Category: Copyright Law

On August 29th, 2014, screams, cheers, and emotional platitudes echoed throughout Soldier Field. While America’s oldest football stadium is no stranger to deafening noise and overzealous fans, the sixty thousand seats typically filled by Chicago Bears’ enthusiasts and football fanatics, were occupied by a more youthful, adolescent audience. That Friday night, as the sun set in Chicago, thousands of teenage girls, or “Directioners,” as many prefer to be called, powered on their homemade signs and illuminated the stadium with messages reading, “Harry Marry Me” and “Future Mrs. Payne”, while anxiously awaiting the arrival of the band Billboard Magazine dubbed, 2014’s artist of the year.

For ninety minutes, the crowd sang along as Niall Horan, Liam Payne, Zayn Malik, Harry Styles, and Louis Tomlinson, the five members making up English – Irish pop boy band, One Direction, serenaded the audience with their chart-topping hits. The band, which made an estimated seventy-five million dollars between June 2013 and June 2014, and is the first band in the United States to have their first four albums debut at number one, have sold more than fifty million records and performed for more than seven million fans worldwide.

As One Direction serenaded its Chicago audience with, “Story of My Life”, the crowd sang along, as the lyrics, chords, and melody reverberated throughout Soldier Field. Few can argue that One Direction fans are knowledgeable about the band members, but their understanding of the time, money, participants, and legal intricacies involved in taking lyrics and music, and birthing it into a smash-hit sound recording like “Story of My Life,” that can be sold on albums, performed during concerts, aired on radio, covered on YouTube, downloaded on iTunes, streamed on Spotify, and made available to a legion of adoring fans, is debatable.

While fans purchase albums and show up to concerts to support their favorite bands, without songwriters, artists would be left with empty records and music-less concerts. Yet, the songwriters and creators who this past year had music consumers singing about the “Girl Almighty,” while trying to find out exactly “Where Do Broken Hearts Go?” are not adequately compensated for the hits that helped perpetuate five, gawky teenagers trying out for a talent competition, to the five, powerful heartthrobs able to gross an estimated $127.2 million dollars in revenue during their 2014 North American music tour.

In an industry that generated nearly fifteen billion dollars globally in 2014, songwriters play a vital role in the sustainability of the music industry. Over the last two decades, technology has revolutionized the music industry, transforming the way consumers acquire and listen to music. The rise of computers as the primary means to record, distribute, store, and purchase music caused widespread economic changes and fundamentally changed the relationships between artists, songwriters, record companies, promoters, retail music stores, the technology industry, and consumers.

In 1991, the World Wide Web became publicly accessible, radically shifting the way individuals interact, while expanding the powers of communication and information sharing. The Internet made it possible for consumers to access, produce, and distribute exact reproductions of works that were historically protected by intellectual property laws. With the advent of the Internet, the music industry and the way society consumed music was forever transformed.

Eight years later, three college students, Shawn Fanning, John Fanning, and Sean Parker, launched Napster, a peer-to-peer file service that allowed users to easily share their MP3 files with other participants for free. Older songs, bootleg recordings, and even unreleased songs, such as Metallica’s, “I Disappear”, could all be found on the platform. Music fans no longer had to spend fifteen dollars on a CD to listen to one or two songs; entire music catalogs were instantly accessible for free.

Napster toppled the music industry and proved just how unprepared the business was for the digital revolution. Prior to Napster, the music industry’s business model was centered around selling physical recordings of music. Album sales alone accounted for $14.6 billion of revenue in 1999. By 2006, downloaded digital single sales outnumbered CD sales for the first time, and music industry executives were forced to admit the golden era of physical albums had ended. Once Napster hit the market, musical sales and licensing fell an average of eight percent each year, before plummeting to an all-time low in 2009.

Record labels watched as Napster demolished the system they carefully constructed. While the Recording Industry Association of America (RIAA) launched its legal action against Napster in December 1999, Napster’s following continued to grow, amassing over 80 million registered users with access to four million songs.

By 2001 Napster was forced to shut down, but the record labels had failed to combat music piracy or the subsequent damage caused by Napster. After Napster’s demise, peer-to-peer sharing services continued to pop up, including, Kazaa, LimeWire, and BitTorrent, despite repeated litigation attempts from the RIAA. To frighten the public and combat copyright infringement, the RIAA sued music fans for sharing MP3’s, which created further hostility and backlash between music consumers and copyright holders.

Music consumers had grown tired of record labels forcing them to buy entire albums when they only wanted one or two songs. Now they were empowered to stand up to greedy corporations and entitled musicians. Meanwhile, songwriters watched as the copyrights they depended on to earn a living were stolen and disseminated to the public for free. Overnight their livelihoods and professions were in peril.

Before Napster closed its doors, Apple Inc. was launching the iTunes Music Store, an online music retailer that gave music consumers the option to purchase single songs or entire albums with the click of a button. Consumers no longer had to purchase entire albums; instead they could buy the individual songs they wanted. Even though the iTunes Store provided a “legitimate place to earn money from the sale of digital music”, the a la carte sales model continued to hurt music copyright owners by allowing fans to cherry pick the songs they wanted instead of buying entire albums. Consumers were spending less than a dollar for one song, instead of fifteen dollars for an entire album. Apple’s introduction of the iPod further depressed physical record sales, as consumers now required all of their music to fit in their pocket.

Napster transformed the private consumption of music into a public good and paved the way for legal music services like the iTunes Store, internet radio services like Pandora and SiriusXM, and streaming services like Spotify, Apple Music, and Prime Music. Today’s music consumers are better served than ever with access to forty-three million songs from various licensed music platforms.

Fifteen years later the music industry still feels the effects of Napster and its predecessors. In 2014, the global recording industry’s income fell below fifteen billion dollars for the first time in decades. Physical format revenues dropped 8.1%, single track downloads declined 10.9%, and digital album sales fell 4.2%. For the first time ever, digital and physical music consumption contributed the same proportion of revenues, $6.85 billion each. Meanwhile, paying streaming subscribers grew to forty-one million, contributing $1.6. billion in revenue.

Despite declining album sales and a depreciation of physical formats of music, the International Federation of the Phonographic Industry (IFPI) said in its 2014 annual report that “by meeting the needs of the consumer, by embracing change and by being resilient investors in music, record companies are putting our business back on the road to recovery”.

Artists and record labels were able to bounce back by strategically changing their business models to make up for the loss of album sales. Record labels required new artists to sign 360 deals, which provided the labels with a percentage of all artist’s revenue, including, merchandise sales, concert revenue, endorsements, and online activity. The loss of album sales was so damaging that Warner Music Group CEO, Edgar Bronfman, said the company would not survive without taking “a piece of the artist’s profits”.

Unlike artists and record labels, songwriters are not feeling “great optimism” for the future. The United States has the most prolific and powerful music culture in the world, but the structures that evolved in the previous century to facilitate the lawful exploitation of musical works are under significant stress and inhibiting songwriters from earning livelihoods using their copyrights.

Over the last ten years, our nation’s antiquated licensing system combined with the rise of streaming services and decline of physical music sales, has caused a disruption in the creative community. Like recording artists, songwriters have done their best to adapt and embrace new technologies and consumer expectations. While all players in the music industry are affected by outdated licensing procedures, songwriters are the most heavily regulated profession in the music industry. Current inequalities in payment structures impose a heavy burden on songwriters, who are struggling to survive.

Today, the deeply talented songwriters who are crucial to the music ecosystem, are forced to question whether a career in music is realistic under the current regime. The rise of digital music has led to a belief amongst music consumers that music has no value, yet music is being consumed at greater levels than ever.

The future of musical creativity depends upon strong copyright laws and the right of songwriters and composers to earn a living from their creative works. Copyright law allows songwriters, record labels, producers, and recording artists, to all be compensated differently. Music creators today are paid royalties through an ad hock patchwork of laws, industry conventions, and private deals, many of which date back decades.

Unlike other copyright holders, seventy five percent of a songwriter’s income is controlled by the federal government, which strips songwriters of their ability to negotiate for fare rates. The songwriter’s two largest areas of income, the mechanical license and public performance license are subjected outdated consent decrees and compulsory licenses that were enacted in the 1900s before CDs were invented. Even though the music industry just underwent the most dramatic transformation in 100 years with the birth of piracy, death of CDs, introduction of a la carte sales models, and birth of streaming services, Congress still has not made any changes to royalty rates or compulsory licenses despite songwriters needing this income more than ever.

For every artist you can name at the top of the Billboard music charts, there is a long line of songwriters who are responsible for writing the hits that transform singers into superstars. Unlike artists and record labels, songwriters do not have touring, record deals, merchandising agreements, or their celebrity to fall back on. Streaming has the potential to make the music business bigger than it’s ever been in history, but creators must be paid fairly. Without songwriters to create songs, streaming services would have no business model.

The laws governing the music business are broken. In the last fifteen years, Congress has failed songwriters and inhibited them from earning a livelihood. The glacial pace by which songwriter’s royalties have changed, in addition to songwriters having no leverage or negotiating power when new technologies appear, have forced songwriters to reconsider whether a career as a songwriter is realistic. According to the Nashville Songwriters Association International (NSAI), the number of actively working songwriters has plunged eighty percent since 2000. Songwriters contribute the single most important elements for recorded music: the song. It has been nearly twenty years since there were any major revisions to the Copyright Act. It is time for Congress to increase mechanical royalty rates, do away with consent decrees, create transparency in the music licensing scheme, enable songwriters to negotiate fair market values for their work, and allow songwriters to earn a fair return on the creative and business investment of their work. It is bad enough that we sat back and watched piracy nearly decimate the music industry; how can we continue to support a legal framework that allows songs to be streamed for nearly free, while undercutting the songwriter’s value?

It is believed by many that copyright laws are counterproductive and it can hinder the creativity. However, I personally disagree with the idea and believe that the protection as intellectual property is significant to a well-functioning society as it inspires and encourages the production of new ideas and further works. The logic behind the expansion of copyright is straightforward. The television show, movie, newspaper or the music that we listen to, they are all copyrighted. Copyright spread through our lives and still has an impact on our lives, comparably few people, including the lawyers, have sufficient understanding of what copyright is. An interesting point proved by psychologists is that a decrease in creative freedom could yield a better increase in creative production among consumers. Basically, when the human mind is forced to look around their limits and obstacles, it becomes less likely to return to previous solutions. The theory behind this is that human imagination is benefited from bringing a little resistance to the path of least resistance, creativity and freedom often work at cross purposes. The significance of the creative expression in contemporary democratic society cannot be underestimated.

Copyright and control have been weakened as the digital age has profoundly changed the context in which creative works are made or sold and disseminated by the use of technology and the Internet. One of the purposes of copyright is to ensure that creative producers can be guaranteed some income from their output and sales or distribution of their hard work. Without the existence of copyright, the creative artists could be cut off from the income related to the copyright that is earned from the creative activities that they generate. Taking this aspect into account, the absence of copyright would mean the absence of the income for many creative artists, whose only source might be their copyrighted creations. This can imply that the time previously dedicated by the artists in the creation of new works will now be used in non-creative employment. For instance, J.K rowling achieved her success of the series Harry Potter which were made into novels and then film series and were distributed by Warner bros consisting of eight fantasy films. According to the 2017 Forbes list, she is one of the highest-paid authors who received $95 million with her work. The fact that she achieved this success through inspiration and thus, she was not sentenced according to copyright laws. The question here is, is this inspiration unethical? “The Harry Potter Lexicon” created by Steven Vander Ark, is a website that collects and organizes all facts of the Harry Potter series and this was highly admired by J.K Rowling stating that this was extraordinarily comprehensive. But even after this, Rowling chose to reject the publishing of Steven’s collection as a book with the title ‘The Harry Potter Lexicon’. Rowling stated in one of her interviews saying “The book violated my copyright and constitutes wholesale theft of 17years of my hard work”. This was an inspiration from the Harry Potter series, but using the company’s work for monetary and commercial use was unethical. Protecting the copyrighted work in the digital world is the greatest challenge faced by copyright law because the copyright and its infringements have no territorial boundaries.

What we can interpret from this example is that the series ‘Harry Potter’ shows us that intellectual’s work can be an inspiration to its audience and consumers as long as they are not stealing or pirating the work of others intellectual work. Copyrights are responsible for protecting the intellectual creations from stealing and piracy, but on the other hand they should also not be allowed to become an argument stating that large companies use copyright as an excuse for their own profit.

The history of copyright law in the United States is one of the expansions. In 1790, copyright originally provided the authors with the exclusive right to vend books and maps for 14 years and another 14 years of protection available to them through renewal. At present, copyright can protect all tangible medium of expression and original expressions that includes video games, books, movies and many more. The authors are granted protection and an exclusive right to control almost all the uses of their original idea and expression, even if it is creating a new work based on the original work. Currently, this protection of copyright lasts for the life of the author plus an additional seventy years. The ideology behind copyright is pretty simple, the more protection the authors are provided, the greater the reward; the more the reward, the greater the incentive for creators to create new work.

The most crucial point of the rights of the users is that of fair use. The idea of ‘Fair Use’ in the Copyright Act serves the specific kind of uses of copyrighted works and they are not an infringement of copyright, despite the fact that the use of the work may involve copying, performing or even displaying the copyrighted work. If the work is a type of fair use, the creator of the work has no right to claim payment of a fee for using the work and engaging in any type of use of the work.

This Act mainly lists four of the non-exclusive factors that need to be considered by the courts to determine whether or not it is a fair use of work and not an infringement of copyright. The first one is the purpose of the use, to determine whether it is used for commercial purpose or for a non-profit educational purpose. The second one is related to the nature of the copyright. The third one is about the amount of work that is being used from the original work and the last one is the effect of the copyrighted work in the potential market. For instance-Mr. Webster’s definition of ‘parody’ – “a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule or a feeble or ridiculous imitation”. Parodies of songs usually by its nature closely resembles the original work enough for the people to recognise the song, but not to be claimed as an infringement. Weird Al has created around more than 150 parodies and original songs of his own. He gets permission from each artist that he chooses to make parodies. Even though he takes a sufficient part from the original work to produce a parody, the Supreme court of the U.S has deemed that parodies, as long as they don’t take a major part of the work and it is sufficiently transformative and leads to the production to a whole new work, then the correct analysis would determine that it isn’t copyright infringement and it is completely acceptable under the doctrine of Fair Use. Australia doesn’t have this constitutional mandate, but Australian courts have expressed that US copyright law is consistent with the nature and purpose of copyright law in Australia.

Copyright owners frequently invoke the ‘property rights’ argument. The NIEP theory supports the idea of propertarian ideology that treats intellectual property as though it was real property.

The origin of copyright law was the Statute of Anne, enacted in England in 1710. It introduced the concept that the creator of the work is the owner of its copyright and it laid out fixed terms of protection. This Act necessitated the deposit of the copyright works to a specific copyright library and registered in the Stationer’ Hall and that there was no automatic protection for unpublished works. The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland, in 1886 (Wikipedia). Following the adoption of the treaty by the US in 1998, almost all major countries are covered by this Convention. Till this day, the Berne Convention continues to provide the basis for international copyright law. Apart from the benefits of the Berne Convention for the artists and creators of original works, the entire system of safeguarding the unpublished works remains collapsed internationally. Some states, within their own jurisdiction offers optional registration services, meanwhile some states does not provide any kind of registration at all. This turns out to be problematic because without registration, it can be difficult to judge who is the rightful owner of a copyrighted work.

Art Roger’s photograph in 1980 (Puppies) and Jeff Koons sculpture in 1998 (String of puppies) is one of the most popular examples of copyright infringement. Roger’s copyrighted photograph was imitated by Jeff Koon without his permission and earned him several thousand dollars by using it as one of his own sculpture works. This case was taken into consideration in the court and according to Jeff, he claims that the creation of the sculptures is considered a fair use as well as a new invention because Roger would not come up with the idea of making sculptures. Considering the market potential of the photograph, court disagreed with the claim placed by Jeff Koons. Original works are meant to be an inspiration to the new creators and Koon was supposed to take inspiration from Roger’s art work and not focus on the details and legally Jeff should have asked for Roger’s permission before using his copyrighted work. The decision taken by the court regarding this copyright case is considered different, especially due to the development of the digital era. The Digital Millennium Copyright Act has made it illegal to avoid technological devices and justified it as a means to prohibit unauthorized copying.

The issue of copyright cannot be underestimated and is controversial indeed. In conclusion, dissenters will draw on what they despise in order to criticise it. Every individual has their own right to be proud of their creation and work and wants to be known for their hard work and dedication. In the first case discussed about Harry Potter and J.K Rowling’s work proved that an intellectuals work can be taken as inspiration for others but only to create and generate new work as long as it is admired and not stolen and pirated. In other words, limit is the key to not being filed by a lawsuit, which means the minimal use of the original work in the creation of an inspired work. The second case discussed, shows that the copyright act can also interfere in commercial and financially profit cases.

Copyright is a significant form of intellectual property right. It is a legal right that is accorded to the creator of, among other things, films, soundtracks, and original literary, artistic, dramatic and musical works. It lasts for 70 years after the death of the author and any person who copies, sells or distributes a copyrighted work without authorisation can be sued by the author. The author can claim damages for a loss of earnings and seek a court injunction to stop the individual infringing the author’s rights. Breach of this would be a contempt of court, which carries, even more, consequences for the individual.

However, the relevance of copyright in the modern world has been questioned more than ever.

It is meant to protect song artists, but illegal downloading is all too prevalent in the world. Indeed, within a day of Kanye West’s latest album release, there were reports of over 500,000 unlawful downloads, with an estimated cost of $ 10 million to West. A particular concern is whether the law is now out of touch, particularly when improvements in technology have meant that enforcement of copyright is significantly more arduous.

For example, it is harder to close down websites, and this allows them to operate above the law. In the meantime, record labels have been developing technology to help inhibit infringement. However, the very nature of digital products, such as songs, means that preventing the illegal use of them will continue to be laborious. Accordingly, copyright is now more relevant than ever. Removing copyright protection would leave artists’ incomes even more in peril of the morals of the population. It would legalise an immoral act and mean an even greater amount of free downloading. The fact of copyright protection indicates to society that it is wrong to download music without paying for it, or without authorisation. Removing that protection will increase unauthorised use.

Indeed, a prime justification of copyright protection is the natural rights theory, first advanced by Locke. The premise here is that every person “has property in his own person”. Accordingly, when using your labour with things from nature, those things become yours. Using labour confers natural rights over the resultant output of that labour. Therefore, allowing copyright protection is vital to recognising those rights. Locke’s approach though is only superficially satisfying in regard to copyright protection. Many critics point out that copyrighted works, such as books and songs are not the complete creation of the author. The author’s work may well have been influenced by other creators and works that had an impact on the author. Further, academics Alpin and Davies suggest that ‘labour’ alone is too imprecise to determine the boundaries of intangible goods. Nonetheless, an alternate theory put forward by Hettinger may provide the answer.

Based on the utilitarian theory, as founded by Bentham, Hettinger suggests that laws should promote the creation of valuable intellectual works, such as music, books, and films. Accordingly, this requires artists to be granted copyright protection in what they produce in order to incentivise the production of such works. The provision of copyright allows authors greater control over what they can do with their work–they can decide on its sale and distribution and at a price of their choosing. If anyone tries to sell their work without their consent, that person can be taken to court. However, a concern with Hettinger’s view is that it is not clear whether empirical evidence exists to back this up or even whether it would be possible to acquire such legitimate evidence.