Interim Executive Director Casey Rae Speaks to MN Musicians and Composers
Monday, March 10, 2014
Good morning. Thank you for all for being here, and thank you for having me at the Minnesota Music Summit. It’s truly an honor to be joining you at this amazing event. Today, I want to explore the future of music, which is still being written, and which you all can play a part in writing. Some of the issues I’ll be bringing up will no doubt be familiar to you. Others may not be as familiar. But it’s not just about me giving some prepared remarks, it’s about dialog. It’s about the very real connections between people who are passionate about music, who create it and nurture it. And those are the connections that I love to make. In 2014, there’s no single approach to being a musician or composer, so it’s become critical that we listen and learn from one another.
Congress’ ongoing review of the Copyright Act continued Wednesday when the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet convened a hearing on “preservation and reuse of copyrighted works”
Committee chairman Howard Coble (R-NC) began the hearing with a nod to his love for bluegrass music—a genre he acknowledged has limited commercial potential in the contemporary marketplace, but remains an invaluable part of America’s cultural history. It’s actually a pretty good example of what’s at stake in these debates, particularly with orphan works.
There’s been a lot of back-and-forth regarding a recent court ruling that maintains the current royalty rates paid by Internet radio company Pandora to ASCAP, a 100 year-old performing rights organization (PRO) that collects money for AM/FM and Internet radio play then distributes that revenue to songwriters and publishers.
In the coming days, we hope to offer varying viewpoints from individuals and groups in this ecosystem. For now, we’ll try to demystify this decision and the licensing frameworks that informed it.
Maybe it was in celebration of International Happiness Day, or maybe it was just coincidence, but this week saw three high-profile copyright cases all resolved through out-of-court settlements.
First, upstart toy company GoldieBloxsettled with Beastie Boys over the unauthorized use of a version of the Beasties song “Girls” with altered lyrics in an online ad video. As we reported in December, the case was framed initially as a question of whether the video qualified as fair use, but it also raised issues of trademark infringement, false endorsement, unfair competition, and misappropriation of publicity rights. In the end, the Beasties got what The Hollywood Reporteroriginally reported that they were after: a donation by Goldieblox to a charity of the Beasties’ choice, based on a percentage of revenue, and a more substantive apology:
That process continued last Thursday with an examination of Section 512 of the Digital Millennium Copyright Act (DMCA). This section contains “notice and takedown” provisions, under which internet service providers are sheilded from liability for infringement committed by users. Such “safe harbors” are only extended if an online service expeditiously complies with rightsholders’ requests to take down infringing content upon receiving notice. (You can watch the hearing online and read witnesses’ written testimony at the Judiciary Committee’s website).
The safe harbor protection provided by the DMCA is important to musicians and other creators because it enables the existence of many services that we use every day to communicate with fans, express ourselves creatively and sell our wares. Without the safe harbor, it would be difficult for services like Bandcamp, Soundcloud, Twitter, YouTube, and countless others to have gotten off the ground and remain in business, due to potential damages for the actions of their users.
However, assessments of how well the notice and takedown requirements are working in practice vary widely.
On Valentine’s Day, De La Soul released most of their back catalog for free. Fans rejoiced at the unexpected gift, which included the albums 3 Feet High and Rising (1989), De La Soul Is Dead (1991), Buhloone Mind State(1993), and Stakes Is High (1996) and dozens of rare remixes, B-sides, and instrumentals. The move generated huge amounts of buzz and goodwill, judging by the outpouring of affection on Facebook, Twitter, and around the Web. It will help, no doubt, with the tour they just announced, on the eve of their 25th anniversary as a group. read more
Music fans were treated to a Valentine’s surprise last week when hip-hop pioneers De La Souloffered up their acclaimed back catalog for free download through their official website. Pretty awesome for fans and newcomers alike. Still, this giveaway comes with a complicated backstory, one marked by deep frustration with the state of sample clearances. In particular, De La Soul are emblematic of challenges facing artists in an environment of corporate mergers and major label ownership. read more
If you’re a copyright nerd (wait, you’re not?), you may have come across the issue of “pre-’72s.” In a nutshell, recordings made before February 15, 1972 are not protected by federal law, which can complicate how—or whether—royalties are paid for certain uses, like plays on internet or satellite radio.
Many people are unaware that there wasn’t even a copyright for recordings until 1972. Well, that’s not entirely true—some sound recordings made before ’72 are copyrighted at the state level. Still, federal protections are relatively new. At least when compared to compositions, which have been protected since the early 1800s (public performances of musical works came under federal law in 1897).
Debates about pre-’72 recordings might seem arcane, but there are major implications for today’s music ecosystem. First there’s artist compensation. The absence of a performance right for pre-’72s means that there’s no guarantee that recording artists are going to get paid fairly for the use of their work when played on Internet or satellite radio. (AM/FM broadcasters aren’t obligated to pay performers anything, though they do pay songwriters; more info on this crazy loophole here.) The lack of federal recognition also makes it more complicated for services to obtain a license to play music—and where there is no permission, there’s potential liability.
Tuesday’s session was somewhat more focused than previous hearings, but was unfortunately cut short due to a scheduled floor vote. Although it didn’t go into as much depth as we’d have liked, the hearing offered valuable perspectives on an often contentious subject.
Witnesses on the panel included law professors Peter Jazsi and June Besek, author Naomi Novik representing the Organization for Transformative Works, songwriter and musician David Lowery of Cracker/Camper Van Beethoven and Kurt Wimmer of the Newspaper Association of America.
As we mentioned, fair use is a unique legal exception allowing artists and others to make use of copyrighted material without obtaining permission from the author or rightsholder. But fair use doesn’t mean you can just use whatever you want whenever you please—there are four specific factors that courts weigh to make determinations about the “fairness” of a use. (Check ‘em out here.)
Fair use has produced a lot of debate, from 2 Live Crew’s “Oh Pretty Woman” parody to controversies over mass digitization to the recent Beastie Boys vs Goldieblox dispute. As ranking member Rep. Howard Coble (R-NC) noted, the flexibility of fair use is a strength. A weakness is that that it doesn’t always provide perfect clarity. This might be why fair use tends to be poorly understood by the general population.
On January 28, 2014, Future of Music Coalition submitted written testimony to the House Judiciary Subcommittee on the Courts, Intellectual Property and the Internet in its hearing on “The Scope of Fair Use.”
House Subcommittee on the Courts,
Intellectual Property and the Internet
2138 Rayburn Office Building
Washington, DC 20515
January 28, 2013
Dear Chairman Goodlatte, subcommittee Chairmen Coble and Marino and members of the committee:
We are honored to submit the following testimony for the record in this hearing on the scope of fair use. read more