Anyway, there was no evidence of a written work made for hire agreement
Actually, there was, but it is in dispute. Google brought in the agreement, but Garcia claimed it was forged. The lower court didn't rule on the matter, and it didn't make it to the circuit court (yet).
Yet another reason that the preliminary injunction and gag order were bad ideas.
Well, the jury is still out on pop music songwriters, and I don't think there is or will be a blanket rule that applies to all contexts.
The jury is certainly not out on pop music songwriters, at least as they usually work. Unless you are an actual, bona fide employee of a publisher (with hourly wages or a salary, proper tax forms, etc.), your work simply cannot be a work for hire. You can, and probably will, assign your copyright, but there is a vast difference - in the case of assignment, you originally held a copyright over the song, but that's not true for a work for hire.
I disagree with the intent of adding motion pictures to that WMFH definition.
I'm sure there was a lot of lobbying money involved, but it does make sense from a purely logistical standpoint. Otherwise, every single creative person working on a film - and there may be hundreds - could possibly be a "joint author" under the copyright statutes. That would make the economic exploitation of any movie a practical impossibility.
By arguing against the order, Google is saying that actors, actresses and artists don't have the right to order takedowns of the content they either appear in or retain the ownership or copyright to.
And Google is correct. Merely appearing in a film (or other work) does not grant you the right to order takedowns of that content.
The only entities that can issue takedown notices are copyright holders. This is black-letter law.
I recently ran into this issue when one of the labels I work with issued DMCA takedown notices to one of those sharing blogs (and as a result got them shut down). While I respect his opinion on file sharing, I don't share it (ha).
There was no written contract between us, so he did not hold the copyright of my music. Thus, he would have no legal right to issue takedown notices of my music, even though he released it on his label. (It turns out that he did not do this in my case, but he may have with other artists.)
They're on a label, which means they likely don't hold the copyright to their songs any more. So, that option is out.
It's also a good guess as to why they didn't say anything sooner. If they would have said anything like that, especially while litigation was ongoing, the label would have come down on them like a ton of bricks.
Re: Re: Re: Mostly a good, tightly reasoned opinion
That's not what that law says. It says contributions from actors, etc. *can* be considered works made for hire (if there is a signed, written work made for hire agreement), not that they *are* works made for hire.
Sorry, you're right about that. I was making my point badly.
My point is that under the statutes, workers on a film (actors, directors, cinematographers, etc.) are specifically named in the statutes as possibly working for hire, even if the studio or filmmakers aren't their employers.
That makes them unlike, say, pop music songwriters - who cannot be working for hire. Unless you're one of the enumerated workers in the statute, your work can't be a work for hire, no matter what your contract says. (You can, of course, assign your copyright interest, and most artists do, but that's not the same thing.)
In other words, the law was enacted specifically so that "actors in a recorded performance have NO copyright interest whatsoever." It's not remotely "nonsensical."
It sure is a good thing that there's a blog to demonstrate how much Google loves the piracy business.
I honestly can't tell if this is sarcasm.
I mean, here you are on a blog that has nothing to do with Google, commenting on a story that has nothing to do with Google nor with endorsing piracy (much less "the piracy business"). And somehow that's proof that this blog demonstrates how much Google loves the piracy business.
If it isn't sarcasm, then it's being an agent provocateur against the copyright industry. Whether intentionally or not, you're simply making "your side" look like raving idiots.
We'll here's a fact, pal ... I'm looking at my royalty statement... One of my songs has had over 1,250,000 plays on Pandora and my payment is $35.00. Pandora apparently thinks that's too much.
Since you don't use your real name, nor tell us what song got played, there's no particular reason to believe you. But, let's say for the sake of argument that you're right.
Also for the sake of argument, I assume you're the sole composer. (If you only own, say, 50% of the copyright on the composition, then you're only going to get 50% of the royalties.) That means that your publisher also got $35.00. That is after the PRO's operating expenses; if you're on ASCAP, those expenses are currently 12.4%. This means that Pandora paid roughly $80 in songwriter's royalties for those plays.
Now consider terrestrial radio. I assume that your song is getting play on some commercial radio station in a metropolitan market. How many times do you think your song was played there? I'll put it in perspective: Radio stations owned by Clear Channel have about 243 million listeners per month. Since they own 840 radio stations, that puts each radio station's listeners at roughly 290,000 listeners (on average). If even a single one of those stations played your song more than four times per month, that radio station has already played your songs more times in that single month, than Pandora did in its entire royalty period.
Do you honestly think that a single radio station pays more than $80 per song per month to songwriters? Did any single radio station, anywhere, pay more than $35 per month to you?
In fact, we know they did not. As per a 2012 legal settlement with ASCAP, terrestrial radio stations pay a maximum rate of 1.7% of their income to PRO's. And so does IHeartRadio. What did they pay you in royalties? I'd bet dollars to donuts that it is a lot less than Pandora. Can you even tell from your royalty statements?
Westergre n has sold millions and millions of dollars worth of Pandora's stock and is stuffing money hand over fist into his personal bank account while I can't afford to take my family to McDonald's for dinner.
Westergren is a former musician and film composer who developed the Music Genome Project, then spent years maxing out his credit cards and eating Ramen before the company he founded was in any way viable. You're complaining that you're not making as much money as he is? Simple: start your own damn company.
If you're going to complain about salaries, you should complain about the CEO's of Clear Channel, who make more than $2 million per year. While we're at it, you should complain about the salaries of ASCAP and BMI executives, who have six-figure salaries that come directly out of your royalties. Or the salaries of the PRO's boards of directors - many of which earn seven figures working for major publishing companies. Said publishing companies being the same companies that own record labels, which have been trying to screw over musicians much more than Pandora ever could, for longer than either of us have been alive.
On top of that, he's spent over $10 million in court and in Washington trying to reduce what I get paid.
As I explained before, Pandora is not trying to reduce what you get paid. They would be more than happy to keep paying you the same amount that they always have (or even slightly more). They don't want to get singled out so they have to pay much more than everyone else.
Also, if Pandora spends money on litigation, it comes out of their pockets, not your royalties. The same cannot be said of ASCAP or the publishers. If the lawsuit goes against ASCAP - and it's looking like it will - then are you going to blame ASCAP for wasting money that is rightfully yours? Because you should.
They recently made a handshake deal with ASCAP that increased the amount they would pay to songwriters. NOT TRUE.
Yes, it is true:
Historically, Pandora has paid essentially the same rate as all other forms of radio, a rate established unilaterally by the performing rights organizations, ASCAP and BMI, in the late 1990s. In November of last year, following a lengthy negotiation, Pandora agreed with ASCAP to a new rate, an increase over the prior amount, and shook hands with ASCAP management. Not only was our hand-shake agreement rejected by the ASCAP board, but shortly thereafter we were subjected to a steady stream of “withdrawals” by major publishers from ASCAP and BMI seeking to negotiate separate and higher rates with Pandora, and only Pandora.
Mr. Horowitz [CEO of Universal publishing, and member of ASCAP's board of directors] thought it appropriate to communicate to other venture publishers on ASCAP's board his e-mails to Mr. LoFrumento, urging ASCAP not to do the contemplated deal with Pandora. [...]
Just to make things more colorful, the testimony is that Sony, while this all was unfolding and when Sony got wind of the possibility that ASCAP might do a deal with Pandora before year-end, Sony threatened to sue ASCAP if it did so.
So, yeah, exactly as I said.
Because there is a certain amount of choice with Pandora, Pandora and terrestrial radio are not the same product so their rates should not be equal.
Pandora is not an on-demand service. Both terrestrial radio stations and internet services like IHeartRadio have that same amount of choice for their users. That's why ASCAP set up bifurcated rates back in 2002, which Pandora has always paid.
And, if you want to talk about shenanigans, Pandora bought a tiny terrestrial radio station in the middle of nowhere so it could claim that it's entire service should be treated like terrestrial radio.
No, it's because ASCAP sets up different rates for streaming on the internet if you are an owner of a radio station. That's why IHeartRadio pays lower royalties than Pandora, despite the fact that they're essentially the same service. Pandora was just trying to get the same internet streaming rates that Clear Channel has.
Just out of curiosity, if you're so against Pandora's rates, why aren't you up in arms about Clear Channel? They pay, much lower rates than Pandora does for the same service. Why didn't Sony and Universal threaten to walk when ASCAP dealt with them?
Re: Learn the Basics Before you Open your Pie Hole
Publishers have been understandably frustrated because ASCAP is unable to negotiate a market rate for them with Pandora because of their consent decree, so they pulled out and directly negotiated rates that were much higher.
That is not what happened.
Some publishers - namely, Sony and Universal - did what they called a "partial withdrawal." That is, they did not withdraw from ASCAP altogether - just from ASCAP's dealing with Pandora, and only with Pandora. (They did not, for example, work out separate deals with IHeartRadio, the streaming Internet music service owned by Clear Channel.)
But even this was a sham, for those publishers did not approach Pandora to work out new licensing deals. Instead, ASCAP would still administer these licenses. It's also worth mentioning that the heads of these publishers are on ASCAP's board of directors. (In fact, the court already saw through these "partial withdrawal" schemes and found they were shams.)
Well, you think, that's bogus, but Pandora should have just deleted their material from their service until it could get worked out. And that's where Sony and Universal really kicked Pandora in the nuts. Because they never provided a list of their material to Pandora. And they never asked ASCAP to do so - even though ASCAP had that data sitting and waiting. And they were not shy about doing it.(That's where the "ask me tomorrow with a drink in your hand" comment comes from.)
So, with the "withdrawal" date fast approaching, Pandora had two choices: accept whatever rate Sony and Universal were asking, or face multi-million-dollar damages from copyright infringement lawsuits. No surprise which option Pandora took.
That is not a "market rate" deal. That is blackmail.
All of this is so that ASCAP can charge Pandora for the same rate as on-demand music services - that is, services where users select which particular song is going to be played. A rate that is almost double what they were currently paying - and which is almost double what similar services such as IHeartRadio are still paying.
The Statute of Anne was passed in 1709, 2 years after the last of the unsuccessful Stationers' bills was introduced, and it was not a way to restore the stationers' monopoly
The Statute of Anne was one of the Stationers' bills.
And it certainly did restore the Stationers' monopoly - to some extent. Who do you think the Statute of Anne explicitly stated would handle all copyright registrations? (Hint: It was the Stationers.)
but a way to guard authors against the abuses that had sprung up in the power vacuum that resulted when the monopoly fell
As far as authors were concerned, there were no more "abuses" after the monopoly fell than there were beforehand. As stated above, authors never had any kind of copyright protection. Prior to the Statute of Anne, the monopoly copy rights went to the Stationer that entered the work into the register.
Authors may have supported the Statute of Anne, but only because that statute created artists' rights. In essence, those authors (most of whom had already dealt with the Stationers) hitched their wagon to a bill that was introduced and supported by the Stationers, in order to gain rights in their works that they had never before held.
if the purpose of the remix is to comment on the original artist's stated political views through parody, not only can they not stop it but that expression is explicitly protected by the 1st amendment and fair use.
This is a point that bears repeating.
When these artists say that "an artist should be able to turn down uses in connection with messages that the artist finds objectionable," they are explicitly endorsing censorship through copyright. They are granting or withholding permission, not out of any attempt to protect against infringement or protect against fiduciary exploitation, but solely because they disagree with the remixer's message.
In First Amendment terminology, this is called a content-based restriction on speech. It is one of the worst offenses against free speech that can be made. And if the government is allowing or endorsing the use of copyright in this manner, then it is unconstitutional.
Furthermore, keep in mind that by the time a work is published, the copyright holder is almost always not the artist, but the publisher (I include studios and labels as "publishers"). They are the ones that get to decide whether others can have a license for remixes, according to what they find "objectionable."
So, for example, an artist on Sony can have his music held back from any remix artist who doesn't endorse Sony products, or even just endorses a competitor's products. They could have their music withheld from any remix artist who signed the anti-SOPA petition, or even who held political views that were at odds with a candidate that Sony endorses. And the artist would have absolutely no say in the matter whatsoever.
Is this really what Tyler, Henley, and the others really want? Because it's exactly what they're endorsing.
To successfully sue Pandora for playing unlicensed songs, you'd have to be able to prove that they knew the songs were unlicensed.
It doesn't really matter if they'd win or not. They'd have the minimal amount of evidence needed to not get the case dismissed immediately. Being the defendant in a copyright infringement suit requires a huge amount of money; even if you win, your legal fees may still be more than a default judgement for infringement.
Settling was simply the cheaper option for Pandora. At least in the short run - and since Pandora already pays half of their income to copyright holders, they're on life support already, and need to think solely in the short run right now.
The "censorship" in question has to do with the old Stationers system. That system eventually failed, and became irrelevant. The thing that happened then, though, is that with nothing to keep publishers in line, everyone with a printing press began publishing anything they wanted to, however they wanted to, and completely screwing over the authors. It was to rein in this abusive behavior that copyright was invented
That's a slight misreading of history.
It is true that the Stationers were the enforcers of censorship by the Crown (largely of "heretical" religious works). But from the Stationers' perspective, it was simply a way to obtain a monopoly over bookselling - a monopoly that they exercised against authors:
Control over authors was asserted through mandatory entry of books in the Stationers' Company register:
It began to be assumed that when an individual (stationer) entered a book in the Register, he acquired the unique right to print that book. Although this was not explicit in the Company's own regulations for some years, it rapidly became the practice to fine those who infringed what the company's records call "other men's copies."
As one commentator described this evolution: "Registration gradually became a method of establishing proprietary rights and book entries (made when the registration fee was paid) 'became a permission,' an 'Imprimatur,' rather than cash receipt." The rights granted to (or assumed by) the Stationers Company were not copyrights in the modern sense - the right to reproduce intangible intellectual creations - but rather rights in "copies," the physical product, regardless of whether the work of authorship was ancient or contemporary. Authors qua authors were in no way protected, although they may have been able to claim the protection of the common law for unauthorized reproduction of their unpublished manuscripts. Authors who could not make satisfactory arrangements with a member of the Stationers Company occasionally attempted to sell their works themselves by subscription, only to be subjected to bitter public recriminations by the Stationers.
So, it was the Stationers themselves who "began publishing anything they wanted to, however they wanted to, and completely screwing over the authors."
And the Statute of Anne was not enacted to rein in this abusive behavior:
The world was beginning to change, however. Government censorship, government-created abusive monopolies, and lack of protection for authors were becoming inconsistent with the spirit of the Age of Enlightenment. As a consequence, in 1694 the world of the licensing acts and exclusive Stationers’ rights ended, as the House of Commons, aided by arguments purportedly drafted by John Locke, refused to renew the 1692 Act. Independent printers sprang up in competition with the Stationers. For five straight years thereafter, the Stationers Company unsuccessfully petitioned Parliament for a new licensing act and then fell silent, no doubt regrouping to develop a new strategy.
In 1703, 1704, 1706, and 1707, petitions to Parliament were presented by the Stationers. On February 26, 1707, leave was granted to introduce a Stationers' sponsored bill "for securing property in such books as have been or shall be purchased from, or reserved to, the authors thereof." A bill was introduced two days later, but died in committee. This new approach of emphasizing the author as the source of rights was taken not out of a conversion to the cause of authors, but out of a strategic judgment that the Stationers could hide behind the cloak of authors.
There are two things I'd like to address about this article.
1. I really, really wish that you and Jarre would stop saying "creators" would be the beneficiaries of these taxes. They're not.
Most Western countries, including the U.S. and Canada, have "you must be a criminal" taxes on blank media. How many artists see a single dime from that? Not many. You have to be a member of one of the collection societies in order to get it, and those societies are notoriously skewed towards only the Top 40. That's assuming you get paid at all - most of those royalties go to the copyright holders, which are almost never the artists themselves.
Jarre himself might be one of those artists, but he's one of the very few.
2. Jarre: "If you get rid of music, images, videos, words and literature from the smartphone, you just have a simple phone that would be worth $50."
I can't believe he said this with any degree of seriousness. What most people use their smartphones for, is web browsing, email, social networking, or shopping. To be sure, people listen to music on their smartphones - much of it through streaming services such as Pandora, Rhapsody, or Spotify, which users pay for. But even if their music and literature is 100% infringing, it would still be a tiny portion of the value of a smartphone.
As for the images and videos: if we're talking about a smartphone, then we're talking about images and videos that consumers created themselves. Let's not forget the other primary selling point of smartphones: they are also cameras. A smartphone is much more valuable to consumers as a creative tool, rather than a "consumptive" tool.
Popular musicians, including Jarre, add maybe 1% to a smartphone's value. If that.
Much as you love to spread this lie, nobody here hates musicians. Many of us here are musicians. Techdirt wants them to actually be successful - and fighting against your fans won't make you successful.
1) You tell us give you our music for free and make up for it at live shows
Giving people our music for free, and making up for it at live shows, is how performing musicians have always made money. Musicians don't, and have never, made anything more than a sliver of their income from royalties. Nine out of ten musicians on a major label never make a single dime from artists royalties; they sign to a label because it provides promotion, which leads to things like endorsements, selling merch, or live performance revenues - and those are the ways musicians make money.
The difference is that now we can give away our music to fans for free, rather than give away our music to labels for free. And those fans will end up paying us more than a label ever would.
Plus, Techdirt has never said it is a requirement that you give away music for free. They have always advocated for crowdfunding models like Kickstarter or Sellaband, and have advocated for subscription models like Pandora or Spotify. It is not necessary that musicians give away their music; what's necessary is that fans (potential and actual) are able to experience it in the way that they want. They are, after all, your customers.
2) You tell us we should charge a little as possible at live shows to be and be'fan friendly.'
First of all, that will net good will with the fans, which can be leveraged in other ways.
Second of all, cheaper tickets do not translate to less money. It translates to many, many more people who can afford to see your live shows. If the balance is right, the increase in concert goers will more than make up for the difference in price. And if those concert goers could afford to pay more for a ticket, then they have more money to spend on your merchandise - and artists usually get a greater cut of the merch than they do of the ticket money.
Lowering prices will often result in greater overall profits. That's basic economics.
Indeed. We should all call this for what it is: the advocacy of terrorism.
He's using almost exactly the language that Al Quaeda used to justify the 9/11 attacks - the view that the world is divided into "we" and "they;" the threat of an undeclared war; the moral innocence of its soldiers, and the virtue of following orders without question; the notion that there are no "innocent" civilians, and that the general population is a legitimate target.
He is saying that the U.S. should turn into a terrorist state, and that nobody who lives here should do a damn thing about it.