Copyright Update: Buzz in the Music Biz

Copyright Update: Buzz in the Music Biz

The past couple of weeks in the music business have been abuzz with significant rulings related to music copyrights.

“Happy Birthday” Copyrights Invalid

Last week, a federal judge in Los Angeles declared all the copyrights on “Happy Birthday” are invalid. The lengthy court opinion can be found here, but the the gist of the ruling is that a copyright issued to the Summy Co. in 1935 applied only to the specific piano arrangement and not the song and the lyrics as a whole. Of course that summation is too simplistic and there are complications. The eight note melody had entered the public domain decades ago which both sides agreed to. But Warner/Chappel, a subsidiary to Warner Music, Inc. claimed it still held the rights to the lyrics of the song. The Plaintiff’s challenged that notion. The facts and the saga of “Happy Birthday” are complex and lengthy, but well worth the read.

The case is far from over as the question of damages is still pending. Warner/Chappel makes approximately $2 million per year on licensing fees for the song, fees the plaintiff say should be repaid. But repaying all the license fees carries some of its own questions. As reported by the L.A. Times, one third of license fees are paid to a non-profit that promotes educational initiatives. Plus, if the copyrights are invalid for 80 years, that is a lot of money to be accounted for and repaid.

But the most likely destination for this particular case is going to the the Ninth Circuit Court of Appeals.

The Takeaway. Not really one here, other than making this entire bit on one of my favorite shows, SportsNight, a bit more anachronistic.

Copyright Holders Must Consider Fair Use Before Sending Takedown Notices

Speaking of the Ninth Circuit Court of Appeals, a three judge panel of that court has ruled that before copyright holders issued a take-down notice under the Digital Millennium Copyright Act, the holders must consider whether the use of the copyrighted material falls within the fair use doctrine. The split ruling dealt with some essential considerations about take-down notices (which I call nasty grams since such notices have been somewhat abused) such as good faith belief of an infringement, willful infringement, actual knowledge, and even the concept of nominal damages.

The thrust of the opinion is a shift to considering fair use before issuing a take-down notice. Fair use doctrine has long been an affirmative defense available to defendants in copyright actions. But as an affirmative defense, the defendant in the action would have the burden of proof to show that their use of the copyrighted material was indeed fair use. None of that is changing.

But what this ruling means is that a copyright holder apparently must consider whether the defendant’s improper use of the copyrighted material constitutes fair use before issuing a take down notice. The effect of a failure to consider fair use would lead to an issue of fact in a trial as to whether the copyright holder had a good faith belief that an infringement was taking place.

The Takeaway. Before issuing a take-down notice, it is best to consider whether that alleged infringing person is actually an infringing hooligan or just someone who falls into the fair use category. What that consideration will need to look like is left unsaid, but a safe bet would be to speak to a lawyer and get an opinion on the matter before sending out your take-down notice.