Archive for March, 2008

Music Row magazine has been “Nashville’s Music Industry Publication” for 26 years.  Yesterday, Music Row announced that it was being acquired by SouthComm Communications, Inc. 

SouthComm is a Nashville-based media company founded Music Rowin 2007 by Chris Ferrell and Nashville investment firm Solidus Co., led by Townes Duncan.  Duncan is chairman of SouthComm and Ferrell is CEO.  Their first acquisition was SouthComm Publishing Company, Inc. of Alphraetta, Georgia.

Ferrell was formerly a council person in Nashville and publishers of The Scene, an alternative weekly publication owned by New Times Media of New York.

SouthComm is a custom publishing company focusing on local and niche news, information markets, membership directories and city publications. Music Row joins SouthComm’s current stable of publications, which includes the print and digital publications Nashville Post and Business Tennessee.

“I’m a believer in niche publications. My belief about the future of print is that it needs to be very targeted.”

Ferrell said in an article for Nashville Business Journal in January of this year.

“The SouthComm collaboration is a great fit,” says David Ross, current publishers of Music Row magazine.  He will remain CEO of the industry publication, but will given the position of Vice President for SouthComm and a seat on the Board of Directors.

“Joining a larger organization means Music Row [magazine] will benefit with added resources, efficiencies of scale and cross marketing opportunities. SouthComm also provides added conduits for music industry news to reach a wider network of Nashville business leaders and bolster the process of uniting Nashville’s music and business communities.”

Music Row‘s current staff will remain intact, including Ross’ wife and partner Susana and Robert K. Oermann, who has appeared in MusicRow for most of its existence.

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The concept of “fair use” is a very misunderstood concept.  The first common misunderstanding that people espouse is that the concept of “fair use” is a right or privilege granted by copyright law.  It is not.  Secondly, many people mistakenly believe that so long as they do not make any money from an infringing use of copyrighted material, then the use is a fair use.  This is also an incorrect assumption. 

Fair use is not a right or a privilege to be exercised at one’s whim.  Rather, the doctrine is an “equitable rule of reason” that may be used as an affirmative d

efense in a copyright infringement action.  The purpose of the rule is to balance the equities between the desire to protect and therefore encourage the creation of new ideas and the desire to encourage the free exchange of speech in the marketplace of ideas.  The tension was described by Justice Souter as “simultaneously protect[ing] copyrighted material and allow[ing] others to build upon it.”  Nonetheless, the thing to remember is that application of the fair use defense is declared by judicial fiat in the context of a copyright infringement action.  It is applied on a case-by-case analysis of the factual situation.  Thus, fair use is not a presumptive right or privilege that may be exercised by the infringing party.

There are four factors weighed by the Supreme Court in making a determination of whether a derivative work constitutes a “fair use.”  These factors are (1) the nature of the work itself; (2) whether or not the work is commercial in nature; (3) the amount of the copyright work that is used; and (4) the effect of the use on the potential market or value of the copyright at issue. Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841), codified at §107 of the 1976 Copyright Act.

The nature of the work refers to the “nature” of the unauthorized derivative work, not the original copyright work.  In order for such an unauthorized use of copyrighted material to be entitled to the“fair use” defense, the new creation must transform the original copyrighted material.  A “transformative work” is defined by the U.S. Supreme Court as one that “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”  See, Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994).   While all factors must be considered, this is perhaps one of the more critical factors in the analysis.  Merely modulating the pitch of a song or inverting the sequence of a chord progression would probably not be considered transformative.   A very good example of a derivative work that is transformative in nature is Alice Randall’s The Wind Done Gone, the same story as Margaret Mitchell’s Gone with the Wind, but told from the perspective of a mulatto slave who is the half-sister of Scarlet O’Hara, the main character in the original work.  See Suntrust v. Houghton Mifflin Co., 252 F.3d 1165 (11th Cir 2001) per curiam, opinion at 268 F.3d 1257.  In that case, the Eleventh Circuit extended the protection of a musical parody in Acuff Rose to the novel.

With regard to the second factor as to whether a use is commercial in nature, it should be noted that this does not necessarily mean that the new creation has to generate profits.  If the new work create a significant fan, donor and/or advertiser base, those factors tend to lead to a conclusion that it is commercial in nature.  A person simply does not have the “right” to use copyrighted works in any manner as long as no profit is generated from the use.   It is also evident that this factor does not mean that simply because a derivative use does in fact generate profits, that it is by default not a fair use.  In Acuff Rose, 2 Live Crew’s parody version of Roy Orbison’s Oh Pretty Woman had sold over 250,000 copies, yet was still considered a “fair use.”  The thing to be remembered is that this is but one of the factors.

The third factor is fairly easy to evaluate: the more material “borrowed” from the copyrighted source, the less likely the infringer is to have a “fair use” defense.  Again, another misconception is that there is a bright line test for fair use:  that a few measures of a song, a couple of lines from a poem, a few hundred words of a paragraph, or a few paragraphs from a book, are considered fair use.  This misconception has no basis in either the Copyright Act or the case law interpreting it.  It is merely folklore.  The factor, as used by the courts, is more of a sliding scale based, again, on the quantity of the material used from the copyrighted work as compared to the total material.

Finally, the last factor weighs the impact on the infringing use on the potential market and value of the copyright.  This was an integral part of the Supreme Court’s ruling in Acuff Rose that 2 Live Crew’s parody of Roy Orbison’s Oh Pretty Woman did not impact the potential market for the original.   The more a derivative work negatively impacts the potential market for and value of the copyright, the less likely it will a “fair use.”

In summary, as you may have noticed, the fair use doctrine is by no means a bright line test.  Each “fair use” defense is, by its very nature, evaluated on a case by case analysis in the context of a copyright infringement action.  Fair use is not something to be relied on as a presumptive right.

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I received a call from one of my readers to address the topic of whether a songwriter has the ability to restrict the use of his or her composition in the instance it is being used in advancing a cause opposite to that espoused by the songwriter.  This was spawned, of course, by the recent allegations of Tom Scholz, lead member of the group Boston, that his 1970’s mega-smash “More than a Feeling” was being used by Mike Huckabee, whose views were oppBostonosite those held by Scholz.  It is an interesting inquiry, and one that has simple solutions, mostly based in contract law.

There are two contract concepts that are usually incorporated into standard music publishing agreements which impact this issue:  one is the concept of droit or moral rights and two is the restrictions on exploitation.  I’ll address them in reverse order.

Grant of Rights

Typically, when a songwriter assigns his copyright in a song to a music publisher, there is grant language contained in the agreement expressly establishing the rights he or she is granting to the music publisher.  In that contract language, there is typically a clause that reads something like this:

The Publisher shall have the right to administer, use and exploit all interests in the Compositions . . . provided, however, that the approval of Writer shall be required for the use of any Composition:

             (i)    in any motion picture which Publisher has actual knowledge of an “X” or equivalent rating; 

             (ii)    in any advertisement or other promotion for  tobacco, firearms or personal hygiene products; or

             (iii)    in connection with religious or political purposes.

As you can plainly see, in this instance at least, the music publisher would be contractually required to obtain the approval of the writer prior to authorizing the use of the composition in a political rally, among other things. 

If this type of language is not included in the songwriter agreement, or if the grant language included in the songwriter’s agreement is, in general, more broadly worded, then the rights of the songwriter to restrict the use of the song would be greatly impaired.

Droit or Moral Rights

The other legal concept which comes in to play, both from an historic perspective and contractually, is the concept of droit or “moral” rights, although it is important to realize up front that this concept is most often applied, in the U.S. at least, to works of visual art, not musical compositions. 

First, in connection to the copyright concept, don’t infuse the the word “moral” with the ethical connotations generally associated with in in the United States.  The use in this concept is much more in the sense of an embodiment of a type of something, i.e., the Monet painting is the moral equivalent of impressionist art.  As used in this sense, it refers to the ability of the creator of a copyright to control the “embodiment” of his work, or its “integrity.”  The French-derived word “Droit” is, perhaps, more to the point when discussing copyright:  it means “a legal right.” 

So, in the United States at least, the phrase “droit” or “moral rights” generally refers to the right of the copyright creator to prevent third parties from taking credit for, revising, altering, or distorting his or her creation, regardless of who owns the work, i.e., regardless of whether the copyright has been assigned or transferred. 

In contrast, the concept has generally received much broader application in European states.  France, for example, recognizes four moral rights: 

  1. the right of disclosure;
  2. the right to correct or withdraw works previously disclosed to the public;
  3. the right of attribution; and
  4. the right of integrity (the right to “respect” the work).

When the U.S. joined the Berne Convention, Congress attempted to bring its copyright laws into line with those of the other signatory companies by passing Visual Artists Rights Act of 1990 (VARA) codified generally at 17 U.S.C. §§106, 106A, and 113.   As implied earlier, however, this statute applies solely to visual arts and not musical compositions.  Nonetheless, the concept of droit or moral rights may be invoked when dealing with the misappropriation of a songwriter’s musical composition.

In addition to copyright law, there a several other legal concepts which may be implicated in this situation.  For example, if a person is somehow giving false attribution to a creative work, e.g., attempting to pass off an creator’s work as his or her own, that person may be liable under the concept of “unfair competition,” which is barred by the Lanham Act (15 U.S.C. §1051).  Or, if the creation is widely recognized as a work of the creator, any distortion or alteration of the creation may constitute trademark “dilution” under trade dress laws and statutes.   More generally, if authorship of a work is somehow falsely attributed, the creator may have a state action for defamation against the person responsible for the false attribution.  If a person uses the identity of an songwriter, or the compositions, for his or her own benefit without permission, a violation the songwriter’s right of publicity may have occurred.  Thus, there may be several remedies available in this type of situation.

In the US, however, it is accepted practice that if a person can waive a right, such a waiver will be in a contract.  This is no exception.  Again, there is language in most songwriting agreements which “waives all droit or moral rights” in the copyright.  Such a waiver would likely nullify any of these general legal remedies available to the songwriter.

As always, I highly recommend that any songwriter contemplating a deal with a music publisher contact a reputable entertainment attorney.

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