Copyright Law
Ronald W. Staudt
Class 20
November 5, 2013
Class Overview
 Right to Make Phonorecords
 Musical compositions and compulsory licenses--115
 Karaoke, ringtones, XM-MP3
 Reproduction rights in sound recordings—114
 Remix, mash ups and Bridgeport
 Performance Right in Musical Works and Sound
Recordings
 Musical composition performance right
 Sound recording performance right by digital audio transmission 106(6)
 Right of Public Performance and Display
 Sect 106(4)- performance
 Sect 106(5)- display
 Perfect 10 v. Amazon
Reproduction Right in Musical Works
Musical works and sound recordings on
phonorecords
Mechanical License to reproduce and distribute
phonorecords of nondramatical musical works—
Sect 115
Prior distribution to the public
Mechanical license intended for distribution of
phonorecords to the public for private use
Imitation, rearrangement, derivative limit
Section 115---Availability and Scope of
Compulsory License
 1) When phonorecords of a nondramatic musical work have been
distributed to the public in the United States under the authority of
the copyright owner, any other person, including those who make
phonorecords or digital phonorecord deliveries, may, by complying
with the provisions of this section, obtain a compulsory license to
make and distribute phonorecords of the work.
 ***
 (2) A compulsory license includes the privilege of making a musical
arrangement of the work to the extent necessary to conform it to
the style or manner of interpretation of the performance involved,
but the arrangement shall not change the basic melody or
fundamental character of the work, and shall not be subject to
protection as a derivative work under this title, except with the
express consent of the copyright owner.
Reproduction Right in Musical Works
Musical compositions and compulsory
License under 115
ABKCO Music Inc.—karaoke?
CD+G = phonorecord?
Compulsory license royalty growth
Harry Fox License
Digital delivery (iStore)
Ringtones?
Reproduction Rights In
Sound Recordings
Reproduction rights in sound
recordings—114
Remix, mash ups and
Bridgeport
• Elvis Costello – Radio, Radio
• Gregg Gillis- Girl Talk authoring
§ 114. Scope of exclusive rights
in sound recordings
 (a) The exclusive rights of the owner of copyright in a sound
recording are limited to the rights specified by clauses (1), (2), (3)
and (6) of section 106, and do not include any right of performance
under section 106(4).
 (b) The exclusive right of the owner of copyright in a sound recording
under clause (1) of section 106 is limited to the right to duplicate the
sound recording in the form of phonorecords or copies that directly or
indirectly recapture the actual sounds fixed in the recording. The
exclusive right of the owner of copyright in a sound recording under
clause (2) of section 106 is limited to the right to prepare a derivative
work in which the actual sounds fixed in the sound recording are
rearranged, remixed, or otherwise altered in sequence or quality. The
exclusive rights of the owner of copyright in a sound recording under
clauses (1) and (2) of section 106 do not extend to the making or
duplication of another sound recording that consists entirely of an
independent fixation of other sounds, even though such sounds
imitate or simulate those in the copyrighted sound recording.
Bridgeport
 by clarifying the rights of a sound recording copyright
owner in regard to derivative works, Section 114(b)
makes it clear that the digital sampling of a copyrighted
sound recording must typically be licensed to avoid an
infringement . . . . The import of this language is that it
does not matter how much a digital sampler alters the
actual sounds or whether the ordinary lay observer can
or cannot recognize the song or the artist's performance
of it. Since the exclusive right encompasses rearranging,
remixing, or otherwise altering the actual sounds, the
statute by its own terms precludes the use of a
substantial similarity test."
Phonorecordsmusical works and sound recordings
reproduction rights overview
 Professor Bell’s table.
 Reproduction rights in musical works - compulsory
license under 115
ABKCO Music Inc.—karaoke? CD+G = phonorecord?
Royalty growth, Harry Fox, Digital delivery (iStore)
 Reproduction rights in sound recordings under 114
Digital sampling-Bridgeport
Audio Home Recording Act—Rio and XM-MP3
Performance Right
Musical Works
ASCAP and BMI
Sound Recordings
In 1995 Sound recording performance right by digital audio
transmission
– Section 106(6)—” in the case of sound recordings, to
perform the copyrighted work publicly by means of a
digital audio transmission.”
• Three tiers
Performance, distribution and reproduction?
Performance Rights
 Is it a performance?
Allen v. AGLOA
US v. ASCAP
In re Cellco Partnership-ring tones
 Is it public?
Redd Horne
Aveco
Cartoon Network v. CSC Holdings
WNET v. Aereo
Fox Television v. BarryDriller
Warner Bros v. WTV Zediva
 Is it exempt?
 Questions on 764-5
§ 106. Exclusive rights in
copyrighted works
Subject to sections 107 through 121, the
owner of a copyright under this title has the
exclusive rights to do and to authorize any
of the following:
***
(4) in the case of literary, musical,
dramatic, and choreographic works,
pantomimes, and motion pictures and other
audiovisual works, to perform the
copyrighted work publicly;
***
(6) in the case of sound recordings, to
perform the copyrighted work publicly by
means of a digital audio transmission.
To "perform" a work means
to recite, render, play, dance, or act
it, either directly or by means of any
device or process or, in the case of a
motion picture or other audiovisual
work, to show its images in any
sequence or to make the sounds
accompanying it audible.
To perform or display a work
"publicly" means-(1) to perform or display it at a place open to the
public or at any place where a substantial
number of persons outside of a normal circle of
a family and its social acquaintances is
gathered; or
(2) to transmit or otherwise communicate a
performance or display of the work to a place
specified by clause (1) or to the public, by
means of any device or process, whether the
members of the public capable of receiving the
performance or display receive it in the same
place or in separate places and at the same
time or at different times.
Public Performance and Display
Sect. 106(4), (5), & (6)
 Allen v. AGLOA
 US v. ASCAP
 Contemporaneous perceptibility—downloads v. streaming
 In re Cellco Partnership-ring tones
Columbia Pictures v. Aveco
Public? Compare Redd Horne
First sale doctrine?
Columbia Pictures v PREI (hotel rooms and vcrs)
On Command Video v Columbia (hotel rooms and
transmissions)
Cartoon Network
Transmit clause and “potential audience”
Question of framing?
1
Programs
BMR
1.2sec
sec
1.2
2
Arroyo Server
4
Yes
Primary
Secondary
ingest
6 buffer
0.1 sec buffer
?
5
Disc
“Reservation
Database”
storage
Trash
7
Programs
3
3.5
Ready
To watch
“Reservations”
8
Delayed program
performed
Professor Perritt’s
Cartoon Network Diagram
w/ RWS amendments
WNET v. Aereo
supp. at 109
Is an Aereo transmission a public performance?
1. Capable of being received by the public
2. No aggregation if copies are individual
3. Multiple private transmission from one copy are
aggregated
4. Limits on potential audience are relevant
 Dissent distinguishes Cablevision…
Remote dvr used with licensed stream different from unlicensed
copy delivered to internet
Fox Television Stations v.
BarryDriller
supp. at 113
Rejects 2nd circuit majority in Cablevision &
WNET
Sect 101: “whether the members of the public
capable of receiving the performance or display
receive it in the same place or in separate
places and at the same time or at different
times.”
Performance of the work, not performance of
the performance???
Fortnightly and CATV cases
Warner Bros v. WTV
 Zediva Streams New Releases Through Copyright Loophole
By Ryan Singel 03.16.11
Quite simply — the company literally rents you a DVD and a DVD player, with your computer, tablet or Google TV as the
remote control. Unlike the other streaming movie services, Zediva doesn’t turn a movie into a file on its servers that it can
serve to as many users as care to see it at once.
Instead, Zediva’s servers have DVD drives and actual DVDs. So when you rent a movie, that disc goes out of circulation
until you release it back to the company, just like in one of those increasingly rare real-world video stores.
And like those video stores, Zediva doesn’t need to get permission from the studios to rent out discs, since once they buy
the DVD they are free to rent it out or re-sell it, thanks to the first-sale doctrine in U.S. copyright law.
 Streaming Movie Service Zediva Pays Hollywood $1.8M, Shuts Down
By Ryan Singel 10.31.11
Last Friday, the Motion Picture Association of America announced that the spunky streaming movie startup Zediva agreed
to close down permanently and to pay the studios $1.8 million and end its court battle with Hollywood.
Zediva argued that it’s more like a traditional video rental store like Blockbuster, which needs no licensing agreement to
rent movies, than a video-on-demand service like Netflix, which must sign deals to stream movies to subscribers. Zediva
can only rent out DVDs to one customer at a time, and makes no copies of the DVDs.
The MPAA, by contrast, argued that any streaming of a DVD or movie was illegal without their permission, and called the
final shutdown a win for the movie industry.
Warner Bros v. WTV
 Facts: How did Zediva work?
Channels of distribution and distribution window.
 DVRs and DVDs in Santa Clara- 14 days, 4 hour window on same DVR
 Definition of performance- transmit clause
 Did D “transmit”---On Command analogy, Redd Horne
analogy
 “To the public”—different times and different places
Right of Public Display
 Sect 106(5) and its exceptions
“in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural works,
including the individual images of a motion picture or other
audiovisual work, to display the copyrighted work publicly”
 Sect. 109(c)
“Notwithstanding the provisions of section 106(5), the owner of
a particular copy lawfully made under this title, or any person
authorized by such owner, is entitled, without the authority of
the copyright owner, to display that copy publicly, either directly
or by the projection of no more than one image at a time, to
viewers present at the place where the copy is located.”
Right of Public Display
 Playboy cases and RTC v. Netcom
Perfect 10 v. Amazon
Thumbnails and full sized in-line linked images
Server test