Copyright

The following material is provided for informational purposes and is not intended to replace legal advice.

–Amy Aiyegbusi and Jamaal Baptiste

Importance to Ethnomusicology

“Imitation is the sincerest form of flattery that mediocrity can pay to greatness”
-Oscar Wilde

Much has changed since Oscar Wilde uttered this iconic phrase at the height of his literary career, and many still to this day debate whether art that draws any form of inspiration from other creative endeavors is a unique compliment or outright thievery. At any rate, when applied to the artistic world, Wilde’s statement only covers the why, not the how, of what is known to both artists and those who study all forms of art/legalities as “Copyright/Fair Use.” With this section, we strive to offer both the “why” and the “how” for this topic, and just as we acknowledge the world is ever changing, we also acknowledge that copyright/fair use laws continue to adjust as circumstances and needs dictate.

In his article “Ethnomusicologists, Archives, Professional Organizations and the Shifting Ethics of Intellectual Property”, Anthony Seeger states the ethnomusicological importance of copyright and fair use as one that “ensure[s] that the music of the peoples we work with is accorded similar treatment to that of commercial artists, and to ensure that our audio and and video recordings will survive into the next century” (88). As ethnomusicologists, not only is it important to document our research findings, but it is equally as imperative to assure that our collaborators–the artists we work with–are treated with the utmost respect in all aspects. While its genesis is in legality, this obligation goes beyond what is lawfully permissible. As fellow human beings and respecters of culture and cultural creations, it is our ethical duty to advocate on behalf of our field collaborators. Our educational knowledge of folklore and ethnomusicology have given us the tools–it is up to us to set the upright standard of behavior in our field.

In this section of the Ethnomusicology Toolkit, you will find definitions of and information regarding both domestic and global copyright law and fair use regulations in both the print and digital world. In addition, case studies of major copyright cases, interview clips regarding copyright and fair use with jazz pianist and Indiana University Professor Dr. Monika Herzig, a link to Anthony Seeger’s video “Who Owns Music and Why You Should Care” and numerous additional links are included. Furthermore, it is important to know that for the purpose of this toolkit, all mentions of the word “art” and/or “artistic creations” refers solely to music in both of its components–musical scores and song lyrics. Copyright law in the musical world can be quite a complex issue—due in part to the nature its oftentimes ambiguous parameters regarding fair use—but nevertheless, as ethnomusicologists it is necessary to educate ourselves on the topic as best as possible. To that end, the material in this section is included with the intention of providing information and support for one of the most ethical components of ethnomusicology–the legal use of music.

U.S. Copyright and Copyright Law

–Amy Aiyegbusi and Jamaal Baptiste

Copyright
Copyright is a form of protection provided by the laws of the United States to the authors of “original works of authorship” that are fixed in a tangible form of expression. An original work of authorship is a work that is independently created by a human author and possesses at least some minimal degree of creativity. A work is “fixed” when it is captured (either by or under the authority of an author) in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time (U.S. Copyright Office).

Types of Musical Copyrights
In the musical copyright world, there are two (2) types of musical copyrights–publishing, which is also referred to as a “Composition” and/or “Musical Composition” copyright, and phonographic, which is also referred to as a “Master” copyright or “Sound Recording” copyright.

Publishing/Composition/Musical Composition
Any music, including any accompanying words, of a musical score/composition. This type of artistic creation is normally registered as a work of performing arts. The author of a musical composition is generally the composer and the lyricist, if any. A musical composition may be in the form of a notated copy (for example, sheet music) or in the form of a phonorecord (for example, cassette tape, LP, or CD) (U.S. Copyright Office).

Phonographic/Master/Sound Recording
Any sound recording which results from a series of musical, spoken, or other sounds. The author of a sound recording is the performer(s) whose performance is fixed, or the record producer who processes the sounds and fixes them in the final recording, or both (U.S. Copyright Office).

Copyright Law
The existing collection of laws regulating the use and transmission of intellectual and material property. With respect to ethnomusicology, this refers to both written and oral compositions. (U.S. Copyright Office).

U.S. Copyright Owner Rights

–Amy Aiyegbusi and Jamaal Baptiste

“What Are the Rights of a Copyright Owner?
Copyright provides the owner of copyright with the exclusive right to:

Reproduce the work in copies or phone records.
Prepare derivative works based upon the work.
Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending
Perform the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a motion picture or other audiovisual work.
Display the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a pictorial, graphic, or sculptural work. This right also applies to the individual images of a motion picture or other audiovisual work.
Perform the work publicly by means of a digital audio transmission if the work is a sound recording.
Provides the owner of a copyright the right to authorize others to exercise these exclusive rights. These rights are subject to certain statutory limitations, dependent upon the age of the work” (U.S. Copyright Office).

“What Is Not Protected by Copyright?
Copyright does not protect the following:

Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries
Works that are not fixed in a tangible form (such as a choreographic work that has not been notated or recorded or an improvisational speech that has not been written down).
Titles, names, short phrases, and slogans.
Familiar symbols or designs.
Mere variations of typographic ornamentation, lettering, or coloring
Mere listings of ingredients or contents” (U.S. Copyright Office).

Digital and Global Copyright

–Amy Aiyegbusi and Jamaal Baptiste

The advent of technology drastically altered almost every facet of everyday life in some manner. Artistic influence and creation took on a deeper significance, as access to art forms from diverse sections of the world became the norm rather than the exception. It was also in this digital context that standardized copyright and fair use regulations became ambiguous and debatable in key ways–the 2000 Napster case being the first large-scale digital copyright infringement lawsuit–thereby necessitating the creation of digital copyright and fair use regulations (U.S. Copyright Office 2008). The Digital Millennium Copyright Act of 1998, signed into law by President Bill Clinton on October 28, 1998, is the current acting piece of legislation governing United States digital copyright issues (U.S. Copyright Office), and aligns US copyright law with the World Intellectual Property Organization Copyright Treaty. In July 2013, the Department of Commerce Internet Policy Task Force released the results of a three (3) year study of the intersection of intellectual property and digital usage. This manual, titled “Copyright Policy, Creativity, and Innovation in the Digital Economy,” contains explanations of numerous copyright/fair use regulations along with suggestions on how to further strengthen intellectual ownership within the digital sphere (U.S. Department of Commerce 2013).

Europe’s digital copyright law operates under what is called the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. This legislation, created in order to align European copyright/fair use with the WIPO treaty regarding the issues of copyright/fair use. In the country of South Africa, the most commonly utilized copyright/fair use legislation is the Copyright Act, 1978 (Act No. 98 of 1978, as amended up to Copyright Amendment Act 2002). This legislation protects literary works, musical works, artistic works, cinematograph film works, sound recordings, broadcasts, program-carrying signals, published editions and computer programs in South Africa. The countries inWest Africa operate in a general sense under the WIPO treaty, but numerous African jurisdictions have enacted their own specific statutes (Sikoyo, Nyukui and Wakhungu 2006), to more thoroughly cover their property copyright needs. Asia also operates under the WIPO treaty, and UNESCO hosts a manual explaining the specifics of copyright laws in Asia (Hozumi 2004). The Middle Eastern countries have diverse copyright regulations differing among countries. An online reference guide, “Doing Business in the United Arab Emirates: An Introduction to the Laws on Intellectual Property Rights” (Latham and Watkins LLC), and Michael Birnhack and Amir Khoury’s article, “The Emergence and Development of Intellectual Property Law in the Middle East” contains intellectual copyright information of various countries within that region (2017). Australia’s Copyright Act 1968 was amended with the passing of their Copyright Amendment Act 2006, and their Copyright Council website is an additional source of information. Canada’s Intellectual Property Office governs copyright and patents for Canada, and the INU-IAS Report, “Bioprospecting in Antarctica”, provides information on intellectual property rights for Antarctica (Lohan and Johnston 2005). Regarding Latin America and South America, Michigan State University’s College of Law document prepared in 2017 offers the most accessible publication with a list of key countries and their current intellectual property rights (Seling 2017).

***DISCLAIMER: As one can see by the links above, each continent–and in many cases, each country–has its own set of regulations surrounding these issues. In addition, many countries do not seem at first glance to differentiate between standard and digital copyright issues. The information above regarding each continent and/or region is intended only as a starting point for research purposes, and should be examined closely by the researcher in order be legally compliant regarding his/her particular research project.

Fair Use

–Amy Aiyegbusi and Jamaal Baptiste

“Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances” (U.S. Copyright Office).

Fair Use Evaluation
Copyright-protected work can be used without infringing on the owner’s rights in unique, specific circumstances. When evaluating if the work falls under the category of fair use, four (4) factors of the work’s intended use needs to be considered–purpose and character of the work’s use, the nature of the original, the amount and substantiality of the work being used, and the market effects of the work’s usage (U.S. Copyright Office).

“Purpose and Character of the Use: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, ‘transformative’ uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. In other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the ‘heart’—of the work.
Market effect of the work’s usage: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.”(U.S. Copyright Office)

In the instances above, intellectual property can be used in certain circumstances without risk of copyright infringement. As additional assistance in determining and/or documenting fair use within the scope of research, Columbia University Libraries has a website structured around a Fair Use Checklist they created. The checklist is offered in printable PDF form and the website contains additional links explaining Fair Use guidelines in the United States (Columbia University Library). The UCLA library also offers Fair List links as well as additional copyright legislation links, the World Intellectual Property Organization (WIPO) Lex database in which one can search for specific treaties and legislation, and various articles and videos related to copyright and fair use (UCLA Library). In conclusion regarding fair use, Anthony Seeger’s YouTube video, “Who Owns Music and Why You Should Care”, gives an engaging presentation on the issue of copyright and fair use through use of audience sing-alongs and well-placed humor that expertly explains this complex topic (UCTV 2012).

Case Studies

–Amy Aiyegbusi and Jamaal Baptiste

In the musical copyright world, identifying who owns what type of rights to a musical creation can be somewhat convoluted at times. Diverse factors must be taken into consideration, such as the fact that one can own the publishing rights but not the phonographic rights to a piece of art, that registration of a musical creation is what allows one to obtain damages against another party in the case of copyright infringement (Law Trades, Inc 2017) , and if the music used without copyright permission could potentially fall under the de minimus rule, thereby making its use legal.

As Dr. Monica Herzig explains, “in theory, the moment someone officially writes a song, it is theirs and it’s copywritten…The moment you put something on paper you own the copyright” (personal communication to authors, September 19, 2017). As ethnomusicologists, it is our ethical responsibility to protect others and ourselves from potential legal issues that can arise from copyright infringement. By virtue of our involvement with our research topics and collaborators, it can be assumed we already have the best intentions for our research projects, and we have the knowledge and materials with which to form a legal foundation of records with regard to copyright ownership of the music we study. As Herzig details, as researchers we should be monitoring the utilization of a musical work, starting with the author and date it was written. Once that information is documented, you have established the fact that the music is copywritten. But in the case of proving copyright ownership, it is better to have the musical work registered with a copyright office:

“As scholars, we should monitor how a particular song is being used. At least, we should keep track of the writer and the date/year. If you have that, in theory it is already copywritten. The moment you put something on paper you own the copyright. If you need to prove it, it is better to have it registered with the copyright office” (Monika Herzig, personal communication with the authors).

The following are case studies of various landmark lawsuits involving copyright infringement. But before we move on to the how and the why of this section, a few key terms and their respective definitions are in order:

De minimus: “Lacking significance or importance: so minor as to merit disregard” (Merriam-Webster 2017).
Punitive Damages: “Damages awarded in excess of compensation to the plaintiff to punish a defendant for a serious wrong” (Merriam-Webster 2017).
Parody: “A literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule.” (Merriam-Webster 2017).
Sampling: “The process of copying and recording parts of a piece of music in an electronic form so that they can be used in a different piece of music” (Oxford Learner’s Dictionaries 2017).
Subconscious Plagiarism: The presentation of another’s artistic creation as self-made due to not realizing the information has been learned or acquired from another source. Due to over-processing massive amounts of information; also known as cryptomnesia (NY Daily News 2009).
Confidentiality Agreement: “Confidentiality agreements define exactly what information can and cannot be disclosed… also known as non-disclosure agreements or secrecy agreements” (US Legal, Inc.).

Case Study 1: The Beach Boys vs Chuck Berry (1963)

Songs in Question:

Surfin’ USA (Beach Boys)
Sweet Little Sixteen (Chuck Berry)

Years after the song “Surfin’ USA” became a hit, Chuck Berry sued the Beach Boys for copyright infringement, claiming that they plagiarized large portions of his original hit, “Sweet Little Sixteen.” Brian Wilson, who originally noted as the sole author of “Surfin’ USA”, claimed he wrote the song as a tribute to Berry. In order to resolve the case, the Beach Boys’ manager, Murry Wilson agreed to give Berry publishing rights to the song, with songwriting credits for Berry first noted in 1966 (Runtagh 2016).

Case Study 2: Led Zeppelin vs Willy Dixon (1972)

Songs in Question:

Bring it on Home (Led Zeppelin) & Whole Lotta Love (Led Zeppelin)
Bring it on Home (Willy Dixon) & You Need Love (Willy Dixon)

Dixson sued in 1972 (Bring it on Home) and 1985 (Whole Lotta Love) for copyright infringement, and won both cases with out-of-court settlements of undisclosed sums. As part of the settlement terms, Dixon was credited as author of “Bring it on Home” and co-writer of “Whole Lotta Love” (Runtagh 2016).

Case Study 3: George Harrison vs The Chiffons (1976)

Songs in Question:

My Sweet Lord (George Harrison)
He’s So Fine (The Chiffons)

On February 10, 1971, Bright Tunes Music filed a copyright infringement lawsuit against George Harrison over his hit, “My Sweet Lord.” Bright Tunes claimed that George Harrison had illegally used large portions of Ronnie Mack’s song, “He’s So Fine”, recorded by The Chiffons in 1963, in his own musical creation. The lawsuit was tried in court five years after the initial filing, and Harrison was found guilty of subconscious plagiarism. He was ordered to pay Bright Tunes Music $1,599,987, but this amount was later reduced to $587,000 by the time the litigation ended in 1998 (Runtagh 2016).

Case Study 4: Ray Parker, Jr. vs Huey Lewis & The News (1984)

Songs in Question:

Ghostbusters (Ray Parker, Jr)
I Want a New Drug (Huey Lewis and the News)

Once Huey Lewis heard the theme song to the hit movie, “Ghostbusters”, he sued the author of record, Ray Parker Jr. for copyright infringement. The case was settled out of court with the confidentiality agreement of non-public disclosure of the lawsuit or settlement details. But when Lewis broke the agreement in 2001, Parker sued him for breach of confidentiality (Runtagh 2016).

Case Study 5: De La Soul vs The Turtles (1991)

Songs in Question:

Transmitting Live from Mars (De La Soul)
You Showed Me (The Turtles)

In a period when sampling was just taking off in earnest. The Turtles sued hip hop group De La Soul over a 12 second snippet in their song, “Transmitting Live from Mars.” The group and its producer of the song, full of samples from various other songs throughout previous decades, neglected to obtain The Turtles’ permission, and as a result settled for an out-of-court reputed amount of 1.7 million dollars (Runtagh 2016).

Case Study 6: Grand Upright (Raymond ‘Gilbert’ O’Sullivan) vs Warner Records (Biz Markie) (1991)

Songs in Question:

Alone Again (Naturally) (Raymond ‘Gilbert’ O’Sullivan)
Alone Again (Biz Markie)

In the same year as the above lawsuit, Raymond ‘Gilbert’ O’Sullivan sued rapper Biz Markie for copyright infringement for Markie’s use of the three words, “Alone Again Naturally” and its subsequent musical accompaniment. This case is famous for Judge Kevin Duffy’s in-court admonishment to Markie of “Thou Shalt Not Steal” at the beginning of Duffy’s lawsuit Opinion Brief, and said brief discloses the information that Markie’s record publishing company Cold Chillin’ dba as part of Warner Records admitted they wrote to Sullivan’s agent requesting permission to use the sample in Markie’s rap song. Duffy referred the issue to the U.S. Attorney’s Office for the Southern District of New York for criminal prosecution, but all was resolved with an out-of-court, undisclosed settlement amount (Grand Upright v. Warner 780 F. Supp. 182 (S.D.N.Y 1991)) (Philips 1992).

Case Study 7: Campbell (2 Live Crew) vs Acuff-Rose Music, Inc. (Roy Orbison) (1994)

Songs in Question:

Pretty Woman (2 Live Crew)
Oh, Pretty Woman (Roy Orbison)

During public outcry over their album As Nasty as They Wanna Be, 2 Live Crew released a satirical, cleaned-up version of their album titled As Clean as They Wanna Be. To push the envelope further, on the new version they included the track “Pretty Woman”, releasing it even though Orbison’s publisher refused to give clearance. Acuff-Rose filed a copyright infringement lawsuit that eventually reached the Supreme Court, who ruled that the song fell under fair use’s parody exception (Runtagh 2016).

Case Study 8: Robin Thicke, Pharrell Williams, T.I. and Universal Records vs Marvin Gaye (2014)

Songs in Question:

Blurred Lines (Robin Thicke)
Got to Give It Up (Marvin Gaye)

Robin Thicke’s song “Blurred Lines” became a radio and fan favorite upon its release in 2013, but by April, 2014 everyone included on the song faced a copyright infringement lawsuit filed on behalf of the late Marvin Gaye by his remaining family. Rapper T.I. was eventually cleared of charges, but Thicke and Pharrell were ordered to pay the family 5.3 million. In addition, Marvin Gaye’s estate was awarded 50 percent of any future royalties connected with the song.

Case Study 9: James W. Newton vs Beastie Boys (2003)

Songs in Question:

Choir (James W. Newton)
Pass the Mike (Beastie Boys)

A 6-second, 3-note flute sound structured in a loop was all it took for James W. Newton to file a copyright infringement lawsuit against the Beastie Boys for their use of the sound in “Pass the Mike.” After a long court battle, the Beastie Boys were found not guilty due to their obtainment for permission to record from EMC Records, whom Newton had sold the recording copyright to prior to the song’s recording. In addition, the appellate court found that the Beastie Boys’ use of the 3 note segment to be unqualifiable because of its de minimus status (Newton vs Diamond 349 F.3d 591 (9th Cir. 2003)).

Case Study 10: Taylor Swift, Max Martin, Shellback, Song/ATV and Universal Music Group vs Sean Hall and Nathan Butler (2017)

Songs in Question:

Shake It Off (Taylor Swift)
Playas Gon’ Play (written by Hall/Butler)

Claiming that their composition contains the copyrighted lyrics, “Playas gon’ play, them haters gonna hate”, Hall and Butler filed a copyright infringement lawsuit against Swift over her use of a similar lyrical expression in her own song. Martin and Hall are asking for 20% of the songwriting credit and subsequent loyalties, and the case at the time of this writing is still ongoing. Swift has already won a similar lawsuit against Jesse Braham for his claim of lyrical similarity regarding his song, “Haters Gone Hate”, so time and the courts will tell if common lyrical phrases are able to be copyrighted (Legal Entertainment 2017).

As evidenced by the examples above, copyright infringement lawsuits, whether digital or otherwise, are multi-faceted and dependent on many factors that differ from case to case. Musical copyright is a necessary component in the world of musical creation, but as Herzig explains, it has its limitations, as well:

“The purpose of copyright was to have a limited amount of time available where the composer and possible family and descendants could benefit from a specific work. It was designed for a limited amount of time and not forever, realizing that it’s a two-sided thing: (a) it should benefit the composer; and (b) it should be available and accessible to the public (there should be uses of it)” (Monika Herzig, personal communication with the authors).

We hope we have provided you with the basic tools necessary for you and your research collaborators to become familiar with some fundamentals of copyright law and fair use. Below you will find additional resources on the subject, including websites, books and articles.

Additional Resources

–Amy Aiyegbusi and Jamaal Baptiste