Business, the Arts & the Role of the Copyright
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Vanderbilt Journal of Entertainment & Technology Law Volume 6 Issue 1 Issue 1 - Fall 2003 Article 9 2003 Business, the Arts & the Role of the Copyright Act Keith C. Hauprich Follow this and additional works at: https://scholarship.law.vanderbilt.edu/jetlaw Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Keith C. Hauprich, Business, the Arts & the Role of the Copyright Act, 6 Vanderbilt Journal of Entertainment and Technology Law 213 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol6/iss1/9 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. wo recent court decisions examined, seemingly paternalistic intent of the legislative history addressed, and adjudicated parallel issues potentially underlying the 1976 revisions to the Copyright Act,8 determining the scope of rights of legions of the Court ruled in favor of the freelance authors. recording artists and freelance authors. While the The protection of one's copyright interests core of each case centered on the fact that the as secured by the United States Constitution9 cannot agreements between each of the respective litigants exist in a vacuum. Only through legislative did not expressly grant (or reserve) the exercise of amendments and ever-evolving case law can the the particular rights in dispute, the decisions of the intent behind Article I, Section 8, Clause 8' ° be courts have seemingly antithetical results. A review preserved. This article is intended to illustrate the of each court's application of the governing law to evolving nature of the meaning of this clause through the disparate facts of each case presents an a side-by-side review of the two cases set forth interesting illustration of the relationship among above. business, the arts, and the role of the CopyrightAct.' In Greenfield v.Philles Records, Inc.,2 the New York State Court of Appeals relied on "long-settled common-law contract rules"3 to determine the breadth of rights transferred under the terms of a 1963 recording agreement. The court's seemingly cold and sterile application of common law led it to modify a lower court's ruling,4 rendering such lower court's judgment in favor of the recording artists In 1963, the Ronettes, comprised ofVeronica little more than a Pyrrhic victory. Bennett, 2 Estelle Bennett, and NadraTalley,signed a In New York Times Co., Inc. v. Tasini, the five-year recording agreement with producer and Supreme Court of the United States considered the composer, Phil Spector. In exchange for a one-time merits of the assertion that section 201 of the $15,000 cash advance 3 and the potential of CopyrightAct 6 permits a publisher to reproduce and additional royalties when, and if, revenue generated distribute contributions to a collective work within from the sales of master recordings exceeded such a searchable electronic database.7 Citing the initial cash advance,' 4 Spector's production company, r CS IS I 44k, ts Philles Records, Incorporated, acquired ownership industry standards.23 of the master recordings embodying the Ronettes musical performances. Despite the commercial success of Billboard-charting songs such as "Be My Baby," "Walking in the Rain," and "Do I Love You,"'" In New York Times Co. v. Tasini,25 numerous as well as recording and delivering dozens of freelance authors26 were separately engaged as additional masters to Philles, 6the Ronertes never independent contractors by one or more of the received any royalties. In 1967, the Ronettes publishers of such periodicals as The NewYork Times, disbanded, and shortly thereafter Philles Records New York Newsday, and Sports Illustrated to provide went out of business. However, even when Philles articles for their periodicals.2 7 Each article was Records went out of business, the rights in and to registered with the United States Copyright Office the Ronertes'masters were retained by Philles' owner, in the name of the respective author. Additionally, Phil Spector. Subsequently, with the resurgence of public interest in '60's music and the advent of Wi new recording s technologies, most notably,the compact disc or "CD," Spector began to grant third parties the a right to synchronize the N Ronettes' masters in audio-visual works, such as the use of "Be My Baby" in the 1987 film Dirty Dancing.7 Not stopping with the granting of these synchronization each edition of the periodicals was registered, as a rights, Spector also began to grant third parties the collective work, in the name of the respective right to produce and distribute the Ronettes' masters publisher. for redistribution within the United States. 8 Despite The New York Times, New York Newsday,and this new market for their music, and the resultant Sports Illustrated each had separate agreements with newly found revenue streams, the Ronettes never Lexis/Nexis, the owner and operator of NEXIS, a received any royalties from Philles or Spector. computerized database that stores information such In 1987, the Ronettes brought suit against as periodicals in text-only format.28 These Spector in New York state court asserting that the agreements authorized Lexis/Nexis to copy and sell 1963 recording agreement did not provide the any portion of the articles previously appearing in defendants with the right to license the subject the publishers' periodicals. 9 NEXlS subscribers were masters for synchronization or for domestic able to search for articles within the database using 9 redistribution. The trial court awarded damages a diverse range of criteria such as author, subject, or and interest to the plaintiffs on the theories of breach key terms, as each article was "coded" to facilitate of contract and unjust enrichment.20 On appeal, the computerized retrieval." Such search results would Appellate Division affirmed the lower court's appear as separate, isolated, stories without any decision concluding that the defendant's actions were visible link to the newspaper or magazine in which not authorized by the agreement because such an article originally appeared.3' A subscriber could agreement did not specifically transfer the right to then view, print, or download each article generated issue synchronization licenses or third party by their search.32 2 distribution licenses. ' TheAppellate Division further In December 1993, the freelance authors held that the plaintiffs were entitled to receive 50 filed a copyright infringement action in the United percent of income derived from synchronization and States District Court for the Southern District of third party licensing" consistent with current New York against the publishers of the various periodicals, specifically alleging copyright media and the failure of an existing written infringement." In response to the plaintiffs' suit, the agreement to address such exploitation, the issues defense filed a motion for summary judgment before the courts were framed in substantially asserting the privilege accorded to collective work different manners. As the creation of the masters in copyright holders pursuant to section 201 (c) of the Philles pre-dated the extension of federal statutory Copyright Act. The District Court granted the copyright protection to master recordings, which defendants' motion for summary judgment, 4 holding did not occur until 1971. 9 the parties' dispute and that the use of the articles within NEXIS was subject its resolution were not governed by the United to a statutory privilege extended to the owners of a States Copyright Act. Rather, the issue before the copyright in a collective work.35 On appeal, the trial Philles court was whether the recording artists' court's decision was reversed, and the use of the transfer of full ownership rights to masters also articles within NEXIS was found to be beyond the conveyed the unconditional right to redistribute the scope of section 201 (c).36 same in any technical format.' However, in Tasini, both the authors' articles and the publishers' 4 periodicals were subject to copyright protection. 1 The issue, therefore, was whether use of an article in a searchable electronic database was subject to In both Philles and Tasini, one of the central the privilege granted to the owner of a collective problems was that the agreements between each of work featuring such article pursuant to section the respective parties, the Ronettes and Philles in 201(c). 42 This privilege allows a publisher to Philles and the authors and the publications in Tasini, reproduce and distribute an article as part of any of did not expressly grant (or reserve) the exercise of three categories of collective works: (i) "the collective the particular rights upon which the plaintiffs' claims work to which the author contributed such work;" and the subsequent litigation were based. Indeed, (ii) "any revision of that collective work;" or (iii) "any 43 the Philles court noted that, although the plaintiffs later collective work in the same series." conceded that the agreement unambiguously granted the defendants unconditional ownership rights to the masters, the plaintiffs then argued that the agreement "does not bestow the right to exploit The Philles court set the parameters of its such masters in new markets or mediums since the decision by noting that if an agreement is,on its face, agreement is silent on those topics."37 In Tasini, the reasonably susceptible to only one meaning, a court authors were engaged pursuant to agreements that is not free to alter the agreement to reflect its did not secure consent for the placement of an personal notions of fairness and equity.44 The court article, by the publisher or any other third party, then stated that the standard for introducing within an electronic database.