Monkey Selfie

Lawyers often struggle trying to come up with novel legal strategies to help their clients achieve their aims.  However  there must be some sort of award for creative advocacy for the lawyers at Irell & Manella who represented Naruto, the now‑famous macaque from Indonesia in the so‑called "monkey selfie" case.  As anyone who follows this knows, Naruto is the animal who used photographer David Slater's camera to take several well-executed self-portraits.  Slater, a nature photographer understandably exploited  the photographs,  causing Naruto, or rather PETA on Naruto's supposed behalf,  to file suit to assert a copyright in the work.

            It is a funny question but it does make one think about fundamental issues underlying copyright law.  One of the examples I always use when I teach copyright law is to ask students to explain why photographs are capable of copyright protection.  The answer must always depend on whether or not the image in question contains a sufficient amount of originality.  If a monkey presses the button on a camera,  is that an act of original expression?  (See also the "monkey typewriter theory hypothesis theorem" i.e. any monkey with a typewriter …).

            Interestingly, the argument, as expressed in the plaintiff's brief in opposition to Slater's motion to dismiss the lawsuit really doesn't address the issue as much as it takes on  the Copyright Act's definition of "authorship".  The Copyright Act defines the "owner" of a work as "initially" the "author" of the work but does not define "author".  This fact is curious in that the Act explicitly defines nearly every other term but as courts have recognized, the word "author" is actually used in the United States Constitution.

            Since the word "author" is not defined, Naruto argues that the Act cannot exclude non‑humans and that animals should have equal standing as humans in terms of their ability to create and protect their works.  All of this may sound eccentric but the brief is fascinating.  It touches not only upon works by animals but also  computer-generated art and "divine works of celestial beings".  More importantly it addresses the fact that before the Civil War, slaves were not allowed to obtain patents because although they were clearly capable of inventing things, they were not allowed to own property.

            I don't actually agree with the plaintiff's argument here (neither did the Ninth Circuit) but I think the brief is compelling and something to consider as we move into new areas of artificial intelligence and are confronted with new questions as to what is and is not capable of copyright protection. Naruto may be a trail blazer.

You Really Got a Hold On Me

            I recently read that Smokey Robinson had settled a dispute with his ex-wife Claudette over his right to exercise the termination of copyright assignment in his songs under the 1976 Copyright Act.  While I am all for both marital harmony and post-marital harmony it would have been fascinating to see how a court might have interpreted this intersection of federal copyright law and domestic relations.

 

            Robinson had taken the somewhat unusual step of filing an action for a declaratory judgment apparently after receiving a letter from his former wife's counsel asserting a community property interest in the compositions in question, despite the fact that the couple  had been divorced nearly for three decades.  He wanted the court to confirm the fact that the Copyright Act gives the right to terminate assignments and recapture copyrights to the author alone and not an ex-spouse and presumably, despite whatever economic effect this might have on the ex-spouse).

            The Copyright Act is pretty clear in this particular area but it does provide some fairly troublesome questions for divorcing spouses.  One wonders if when divorcing in 1985, the Robinsons even contemplated that Smokey would be able to recapture the copyrights to his greatest hits.  Was there a duty of disclosure (of an event that might occur 29 years in the future)?  We often see how divorce settlements can be impacted by the Copyright Act but I think that this might have presented a different take on the issue.  As the clock begins to run on some of these massive hits from the 60s and beyond we will no doubt see more of these cases and they are tremendously important.

Let Us Now Praise Flo and Eddie

I have been thinking a lot about Flo and Eddie (Mark Volman and Howard Kaylan a/k/a the Turtles) and their recent victories over Sirius XM Radio in California and New York.  Although subject to appeal, both these cases have established the principle of a digital public performance royalty available to the owners of sound recordings in those states which recognize these rights fixed in sound recordings prior to February 15, 1972. 

            What does this mean? 

            The U.S. Copyright Act provides for a public performance royalty (from digital transmission) to be paid to owners of sound recordings created after February 15, 1972.  This right led to the creation of Sound Exchange and all of those current arguments about how little Spotify, Pandora and the other streaming services are paying to recording artists..  For reasons that I cannot recall, the Act excluded those recordings created prior to February 15, 1972 but allowed the owners of those recordings to pursue common law remedies under state law against infringers.  This is one of the few areas not preempted by federal law under the Copyright Act.

            Historical trivia:  Neil Young's "Harvest" was released on February 14, 1972 – (one day before the law went into effect).

            Several states such as California, New York and Florida have laws on the books that give protection to owners of sound recordings (Tennessee is currently looking at updating its law).  California law is pretty clear.  The relevant section of California Civil Code § 980(a)(2) reads as follows:

                        The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972 has an exclusive ownership interest therein until February 15, 2047 as against all persons except one who independently makes or duplicates another sound recording that does not directly or indirectly capture the actual sounds fixed in such prior recording, but consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate the sounds contained in the prior sound recording. 

 

            The court in the California case agreed that the language gave Flo and Eddie the right to pursue an infringement action against Sirius Radio for digitally transmitting the Turtles' recordings and accordingly gave them a summary judgment on this particular issue. 

            Note that this judgment applies to the State of California.  How that judgment works out on a national basis in practice is open to debate.  The plaintiffs have won a similar case in New York and my understanding is that they are pursuing a case in Florida as well.

            Shortly after the decision a friend of mine asked what ramifications this decision would have for other "heritage" artists such as classic country artists whose  recordings are played on other Sirius XM stations.  Ultimately, my gut feeling is that the effect will be minimal for the reason that the Turtles (unlike the vast majority of recording artists from that era) own their master recordings.  The master recordings of most other artists are owned by record companies – major labels and/or once independent companies who were absorbed by major labels.  I have no idea what is going on behind closed doors but I am going to assume that the majors don't have any interest in suing satellite radio – one of their de facto partners in promoting music.  The smaller independents or artists who might own their own back catalogs may not have the resources to take on such a battle on their own.

            Nonetheless, Flo and Eddie have won an impressive and important battle because they addressed  an issue that everyone knew was blatantly unfair and they have claimed a moral and economic victory.This is not the first time they have gone to Court  to take a stand for artist’s rights and we all owe them a debt of gratitude.  It seems absurd to treat artists and the owners of sound recordings different due to an arbitrary date.  I don't know if this will ultimately be resolved through Congress, the courts or a grand compromise but the issue is now unavoidable.  Congratulations to  Flo and Eddie for taking it on. 

Making Sense of the Tennessee Legislature's Legacy Sound Recording Protection Act

I have been trying to figure out the two new bills introduced in the Tennessee Legislature by Stacey Campfield and G.A. Hardaway dealing with digital performance royalties for pre-1972 recordings. The first bill called "Legacy Sound Recording Protection Act" states on its face that "the owner of a sound recording initially fixed on or before February 15, 1972 has the exclusive right to (among other things)” perform the sound recording publicly by means of a digital or satellite audio transmission".

As Betsy Phillips pointed out in the Nashville  Scene blog, the bill goes hand in hand with another bill which apparently seeks to establish a payment to artists on the resale of fine arts (this is similar to a law in California and other states).

Strangely, my gut reaction that all of this state law action would be preempted by Section 301 of the Copyright Act was incorrect due to a provision in that section that states "with respect to sound recordings fixed before February 15, 1972 any rights or remedies under the common law or statutes of any state shall not be annulled or eliminated by this title until February 15, 2067."  It is well known that there is currently no federal copyright protection for sound recordings created prior to February 15, 1972.  However, I didn't realize that the Copyright Act specifically recognizes state laws protecting these older sound recordings.

 Until recently, state laws have been used fairly successfully in dealing with issues surrounding pre-1972 recordings. Campfield's bill draws attention to the fact that because there is no federal copyright protection for these older recordings, there is no digital performance royalty for these sound recordings either.  As digital delivery of music gains ever increasing traction, there appears to be a growing consensus that this needs to be remedied by Congress.  However as much as Campfield and Hardaway are to be commended for actually attempting to do something about this problem, it seems inconceivable that the law of one state (Tennessee) could protect "owners" of sound recordings in the other 49 states or that all 50 states would adopt some sort of uniform law  It also seems like a nightmare to lump these "owners" in with "artists" under the second proposed bill.

            I don't think this bill is the answer but I do think it is a step in the right direction and that it could force Congress to consider taking action in this area. Whether preemption applies or not, this is really a federal issue.

Read Those Old Contracts

I had a long conversation with a friend/client yesterday.  She mentioned that she had been reviewing some of her old publishing contracts and discovered that she was entitled to a reversion of some of the songs in her catalogs.  It is not unusual for songwriters, especially those who have been at this for awhile and have had multiple publishing deals to find out that there are elements of their contracts that they might not remember.

 Reversion clauses in contracts can be tricky because they are sometimes limited in terms of the amount of time the writer has to notify the publisher to exercise the reversion.

I can think of other types of reversions; for example some recording contracts may feature a reversion of masters and  all master license agreements essentially function the same way.  Again, the trick in all of these instances is that the artist has to take some affirmative action to get their materials back.

There are other dates to keep in mind. Old management contracts may contain sunset clauses-you don’t want to be paying commissions when it’s no longer required. Of course, all contracts have limitation periods after which one can no longer object to a statement or accounting.

Finally, as I have discussed before, with the coming onslaught of statutory terminations under the Copyright Act, keeping up with dates is going to be of more importance than ever before.

As a lawyer, I try to keep up with these important dates for my clients but it’s not always possible, especially when a client has changed attorneys, moved, etc.  Therefore, it is important for all artists to undertake this process-of going back through their old contracts.  You never know what you may discover.