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Michigan IT Lawyer a Publication of the State Bar of Michigan Information Technology Law Section State Bar of Michigan Michigan IT Lawyer A Publication of the State Bar of Michigan Information Technology Law Section http://www.michbar.org/it Table of Contents July 2012 . Vol. 29, Issue 4 Bits and Bytes from the Chair . Bits and Bytes from the Chair ................1 By Charlie Bieneman, Rader, Fishman & Grauer PLLC . Digital Sampling of Music and Copyrights: Is it Infringement, Fair Use, or Should We Just Flip a Coin? ..............2 Our section is typically quiet during the summer months, but . Mission Statement Information Technology Law Section, State Bar of that does not mean we don’t have a lot going on. In fact, planning Michigan ...............................................16 is well underway for our Fifth Annual IT Law Seminar, to be held . Recent Developments in Information Thursday, September 27, 2012, at the St. John’s Inn in Plymouth. Technology Law ...................................17 We have a great lineup of topics: . 2013 Edward F. Langs Writing Award ..19 • IT Caselaw Update . Meet a Section Member: Susanna Brennan .................................20 • Practical Approaches to Privacy Contracting . Publicly Available Websites for • Expecting the Unexpected in IT Implementations and What IT Lawyers ............................................21 Customer’s Counsel Can Do About It • Protecting Software Trade Secrets • Social Media in the Workplace Michigan IT Lawyer is published every other • Software Patents month. Previously published issues of the Michigan IT Lawyer, and its predecessor the Michigan Computer Lawyer, are available at I hope to see everyone there! And in the meantime, if you have http://www.michbar.org/it/newsletters.cfm. If any thoughts about the section, I’m always happy to hear from you. you have an article you would like considered for publication, send a copy to: Michael Gallo 2700 Renshaw Drive Charlie Bieneman Troy, Michigan 48085 e-mail: [email protected] 2011-2012 IT Law Section Chair Michigan IT Lawyer The following article was previously published in December 2011 in the Boston College Intellectual Property & Technology 2011-2012 Forum, http://www.bciptf.org, and is reprinted here by Information Technology Section Council permission of the authors. Chairperson . Charles A. Bieneman Chairperson-elect . Karl A. Hochkammer Secretary . Ronald S. Nixon Treasurer . Michael Gallo Digital Sampling of Music and COUNCIL MEMBERS Charles A. Bieneman Copyrights: Is it Infringement, Fair Susanna C. Brennan William Cosnowski, Jr. Use, or Should We Just Flip a Coin? Nilay Sharad Davé Jeanne M. Dunk Michael Gallo By Christopher C. Collie* & Eric D. Gorman** Brian A. Hall Daniel J. Henry Karl A. Hochkammer William J. Lamping, Jr. “Thou shalt not steal.”1 Tatiana Melnik Jeanne M. Moloney Ronald S. Nixon Carla M. Perrota Introduction Vincent I. Polley Claudia Rast D.J. Girl Talk is one of the budding artists Isaac T. Slutsky in the music industry today, and his instrument David R. Syrowik is a laptop.2 D.J. Girl Talk (hereinafter also Immediate Past Chair referred to as “Girl Talk”), whose real name is Mark G. Malven Gregg Gillis, “samples,” or uses short clips, Ex-Officio from other artists’ songs to create popular Claudia V. Babiarz dance music.3 Girl Talk’s songs combine old, Christopher C. Eric D. Gorman Jeremy D. Bisdorf contemporary, and downright odd genres Collie Thomas Costello, Jr. of music. Within these different genres, he Kathy H. Damian 4 Christopher J. Falkowski samples from artists such as Clipse, Kelly Clarkson, and Hot Chip. At his live Robert A. Feldman concerts, D.J. Girl Talk leads massive crowds who dance non-stop to his songs.5 Sandra Jo Franklin Girl Talk’s songs fill the concert with energy and sometimes end with Girl Talk Mitchell A. Goodkin 6 William H. Horton shirtless, or even stripped down to his boxers. While Girl Talk has had musical Lawrence R. Jordan success creating songs from samples of other songs, some artists and produc- Charles P. Kaltenbach ers believe that D.J. Girl Talk is using these samples illegally.7 This has caused Michael S. Khoury J. Michael Kinney iTunes and a CD distributor to stop carrying Girl Talk’s album, “Night Ripper,” Edward F. Langs* due to growing legal concerns.8 Thomas L. Lockhart Janet L. Neary United States copyright law generally requires that artists obtain permission Kimberly A. Paulson from the copyright owner before using a work.9 Still, D.J. Girl Talk believes that Paul J. Raine* his works are valid under the “fair use” exception of copyright law.10 Girl Talk be- Jeffrey G. Raphelson Frederick E. Schuchman III lieves that the Fair Use Doctrine applies because his samples are too brief and Steven L. Schwartz his music sounds so different from the songs he samples that it is unlikely to af- Carol R. Shepard fect the sales of those songs.11 Due to little statutory guidance and inconsistent David Sinclair* Anthony A. Targan court rulings in the 1990s and 2000s sampling cases, there is still a great deal of Stephen L. Tupper confusion as to what constitutes valid or invalid “sampling” practices.12 This has Commissioner Liaison led many commentators to suggest ways of solving this dilemma.13 Richard J. Siriani This article addresses whether digital sampling is copyright infringement Newsletter Editor and concludes that copyright law should be amended to fix the uncertainty sur- Michael Gallo rounding copyright as it relates to digital sampling. Part I provides a background *denotes deceased member on digital sampling. Part II analyzes whether D.J. Girl Talk’s musical works fall 2 . Vol. 29, Issue 4 . July 2012 Michigan IT Lawyer under the current exceptions to copyright infringement. Part Furthermore, copyright owners of musical scores have III proposes a change to copyright legislation that gives the typically had “more rights than sound recordings, including music industry more guidance. Part IV concludes that D.J. the rights of reproduction, preparation of derivative works, Girl Talk’s compositions fall under the exceptions to copyright public display, and performance.”27 Many musicians and pro- infringement, but that adoption of the proposed legislation ducers have been advised to receive permission for the musi- will be more in line with the goals and fairness sought for cal score and sound recording.28 Sound recordings, however, copyright law. began to receive more protection in 1972.29 I. Background C. Copyright Infringement Part I of this article begins by briefly discussing the pur- To prove copyright infringement, the owners must show pose of copyright law and providing more intimate knowl- (1) ownership; (2) unauthorized copying; and (3) unlawful 30 edge of copyright law for music. Section A covers the bases appropriation. Ownership is the first element that copyright 31 of copyright protection. Section B explores the different owners must demonstrate. The initial copyright is granted 32 types of copyrights in music. Section C discusses copyright to the author(s) of the original work. Often, the copyrights to infringement. Section D introduces the fair use exception to the sound recordings are bargained away to music compa- 33 infringement and when it applies. Lastly, Section E reviews nies as part of the artist’s recording contract. Therefore, the 34 some important digital sampling cases to date. music companies are typically the owners of the copyright. The second element needed to prove infringement is 35 A. Copyright Protection unauthorized copying. Copying can be illustrated by either 36 The United States Constitution grants copyright pro- direct or indirect proof. Direct proof is evidenced by the de- tection.14 The Constitution gives Congress the power “[t]o fendant admitting to copying the work or through eye-witness 37 promote the progress of science and useful arts, by securing testimony that the defendant copied the work. Direct admis- for limited time to authors and inventors the exclusive right sion is rare in copyright infringement cases, so the plaintiff 38 to their respective writings and discoveries.”15 The purpose must usually show indirect proof instead. Indirect proof of of copyright law is “to secure ‘the general benefits derived copying is shown through circumstantial evidence that the 39 by the public from the labors of authors,’” and to motivate defendant had access to the plaintiff’s work. Access to the authors and inventors by giving them a reward.16 The Copy- plaintiff’s work may involve proving that the defendant viewed right Act of 1790 was the first federal copyright act instituted the work, had knowledge of the work, or that the work was 40 in the United States.17 The Copyright Act of 1976 is the most widely disseminated. recent enactment by Congress.18 The Copyright Act gives le- The third and last element of copyright infringement is un- gal protection to the authors of original works that are “fixed lawful appropriation. Unlawful appropriation lies at the heart in any tangible medium of expression.”19 Furthermore, the of proving copyright infringement.41 In order to prove unlawful Copyright Act preempts state law and any conflicting state appropriation, the plaintiff must demonstrate that the use of law is considered invalid.20 his work by the defendant is substantial and material.42 If it is found that the copying is substantial and material, the defen- 43 B. Copyrights in Music dant’s work may infringe. There are two types of music copyrights: (1) musi- In order to determine whether there is substantial and cal works and (2) sound recordings.21 Musical works, also material use of the plaintiff’s work, courts typically utilize the referred to as musical scores, make up the written score for “substantial similarity” standard.44 Under substantial simi- the musical composition,22 while “‘[s]ound recordings are larity, courts determine whether the defendant’s use of the works that result from the fixation of a series of musical, plaintiff’s original work is reasonably recognizable to a lay spoken, or other sounds .
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