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Discussion of Copyright
and Music Law
AdU, thinkLA
April 21, 2015
© 2015 Reed Smith LLP

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Kathyleen A. O'Brien, Partner
Reed Smith LLP
Tel.: +1 310 734 5268 (Century City, CA)
Email: kobrien@reedsmith.com
Dominique Pietz, Senior Associate
Reed Smith LLP
Tel.: +1 310 734 5215 (Century City, CA)
Email: dpietz@reedsmith.com
Todd Mumford, Associate
Reed Smith LLP
Tel.: +1 310 734 5260 (Century City, CA)
Email: tmumford@reedsmith.com

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Copyright
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• U.S. copyright law is set out in the Copyright Act of
1976
• Protects “original works of authorship”
• The work is protected as soon as “fixed in any
tangible medium of expression”
• Unless a work is reduced to tangible form it cannot be
regarded as a “writing” within the meaning of The
United States Constitution authorizing federal
copyright legislation (Article I, Section 8, Clause 8)
• Limited duration – the general rule: Author’s Life + 70
years
BASICS
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Threshold Question
Is my awesome idea for a kid-centric cookbook
protected by copyright?
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Expression versus Idea
(or “How does this work again?”)
• Copyright protects expression, not ideas
v.
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Idea v. Expression
• Cookbook “Sneaky Chef” (by Melissa Lapine) v. “Deceptively
Delicious” (by Jessica Seinfeld)
• Ideas – not protectable
- Cookbook with recipes to help get their kids to eat
vegetables
- Hide vegetables from your kids by mixing them in with foods
they like (e.g., chicken nuggets that use broccoli puree in
the recipe)
• Tangible Expression - protectable
- The actual recipes
- Pictures
- Written descriptions of foods 7

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Idea v. Expression
• Lapine accused Seinfeld of copyright infringement
• Court found for Seinfeld, stating that “Stockpiling
vegetable purees for covert use in children's food
is an idea that cannot be copyrighted“
• The similar elements of the two cookbooks were
unprotectable because they naturally flowed from
the general premise
• This is akin to Scène à faire (the “scene that must be done” – the
idea that certain characters, places, story elements, actions, etc.
are typical to a particular style or genre and, as such, are not
capable of copyright protection. E.g., a horror movie with zombies
as the main antagonist and all of the elements you would expect to
see in that movie (flesh eating, slow walking, groaning, blood
spewing, etc.
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Pitching an Idea
• What if I tell a client my ideas during a pitch?
• What rights do I have to protect those ideas?
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Idea Submission Claims
• You can’t stop someone from using a mere idea under
copyright – alternate legal theories must be relied on
• Property-based Theories (e.g., plagiarism,
misappropriation)
• Contract Law Theories (e.g., breach of express contract,
breach of implied-in-fact contract)
• Miscellaneous Tort Theories (e.g., breach of confidence,
unfair competition)
• You can stop someone from using your idea if you have
copyright protection
• Your idea must be “an original work of authorship, fixed in a
tangible medium of expression”
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• Original Expression (protected work)
• Access by the alleged infringer
• Substantial Similarity of the works
Proving Copyright Infringement - Essential Elements
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Affirmative Defenses to Infringement
• Fair Use (factors: purpose and character of your use
[transformative?]; the nature of the copyrighted work; the amount and
substantiality of the portion taken, and the effect of the use upon the
potential market)
• Parody/Satire (a Fair Use defense)
• Difference between “parody” and “satire”? – imitation for comic
effect vs. arousing reader disapproval by holding subject (a vice or
faulty belief) up to ridicule
• Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) (“Pretty
Woman” Case) – Defendant’s prevailed in an unauthorized
sampling case on a theory that the 2 Live Crew song was a parody
of the original Roy Orbison song
• Independent Creation
• Laches (but this has recently been called into question by Petrella v.
Metro-Goldwyn-Mayer, the “Raging Bull” case (134 S.Ct. 1962 (2014)) 12

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Fair Use - Patrick Cariou v. Richard Prince
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“Yes Rasta” (Cariou) “Graduation” (Prince)

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Patrick Cariou v. Richard Prince
• Prince appropriated images from Cariou’s photography book titled Yes
Rasta “for a series of dystopian works called ‘Canal Zone,’ which were
exhibited at the Gagosian Gallery in 2008 and generated more than $10
million in sales.” (NY Times)
• Cariou sued Prince for copyright infringement – Prince claimed his use of
Cariou’s images was a fair use and thus allowed under copyright law
• The trial court found in favor of Cariou, holding that for fair use to apply the
new work must “in some way comment on, relate to the historical context of,
or critically refer back to the original work”
• Prince appealed and prevailed with the appeals court finding that “the law
does not require that a secondary use comment on the original artist or
work, or popular culture,” but only that a reasonable observer find the work
to be transformative – however, there is still some question as to whether
some of Prince’s works in the series will be deemed a fair use
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Fair Use - North Jersey Media Group v. Fox News
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North Jersey Media Group v. Fox News
• North Jersey Media Group publishes the NJ-based newspapers The Record and
Herald News and is the copyright owner of the 9/11 photo, which was taken by one
of NJMG’s staff photographers (work-made-for-hire!)
• Fox used the 9/11 photo, juxtaposed against the iconic Raising the Flag on Iwo Jima
photograph, on a Facebook page in connection with its promotion of its Justice with
Judge Jeanine program (Fox also included a hashtag across the combined image -
#neverforget)
• North Jersey sued Fox for copyright infringement, to which Fox asserted a fair use
defense and moved for summary judgment
• The trial court denied the motion, finding that Fox’s use of a low-res version of the
9/11 photo next to the Iwo Jima photo along with the hashtag was not sufficiently
transformative as a matter of law and that there was not apparent commentary on
the events (they were using the photo to promote one of its programs)
• North Jersey also asserted that allowing a defense of fair use in this case would
have a detrimental effect on the market for the licensing of photographs (North
Jersey has earned more than $1,000,000 in licensing revenue from the 9/11 photo)
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Catcher in the Rye v. 60 Years Later: Through the Rye
• Swedish author writes a book based on character Holden Caulfield from “Catcher in
the Rye” and includes phrase “Through the Rye” in title (premise: “Mr. C” (Holden
Caulfield) is now an old man and goes to me JD Salinger in person)
• Salinger sued for copyright infringement claiming the new book was a derivative
work of his original protected work
• Author’s lawyers argued, among other things, that the new work, titled “60 Years
Later: Coming Through the Rye,” did not violate copyright because it amounted to a
critical parody that had the effect of transforming the original work
• Salinger prevailed at trial; defendant’s appeal successful in 2nd Circuit
• Parties eventually settled
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Copyright Notice
• Copyright Notice (e.g., © 2015 Reed Smith
LLP)
• Effect of lack of notice:
- Innocent Infringement defense
- Statutory Damages
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Music
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Music is an integral part, and often the
centerpiece, of many forms of entertainment
content, including advertisements, motion
pictures, TV programs and videogames.
As a content creator, it is imperative to
understand the music rights landscape.
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Music Rights Primer
• The music rights landscape is … not always easy to navigate
• There are multiple rights involved and many rights holders
• Industry custom and practice play a big part in how deals are
done and the terms that one should expect
• Let’s break it down…
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Copyright Protection for Music
• Copyright protection for music is found in two
ways:
1. Musical Work: This is the “song” and is
generally referred to as the “musical
composition”
• It’s the notes, lyrics and melody that make up the
song
2. Sound Recording: This is the recorded version
of a song
• When the public buys a CD or downloads an album
from their favorite band, that CD or album is really a
collection of individual sound recordings (or copies of
such recordings)
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Recording vs. Composition
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Song Sound Recording by Musical Composition by
Manic Monday The Bangles Prince
Blame It On The Rain Milli Vanilli (or so they said) Diane Warren
R.E.S.P.E.C.T. Aretha Franklin
(Otis Redding)
Otis Redding
Single Ladies Beyoncé Beyoncé Knowles, Thaddis Harrell,
Terrius Nash, Christopher Stewart

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Exclusive Rights (U.S. Copyright Act)
• In a Composition:
1. Reproduce
2. Distribute copies
3. Publicly perform
4. Publicly display
5. Prepare derivative
works
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• In a Sound Recording
(fixed after 02/15/72):
• Reproduce
(in phonorecords)
• Distribute copies
• Publicly perform
(digital only)
• Prepare derivative
works

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Music Rights
• Commissioning a new piece of music
- Work-Made-for-Hire Agreement – the party that hires the
songwriter or the performer is the “author” and therefore
owner of the work for purposes of copyright
- Can always commission a cover recoding of a popular
musical composition, but beware of soundalikes
• Acquiring ownership of an existing piece of music
- Assignment from original author or current rights holder
(e.g., a producer, the songwriter’s estate or a record label)
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Music Licensing - Preliminary Considerations
• A party that wishes to use a piece of exiting music must
determine:
The rights necessary for the intended use
Whether a license is needed
If so, the type of license and scope of rights needed
Who controls the necessary rights
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Requesting a License
Music licenses generally boil down to the following types and
cover most of the exclusive rights in a music copyright:
1. Synchronization/Master Use: a license to “synch” music
with visual images (e.g., a TV program, video game,
online mobile app).
• A license is needed for each of the musical composition and sound
recording and the rights granted in such licenses usually include a
combination of reproduction, distribution, performance and
derivation rights.
2. Public Performance: a license to perform or transmit to
the public.
3. Mechanical: a license to reproduce and make copies of
a musical composition in phonorecords (physical and
digital).
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Synch and Master Use Licenses
• Grants to the licensee the right to “synchronize” a
musical composition (a “synch license”) or sound
recording (a “master use license”) with visual
images - e.g., films, television programs, video
games, online/mobile apps, commercials, music
videos, etc.
• Synch license – obtained from the publisher(s) of
the composition (there can be one or multiple
publishers of a single composition)
• Master Use license – generally obtained from a
record label (usually just one owner of a particular
sound recording)
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Synch and Master Use Licenses (continued)
• Scope: Both the synch and master use license will include a
grant of rights allowing the licensee (producer of the
audiovisual work) to synchronize the composition/master in the
audiovisual work and then exploit that audiovisual work in
certain media, certain territories and for a certain period of
time.
• Considerations for Licensee:
 Fees are based on various factors (e.g. popularity of
song, territory, term, type of A/V work).
 As the licensee, it is imperative to make sure you obtain
all of the rights you need from the licensor to exploit the
work you are creating and to obtain, if possible,
representations and warranties that the licensor has the
ability to grant the rights included in the license…but,
 A synch or master use license will rarely grant public
performance rights.
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Public Performance Rights
Grants to the licensee the right to perform a work “publicly” or to transmit
or communicate a performance of the work “publicly” by any device or
process.
• Musical Compositions: Includes exclusive right to publicly perform
• Sound Recordings: No general performance right; certain digital
audio performances only
Licensor:
• Musical Compositions: industry custom has been that this right is
administered by “Performing Rights Societies” or “PROs”
• Sound Recordings:
• SoundExchange – administers and collects royalties for non-interactive
streaming services (e.g. Pandora) exercising their statutory rights.
• All other digital audio transmissions – the owner of the sound recording
retains and controls this right and licenses directly, including to interactive
streaming services (e.g. Spotify).
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Public Performance Rights through PROs
• Public performance rights are mainly licensed by Performing
Rights Organizations (“PROs”)
• PROs license “small performance” rights, set rates and collect
royalties – e.g., jukeboxes, TV, internet, stadiums, arenas and
other places where music is publicly performed
• Licensing is generally through “blanket licenses” covering the
entire repertoire of a particular PRO with the entity that
disseminates the content – e.g., TV stations, music streaming
services, websites, radio stations, bars, stadiums, etc.
• In Europe, PROs may also license mechanical and other
Europe-specific reproduction rights depending on the territory
and the PRO
• Many PROs have reciprocity agreements that allow them to
license the works of foreign writers/publishers
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PROs
• Currently, there are three main Performing Rights
Organizations (PROs) in the U.S.:
ASCAP (American Society of Composers, Authors and
Publishers)
BMI (Broadcast Music, Inc.)
SESAC (Society of European Stage Authors and
Composers)
o NOTE: Global Music Rights – newly created entity set
up to administer public performance rights
• Many PROs throughout Europe and other territories of the
world: PRS, PRS UK, GEMA, CELAS, ARESA, STIM,
Kobalt (kstar), KODA, NCB, CSI, CMRRA, SODRAC,
SOCAN, TOMO, SACEM, ZAiKS, AKM, SUISA, MESAM,
MSG, COMPASS, SAMRO, PAECOL 34

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Public Performance: Download v. Streaming
• Download: NOT a performance
• Downloads are transmitted at one point in time and
performed at another.
• Streaming: IS a performance
• Because, in a streaming transmission, like a television or
radio broadcast, the song is played — and, thus, perceived
— simultaneously with the transmission
• See United States v. Am. Soc’y of Composers, Authors, and
Publishers, 627 F.3d 64 (2d Cir. 2010)
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Mechanical License
• Grants the right to reproduce and distribute to the public a
copyrighted musical composition on phonorecords and
digital phonorecord deliveries (DPDs) – does not apply to
audiovisual works
o Phonorecord: includes audiotapes and CDs, but
excludes physical formats for audiovisual works (e.g.
DVDs)
o DPD: Each individual delivery of a phonorecord by
digital transmission of a sound recording, sufficiently
permanent or stable (includes permanent and tethered
or conditional downloads).
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Mechanical License (continued)
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There are two types of mechanical licenses -
1. Negotiated: The terms are freely negotiated by the licensor and
licensee – the terms usually fall in line with the statutory rates but are
sometimes less.
2. Compulsory Statutory License:
a. Only available once phonorecords of a nondramatic musical work
have been distributed to the public in the United States under the
authority of the copyright owner (Section 115 of the Copyright Act.
b. Subject to certain notice and accounting requirements; rates are
set by the Copyright Royalty Board (CRB) and are based on
playing time (currently $.091 for songs of 5 minutes or less in
duration).
c. No compulsory license exists for audiovisual works.

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Union Considerations When Using Music
• Unions: SAG-AFTRA and AFM
• Historically not nearly as strong as the actor’s unions (or any
other of the entertainment industry unions), but merger of SAG
and AFTRA may lead to better enforcement and collection
• Key issues:
- Session Fees (for initial recording of song)
- New Use Fees (for use other than what song was initially
created for)
- Re-Use Fees (if initial use was limited by agreement)
- “Conversion” if an existing song originally recorded for a
sound recording (audio record) is then used for another
purpose, e.g., in a TV spot 38