On May 29, I appeared before the Heritage Committee and, on June 5, before the Committee on Industry, Science, and Technology, all part of the statutory review of Canada’s Copyright Act. Why is this important, and how does it affect you, our members?
June 5, 2018—Yesterday, representatives of the Canadian Federation of Musicians (CFM) appeared before the Standing Committee on Industry, Science and Technology to outline recommendations for much-needed amendments to the Copyright Act. The consultation follows a presentation made to the Heritage Committee on May 29. In their statements, AFM/CFM Vice President from Canada Alan Willaert and Local 406 (Montreal, PQ) Secretary-Treasurer Eric Lefebvre called on the committee to lay the foundation for regulatory and policy tools and provide the financial support needed to ensure that Canadian professional musicians thrive in the digital environment now and for the years ahead.
“Our government must respect the contributions of our creative communities, and the indelible mark that recording artists and professional musicians have made on our cultural identity,” says Willaert. “The amendments we strongly urge the committee to adopt would increase revenue streams to musicians, create sustainable employment, and help to preserve arts and culture in our country.”
Among the list of recommendations, CFM identified changes to the definition of sound recording, eliminating the exemption for radio advertising, and expanding the definition of private copying to include new media devices to be its top priorities.
“Professional musicians are losing a significant part of their livelihood to streaming. Many can no longer support themselves solely through their music career and are living in poverty,” adds Lefebvre. “Changes to the Copyright Act are critical to the long-term success of all content creators in this digital, globalized world”.
Singer-songwriter Damhnait Doyle of Local 820 (St. John’s, NL), urges the committee to look at the issues on the table and make the amendments that will give the creative community the opportunity to make the choice to continue to be musicians in this country. “Throughout my 25 years as a longstanding and proud member of Local 820 of the Musician’s union, I have only seen the standard of living decrease for those of us who have chosen to make this our profession,” she says. “We are being hammered from every angle, from piracy to streaming, to being at the losing end of exemptions to broadcasters and losing our royalties for our work in film and TV because the definition of “sound recording” needing be redefined, while our American counterparts do get paid for their efforts. Meanwhile the cost of living is continually rising and our middle class has been eviscerated.”
In his column, AFM Legislative-Political Director Alfonso Pollard has discussed your union’s work with the musicFIRST Coalition to remedy inequities faced by creators under current copyright laws. The AFM and the coalition support key pieces of pending legislation designed to modernize digital copyright and intellectual rights laws, and enact copyright reform.
But how do copyrights and trademarks work? Protecting intellectual property through copyright and trademarks should be a part of every band’s strategy. Many musicians are unsure about how and why to copyright their songs and other artistic works and whether or not their band name should be trademarked. Following are answers to some of the top questions musicians ask US Patent and Trademark Office representatives.
What is the difference between a copyright, trademark, service mark, and patent? How do I know which I should be filing for?
A trademark is generally a word, phrase, symbol, or design, or combination of these, that identifies and distinguishes the sources of the goods of one party from those of others. A service mark is the same as a trademark, except it identifies and distinguishes the source of a service rather than goods. Both these “marks” are registered in the same way. So your band name and logo could be registered as a mark. A copyright protects an original artistic or literary work, such as a song or poem. A patent protects an invention, for example, if you’ve designed a unique type of capo.
How do I go about copyrighting my song (or other artistic work)?
Copyright protection arises upon creation of a work in a tangible mode of expression (for example, writing down notes, a series of chord changes, and lyrics). Registration with the US Copyright office is not required, but there are several advantages to registration. By registering your work, you have a public record of the facts of the copyright and have the ability to later claim statutory damages and attorney fees in the event of infringement. (Registration must occur prior to the infringement or within three months of the publication of the work.) The practice of sending the work to yourself, often referred to as “poor man’s copyright,” is not a substitute for copyright registration. Registration should be considered for all commercially valuable works. The US Copyright Office handles registration. For more information and detailed instructions visit www.copyright.gov/comp3/chap1100/ch1100-registration-multiple-works.pdf.
Will my copyright be protected overseas?
There is no such thing as an “international copyright” that automatically protects an author’s works throughout the entire world. Protection against unauthorized use in a particular country depends on the national laws of that country. Most countries offer protection to foreign works under certain conditions. These conditions have been greatly simplified by international copyright treaties and conventions. Generally, a US work may be protected in a foreign country if that country has entered into an international agreement with the US.
Do I need to register my band name with the US Patent and Trade Office in order for it to be protected from use by someone else?
No, mark rights in the US are based on use of the mark in connection with goods and services. However, trademark registration is required in almost all other countries. You are not required to be a US citizen in order to register your mark here. Federal mark registration provides notice to the public of the registrant’s claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods and services set forth in the registration.
How and why should I conduct a search before registering my mark?
Conducting a trademark search before filing an application can identify potential problems such as likely confusion with prior or pending marks. Searching the USPTO trademark database Trademark Electronic Search System (TESS) at www.uspto.gov/trademarks could save you the expense of applying for a mark in which you will likely not receive registration because another party has stronger rights to it. Also, if your mark appears as generic or descriptive wording in other registrations, it may be too weak or difficult to protect. The USPTO database only includes federally registered and pending applications and does not include state registries and “common law” marks that have not been registered. Before attempting to register a mark, you may wish to conduct a “full” search to include marks on state registries and common law marks and trade names. These searches are generally done through professional search firms with the results evaluated by trademark attorneys.
In the following months, our union will be asking you to contact your legislators to show support for important copyright reform legislation.
In addition to protecting your artistic creations with copyright, be sure all of your recordings are protected by AFM contracts.
In a case hugely significant for global copyright infringements, New Zealand’s high court ruled that their National party infringed on Eminem’s song “Lose Yourself.” The rapper’s publisher was awarded NZ $600,000 (about $414,000 US). In September 2014 they used a version on the tune, a track titled “Eminem Esque,” in an election campaign advertisement. The court’s ruling stated that “Eminem Esque” had substantially copied “Lose Yourself” and that there were minimal differences between the works. The National party advertisement in question was played 186 times over an 11-day period of time.
“This is a warning to soundalike music producers and their clients everywhere,” says Adam Simpson, director of Simpsons solicitors, which acted for Eminem’s music company. Eminem was never approached for permission to use his work.
Three of the world’s most significant collection societies—ASCAP (US), SACEM (France), and PRS for Music (UK)—are working together on a project designed to improve the future of music copyright management. According to an article in Music Business Weekly, they have announced the building of a blockchain system, which could manage the links between music recordings International Standard Recording Codes
(ISRCs) and music work International Standard Work Codes (ISWCs). Blockchain is a software platform, a protocol for managing digital assets. Their website is www.blockchain.com.
A recent ASCAP press release stated: “Establishing robust links between these two pieces of data (ISRCs and ISWCs), offers a practical solution with enormous potential for improving the processes of royalty matching, which will in turn speed up licensing, reduce errors, and reduce costs. The goal of the project is to prototype how the music industry could create and adopt a shared, decentralized database of musical work metadata with real-time update and tracking capabilities.”
Working with IBM, the partnership plans to leverage the open source blockchain technology from the Linux Foundation, Hyperledger Fabric, to match, aggregate, and qualify existing links between ISRCs and ISWCs in order to confirm correct ownership information and conflicts. Blockchain is used in payments systems, noted for its ability to manage records without centralized governance. This valuable characteristic will be utilized to resolve issues between conflicting identifiers for the same work across multiple rights holders.
Jean-Noël Tronc, SACEM’s chief executive officer, has a vision “to ensure a diverse and sustainable future for music, where creators are rewarded efficiently for their work.” He went on to say, “Through this partnership, we aim to develop new blockchain-based technologies that will tackle a long-standing issue with music industry metadata—a problem that has grown more acute as online music rights distribution has become increasingly decentralized with the rise in digital channels. By developing this blockchain technology in partnership with ASCAP and PRS for Music, we will unlock value to the benefit of music creators worldwide.”
Elizabeth Matthews, ASCAP’s chief executive officer, noted that the music industry “has been calling for greater transparency and accuracy.” Blockchain has the ability to capture real-time data and transaction updates that can be shared with multiple parties. While the data improves, the costs of administration will diminish, leaving a greater percentage for distribution to the rights holders.
Robert Ashcroft, PRS for Music’s chief executive, added: “Establishing authoritative copyright data has long been a goal of PRS for Music and is one of the biggest challenges the industry faces.” The digital market requires real-time reporting on behalf of multiple stakeholders across the world, if the goal is to increase accuracy of royalty payments and release value for rightsholders.
If none of this makes sense to you, try to imagine the number of times a given song may be used somewhere in the world, and for the sake of argument, in a given year. A young person in Australia may synch the song to a homemade video, and post it; a music supervisor in California decides to use the song in a movie or it’s streamed a few million times by that many listeners. In each case, revenue should be generated for the rightsholders. In a paper world, it’s impossible.
However, the technology exists to accurately monitor and track each use, using algorithms. And now—using blockchain protocols—this data could be centrally stored and linked, and a methodology derived to instantly identify and distribute revenue to the rights holders.
We have long known that copyright was broken with the advent of the Internet. It appears that at long last, the system will be catching up to address proper monetization of what were before, illegal and unpaid uses. The sad part is, the technology has been there a while, but the will to utilize it was not. We have apparently turned that corner, for the benefit of musicians everywhere.
Arguments of originality and registration are not enough to save the Richmond Organization and Ludlow Music from having to face a lawsuit. A group of plaintiffs cleared the first major hurdle in a lawsuit that aims to establish the unofficial anthem to the Civil Rights Movement is not really under copyright protection. A New York federal judge rejected a publisher’s bid to dismiss, ruling that the plaintiffs have plausibly alleged that lyrics in the first verse of “We Shall Overcome” were copied from material in the public domain and that there has been a fraud on the US Copyright Office.
The defendants, the Richmond Organization and Ludlow Music, have retained commercial control of the song since copyright registrations were made in the early 1960s. Royalties from the song are earmarked for the Highlander Research and Education Center to support art and research projects in the African-American community, as well as the preservation of Civil Rights Movement documents.
The Beatles and their codefendants are slapping back at a lawsuit claiming that Ron Howard’s new film Eight Days a Week—The Touring Years uses copyrighted footage of the group’s 1965 Shea Stadium concert without permission.
The Beatles’ Apple Corps Limited and Subafilms Limited have filed a motion to dismiss the suit. Heirs of concert promoter Sid Bernstein, who died in 2013, claim the Shea Stadium show was Bernstein’s idea and that he “planned, managed, and paid for virtually every aspect of the production.” The defendants contend Nems Enterprises, controlled at the time by The Beatles manager Brian Epstein, contracted for the “sole and exclusive right” and that Bernstein “never asserted any claim of authorship or copyright ownership in the film of the concert.” Bernstein merely “observed the filming and recording.” In this new claim, Bernstein’s heirs say he “made independent copyrightable contributions to the work embodied in the master tapes” and that “Bernstein was the employer for hire of The Beatles and the opening acts performed at his instance and expense.”
The US Copyright Office previously rejected an application by Sid Bernstein Presents last year to claim copyright over the master tapes.
The CFM, in preparation for the five-year review of Canada’s Copyright Act, is a part of a number of music industry coalitions. One of these groups is the Music Policy Coalition (MPC), bringing together the Society of Composers, Authors, and Music Publishers of Canada (SOCAN); Canadian Independent Music Association (CIMA); Canada’s Neighbouring Rights Collective (Re:Sound); the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA); Québec Association for the Recording, Concert and Video Industries (ADISQ); Songwriters Association of Canada (SAC); and Union des Artistes (UDA), to name a few.
At the University of Manitoba, thousands of students are receiving letters claiming their IP address has been connected with illegal downloads. Dorms are hotbeds for digital piracy, but some of these warnings include the demand of settlement fees.
The notice system began in 2015 when new Canadian copyright laws went into effect. The University of Manitoba is now obligated to forward infringement notices to the users attached to the flagged IPs, or risk massive fines.
Joel Guénette, the University of Manitoba’s copyright strategy manager, says the letters border on extortion and advises against responding to the notices because they may not stop even once payment has taken place.
Barry Logan, managing director of Canadian Intellectual Property Rights Enforcement, a company that sends infringement notices for rights holders, notes that everyone has the right to ask for restitution before something becomes a matter for the courts. His company has retrieved $500,000 in settlements for rights holders.
Yesterday US District Court Judge Gail Standish dismissed a lawsuit brought against Local 257 (Nashville, TN) member Taylor Swift by Jessie Braham. Braham claimed that in writing the song “Shake It Off” Taylor took lyrics from his 2013 song “Haters Gone Hate.”
The plaintiff had requested a waiver of the court filing fee as he had no means to pay it. That ended up a benefit to the defense, as it provided an early opportunity for the court to assess the allegations.
“When such a request is made, the court screens the suit to see if the allegations appear to have merit,” explains J. Michael Keyes is an intellectual property partner at the international law firm Dorsey & Whitney. “The Magistrate Judge considered the allegations and listened to Mr. Braham’s song “Haters Gone Hate” and Ms. Swift’s smash hit “Shake it Off.” The Court noted that after listening to the two songs, there is no support for Mr. Braham’s allegations.”
In making her ruling Standish used several puns, noting “the court is not saying that Braham can never, ever, ever get his case back in court,” and that, as currently drafted, “the complaint has a blank space—one that requires Braham to do more than write his name.” She concluded, “At least for the moment, defendants have shaken off this lawsuit.”
“The court’s recommendation is a welcome outcome. Copyright law is meant to protect one’s original musical composition from misappropriation by another. One need only casually listen to the two works to see that Ms. Swift’s smash hit bears no resemblance to Mr. Braham’s work,” says Keyes.