Hello, Adele. Goodbye, Spotify.

Copyright Law

Last Thursday, before the release of her third studio album, recording artist Adele announced that her album, “25”, would not be made available on the streaming service Spotify.

Adele is not the first, or by any means the only, artist to pull their music from streaming services. Taylor Swift pulled her catalogue from Spotify last October. The Beatles and Bob Seger are also nowhere to be found on the streaming service. Some have predicted that Tidal artists such as Jay Z and Jason Aldean may also pull their music from competing streaming services. Garth Brooks takes his independence as a recording artist one step further and does not even offer his music for paid download via iTunes.

One place you will find these artists, however, is Pandora. This is because, under Section 114 of the Copyright Act, “non-interactive” digital music services can obtain compulsory licenses to transmit sound recordings. Non-interactive streaming services do not need the permission of the copyright owner to use their sound recordings – they need only comply with the statutory requirements. These requirements include limiting the number of plays from a specific album within any given three-hour time block and paying the royalty rate set forth by the Copyright Royalty Board. “Interactive” services will have to negotiate privately with the copyright owner, and may be denied a license to use the sound recording in question.

“Interactive” services are defined by the statute as services that either allow a user to receive a program specially created for that recipient, or one that delivers a specific sound recording upon request. It would appear at first glance that Pandora is absolutely interactive under the prong of the definition. Pandora does not deliver specific songs on demand, but users can create programs specially tailored to their tastes. Pandora users can pick artists, songs, and genres and stream stations based on those choices. However, in 2009, a Second Circuit court held that a service quite similar to Pandora was “non-interactive” and therefore could take advantage of statutory licensing. This decision has been criticized as focusing less on the statutory definition and more on the consideration that this kind of streaming is less likely to replace actual album sales. Bolstered by this decision, a “non-interactive” service such as Pandora can pay lower royalty rates and maintain a larger catalogue than other music streaming services.

Responses to artists pulling their music from Spotify has been mixed. Some believe music should be freely accessible. Some believe streaming services do not appropriately value music and fail to fairly compensate artist. An incredibly popular artist such as Adele may wish to remove their albums from streaming in order to encourage customers to instead pay to own copies of the artist’s music. Newer and unknown artists may wish to license their sound recordings to streaming services in order to take advantage of the increased exposure to listeners who may not otherwise have heard of them.

At the end of the day, I believe the decision to stream or not to stream should lie with the artist. One could extensively list the pros and cons of music streaming, but perhaps the debate would be futile so long as the Copyright Act relies upon compulsory licensing. Compulsory licenses under Section 114 take the decision out of the artists’ hands when it comes to so-called “non-interactive” services such as Pandora. Perhaps these artists who have removed their music from Spotify wouldn’t do the same with Pandora. But the Copyright Act doesn’t even give them the option.

So About That Taylor Swift Lawsuit. . .

Copyright Law

By now I am certain everyone has heard about the recent copyright infringement suit filed against Taylor Swift over her song “Shake It Off“. I am even more certain that everyone has heard “Shake It Off” – probably too many times. Even though the complaint was dismissed last week by the district judge presiding over the case, I still find it worth mentioning.

On October 28, 2015, Jessie Braham (who also goes by “Jesse Graham”) filed a complaint in the Central District of California against Taylor Swift (and Sony, ATV Music Publishing, Big Machine, Shellback, and Matt Martin). Braham was not represented by an attorney. In his complaint, Braham accused Swift of infringing his intellectual property rights in his 2013 song “Haters Gone Hate.” The complaint stated that if Braham had not written his song, “Taylor Swift would not have written the song Shake It Off”. Braham requested 42 million dollars in damages and asked to receive songwriting credit on “any new copies being printed”. Exhibit A to the complaint was text from the website Songfacts.com, in which Swift explains her inspiration for Shake It Off. This has the unintended effect of undermining Braham’s allegations that Swift stole the song from him. Braham also included in the complaint a copy of his copyright registration for “Haters Gone Hate”, which was filed with the U.S. Copyright Office in February 2013.

It is a testament to Swift’s considerable fame that this pro se lawsuit, which really had no likelihood of success on the merits, garnered as much media attention as it did. Indeed, the suit was short lived. On November 10, a judge for the Central District of California dismissed the complaint for failure to state a claim upon which relief may be granted.

To recover for copyright infringement, a plaintiff must show that he has ownership of a valid copyright, and that the defendant copied protected material from that work, violating one of the exclusive rights granted by the copyright act. Without direct evidence of copying, the plaintiff can establish that copying occurred by showing that the defendant plausibly had access to the copyrighted work and that the two works are substantially similar.

The court here found that Braham’s complaint was factually deficient and did not adequately state exactly which lyrics he claims Swift “stole”. However, it seems clear that Braham is suing over Swift’s use of the phrases “Players gonna play”, “Haters gonna hate” and “Fakers gonna fake”. Admittedly, these phrases do appear in both songs in some form. However, as the court notes, even if Braham were able to show copying by Swift, “copying of something is not enough.” The copying must be of some protected material. Given the widespread use of the phrases in questions – both before and after Braham released his song – it would be difficult for Braham to show valid copyright ownership in these phrases in isolation.

Indeed, the phrase seems to transcend musical genre. In 2000, R&B group 3LW released their song “Playas Gon’ Play”. In 2014, country artist Eric Church used the phrases in his song “The Outsiders”. And of course, Taylor Swift used them in her pop song “Shake It Off”.

The court here did not dismiss the lawsuit with prejudice – Braham can still re-write and re-file the complaint and try again. However, the court warns that given the history of the phrases in question, he should reconsider claiming that they are original to him, or risk being subject to Rule 11 sanctions for making baseless claims.

When I look at Braham’s complaint in this case, I have to wonder what his intentions were in pursuing legal action. Was this a nuisance lawsuit filed in hopes of receiving some form of settlement or increased exposure? Or was this a case of an artist unfamiliar with copyright law who genuinely believed he had a cause of action but could not afford legal counsel to advise him otherwise? From what I have read, public opinion seems to suggest that the former. But I would like to keep an open mind.

An Election Day Soundtrack

Trademark Law

During my freshman year of college, I decided to run for just about every student government position for which I was eligible. My campaigning methods – unbeknownst to me at the time – could have raised some intellectual property considerations, particularly in the world of trademark law. For one thing, my campaign posters featured the Yuengling Lager logo, which I had poorly altered to depict my own last name. (Side note: Using beer imagery to appeal to college voters is every bit as effective – albeit unimaginative – as one might think). In addition to my posters, I also included a clip of Tom Petty’s song “I Won’t Back Down” as background music for a short campaign video I posted online.

The use of songs by political candidates in their campaigns is cause for much controversy. The upcoming presidential elections have seen no shortage of recording artists opposing the use of their songs by candidates whom they do not wish to endorse. Steven Tyler recently spoke out against Donald Trump’s use of Aerosmith’s “Dream On” at campaign events. Rock band R.E.M. also had some choice words for Trump after he used their song “It’s the End of the World As We Know It” (incidentally one of my all-time favorite songs) during a rally concerning U.S. relations with Iran. Mike Huckabee angered the band Survivor when he appeared onstage with same-sex marriage opponent Kim Davis while “Eye of the Tiger” played in the background.

In 2009, the U.S. District Court for the Central District of California heard arguments on a motion to dismiss a claim by Jackson Browne against Senator John McCain. Browne opposed McCain’s use of his song “Running on Empty” in a campaign commercial attacking Barack Obama. The claim was for false association or endorsement under the Lanham Act (the primary source of federal trademark law). The court refused to dismiss the claim against McCain, reasoning that the Lanham Act indeed applies to noncommercial political speech and recognizing that McCain had failed to establish that there would be no likelihood of confusion as to endorsement by Browne. Because the issue before the district court was a motion to dismiss, the court did not need to answer other questions that would likely need to be answered in a case decided on the merits – chief among these being the question of whether a song may even receive protection as a registered trademark.

The McCain case eventually settled and, to the best of my knowledge, no court has made any definitive ruling as to the viability of these types of false endorsement claims. Perhaps eventually the law will become more settled as to whether recording artists may assert successful false endorsement claims against politicians. Until that time, artists may alternatively rely on copyright claims – but only if the song in question was not properly licensed. Additionally, popular recording artists can take comfort in using their considerable visibility to set the record straight as to which candidates they do or do not endorse.

Oh, and Tom Petty, if you’re reading this – thanks for the campaign help!

A Blog By Any Other Name

Copyright Law

I felt it would be appropriate for my first post to explain the title of my blog and what I hope to accomplish through my posts.

The phrase “a modicum of creativity” originates in United States copyright law. In the 1991 Supreme Court case of Feist Publications v. Rural Telephone Service (499 U.S. 340), Justice O’Connor delivers the opinion of the Court in a copyright dispute over telephone directory listings. The Feist case required the Court to consider whether the telephone directory listings at issue were copyrightable – either independently or in the way in which they were arranged.

Feist illustrates one of the few hurdles that a work seeking copyright protection must pass – the requirement of originality. A phrase often heard in copyright law is “the sine qua non [essential ingredient] of copyright is originality”. Originality is a requirement mandated by the Copyright Clause of the U.S. Constitution. Justice O’Connor in Feist cites to the 1879 “Trade-Mark Cases” for the proposition that originality in copyright requires independent creation plus a modicum of creativity.

I find this to be both a delightful phrase and concept. By requiring only a modicum of creativity, copyright law sets a low threshold for protection. The requirement saves authors from having their expressive works judged by courts to determine if they are creative enough to warrant protection.

A work needs only a modicum – a scintilla, speck, dash, iota, scrap, morsel – of creativity. I hope that by writing this blog, I can add a slight spark of creativity to the areas of law I find so interesting. Intellectual property law appeals to me because it protects and promotes a wide range of creation – be it art, music, literature, or novel inventions. I don’t just find creativity to be entertaining – I believe it’s important. I am writing this blog mostly for my own purposes. I feel that by forcing myself to research, contemplate, and write about topics in intellectual property law I will become a better advocate for those issues I believe in.