Dvorak writes soundtracks for films. Qwerty writes screenplays. They sometimes combine their products to create soundtrack-plus-screenplay packages. They pitch these packages to film producers, who sometimes buy the packages and sometimes buy the soundtracks or the screenplays separately.
One evening last month, working alone in her studio on a new project, Dvorak struggled to find a melody that would fit the melancholy and dignity of Qwerty's latest heroine. Right then, through an open window, she heard a mourning dove sing. Inspired, Dvorak quickly re-worked the dove's song into a fitting melody. Before she had even gone to the trouble of writing her composition down, she excitedly called Qwerty. Getting Qwerty's answering machine, Dvorak turned on her speaker phone, gave a short introduction, and played the new melody. Satisfied with her day's work, Qwerty left her studio immediately after hanging up the phone.
It turns out that Qwerty did not answer the phone because his wife, Sue, was hosting a party. Sue was celebrating having gotten Disney to pay a huge settlement to her clients, representatives of the estate of the original Mr. Potato Head. A good many of the guests -- those with the big heads, short legs, and variegated features -- came from the Potato Head family. Others represented the usual crop of well-connected Hollywood executives.
Qwerty did not know many of the guests, nor did he care to. He considered himself, as an auteur, above such schmoozing. Two drinks into the evening, Qwerty started arguing with the executives about how the film industry steals artists' labors. Four drinks in, he started offering tater tots to horrified members of the Potato Head clan. At six drinks, Dvorak's call came in.
Qwerty knew better than to try to work in his condition, so he just listened in as the machine began recording Dvorak's call. "Now this," he shouted in a slurred voice to his wife's guests, "represents the sort of genius that makes losers and tubers like you rich!" As Dvorak finished her short introduction, Qwerty turned up the answering machine's speaker and let Dvorak's live performance wash over the hushed crowd.
Despite his poor manners, Qwerty had made his point. The guests filtered out whistling Dvorak's tune and marveling at art's power to save a party from utter disaster. But though Sue forgave Qwerty, Dvorak got very angry when she learned that he had played her call
without her permission. "At the same time that I thought I was leaving a private message for you," she explained, "you were broadcasting my performance to a bunch of strangers!"
Furthermore, not long after Dvorak unknowingly performed for Sue's guests, a competing composer of film scores, Shift, sold a studio a tune that sounded rather similar to Dvorak's. Shift was not at the party and disavows any exposure to Dvorak's melody.
Dvorak has asked your firm to advise her about her possible copyright claims against Qwerty and Shift. Write a memo doing so, citing the following: the Copyright Act of 1976, define music licensing and fair use, and a minimum of four cases. Does Dvorak have a case and why or why not?
Fair use is a legal doctrine that provides a limited exception to copyright protection, allowing for the unauthorized use of copyrighted material for purposes such as criticism, commentary, news reporting, teaching, or research. To determine if a use is "fair," courts evaluate four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use on the potential market for the work.
Analysis of Dvorak's Case Against Qwerty
Dvorak has a strong case against Qwerty for copyright infringement.
The Copyright Act of 1976 states that a work is protected once it is "fixed" in a tangible medium. Dvorak's melody, even before being written down, was "fixed" when she played it into Qwerty's answering machine, which created a sound recording. This recording constitutes a fixed medium of expression, thereby granting Dvorak immediate copyright protection.
Qwerty's actions likely constitute an infringement on two of Dvorak's exclusive rights: the right to public performance and the right of reproduction. By turning up the speaker, Qwerty performed Dvorak's work for an assembled crowd of Hollywood executives and guests. A "public performance" is defined in the Copyright Act as a performance at "any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." Given the nature of the party and the guests, Qwerty's actions clearly meet this definition.
He also likely infringed on Dvorak's right of reproduction by creating the recording on his answering machine without her permission. Qwerty's behavior was not a "fair use" of the work. It was not for criticism, commentary, or news reporting. Instead, it was an unauthorized, non-transformative public performance for a commercial audience, which could directly harm Dvorak's ability to license her work. This is similar to the facts in Gershwin Publishing Corp. v. Columbia Artists Management, Inc. (1971), where the court held a promoter liable for public performances even if they did not directly profit from the unauthorized performance. Qwerty's action of playing a sound recording to a large group of people constitutes a public performance, and he cannot claim a "fair use" defense.
Sample Answer
To: Dvorak's Firm
From: Your Counsel
Re: Possible Copyright Claims Against Qwerty and Shift
This memo analyzes Dvorak's potential copyright claims against Qwerty and Shift based on the facts provided, with a focus on the Copyright Act of 1976 and relevant case law.
The Copyright Act of 1976 governs copyright law in the United States, providing a set of exclusive rights to creators of "original works of authorship" once those works are "fixed in any tangible medium of expression." This includes musical works. The Act grants the copyright owner the exclusive right to reproduce, perform publicly, distribute, and create derivative works.
Music licensing is the process by which a copyright holder grants permission for their musical work to be used by others, typically in exchange for a fee. This is a primary means for composers and songwriters to earn income from their work. A license is required for various uses, such as a public performance or reproduction of a composition.