COPYRIGHT LAW 2006 Columbus School of Law The Catholic University of America Prof. Fischer April 20, 2006

PUBLIC PERFORMANCE AND DISPLAY RIGHTS What works do these apply to? See 106(4), (5), and (6) Basically if it moves it’s a performance (e.g. plays, dances, movies, public readings of books) and if not a display (e.g. paintings, sculptures, physical copies of books) For sound recordings - to perform publicly by means of a digital audio transmission, such as webcasting over Internet

PUBLIC PERFORMANCE 1. Public performance if perform at a place open to public or where a substantial number of persons outside of a normal circle of family and social acquaintances are gathered 2. Or if transmit to a place specified in clause (1) or to public by means of any device or process where members of public capable of receiving performance receive in same place or in separate places and at same time or separate times.

IS IT A PUBLIC PERFORMANCE If you rent a movie and show it at home to 12 friends and neighbors? If you show it at summer camp? If you broadcast it on network TV?

PERFORMING RIGHTS SOCIETIES What’s a performing rights society? What are the big 2 performing rights societies in the U.S.?

PERFORMING RIGHTS SOCIETIES ASCAP, BMI are the 2 biggest (SESAC is another small one) How does ASCAP work? What is a blanket license? Note that ASCAP can’t sue for infringement in its own name. How do you challenge ASCAP or BMI fees? What’s the difference between GRAND rights and SMALL rights?

RIGHT OF PUBLIC DISPLAY See section 106(5) Only applies to certain kinds of work See definition of “display” in section 101 How does First Sale doctrine apply to the right of display? See 109(c) nge.com/rates.html

DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS Prior to section 106(6), no public performance right for sound recordings Added in 1995 (amendments to 106, 114). Why? Digital Performance Right in Sound Recordings Act of 1995: new statutory license Digital Millennium Copyright Act of 1998: expanded statutory license to include webcasting

Section 114 statutory license Section 114 statutory license covers: public performances by four classes of digital music services: eligible nonsubscription services (i.e., noninteractive webcasters and simulcasters that charge no fees), preexisting subscription services (i.e., residential subscription services providing music over digital cable or satellite television), new subscription services (i.e., noninteractive webcasters and simulcasters that charge a fee), and preexisting satellite digital audio radio services (i.e., XM and SIRIUS satellite radio services).

Section 112 statutory license The section 112 statutory license covers ephemeral reproductions (i.e., temporary server copies) made by all digital music services covered by the section 114 license as well as certain background music services that are exempt from paying public performance royalties under section 114.

DIGITAL PERFORMANCE RIGHT Rates now set by Copyright Royalty and Distribution Act 2004 arbitration proess (3 Copyright Royalty judges). See current rates at:

FULL PERFORMANCE RIGHT IN SOUND RECORDINGS IN 1994 and 1996 Congress considered creating a full performance right in sound recordings, in addition to that for musical compositions. Is a general public performance right appropriate for sound recordings? How should it be squared with the existing public performance right for musical compositions?

What Public Interest Exceptions Exist For Right of Public Performance and Display? See section 110

What Exceptions Exist For Right of Public Performance and Display? Face-to-face teaching 110(1) certain instructional broadcasts 110(2) - note controversy over whether this is appropriate in a digital age for distance learning played/sung as part of religious service 110(3) nonprofit performance 110(4)

COMPULSORY LICENSES Section TV broadcast relays Section satellite transmission Section recordings of musical works Section jukeboxes Section public broadcasting Section 114 – performances digital sound recordings

Fair Use What is fair use? Why does copyright law have a doctrine of fair use?

Codification of Fair Use Fair use was originally a judge-made doctrine, but it was codified in the 1976 Act at what provision?

Codification of Fair Use Fair use was originally a judge-made doctrine, but it was codified in the 1976 Act at what provision? At 17 U.S.C. section 107 According to this section, how should a court determine whether a use made of a copyrighted work is a fair use that would exempt the use from liability for infringement?

Fair Use Factors (1) purpose and character of the use (commercial or non-commercial eg. educational?) (2) nature of copyrighted work (fact or fiction?) (3) amount and substantiality of amount used (4) effect on the market for the copyrighted work Does it make any difference if a work is unpublished?

Fair Use Factors (1) purpose and character of the use (commercial or non-commercial eg. educational?) (2) nature of copyrighted work (fact or fiction?) (3) amount and substantiality of amount used (4) effect on the market for the copyrighted work Does it make any difference if a work is unpublished? NO

Fair Use is VERY fact-specific Section 107 restates judicial doctrine of fair use Fair use is essentially an “equitable rule of reason” so there is no “generally acceptable definition” Each case must be decided on its own facts There are no bright-line rules, as Justice Souter has stated. Of course, this makes it hard for lawyers to advise clients on when a particular use of a copyrighted work will be a fair use.

Fair Use and Parody: The Acuff- Rose case How does Justice Souter apply the 4 fair use factors to analyze whether the rap song’s use of the Roy Orbison song is a fair use? Does it make any difference that the rap song is commercial? Does it matter if the parody is in bad taste, or not funny? Do you agree with Justice Souter’s analysis? Why or why not?

The Cat in the Hat case Why did the court rule against the parody defense for the book on the O.J. Simpson Trial?

Annie Leibovitz Naked Gun Case

Why did Leibovitz sue over the “Naked Gun” ads. Did fair use apply? Why or why not? Is this consistent with the Dr. Seuss case?

Gone With the Wind case Suntrust Bank v.Houghton Mifflin (11 th Cir. 2001) According to the 11 th Circuit, should the The Wind Done Gone be treated as a fair use parody even though it was not comic? Why or why not? Do you agree?

Seinfeld case: Castle Rock v. Carol Pub. (2d Cir. 1998) Was the preparation and sale of Seinfeld Aptitude Test a fair use, according to the Second Circuit? Why or why not?

Fair Use Generally Are all these cases just hopelessly inconsistent? How does one advise a client on the issue of fair use? How, if at all, should the doctrine be changed?

Fair Use Generally: To Consider Are all these fair use cases that we read in the last class just hopelessly inconsistent? How does one advise a client on the issue of fair use? How, if at all, should the doctrine be changed?