“[G]ood artists copy[,] great artists steal. And we have always been shameless about stealing great ideas.” – Steve Jobs1
Mimicry, homage, and blatant copying create the foundation for several artistic forms, including contrafacts and mash-ups.2 Yet, copying is merely the start of the creative process. At the heart of the arts is the copying-expression cycle: an author copies another author’s expression, transforms the copy into a derivative product, expresses themselves based on that derivative product, and another author starts the cycle anew.3 For the strong majority of copyright law’s history, courts have fostered this cycle.4 However, in just three decades, the scope of copyright protection has sky rocketed.5 In the most extreme cases, copyright law has targeted the copy-expression cycle; courts have imposed on the creative process an insalubrious view towards most degrees of copying.6 In effect, copying without permission is, with some qualifications, untenable in modern U.S. copyright law.7 Why?
One catalyst for this expansion is the federal copyright protection of sound recordings. More specifically, the common law bright-line rules created to cope with the limited nature of copyrights in sound recordings has expanded the scope of protection for the copyright in musical works.
Sound recordings have a unique copyright structure. The Copyright Act generally defines copyrights in terms of their substantive composition; for example, it defines audiovisual works as “works that consist of a series of related images.”8 However, the Copyright Act defines a sound recording in terms of the process required to create the particular recording–the process of fixation.9 This definitional difference implies that sound recordings derive their authorship not from the expression of an author–as all other copyrights do–but, rather, from the mere factual process of fixation.10 In other words, whereas a musical work requires a baseline originality of expression to satisfy its minimum creativity requirement,11 sound recordings enjoy federal copyright protection by the mere virtue of their fixed existence12. Moreover, this lowered threshold on creativity is welcomed with a limited scope of protection.13
As seen in Dimension Films, sound recordings’ unique copyright structure has forced courts to create equally unique, albeit extreme, bright-line rules. 14 Although initially intended only to apply to sound recordings, these rules have had a feedback effect into the jurisprudence of copyrights in general. More specifically, the limited nature of sound recordings has expanded the scope of protection of musical works.
Since the nineteenth century, the common law recognized that not all elements of a work are copyrightable.15 Whereas copyright law does not protect elements that are merely ideas, copyright law does protect elements of expression.16 Courts have traditionally viewed a musical work’s groove and potential pastiche as factual ideas for purposes of the idea/expression dichotomy.17 Thus, traditionally, courts fostered the above mentioned copy-expression cycle.18
However, recent musical work cases have marked a shift in the common law’s traditional view. For example, authors have widely criticized Williams v. Bridgeport Music, 2015 WL 4479500 (C.D. Cal. July 14, 2015)–the Blurred Lines case–as an assault on creation.19 In protecting the defendant’s groove and castigating the pastiche, the Blurred Lines case acts as a revolt against the necessary copy-expression cycle. This result in a musical work case is exactly what we would expect to see from courts influenced by the bright-line sound recording rules. Therefore, the ever-growing protection of copyrights in general is likely due, at least in part, to the addition of sound recordings as a federally protected limited copyright.
Are these results good for businesses? How do these results affect authors? Do these results line-up with copyright law’s policy to promote innovation?20 If not, how should courts proceed? Better yet, how should Congress respond? Stay tuned for part two.
Triumph of the Nerds: The Transcripts, Part III, PBS, http://www.pbs.org/nerds/part3.html (last visited Oct. 9, 2015). ↩
See, e.g., David Baker, How To Play Bebop 1 (Alfred Publ’g Co. 3rd vol. 1987) (describing a contrafact as copying “an extent set of chord changes” and superimposing on it an altered, discrete melody). ↩
Reynaldo Sanchez, Unfair? The Unique Status of Sound Recordings Under U.S. Copyright Law and its Impact on the Progress of Sample-Based Music, 12 J. Music Ent. Industry Educators Ass’n 13, 24-26 (2012). ↩
See Rae infra notes 13-14. ↩
Sanchez supra note 3, at 18-19. ↩
See Bridgeport Music v. Dimension Films, 410 F.3d 792, 801 (6th Circ. 2005) (“Get a license or do not sample”). ↩
See id.; but see, e.g., 17 U.S.C. § 107 (allowing unlicensed copying under fair use doctrine). ↩
17 U.S.C. § 101 (emphasis added). ↩
Id. (defining sound recording as work “that results from the fixation of . . . sounds”) (emphasis added). ↩
See Sanchez supra note 3, at 19-23 (arguing sound recordings, by definition, lack the minimal creativity required of other copyrights). ↩
See Feist Publ’n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345-46 (1991) (applying idea/expression dichotomy, setting minimal original creativity as copyright requirement). ↩
See Sanchez supra note 3, at 19-23. ↩
See 17 U.S.C. § 114(b) (defining sound recording as a limited copyright). ↩
410 F.3d at 801 (“Get a license or do not sample”); see also Sanchez supra note 3, at 28-30 (arguing courts have coped with limited sound recording copyright by creating bright-line rules that have in turn stifled creativity). ↩
Baker v. Selden, 101 U.S. 99, 104-05 (1879) (origin of idea/expression dichotomy). ↩
Casey Rae, Blurred (Legal) Lines?, Future of Music Coalition (March 11, 2015), http://www.futureofmusic.org/blog/2015/03/11/blurred-legal-lines (noting courts have traditionally viewed “grooves, beats, and feel” as uncopyrightable elements). ↩
See id. ↩
See, e.g., Adam Pasick, A Copyright Victory for Marvin Gaye’s Family is Terrible for the Future of Music, Quartz (March 11, 2015), http://qz.com/360126/a-copyright-victory-for-marvin-gayes-family-is-terrible-for-the-future-of-music/ (arguing Williams effectively expanded copyright protection to ideas like groove and feel); see also Samuel Edandison, Blurry Lines, Mich. Bus. & Entrepreneurial L. Rev. (May 9, 2015), http://mbelr.org/blurry-lines/. ↩
See U.S. Const. art. 1, § 8, cl. 8 (“To promote the Progress of Science and useful Arts”). ↩