The 9th Circuit U.S. Court of Appeals ruled in favor of a vocal music director at Burbank High School and others that a licensing company lacked standing to sue for copyright infringement for the use of copyrighted sheet music in arranging a show choir performance as to three of four works on the basis that the licensing company only held non-exclusive licenses to the work because it had only received the rights from some, but not all, of the co-owners of the copyrights. As for the fourth work, the Court ruled that the use was noninfringing on the basis that the educational purpose of the use was an enumerated fair use purpose under 17 U.S.C. § 107. The Court also found that the purpose and character of the use, which was transformative, weighed strongly in favor of a finding of fair use.
According to the Court’s synopsis, while the “nature of the copyrighted work” weighed against fair use because the original arrangement of the song was creative, neither (1) the amount and substantiality of the portion used nor (2) the effect upon the potential market for or value of the copyrighted work weighed against fair use, the Court wrote that “it was especially swayed by the limited and transformative nature of the use and the work’s nonprofit educational purposes in enhancing the educational experience of high school students.” The fact was that the music director used only a small portion of the song with portions of other songs to create sheet music for a new and different high school choir showpiece performance. Fair Use!
The Court sent the case back to the District Court to determine the amount of attorney’s fees the defendants should receive, finding that the District Court abused its discretion in denying defendants attorneys’ fees under 17 U.S.C. § 505 because defendants prevailed across the board in the district court and won a ruling on their fair use defense on appeal. Plaintiff’s arguments were deemed to have been “objectively unreasonable, and an award of fees would further the purposes of the Copyright Act.”
Are The Turtles Certifiable? Music Industry To Litigate Pre-1972 Public Performance Right @ New York Court of Appeals In Albany.
On April 13, 2016, the United States Court of Appeals for the Second Circuit “certified” the question of whether New York common law provides a right of public performance to owners of pre-1972 sound recordings to the New York Court of Appeals, which is New York State’s highest appellate court.
The “Second Circuit” is a federal court, just below the U.S. Supreme Court, that has appellate jurisdiction over all of the U.S. District Courts in Connecticut, New York and Vermont. The “certification” came about because the band the Turtles complained that Sirius FM radio was copying, caching, and broadcasting their pre-1972 sound recordings.
“Certification” means that the Second Circuit asks the New York Court of Appeals to decide an important question of New York law.
Here is what the Second Circuit considers in determining whether to “certify” the question to the New York Court of Appeals:
(1) whether the New York Court of Appeals has addressed the issue and, if not, whether the decisions of other New York courts permit us to predict how the Court of Appeals would resolve it;
(2) whether the question is of importance to the state and may require value judgments and public policy choices; and
(3) whether the certified question is determinative of a claim before us.
Here is Judge Guido Calabresi’s explanation of the issue certified:
In 1971, Congress amended the Copyright Act to grant limited copyright protection to sound recordings fixed on or after February 15, 1972, while expressly preserving state-law property rights in sound recordings fixed before that date. See 17 U.S.C. § 301(c). Later, Congress created an exclusive performance right in post-1972 sound recordings performed by digital audio transmission. See 17 U.S.C. § 106(6). Performances of post-1972 sound recordings transmitted by other means, such as AM/FM radio, still do not enjoy federal copyright protection. Because Appellee’s recordings were fixed before February 15, 1972, they are protected, if at all, by state copyright law. While New York provides no statutory protection to owners of pre-1972 sound recordings, New York common law does provide certain rights to copyright holders in these recordings. See Capitol Records, Inc. v. Naxos of Am., Inc., 4 N.Y.3d 540, 563 (2005) (Naxos II). As a result, the issue before us is whether New York common law affords copyright holders the right to control the performance of sound recordings as part of their copyright ownership.
Judge Calabresi has left the “policy choice” as to whether to recognize the right to the New York Court of Appeals. Many law professors and folks in the broadcasting industry have filed amicus briefs, guaranteeing that the Amtrak to Albany will be booked on argument day.
The case brought by the Author’s Guild and others against Google for copyright infringement relative to the Google Books and Library Project has been dismissed by the Court following the grant of summary judgment for Google. The case sought damages on behalf of authors arising out of Google’s scanning of more than twenty million books, the delivery of digital copies to participating libraries, the creation of an electronic database of books, and the making of text available for online searching through the use of “snippets.” Most of the books were protected by U.S. Copyright Law, and Google did not obtain permission from the copyright holders.
The Court (Circuit Judge Chin of the the United States District Court for the Southern District of New York [Manhattan]) granted Google’s Motion for Summary Judgment (and denied the Author’s Guild’s Motion for Partial Summary Judgment). Assuming that the Author’s Guild had established a prima facie case of copyright infringement against Google under 17 U.S.C. section 106, the Court found that Google’s effort provided significant public benefits and, upon consideration of the four Fair Use factors set forth in 17 U.S.C. section 107, ruled that Google’s actions were Fair Use.
The entire opinion, which contains a very good analysis of the Fair Use defense, can be found through http://www.pacer.gov/, and likely will be posted by others soon. The case name and number are Authors Guild v. Google, 1:05-cv-08136. More news articles are available on the Internet for your information.
We shall see whether the ruling is affirmed on appeal.