Do these songs sound similar to you?

“Theme to Ghostbusters,” Ray Parker (1984) “I Want a New Drug,” Huey Lewis (1983)

Intellectual Property:Introduction and Copyright Issues

Mr. Garfinkel, 2/19/14

Major fields of Intellectual Property in the U.S.

• Trademark- “A word, phrase, symbol, and/or design that identifies and

distinguishes the source of the goods of one party from those of others.”

• Patent- “A limited duration property right relating to an invention, granted by the United

States Patent and Trademark Office in exchange for public disclosure of the invention.”

• Copyright- “protects works of authorship, such as writings, music, and works of art

that have been tangibly expressed.”

All definitions from the U.S. Patent and Trademark Office:

http://www.uspto.gov/trademarks/basics/definitions.jsp

Let’s Focus on Copyright

• Literally the “right to copy”

• Protects anything that is fixed in some wayo Written down, recorded, painted, etc.

• Do not have to go through a legal process for a copyright, the second you produce it, its yours!o Still, you can register a copyright which has some legal advantages

• Protects the form of expression, not the ideas or facts which are expressed

• Generally lasts the lifetime of the creator plus 70 years

What Rights a Copyright Gives You

• Copy the work

• Make derivative works (similar but slightly different)

• Sell copies of the work

• Display copies of the work

• Perform the work in public

Exceptions to Copyright

• First sale- If you legally buy a copy of a work, you have the right to resell that particular copy.o i.e. If you buy a DVD of Happy Feet, you have a

right to sell that particular copy of the DVD (not 50 of them, not any copy of Happy Feet, just that one!)

o Don’t worry, we will get to music and movie piracy!

Exceptions to Copyright (Continued)

• Fair use- Permits the limited use of a copyrighted work without permission of the ownero Examples: commentary, parody (of the original

work), educational purposes, research, news reporting i.e. If I copy an excerpt from a book for use in this class, it would

most likely be considered fair use of that copyright.

Fair Use (Continued)

• According to the Copyright Act of 1976, when determining if the use of a copyrighted work is fair use, four items should be consideredo Purpose of the use (commercial or educational)

o Nature of the copyrighted work (is the work fictional or non-fiction, ideas or facts?)

o Amount of the work copied (the less that is copied, the more likely it is considered to be fair use)

o Effect upon the original work’s value (does the copying of the work affect the value of the original work?)

How does this relate to plagiarism?• Generally, the concept of plagiarism is a

matter of ethics, not law.o It is possible to plagiarize without infringing copyright

and to commit copyright infringement without plagiarizing. Example: Romeo and Juliet is not under copyright. If you copy a segment and

hand it in to your English teacher as your own work, this is plagiarism but not copyright infringement.

Example: If a company includes a chapter out of a recently written book to include in a book they are going to sell without permission of the author, even if they attribute the chapter to the author, that could be considered copyright infringement.

Maybe not Plagiarism, but Copyright Infringement!

“Bitter Sweet Symphony,” The Verve (1997) “The Last Time,” The Rolling Stones (1965)

Those don’t sound too similar, do they?BUT! Remember, the copyright holder has the right to all derivative works!

“The Last Time, Instrumental Version,” Andrew Loog Oldham Orchestra (1965)“Bitter Sweet Symphony,” The Verve (1997)

ABKCO vs. The Verve

In this case, Allen Klein, owner of ABKCO Records who had the copyright to the Stones’ “The Last Time” sued The Verve saying that they had used too much of the derivative work.

ABKCO won and was awarded all past and future royalties from “Bitter Sweet Symphony.”

Vanilla Ice vs. Queen and David Bowie“Ice Ice Baby,” Vanilla Ice (1990)

“Ice Ice Baby,” Vanilla Ice (1990) “Under Pressure,” Queen and David Bowie (1981)

Ice got Burned...Vanilla Ice sampled (took a portion of a song for use in another song) “Under Pressure” without getting permission from the copyright holder or even acknowledging it (plagiarism and copyright infringement!).

He tried to claim that his version was different because he added a note to the bass line, but later retreated from that claim.

The groups settled and Queen and David Bowie were listed as co-composers of the song, and thus were able to share the royalties.

Campbell vs. Acuff-Rose Music

“Pretty Woman,” 2 Live Crew (1994) “Oh, Pretty Woman,” Roy Orbison (1964)

Is this a clear case of copyright infringement?

2 Live Crew asked Acuff-Rose Music for a license to sample “Oh, Pretty Woman.” This request was denied, but 2 Live Crew used part of the song anyway.

Acuff-Rose sued, saying that this was copyright infringement. 2 Live Crew responded that their usage of the song qualified as Fair Use.

-What do you think?

The courts rule...• The U.S. District Court ruled in favor of 2 Live Crew, saying

the nature of the use of song qualified as a parody.

• The Court of Appeals reversed this decision, ruling in favor of Acuff-Rose saying that the commercial nature of the 2 Live’s usage disqualified it from Fair Use.

• The U.S. Supreme Court ruled in favor of 2 Live Crew, setting the precedent that a work that is re-used for commercial purposes could still possibly be used without a copyright under the doctrine of Fair Use.

Still, there is a moral to all of this.

Even though 2 Live Crew’s sample of Orbison’s song qualified for Fair Use, if you are going to sample, you should get permission (a licence) from the copyright holder.

In the following slides are some other potential examples of samples which were used without licenses.

MC Hammer vs. Rick James vs. Family Guy

“You Can’t Touch This,” M.C. Hammer (1990) “Super Freak,” Rick James (1980) “Can’t Touch Me,” Peter Griffin (2000)

Hammer used James’ song without a license. Of course, he got sued and the two settled out of court with James being listed as a co-composer of “U Can’t Touch This,” cutting him in on the royalties.

The Family Guy version is clearly a parody of the Hammer song.

George Harrison vs. The Chiffons

“My Sweet Lord,” George Harrison (1970) “He’s so Fine,” The Chiffons (1963)

George Harrison was sued by Bright Tunes Music Corp. who held the copyright to “He’s so Fine” in 1971. The case went on for a long time with musical experts testifying on both sides. Eventually, the court ruled that Harrison was guilty of “subconscious plagiarism,” and he was forced to pay damages.

Coldplay vs. Joe Satriani

“Viva la Vida,” Coldplay (2008) “If I Could Fly,” Joe Satriani (2004)

Joe Satriani sued Coldplay for copyright infringement for their use of his song without licence and/or attribution. Coldplay settled for an undisclosed amount (I’m guessing a lot, this is pretty blatant).

Red Hot Chili Peppers vs. Tom Petty

“Dani California,” Red Hot Chili Peppers (2006) “Mary Jane’s Last Dance,” Tom Petty (1993)

When “Dani California” was first released, many DJs commented that it was very similar in sound and lyrical content to “Mary Jane’s Last Dance.” Petty initially said he agreed that there may have been plagiarism, but later decided not to sue.

Journey vs. Elecman’s Theme

I have no knowledge about any lawsuit by Elecman at this time.

Genesis vs. Led Zeppelin

“Misunderstanding,” Genesis (1980) “Fool in the Rain,” Led Zeppelin (1979)

There was no case or accusation involving these two songs, but I’ve always felt they sound identical (Zeppelin version is just a faster tempo) and have the exact same lyrical content. “Misunderstanding” even has a line “I waited in the rain for hours.” Seem fishy to anyone else?

Usher vs. Simpsons

Are there any others you can think of?

Let me know!

Thanks!

-Mr. Garfinkel