Copyright Law Ronald W. Staudt

Class 7Sept. 19, 2013

Pandora Wins Court Victory Over Licenses to Stream Music NYTimes.com <nytdirect@nytimes.com> Sept 19, 2013

Pandora Media won a battle in its continuing war with the music industry over royalties when a federal judge ruled on Tuesday that the American Society of Composers, Authors and Publishers, which represents thousands of members, cannot prevent Pandora from licensing all the songs in its catalog, Ben Sisario reports. *** The ruling, by Judge Denise L. Cote of United States District Court in Manhattan, is a blow to music publishers, who have tried to get the best royalty rates for digital music by limiting the extent that performing rights societies like Ascap and Broadcast Music Incorporated represent their songs. ***Pandora argued in a motion for summary judgment that allowing publishers to withdraw their digital rights violated Ascap's longtime consent decree, which says that the organization must license its songs to any service that asks. The judge agreed, saying that Ascap must make all the songs in its catalog available to Pandora through 2015, when its current licensing terms with the Internet radio provider expire. If Ascap licenses a song for some purposes, the judge ruled, it must for others – like streaming - as well.

Compilations and derivative works

§ 103.  Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.   (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

A “derivative work”

is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. 17 U.S.C. 101.

Derivative Works

“…recast, transformed or adapted…”

Sherry (towels)

Ets-Hokin (vodka bottle photo)

Bridgeman (art transparencies)

Questions on pages 167-169.“favorite things”

Originality in Derivative Works

Batlin & Son v. Snyderfactsholding re creativitydissent

Derivative Works

Bell (mezzotints) and Alva (Hands of God)

Durham (Mickey Mouse) and Eden Toys (Paddington)

Schiffer (fabric photos) and Bridgeman (art transparencies)

Gracen (Oz painting) and Schrock (photos of toy trains) (7th cir. resolution?)

Questions on pages 183-4

BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP.

In this case, plaintiff by its own admission has labored to create "slavish copies" of public domain works of art. While it may be assumed that this required both skill and effort, there was no spark of originality --   indeed, the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances.

Schiffer Pub. V. Chronicle Books

Bridgeman's stated purposewas to "reproduce precisely" the underlying works of art. Indeed, the goal of reproducing a famous work of art is an accurate replication that is faithful to the original artwork. There is no ulterior creative purpose - indeed, creativity is anathema to that goal.

Plaintiffs, by contrast, did not attempt to replicate fabric swatches as precisely as possible. Rather, Plaintiffs' books were focused mainly on patterns, and Plaintiffs' photographers strove to create images that were visually interesting. In fact, several photographers clearly stated that they never compared the fabric swatches to their photographs, precisely because such a comparison was unimportant to their goals.

7th Circuit Resolution

Schrock v. Learning Curve Originality for derivative works not more

demanding than for other works Key is “sufficient nontrivial expressive

variation” to make it distinguishable from the underlying work

© in derivative works is thin, extending only to the incremental original expression

Derivative Works– In Out

Alva – Hand of God

Bell – mezzotints

Eden- Paddington bear

Skyy Vodka photo (thin)

Schiffer- photos of fabric

Schrock- photos of “Thomas & Friends”

Batlin – Uncle Sam

Durham- Mickey Mouse

Sherry – towels

Gracen – Dorothy painting

Bridgeman –art photos