Even Lawyers Are Confused About What's Legal Or Not In The Prince/Radiohead Spat

from the wait-a-second... dept

We were just discussing how copyright has been stretched and twisted so many times that it really just isn't designed properly to handle internet communications -- and a good case in point may be the funny little spat we covered a few weeks back between Prince and Radiohead. If you don't recall, Prince performed a cover of a Radiohead song at a concert. Someone in the audience videotaped it and put the video on YouTube. Prince's representatives demanded that the content be taken down under a DMCA request -- raising all sorts of questions. After all, Prince didn't own the copyright on the song. That's owned by Radiohead, whose lead singer wanted the video back online. Prince didn't own the copyright to the video either, since he didn't take it. So how could he use the DMCA to take down the video?

But, it's not that simple, apparently. As Ethan Ackerman details, as lawyers began to think about the situation, the more confused they got, noting that maybe there was a right under anti-bootlegging laws. Only, then things got more confusing, because it turns out that anti-bootlegging laws aren't actually a part of the copyright act (though it does fall under the same "title" just to add to the confusion), and the DMCA (under which the takedown occurred) only applies to copyright law.

However, again, we're left in a situation where the "law" is hardly clear at all, and even those who follow the space were somewhat confused over whether or not Prince had any sort of legal standing here. A law is not useful if the boundaries of that law are not clear, and if someone has no clue if their actions go against the law. In the internet era, copyright certainly falls under that category of laws in which it is no longer clear what is and is not legal -- and that should be seen as a problem.

Filed Under: confusion, copyright, prince, radiohead

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  1. identicon
    Duane, 13 Jun 2008 @ 4:57am


    IANAL, but it seems pretty clear to me:

    Copyright protects a fixed work, such as a recording or written song. So Radiohead can hold copyright to any recording which they make, or pay to have made of themselves singing their song. They could also hold a copyright to the actual sheet music of the song. "Covering" a song is a derivative work, almost the textbook case. A recording of someone covering a song would be copyright for the person doing the recording, unless they were a paid employee. If the recording occurs without the consent of the performer, then you're into bootlegging, since the concert was a private event.

    So Prince could go after the video poster, and try to get them prosecuted for bootlegging, but no one's copyright seems to have been infringed. Since there is no infringement going on, this becomes just another case where people use the DMCA to remove content because they don't like it. Radiohead should not even have been involved, since their work was fairly used. Them having any kind of say would be a dangerous precedent which could lead to all kinds of derivitave works coming under fire from the original content producers.

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