Thursday, August 11, 2022

IPSC, Breakout Session 1: Copyright: Music & Authorship

Co-authorship in Comparative Perspective: Intentions, Relations, and Implications

Carys Craig, Luke McDonagh, and Daniele Simone

Looking at joint authorship in UK, Canada, US, Australia. A good moment to revisit the question now that there’s a renewed focus on IP and social justice/race and gender, and authorship in the context of AI. Canada’s IPO disagrees w/her that AI is not capable of authorship/joint authorship, and inexplicably registered AI as coauthor of painting created by combining photo and van Gogh as base datasets. How to avoid reinstating old hierarchies, exclusions?

US: joint work requires intention, merger into unitary whole

UK/Canada: product of collaboration, contributions not distinct.

Overlaps are clear in the case law. Canadian cases: Neudorf, Sarah McLachlan’s session musician denied joint authorship despite contributing original melodies b/c court followed US rule: McLachlan didn’t consider him an author.

More recent authority casts doubt on that but doesn’t resolve the issue.

UK: Beckingham v. Hodgens: session musician awarded joint authorship and equal share when he was asked to play something jiggy that became the most distinctive part of the overall work.

Kogan v. Martin: conversations about work as draft developed: recognized as joint author despite lack of overall creative control over work as a whole.

Contribution: What is the right kind of contribution? How should it relate to the rest of the work? Jurisdictions agree that it need not be equal. US/Canada: it does need to be original. US especially focuses on control as proxy for what authorship is. Mess in Canadian jurisprudence about suggestions: one w/power to accept or reject is the sole author. How distinct/merged need the contributions be? Interdependent enough or not separate? In UK, it was enough that it was the most important part of the song. In Canada, there’s a potential trap: it must be enough to be copyrightable on its own but that might make it separable.

Collaboration: focus on process that brought work into existence: intentions of parties, collaboration between them. Intent is clearly a requirement imposed to narrow the class eligible for joint authorship—to protect the truer, worthier author against undeserving interloper. Why is this so important in the US? Part 3:

Consequences: what results if we find joint authorship? US tenancy in common rules. UK/Canada: joint tenancy rules: you need to act in unison, giving every joint author veto power over work.

How do the tests reflect the consequences of finding joint authorship? How do differing consequences map onto divergent philosophies of copyright?

Looking for test to encourage collaborative creativity and braod

[RT: Holdout risks: requiring everyone to agree allows minor contributors to hold out for too much, at least in a culture that rewards litigiousness; the problems of joint v. common ownership are reciprocal. And it’s not really joint ownership in the real property sense b/c there is always a way out of joint ownership—severance to turn it into tenancy in common, which limits the costs that holdout joint owners can impose on each other. Not available in ©.

Do other jurisdictions have litigation over editors/give © credit to editors?

A: editor example is tricky b/c it’s about construction of originality. What counts as authorial contribution will determine what counts as joint authorship. But in the UK the standard for that has always been very low, including sweat of the brow, so there’s never been a good explanation for why the editor isn’t a joint author. Social norms in the relevant community could inform whether it’s an authorial contribution. But at the same time the norms are often about power and who counts. [E.g., is a dramaturg a coauthor?]

Economic value: old song that wasn’t very valuable first time around; it was rerecorded with his contribution and then was used in a Vauxhall car ad. It was about where the value was found.

Pam Samuelson: In some fields people are credited as coauthors when they didn’t contribute anything copyrightable, only a database or tool. Her position has always been that if the norms of a field say that someone is a coauthor in that field, then © should also recognize them as coauthors. Also: what about derivative works?

A: idea that you look at the results, and that everyone who made a significant contribution should get the reward of ©, is compelling, but we are inclined to “contribution to protectable expression,” including something that generates that expression or informs the specific expression of ideas, might allow us to move away from “independently copyrightable” requirement. Expectations of parties might help us avoid the harshness of the Goldstein claim.

If collaboration is an iterative process, that means the output is more fluid. So how do you build in that to recognize contribution to singular work v. creation of derivative work. In UK/Canada, joint ownership rules allow us to say “no derivative works without all of us agreeing.”

Betsy Rosenblatt: how much of this has to do with availability of WFH in some jurisdictions? A lot of exploitation situations occur where WFH is standard in the industry but there was no contract, and then a problem develops, but it would have been exploitative had they signed the standard contract without a legal problem.

Measuring the Harms of Unauthorized Campaign Music

Jake Linford and Aaron Perzanowski

Licensing entities’ constituencies believe there’s a problem, leading the licensors to create opt out for political uses. Tried to measure whether there is non-moral, measurable harm to artists if a politician with which they disagree uses their song and they object. Panic! at the Disco; Rolling Stones; Rihanna all objected to Trump uses. Looked at whether there was any market effect in the month afterwards: after the complaint, there was a modest suppression of streaming—most for Rihanna, least for the Stones. If listeners are punishing the complaint, we’d expect that to be in Trump-leaning districts; if listeners are punishing the use, we’d expect that to be in Biden-leaning districts—we didn’t see any political effect, though. We don’t know why. But maybe there’s a Streisand effect: a negative result b/c they complained; there’s no story unless there’s a complaint.

To get at the why, did a survey about various bands, including a made-up/unknown one. Looked for political disagreement versus agreement both with the bands and with the consumers. Control use: football team uses the song as a walkout song. Olivia Rodrigo (potential liberal-leaning), Morgan Wallen (fans like to scream “let’s go Brandon”), and made-up Loneome Ghosts. Trump or Biden use; complaint or not.

Respondents say that endorsing a politician matters to them. But does it? For the fictional band, respondents in three of the four test groups shifted significantly in favor of “supports a political candidate” regardless of endorsement. No significance at all in Trump use. But the numbers in the other conditions were small: If objected to Biden use, 7.8% of respondents attributed perceived support of Trump due to objection. If objected to Trump use, 10% perceived support due to objection.

Perceived endorsement generally: Trump use wasn’t significant. In other conditions, 5%, 3.5% perceived endorsement.

Reduction in reported likelihood of streaming or purchasing made-up band when Trump used song, and reduction in likelihood of Rodrigo concert ticket purchase if she objected to Trump. Made up-band may be empty vessel; artist with weaker reputation may be more vulnerable to change; there is not much to change about the Rolling Stones’ reputation.

Could also be explained by Rodrigo’s youth, gender and mixed race v. Waller’s older white male status.

Kristelia Garcia: did you test whether there was a larger effect for the artist or just those songs?

A: we were unable to buy more than data for those three songs.

Garcia: are there artists who don’t like it but wouldn’t complain?

A: 21 Pilots said something to that effect, but we’d need a followup study.

Garcia: control for age/heavy streaming v. political savvy/politically involved: how many people who listen to Olivia Rodrigo are also paying attention to Trump rallies?

Rebecca Curtin: is there any difference in how it’s used? Walkon/background music v. dancing to it.

A: the stories just say the song played (and in some conditions that the artist complained), and that’s all the info the respondents have.

Rosenblatt: Does this give us any insight into why we care? The ©, TM, false endorsement, ROP claims have all been legally very weak. Unjust enrichment? Feeling gross about it?

A: we definitely weren’t looking for unjust enrichment. But a 5% drop might be economically significant.

Jennifer Rothman: does the survey focus on political valence in a way that exacerbates the likely effect versus how many people in the general population even knew there was an objection. What’s the duration of that effect, picking up on Garcia’s point about the overall portfolio? How many Rihanna fans were Trump supporters or even Biden supporters who just didn’t want to have to think about Trump?

Copyright and Nashville Songwriters: A Qualitative Study

Joseph Fishman

Nashville as its own microcosm; looking for 40-50 interviewees total; people in Nashville love to contrast themselves to LA, so not claiming to generalize to all creative concentrations of industries—Nashville is the only songwriting area that has become more dense in terms of percentage involved in the industry; everywhere else has become less dense.

Most writers don’t frame substantial similarity the way courts do—with works as objects. Their own descriptions of right and wrong don’t treat songs as artifacts to be held up side by side. Copying is an act that one person does to another; the acts are wrongful when they are a breach of trust. E.g., if I worked on an idea with a co-writer and we moved on/didn’t finish, and then the co-writer wrote something really similar with someone else. That’s not property rights reasoning. Another: “it’s country music. We’re playing with three or four chords. … Mozart wrote melody. We write chant.”  There are people known for copying, but publicly burning relations with them, and with their label, and with the artists they work with, isn’t worth it.

Dominant norm: cowriters get equal credit, full stop. Transaction costs; things even out over time for repeat players. “The way you get over the injustice of the last song is to go write another song.”

Rosenblatt: Larisa Kingston Mann, Rude Citizenship: “original” means something very different to artists in Jamaica than to the law, so that’s worth consulting.

Dave Fagundes: Geographical isolation? Variation in individual setpoints? Some artists are relaxed about purported appropriation, and others aren’t. Is there variation in individual moral psychology showing up? What happens when there’s slippage b/t norms and positive law of ©? That could mean a lot of spite lawsuits, or it could mean that people go outside the legal system to enforce them. You may see divergence b/t intuitions and positive law.

A: was expecting more informal sanctions, but hearing that it doesn’t work against people with the connections to get your song cut and actually make money.

Silbey: what institutions are specific to Nashville that might explain tolerances/breach of trust reasoning?

[I wonder about the role of insiders/outsiders: Does copying from rap even count to them? LA as important negative model against which they define themselves?]s

Abuse of Copyright: Intervention into Racial Inequity?

Margaret Chon and Olufunmilayo Arewa

Existing proposals for expanding abuse: digital overreach/fair use; First Amendment/speech suppression/fair use; weaponizing against business rivals/anti-competitive uses/over-extraction. Copyright over employee creations might also be copyright abuse.

Napster: anticompetitive licensing; Sony litigation where Sony alleged infringement of © in album cover in alleged retaliation for exercise of termination rights.

Racialized copyright abuse: questionable ownership claims of WFH status or of composer status, appropriating from Black authors. Assignment of rights with royalty accounting manipulation sometimes rising to the level of fraud. A Black artist could seek a declaration of misuse in regard to assignor’s ownership interest/rights: factors outside of the standard tests could be considered in examining contractual terms b/t the artist and publisher/label.

Benefits: it’s about copyright, not contract, law. Copyright misuse currently doesn’t have to be an antitrust violation; this wouldn’t have to rise to the level of unconscionability. Focus on owner’s conduct, not user’s, as fair use does. Applies not only to conduct at issue but also conduct towards third parties. Remedy is unenforceability until misuse is purged. Or: not a WFH if induced by fraud, misrepresentation, or unequal bargaining power.

Part of larger project looking at IP as dispossession and extraction versus vehicle for fair compensation to creators, racial justice, reward for innovation

RT: Is the remedy sufficient for authors who get zeroed out too during misuse? Given all the contracts the labels have signed, they’ll still get paid a bunch of money, e.g., for streaming, and that will just become unallocated and they’ll hang on to it anyway without even paying out puny royalties. Why not transfer control back/beneficial ownership or trust as a remedy?

A: worth considering!

Samuelson: literature on equitable remedies is worth exploring, especially disgorgement. Also look into abuse of dominant position rules in EU.

Tyler Ochoa: Great project, but bizarre statute of limitations rules will be a big problem: the statute runs when you have notice that someone else is claiming ownership which bars lots of claims.

A: could try to resurrect laches. [This seems unlikely to me given the current SCt—but it is reasonably possible that you could get Petrella applied to ownership, too.]

Fagundes: mandatory attorney fees for these cases? [seems to cut both ways]

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