Music, Movies and Computer Software Copyrights
In Chapter 2 we discussed the §102(a)(5) protection of pictorial, graphic, and sculptural works. Some of the other §102(a) categories, such as §102(a)(1)’s protection of literary works, will not be discussed in detail because they are somewhat self-explanatory (although there is always a twist somewhere when dealing with copyright law). Others will not be covered due to limitations inherent in a survey course; one could study exclusively this section of law for months and still leave issues unresolved, but we must make time for trademarks and patents as well!
Because they are important, and because they are also fun, we will now turn our attention to §§102(a)(2), (7), and (6), in that order (music, sound recordings, and movies/TV). Although covered elsewhere in the statute (§117) and although somewhat less sexy, we will wrap up this section with a look at computer software. These four areas of coverage are the most prominent and most rapidly changing areas of copyright law. Although print materials still account for a large portion of the licensing and profit-generating side of copyright law, modern technology moves at a quick pace and the law must therefore constantly change to accommodate new realities.
First, some statistics which should shed some light on what is at stake here (all numbers are for 2004):
Global music sales: $32 billion
U.S. CD sales: $12 billion
iPods (units) sold: $4.4 million
U.S. box office revenues: $9.4 billion
U.S. DVD sales & rentals: $21.2 billion
U.S. VHS sales & rentals: $3.3 billion
If these were the statistics in 2004, imagine what is at stake now, in 2019, with the advent of the iphone, ipad, smartphones, Netflix,Youtube, and the Internet in general.
Musical Works §102(a)(2)
Note that we have often referred to §101 for definitions of covered works or types of work (e.g., joint work, etc). In the case of “musical works,” however, we are provided no such definition. We are, however, provided the following guidance by the copyright office: A musical work is “a succession of pitches or rhythms, or both, usually in some definite pattern.” Intellectual Property: The Law of Copyrights, Patents and Trademarks, Schechter and Thomas, Thomson West (2003), page 51, quoting Compendium II of Copyright Office Practices §402 (1984). This, of course, is rather broad, and is subject to interpretation. Also, for musical works involving lyrics, each component (the music and the lyrics) is separately protected, so that one cannot sidestep copyright law by using only the lyrics of a protected song but not its music; this would nonetheless constitute infringement.
EXAMPLE: Jesse is a somewhat creative, but lazy, musician. One day while feeding his bunnies he comes up with an idea for a song called “Bunny Hop,” which he sings spontaneously as he tends to his chores. A neighbor, Chris, hears Jesse singing and decides to write down the lyrics and sell the words as a poem he titles “Sweet Little Bunny.” Because Jesse’s song was original but not “fixed,” he is not protected from Chris’ use of the lyrics. If, on the other hand, Jesse had previously put the lyrics on paper, Chris’ use would infringe on Jesse’s copyright.
Recall that in order to secure copyright protection under §102, a work must be (1) original, and (2) fixed. In the case of literary works, the second requirement is rarely an issue. In the case of musical works, however, both requirements can be the cause for legal debate.
Courts seem to find originality lacking in musical works somewhat more frequently than in other protected mediums. See Schechter at 51. The issue of fixation of musical works, however, goes back to a Supreme Court case which predates even the 1909 Act.
In White-Smith Music Publishing Co. v. Apollo Company, 209 U.S. 1 (1908), the claim involved player piano music rolls. Rolls of perforated paper work as part of a machine which produces a specific set of notes. The defendant had copied one of plaintiff’s rolls. In that case, the court found that copyrighted material had not been copied, because:
"A 'copy' of a musical composition within the meaning of the copyright statute is a written or printed record of it in intelligible notation and this does not include perforated rolls which when duly applied and properly operated in connection with musical instruments to which they are adapted produce the same musical tones as are represented by the signs and figures on the copy in staff notation of the composition filed by the composer for copyright. The existing copyright statute has not provided for the intellectual conception, even though meritorious, apart from the thing produced; but has provided for the making and filing of a tangible thing against the duplication whereof it has protected the composer." - White-Smith at 2 (emphasis added).
In other words, because the piano rolls are not intelligible, i.e., cannot be understood upon simple inspection, but only represent music when combined with a machine, they are neither protected by copyright nor do copies of the rolls represent infringing copies of protected material.
If White-Smith still controlled, there would be almost no copyright protection in the modern world. While the sheet music of a song would be protected from copying, the recorded song would not be. Anyone with a dual tape deck, a CD burner, or a hard drive with software capable of duplicating digital media would be free to copy recorded music as they see fit, with no protection to authors.
Sound Recordings §102(a)(7)
By now it should be clear why we have temporarily bypassed the motion picture provision of §102 to address sound recordings. The musical works protection of the copyright code protects sheet music, but as discussed above, protecting sheet music from being copied is almost meaningless if recordings of the music may be made freely.
There are really three groups with interests at stake here: the authors of the original music, the artists who perform the music being recorded, and the producers/recorders of the music. The impact of White-Smith was that, until the 1976 Act, only the authors had any rights. Performers and producers could not prevent others from copying their work; just as with the music rolls, recordings were not protected by copyright law.
Copyright protection becomes substantially more complicated here, as §114 makes clear that not all of the §106 rights granted to copyright holders apply to the §102(a)(7) protection of sound recordings (keeping track of all those sections?) In addition, §115 covers the “Compulsory license for making and distributing phonorecords,” which permits others to make copies of recorded music under certain circumstances so long as the copyright holder is paid a royalty. (Note that the term “phonorecord” includes all forms of recording, including digital recording such as on CDs or any other material object).
Further issues involving sound recordings, royalties, and musical works will be addressed in our coverage of §106. For now, suffice it to say that just because someone “lays down some tracks” doesn’t mean that musician gets total control of everything that can be done with that recording. Most importantly, the artists and producers cannot prevent others from playing the recording, although the owner of the underlying work does maintain some rights there. In other words, once a recording is made, a radio station can play it as much as desired without regard to the musicians or producer. The author (or other owner of the underlying song), however, must still be reckoned with.
EXAMPLE: Lowell writes a song titled “Plain Jane,” which he arranges to have recorded, along with a number of other original creations, at NWCT Studios. Jack “Hawk” Hokie produces the album and hires the musicians. Within months, the title track is a major hit, played on radio stations almost non-stop. Hawk, and the musicians, will never get paid anything more than was provided in their original contracts, but Lowell, as copyright holder of the song, will continue to earn royalties so long as he holds the copyright.
Motion Pictures and Other Audiovisual Works §102(a)(6)
In late 2004, the Motion Picture Association of America (MPAA) officially announced its war on infringers. The inexpensive access to fast internet connections, the cheap price of hard drive space and writable DVDs, and other factors had all led to a level of piracy which the MPAA felt was cutting into profits.
According to MPAA.org, the MPAA was formed in 1976 in order to "implement and strengthen existing copyright protection legislation, assist local governments and law enforcement authorities in the investigation and prosecution of piracy cases, initiate civil litigation on behalf of its’ member companies against copyright infringers, conduct education outreach programs regarding the harmful effects of piracy.”
The website also notes that approximately 40% of all movies made actually lose money, and that production and marketing costs average over $80 million per film. With numbers like that, it is no surprise that infringement is a major concern for the MPAA.
With this subsection we return to a category defined in §101:
"Audiovisual works" are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.
The issue of fixation here has been resolved in much the same way as it has been for music: digital as well as analog recording devices will do. And the originality required by §102 is generally met by the very act of recording.
The §101 definition, however, stretches beyond what one might think. One prominent example of this is video games, which today are copyrightable as audiovisual works under this subsection of the statute. See Atari Games Corp. v. Oman, 979 F.2d 242 (D.C. Cir. 1992) (arrangement of graphic elements in “Breakout” is sufficiently creative in overall appearance and effect to constitute an audiovisual work which is protected by copyright); Midway Manufacturing Co., v. Dirkschneider, 543 F. Supp. 466 (D. Neb. 1981).
Computer Software §117
Player piano rolls were a novel creation in reproducing musical sounds, but music boxes of various sorts had been around for since at least the 16th century. Even MP3s can be seen as a mere step in the evolution of recorded music, and adding visual features to audio recordings might also be seen as a logical step.
The advent of the computer, however, represents a completely new use for similar technologies (the original computers used punch cards, a concept not so far removed from the piano player rolls…) Of course, it would be an odd result indeed if video games were copyrightable but not computer programs.
Most notable here is the case of Apple Computer, Inc., v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983). Recall that video games are protected as audiovisual works – it is the on-screen result which manufacturers sought to protect. With the Apple case, however, it was the underlying code which was at stake, not simply the result caused by that code on our screens.
For those who are a bit light on their knowledge of computer programming…fear not! Litigating a copyright infringement case involving computer code definitely requires that one develop an expertise in that area, but acquiring a general understanding of the law in the area does not!
Today, there is no doubt that computer programs are protected under §117. The definition of “computer program” in §101 might give rise to some issues, again best understood by those well-versed in the language of high technology. Basically, you should know that programs are protected, with a few minor limitations explicitly carved out in §117. Included in these is the right of purchasers to make an “archival” copy, the right to make a copy in conjunction with the repair or maintenance of a computer, etc.
Arguments that computer code is unintelligible and therefore not copyrightable seem suspiciously like the White-Smith court’s opinion, long overruled by the 1976 Act. One difference here, however, is that unlike music recorded on a medium which itself is unintelligible to us, the music is intended to be heard by us. Computer code, however, is not intended to be seen by the computer user; it plays a purely functional role. These arguments, and others, are deftly handled by the Apple court, which left no room for doubt as to the copyright protection afforded computer programs.