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Being Careful
Not To Infringe On Copyright of Others
Stanley Kang
Lowe Hauptman & Ham LLP
Suite 1400
2318 Mill Road
Alexan...
Overview of Copyright
 Features:
 Protected by law (title 17, U.S. Code) to the authors/creators of
“original works of a...
Infringement Determination
3
- Copyright infringement is a deceptively complex cause of action because the test for infrin...
4
Case history
 Pharrell Williams, et al. composed the hit song “Blurred Lines.” Frankie Christian Gaye, et al.
claimed ...
“Blurred Lines” Copyright Dispute
- the blurred lines between copying another’s work and being influenced or inspired by i...
6
 “The jury blurred the lines between protectable elements of the musical composition and what is
unprotectable, which i...
7
 Bright Tunes Music v. Harrisongs Music (1976) – Subconscious plagiarism
“Did Harrison deliberately use the music of He...
Strategies (in general)
- In the United States
8
 Need to actively consider a settlement, even there is
obvious differenc...
Strategies (in licensing - to avoid a license to be invalidated)
- In the United States
9
 (1) Music creators should be f...
Strategies
- In international Market
10
 There is no such thing as an “international copyright” that will automatically p...
Thank you
For your attention !
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Copyright_sang yoon kang

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Being Careful Not To Infringe On Copyright of Others
-Music Sampling issues-

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Copyright_sang yoon kang

  1. 1. Being Careful Not To Infringe On Copyright of Others Stanley Kang Lowe Hauptman & Ham LLP Suite 1400 2318 Mill Road Alexandria VA 22314 Tel. (703) 684-1111 Fax. (703) 518-5499 www.ipfirm.com ©2014—Lowe Hauptman & Ham , LLP - All Rights Reserved Note: in most jurisdictions disclaimers of liability are subject to regulation. The provisions of a disclaimer may be unenforceable, and may even give rise to liability on the part of the person using the disclaimer. We therefore suggest that you take legal advice from a lawyer qualified in the relevant jurisdiction before using this disclaimer.
  2. 2. Overview of Copyright  Features:  Protected by law (title 17, U.S. Code) to the authors/creators of “original works of authorship.”  Works such as poetry, movies, CD-ROMs, video games, videos, plays, paintings, sheet music, recorded music performances, novels, software code, sculptures, photographs, choreography and architectural designs, are protected.  To qualify for the protection, works must be “fixed in a tangible medium of expression.” The works must exist in some physical form for at least some period of time, no matter how brief. Idea itself cannot be protected.  To receive the protection, works must be the result of at least some creative effort on the part of its author.  Facts that an author discovers in the course of research are in the public domain, free to public, not protected even if the author spends considerable time and effort discovering things that were previously unknown.  For works published after 1977, the copyright lasts for the life of the author plus 70 years.  If the work is a work for hire (done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published.  Registration:  Filing an application and Depositing one or two samples of the work (depending on what it is) with the U.S. Copyright Office (Online E-Filing is available; $35 per an application).  The work must be registered with the U.S. Copyright Office to be legally permitted to bring a lawsuit to enforce it.  Copyright can be registered at any time, but “Timely registration” — within three months of the work’s publication date or before any copyright infringement actually begins — makes it much easier to sue and recover money from an infringer. It creates a legal presumption that your copyright is valid, and allows you to recover up to $150,000 without having to prove any actual monetary harm.  Enforcement:  If someone infringes a registered copyright, the owner of the copyright is entitled to file a lawsuit in federal court asking the court to: - Issue orders (restraining orders and injunctions) to prevent further violations - Award money damages if appropriate, and - In some circumstances, award attorney fees.  Copyright owner bears the burden of proving infringement 2 - The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. - United States Constitution, Article I, Section 8
  3. 3. Infringement Determination 3 - Copyright infringement is a deceptively complex cause of action because the test for infringement is necessarily vague.-  Under copyright law, To establish a claim for infringement: • (1) ownership of a valid copyright. • (2) copying of constituent elements of the work that are original.  When proof of direct copying is not available, a work may be considered copied if the two works are found to be substantially similar.  Direct evidence of copying is only found in “rare cases,” and a “finding that a defendant copied a plaintiff’s work, without application of a substantial similarity analysis, has been made only when the defendant has engaged in virtual duplication of a plaintiff’s entire work.”  “[T]he unprotectable elements have to be identified, or filtered, before the works can be considered as a whole.” Two-part test to determine substantial similarity: (1) Objective extrinsic test •the extrinsic test requires the judge to analytically dissect the work into its elements and filter out the unprotected elements and must thereby find substantial similarities between the works’ protected elements. •“To the extent a plaintiff’s work is unprotected or unprotectable under copyright, the scope of the copyright must be limited” prior to conducting this analysis.” •A court generally considers expert testimony in order to perform what is called “analytical dissection” of a work. “’Analytical dissection’ requires breaking the works ‘down into their constituent elements, and comparing those elements for proof of copying as measured by substantial similarity.’ (2) Subjective intrinsic test •Intrinsic analysis for a jury. •Question whether an “ordinary, reasonable person would find the total concept and feel of the [two works] to be substantially similar.”
  4. 4. 4 Case history  Pharrell Williams, et al. composed the hit song “Blurred Lines.” Frankie Christian Gaye, et al. claimed an ownership interest in a composition by Marvin Gaye: “Got to Give It Up,” which was composed in 1976. The musical composition “Got to Give It Up” was registered with the United States Copyright Office, Registration Number EP 366-530.  Released in March 2013, “Blurred Lines,” performed by Thicke, became a great hit, selling more than six million digital copies.  “Blurred Lines” song has captured much public attention, including the attention of the family of Marvin Gaye who accused Thicke of using elements of Marvin Gaye's song, “Got to Give It Up” in “Blurred Lines” and allegedly threatened litigation if a monetary settlement were not paid.  In a trial, the jury comprised of five women and three men heard dueling opinions regarding "Blurred Lines" and decided to order Thicke and Williams to pay $4 million in copyright damages plus profits attributable to infringement, which for Thicke was determined to be $1.8 million and for Williams was determined to be $1.6 million. Both escaped statutory damages as the infringement was found not to be willful. Music artists can be found liable if an audience perceives that their music feels too similar to an older song’s groove. “Blurred Lines” Copyright Dispute - the blurred lines between copying another’s work and being influenced or inspired by it-
  5. 5. “Blurred Lines” Copyright Dispute - the blurred lines between copying another’s work and being influenced or inspired by it- Vs. Check it out by yourself!
  6. 6. 6  “The jury blurred the lines between protectable elements of the musical composition and what is unprotectable, which is a musical style or genre, the groove exemplified by Marvin Gaye.” “Although both songs feature a cowbell and electric piano, the vocal melodies and lyrics are very obviously different from one another.” • Considering not only vocal melodies and lyrics but also a musical style or genre, and a groove is necessary to avoid a possible infringement on copyright of others.  In general, the music industry where copyright lawsuits are commonplace, but few such suits ever make it to trial. For example, the highest profile disputes like the one between Tom Petty and Sam Smith over "Stay With Me" usually settle. However, the “Blurred Lines” copyright dispute went to Trial. • It is necessary to anticipate and to ready regarding more copyright infringement allegations and trials, than before the “Blurred Lines” copyright dispute. Motion for Summary Judgement can be denied.  The court held that “There were genuine issues of material fact as to whether relevant components of “Got to Give It Up”—specifically, its 11-note signature phrase, four-note hook, four-bar bass line, 16-bar harmonic structure, and four-note vocal melody—were protectable expressions.” • We should expect that, alike in the “Blurred Lines” copyright dispute, more elements can be protected even if a copyright owner registered only lead sheets of his music in Copyright Office. Impacts of “Blurred Lines” Copyright Dispute - Need To Consider To Avoid Future Possible Disputes -
  7. 7. 7  Bright Tunes Music v. Harrisongs Music (1976) – Subconscious plagiarism “Did Harrison deliberately use the music of He's So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He's So Fine with different words, and Harrison had access to He's So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.”  Grand Upright Music, Ltd. v. Warner Bros. Records Inc. (1991) – Uncleared sampling Warner Music was sued for having used an uncleared sample in "Alone Again", a song from Biz Markie's third album. Warner Music lost, and the judge even referred the case for criminal prosecution (considering it theft). “As a result of the court case, the sound of hip hop music, heavily based upon combinations of various samples from various sources, was forced to change. Records such as those produced by The Bomb Squad for Public Enemy, filled with literally dozens of samples, were no longer possible: each and every sample had to be cleared to avoid legal action“  Bridgeport Music, Inc. v. Dimension Films (2005) – Right to sampling "A sound recording owner has the exclusive right to “sample” his own recording…Get a license or do not sample. We do not see this as stifling creativity in any significant way." Other Notable Cases in Music Industry
  8. 8. Strategies (in general) - In the United States 8  Need to actively consider a settlement, even there is obvious differences in the vocal melodies and lyrics. In the “Blurred Lines” dispute, since there was arrogant and inconsistent testimony from the artist, the Motion for Summary Judgement has been denied and the dispute went to Trial.  Anything could potentially be a marker of style - a cadence, a timbre, a chord progression.  A broad notion to avoid a potential infringement is needed.  Even Williams and Thicke highly influenced by “Got To Give It Up” and the jury determined substantial similarity between “Blurred Lines” and “Got To Give It Up,” an Willful Infringement is not found.  We can use this fact to convince a copyright holder who claims a copyright infringement against us, to make a settlement. Even if he win at a trial, he needs a time and expenses (e.g., attorney fees)  Possible Defenses against infringement claims: - The statute of limitations defense: Too much time has elapsed between the infringing act and the lawsuit. - Infringing work was independently created (that is, it wasn’t copied from the original). - Fair Use defense, if someone has good reason to believe that a use is fair — but later finds herself on the wrong end of a court order — she is likely to be considered an innocent infringer at worst, who often doesn’t have to pay any damages to the copyright owner, but does have to cease the infringing activity and sometimes must pay the owner for the reasonable commercial value of that use.  Using Pre-Registration Scheme - For limited purposes, mainly where a copyright owner needs to sue for infringement while a work is still being prepared for commercial release. - Not a substitute for registration, and but it is simply an indication of an intent to register a work once the work has been completed and/or published. A person who has preregistered a work must register the work within one month after the copyright owner becomes aware of infringement and no later than three months after first publication. - Requirements: (1) the work must be unpublished. (2) the work must be in the process of being prepared for commercial distribution in either physical or digital format and the applicant must have a reasonable expectation of this commercial distribution. (3) Sound recordings and Musical compositions fall within the following classes of works determined by the Register of Copyrights to have had a history of infringement prior to authorized commercial distribution.  When We attacked  When Creating and Publishing Music Investing sufficient time to clear potential infringement issues – Look closely procedures of composing and arranging our music, and Check whether composers and arrangers are influenced by someone other’s music. Actively Licensing with copyright holder – Make a prudent contract (next page) Using alternatives to sampling – e.g., Royalty-free Music, Cover Songs, Creative Commons License Songs.  For Protecting Our Music
  9. 9. Strategies (in licensing - to avoid a license to be invalidated) - In the United States 9  (1) Music creators should be fairly compensated for their contributions. Fair Rate setting (publishers/songwriters/record labels/artists)  (2) The licensing process should be more efficient. Utilizing a pre-agreed licensing scheme for making a new licensing contract (e.g., New Digital Media Agreements, “NDMA’s”)  (3) Accessing to authoritative data to identify and license sound recordings and musical works. General Music Rights Organization (GMRO), which is a non-profit entity designated and regulated by the government, could help streamline and regulate the process of licensing musical works by coordinating licensing and royalty payments by providing the authoritative data.  (4) Transparently Sharing Payment and usage information with rights-holders. Considering new technologies (e.g., mobile streaming) for providing musical works to users, and Calculating rates for the rights-holders based on this consideration.
  10. 10. Strategies - In international Market 10  There is no such thing as an “international copyright” that will automatically protect our music throughout the world. Protection against unauthorized use in a particular country depends on the national laws of that country, in their jurisdiction. However, copyright protection rules are fairly similar worldwide, due to several international copyright treaties, the most important of which is the Berne Convention.  The protection under the Berne Convention must last for at least the life of the author plus 50 years, and must be automatic without the need for the author to take any legal steps to preserve the copyright.  The GATT (General Agreement on Tariffs and Trade) treaty is another international copyright treaty. It contains a number of provisions that affect copyright protection in signatory countries, for allowing U.S. authors to enforce their copyrights in most industrialized nations, and allowing the nationals of those nations to enforce their copyrights in the U.S. We should be careful not to infringe someone other’s music in foreign countries. We can also consider that our music can be protected in the foreign countries.
  11. 11. Thank you For your attention !

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