Commerce Secretary rails against 'scourge of music piracy'

In a speech today in Nashville, Commerce Secretary Gary Locke promised action against the "scourge of music piracy," repeating Vice President Biden's proclamation that "Piracy is flat, unadulterated theft," and vowing that "it should be dealt with accordingly." Locke said his department is "conducting a comprehensive review of the relationship among copyright policy, creativity, and innovation in the Internet economy" and reiterated the Obama Administration's support for the Performance Rights Act, which would require terrestrial radio stations to pay royalties to owners of sound recordings. The current state of affairs, where songwriters and composers, but not recording artists, get paid for airplay, "makes absolutely no sense," said Locke.

Go read the whole thing, including Locke's entreaty to "content owners and Internet service providers [] to work collaboratively to combat intellectual property infringement online" and "[e]specially to combat repeat infringement."

'Cruel Summer' campaign video removed

The video from Congressional candidate Sean Mahoney (R-NH) that featured the Bananarama hit "Cruel Summer" has been removed from several web video sites, apparently by the campaign itself.

Jimmy Asci, a spokesman for music publisher Sony/ATV, which owns the composition to the 1983 single, confirmed that the Mahoney campaign had used the song without obtaining a license, and that the video was removed before a cease-and-desist letter was even issued. "It wasn't licensed," he said. "This happens all the time. 99.9% of the time, they take it down" upon receipt of a notice, according to Asci. "We don't really go any further than that."

It's notable that of the three recent copyright lawsuits involving campaigns of which I'm aware -- Jackson Browne v. John McCain, Don Henley v. Chuck DeVore, and David Byrne v. Charlie Crist -- all involved individual songwriters as plaintiffs, not publishers or record labels. Corporations simply want campaigns to knock off their unlicensed uses. Individual artists -- who often have strong political views of their own, and strong feelings about unwanted uses of their material -- tend to demand a pound of flesh.

Could 'Cruel Summer' campaign video lead to a cruel copyright lawsuit?

A Republican House candidate from New Hampshire has used over a minute of the 80s hit "Cruel Summer" in a campaign video attacking his Democratic opponent, Rep. Carol Shea-Porter. The video from the campaign of Sean Mahoney -- which identifies itself as a "political parody" -- argues that the economic policies of Shea-Porter and the Obama Administration "have given us a cruel summer."

I have inquiries in to the Mahoney campaign as well as what I believe to be the copyright owners (Sony/ATV for the publishing and London Records for the master), to confirm what I strongly suspect: that the campaign did not get licenses for this use. (I will update this post when and if I hear back.) The self-imposed "parody" label notwithstanding, I think the copyright owners would have a very strong claim if they decided to pursue this. California Senate candidate Chuck DeVore (R) had a much more plausible claim to parody than does Mahoney -- and it was still a loser.

Court sets trial date in Shepard Fairey case; Mannie Garcia drops out

The judge refereeing the dispute between the AP and artist Shepard Fairey over the "Obama Hope" poster has set a trial date of March 21, 2011. Of course, it's not certain there will actually be a trial; I expect one or both sides to seek summary judgment, and settlement is always a possibility.

Also, last Friday the AP and Mannie Garcia, the photographer who took the photo that served as the basis for Fairey's poster, voluntarily dismissed their claims and counterclaims. The two sides disputed whether the AP or Garcia owned the copyright in the photo. A source tells me that there was no "settlement," which suggests that Garcia simply dropped his claim. I have an inquiry in to his attorney and will update this post if I get additional information.

Update: The AP has released the following statement:

The Associated Press is very pleased that Mannie Garcia has withdrawn from the case with prejudice, meaning that he cannot refile his claim against the AP. The AP has not wavered in its belief that Mr. Garcia was a staff photographer at the time he took the image of then-Sen. Barack Obama, that AP properly employed Mr. Garcia, and that AP is the rightful copyright owner of the photo in question. Further, the AP is pleased that Mr. Garcia voluntarily withdrew without any payment or consideration of any kind -- this was not a settlement.

In a Court hearing on Monday, Judge Alvin Hellerstein indicated that he would sign the stipulation and enter the order. Also in Monday’s hearing, the judge set both a summary judgment schedule and a trial schedule for the case involving Shepard Fairey. The AP is happy to have these dates set. The AP continues to be confident in its position that the use Mr. Fairey made of its photo is not fair use, but one that should have been licensed so as to help ensure the AP's photographers will be able to continue creating new works. The AP looks forward to resolution whether through summary judgment or trial on the merits.

Billboard: 'The Legal Issues Behind The Slowed-Down Justin Bieber Track'

My Billboard piece on super-slow Justin Bieber. Bottom line: his label says it's fine ("and Justin thinks it’s great"!). EMI, one of the publishers, declines to comment.

'Girl' Trouble: Examining The Merits Of Rondor Music's Complaint About The Katy Perry Hit

My Billboard column this week explores the legal issues behind the claim that the "I really wish you all could be California girls" line in Katy Perry's hit "California Gurls" infringes on "I wish they all could be California girls" in the Beach Boys' classic. Also cross-posted at THR, Esq.

I don't argue that Rondor (the publisher of the Beach Boys' song) has a particularly strong claim. But before dismissing it as frivolous, consider such cases as:

• Life Music, Inc. v. Wonderland Music Co., 241 F. Supp. 653 (S.D.N.Y. 1965) (copying of single word "supercalifragilisticexpialidocious" may constitute infringement)

• Heim v. Universal Pictures, 154 F.2d 480 (2d Cir. 1946) ("There may be wrongful copying, though small quantitatively; so if someone were to copy the words, "Euclid alone has looked on Beauty bare," or "Twas brillig and the slithy toves.")

• Bridgeport Music, Inc. v. Dimension Films, 410 F. 3d 792 (6th Cir. 2005) (refusing to recognize de minimis defense to copying 2 seconds of sound recording)

• Bridgeport Music, Inc. v. UMG Recordings, 585 F.3d 267 (6th Cir. 2009) (upholding jury's rejection of fair use defense in copying of phrase "Bow wow wow, yippie yo, yippie yea")

Third Thomas-Rasset trial moved to Nov. 1

Round three in the record labels' copyright suit against Jammie Thomas-Rasset has been moved from Oct. 4 to Nov. 1. This third trial will focus only on damages, after the court granted the defense's motion for remittitur, slashing the jury's award in the second trial from $1.92 million down to $54,000. The labels opted for a third trial rather than accepting the reduced amount.

My Washington Legal Foundation 'Legal Backgrounder' on Tenenbaum statutory damages ruling

I wrote the following "Legal Backgrounder" for the Washington Legal Foundation on Judge Nancy Gertner's July 9 ruling slashing the Joel Tenenbaum jury's award of $675,000 statutory damages: "Due Process Limits on Statutory Civil Damages? Unprecedented Ruling In Copyright Case A Double-Edged Sword For Businesses."

Henley, DeVore settle lawsuit; Henley rails against remixes and mash-ups, YouTube, 'dark side' of Internet; songs are not 'toys or playthings'

Eagles frontman Don Henley and his fellow songwriters Mike Campbell and Danny Kortchmar have settled their copyright suit against former GOP Senate candidate Chuck DeVore for an apology and payment of an undisclosed sum.

“This is a moral victory, and a victory for every copyright holder in the United States,” said Henley in an exclusive interview with Copyrights and Campaigns yesterday. “We set a precedent that will likely discourage this kind of behavior,” he added, referring to unauthorized uses of copyrighted songs by political campaigns. "I think this is going to have a very positive effect on the creators of music."

DeVore and co-defendant Justin Hart, the campaign’s Internet director, said in a statement, “We apologize for using the musical works of Don Henley, Mike Campbell and Danny Kortchmar without respect for their rights under copyright law. The court’s ruling in this case confirms that political candidates, regardless of affiliation, should seek appropriate license authority before they use copyrighted works.”

The lawsuit, which Henley had largely won at the district court, involved two videos made by the DeVore campaign which took the lyrics from Henley’s songs “The Boys of Summer” and “All She wants to do is Dance” and substituted in new lyrics attacking president Obama and Sen. Barbara Boxer (D-CA). DeVore argued that the videos were fair use parodies of Henley’s songs, but the court held that the videos were satirical rather than parodic and rejected the fair use defense. Questions of willfulness and damages were still to be resolved. The court did rule for the defendants on the plaintiffs' Lanham Act claim, which alleged that DeVore's videos falsely associated Henley with the Republican's campaign. DeVore lost the June primary to former HP exec Carly Fiorina (R) for the chance to take on Boxer in November.

In his interview with C&C, Henley said that his motivation for the lawsuit was not financial or political, but “simply a matter of my copyrights being violated by music being used in a way it was never intended to be used.” Henley -- who has donated $9,000 to Boxer’s campaigns over the years but shuns the “liberal” label (“my political life is not that simple”) -- insisted that he did not target DeVore because of the state Assemblyman’s conservative views, and indeed objects to all political uses of his songs, regardless of the candidate or cause. Henley noted that he similarly complained after 2008 North Carolina Democratic gubernatorial candidate Richard Moore’s campaign used the song “Life in the Fast Lane” in a YouTube video without permission. The Moore matter was settled after the campaign voluntarily took down the video and admitted error, Henley said.

Asked what advice he has for other musicians and songwriters whose songs are used by campaigns without permission, he said, “When you think you’re right—when you know you’re right—when someone has stolen and misused your intellectual property, you have to do something about it.... I could have let this go, but I had to stand up and do something about it.”

Henley blasted all unauthorized uses of his music, whether by politicians or just amateurs making remixes, mash-ups, and similar unlicensed uses on sites like YouTube. “I don’t condone it,” he said of such practices. “I’m vehemently opposed to it. Not because I don’t like parodies or satires of my work. But it’s simply a violation of U.S. copyright law.” He added, “People in my age group generally don’t like it. Songs are difficult to write; some of them take years to write. To have them used as toys or playthings is frustrating.” Henley noted that he does not license his songs for commercials and only rarely does so for uses in films and television.

And Henley reserved particularly ire for YouTube, which he described as a “fence” for stolen intellectual property. “YouTube is one of the biggest violators or copyright laws in the world,” he said. “A tremendous amount of the content on YouTube is a copyright violation.... I’m not a fan of YouTube at all for their part in aiding and abetting copyright violations.” YouTube, which hosted the videos at issue in the DeVore case, took them down in response to DMCA notices, but DeVore filed counter-notices, and YouTube would have re-posted them but for the filing of the lawsuit. (YouTube, of course, recently won a major copyright decision in a case brought by Viacom and other copyright owners, including a putative class of music publishers, when a federal court ruled that the site was protected by the DMCA’s safe harbor for hosts of user-generated content.)

And Henley lamented what he views as the lack of response in Washington to rampant infringement on the Internet: “The politicians are not supporting creators on these issues, and it’s extremely disappointing.” He blamed what he views as the lack of action on the political power of Internet companies. “The people who create and run these sites like YouTube have a lot of clout,” he said.

“The Internet is slowly but surely killing the whole concept of copyright,” complained Henley. “I don’t like where it’s going.... The Internet is a wonderful thing but it also has a very dark side.”

I have an inquiry in to DeVore and will publish his thoughts should he wish to share them.

No more court-ordered settlement talks in Thomas-Rasset case

The judge in the Jammie Thomas-Rasset case today granted the parties' joint motion for relief from the court's previous order to participate in settlement talks. A third trial in the peer-to-peer infringement case, which will consider only the issue of damages, remains set for October 4.