Through several of these past columns, we have considered topics involving
copyrights and their importance in music and artistic businesses. Copyright
laws, for the benefit of the creator(s) or author(s) of the work, protect the
creation and distribution of artistic works. Those laws provide the creator
certain exclusive rights in their created work. When another person or entity
violates one or more of those exclusive rights, they are said to be infringing
on the copyrights of the creator.
For a quick review, the Copyright Act gives a creator of an artistic work the
exclusive right to do and/or authorize someone else to do any of the following
acts:
1) To reproduce the copyrighted work in copies or recordings (such as records,
compact discs, audio cassettes or even digital files—like MP3s); 2) To prepare
derivative works based upon the original copyrighted work, such as converting a
poem into song lyrics or a movie; 3) To distribute copies or recordings of the
copyrighted work to the public by sale or other transfer of ownership, like
rental, lease or lending; 4) To perform the copyrighted work publicly, if it is
a literary, musical, dramatic or choreographed work, motion pictures, or a
combination of these audiovisual works; 5) To exhibit the copyrighted work
publicly, if it is literary, musical, dramatic, pictorial, graphic, or
sculptural works, including the individual images of a motion picture and other
audiovisual works; and 6) In the case of sound recordings, to perform the work
publicly by means of a digital audio transmission.
OK, so infringement occurs when someone other than original creator, without his
or her consent, exercises one or more of those exclusive rights. Let's use a
real-life, present day example to illustrate this concept: Napster. All the
recent fuss about Napster was related to copyright infringement concerns. If
the members of Metallica wrote a song, they were entitled to those exclusive
rights in that song. They controlled (along with their record label) the
exclusive rights to make copies of those songs, and to determine how to
distribute those copies. Along comes a smart, nineteen-year-old college dropout
(Shawn Fanning) who writes a software program (Napster) that allows other people
to make copies of the protected Metallica song, and distribute it any which way
and time the Napster users want to. So, when Joe Blow goes out on the Internet
and grabs a copy of said Metallica song from someone else's computer, and makes
a copy of that song on his computer, Joe Blow just infringed on Metallica's
copyrights. Big deal? Music should be free? Not so says Metallica, who is in
the business of selling its creations (songs) through authorized copies (CDs and
MP3s they authorize) and the performance of those songs (radio, concerts, etc.).
If unauthorized free copies were easy to come by, who would pay Metallica for a
"legit" copy of their song, sold through normal channels? You get the picture.
Let's turn now to how copyright infringement is proven, in a court of law.
There are only two significant elements that a copyright owner has to prove in
an infringement claim: ownership and copying. Let's explore that deeper. The
first element to prove is that you own the copyrights in the original work. In
our example above, Metallica has to prove that its members were the original
creators of the song in dispute. This can be done in a variety of ways.
Witnesses can testify that they were present when the song was created, and when
that occurred. The writers certainly would be key to that inquiry. A better
way to prove ownership in a copyrighted work is to produce documentary evidence
that the song is registered with the Library of Congress in the name of the
original author(s). This is the preferred method of proving ownership, and it
is deemed "prima facie" evidence, or presumed true "on its face". Once
ownership is established, the other element, copying, must be proved. This is
where most of the infringement claims are challenged. As you can imagine,
copying is rarely proven by the infringer saying, "Yep, you got me, I copied
it". Rather, the original author usually shows that the infringer had the
opportunity to copy because he had access to the original song (i.e. the song
was published to the public—in stores and/or on the internet). Then, the proof
must establish that the infringing song is substantially similar to the original
song. This is where subjective ears might hear things differently. One
reasonable person could disagree with another about whether the two songs are
"substantially similar" under the legal definition of that phrase. Finally, an
infringement claim must prove some measure of damages to the infringed upon
author or creator of the original work. This can most easily be done through
statutorily presumed dollar amounts, but only if the original work has been
registered with the Library of Congress. In other cases, the measure of damages
is determined by the money earned by sales and distribution of the infringing
work, or losses incurred by the original author, due to the infringing work
diluting the marketplace from the "legit" work. This too can be a long,
complicated process. However, usually there is much money at stake in these
claims.
Now, hopefully, you understand why Metallica has made so much noise!
