Monday, November 19, 2007

Copyright Clarification

A few weeks ago, I flippantly said that, "One musician's copyright violation is another musician's viral marketing campaign."

Several readers were confused.

I will begin with a basic description of copyright law. Copyright law only covers these eight types of works:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

What rights does a copyright owner have?
"[T]he owner of copyright ... has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

(A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.)

Now that you're happy I cut-and-pasted straight from the Copyright Statute, let me explain. Any copyright owner is allowed to hold on to these rights as tightly as the owner wants to. The copyright owner can let any of these rights go, also.

What is a Viral Marketing campaign? Simple, it is a campaign where someone's work is allowed to spread as much as possible (like a virus) so that people become interested in the work and then follow the work to the source. It is, basically, a free sample. It can be listening to 30 seconds of a song and telling friends to go hear the song. It can be one video being passed along so that people then go to the source of the video (a website that hosts that video and others or, for example, a TV show).

In a Viral Marketing campaign, the owner of the copyright in the work(s) has allowed some rights in the copyright(s) to be let go. Generally, it is allowing copies of the work to exist elsewhere and allowing others to distribute the work. All of this is done for no compensation, only to hope that compensation comes down the road in another form.


Lastly, I'd like to announce that I'm doing a trademark and copyright law seminar in San Jose on November 29th from 11AM to 1 PM at November 2033 Gateway Place on the 5th Floor. RSVP to if you would like to attend and I will give you more details.

Tuesday, November 06, 2007

Strike Two!

In a phone call with a client last night, I was asked what I thought about the strike started by the Writers Guild of America that is now affecting the television industry.

According to the WGA website, there are big issues to be resolved, including:

  • Jurisdiction for most of new media writing.

  • Residuals for Internet downloads of television shows.

  • Residuals for streaming video of theatrical product.

Right now, anytime a consumer views a TV show on the website of a network or channel, no fees are given to writers of the show. Quite often, there are commercials that appear before any video clip, so the television networks are making money when each show is viewed. (Then the networks pay the television production companies - represented by the Alliance of Motion Picture and Television Producers, who then pay all cast and crew members.)

So, this boils down to a licensing question: Do the writers (and their unions) agree to license their work (scripts in the form of a television show) on new forms of media? The strike says that they do if they are paid for it. Back in 1988, the television writers' strike cost the industry nearly $500 million in advertising revenue. How bad will the carnage (for this industry) be this time?

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