“I WRITE THE SONGS THAT MAKE THE WHOLE WORLD SING”: COPYRIGHT AUTHORSHIP IN MUSIC

I've been alive forever

And I wrote the very first song

I put the words and the melodies together

I am music

And I write the songs.

It’s been nearly forty years since Barry Manilow first sang those lines and reached number one on the Billboard Hot 100 chart. Manilow may have provided us with the most popular version of “I Write the Songs”, but despite what his dulcet tones would tell you, he neither wrote the song nor was the first to record it. The original recorded version came from The Captain & Tennille. David Cassidy was the first to release the song as a single, reaching #11 on the UK Singles Chart in August 1975 – five months before Manilow hit #1 on Billboard. Bruce Johnston, a former Beach Boy, wrote the song itself. And the song has been covered numerous times by no less than Johnny Mathis, Tom Jones, Dinah Shore, Sammy Davis Jr., and Frank Sinatra, among others. So who owns the copyright to the music?

The initial copyright in a piece of music, as in any other copyrightable expression, vests in the author or authors of the work. At first look, copyright ownership should be easy to determine – simply find out who the author is. Authorship, however, is not so strait forward. And recorded music only adds to the complexity of the issue – in music, separate copyrights exist in each of four distinct categories:

1.     the musical composition,

2.     the lyrics,

3.     the performance session where the song is recorded, and

4.     the production or engineering of the sound recording.

Each aspect of the song may have a different “author” for purposes of copyright.

Authorship in music still causes headache for artists, even today. For example, news broke last week that Chauncey Mahan, a sound engineer,is suing Jay Z for joint authorship in some of the artist’s biggest hits.

So, how does one determine authorship in music? You wrote the music and lyrics. But what if you hire someone else to sing for the recording? What if you had help, as in the case of Jay Z and Chauncey Mayhan, with the production and engineering of the actual recording in the studio? Authorship, for copyright purposes, falls into three categories: Sole authorship, joint authorship, and works made for hire.

Sole Authorship

The U.S. Copyright Act does not define the term “author.” As a result, we have to piece together a working definition from a number of federal court opinions discussing the matter. The Supreme Court states that “[a]s a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” However, as the Court suggests, this is only a general rule. When Stephen King sat down with a word processor and started typing out his newest best seller, certainly he was the party who actually created the resulting text. But what if he dictated it to an assistant? Spoken words are not fixed in any tangible medium, and it would be the assistant, not Stephen King, that actually affixed the words into a tangible medium. The Copyright Act does anticipate this problem and states that a work may be fixed “by or under the authority of the author.” This allows Stephen King to retain authorship status even if he dictated the words of a new story.

The dictation scenario involves only a mechanical transcription of words. The assistant does not act with any artistic discretion or choice. He or she merely types the words as spoken. Consider another scenario. Two screenwriters sit down together to write the script for an independent film. Neither one acts merely as a scribe. Instead, they bounce ideas off each other, each writes a section of the screenplay, they edit each other’s work, and so on. There is no mechanical transcription here. This introduces the possibility of joint authorship.

Joint Authorship

Authors of a copyrightable work should be allowed to consult with others and adopt useful suggestions into their work. Stephen King’s Carrie would likely be an entirely different book if he hadn’t talked with his wife about the common struggles of a teenaged girl. Yet, Stephen King is the sole author of the book. Creative collaboration makes a work better. So when is this collaboration sufficient to become joint authorship? In practical terms, joint authorship is a matter of the degree of contribution. When courts are asked to decide joint authorship they avoid conclusion that sound like “he did a lot of work so let’s say he’s an author.” Instead they try and articulate rules that they and future courts follow. These rules vary from court to court, but most follow something like this:

1.     Each author must have an independent, creative (copyrightable) contribution. Remember, the dictation assistant is contributing to the work, but not in an independent and creative way.

2.     The authors must share the intent to be considered co-authors of the work. This one is tricky, and not always used by the courts. It’s always a good idea to have an agreement in writing clearly stating whether the collaboration is that of co-authors or not. The working relationship might imply such an agreement, but don’t hold all your eggs in that basket.

3.     Each author can and does exercise some degree of artistic control over the final version of the work. This is often the most important factor. If you have no say over what is included in the final work, then you likely are not a co-author.

These are not all the factors, but the most common relied on by the courts.

Work Made for Hire

There is one final category of authorship – the work made for hire. The Copyright Act provides two sets of circumstances in which a work is made for hire:

1.     works prepared by an employee within the scope of his or her employment, and

2.     a specifically commissioned work used as a contribution to a collective work where the parties explicitly agree in writing that it is a work made for hire.

The law is clear in this respect, if you don’t have a written agreement stating your work is one made for hire then you must be an employee working within the scope of your employment. Otherwise, it is not a work made for hire. The key questions then are (1) what is an employee; and (2) what is within the scope of employment?

There are a number of ways to determine who is an employee. Easiest to determine are those formal, salaried employees that receive a W-2 (not a 1099) at the end of each tax year. But not every employee works on those terms. Other factors include whether someone else retains the right to control the product, or to control how, when, and where the employee works. The duration of the relationship between parties, the right to assign additional products to the hired party, method of payment, and tax treatment may all be considered when determining whether the worker is an employee or an independent contractor.

If you are an employee, the next question is whether the work was created within the scope of employment. Again, there are a number of factors that might make the difference. First, is the work of the type for which the employee is hired to perform. A Disney animator is hired to draw. A computer programmer is hired to write code. A studio musician is hired to play on a track. Drawing, writing code, and playing music are the types of work these people are hired to perform. But that doesn’t mean that every sketch belongs to Disney or that improvising in a jam session creates more copyrightable music for the recording artist. The work must also have occurred substantially within the authorized time and space limits of the job. The work must also have been done with the purpose to serve the employers interests, if only in part. If the Disney artist is sketching at the office during work hours, and he wants the sketches to be incorporated into the next Disney project he is working on, then the sketch is within the scope of his employment for Disney. If, on the other hand, he sketches at home with the idea of creating a comic book, or wants to start up the next rival animation studio, then the work falls outside the scope of his employment.

It will be interesting to see whether Chauncey Mayhan can succeed on his claim of co-authorship. To do so, he’ll have to prove that he contributed an independently copyrightable portion to the Jay Z recordings (as a sound engineer he could have no claim of authorship for the musical composition, the lyrics, or Jay Z’s actual performance in the recording studio). If he has no written contract with Jay Z, or the other producers on any of the recording, then he has a tough hill to climb. Then again, even if his contributions were very creative, and he held some amount of artistic control over the final product, was he an employee acting within the scope of his employment? Mayhan will have the burden of proving co-authorship, and it’s a tough claim to make.

If you collaborate with others on a copyrightable project, and want authorship credit, make sure you have written documentation. Without it, you may lose out.

SCOTUS takes another crack at copyright law in the digital age

The U.S. Supreme Court is no stranger to cases that pit copyright norms against the progress of technology. The problem is that, in doing so, they’ve created more complex law than is prudent. Each time the Court gets involved in high-stakes copyright litigation only further shows the inadequacy of current copyright law to deal with technology and all the questions technological advances raise. The longer we go without revision to the Copyright Act the more consequential the Court’s decisions will become.

The last major overhaul of federal copyright law came with the Copyright Act of 1976. Before that, the governing law was the Copyright Act of 1909. In the nearly seven-decade span before Congress got around to updating the laws, several technological advances had been made. The widespread accessibility of radio, sound recordings, motions pictures, and the invention of television were all advancements that Congress could not fathom in 1909. One purpose of the 1976 Act was to address concerns raised by these new forms of technology, and to craft a law the allowed for new, as yet unknown, technologies of the future. Yet, almost immediately, new technology pushed the bounds of the 1976 Act.

In 1984, for example, the Supreme Court was called on to determine whether video recording technology, now so prevalent with half the homes in America using DVRs, violated the new copyright law. In response to the challenge to the new law, the Court created a new concept in copyright called “time-shifting.” When a television program originally aired on a Monday evening at 7pm, video recording technology allowed the user to reproduce that original broadcast to watch at a later time. While the 1976 Act prohibits unauthorized reproductions, the Court decided that time-shifting fits into a category of exceptions known as fair use (itself a very complex topic that cannot be adequately addressed here – maybe in a future post). Thus, out of nothing, the Court created a new way to use a copyrighted work that did not violate the ban on unauthorized reproductions. This case, Sony Corp. ofAmerica v. Universal City Studios, demonstrates how the Supreme Court and other lower federal courts currently deal with questions arising from the conflict between new technologies and old copyright conventions. Rather than treat the 1976 Act, including its subsequent amendments and clarifications, as imposing black and white regulations on the use of copyrighted works, the courts fashion grey areas that bog copyright law down with endless nuances.

The problem persists. The Supreme Court heard oral arguments today in a new case, American Broadcasting Companies, Inc. v. Aereo, Inc., which will yet again test the bounds of current U.S. copyright law as applied to the ever-changing technological landscape. ABC and other networks are suing Aereo, Inc. over their business model that provides access to broadcast television to Aereo customers via the Internet.

Remember the bunny ears atop your T.V.? Or maybe the antenna on the roof of your house? Not many years ago, these were replaced with HD receivers. So long as you had a television and one of these receivers you could access broadcast television free of charge. Fast forward to today when fewer and fewer homes have these types of receivers. Consumers today are more likely to spend an average of $100 a month for cable or simply wait for their favorite shows to come up on Netflix or Hulu. Here is where Aereo comes in to the picture. With more and more people scrapping cable, satellite dishes, and antennae for internet-based viewing platforms, Aereo developed a service where customers could access broadcast programming online.

Instead of each home having its own HD receiver, Aereo uses thousands of tiny antennas housed at their facilities. These antennas pick up broadcast signals sent out over the public airwaves then store these broadcasts on the cloud. Subscribers to Aereo services can then access these broadcasts through internet-enabled devices. The technology essentially works the same way a receiver and DVR do – the broadcasts is accessed and recorded for later viewing. The user, not Aereo, controls what programs are accessed and stored.

Aereo, however, pays no subscription or royalty fees to the broadcasters. Aereo contends that they are simply an antenna rental service – that their service is no different than viewers using their own antennas to access the broadcast. Cable and satellite providers pay the broadcasters billions of dollars in fees every year. The broadcasters argue that Aereo is no different than these other types of services. Rather than a thousand individual, private antennas stored outside the consumer’s home, the antennas instead work as one collective unit broadcasting to the public at large. Copyright law makes a distinction between public and private uses of broadcast television. Public broadcasts are prohibited where private broadcasts are not – hence, the broadcasters argue, the reason why cable companies pay to broadcast network television where an individual with a television and receiver does not.

The questions presented to the Court hinge on this public/private distinction. And while, from a consumer’s perspective there is little difference between watching Fox or ABC or CBS online versus over-the-air, the technology involved is something unseen before by the legal system. Even the best foresight from 1976 could not adequately equip the law with what is necessary to deal with today’s copyright issues.

While this is a fairly simplified account of the case (you can get more details here), these aspects of the case highlight the tension between established custom in the industry on the one hand and progress and the changing needs of consumers on the other. The decision of the Supreme Court, not likely to come until summer, will undoubtedly feature the Court wading into the murky grey areas of the law, yet again manufacturing some new concept not found in the Copyright Act. The decision is almost guaranteed to create more questions than it answers, entangling copyright law in an ever-greater web of complexity. Isn’t it time for Congress to take another crack at updating the laws?