Lee (2018)

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1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Lee (2018)
Title: Fair Use Avoidance in Music Cases
Author(s): Edward Lee
Year: 2018
Citation: Lee, E. (2018) Fair Use Avoidance in Music Cases. Boston College Law Review. Vol 56(6)
Link(s): Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: The study involves an analysis of 177 court decisions, available via Westlaw, which concerned the infringement of a musical work. Cases concerning sound recordings were excluded, with emphasis instead on identifying instances of possible fair use claims in “same-type transformative musical works” (e.g. parody).
Data Type: Primary and Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • 1978 - 15 January 2018
Funder(s):

Abstract

“This Article provides the first empirical study of fair use in cases involving musical works. The major finding of the study is surprising: despite the relatively high number of music cases decided under the 1976 Copyright Act, no decisions have recognized non-parody fair use of a musical work to create another musical work, except for a 2017 decision involving the copying of a narration that itself contained no music (and therefore might not even constitute a musical work). Thus far, no decision has held that copying musical notes or elements is fair use. Moreover, very few music cases have even considered fair use. This Article attempts to explain this fair use avoidance and to evaluate its costs and benefits. Whether the lack of a clear precedent recognizing music fair use has harmed the creation of music is inconclusive. A potential problem of “copyright clutter” may arise, however, from the buildup of copyrights to older, unutilized, and underutilized musical works. This copyright clutter may subject short combinations of notes contained in older songs to copyright assertions, particularly after the U.S. Supreme Court’s rejection of laches as a defense to copyright infringement. Such a prospect of copyright clutter makes the need for a clear fair use precedent for musical works more pressing.”

Main Results of the Study

Of the cases analysed, 91% did not discuss fair use at all; however, and correspondingly, the majority of these cases did not find infringement either. Only 4% of cases decided in the defendants favour discussed fair use. Instead, most cases succeeded on claims of lack of access to the work in question (31.3%), or lack of substantial similarity (30.4%). Other less popular claims succeeded on copying of unprotectable elements (7.8%), and de minimus copying (4.3%). Of the cases that did claim fair use, only one succeeded on a claim of non-parodic fair use (Estate of Smith v Cash Money Records). The author thus suggests that the low-uptake of fair use claims does not result in findings against the defendant, and instead is unnecessary to their success.

However, lack of fair use claims may be explained by a “theory of avoidance” (similar to e.g. tendencies towards settlement by litigants, doctrine of constitutional doubt by courts). In musical works cases, this may take the form of three instances: first, agreeing an easy settlement through song attribution/credit and royalties to the pursuer; second, the use of a defence which does not admit copying (e.g. lack of substantial similarity); third, following a norm or practice of the music industry (to avoid being seen to promote unlicensed use of music by supporting fair use). Correspondingly, lack of application by the courts may simply be due to the fact defendant’s have not pursued the argument, or lack of historical application/lack of precedent.

Policy Implications as Stated By Author

Whilst the author does not make any explicit policy recommendations, they instead highlight the need for a “clear, non-parody music fair use ruling”. Particularly, they point to the prevalence of allegations of copying in well-established, popular songs (such as Bruno Mars “Uptown Funk”, Led Zepplin’s “Stairway to Heaven”, Pharrell Williams and Robin Ticke’s “Blurred Lines”). The author suggests such allegations cannot be fully addressed with recourse to fair use, and instead there is demand for recognition by courts that “some borrowing” is required to optimise music creativity (particularly to avoid “copyright clutter” or the protection of note combinations from older or under-utilised works).



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets