We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, copyright allies are taking on different elements of the law, addressing what's at stake, and discussing what we need to do to make sure that copyright promotes creativity and innovation.
Happy Copyright Week! To celebrate, I’m looking back on all the exciting copyright cases that have occurred since last year’s Copyright Week, with courts and the music industry alike tackling everything from uncredited sampling to fair use dancing babies. I’ve rounded up some of the highlights of the year’s upheaval, and took the liberty of suggesting a few edits to reflect the changing times. (And yes, that does mean I’ll be reviewing landmark music copyright cases via lyrical skits.)
Song: “Blurred Lines” by Robin Thicke vs. “Got to Give it Up” by Marvin Gaye
Thicke and collaborator Pharrell Williams found themselves in court early last year over allegations that several elements of their creeper anthem too closely resembled Marvin Gaye’s “Got to Give it Up.” After months of argument, a jury found that Williams and Thicke substantially copied Gaye’s work. Thicke and Williams have appealed the case.
Suggested lyrics: You're a good beat / It’s basically a sample / Who knew a drum beat / Could end up such a hassle / I hate this bass line
Song: “Happy Together” by The Turtles
Status: Nobody’s happy, but at least we’re all together.
This in-the-weeds case upended sound recording rights as we know it — by rewriting history.
Federal copyright law only started to cover sound recordings in the mid-70s. As a result, recordings made prior to 1972 aren’t protected by federal copyright law; they fall instead under a patchwork of state laws. The two regimes have one major difference in the public performance right, which entitles a copyright holder to payment whenever their song gets airtime. Federal law grants a performance right for digital streaming; state laws (at least in New York and California) do not. Neither state nor federal law gives a performance right for over-the-air, terrestrial radio broadcasting. This means that, for decades, all kinds of music services — satellite, AM/FM, and streaming alike — could play pre-72 recordings without a public performance fee.
This ecosystem was upended when two former members of the Turtles (who held rights to the master recordings of a handful of tracks, including “Happy Together”) sued Sirius XM in New York, California, and Florida. They argued that the industry had been getting it all wrong for decades, and that because state laws never explicitly prohibited performance rights, they functionally granted them. Judges in New York and California agreed, and the music copyright world went absolutely insane. Rightsholders for pre-72 recordings are now looking to collect en masse, and Al Green’s estate has gone so far as to sue AM/FM radio stations (who have never had to pay a public performance fee for any recording) for brand-new royalties.
Suggested lyrics: Me and you, pre-‘72 / You may have thought you’d paid your share, but it’s not true / The judge agrees and suddenly, you’ll owe me too / Aren’t state courts a treasure?
Song: “Get Crazy” by Prince vs. a Mom on YouTube
Status: Takedowns got crazy.
In 2007, Pennsylvania mother-of-two Stephanie Lenz uploaded a 29-second video of her infant son Holden dancing to “Let’s Go Crazy” by Prince. Universal Music sent YouTube a takedown notice, accusing Lenz of copyright infringement for posting the video with the song in the background. After 8 years of litigation, the court decided that Universal’s takedown notice was a “material misrepresentation” of the law, because it failed to consider that Lenz’s clip was almost certainly protected as fair use. The ruling made public interest advocates want to dance like Holden.
Suggested Lyrics: And if a license bot tries 2 take u down / Go crazy – that’s what fair use is for
Song: “Bad Blood” by Taylor Swift, feat. the entire streaming industry
Status: T. Swift gets angry; Apple and Spotify end up at the wrong end of a witch hunt.
Taylor Swift has had a hell of a year crusading against free streaming. In August she took aim at Apple Music’s decision to not pay (at least some) labels for use of their music during its three-month free trial program for consumers. Swift’s 4 a.m. response letter caused an instant Apple reversal. This comes as no surprise to anyone who followed her dramatic pull-out from Spotify last year, where she claimed that free streaming “devalues” music. The irony is two-fold: one, that the percentage of revenue that makes it to the artists from streaming deals like Apple’s and Spotify’s depends entirely on the artist’s contract with their record label (and not, as popularly parroted, on “stingy streaming services”); and two, that Swift’s songs continue to remain on YouTube, for free streaming at any time.
Suggested Lyrics: Streaming won’t fix royalties / you can’t save this industry / If you wanna play, don’t play for free
Song: Santa Claus is Coming to Town
Status: Santa Claus came home for Christmas — for good.
In 1976, Congress gave songwriters one of the greatest Christmas gifts of all time: reversion rights, which allow songwriters to reclaim the rights to their work 35 years after initial publication. Because reversion is only available for rights transfers made after the law took effect in 1976, we’re only now seeing the first instances of composers finally taking control.
Songwriters J. Fred Coots and Haven Gillespie penned the Christmas classic “Santa Claus is Coming to Town” in 1934. The rights eventually wound up with publishing giant EMI, who renewed the contract a handful of times over the years — including in 1981. EMI tried to argue that the 1981 agreement wasn’t a new contract, but the court wasn’t buying it; it sided with the heirs, granting them full control over the rights beginning in 2016. Talk about a Christmas gift.
Suggested Lyrics: He’s licensed his work / He’s now changed his mind / Thirty-five years was plenty of time / Writers’ rights have come back to town
Song: “Shake it Off” by Taylor Swift (feat. Jesse Braham?)
Status: Haters gonna hate, but they won’t necessarily win in court.
Pastor and R&B artist Jesse Braham sued Swift for $42 million, claiming that she ripped off his lyrics (“Haters gone hate, playas gone play / Watch out for them fakers, they’ll fake you everyday”) for her hit single. This case would have been a non-story were it not for the judge’s opinion, which we will let speak for itself.
“At present, the court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the court is not sure Braham can solve them. As currently drafted, the complaint has a blank space — one that requires Braham to do more than write his name. And, upon consideration of the court’s explanation in part two, Braham may discover that mere pleading band-aids will not fix the bullet holes in his case. At least for the moment, defendants have shaken off this lawsuit.”
Suggested Lyrics: None. All legal documents should be comprised entirely of Swift lyrics.
Image credit: Wikimedia Commons