Copyright Insanity: The Need To Get Licenses Just To Demonstrate A Legal Point

from the that-seems-problematic dept

Over at Against Monopoly, Alistair Kelman, points out yet another quirky problem with copyright law. He's discussing a book by Ron Rosen, who was the attorney for famed composer John Williams in fighting a copyright infringement claim saying that Williams copied a phrase in the score for the movie E.T.. The book is called Music and Copyright, and (according to Kelman) is quite a worthwhile read in thinking about some of the modern legal issues that will be faced thanks to mashups and other musical compositions that run up against copyright questions.

Kelman's one issue with the book, is that it would really be aided quite a bit by being able to hear the actual music in question, rather than just seeing the musical notation. So, the suggestion was, why did Rosen put up an online video lecture, playing the music samples so that people could better understand the issues at play. The answer, it turns out, is copyright law. Rosen wrote Kelman, noting:
"...about the need for aural examples, that is something we wanted to do for this edition, but as a new publication, the need for licenses and the budget foreclosed our doing so."
So even though this is a somewhat scholarly effort to look at these issues, apparently Rosen can't even demonstrate his points with music, because copyright forbids it, and requires hefty licensing fees. If ever there were a case where "fair use" should apply, this would seem to be it -- but I'm sure some would argue against that point since this book is a "for-profit" endeavor. Of course, whether something is commercial or not is only one of the four fair use factors, and it seems that if it's just a snippet of the music, a strong fair use case could be made (especially since it's hard to see how this could possibly harm the market for the music itself). However, as copyright system defenders love to point out on a regular basis, they see fair use as a "defense, rather than a right" and thus, the only way to prove that this is fair use would be to go to court -- something that is expensive and time consuming. What an unfortunate state of affairs.

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  1. icon
    chris (profile), 4 Jul 2009 @ 7:51am

    Re: This whole "hefty" this has to go.

    Now I don't know the facts about the music in question(as nobody replying on this blog does) but I would assume that he wouldn't need to use whole songs, so this post is thrown right out.

    The important question is still.....Why would he have to get licensing for 5-10 second snippets of songs just to show how the section of music in question is different or maybe even similar?


    in the original article:
    You really find yourself in a "Catch 22" - since, as a copyright attorney (who will be presumed will be fully aware of the law in this area) you need the permission of the copyright owners to illustrate, in an intelligible manner, the fact that their copyrights are likely to be worthless.

    i take that to mean that the point of the book was to prove that the copyright is invalid on some music that was involved in a messy copyright dispute.

    if you are writing a book about how a particular copyright is worthless, does that affect your chances of (1) obtaining permission to use the samples for a fee that fits the book's budget, (2) your chances of being taken to court and having to prove fair use if you were to use the samples without permission?

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