'10 Digital Music Report Says Industry Still Reeling from P2P & New Forms of Infringement

The International Federation for the Phonographic Industry (IFPI) reports in its 2010 Digital Music Report (pdf) that despite hundreds of legit online music offerings (Pandora, Live365 etc.) and higher revenues in 2009, the music industry remains damaged by peer-to-peer file sharing and other forms of online infringement. Conflicting case law internationally, reports the IFPI, is further muddying the waters.

The IFPI has argued for several years that internet service providers (ISPs) "should take more responsibility for policing their networks through a 'graduated response' (or ‘three-strikes and you’re out’) mechanism that includes notices and warning letters to suspected infringers followed by internet access suspension if the first two stages are ineffective." Read more at IP-Watch.org.

Professor Tonya M. Evans
www.ProfTonyaEvans.com

Report Suggests Illegal Downloaders Are Also Most Likely to Purchase Music

Research findings in a recent report issued by the BI Norwegian School of Management seem to support the long and widely held belief among P2P file sharers that this group is ten times (that’s right, ten times!) more likely than their non file sharing counterparts to purchase legitimate downloads from services like iTunes.

This finding supports a 2006 report issued by the Canadian Record Industry Association that P2P users do in fact purchase music and are not the primary cause of recently sluggish sales. In fact, all of the research is pointing toward consumer disinterest or dissatisfaction, not illegal downloading, as primary factors.

BI’s Auden Molde was reported by Norwegian’s Music Information Centre to say: “The most surprising finding of this study is that the percentage of legally downloaded music is so high. The results of the study suggest that legal downloads outnumber illegal downloads by a wide margin. We also saw that users stating that they were involved in illegal P2P file sharing were in fact the legal download services' biggest clients.”

So perhaps the P2P file sharing "try before you buy" model is more boom than bust for a music industry that only puts 2 or 3 purchase-worthy tracks on a CD these days. Maybe ... just maybe, the P2P model is picking up the slack and filling in the information gap for consumers because radio stations fall far short by choosing to play (for some strange reason) the same 7 (or is it now 6?) songs every hour on the hour. Case in point: if I hear “Poker Face” one more time, I swear...

- Tonya M. Evans, Assistant Professor of Law and author of Copyright Companion for Writers

Visit her blog @ ipprof.blogspot.com

Fairey Update: Former NY Times Art Director Declares "Fairey Is No Crook"

Author and blogger Steven Heller, a former art director at The New York Times and co-chair of the MFA Design Department at the School of Visual Arts, wrote a thoughtful critique of the criticism of Shepard Fairey’s use of artistic works in his artistic activism. Food for thought as the debate wages on.

Also check out the scathing 2007 essay by Mark Vallen, entitled "Obey Plagiarist Fairey," which accuses Fairey (pictured at left) of being nothing more than a plagiarist and asserts that "Fairey simply filches artworks and hopes that no one notices."

This Fairey brouhaha is important for the hip hop community because one can gather great insight into how courts may approach and (perhaps?) alter existing copyright law as it relates to fair use. So stay close.

- Tonya M. Evans

The Great Debate: Borrowing or Infringement … That is the Question!

Article I, Section 8 of the United States Constitution empowers Congress “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.” (emphasis added). And so it seems that the intention of the founding fathers was to use the means of exclusive rights to achieve the ends of promoting the progress of the “useful arts,” which is now defined far more broadly than the common definition of “writings.”

However, existing copyright laws provide exclusive rights that endure for the life of a creator of an original literary or artistic work and 70 years after the creator’s death. I posit that such an extension of copyright protection and the attendant requirements for licensing and permissions may seriously and negatively impact an individual creator’s ability to borrow from the wealth of existing creative works to create something new and transformative, particularly in the case of a collaborative medium like music.

An example of this hypothesis may best be illustrated by the real and burgeoning impact intellectual property laws have had on hip hop music, the producers of which regularly use “sampling” (use of a recording of a sound, or a portion of the previously existing sound recording), “looping” (repeating a sample over and over again to form a new rhythm) and “mashing” (combining the music of one song with the lyrics of another) as artistic tools to create a novel tapestry of music from existing bits of copyrighted works.

From the perspective of the Copyright Act, the sampling artist is expected to license the right to use the copyrighted work and pay licensing fees. But the nature of music in general (hip-hop in particular) as collaborative on the one hand, and the exclusive rights in a copyright holder to, among other things, copy and prepare derivative works from the original on the other, may place artistic freedom at odds with intellectual property laws.

Historically the law always seems to lag far behind technology and the area of copyright law is the poster child for this reality. So what do you think? Should hip hop and other collaborative art forms bow down to the existing exclusive intellectual property regime? Or should intellectual property laws affecting music evolve to incorporate a collaborative framework that allows for broader fair use exceptions in this arena? Which best serves the constitutional call to promote “useful arts” and further enrich the public benefit?

Tonya M. Evans, Assistant Professor of Law, Widener University School of Law

Author, Copyright Companion for Writers

(Image by Michael Cramer)

Was Street Artist’s Use of AP Photo to Create Obama Hope Poster “Fair”? A Look at Where Infringement Ends and Transformation Begins

Lines have been drawn in the sand and the fight has commenced. A classic David and Goliath battle is set to take place in the U.S. District Court of the Southern District of New York between graphic artist Shepard Fairey and the Associated Press (AP). The spoils of this war? A definitive answer about what constitutes the proper interpretation of the law governing fair use of copyrighted works.

The Law

Copyright owners control the exclusive right to, among other things, prepare derivative works. For example, a screenplay based on a novel is a derivative work. But use of a copyrighted work for purposes like criticism and comment is not an infringement, but rather a fair use that does not require the permission of the owner. A court considers four factors to determine whether a use is fair: the purpose for the use, the nature of the copyrighted work, the amount used, and whether the use negatively impacts the potential market for the copyrighted work.

The Beef

It seems Fairey referenced a photo, owned by the AP, of then-presidential candidate Barack Obama to serve as inspiration for his artistic rendition of the candidate. That rendition became an iconic portrait of Obama and an unofficial but integral part of Obama’s grassroots message of hope and progress.

The problem is the photo on which the poster was based was taken by Mannie Garcia in 2006 on assignment for the AP at the National Press Club in Washington. Now a firestorm of controversy surrounds Fairey’s use. Was it fair or violative of the AP’s copyright? The answer lies in whether Fairey’s portrait is sufficiently transformative to constitute a new work, or whether it is merely a derivative of the photograph. The issue is whether Fairey has advanced the constitutional directive to “promote the useful arts” by adding something new or has merely leeched off another’s creativity.

Fairey, a Los Angeles-based “street” artist, is the modern day David in this story. And he drew first blood when he aimed his proverbial sling shot directly between the eyes of the AP and fired. Or, rather, filed. A law suit that is.

The term “street artist” is a bit misleading. Fairey did develop his craft and street cred at the underground level. But now he is graphic artist royalty, producing cover art for projects ranging from the Black Eyed Peas's album Monkey Business to The Smashing Pumpkins' album Zeitgeist and Anthrax's The Greater Of Two Evils. But Fairey’s artistry is more than creative. At its core, it’s political. His “Obey” campaign urges the observer to question obedience to social commands and the political status quo.

Fairey, well versed in the language of civil disobedience, is represented by Anthony Falzone of Stanford University’s Fair Use Project. His Complaint seeks a judgment declaring legal his use of the AP photo and an injunction against the AP. Recently, the AP counter-claimed asserting its infringement claim.

This is obviously shaping up to be one helluva battle! Stay tuned for updates. We’ll definitely be tracking this case.


- Tonya M. Evans, Assistant Professor of Law, Widener University School of Law

Author, Copyright Companion for Writers

(Photo by the Associated Press)