Giving away music: A Copyright Conundrum

An interesting article recently appeared in Toronto's Globe and Mail, asking an important question: Who really "owns" them [popular music]? The article makes note of several artists claiming to give away the rights to their music, but this seems to be quite the copyright conundrum.

There are no doubt legal issues at play as music artists are under all sorts of contractual language with respect to the rights to their songs. The ownership of music usually involves a number of players from artists to record companies to the song writers that pen our favorites. I'm not an expert on copyright law, so I'll leave the discussion up to those that are.

This article also includes significant coverage of Somali-Canadian hip-hop star K'naan who has made quite a name for himself for his thought-provoking repertoire.

(Photo courtesy of the Globe and Mail)

-- Nick J. Sciullo

Bill introduced late in last Congress to have chilling effects on file-sharing

The Combating Online Infringement and Counterfeits Act, introduced into the Senate last year as S. 3804, could have a chilling effect on file-sharing websites. The bill would allow the AG to bring in rem action against any domain name "dedicated to infringing activities" and would compel violators to "suspend operation of, and lock, the domain name."

This bill would seem to have a drastic effect on any number of domain name's with file sharing capabilities including many hip-hop sites that often post (with questionable auspices) songs, music videos, etc.

The bill's lead co-sponsor was Sen. Patrick Leahy of Vermont. The bill had 19 co-sponsors from both sides of the aisle, no small amount in the Senate.

Currently, there's been no talk of introducing it in the new Congress, but the bill did promisingly, for supporters, make it out of the Senate Judiciary Committee. The bill enjoys the support of a number of industries and industry groups including the Property Rights Alliance, Motion Picture Association of America, Association of American Publishers, NBC Universal, Entertainment Software Association, Coalition Against Domain Name Abuse, US Chamber of Commerce, Screen Actors Guild, Viacom, International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Warner Music Group, Major League Baseball, Nike Inc, and Communication Workers of America.

Opposed to the legislation are the Center for Democracy & Technology, Electronic Frontier Foundation, and Distributed Computing Industry Association.

It will be interesting to see what the new Congress will do if given the opportunity to consider the bill.

-- Nick J. Sciullo

Not taking professors seriously when they talk about hip-hop?

There's an interesting article from January 5, 2011 over on The Chronicle... here. it talks about teaching copyright law in the classroom. The article's pretty good, but one quote from University of Illinois - Chicago UIC Distinguished Professor of Communication Steve Jones seemed particularly interesting.

Jones is quoted in the article as saying:

"I don’t think they [students] see anyone who’s a professor as having authority on hip-hop and rap."

Is that true? Does being a professor, or being academically inclined somehow detract from one's credibility or knowledge of "hip-hop and rap?" It seems to me this could not possibly be the case. Does one lose their street cred once one enters academia?

Many of the bloggers here on www.HipHopLaw.com have experience in hip-hop culture beyond their academic interests, and as many fall in the loosely defined "hip-hop generation," it seems that they have some authority on the question of hip-hop. This seems to be a common charge against academics, the notion that they are somehow apart from their area of scholarship, but usually that charge is leveled by non-academics. But, that criticism is certainly not universally applicable. Is it even legitimate?

I don't think anyone is confusing any of the bloggers here with Nas, MC Lyte, or whomever, but I also don't think that's the point. No one on this blog is trying to become a hip-hop star (at least not to my knowledge). The goal for hip-hop scholars should not be to be rappers. I don't ever want to be mistaken for any of the people I listen to or write about, I just want to bring my personal story and research to the hip-hop and legal communit(y)(ies) and see what happens. I don't think what I write is valuable because I have a J.D., I think it's just another voice in the milieu, hopefully a voice that says something important and adds to the ongoing discussion. Most of us writing on this blog, are modest in this respect and I think it is something we try to convey to friends, colleagues, and students. But, according to professor Jones, few people may be taking us seriously...

I wonder what Professor Jones means when he talks of this monolithic "professor." What are the characteristics of his "professor?"

I'd be interested in seeing what others in the blogosphere think about this article and about the above mentioned quote.

-- Nick J. Sciullo

'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

Doc Alert: Copyright Criminals Asks 'Can you own a sound?'

Copyright Criminals: This Is a Sampling Sport examines the creative and commercial value of musical sampling, including the related debates over artistic expression, copyright law, and (of course) money.

This documentary traces the rise of hip-hop from the urban streets of New York to its current status as a multibillion-dollar industry. For more than thirty years, innovative hip-hop performers and producers have been re-using portions of previously recorded music in new, otherwise original compositions. When lawyers and record companies got involved, what was once referred to as a “borrowed melody” became a “copyright infringement.”

The film showcases many of hip-hop music’s founding figures like Public Enemy, De La Soul, and Digital Underground—while also featuring emerging hip-hop artists from record labels Definitive Jux, Rhymesayers, Ninja Tune, and more. It also provides an in-depth look at artists who have been sampled, such as Clyde Stubblefield (James Brown’s drummer and the world’s most sampled musician), as well as commentary by another highly sampled musician, funk legend George Clinton.

As artists find ever more inventive ways to insert old influences into new material, this documentary asks a critical question, on behalf of an entire creative community: Can you own a sound?

The Performance Rights Act: A Big Win for Artists or A Record Label Bailout?

Last Wednesday the House Judiciary Committee passed the Performance Rights Act (H.R. 848), which would require radio stations to pay royalties to artists for playing their music, similar to how other platforms like satellite, cable, and Internet radio stations already do. Under current law, musicians receive zero income when their music is played on AM / FM radio.  

Essentially, this Act would close the exemption that the radio industry has enjoyed since the 1920's in which radio stations have not had to pay royalties to artists for their work.  Instead, radio stations have historically paid an agreed upon annual amount to copyright holders, leaving the performers in the dust while profiting off the airplay. 

This legislation could represent an important victory for artists if indeed the money being paid by radio stations ends up in their hands.  Rep. John Conyers (D-Mich.), who introduced the legislation, stated to the Detroit News, 

"The time is finally ripe for establishing some form of equity for recording artists, allowing them to be paid fair compensation for their creativity."  - Rep. John Conyers

While the premise of this legislation is a rather logical one - artists should be paid for their creativity and their work - questions still remain and opposition will certainly follow. Modifications have already been made to the bill to minimize the impact it will have on small broadcasters.  As of right now, stations with an annual gross revenue of less than $100,000 would pay $500 each year.  Those with revenues between $100,000 and $500,000 would pay $2,500.  Finally, those fortunate enough to have revenues between $500,000 and $1.25 million would pay a fee of $5,000 per year. Conyers has also requested the Government Accountability Office to conduct a study of the bill's potential overall impact on radio stations.  

It is also not clear how much artists will actually benefit if the bill comes to fruition. Will the artist receive compensation or will the money simply go to the record label? This obstacle, along with the potential impact facing radio stations will surely be debated in the coming weeks, however, this bill is likely to keep moving along as it appears that bi-partisan support is strong.  Recently, Rep. Marsha Blackburn (R-Tenn.) expressed her support on Air America and reminded listeners that the United States is one of the few industrialized countries that does not compensate artists and performers for airplay.  

While the full impact of this bill is yet to be seen, it may have already served the purpose of opening the eyes of many people that a glaring problem exists in our current radio format ... artists are not being paid ... at all.  The relationship between artists and radio stations may have been a mutually beneficial one in the past when radio stations could profit off of the airplay and artists could profit off of the exposure through record sales, however, that is the old formula.  Now, the evolving music industry must look at every possible avenue to find profitability, even if that means confronting your once closest friend. 

Forgeries: Canal Street to the Port of Miami

It looks like Rick Ross cannot keep himself out of the news. After the much over-hyped confrontation between Ross and 50 Cent, Ross now finds himself at the center of a "street cred" scandal. On the May 2009 Edition of XXL, Ross sports Louis Vuitton shades, prominently displaying the distinct LV logo.

It's no surprise that hip-hop artists are wearing fake glasses and sneakers. The money's seldom as good as the talk on the latest single, but what new questions are raised when an artist publicly flaunts forgeries? Is there a difference between wearing fake shades on the airplane or at an award show and wearing them for the cover of a magazine?

The LV folks didn't take lightly to Ross's stylistic decision. A lawyer for Louis Vuitton, Michael D. Pantalony, wrote XXL this letter:

Dear Editor:

We were dismayed to see the cover of the May 2009 issue of XXL Magazine, which features a photo of Rick Ross wearing a pair of sunglasses prominently featuring counterfeit Louis Vuitton trademarks. Because the photo has generated considerable confusion among your readers and Louis Vuitton customers among others, we feel it is important to clarify several points.

The first is that the sunglasses Mr. Ross is wearing were not made by Louis Vuitton, and in fact, are counterfeit. Louis Vuitton did not grant permission to Mr. Ross or to whoever did make the sunglasses to use our trademarks. The second is that no affiliation, sponsorship or association exists between Rick Ross or XXL and Louis Vuitton. The third is that counterfeiting is illegal.

Thank you for giving us the opportunity to correct the confusion.

Sincerely,

Michael D. Pantalony, Esq.
Louis Vuitton Malletier

Copyright infringement with respect to handbags, sneakers, and clothing has long been a problem and although sporadic reports of crackdowns have surfaced, it seems the forgery market is alive and well. Canal Street, long the center of the forgery market, is but the beginning of the problem. In almost every major U.S. city you'll find places to purchase knockoffs so good they might even be better made than the originals. I recently spent time in South Florida, where the world's "largest swap shop" happens to be located. The vendors were stocked with counterfeit merchandise. Some of it looked good, some of it... well... didn't exactly make the cut.

The problem is prevalent and law enforcement seldom has the resources to track down ever corner store, tent, and flea market booth to find those profiting from breaking intellectual property laws. With serious crimes like murder and assault often large problems in metro areas, it's logical to see why IP violations fall by the wayside. Many would logically argue that fake Kate Spade bags don't cause double digit increases in a city's murder rate.

The problem does not stop at hip-hop. Suburban families purchase counterfeit goods, students (even law students) flaunt their illegal merchandise in classrooms and lectures. The irony of a law student sitting in intellectual property law, laptop encased in a fake Vera Bradley computer bag, a fake Dooney & Burke purse tucked neatly under a chair crammed full of Nutshell books, and fake Juicy Couture sweatpants on is not a foreign image. It occurs in colleges across the country on a regular basis. There comes a point where consumers will actually flaunt how accurate their forgery is as opposed to saving money to buy the genuine article. I've observed some of those conversations and I'm sure I'm not the only one.

How do we combat this sort of IP violation?

-- Nick J. Sciullo

(Canal Street photo by Jennifer Bodrow)

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)

Litigation Update: Weezy’s Copyright Conundrum, Queen Latifah’s Legal Woes, & Prodigy’s Prison ’Suit

On March 18, U.S. Magistrate Judge Daniel E. Knowles III ordered Dwayne A. Carter, a.k.a. Lil Wayne, to turn over all documents listing any income, advances and royalties the artist has received from sales of his latest album, Tha Carter III. The order was the latest development in Urband & Lazar Music Publishing, Inc. v. Dwayne A. Carter, a copyright infringement suit alleging that Carter sampled “Once”, a song written and performed by Karma Ann Swanepoel and published by Urband & Lazar, without obtaining a licensing agreement from the plaintiff.

The song at the center of the dispute, Carter’s “I Feel Like Dying”, prominently features Swanepoel’s voice, lyrics and musical composition. Although the song ultimately did not make the final cut of Tha Carter III, the plaintiffs are seeking damages and an injunction prohibiting Carter from continued use of the song. The suit alleges that Carter posted “I Feel Like Dying” on his MySpace page, allowing over 16 million people to download the song without acknowledging the expropriation of the plaintiff’s work. The suit further alleges that Carter has won critical acclaim and boosted concert ticket sales through his use of the song.

(Compare “Once” and “I Feel Like Dying”)

In his response to the Plaintiff’s Motion to Compel the documents, Carter claimed that because the song was not included on the album or otherwise sold for a profit, the plaintiff could not show the requisite “reasonable relationship” between the allegedly infringing use and the profits from Tha Carter III, and therefore was not entitled to discovery of records relating to the sale of his album. However, in his order, Judge Knowles noted that the plaintiffs are claiming that Carter received indirect profits from his use of the song; thus, they do not have to establish such a “reasonable relationship.”

While a settlement may ultimately prove to be in Carter’s best interest, don’t expect him to be cowed by the specter of IP litigation. The Urband & Lazar case is the third copyright infringement claim filed against Carter in the past 18 months.

* * * * * * * * * *

Dana Owens, a.k.a. Queen Latifah, is also experiencing her share of March legal madness. A pair of women claiming to be former employees of Owens filed separate breach of contract suits against the hip hop mogul in Manhattan Federal Court on Monday.

Cosmetologist Roxanna Floyd and stylist Susan Moses claim they are owed $700,000 and $300,000, respectively, for work performed on Queen Latifah’s CoverGirl ad campaign and “Curvations” line of intimate apparel.

Just nine months ago, Owens was involved in a breach of contract suit against Perfect Christmas Productions, which she said failed to pay her $275,000 for her role in the movie The Perfect Holiday.

* * * * * * * * * *

Finally, Albert Johnson, a.k.a. Prodigy (of Mobb Deep fame), has managed to remain in the news despite serving a 3 ½ year jail sentence as a result of charges brought under New York City’s strict handgun laws.

On March 23, Johnson filed documents in Manhattan Supreme Court alleging that Vox Music Group has failed to pay him over $30,000 in royalties related to an agreement in which Vox was to translate Johnson’s H.N.I.C. 2 album into over 1,400 languages. Vox uses 10-minute voice samples from artists to create completely translated songs.

No word on whether “Shook Ones Pt. II” sounds as ominous in German as it does in English.