Fair Use Fridays: Copyright Professors To Academia: "Flex Your Fair Use Muscles!"

Fair Use and Fairness on Campus


Deborah R. Gerhardt
University of North Carolina (UNC) at Chapel Hill - School of Law

Madelyn F. Wessel
University of Virginia

North Carolina Journal of Law and Technology, Vol. 11, Spring 2010
UNC Legal Studies Research Paper No. 1594934

Conclusion below, full paper free download here

The educational community must assert and defend fair use if it is to retain some autonomy over academic content and preserve some equity in the delivery of its mission. Access to information is a theme resonating within legal and philosophical constructs of both free speech and equal protection in a society that considers
itself just. In a world where technology makes so much content available for educational use, the copyright laws that were originally conceived to promote education are instead often routinely applied to inhibit it. Unequal access to counsel and profound disparities in the content available on campus exacerbate the problem.

Fair use is the primary means to restore that balance. Despite the myths that abound, fair use jurisprudence is a dynamic, factbased, ever changing body of law and courts are more willing than one might expect to find fair use when equity demands it. Whether the issue is classroom access to research and scholarship or the
publication of a substantive scholarly critique, we think both copyright jurisprudence and equity will often support fair use. We have seen fair use muscles atrophy and flex and can vouch for the fact that the latter is far more empowering to the academic mission and far better aligned with the Founders’ understanding that
copyright is intrinsically entwined with public access.

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Second Circuit: Zohan Messes With Jaymes Blonde Crime Fighting Hairdresser A Concept Not Protected By Copyright

Jaymes Blonde Messed With by the Zohan

 

In Cabell v. Sony Pictures Ent. Inc., 10-2690-cv (June 24, 2011), the Second Circuit in a summary order affirmed the trial court's grant of summary judgment in a suit for copyright infringment.

Aside from the unprotectable ideas of (1) brandishing a blow dryer as a weapon, and (2) the characters’ fighting poses, there is no plausible basis
for a reasonable jury to find that the parties’ respective expressions of the concept of a crimefightinghairdresser are substantially similar. See Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010); see also Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986) (“....

Cabell v SONY Pictures


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Third Circuit: Copyright Infringement - Removing Photographer's Name from Image Violates DMCA

In Murphy v. Millenium Radio, 2011 WL 2315128 (3d Cir. June 14, 2011), the Third Circuit is the first court of appeals to reach the question of whether removing an author's name from a photograph constitutes a violation of section 1202 of the Digital Millenium Copyright Act 17 U.S.C. 1202.  The Third Circuit noted a disagreement among district courts on the question.

The case involves a photographer who took photographs of WKXW radio personalities Craig Carton and Ray Rossi for a magazine (picture above).  The shock jocks posed naked behind signs covering their privates.  A WKXW employee scanned the photographic image, uploaded it, and the radio station invited listeners to digitally modify the image for a competition.

When the image was uploaded, a "gutter credit" (inner margin) from the magazine containing the photographer's name was removed.

The Third Circuit reversed the trial court's grant of summary judgment, permitting the DMCA 1202 claim to proceed.   The Third Circuit also permitted a defamation claim to proceed, Rossi and Carton allegedly called the photographer a homosexual and destroyed transcripts of the show.

The Third Circuit's decision and 17 U.S.C. 1202 and 17 U.S.C. 1203 below:


 § 1202. Integrity of copyright management information3


(a) False Copyright Management Information. — No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement —
(1) provide copyright management information that is false, or
(2) distribute or import for distribution copyright management information that is false.
(b) Removal or Alteration of Copyright Management Information. — No person shall, without the authority of the copyright owner or the law —
(1) intentionally remove or alter any copyright management information,
(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or
(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.
(c) Definition. — As used in this section, the term “copyright management information” means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work:
(1) The title and other information identifying the work, including the information set forth on a notice of copyright.
(2) The name of, and other identifying information about, the author of a work.
(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
(4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.
(5) With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.
(6) Terms and conditions for use of the work.
(7) Identifying numbers or symbols referring to such information or links to such information.
(8) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.
(d) Law Enforcement, Intelligence, and Other Government Activities. — This section does not prohibit any lawfully authorized investigative, protective, information security, or intelligence activity of an officer, agent, or employee of the United States, a State, or a political subdivision of a State, or a person acting pursuant to a contract with the United States, a State, or a political subdivision of a State. For purposes of this subsection, the term “information security” means activities carried out in order to identify and address the vulnerabilities of a government computer, computer system, or computer network.
(e) Limitations on Liability. —
(1) Analog transmissions. — In the case of an analog transmission, a person who is making transmissions in its capacity as a broadcast station, or as a cable system, or someone who provides programming to such station or system, shall not be liable for a violation of subsection (b) if —
(A) avoiding the activity that constitutes such violation is not technically feasible or would create an undue financial hardship on such person; and
(B) such person did not intend, by engaging in such activity, to induce, enable, facilitate, or conceal infringement of a right under this title.
(2) Digital transmissions. —
(A) If a digital transmission standard for the placement of copyright management information for a category of works is set in a voluntary, consensus standard-setting process involving a representative cross-section of broadcast stations or cable systems and copyright owners of a category of works that are intended for public performance by such stations or systems, a person identified in paragraph (1) shall not be liable for a violation of subsection (b) with respect to the particular copyright management information addressed by such standard if —
(i) the placement of such information by someone other than such person is not in accordance with such standard; and
(ii) the activity that constitutes such violation is not intended to induce, enable, facilitate, or conceal infringement of a right under this title.
(B) Until a digital transmission standard has been set pursuant to subparagraph (A) with respect to the placement of copyright management information for a category of works, a person identified in paragraph (1) shall not be liable for a violation of subsection (b) with respect to such copyright management information, if the activity that constitutes such violation is not intended to induce, enable, facilitate, or conceal infringement of a right under this title, and if —
(i) the transmission of such information by such person would result in a perceptible visual or aural degradation of the digital signal; or
(ii) the transmission of such information by such person would conflict with —
(I) an applicable government regulation relating to transmission of information in a digital signal;
(II) an applicable industry-wide standard relating to the transmission of information in a digital signal that was adopted by a voluntary consensus standards body prior to the effective date of this chapter; or
(III) an applicable industry-wide standard relating to the transmission of information in a digital signal that was adopted in a voluntary, consensus standards-setting process open to participation by a representative cross-section of broadcast stations or cable systems and copyright owners of a category of works that are intended for public performance by such stations or systems.
(3) Definitions. — As used in this subsection —
(A) the term “broadcast station” has the meaning given that term in section 3 of the Communications Act of 1934 (47 U.S.C. 153); and
(B) the term “cable system” has the meaning given that term in section 602 of the Communications Act of 1934 (47 U.S.C. 522).

§ 1203. Civil remedies4

(a) Civil Actions. — Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.
(b) Powers of the Court. — In an action brought under subsection (a), the court —
(1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution;
(2) at any time while an action is pending, may order the impounding, on such terms as it deems reasonable, of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation;
(3) may award damages under subsection (c);
(4) in its discretion may allow the recovery of costs by or against any party other than the United States or an officer thereof;
(5) in its discretion may award reasonable attorney's fees to the prevailing party; and
(6) may, as part of a final judgment or decree finding a violation, order the remedial modification or the destruction of any device or product involved in the violation that is in the custody or control of the violator or has been impounded under paragraph (2).
(c) Award of Damages. —
(1) In general. — Except as otherwise provided in this title, a person committing a violation of section 1201 or 1202 is liable for either —
(A) the actual damages and any additional profits of the violator, as provided in paragraph (2), or
(B) statutory damages, as provided in paragraph (3).
(2) Actual damages. — The court shall award to the complaining party the actual damages suffered by the party as a result of the violation, and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages, if the complaining party elects such damages at any time before final judgment is entered.
(3) Statutory damages. — (A) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1201 in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just.
(B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.
(4) Repeated violations. — In any case in which the injured party sustains the burden of proving, and the court finds, that a person has violated section 1201 or 1202 within three years after a final judgment was entered against the person for another such violation, the court may increase the award of damages up to triple the amount that would otherwise be awarded, as the court considers just.
(5) Innocent violations. —
(A) In general. — The court in its discretion may reduce or remit the total award of damages in any case in which the violator sustains the burden of proving, and the court finds, that the violator was not aware and had no reason to believe that its acts constituted a violation.
(B) Nonprofit library, archives, educational institutions, or public broadcasting entities. —
(i) Definition. — In this subparagraph, the term “public broadcasting entity” has the meaning given such term under section 118(g).
(ii) In general. — In the case of a nonprofit library, archives, educational institution, or public broadcasting entity, the court shall remit damages in any case in which the library, archives, educational institution, or public broadcasting entity sustains the burden of proving, and the court finds, that the library, archives, educational institution, or public broadcasting entity was not aware and had no reason to believe that its acts constituted a violation.

§ 1204. Criminal offenses and penalties5

(a) In General. — Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain —
(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and
(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.
(b) Limitation for Nonprofit Library, Archives, Educational Institution, or Public Broadcasting Entity. — Subsection (a) shall not apply to a nonprofit library, archives, educational institution, or public broadcasting entity (as defined under section 118(g)).
(c) Statute of Limitations. — No criminal proceeding shall be brought under this section unless such proceeding is commenced within five years after the cause of action arose.









Murphy v Millenium Radio

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Copyright Litigation Blog Goes 3d - My Avatar on Rights of Publicity and Other Recordings

If you are reading this post directly from my blog, my avatar should appear - slowly to the right side of this post.

When a photographer takes your portrait, the photographer owns a copyright in the photograph. But can the photographer use your image in advertising without your permission?

I created the avatar from a photograph and a voice recording and it will live until I kill it. Or not. I have posted an image (a bad one) of the avatar below for future generations, since I will probably kill the talking one soon.  It's a great novelty, but my execution is pretty amateurish and I am not entirely sure that it completely fits the Copyright Litigation Blog's overall tone.

For those future generations who aren't treated to the live-action version, my avatar's eyes move around and follow your cursor after I stop talking (the recording ends).  If you leave the blog on the screen for a bit, you will see my eyes continue to follow your cursor around.  During the sound recording, the avatar mimics my speech, moves its lips, eyes and head in an odd photorealistic way. One Copyright Litigation Blog fan described it as "creepy". I recorded a few messages, so you can listen more than once.

Technology will soon improve the 3d quality and the service would have worked better if I had a portrait where I was looking straight ahead.   This is an attempt to make a 3d from a 2d photograph.  Soon 3d will be here.

"Rights of publicity" or "rights of privacy" protects the name, likeness, voice and image of a person. As my avatar makes clear, such rights will become increasingly valuable in the virtual world, it will become easier to commit identity theft and impersonate living individuals - or replace them.

These rights are regulated by state, not federal law.

Remember, wait a bit.  Then move your cursor around, my avatar's eyes will follow you.

More on rights of publicity here and here.
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Fair Use Fridays: Copyright PSA for the Users: Sing Along!

A video by Michael RobbGrieco showing copyright from a copyleft perspective.    The video contains a singalong critique of "overstated" owner's rights illustrating a view of the fair use doctrine 17 USC 107.   Isn't that the Twitter bird they are painting?

More on the fair use doctrine here.

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Fair Use Fridays: Girl Talk Goes Cinematic

Girl Walk // All Day from jacob krupnick on Vimeo.

Derivative works from derivative works: music and choreography and film from the remix culture. Saw this video on Techdirt who fears copyright infringement claims and comments here.

Beautiful music and dance video, great shots of the Staten Island Ferry and Lower Manhattan.

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Fair Use Fridays: Is The National Anthem A Stolen British Drinking Song?

Rocketboom and Know Your Meme discuss in the video above the history of GI Joe Mashups on the internet and apply the principles of fair use in copyright law to our National Anthem.

From Wikipedia's Star Spangled Banner entry:

The poem was set to the tune of a popular British drinking song, written by John Stafford Smith for the Anacreontic Society, a men's social club in London. "The Anacreontic Song" (or "To Anacreon in Heaven"), with various lyrics, was already popular in the United States. Set to Key's poem and renamed "The Star-Spangled Banner", it would soon become a well-known American patriotic song. With a range of one and a half octaves, it is known for being difficult to sing. Although the song has four stanzas, only the first is commonly sung today, with the fourth ("O! thus be it ever when free men shall stand...") added on more formal occasions. The fourth stanza includes the line "And this be our motto: In God is our Trust.".[2] The United States adopted "In God We Trust" as its national motto in 1956.




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Fair Use Fridays: 5 Seconds of Every Pop Song Ever

Five Seconds Of Every #1 Pop Single Part 1 by mjs538

Thanks to Peter Friedman's Ruling Imagination: Law and Creativity for posting this here from MJS538, find part two on Soundcloud.

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Dorothy's Not In Kansas Anymore: Public Domain Film Posters With Slogans Found To Infringe

Good post on a copyright litigation involving the use of film posters in the public domain from the Wizard of Oz on the Patentlyo blog here.    For those interested in character licensing, dead celebrities, and the Supreme Court's warning in Dastar Corporation v. 20th Century Fox Film Corporation et al., 539 U.S. 23 (2003) that trademark and copyright law should not be combined to create a mutant species of copyright law that lives forever, tune in to Warner Bros. v. X One X.


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Fair Use Fridays: Fedflix - Finding Public Domain Videos From the Federal Government

Fedflix - how to find and download public domain videos created by the federal government video by NewCenturyHistory.   Works created by the federal government are in the public domain.   YouTube video explaining how to navigate http://www.archive.org/details/FedFlix

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Fair Use Fridays: Spiderman Meets Marbury v Madison

With great power comes great responsibility. Great intro to Marbury v Madison. Excelsior!

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Jimi Hendrix - Dead Celebrity Rights of Publicity Not Resurrected By Washington State Law

In Experience Hendrix, LLC v. Hendrixlicensing.com, (W.D.Wa. Feb. 8, 2011 (Zilly, J.), a federal judge in the Western District of Washington struck down as unconstitutional a Washington State law that attempted to grant dead celebrities, including Jimi Hendrix, a posthumous right of publicity.

I have previously discussed rights of publicity (also known as rights of privacy) here and here and here.
Jimi Hendrix died in New York. New York does not grant a posthumous right of publicity. That has created major litigation in the past over, for example, Marilyn Monroe's image and name. Hendrix was not a Washington State domiciliary, so granting his estate a right of publicity would effectively have created a right that conflicted with New York law.

The court engaged in a careful choice of law (conflicts of law) analyis. It used the principle of "depecage" (I don't have a circonflexe on this blog).  "Depecage" means parsing out the law of each juridisction that may govern an issue in a case.  Courts rarely go this deeply and thoughtfully into choice of law analyses, so the opinion is noteworthy in that aspect.

The decision is also noteworthy in that it carefully unbundles the various rights that may be caught up in licensing someone else's name and image including trademark and copyright.

For example, if you have a photograph of Jimi Hendrix, it may be "nominative fair use" to use Hendrix's name to identify the photograph, even if someone else owns the Hendrix trademark.

The estate of Elvis, who died in Tennessee, has the right to exploit his name and image under Tennessee law.

Be careful before paying a lot of money for a license to ensure that the rights really exist.   Similarly, when accused of infringement, take a careful look at the underlying intellectual property claims.
Jim Hendrix and Rights of Publicity for Dead Celebrities: Experience Hendrix v Hendrixlicensing.com


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Fair Use Fridays: Mashup of Billboard Top 25 on YouTube

DJ Earworm is back, this 2010 mashup had over nine million viewers on YouTube.


This DJ Earworm 2009 mashup had over 34 million viewers on YouTube.

More posts on mashups here
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Fair Use Doctrine in Copyright Law: Producer's Use of Clip in Jersey Boys is Fair Use

In Sofa Entertainment Inc. v. Dodger Productions, Inc., 2010 WL 4228343 (C.D. Cal. July 12, 2010), a seven-second video clip from The Ed Sullivan Show was used in the play Jersey Boys without permission.   Jersey Boys is the story of The Four Seasons, a rock bank led by Frankie Vallie.   The Jersey Boys got a critical boost from playing numerous times on The Ed Sullivan Show.

It was undisputed that the clip depicted an important moment in the career of the Four Seasons.
Copyright law's fair use doctrine is embedded in 17 USC 107, which provides:


§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A [a copyright owner's exclusive rights to publish and distribute copyrighted works] , the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Factor 1.  Purpose and character of use. In the Jersey Boys case, the parties disputed whether the work was a fictionalized account or a biography of the Four Seasons, since this would have an effect on the first factor.   The court found that Jersey Boys was meant to entertain, whether or not it was biographical.  This factor weighed in Plaintiff's favor.

Factor 2.  Transformative use.   The court found a transformative use because the clip was used merely as an historical reference point in a play.  It did not serve the same entertainment purpose as the original Ed Sullivan Show appearance of the Four Seasons.  This factor weighed in Defendant's favor.

Factor 1.   Commercial use.   Although the court found the use to be commercial, the transformative use and the very short amount borrowed rendered the commercial use slight and not to be accorded great weight.

Factor 3.   Amount and substantiality of portion used.  The court found that Jersey Boys did not borrow the "heart" of the original work: The Four Seasons' performance, but merely borrowed Ed Sullivan's introduction, which was not the heart of the underlying work.   The court found the performances by featured talent to be the "heart" of these shows.

Factor 4.   The court found that there was no evidence of a market for the clip and that use of the clip, which did not contain the original Four Seasons' performance, was not a commercial substitute for the underlying work, which contained the Four Seasons' performance.  Given the lack of market evidence, this factor weighted against the Plaintiff.

Weighing and balancing the factors, the court found that use of the clip was "fair use".   On Sept. 29 2010, an appeal was filed before the Ninth Circuit that is still pending.

More on the fair use doctrine here

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Copyright and Fine Art Webcast CLE: 10/28 By West Legal Ed

Copyright Issues Related to Fine Art

Content Partner: West LegalEdcenter (R)
Price: $135.00*
Description: Since the advent of the Internet, most of our friends, family, and clients have become global publishers, copying and repasting copyrighted works of others on a daily basis. At the same time, contemporary art has skyrocketed in economic and symbolic importance in modern society, with a greatly expanded collector base. Changing media, modes of production, and a general lack of transparency in the art world have created a special realm of problems for both casual participants and seasoned art world veterans alike. Ray Dowd, author of Copyright Litigation Handbook (West 2010), teams up with New York and L.A.-based fine art attorney Amy Goldrich to provide the tools necessary to advise clients navigating these issues.

Among the topics to be discussed:
• Overview of copyright and special problems posed by fine art
• Basic copyright concepts generally applicable to fine art
• Recent cases involving the Visual Artists' Rights Act (VARA)
• Legal relationships in the Art World
• Transfers of possession and title: consignments, private sales, auctions, and unfortunate events
• Copyright Infringement and Fair Use
• First Sale Doctrine
• Work for hire

More information and to attend click here.https://westlegaledcenter.com/search/displayDailyWebcastSearchResults.jsf

Practice Areas: Art Fraud, Copyright Law, Enforcement & Anti-Piracy, Entertainment & the Arts, Intellectual Property Law, International Intellectual Property, International Law & Global Trade, Licensing & Intellectual Property Rights

Online Media Type: Audio
Production Date: 10/28/2010 12:00 PM EDT
Level: Intermediate
Category: Standard
Duration: 1 Hours, 0 Minutes
Online Format:

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Licensing Litigation: "Hollywood Accounting" of Licensing Royalties Loses Bigtime: Jury Finds Disney Owes $269.2 Million

Who Wants to Be A Millionaire, per Wikipedia here.

Celadon licensed the show to Disney, seeking a 50-50 profits split.  Using "Hollywood Accounting" (link to great Wikipedia article on the practice). Disney managed to pocket $269.2 million that it owed to a licensor, according to a jury.

A percentage of the net profits is considered in Hollywood to be a percentage of nothing, since studios simply make up the math to always eliminate net profits by funnelling these monies to their friends.

Nice to see that a jury saw through it all...


Disney-Celador Lawsuit Verdict: Disney Ordered To Pay 'Millionaire' Makers $269.2 Million

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Copyright Litigation Blog #1 on Bing

In addition to being the #1 result for a "copyright litigation" search on Google, the Copyright Litigation Blog is also the number one result on Bing.

Thanks, Bing!


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8th Cir: Famous Dave's Magic Words: Copyright Assignments and Settlement Agreements

In Thomsen v. Famous Dave's of America, 2010 WL 2219051 (8th Cir. May 12, 2010), the Eighth Circuit Court of Appeals found the following provision in a settlement agreement to be a valid copyright assignment:

"Al is releasing all copyright, proprietary design and sign work to [Famous Dave's] in all other restaurants that he has worked on with the exception of [signature restaurants]."

Quoting the Ninth Circuit, the Court noted:  "A transfer of ownership requires no "magic words" to satisfy copyright law: even a one-line pro forma statement will do."

The Court found the assignment to be a "clear conveyance".

Practice Tip:  An assignee is considered a "beneficial owner" of a copyright under the Copyright Act 17 U.S.C. 501(b) and is entitled to sue for infringement.   I cover Copyright Ownership and Licensing Litigation in more detail in Chapter 8 of Copyright Litigation Handbook.

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DC Cir: RIAAA Must Pay Copyright Owners Late Fees - Ruling on Compulsory Licensing of Musical Works

In Recording Indus. Ass'n of America, Inc. v. Librarian of Congress, --- F.3d --- (D.C. Cir. June 22, 2010), the D.C. Circuit upheld the Copyright Royalty Board's imposition of late fees on the RIAA when it fails to pay copyright owners.

The issue arises in the case of "compulsory licenses" - that is where someone uses a musical work without the owner's permission.   Like a cover band recording a Led Zep tune without the band's permission.  The DC Circuit's decision has a nice explanation of compulsory licensing and how it works.  Excerpt below in italics:

Most songs played on the radio, sold on CDs in music stores, or digitally available on the Internet through services like iTunes embody two distinct copyrights-a copyright in the “musical work” and a copyright in the “sound recording.” See 17 U.S.C. § 102. The musical work is the musical composition-the notes and lyrics of the song as they appear on sheet music. The sound recording is the recorded musical work performed by a specific artist.



Although almost always intermingled in a single song, those two copyrights are legally distinct and may be owned and licensed separately. One party might own the copyright in the words and musical arrangement of a song, and another party might own the copyright in a particular artist's recording of those words and musical notes.


This case involves licenses in a limited category of copyrighted musical works-as opposed to sound recordings. Section 115 of the Copyright Act allows an individual to make and distribute phonorecords (that is, sound recordings) of a copyrighted musical work without reaching any kind of agreement with the copyright owner. That right does not include authorization to make exact copies of an existing sound recording and distribute it; if a musical work has been recorded and copyrighted by another artist, a licensee “may exercise his rights under the [§ 115] license only by assembling his own musicians, singers, recording engineers and equipment, etc. for the purpose of recording anew the musical work that is the subject of the [§ 115] license.” 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8.04[A], at 8-58.5 (2009). For example, a § 115 licensee could pull together a group of musicians to record and sell a cover version of Bruce Springsteen's 1975 hit Born to Run, but that licensee could not make copies of Springsteen's recording of that song and sell them.


The § 115 licensing regime operates in a fairly straightforward manner. When a copyright owner distributes work “to the public,” § 115's provisions are triggered. 17 U.S.C. § 115(a)(1). Once that occurs, anyone may “obtain a compulsory license to make and distribute phonorecords of the work” under § 115 so long as the “primary purpose in making [the] phonorecords is to distribute them to the public for private use.” Id. Assuming the copyright has been registered with the Copyright Office, the licensee owes the copyright owner a royalty for every phonorecord “made and distributed in accordance with the [§ 115] license.” Id. § 115(c)(2). For purposes of the Copyright Act, a phonorecord is “distributed”-and an obligation to pay the copyright owner a royalty created-when “the person exercising the [§ 115] license has voluntarily and permanently parted with” the phonorecord. Id . In other words, the licensee's sale of its recording of the copyright owner's work triggers the royalty payment obligation. See Nimmer § 8.04[H][1], at 8-77.


Because the § 115 license issues without any agreement between the copyright owner and the licensee, the system needs a mechanism to figure out how much the licensee owes the copyright owner and what the terms for paying that rate should be. Although that mechanism has changed over time, the Copyright Royalty Board currently serves as the rulemaking body for this system. See generally Procedural Regulations for the Copyright Royalty Board, 70 Fed.Reg. 30,901 (May 31, 2005) (discussing the history of royalty ratemaking). The Board is a three-person panel appointed by the Librarian of Congress and removable only for cause by the Librarian.FN1 The Board sets the terms and rates for copyright royalties when copyright owners and licensees fail to negotiate terms and rates themselves. See Nimmer § 7.27[C], at 7-243.


FN1. RIAA has not raised a constitutional challenge to the method of appointment of the members of the Copyright Royalty Board. Cf. Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 574 F.3d 748, 755-56 (D.C.Cir.2009); SoundExchange, Inc. v. Librarian of Congress, 571 F.3d 1220, 1226-27 (D.C.Cir.2009) (Kavanaugh, J., concurring).


As relevant here, the Copyright Act requires the Board to set “reasonable terms and rates” for royalty payments made under the § 115 license when the parties to the license fail to do so. 17 U.S.C. § 801(b)(1). When establishing terms and rates under that license, the Copyright Act requires the Board to balance four general and sometimes conflicting policy objectives: (1) maximizing the availability of creative works to the public; (2) providing copyright owners a fair return for their creative works and copyright users a fair income; (3) recognizing the relative roles of the copyright owners and users; and (4) minimizing any disruptive impact on the industries involved. Id. § 801(b)(1)(A)-(D).


At specified intervals, the Board holds ratemaking proceedings for licenses issued under the Copyright Act. Section 115 ratemaking proceedings can occur every five years “or at such other times as the parties have agreed.” Id. § 804(b)(4).

In 1996, the parties with an interest in the § 115 license (such as the Recording Industry Association of America, the Songwriter's Guild of America, and the National Music Publishers' Association) agreed on various terms and rates for the compulsory license. They also agreed that the settlement with respect to those terms and rates would expire 10 years later. In 2006, after the parties found they could not reach a new compromise, the Board instituted proceedings to set certain terms and rates governing the operation of the § 115 license. The process was long and complicated, involving 28 days of live testimony, more than 140 exhibits, and more than 340 pleadings, motions, and orders. See Mechanical and Digital Phonorecord Delivery Rate Determination Proceeding, 74 Fed.Reg. 4510, 4511 (Jan. 26, 2009).

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Fair Use Fridays: Ripping DVDs For Documentary Films - Is There A Right To High Quality Free Speech?

We know from the recent Salinger/Colting case discussed here that prior restraints on speech must be weighed when we look at injunctions in the copyright infringement context.

But what about in the fair use context?  Let's look at the statute and think about a documentary filmmaker who wants to make a "fair use" of someone else's copyrighted work:

Section 107 of the Copright Act - 17 U.S.C. § 107. Limitations on exclusive rights: Fair use provides:


Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—


(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;


(2) the nature of the copyrighted work;


(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and


(4) the effect of the use upon the potential market for or value of the copyrighted work.


The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
 
The Digital Millenium Copyright Act makes it a crime to circumvent encryption to rip someone else's copyrighted materials.  So isn't that criminal statute an impermissible prior restraint on free speech?
 
Doc filmmakers can't make good quality films without ripping DVDs.  They can get lower quality elsewhere.
 
The Copyright Office should act soon because the International Documentary Association has asked that the exemptions to the DMCA be reviewed.  HT to Techdirt, Hillicon Valley, reports here.  Mike Masnick at Techdirt is pessimistic, read the link:

Documentary Filmmakers Want DMCA Exemption; But Almost Definitely Won't Get It Techdirt

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