASCAP agreed to a set of rules that included: they were no longer to allowed to have exclusive rights to composers and publishers works, they also could not seek payments for programs that did not contain ASCAP/BMI music, it also required a different set of program and network licenses for broadcasters, and it stated that ASCAP and BMI could not discriminate between users and had to give royalties in a “fair and nondiscriminatory manner.” While these Consent Decrees have been changed some, the underlying rules still stand.

    Source:

    http://www.nrbmlc.com/music-licensing/music-licensing-history/

    (Audio Visual Material)

    https://www.youtube.com/watch?v=Mwx9m6-z0fE


    1. 2.1 Show/Hide More Radio and Online Services
      Original Creator: Leo Versel

      Radio and Online Listening Services: More Information on Licensing

      1) Licensing for radio is different than online: satellite radio does not have to pay royalties and is functioning on a “free advertising” model. Radio stations pay fees to licensing bodies for non-exclusive rights to broadcast music. Radio stations and businesses typically pay a flat rate once a year, called a blanket license. This can vary based on the size of the audience, value of the advertising revenues, and amount and nature of music usage. As part of the license contract a radio station may conduct periodic audits of the music being played, with the audit results submitted to the licensing body 

      https://en.wikipedia.org/wiki/Music_licensing

      2) What this article is saying is that licensing allows you to purchase the right to play and have that music through your radio station or online service, so that you don't have to personally go to the artist you wish to play and pay them individually. You have to make sure that the stations are monitored so that you can ensure that music will not be tampered with, because if this does happen then you and your station are at risk of being fined. Following the companies record keeping and reporting requirements is everything when it comes to being able to play music that isn't yours. Unless you have obtained a waiver you need to follow the specific rules that the company or label has put in place. Most songs are licensed by the three main PROs, which are performance rights organizations. ASCAP and BMI each having more songs in their catalogs than SESAC. When and if an artist is not represented by a PRO, then you must get permission from the artist directly.

      There are two different types of licenses that are imperative in the music industry and those are explained as so in the link below, “There are two kinds of music licenses that we're concerned with – recording artist royalties and publisher royalties. When playing songs over the radio, only the authors/composers/writers of the song have to be compensated (the owners of the “musical work” copyright), not the performers/producers of the song (the owners of the “sound recording” copyright, which is usually assigned to record labels).” 

      When it comes to streaming music online different people have to be compensated in addition to the composers, artist, label, etc. The producers now have to be compensated as well as the performer. The Librarian of Congress deals with Sound Exchange when it comes to handling online streaming. There are different fees that come into play when it comes to online streaming. ASCAP, BMI, and SESAC charge a fee for online streaming. This is different from the fee they charge for broadcast radio transmissions. Transmitting music over broadcast radio and also live streaming/simulcasting music online requires two separate licenses from these PROs, in additional to the one from SoundExchange. 

      Prometheus Radio states in the article below that the license from SoundExchange requires that you abide by the “sound recording performance complement,” which states the following:

      “1) No more than 4 tracks by the same featured artist (or from a compilation album) may be streamed to the same listener within a 3 hour period (and no more than 3 of those tracks may be streamed consecutively)”

      2) No more than 3 tracks from the same album may be streamed to the same listener within a 3 hour period (and no more than 2 of those tracks may be streamed consecutively."

      http://www.prometheusradio.org/musiclicensing

      3) Title 17 of the US Code explains the copyright regulations when it comes to music. The link show below gives a perfect definition of what it means to obtain copyright, it states as follows, "Copyright in a sound recording protects the particular series of sounds “fixed” (embodied in a recording) against unauthorized reproduction and revision, unauthorized distribution of phonorecords containing those sounds, and certain unauthorized performances by means of a digital audio transmission." 

      Terms that one should know when it comes to understanding copyright and music licensing are:

      sound recording: a recording of sounds

      the label: what owns and produces the music

      the publisher: works on behalf of the composer and songwriter

      Examples in the music industry when one has to obtain rights include:

      * Public performance rights are needed when a public place or radio station want to play an artists music

      *Blanket licenses are obtained so the station can play anything it chooses. PRO's then decide how to divide up the money among all the rights owners. 

      *Master Use Licenses are used if a particular song is wanted for a commercial or film.

      http://entertainment.howstuffworks.com/music-licensing.htm

      (Audio Visual Material)

      The link below is a video that explains the general idea of copyright in regards to radio and online mediums.

      https://www.youtube.com/watch?v=5W7EV7XH8B8


    2. 2.2 Show/Hide More Compulsory Licenses
      Original Creator: Leo Versel

      Compulsory License

       

      • Music and Radio services have to pay a mechanical royalty rate ($.091 per song per copy distributed) to use on their services

      • Artists have to allow for people to cover your music, whether you like it or not

      • Non-interactive services (Pandora, Satellite radio): Limited # of skips, playlist restrictions (can't pay more than 4 songs per artist), no advance playlists (can't know what's coming next)

      • Voluntary negotiations (Copyright Royalty Board)  judges who set the rates web radio have to pay

      • Artist and label = compulsory (if the music has been publically distributed and is available for public consumption in any form, they have to allow for a compulsory license) 

      • Songwriter = voluntary (artists, specifically songwriters, are allowed to have voluntary compulsory licenses if their music has not been licensed to a publishing house or has been distributed publically)

      • Interactive- anyone can voluntarily say no to having their music on the sites, users can do as many skips as they like and can pick and choose what they listen to (Spotify, Apple Music)  

      • Taylor Swift: didn’t allow her music to be on Spotify, but her publishing (songwriting) still can be on Spotify

      • Songwriters with a publishing company still have to have a compulsory license and while they can't claim the music aspect of the cover, they can claim royalties from the songs because it is their lyrics 

      • EX: “I Will Always Love You,” written by Dolly Parton, but famously covered by Whitney Houston. Dolly Parton would get all the royalties (about 50%) because she wrote the song.

      (Audio Visual Material)

            https://www.youtube.com/watch?v=zQrgzBzGgzg

            https://www.youtube.com/watch?v=3JWTaaS7LdU

            https://www.youtube.com/watch?v=_utP1mGoutQ

    3. 2.3 Show/Hide More Music Licensing Main Case
      Original Creator: Leo Versel

      Main Case: F.B.T vs Aftermath

      Plantiff: F.B.T = Eminem’s production company

       Defendant: Aftermath = subset of Universal records that was given the right to Eminem’s music

       

      • The case has to do with ringtones and iTunes, which were previously not covered in many contracts created in the early 2000's simply because they did not exist. The main issue involved in the lawsuit was the definition of what was considered “records sold” and what was “music licensed”. Aftermath argued that since there was at least the act of buying/downloading the music and paying a set rate, that it would be considered part of the “records sold” definition. F.B.T countered and stated that since the digital version of the songs were sent to a third party distributor (iTunes) and included the licensing of a master. They also argued that Aftermath did not have to through the typical paths of distribution due to not having to pay for manufacturing and distributing of hard copy records. Becuase of these differences, F.B.T. stated that digital downloads should be paid as “music licensed”. 

      For reference:

      • “records sold” = 15-20% of records sold

      • “Music Licensed” = 50% per licensed

      • District Court Ruling: no industry custom beforehand, said Aftermath did not need to pay license fee: awarded them $2.4 million in legal fees

      • Appeal: US Courts of Appeals the Ninth Circut relooked at the case and decided that since purchases of music on iTunes and ringtones are not actually records and the transaction between Aftermath and iTunes was a license and not a sale. F.B.T., and other contracts based on the same legality as Eminem's, would earn the 50% of licensed music. 


      Source:

      http://www.law360.com/articles/201833/case-study-fbt-v-aftermath (primary)

      (Audio Visual Material) “Lose Yourself” by Eminem

      https://www.youtube.com/watch?v=Yhyp-hX2s 

       

    4. 2.4 Show/Hide More Case Examples Continued
      Original Creator: Leo Versel

      UMG Recordings INC. Vs  Veoh Networks INC:

      Plaintiff: Universal Music Group

      Facts: Veoh is a video sharing website that allowed for users to upload video content, then the company would reformat and republish the videos all for free. The site had a category called “music videos” with many of the videos using music from Universal Music Group and other labels artists without getting the proper license. UMG filed a lawsuit claiming that Veoh was committing copyright infringement because they did not pay for the license to use the music nor were they paying any royalties.

      Decision: Veoh was cleared of all claims because UMG was not able to bring for specific infringement based music videos. Set a precedent for all future cases involving online media and it’s use of music making it the record labels/artists job to track down all the music being used without a license and take it down themselves. Web sites such as Veoh and Youtube are not held accountable.

      http://www.lexology.com/library/detail.aspx?g=2ca724af-f68d-453c-805e-82b507ef2bf8

      Broadcast Music Inc. vs Columbia Broadcasting System:

      Plaintiff: Columbia Broadcasting System

      Facts: This case was brought about 30 years after the Consent Decrees against ASCAP and BMI were put into place. In the lawsuit, Columbia Broadcasting System (CBS) claimed that Broadcast Music Inc. (BMI) was still charging unfair prices for music licensing for radio. CBS argued that the fees given to them very illegal because they were based on price fixing between the two licensing agencies (ASCAP and BMI).

      Ruling: The issuance by ASCAP and BMI of blanket licenses does not constitute price-fixing per se unlawful under the antitrust laws.

      https://supreme.justia.com/cases/federal/us/441/1/case.html

      “Blurred Lines” Copyright Case of Pharell Williams, Robin Thicke, and T.I. v. the Heirs of Marvin Gaye

      Plaintiff: Marvin Gaye's Heirs

      Facts: On March 10, 2015 a federal jury ordered singer and producer Pharrell Williams and singer Robin Thicke to pay $7.4 million dollars, which was later reduced to late singer Marvin Gaye's heirs, who said that their new single, “Blurred Lines,” was copyright infringement of Gaye's 70's hit “Gotta Give It Up.” They said that “Blurred Lines” copied the feel and music of Gaye's song. Pharrell, Robin Thicke and rapper T.I, who also appeared on the song, vowed that they never intentionally used anything deliberate from the song. They did want the 70's feel that Gaye was known for, but feel that they didn't take directly from the song itself. So how did this jury determine whether or not this was a copyright infringement? 

      Ruling: The judge ruled that the original $7.4 million be reduced to $5.3 million, but that the Gaye family is to also receive fifty percent of the royalties from “Blurred Lines” going forward.

      http://web.law.duke.edu/cspd/blurredlines/

      http://www.usatoday.com/story/life/music/2015/07/15/lawyer-for-singers-blurred-lines-copyright-fight-not-over/30189927/

      Spotify v NMPA (National Music Publishers Association)

      Facts: NMPA claims Spotify did not obtain the proper mechanical licenses for a large portion of songs on their service. Also that they didn’t pay the mechanical royalties needed for the songs (9.1 cents). Spotify needs to pay this in order to use the song, lawsuit claims they did not. Essentially no one is getting paid for the playing of the tracks. The plaintiffs were seeking $200 million. In response to the lawsuit, Spotify claimed they did not have the proper data to tell if the publisher’s were telling the truth or not about a specific song and therefore did not know who to pay. They had no central database to record licenses and send out the appropriate amount to each publisher.

      Ruling: Publishers and Spotify settled out of court for $20 million

      http://www.digitalmusicnews.com/2015/12/30/why-exactly-is-spotify-being-sued-and-what-does-this-mean/

      (Audio Visual Material) 

      “Blurred Lines” by Pharrell Williams, Robin Thicke and T.I.

      https://www.youtube.com/watch?v=yyDUC1LUXSU

      Marvin Gaye's “Gotta Give It Up”

      https://www.youtube.com/watch?v=yyDUC1LUXSU

  3. 3 Show/Hide More Parody and Fair Use: Campbell v Acuff-Rose Music (1994)
    Original Creator: Leo Versel

    This case set an important legal precedent for what courts consider fair use in relation to musical parody.

    In Campbell v. Acuff-Rose Music, Acuff-Rose Music, Inc. filed a lawsuit against rap group 2 Live Crew and their record company, Skyywalker Records, claiming that 2 Live Crew's song “Pretty Woman” infringed on Acuff-Rose's copyright of Roy Orbison's “Oh, Pretty Woman.” 

    Below are two YouTube videos of Orbison performing his original song live and audio of 2 Live Crew's parody:

    Roy Orbison Performing “Oh, Pretty Woman” Live

    Audio of 2 Live Crew's Parody, “Pretty Woman”

    A United States District Court granted summary judgment for 2 Live Crew, holding that its song was a parody that made fair use of the original song. However, a Court of Appeals for the Sixth Circuit reversed this decision, holding that the commercial nature of 2 Live Crew’s parody made the song's use presumptively unfair. This case eventually reached the U.S. Supreme Court, which had to determine whether or not 2 Live Crew’s commercial parody was a fair use within the meaning of the Copyright Act of 1976.

    According to an article on Oyez.org about the case, the Supreme Court ruled in favor of 2 Live Crew. In a unanimous opinion delivered by Justice David H. Souter, the Court held that a parody's commercial character is only one element to be considered in a fair use enquiry. The Supreme Court also held that not enough consideration was given to the nature of 2 Live Crew’s parody in weighing the extent to which it copied Orbison’s original song.


    That same Oyez.org article also says the Supreme Court found that the Court of Appeals “erred in applying the presumption that the commercial nature of the parody rendered the song presumptively unfair.” This was due to a lack of evidence regarding the character and purpose of the use and the market harm to Orbison’s original song.

    1. 3.1 Show/Hide More Campbell v Acuff-Rose Music - Annotated Supreme Court Case Law
      Campbell v Acuff-Rose Music – Annotated Supreme Court Case Law
    2. 3.2 Show/Hide More Campbell v Acuff-Rose Music: Audio Recording of Oral Arguments
      This is a link to an Oyez.org web page with an audio recording and transcript of the oral arguments in Campbell v Acuff-Rose Music. This case was argued before the U.S. Supreme Court on November 9, 1993.
    3. 3.3 Show/Hide More 2 Live Crew Discussing This Case on CSPAN
      Here is a YouTube video of 2 Live Crew, the petitioners in Campbell v Acuff-Rose Music, discussing this case on CSPAN.
    4. 3.4 Show/Hide More Campbell v Acuff-Rose Music: Summaries of Law Journal Articles
      Original Creator: Leo Versel

      This web page includes hyperlinks and short summaries of three law journal articles related to the Campbell v Acuff-Rose Music legal case.

      1) “Oh Pretty Parody: Campbell v Acuff-Rose Music, Inc.” 

      This is a scholarly article from the Fall 1994 volume of Harvard University’s Journal of Law and Technology (JOLT). In the article, Lisa M. Babiskin chronicles the historical background of fair use and parody and analyzes the case law prior to the U.S. Supreme Court’s decision. Babiskin concludes by analyzing the Supreme Court’s decision and what it holds for the future. 

      2) “Trademark Parody: Lessons From the Copyright Decision in Campbell v Acuff-Rose Music, Inc.” 

      This 1996 scholarly article from Duke University’s Law School discusses the importance of Campbell v Acuff-Rose Music in relation to analysis of parodies in trademark legal cases. The author of this article, Gary Myers, concludes by suggesting that the “likelihood of confusion test” that is instrumental in evaluating trademark cases should also be used in evaluating trademark parodies. 

      3) “Three Years After Campbell v Acuff-Rose Music, Inc: What Is Fair Game For Parodists?” 

      This scholarly article written by Kathryn D. Piele first appeared in 1997 in the Loyola of Los Angeles Entertainment Law Review. In her article, Piele discusses the fair use clause of the U.S. Copyright Act and how parodies are protected by it. She also discusses how courts applied the fair use doctrine to parody cases prior to Campbell v Acuff-Rose Music.

      Piele then delves into the Supreme Court ruling for Campbell and how it changed the way the fair use doctrine was applied to parody cases. She then concludes by describing the problems regarding the treatment of parodies by copyright law before finally recommending how courts should change current copyright law.

    5. 3.5 Show/Hide More Parody & Fair Use: Legal Hypotthetical
      Original Creator: Leo Versel

      Yo Yo Money Singh releases a song called “Money, Money, Money,” which samples The O’Jays’ original song, “For The Love Of Money”. Tuff Gong, the O’Jays’ recording label which owns the copyright to the original song, sues Yo Yo Money Singh for copyright infringement. Yo Yo Money Singh argues that his song was a parody of the O’Jays’ original and because of this, it qualifies for fair use under the U.S. Copyright Act of 1976.

      The case eventually reaches the U.S. Supreme Court, which is tasked with deciding whether or not Yo Yo Money Singh’s song is a parody and whether or not it has done market harm to the O’Jays original release.

      Based on Code 107 of the U.S. Copyright Act, as well as the oral arguments of the petitioners and respondents, a group of nine Supreme Court Justices need to reach a ruling. Three petitioners and three respondents will argue the case on either side. The rest of the class will take notes, comment on what they saw, and analyze the justices’ final verdict.

      Appendix A: Lyrics to Yo Yo Money Singh's Parody

      I got, Money, Money, Money, Money, 

      You don't, Ha, Ha, Ha, Ha

      I need, Money, Money, Money, Money

      For weed, Money, Money, Money, Money

      And speed, Money, Money, Money, Money

      My creed, Is Money, Money, Money, Money

      Appendix B: Lyrics to The O'Jays' Original Song

      Money, money, money, money, money [6x]

      Some people got to have it

      Some people really need it

      Listen to me y'all, do things

      Do things, do bad things with it

      You wanna do things, do things

      Do things, good things with it

      Talk about cash money, money

      Talk about cash money

      Dollar bills, y'all

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