Mbu 2520 spring 2020 chapter 6

1. MBU 2520 Spring 2020 - Eric M. Griffin
The Derivative Right
The Distribution Right

2. The COPYRIGHT Bundle of Rights
MBU 2520 Spring 2020 - Eric M. Griffin
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Under the US Constitution, Copyright guarantees an exclusive “Bundle of Rights” to
Authors/Creators. This essentially creates a ”Limited Duration Monopoly.”
The Bundle of Rights: RDPDDD
1. Reproduction: Right to make copies. Mechanical Royalty
2. Distribution: Sale to the public resulting in transfer of ownership of that copy
3. (public) Performance: Performance Royalty. Collected by PROS, etc.
4. Derivative: Synch Royalty, Sampling.
5. (public) Display. Not as common with music.
6. (public performance of Sound Recording) via DIGITAL AUDIOTRANSMISSION.

3. MBU 2520 Spring 2020 - Eric M. Griffin
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The Derivative Right:
Section 106(2) of the © Act gives owners the Right to Adapt or revise a © work,
subject to certain limitation(s).
What is a Derivative Work?
1. Taking an existing work and adapting it in some way to create a new work.
Historically, there has been a reluctance to give protection to derivative works.
1909 Act was the first in the US to recognize derivative works.
1976 Act Continued that protection.

4. MBU 2520 Spring 2020 - Eric M. Griffin
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The Derivative Right:
Requirements for Derivative Works:
1. Must Borrow from another work.
2. Must recast, transform or adapt the original work.
1. New, original expression must be added.
3. Absent a defense (such as Fair Use), the author of the derivative work must get a
license from the owner of the existing work.
NOTE: While creating a derivative work requires originality, expression & fixation, a
derivative work need not be fixed in order to be an infringement.
Ex. A derivative version of a song need not be recorded or fixed to be
an infringement.

5. MBU 2520 Spring 2020 - Eric M. Griffin
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The Derivative Right:
Common Types of Derivative Works:
1. Editorial Revisions: (work revising a previous work; eg. later editions)
2. Fictionalizations: Creating a fictional work from a preexisting nonfiction work.
3. Dramatizations: Transforming a work into one that can be performed on stage or in a
film.
4. Translations to a New Language: Translating often requires creative choices that
may satisfy the requirements of originality and expression needed.
5. Translation to a New Medium: Transformation from one medium into another.
(Composition to Sound Recording)
6. Abridgements & Condensations: Creating a shorter version of original.

6. MBU 2520 Spring 2020 - Eric M. Griffin
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The Derivative Right:
There is a Limited Degree of Protection for Derivative Works:
Protection of a Derivative Work extends ONLY to the original material contributed.
1. If a work is public domain, creation of a derivative work does NOT change that.
2. Failure to get permission to use a copyright protected work to make a derivative work
means the resulting derivative work is NOT protected.

7. MBU 2520 Spring 2020 - Eric M. Griffin
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The Derivative Right:
Derivative Musical Arrangements:
Derivative Works are generally held to a slightly higher standard of originality than
purely original works. Especially with musical arrangements.
Because musical composition is a fairly limited musical vocabulary, arrangements
must contain substantial variations in order to qualify as derivative works..
HOWEVER, if the author does make substantial variations beyond
embellishments, accompaniment, and arrangements a new work may
exist.
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8. MBU 2520 Spring 2020 - Eric M. Griffin
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The Derivative Right:
Derivative Musical Arrangements:
Shapiro, Bernstein & Co. v. Jerry Vogel Music Co. – Not copyrightable. The court
ruled that a derivative musical composition was not copyrightable because the only new
elements added to the original work were a change in rhythm and accompaniment.
Wood v. Boosey – Copyrightable. Converting opera into piano arrangement. The ruling
was that a piano arrangement of an opera qualified as a derivative work. They decided
that by the translation of a score of many instruments into a piece for only piano,
constituted a significant departure from the original work and was therefore worthy of
protection as a derivative work.

9. MBU 2520 Spring 2020 - Eric M. Griffin
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The Derivative Right:
Derivative Sound Recordings:
Derivative Sound Recordings are generally Remixes or Mashups. “New assemblages,
arrangements or collages of pre-existing sound recordings
REMIX: Taking apart the sounds of a recording and reassembling them to create a new one
- Must get permission from owners of BOTH composition and sound recording.
- If performed publicly, must still pay performance royalty. (Venue usually handles this.)
MASH UP: A collage of multiple sound recordings combined to create a new one.

10. MBU 2520 Spring 2020 - Eric M. Griffin
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The Derivative Right:
MASH Ups (cont.):
The determination of whether a mashup violates the law is generally a case by case determination.
Mashup artists who seek protection under fair use may find their works protected, depending on how much
it transforms the original work. Mashup artists usually splice up samples, edit pitch and tempo, and mix up
the original work.
While the samples are meant to be recognizable, mashup artists typically aim to create enough of a
difference between the pieces so that the new work has artistic merits of its own.
Using samples of different songs to create a new song could also be a form of critical commentary. In this
case, Mashups could be considered a form of free expression protected under fair use. Still, most mashup
artists are aware that their work could be questioned at any time by the original artist.
There are currently no court opinions offering any guidelines on mashups, and there are no
distinct legal guidelines for determining whether or not a non-parodic work is protected under
fair use.

11. MBU 2520 Spring 2020 - Eric M. Griffin
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The Derivative Right:
Arrangements Under a Complusory License:
Making a Sound Recording according to a compulsory mechanical license often requires
some form of changes to fit the artist’s style. Therefore the license includes this necessary
privilege.
1. This privilege is very limited and allows only minimal changes.
2. Cannot change the basic melody or fundamental character of the work.
3. The recording is NOT entitled to protections as a Derivative Work without express
consent of the copyright owner.
This examination is made by looking at the PURPOSE of this provision. For example, a
change in gender or key is likely meant to fit the performer. Significant changes in the song
would mean a change in the fundamental character of the work. This requires
express permission of the copyright owner.

12. MBU 2520 Spring 2020 - Eric M. Griffin
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The Derivative Right:
Copyrighting Works falling into the
Public Domain
In some cases, such as with the works of
Gilbert & Sullivan, the copyright owner may
make arrangements of a work just prior to it
falling into public domain. This does NOT
prevent the underlying work from falling into
the Public Domain. BUT the owner was
able to continue to profit from licensing the
new arrangements as copyrighted
derivative arrangements.

13. The COPYRIGHT Bundle of Rights
MBU 2520 Spring 2020 - Eric M. Griffin
.
Under the US Constitution, Copyright guarantees an exclusive “Bundle of Rights” to
Authors/Creators. This essentially creates a ”Limited Duration Monopoly.”
The Bundle of Rights: RDPDDD
1. Reproduction: Right to make copies. Mechanical Royalty
2. Distribution: Sale to the public resulting in transfer of ownership of that copy
3. (public) Performance: Performance Royalty. Collected by PROS, etc.
4. Derivative: Synch Royalty, Sampling.
5. (public) Display. Not as common with music.
6. (public performance of Sound Recording) via DIGITAL AUDIOTRANSMISSION.

14. MBU 2520 Spring 2020 - Eric M. Griffin
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The Distribution Right:
Section 106(3) of the © Act gives owners the Right to Distribute the work to the public
and to authorize others to distribute “copies or phonorecords of the copyrighted work
to the public by sale or transfer of ownership, or by rental, lease, or lending.”
Section 106(3) applies not only to sale, but also to all forms or transfer,
including giving away or renting copies of phonorecords.

15. MBU 2520 Spring 2020 - Eric M. Griffin
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The Distribution Right:
In 1972 the main reason for adding protection for sound recordings was to provide
protections against Record Piracy.
Piracy = reproducing copyrighted sound recordings and distributing
unauthorized phonorecords. Piracy always involves violation of Reproduction
and Distribution Rights.
Piracy can carry penalties for actual damages, lost profits, statutory damages of up
to $150,000 per infringement and even criminal penalties. If the infringing activity is
for commercial advantage or private financial gain, penalties can be $250,000 fines
and 5 yrs in jail. Up to 10 yrs for repeat offenders.
No Electronic Theft Act = Applies to infringement w/out monetary profit or
commercial gain. (Filesharing, etc.)

16. MBU 2520 Spring 2020 - Eric M. Griffin
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Fighting Piracy
RIAA (Recording Industry Association of America)- trade organization for major
labels.
IFPI – International Federation of the Phonograph Industry – International body
Piracy is still a massive problem although it gets less attention than in the past.
- “One Copy Countries”
-Piracy can be fought in may ways, and it’s best to use lots of different approaches.

17. MBU 2520 Spring 2020 - Eric M. Griffin
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The Distribution Right:
Limitations on the Distribution Right:
1. First Sale Doctrine – The owner of a legal copy or phonorecords MAY sell
or otherwise dispose of the possession of that copy or phonorecord
without author’s permission
 Allows the resale of used CDs or rental of DVDs
Does NOT apply if first sale was unlawful OR if it occurred outside the USA.
Record Rental Amendment of 1984 – Says that First Sale DOES NOT
APPLY to the rental of CDs or other phonorecords. There are exceptions
for libraries and non-profit educational institutions.