Copyright Law
Ronald W. Staudt
Class 7
Sept. 19, 2013
Pandora Wins Court Victory Over Licenses
to Stream Music
NYTimes.com <nytdirect@nytimes.com> Sept 19, 2013
Pandora Media won a battle in its continuing war with the music industry over
royalties when a federal judge ruled on Tuesday that the American Society of
Composers, Authors and Publishers, which represents thousands of members,
cannot prevent Pandora from licensing all the songs in its catalog, Ben Sisario
reports. ***
The ruling, by Judge Denise L. Cote of United States District Court in
Manhattan, is a blow to music publishers, who have tried to get the best
royalty rates for digital music by limiting the extent that performing rights
societies like Ascap and Broadcast Music Incorporated represent their songs.
***
Pandora argued in a motion for summary judgment that allowing publishers to
withdraw their digital rights violated Ascap's longtime consent decree, which
says that the organization must license its songs to any service that asks. The
judge agreed, saying that Ascap must make all the songs in its catalog
available to Pandora through 2015, when its current licensing terms with the
Internet radio provider expire. If Ascap licenses a song for some purposes, the
judge ruled, it must for others – like streaming - as well.
Compilations and derivative works
§ 103. Subject matter of copyright:
Compilations and derivative works
(a) The subject matter of copyright as specified by section
102 includes compilations and derivative works, but
protection for a work employing preexisting material in
which copyright subsists does not extend to any part of the
work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work
extends only to the material contributed by the author of
such work, as distinguished from the preexisting material
employed in the work, and does not imply any exclusive
right in the preexisting material. The copyright in such
work is independent of, and does not affect or enlarge the
scope, duration, ownership, or subsistence of, any
copyright protection in the preexisting material.
A “derivative work”
is a work based upon one or more preexisting
works, such as a translation, musical
arrangement, dramatization, fictionalization,
motion picture version, sound recording, art
reproduction, abridgment, condensation, or any
other form in which a work may be recast,
transformed, or adapted. A work consisting of
editorial revisions, annotations, elaborations, or
other modifications which, as a whole, represent
an original work of authorship, is a “derivative
work”. 17 U.S.C. 101.
Derivative Works
“…recast, transformed or adapted…”
Sherry (towels)
Ets-Hokin (vodka bottle photo)
Bridgeman (art transparencies)
Questions on pages 167-169.
“favorite things”
Originality in Derivative Works
Batlin & Son v. Snyder
facts
holding re creativity
dissent
Derivative Works
Bell (mezzotints) and Alva (Hands of God)
Durham (Mickey Mouse) and Eden Toys
(Paddington)
Schiffer (fabric photos) and Bridgeman (art
transparencies)
Gracen (Oz painting) and Schrock (photos of
toy trains) (7th cir. resolution?)
Questions on pages 183-4
BRIDGEMAN ART LIBRARY, LTD. v.
COREL CORP.
In this case, plaintiff by its own admission
has labored to create "slavish copies" of
public domain works of art. While it may
be assumed that this required both skill
and effort, there was no spark of
originality -- indeed, the point of the
exercise was to reproduce the
underlying works with absolute fidelity.
Copyright is not available in these
circumstances.
Schiffer Pub. V.
Chronicle Books
 Bridgeman's stated purpose
was to "reproduce precisely"
the underlying works of art.
Indeed, the goal of reproducing a famous work of art
is an accurate replication that is faithful to the
original artwork. There is no ulterior creative
purpose - indeed, creativity is anathema to that goal.
Plaintiffs, by contrast, did not attempt to replicate
fabric swatches as precisely as possible. Rather,
Plaintiffs' books were focused mainly on patterns,
and Plaintiffs' photographers strove to create images
that were visually interesting. In fact, several
photographers clearly stated that they never
compared the fabric swatches to their photographs,
precisely because such a comparison was
unimportant to their goals.
7th Circuit Resolution
Schrock v. Learning Curve
Originality for derivative works not more
demanding than for other works
Key is “sufficient nontrivial expressive
variation” to make it distinguishable from the
underlying work
© in derivative works is thin, extending only
to the incremental original expression
Derivative Works–
In
Out
 Alva – Hand of God
 Batlin – Uncle Sam
 Bell – mezzotints
 Durham- Mickey Mouse
 Eden- Paddington bear
 Sherry – towels
 Skyy Vodka photo (thin)
 Gracen – Dorothy
painting
 Schiffer- photos of fabric
 Schrock- photos of
“Thomas & Friends”
 Bridgeman –art photos