Archive for the “Copyright” Category

“You are entitled to your own opinion, but you are not entitled to your own facts.”

– Sen. Daniel Patrick Moynihan

For the past several election cycles, a cottage industry of fact-checkers emerges from their pumpkin patches each fall to assess the credibility of candidates’ claims.  One of most-quoted of these, FactCheck.org, is affiliated with my alma mater.  These groups’ findings are not only cited by the media but are also used by partisans of both Presidential candidates.  And while neither the press nor the candidates are free to plagiarize the articles produced by fact-checkers, the facts themselves are fair game.

In fact (sorry), it seems fact-checkers have themselves become the story. Yesterday, CBS Sunday Morning dedicated an entire segment to the role of fact checkers.  It seems these trufflers of truth have become pawns in the political chess game of electoral politics, with each campaign’s spinmeisters trying to use the checkers to “king” their candidate by persuading the voters that their opinions are facts.  In keeping with the non-partisan nature of my posts and this forum, I’ll not comment on which candidate appears to have racked up the most misdemeanors from the fact checkers – but I do have my own opinion!

As it turns out, the late Senator Moynihan is absolutely right from a copyright perspective. Section 102 of the Copyright Act not only states what is subject to copyright, including various forms of musical works and sound recordings, but also sets out many things that are not subject to copyright protection. For example, there is no copyright protection available for any “idea, procedure, process, system, method of operation, concept, principle, or discovery.” And while the statute’s list doesn’t explicitly include facts, the FAQ on the Copyright Office’s web site does state that “[c]opyright does not protect facts…” More importantly, the Supreme Court has said that facts are not copyrightable.

Facts are either ideas or concepts (e.g., 1+1=2) or discoveries (e.g., it’s a fact that the earth revolves around the sun).  So, the candidates and their minions, along with the media and everyone else can freely use the findings of fact-checkers as to what a particular candidate said or didn’t say and whether his proposals are better than the other guy’s.  As I said in my last post, as with fair use, the exclusion of facts, concepts, discoveries and ideas  — as opposed to the individual expression of them, reinforces our First Amendment freedom of speech as nobody can monopolize an idea.

These concepts apply not only to political discourse, but to musical expression, as well.  Section 102 states that copyright applies to “original works of authorship.” It is the individual expression of an idea or concept, not the concept itself, that is subject to copyright protection. So, what does this mean in a musical context? Imagine if C.P.E. Bach had been able to get a copyright in sonata form. Or if Bach and Vivaldi had sued each other over the exclusive right to use a circle of fifths?

It would be absurd to think that Jerome Kern couldn’t use that chord progression  in “All The Things You Are.”  Structural forms (such as a 32-bar AABA song or a 12-bar blues) and chord progressions are among the things that are generally considered to be non-copyrightable concepts or ideas.  You’d probably be justified in having the opinion that they’re musical “facts.” Just think of the all the songs and standards written on “blues” or “rhythm” changes.  Or consider the thousands of symphonies, concertos and sonatas that use sonata form. Steve Reich has copyrights in his works,  “Piano Phase” and “Violin Phase” but he can’t prevent another composer from utilizing phasing techniques in their own works. The same principle would apply to performance techniques: there’s no copyright for wind players playing double stops or practicing circular breathing.

So, feel free to marshal as many facts as you can to support your opinion as to which candidate “won” tonight’s final Presidential debate.  Or write and perform a new work on the topic using whatever forms and techniques you like. I only ask that you not post any politically-oriented comments in response to this piece. That said, your opinions as to copyright and music are most welcome, either here or at my web site.

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In anticipation of tonight’s debate, I’d like to discuss, from a non-partisan IP law perspective, something that came out of the first Presidential debate: the Big Bird ad.  I think the ad and the Sesame Street folks’ response raised some interesting questions of fair use, parody and first amendment rights that are applicable to composers and performers.

As we know, it started with a comment that Republican contender, Gov. Mitt Romney, made to the moderator, Jim Lehrer of PBS , about cutting federal funding for PBS programs, including Lehrer’s own NewsHour and Sesame Street. Mr. Romney specifically singled out Big Bird for the budget ax.  Thereafter, Big Bird, who claims he’s normally in bed well before 11:30 p.m., made a guest appearance on Saturday Night Live’s Weekend Update to address the issue.  Being non-partisan, however, Mr. Bird declined to make any political pronouncements, stating, “No, I don’t want to ruffle any feathers.”

Unfortunately, he managed to do so, courtesy of a TV ad from President Obama’s campaign.  Prominently featuring Big Bird and the familiar green Sesame Street  sign, the ad has a satiric quality to it that one doesn’t typically see in Presidential campaign ads. It seemed, at least to me, more like one of the fake ads produced by Saturday Night Live. But it’s real and Sesame Workshop, the company that owns the rights to Sesame Street and its many characters, made it known that they are not amused.

Sesame Workshop’s demand that the Obama campaign cease using the Big Bird ad has been widely publicized.  But you might well ask, “doesn’t the President’s campaign have a First Amendment right to use Big Bird?” After all, “political speech” is the very core of our right to free speech.  And wouldn’t the use of Big Bird constitute “fair use” under copyright law? Wouldn’t it be considered a protected “parody”? Read the rest of this entry »

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Osvaldo Golijov working hard to meet his next commission deadline

Seems like it’s been a while since we had some Golijov bashing (and defending) on our site. What do you think about this story about a Eugene Symphony premiere, with its disturbing allegations of extended theft of another composer’s work?

The reporter doesn’t mention that Golijov’s m.o. these days is to collaborate with pop/folk musicians, making the question of authorship in works such as Ayre particularly murky. Nevertheless, if nearly 50% of the work is music by another composer, shouldn’t that composer get a conspicuous co-credit on the composition? Golijov does credit his collaborators, but you usually have to dig down into the program notes or CD credits to discover who else helped write the music on which Golijov’s name is so prominently displayed.

Read Bob Keefer’s story about the controversy here.

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In reaction to a roundtable discussion on the subject of copyright on The Hooded Utilitarian blog, NYC composer Jonathan Newman hits several nails squarely on the head:

I realize how mercenary this sounds, but how about making art AND money? Ultimately I’m unclear how copyleft (or free culture in general) can maintain my middle class income. As far as I can tell, the current copyright laws are what do that.

All that being said, I’m actually a fan of Free. I give away content like crazy on my website…mp3 downloads…score of the pieces as PDFs, etc. I give away CDs, even commercial ones, like candy. I give away many (expensive to produce) printed scores. Because I do believe that giving away significant content–not just useless crap, but stuff people can use–in many ways does help create that “fan base” one hears the astute bands and rock stars talk about … those fans that downloaded the album for free, but who later on shell out 300 bucks to go to the tour show and buy the $25 t-shirts. Which right there crystallizes the line for the Free argument. You don’t see “Pay what you want” Radiohead (I’m a fan) letting their devoted following into the show for free. (Or do you? I don’t really know.)

So among this noise, some content is always controlled by the owner. It’s not all free, it’s just a question of what content is deemed not free. For me, it’s the performance materials. That’s the paper (maybe someday it won’t be, I’m looking at you iPads) musicians rehearse and perform from. I rent it, I sell it, I control it. Nothing drives me more bat-shit crazy than seeing other composers give away their stuff. A website full of scores and parts… “Come play my music! I won’t charge! I just want you to play it to Get My Name Out There!” Well, a) I hope you have another job, b) you just made mine a lot harder, and c) the end user (who, sure, now knows your name) thinks your stuff isn’t even worth the paper it’s printed on.

Check out the entire post here.

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And you thought the only ones who needed to worry were the illegal file-sharers? After reading this article, think again:

in an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

The industry’s lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are “unauthorized copies” of copyrighted recordings.

“I couldn’t believe it when I read that,” says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. “The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation.”

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