But Wait: Copyright Law Is So Screwed Up, Perhaps The Rolling Stones Are Right That Donald Trump Needed Their Permission

from the stupid-pre-1972-sound-recordings dept

So for years and years and years, every time a musician or a group whined about politicians using their music at an event, we'd point out that they have no legal basis to complain. Assuming either the venue or the campaign (or both) had the proper blanket licenses from ASCAP/BMI/SESAC no other permission was needed. That's actually part of the point of the structure of those blanket performance licenses. Everyone recognizes that it would be virtually impossible to play music publicly without such a blanket license structure. And so, every time a musician complains that the use was "unauthorized," they're almost certainly wrong. In fact, we pointed that out (again) for the nth time earlier this week. Now, as we've said all along, we still think smart politicians and smart campaigns should first seek out musicians who don't mind (or, better yet, who endorse the candidate), because otherwise they're just giving someone famous an easy platform to slam them. But, from a legal standpoint, we've always pointed out that there's basically no legitimate argument here, and people who toss around non-copyright theories like publicity rights and Lanham Act arguments are generally wrong.

But... we forgot about one thing. Copyright law is so screwed up that there actually may be a case where the law does require permission. And it has to do with pre-1972 sound recordings. If you've been reading Techdirt for any length of time, you know that we've discussed this issue many times in the past. Historically, while compositions were covered by copyright, under the 1909 Copyright Act sound recordings were not. This resulted in a patchwork of state laws (and state commonlaw) that created special forms of copyright at the state level. Eventually, sound recordings were put under federal copyright law, but it only applied to works recorded after February 14, 1972. Works recorded before that are not under federal copyright law, but remain basically the only things under those state copyright laws (the 1976 Copyright Act basically wiped out state copyright laws for everything but that one tiny thing).

In the last few years, this has created a bit of a mess and a whole bunch of lawsuits. Why did these lawsuits just start recently? In large part because the recording industry is desperate for new revenue streams, having failed to adapt to a changing market. So they've focused an exorbitant amount of attention on using pre-1972 sound recordings as a wedge against internet platforms. We've covered various stories on this, with many siding with the labels, but a few going the other way.

Needless to say, the law around pre-1972 sound recordings is still a bit of a mess, and arguably a work in progress, and the courts struggle to sort it all out. And that brings us back to the issue of blanket licenses. The always excellent reporter Eriq Gardner has a fantastic story noting that thanks to this mess with pre-1972 sound recordings and what copyright regime they fall under, it's possible that the Rolling Stones may have a legitimate legal gripe against Donald Trump and the Republican convention, while Queen... would not. Under modern copyright law, songs recorded on or after February 15th, 1972 require an ASCAP/BMI/SESAC license for the performance rights. But performance rights for sound recordings was basically a new concept at the time, and it's unclear how they apply to pre-1972 sound recordings.

The issue is not that simple, because nothing around this particular issue is simple. However, based on at least some of the rulings in pre-1972 sound recording copyright cases, federal copyright law doesn't apply at all to those songs (other court opinions have come out otherwise). And thus, there's an argument that the requirements involving blanket licenses for pre-1972 sound recordings may not apply, because the use of the sound recording may require a special public performance license from the copyright holder:
To sum up where we're at: An ASCAP license covers the public performance of songwriting, but not the sound recording. A sound recording authored before 1972 like "You Can't Always Get What You Want" might require special permission to be performed in public. Whomever owns that song — whether it's the Rolling Stones or their record label — could bring a lawsuit asserting misappropriation.
But... it depends. In this case, it depends on the specific state copyright laws in Ohio and how a judge interpreted it. Of course, it's still tremendously unclear because, (as we noted at the time), the big ruling on pre-1972 sound recording copyrights for Flo & Eddie basically upset decades of settled law on whether or not "public performance" rights applied under state copyright law. For decades, it was strongly believed that those state copyright laws applied to things like reproduction and distribution but not public performance rights. It's only through rewriting history (and confusing some judges) that suddenly public performance rights have been shoehorned back into those mostly obsolete state copyright laws.

As Gardner points out, one of the most famous cases involving performance rights actually involves Ohio state law. It's the somewhat infamous Zacchini v. Scripps-Howard involving a question around a TV station broadcasting an "entire" human cannonball act. In a ruling that is still troubling, the Supreme Court turned performance rights into a quasi-copyright. But that ruling could be used if the Rolling Stones tried to argue that the performance violated Ohio state copyright laws on public performances. It would be a nutty case, and a risky one, but it's possible that it might work. I'm guessing the Rolling Stones aren't actually interested in following through on any actual legal threat, but this is yet one more example of just how screwed up copyright law is today.

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  • icon
    Hephaestus (profile), 26 Jul 2016 @ 10:53am

    Does this mean that radio stations, terrestrial and satellite based, could be held financially accountable for each song they played without the owners permission?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Jul 2016 @ 1:46am

      Re:

      IIRC a bunch of internet stations (don't know about terrestrial stations) were playing pre-1972 tracks royalty free for a while, then the music industry threw its toys out of the pram because they weren't being paid and brought a bunch of lawsuits.
      The end result was that it suddenly became too complicated to use pre-1972 recordings (because they're not covered by the post-1972 blanket licenses) so most internet stations just stopped playing them.

      reply to this | link to this | view in chronology ]

  • identicon
    Alwaid, 26 Jul 2016 @ 10:54am

    "It would be a nutty case..."

    But all it takes is one nutty judge to make it happen.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jul 2016 @ 11:05am

    I'm guessing the Rolling Stones aren't actually interested in following through on any actual legal threat,

    More likely their label does not want to sour relationships with politicians for the RIAA, as the have a wish list of laws they want passed. Sorting out the pre-1972 mess is nowhere on that list, and bringing action might get those recording brought under the federal laws.

    reply to this | link to this | view in chronology ]

  • identicon
    Sunhawk, 26 Jul 2016 @ 11:13am

    On the plus side, such a high-profile case *would* probably force a clarification of the mess that is copyright for works from that era...

    reply to this | link to this | view in chronology ]

  • icon
    Richard (profile), 26 Jul 2016 @ 11:32am

    State copyright laws...

    ...are unconstitutional. The copyright clause reserves that right to Congress. That is actually the original purpose of the clause - because before that state copyright laws had created a mess of conflicting rules.
    During the 1780s the shortcomings of local protection for writings and technological innovations in the context of an emerging national market and culture were becoming apparent, at least to some. The efforts of Noah Webster (1758-1843) and others to secure state protection for their writings vividly demonstrated these shortcomings in the instance of copyright.[3] The contest before state legislatures between John Fitch (1743-1798) and James Rumsey (1743-1792) over protection for the steamboat invention and the troubles of other inventors did the same in the patent context.[4] In 1787, in preparation for the constitutional convention, James Madison (1751-1836) identified "the want of uniformity in the laws concerning naturalization & literary property," as one of the weaknesses of the Articles of Confederation's scheme of government.[5] Later, when he defended the Constitution in the Federalist, Madison observed that "[t]he states cannot separately make effectual provision for either" copyright or patent.[6] In 1787 F.W. Geyer observed that "a patent can be of no use unless it is from Congress, and not from them till they are vested with much more authority than they possess at this time."[7] As it happened, when in 1787 a new scheme of government for the nation was created during the constitutional convention in Philadelphia, in the form of the U.S. Constitution, it included a new federal power to legislate in the field of copyright and patent.

    taken from http://www.copyrighthistory.org/cam/tools/request/showRecord?id=commentary_us_1789

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jul 2016 @ 11:41am

      Re: State copyright laws...

      thank you for that info...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jul 2016 @ 11:53am

      Re: State copyright laws...

      ...are unconstitutional.

      Umm, so? Judges, legislators, prosecutors, cops, etc. love to wipe their asses with the Constitution.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 26 Jul 2016 @ 12:08pm

      Re: State copyright laws...

      Well, to be more complicated, what the consitution reserves did not Include music. Thats why we ended up needing state copyright laws.

      reply to this | link to this | view in chronology ]

      • icon
        Richard (profile), 26 Jul 2016 @ 12:14pm

        Re: Re: State copyright laws...

        I don't think the constitutional clause can be read as excluding music - although the early laws passed by COngress did.

        reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 26 Jul 2016 @ 2:26pm

      Re: State copyright laws...

      State copyright laws...

      ...are unconstitutional.


      Not so. Federal copyright law now preempts nearly all state copyright laws, but they were always deemed acceptable for areas not covered by federal copyright law.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Jul 2016 @ 4:18pm

        Re: Re: State copyright laws...

        …areas not covered by federal copyright law.
        The 1790 Copyright Act explicitly covered maps, charts, and books (“map, chart, book or books”).

        Yet notice that Purcell's Printing Privilege, granted by South Carolina in 1792 explicitly states:
        …the sole right of publishing and vending the map
        Quite obviously, in the years immediately subsequent to the first federal copyright act, the legislators of South Carolina did not believe they were limited in extending protection to subject matter only outside the scope of the federal act.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 Jul 2016 @ 6:44am

          Re: Re: Re: State copyright laws...

          So? States have passed many laws later found to be unconstitutional.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 27 Jul 2016 @ 12:00pm

            Re: Re: Re: Re: State copyright laws...

            States have passed many laws later found to be unconstitutional.
            And so?

            The initial moving burden is always upon the party seeking to show any unconstitutionality in the acts of the legislature. The first presumption is that the South Carolina law is valid and ought to be upheld.

            This is especially true when when the law was enacted by the framing generation, not long after the 1788 ratification of the Constitution.

            If you propose to declare that ratifying generation's original understanding of the document they adopted to be wrong, then what principled basis do you look to? The mere diktat of nine (currently eight) black-robed, unelected politicians, who shall substitute their policy preferences for those of the founders on nothing more than say-so and repute?

            Even if you would desire to replace the tyrannical King George III with the iron rule of an aged committee of nine, then at the very absolute least, it must be your initial, moving burden to point to where the oligarchs of the court have spoken on this issue.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jul 2016 @ 3:51pm

      Re: State copyright laws...

      taken from http://www.copyrighthistory.org…

      Purcell's Printing Privilege, South Carolina (1792), Primary Sources on Copyright (1450-1900)
      Abstract:

      A grant by South Carolina to Joseph Purcell of exclusive publishing and vending rights in a map of the state. The 1792 grant demonstrates the persistence of individual legislative grants even after the legislation of the general state copyright statutes and the creation of the Federal regime.
      Note not only the demonstrated persistence of an individual grant, but also that this 1792 South Carolina grant demonstrates the persistence of a state grant subsequent to the initial 1790 federal copyright act.

      reply to this | link to this | view in chronology ]

  • identicon
    John Cressman, 26 Jul 2016 @ 12:07pm

    Good news

    That's actually good news... if they do go after Trump, he most likely has access to high price lawyers and perhaps we can get a judgement that reverses the previous "performance right" creation act judgement.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 26 Jul 2016 @ 12:17pm

    One confusing point

    I know it is inevitable but . . .

    Will copyright Implode?

    Or will it Explode?

    What is the minimum safe distance when it does?

    reply to this | link to this | view in chronology ]

    • identicon
      DogBreath, 26 Jul 2016 @ 1:33pm

      Re: One confusing point

      Hard to tell at this point.

      It's one of those "when pigs fly" or "hell freezes over" moments. You know it is coming someday, but you'll only know for sure when it actually happens.

      Example: The Rolling Stones - Dramatic Irony - Monty Python

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jul 2016 @ 1:50pm

      Re: One confusing point

      Given the current mess that it is, it will probably do both. Simultaneously.

      And the better question isn't about minimum safe distance, it is how quickly you can build a working interdimensional transport and zip off into the multiverse before this one winks out in a fit of stupidity.

      reply to this | link to this | view in chronology ]

  • icon
    shanen (profile), 26 Jul 2016 @ 12:28pm

    Surfing the rising tide of mass insanity

    Trump's next book should be titled "How to Surf the Rising Tide of Mass Insanity and Win so Big the Country Can't Stand it". It's only natural that American copyright law should be insane, too, and it is only fitting that the Donald jump into that mess, too.

    We have always had madmen among us, but usually they don't rise to positions of great power. It happens, but history usually frowns on them, even when they win as big as Genghis Khan. Our scale of insanity is broken and we need to repeal Godwin's Law before we can even discuss the problems? I bet little Adolf had a GREAT solution to any copyright problems he encountered at his little rallies. Just send a few Brown Shirts to "consult" with the annoying artists and the problems went away. (Anyone know the actual historical details?)

    In some countries the artists can retain some control over the use of their creations, but in America the rules of the game are written by the most cheaply bribed politicians working for the greediest and most sociopathic businessmen. They only love money and their fundamental problem is unsolvable. NO amount of money is enough. Trump is the natural result, no matter how insane the so-called Republican platform has become. He who dies with the most toys is still dead.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jul 2016 @ 12:48pm

      Re: Surfing the rising tide of mass insanity

      We have always had madmen among us, but usually they don't rise to positions of great power. It happens, but history usually frowns on them, even when they win as big as Genghis Khan.

      You failed History! There are tons of madmen in power, and often to they rise to positions of power. Fuck, history fucking LOVES THEM!!!

      The only people that WANT positions of power ARE MADMEN!!!

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 26 Jul 2016 @ 1:10pm

    Breaking: Copyright Law is "Screwed Up", Says Weirdo That Hates Copyright

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jul 2016 @ 1:28pm

      Re:

      Breaking: Old man yells at cloud, fails at trolling.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jul 2016 @ 6:49pm

      Re:

      How does copyright lasting life + 70 incentivize Elvis Presley make more works?

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 26 Jul 2016 @ 8:28pm

        Re: Re:

        Hey, you just watch, any day now Zombie Presley will rise from his grave, hands covered in dirt and clutching a guitar, and immediately start creating masterpieces the likes of which the music world has never heard.

        Sure most of them will be on the topic of the taste of brains and how he could really do with some, but still, utter musical masterpieces, works that would never be created if copyright didn't last decades past the point of death, meaning even post-mortem creators still have incentive to create and/or rise and instigate a zombie apocalypse with stirring music playing to drown out the screams.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jul 2016 @ 2:05pm

    ... :: cough cough ::

    and we are sorry for being so hard on Mr. Oliver and his team.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 26 Jul 2016 @ 2:23pm

    So you need a phD to deal with copyright post-1972 and another phD to deal with pre-1972 copyright. See kids, it's easy to spot copyright when you look at it, it's obvious so Google should have no problem deciding and automagically banning copyrighted content! They have nerds! They have magical algorithms! We don't understand copyright ourselves but it's like magic, wish (and nerd) hard enough and it's a breeze!

    No, seriously, only one of these shills can claim copyright is ok and it's easy to spot with a straight face.

    reply to this | link to this | view in chronology ]

  • icon
    Dave Cortright (profile), 26 Jul 2016 @ 3:01pm

    So use a recording of the song from after 1972

    I'm sure for any popular and recognizable song out there, there are re-recorded versions, re-mastered versions, live versions, or even covers that could be used instead. Perhaps they didn't think to use one of those, but if this whole pre-1972 becomes a legal quagmire, you can bet this strategy will gain traction. Or just use a different song.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 27 Jul 2016 @ 12:41am

      Re: So use a recording of the song from after 1972

      "Or just use a different song"

      That would truly be the fix for this whole mess. It's not just about copyright status, it's the fact that they always seem to pick the worst songs to promote themselves. The copyright issue is a sideshow, usually because the song gets complained about for some reason.

      Don't use something like "Born In The USA", where you're shown to be a moron because you didn't understand the lyrics and thought it was patriotic. Don't use songs from artists who are diametrically opposed to your platform and will attack you for using it. Use a song with lyrics that mean what you think they mean, from an artist who will promote you positively.

      Of course, most of these politicians don't seem to pay any attention to such things, so this story will repeat ad nauseum.

      reply to this | link to this | view in chronology ]

  • identicon
    Skeeter, 26 Jul 2016 @ 3:27pm

    Quite Confusing - Care to Explain?

    Ok, the Article Writer says that pre-1972 recordings are on a 'state license' basis, but if you play 'Paint it Black' (by the Stones circa 1966) in a radio station from an old cassette, you can do this. Whether you are in LA, or in Podunk, Virgina, you can play this song. You do NOT need to apply for 'original artist' permission before you play this song (if you do, there are a LOT of 'oldies' stations that were, and are, in violation). You simply keep your logs for playtime, and remit them with air fees each period (day, week, month, whatever). You don't ask permission, you don't apply to play prior-to.

    So, if this is the case, then is the Article Writer thus saying that if you want to 'play from catalog', a politician's best bet is to get a Radio Station license? I mean, to my knowledge, NO RADIO STATION was ever banned from playing a 'mainstream song' by the artist (though some raunchy songs were prevented play time by the FCC or general audiences - like most-anything that David Allen Coe ever wrote or performed).

    It does seem like this is the ULTIMATE work-around for those temperamental 'you can't play my song at your function' artists! After all, the politicians WOULD be playing the songs, in theory, for an AUDIENCE, not for his personal gain!

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 26 Jul 2016 @ 10:28pm

      Re: Quite Confusing - Care to Explain?

      Ok, the Article Writer says that pre-1972 recordings are on a 'state license' basis, but if you play 'Paint it Black' (by the Stones circa 1966) in a radio station from an old cassette, you can do this. Whether you are in LA, or in Podunk, Virgina, you can play this song. You do NOT need to apply for 'original artist' permission before you play this song (if you do, there are a LOT of 'oldies' stations that were, and are, in violation). You simply keep your logs for playtime, and remit them with air fees each period (day, week, month, whatever). You don't ask permission, you don't apply to play prior-to.

      Actually, there was just a lawsuit about this, as we wrote about here:

      https://www.techdirt.com/articles/20150911/15033332224/time-to-say-goodbye-to-all-pre-1972-musi c.shtml

      So, if this is the case, then is the Article Writer thus saying that if you want to 'play from catalog', a politician's best bet is to get a Radio Station license? I mean, to my knowledge, NO RADIO STATION was ever banned from playing a 'mainstream song' by the artist (though some raunchy songs were prevented play time by the FCC or general audiences - like most-anything that David Allen Coe ever wrote or performed).

      No. You're confusing a WHOLE BUNCH of different copyright issues here. The law is clear that you don't need a performance license for radio, but it's a specific carve out (and one, as I noted, that some labels started challenging just last year). Radio play is a whole different ball of wax. And there is no "radio station license" that a campaign or venue can block.

      It does seem like this is the ULTIMATE work-around for those temperamental 'you can't play my song at your function' artists! After all, the politicians WOULD be playing the songs, in theory, for an AUDIENCE, not for his personal gain!

      That's not how any of this works. :)

      reply to this | link to this | view in chronology ]

  • icon
    AC720 (profile), 27 Jul 2016 @ 1:24am

    Before or after 1972 depends on exactly when the actual recording they used was originally recorded, and by whom.

    If it was after 1972, OR if a cover band did the performance, then the license applies and it's game over for the band.

    It also depends on WHO actually owns the performance. If the band, like most bands, signed away those rights, then that may have absolutely no say in anything because they don't own it any more.

    Every time a band complains they aren't getting paid for performances or use on streaming services or digital music stores or Youtube, ask them who OWNS the song. That is who gets paid. So many bands don't understand any of this stuff. If they want to get paid, sell shirts at the back of the concerts like everyone else. OR don't sign away your rights. It's simple.

    Yes it is NICE if controversial events ASK permission but they don't have to and it would establish a bad precedent if events suddenly had to begin asking every single artist or rights holder before using their songs. Crap like that is what ASCAP/BMI/SESAC licenses are supposed to effing prevent. The licensing agencies promised to streamline this and make it easy to cut a check to ONE party and know you are covered and and be done with the hassle.

    If THAT is not the case and we are heading into a world where you really do have to chase down millions of individual rights holders, then ASCAP and BMI and SESAC and the other agencies call all go to hell. Thanks for NOTHING! Thanks for promising this would never happen and letting it happen anyway.

    reply to this | link to this | view in chronology ]

  • icon
    jameshogg (profile), 27 Jul 2016 @ 3:47am

    "Misappropriation"... appropriation? Isn't that a social justice warrior thing?

    reply to this | link to this | view in chronology ]

  • identicon
    Yes, I know I'm commenting anonymously, 27 Jul 2016 @ 4:19am

    Sound recordings from PD movies?

    Do the sound recordings of old movies still fall under copyright when the film recordings of the same movies are in the Public Domain?
    That would make a nicely complicated mess.

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 27 Jul 2016 @ 6:48am

      Re: Sound recordings from PD movies?

      Do the sound recordings of old movies still fall under copyright when the film recordings of the same movies are in the Public Domain?
      That would make a nicely complicated mess.


      Yes.

      reply to this | link to this | view in chronology ]

  • identicon
    Sam, 27 Jul 2016 @ 5:21am

    Completely agree to this!

    reply to this | link to this | view in chronology ]

  • icon
    NaBUru38 (profile), 27 Jul 2016 @ 10:31am

    Artists could refuse to sign blanket licenses, and demand approval of each public performance.

    Or they could do a whte list and black list for acceptable abd unacceptable uses.

    Of course, copyright associations would then have to think before collecting fees.

    reply to this | link to this | view in chronology ]


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