Copyright Office and the Music Modernization Act Audit Notice: If You’re a Musician, You Need to Know….

This email arrived today, January 24, 2024 from the US Copyright Office. I copy and paste it here verbatim.

“Today, the U.S. Copyright Office announces a new webpage devoted to audit notices under the Music Modernization Act (MMA). The new webpage provides instructions on how to submit MMA audit notices to the Office and will host copies of audit notices received by the Office. 

“Under the MMA, the mechanical licensing collective (MLC) may periodically audit digital music providers (DMPs) operating under the section 115 blanket license to verify the accuracy of royalty payments made by DMPs to the MLC. Likewise, musical work copyright owners may periodically audit the MLC to verify the accuracy of royalty payments made by the MLC to copyright owners. To commence an audit, a notice of intent to conduct an audit must be filed with the Copyright Office and delivered to the party(ies) being audited. The Office must then cause notice to be published in the Federal Register within forty-five days.”

Twist to Claiming Copyright Protection

Valancourt Books, LLC v. Perlmutter et al.

Well … it seems US District Judge Amy Berman Jackson, sitting in the US District Court for the District of Columbia (that would be in Washington DC) has added a new twist to the claiming of copyright protection. You have to register the work with the US Copyright Office to include notice of copyright protection in the work.

This could have … ahem … interesting fallout for things like websites and blogs.

You can read the opinion here.

Brief Background

Valencourt Books, LLC (“Valencourt”) is a very small (as in home-based), independent publisher that publishes rare, neglected, or out-of-print fictional works on demand. The works that Valencourt prints bear a copyright notice, but Valencourt does not register any copyright in the works it publishes with the US Copyright Office. Valencourt put copyright notice in its published books, but did not register that copyright and did not provide the Copyright Office with its requisite two copies. Under such circumstances, the Copyright Office takes the view that the claimant is claiming the protection of federal law without complying with the requirements of federal law. They can send out a demand letter and issue fines ranging from $250 per unregistered-but-claimed work to $2500 per unregistered-but-claimed work.

The Copyright Office issued its demand.

Valencourt replied that the requirement for copies runs afoul of the Takings Clause of the Fifth Amendment to the US Constitution and that no, it would not provide the requisite two copies to the Copyright Office because doing so was an undue burden on a very small business.

The Copyright Office, pre-litigation, countered this complaint by offering to accept electronic copies of the works, even though the works had been published (ordinarily, the Copyright Office requires printed copies to be provided for published works). However, Valencourt rejected the offer because they didn’t want any special treatment from the Copyright Office … the settlement proposed by the Copyright Office is an exception to the requirement and does not change the Office’s requirement for physical copies from other small publishers … and because the works were not already accessible in electronic format and getting them into that format would be an undue burden on Valencourt’s owners and employees.

Valencourt sued the US Copyright Office (Shira Perlmutter is the Register of Copyrights) claiming that the deposit requirement violates the First and Fifth Amendments to the Constitution. The Copyright Office countered with the claim that Valencourt was claiming copyright protection without complying with the requirements for that protection.

Valencourt alleges that the Copyright Office’s deposit requirement is an unconstitutional taking of private property because “…the government is demanding copies of publishers’ works for its own use without providing compensation to the affected parties.” Compl ¶ 1; Pl.’ Mom. at 18. Judge Jackson didn’t buy it. Citing Ruckelshaus v. Monsanto Co., 467 US 986, 1007 (1984), she explains that SCOTUS precedent establishes that “…a statute that confers a “benefit” [like copyright protection – comment added] on a citizen may condition the receipt of that benefit on the submission of private property in exchange without running afoul of the Takings Clause.” Slip Op. at 11. So … the Copyright Office can indeed “take” the two best copies of the work to be copyrighted in exchange for copyright protection without violating the Takings Clause. This is no surprise; deposits of copyrighted materials have been required since the first US copyright law came into existence in the 1790s.

Deposit Requirement and Free Speech

This section of the case contains no surprises. The deposit requirement is not subject to strict scrutiny because it is entirely … ENTIRELY … content-neutral. The deposit requirement does not attempt to limit speech; the requirement is the same for any work being registered regardless of the content of that work. Also, the burden imposed upon the copyright claimant by the deposit requirement is hardly unreasonable in relation to the benefit the requirement confers on the public.

Copyright, Registration, and Notice

The interesting part of the case is the issue of the copyright notice in publications that are not registered with the Office. The Court hides this in its discussion of the Takings Clause, but it’s important.

Valencourt includes copyright notice in its books and thus (1) informs the public that the works are copyrighted, (2) deters potential infringers, and (3) removes any innocent infringement defense. The claiming of copyright is just as voluntary as is the registration for copyright, and, since the enforcement of copyright protection is limited to those who have registered their works (see 17 USC 411), copyright in unregistered works cannot be enforced. Because plaintiff does not volunteer to register copyright in the works and certainly does not volunteer to send copies of the works to the Copyright Office, Plaintiff does not get to claim, by including notice of copyright in the published works, the benefits conferred by its notice of copyright.

This is huge. Just think of all those websites and blogs out there that have a copyright notice on them that are unregistered. Suddenly, it’s clear that the existence of the notice can trigger the demand letter from the Copyright Office and the subsequent fines.

Wow.

The US Copyright Office Can Be Reasonable…

The US Copyright Office spent several days … 12-17 August 2021 … updating their servers. During that time no one could get onto the eCO servers to register a new copyright or to maintain a currently registered copyright.

They’re doing something about that. The Register has issued an accommodation for anyone who tried to access the eCO system during the outage. Click here for more information on how to access the accommodation.

Upcoming Copyright Office Event on 2/17/2021 to Honor RBG

This should be well worth attending. Sadly, I will miss the live stream, but I look forward to the YouTube event.

From the Copyright Office’s blog post:

“To celebrate Justice Ginsburg’s impact on copyright, join the Copyright Office on February 17 from 1:00 to 2:30 p.m. eastern time for “Copyright Office Presents: The Enduring Legacy of Justice Ruth Bader Ginsburg.” This virtual event will feature a conversation between Paul Goldstein of Stanford Law School and Jane Ginsburg of Columbia Law School on Justice Ginsburg’s jurisprudence. Cohen, West, and Wang will also discuss how Justice Ginsburg inspired their own copyright-protected works. While the advanced registration to attend the Zoom event has closed, the Copyright Office will also live stream the event on its YouTube Channel. No registration is required to view the live stream. If you miss the event, the video will later be available on the Office’s YouTube Channel.”

A Touch of the Public Domain

On 1 January 2021, the works that were published and protected by copyright in 1925 entered the public domain. These works are now free for the public to use as the public wishes to use them.

The US Copyright Office’s blog says, “The critical role of the public domain in human culture is easily illustrated by the fact that so many new works are based on public domain works, such as the works of William Shakespeare, Jane Austen, Bram Stoker, Louisa May Alcott, the Brontë sisters, and Sir Arthur Conan Doyle.”

Copyright is about protecting not an idea (we are not, after all, the Thought Police), but the EXPRESSION of an idea. For example, there are piles of ways for star-crossed lovers to get themselves into trouble; “Romeo and Juliet” expresses one way; “West Side Story” expresses another way. The idea … star-crossed lovers … is the same, but Romeo never sang “Maria … I just met a girl named Maria …” and Maria never told her man “Deny thy father and refuse thy name!” The two expressions of the star-crossed lovers theme are very different.

The public domain Shakespeare work inspires the musical. The musical is protected by copyright to the extent that the work is actually original expression of its authors and not taken from Shakespeare.

Oh, The Places You Shouldn’t Boldly Go!

Dr. Seuss sued Star Trek because Dr. Seuss wrote a book entitled “Oh, The Places You’ll Go!” It’s a popular graduation gift. Star Trek did what they called a “parody” of that book, calling it “Oh, The Places You’ll Boldly Go!” and using Star Trek characters in a Seuss-like literary environment. The drawings evoke Seuss; the text evokes Seuss; certainly the title evokes Seuss. The Spock character’s pointed ears and the uniforms evoke Star Trek.

The US District Court where the trial was held found in favor of Star Trek; the parody was indeed a parody. However, it seems the 9th Circuit, which is the intermediate court between the District Courts and SCOTUS in several western states, disagrees. They held, on review of the evidence, that “Boldly” is not transformative enough for a parody and thus it is infringement, not “fair use.”

I’ve said many times that fair use is the murkiest of all murky areas of law. When is it ok to use others’ work in your own? Well, you can license the use of the original work; getting permission to use the original is the clearest path through the fair-use jungle. Or you can roll the dice and hope the courts agree with you. That’s not always the best option.

To determine fair use, the court weighs four factors, each on a sliding scale:

The purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes

Here, the work is of a commercial nature, definitely written for profit. That leans AWAY from fair use.

The nature of the copyrighted work

Is it fiction or fact? Facts can’t be protected by copyright, fiction is highly protectable. Clearly, this is a work of fiction. That the original work is highly protectable leans AWAY from fair use.

The amount of the portion used in relation to the copyrighted work as a whole

Well, Star Trek clearly did a take-off on the title, and it clearly did a take-off on Theodor Seuss Geisel’s writing and drawing styles. This new work invokes the original. The actual text is not the same, but the tone and feel sure are. That one also leans away from fair use.

Had Star Trek used just the title without the drawings or text in the style of Seuss, that may have been ok; had they used the title and either the writing OR the drawing style, that would have been less likely to be ok. But they did all three. The Star Trek work clearly takes off on the Seuss work. That was not ok.

The effect of the use upon the potential market for or value of the copyrighted work

Seuss’ book is a popular gift for graduations. Lots of high school and college graduates have a dusty copy sitting on their shelves because some aunt gave it to them when the kids collected their diplomas. Now, though, fewer kids have the original sitting on their shelves; its corner on the market has been eroded by the Star Trek version.

Seuss claims the Star Trek work cut into the market for Seuss’ book; in other words, the new work competes rather than complements. Definitely, that leans AWAY from fair use.

Muddy the waters

When that weigh-in is complete, things get really muddled. The court then takes the totality of the circumstances surrounding each of the works and adds in the weight that individual judge chooses to give each of the four factors and determines whether the new work infringes the old.

Basically, a fair use determination can spin on the whim of the federal judiciary. And therein, my friends, lies the silt floating up from the bottom of the basin of fair use jurisprudence.

Seuss-Star Trek Mash-Up Crashes and Burns at Ninth Circuit

Sojourner Truth and Copyright Innovation

Sojourner Truth Portrait
Sojourner Truth

I refer you to the Copyright Office’s blog, on which is an interesting post about Sojourner Truth’s contribution to copyright law.

Interesting stuff! I never knew this about Sojourner Truth. I knew she was a powerhouse in  history, especially black history, I knew she was enslaved as a child and young adult, I knew she was a strong advocate against slavery. I never, ever knew she was an innovator in copyright law.

Privacy and Home Base in COVID-19

So. You’re being a good citizen of the world and sheltering in place. Your employer actually allows you to work from home and you’re accessing your employer’s information over your home-based wi-fi. You have a password on your router, a password on your local computer, your  and you have never seen a neighbor lurking on your internet system.

But now you’re accessing your employer’s sensitive and private intellectual property using your home-based internet. Is your home-based security sufficient?

My guess is that no, it is not.

Hackers love a challenge. And a home-based internet security system is usually not set up to handle a hacker’s attack. There are resources available on the internet to help you beef up your home’s internet security; the Federal Trade Commission provides these tips; here’s ZDNet’s article; Digital Guardian lists 101 Data Protection Tips; and there are other references available. You must be proactive in keeping your and your employer’s data secure.

The best advice, though, is to follow your employer’s internet security protocols. If they have a PITA VPN, use it. If they want you to use the Tor browser rather than your favorite Internet Explorer or Firefox or Safari, use it. Be careful about email, especially email that can travel across the open internet; you can simply assume, de facto, that emails are open communication with the world. And if you or your employer don’t want something forever on the internet, don’t put it there.

If you want to keep something private, you must keep that something private. Remember, not everything belongs on the internet.

 

Why Do YOU Need a Lawyer?

You’re forming a business. You need a lawyer because you need to do it right. You need the magic words that form the business you want to form in the formation documents (do you know what those magic words are?).

Or maybe you’re developing a brand for your new business. You need a lawyer because you need to do it right. Yes, a lawyer is expensive, but a trademark infringement action brought by a senior user of the mark you adopt … without knowing there even IS a senior user … gets mighty pricey mighty quickly.

Or you’ve invented something and you want to get your invention out to the public immediately. But wait; do you want to profit from your invention? You need to take steps to protect that invention. Do you know what steps are available to you? And do you know how steps that seem to be diametric opposites and never able to work together can actually allow you to effectively extend the term of protecting your invention? You need a lawyer because you need to do it right.

Or maybe you’ve written something. Let’s say you’re J.K. Rowling and you’ve just completed your very first “Harry Potter” book. You want all the protection you can get for that book. Do you know the ins and outs of obtaining and using that protection? You need a lawyer because you need to do it right.

Or you want to … ooh, ooh, ooh … start up a company that franchises its business methods and trademark (i.e., you’re Ray Croc) out to others. What do you need to do to start that franchise and comply with the state and federal laws that govern franchises? What business and legal models do you need to have in place? You need a lawyer because you need to do it right.

Or you don’t want to franchise, but you do want to license your intellectual property for others to use. How do you license out your intellectual property without creating a franchise? You need a lawyer because you need to do it right.

Or someone has handed you a contract to sign. It’s long and full of legal jargon. What does it actually say? Remember, lawyers use words differently than most people do, and it’s lawyers who will interpret any contract you sign that goes south. You need a lawyer because you need to do it right.

You need a lawyer because you’re in business and you need to do it right.

Delain Law Office, PLLC