Moderator: Michael Shapiro, Senior Counsel for Copyright,
USPTO
Panelists:
David Carson, International Federation of the Phonographic
Industry
Popular image of industry that forcefully asserts rights and
goes to court at drop of hat is not the reality today, after baptism of fire
with online pirates decimating sales. We’ve remade ourselves and focused on
rights to license so consumers can experience them in just about any way they
want, ideally in ways that make us money because we are a business. We aren’t
out to sue people. Days of suing users are behind us. We’re trying to give people ability to do
what they want in a way that doesn’t harm our rights and compensates our
artists when they use our creative efforts.
Generally, we are licensing UGC. YouTube licenses are
exemplary: permit YT to make UGC with sound recordings available. Google called the licensing solution, powered
by Content ID, as win-win-win for copyright owners, YT, and users: new source
of revenue for the first two and allows the users to remix without
independently seeking licenses.
Commercial sound recording remixes, by contrast, should be a
negotiation with rights clearances and payments.
Prof. Peter DiCola, Northwestern University Law School
Book, Creative License,
with Kembrew Mcleod. Based on over 100
interviews with musicians who’ve been sampled and who sample; attorneys,
industry professionals, and scholars. Many competing interests in sampling.
Detail sample clearance process. Some great successes (Suzanne Vega and DNA,
with initially unauthorized remix) but there are significant barriers, especially
for independent labels and musicians. Inefficiencies: transaction costs; difficulty
of negotiating across generations; royalty stacking problems. Even advocates of
status quo agree: if you sample multiple works, it will be impossible to
license your work for any price less than 100%.
Collage based music with 15-20 samples is impossible, everyone agrees.
Some are untroubled by this, but the fact is that even superlawyers can’t get
it done.
Jay Rosenthal, National Music Publishers’ Association
Has negotiated 100s of digital sampling deals in prior life,
represented Salt N’ Pepa etc. We support
fair use exceptions as legitimate defenses, but don’t believe that fair use
should be expanded beyond accepted contours or believe in compulsory licensing
because of the various ways in which samples are used. Copyright law shouldn’t
have primary goal of ease; should be supporting interests of creators. Shouldn’t
promote class warfare between old artists and new artists. Congress should
incentivize collaboration, including licensing.
Doesn’t believe there’s a problem with digital sampling. After 20 years,
contractual deal points are relatively easy to negotiate. Businesses exist to
help get clearance, get quotes, for new artists too. Easier than ever to find
authorship/ownership information. You
can find publisher/songwriter if you really want. Cost of samples has never been
lower; buyer’s market. Often not flat fees, but sharing percentage. If you have
lots of samples, it’s hard, but it is done—idea that it’s undoable is untrue.
Takes exception to the idea that Public Enemy’s views on
digital sampling are majority in hip-hop. Other rappers like Salt N’ Pepa
concluded that unauthorized sampling is morally wrong/violates Golden
Rule. Would clear all samples. “What a Man” had 60/40 basis.
No compelling reason to change broad framework with de
minimis/copyrightability test. That’s the antithesis of progress to have
loopholes in copyright law to allow remixers to use other artists’ music for
free. But there are solutions. Market-based.
NMPA’s deal with YouTube over UGC, thousands of publishers. UGC is a big part of this debate; is being
put into a paid position. Creative Commons
approach is also viable. Microlicensing
is also a solution for less use/less money.
Much better for ecosystem to promote collaboration between new and older
artists rather than them not asking permission, not paying, and not
attributing. (I wonder what the Impressionists would have said about
collaborating with the older generation.)
Josh Schiller, Boies, Schiller & Flexner LLP
Represented Richard Prince in court of appeals (i.e., that
district court ruling was Not My Fault). Appropriation art as a recognized
artform. Used photos as raw ingredients; you could call them samples; he’s
called himself a kind of DJ. Court found
most of them transformative; believe the remainder will be so recognized too.
Importance of 2d Circuit’s decision: recognized that a work
of art can be transformative without needing to look solely at an explanation
the artist may provide. The concern for “legitimate” fair uses—there’s no such
word in the statute. It lists a number of examples. You have to look at each work for
transformativeness. Even using the
entire image, when you’re dealing with art, can be fair. Prince is inspired by many things; he shouldn’t
be required to say magic words to get a transformativeness ruling. Satire/parody need not be obvious.
The issue is not lack of clarity, but that fair use is case
by case and copyright applies to so many industries that fair use must be
considered within its context.
Prof. Rebecca Tushnet, Organization for Transformative Works
501(c)(3) nonprofit founded to protect and defend
noncommercial transformative works and their creators. Scope: 42 million hits on our website each
week by people accessing fanworks, and we aren’t anywhere near the largest site
for fanworks. Creative works exist in an
ecosystem, and in that ecosystem, noncommercial works are the equivalent of the
wetlands—a rich source of diversity that can’t be replaced by systems of top-down
control. In this environment, fair use
has an important disciplinary effect on the biggest copyright owners whose
works are most often used in remix. It deters them from making the most
outrageous claims and allows people who are caught up in automated enforcement
mechanisms to assert their rights. If they find an organization like ours, fair
use allows creators to fight back when copyright owners try to suppress
critical and transformative uses like Jonathan McIntosh’s Buffy vs. Edward. Robust fair use supports a culture of free speech
and reasonable balance as against a culture of suppression of speech and the
resulting disrespect for copyright.
Licensing is no substitute for fair use, as fair use
decisions from across the courts of appeal have recognized. Fair use exists to
protect works that copyright owners wouldn’t license, as we’ve seen again and
again with the licensing schemes offered as exemplars—both on YouTube and
Amazon’s Kindle Worlds there are substantial content restrictions that fall
most heavily on the most critical and most transformative uses. Fair use also
exists to protect works that simply shouldn’t be controlled by copyright owners
because of the substantial new meaning and positive externalities they bring
into the world—positive externalities being the term for value that isn’t
captured by the creators themselves in terms of monetary return and thus can’t
simply be transferred over to existing copyright owners. In a licensing-only
world that value would be misdirected and destroyed. Licensing schemes also
support monopolization of the channels of communication, since only giants like
Amazon and Google have the clout to negotiate broad licenses and use that to
keep people locked into their platforms against the competition.
A final note, given the composition of this panel: under
most circumstances, music isn’t a good model for the rest of copyright. The
legal regime and the business models it has encouraged are so complex and
specific that we should most likely look elsewhere, unless we’re prepared to
adopt compulsory licensing across the board. And I think Mr. Schiller’s
comments also bore this out.
Q: what is a remix?
Collective works/derivative works/compilations? Jay Rosenthal distinguished between remix and
mashups.
Rosenthal: from a music standpoint, a song that is basically
a recreation that would come under the compulsory license is one type of
derivative work, allowed by statute.
Beyond that, a song with samples v. a mashup with lots of samples are
effectively the same thing from a legal standpoint. Is it harder for Girl Talk
to license, if he tried? Yes. But nevertheless fundamentally the same. Might be
different for other forms of art.
Q: do we have a cultural production problem? If it’s uncertainty, where’s the evidence?
RT: lightning strike effects of getting a takedown notice,
which often leads the person to withdraw completely; fear at the institutional
level so that schools are unwilling to use remix even though it’s really good
for teaching.
DiCola: trouble with move to commercial world; also inhibits
licensing to push them underground. Lost
revenue is a shame too.
Carson: music industry shares that goal. Instinct is to cut a deal, or do it on an
automated basis. There are always
exceptions—recording artists who don’t want their work sampled. Or a record company might want nothing to do
with a particular product. What if Nazis
put a work on their website? One of our
poster children for European gov’ts about necessity of controlling uses is offensive
uses made of our works is the brief YT phenomenon (we do take down) of Hitler’s
In Memoriam to Adolph Hitler, using popular sound recordings such as theme from
Titanic. We want to stop that. So sometimes licenses won’t work.
Rosenthal: moral rights. Our YT deal resulted from class
action on behalf of independent publishers. Have ongoing license with
cooperation and collaboration, working on database. Idea is not to sue out of
business or stop them from making fair use/derivative works—we want licenses.
Creativity: lived through the age of hip hop. No producer
reaching out through a company, when they clear a sample or get a “no”—never known
a producer to stop work and go home. Go on to the next one.
DiCola: doesn’t disagree about substitution being possible,
but let’s talk about the places where there are barriers to understanding the
system. There’s no example of someone with 20 samples getting a license. That
kind of work can’t be licensed.
Rosenthal: I’ve done them on prorated basis. Shouldn’t compel us to change a whole
licensing system.
RT: noncommercial speech works differently; 16 year olds
inventing remix in their bedrooms don’t take these business routes; diversity/chilling
effects are disproportionate for women/minorities. Types of creativity differ: example of Gone
With the Wind, where they were perfectly willing to license certain types of
content but not Alice Randall’s depictions of homosexuality and miscegenation. Like
saying that there are newspapers under a censorship regime and the fact that they’re
filled indicates that free speech has been unaffected by censorship.
Q: fair use changes in the courts?
Schiller: court recognized that observers matter. There are
readily available artistic opinions that speak both to transformativeness and
to market substitution. Commerciality
doesn’t mean market substitution.
Q: statutory license/Canada’s UCG exception?
RT: Look at it!
Canada’s market seems to be functioning well; SOCAN even just cut a deal
with YouTube. Protects against the lightning strike.
Rosenthal: sometimes it’s tough to understand what’s noncommercial.
Many clients early in their careers are trying to turn themselves into viable
marketplace forces, but aren’t making money. Brings intent to the fore, and
whether user is trying to get into a commercial marketplace v. hobby/fun. On fair use: Beastie Boys case is very worth
following.
DiCola: an issue of control.
YouTube license is worth paying attention to but the advantage of a
statutory scheme is that it’s public and transparent, and Content ID isn’t. (Preach!)
When a YT clip has more than one work, how does the revenue get
split? The parties might know, but we
don’t. Public scheme has benefits of understanding (and also, I would add, the
benefit of allowing competitors to get the same deal).
Carson: statutory licenses have a lot of baggage. Many
licensors and licensees aren’t particularly pleased with them. Will always be cases where you want to say “no,
you can’t use my work for that purpose,” and a statutory license doesn’t permit
that.
Peter Menell: mashups are astoundingly popular, outside any
real market. Disservice to copyright if we can’t bring it within a market of
some source. Rosenthal hasn’t convinced me. Generation of remixers won’t just
shift from one source to another if they get told “no, you can’t use X, find a
Y instead.” You’re encouraging them to hate and defy copyright law. Mechanical
license worked pretty well. Could be way to go.
RT’s reaction: this is a way to “hide the wiring” of
copyright for ordinary people.
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