Category Archives: Intellectual Property

Eminem vs. New Zealand’s National Party in Soundalike Copyright Trial

New ZealandHip Hop mega-artist Eminem sued New Zealand’s conservative National Party this month for copyright infringement. The suit alleges that the soundtrack, used in a 2014 National Party TV ad, was copied from Eminem’s iconic Lose Yourself and breached the copyright of Eight Mile Style, Eminem’s publisher.

The National Party said it licensed the rights to the soundtrack, titled Eminem Esque, from the Australian-based music library Beatbox Music.

Garry Williams, the lawyer for the plaintiff told the court that Lose Yourself is the ‘jewel in the crown of Eminem’s music catalog’ – the licensing of which is tightly controlled. ‘They would never allow the use of a re-recording of the musical work unless that re-recording involved the participation of the original artist.’  [Skynews, May 1, 2017]

He said the Detroit rapper’s hit was “iconic,” having won an Academy Award, two Grammys, and critical acclaim and that meant rights to the work were “enormously valuable” and were strictly controlled by the publisher, which had rarely licensed them for advertising purposes. [ABS CBN News, May 1, 2017]

Lose Yourself has indeed been licensed in the past. It was used to great effect in a Super Bowl ad in 2011. The ad, Imported from Detroit for Chrysler, was built around the guitar riff to the song.  In this case,  Lose Yourself was legally licensed (paid for) and used with the artist’s permission. Eminem appeared in the ad giving a boost to his hometown of Detroit.  The success of the Imported from Detroit campaign more than likely contributed to Lose Yourself becoming “the jewel in the crown of Eminem’s music catalog”.

Eminem Esque, the song the National Party licensed, has the same urgent, pulsing beat of Eminem’s song.

Here is the ad spot.

While there is little doubt that the soundalike Eminem Esque emulates the main riff of Lose Yourself, they are not identical.

Lose Yourself makes use of an insistent eighth note guitar riff which alternates between the pitch A for one measure and then moves to B-flat for one measure. The real sonic power of the riff is the guitar which, performed with some very fine musicianship, creates high interest using different accents applied to notes in the riff.

Eminem-esque’s version of the guitar line is this.

It is clearly different (and in no way as interestingly performed as in the Eminem track). It incorporates notes not found in Lose Yourself. It’s true; the guitar is featured prominently in the mix just as in Lose Yourself. Eminem Esque is also in the same key as Lose Yourself but it adds sustained synthesizer strings and harmonies that are not found in the Eminem recording.

Identical? The answer is no. I’m sure this is what the creators of Eminem Esque thought as well. They had made enough change in their soundalike that, though they were drawing on Lose Yourself, they had created enough difference that their track would be free from a copyright infringement claim.

What makes things difficult is that the infringement in question centers around a guitar riff. There is no real melody here. Most infringement cases compare the vocal line – the song’s melody – one to another.

The precedent for Eminem’s claim of infringement is the 2015 case against Blurred Lines brought by the children of Marvin Gaye, who sued for copyright infringement claiming Blurred Lines copied Gaye’s hit Got to Give it Up.

“Rather than hinging on a particular set of notes [melody], Blurred Lines was found in violation of copyright based purely on the atmospheric similarity to Gaye’s Got to Give it Up — a “vibe” that’s a result of production choices and the rhythm pattern.”  [ Business Insider, Sept 16 2016]

This verdict has been appealed. It has also been criticized by many composers, musicians, and songwriters. In the summer of 2016 more than 200 music creators signed a legal brief supporting Pharrell Williams’ appeal of the $5.3-million judgment handed down against him and Robin Thicke in 2015.

The brief states:

“Quite clearly, the verdict in this case, if based upon the music at all, was based upon the jury’s perception that the overall ‘feel’ or ‘groove’ of the two works is similar, as songs of a particular genre often are. In essence, the Appellants have been found liable for the infringement of an idea, or a series of ideas, and not for the tangible expression of those ideas, which is antithetical to Section 102(b) of the Copyright Act.

“Such a result, if allowed to stand, is very dangerous to the music community, is certain to stifle future creativity, and ultimately does a disservice to past songwriters as well,” the brief states. [Los Angeles Times August 31, 2016]

It could be that what constitutes copyright infringement is changing. If the Blurred Lines decision is the new precedent, then it’s not only a melody line that’s copyrighted it’s a “feel.”

Eminem’s lawyer’s argument against the use of Eminem Esque is that the song taps into the collective associations and cultural connections that listeners’ have with Lose Yourself. It appropriates a listener’s cultural memory of a hit song, and that memory has a huge value. This is no longer about comparing musical notes on a page. It is about claiming infringement upon a musical work’s worth to the zeitgeist.

If using a similar “groove” or “feel” or “vibe” or 2 note, half step riff can be claimed as legal grounds to sue for infringement; we are into a whole new era of copyright jurisprudence.

Listen to this.  The linked page provides an A/B comparison of the 1970s band Chicago’s 25 of 6 to 4 with Led Zeppelin’s Babe, I’m Gonna Leave You. Same riff, same key, same notes, basically the same rhythm. Both of these songs have gone on to be Classic Rock standards.

As of this writing, there’s been no verdict in the case against the usage of Eminem Esque. The appeal of the Blurred Lines decision has also not been settled. Victories in these two cases would solidify a new precedent in copyright law.

The Public Domain – A Guide for Media Producers

What do these artistic works have in common?

  • Beethoven’s Fifth Symphony
  • Hamlet
  • Moby Dick
  • Oh Susannah
  • America the Beautiful
  • Tarzan
  • Alice in Wonderland
  • Sherlock Holmes
  • The Complete Works of Edgar Allan Poe

Answer: They are no longer protected by copyright law and are free for all to use. They are classified as being in the Public Domain.

These creative works, and thousands like them, are available for use by the public at no charge because their copyrights have expired or have somehow, been nullified.

The available public domain media include images, music, photos, illustrations, graphics, books, artworks and movies.

Generally speaking, US publications prior to 1923 are in the public domain. So you won’t find the latest bestsellers or any top ten hits. You will find the classic books from the start of this century and previous centuries, as well as the great musical masterworks from Bach to Tchaikovsky.

Copyright Limits
In the United States, works published with a copyright notice from 1923 through 1977 are protected for 95 years from the date of publication. Those published in 1978 or thereafter are now protected for 70 years after the death of the creator, as are those in the European Community. In Canada and other countries, the period is life plus 50 years.

Misconceptions about Public Domain works
True or False…since Tchaikovsky’s masterpiece, Swan Lake, was composed in the 19th century and is now in the public domain, it can be freely used as background music in video or multimedia presentations?

The answer is True AND False

It is true that Swan Lake is no longer under copyright and this public domain music can be freely used without seeking permission from a publisher. In other words, you don’t have to pay anyone to acquire synchronization rights to be able to use the music of Swan Lake.

However, if you use an existing recording of Swan Lake in your work, that recording is protected by copyright and you would need to get permission from the record company to use it.

So yes, Swan Lake is public domain music and you could use it for free if you assembled your own ensemble of musicians and recorded your own version of it. But if you use someone else’s recorded version, you would need permission from them to be able to use their recording in your production.

This is an example of a public domain piece of music –  Jeux D’eau by Maurice Ravel. Though the work itself is in the public domain, this recording is fully copyrighted and would require a license to use in your work.

Here’s a quick rule of thumb when using music, images, graphics, or texts in your productions… If you didn’t personally create it, then you need permission to use it in your work unless the media in question has entered the public domain. For a detailed article about copyright permissions, Master Use and Synchronization Rights, see the article How to Use Music Legally in Your Work.

UniqueTracks Public Domain Classical Music
UniqueTracks offers a quick and easy way to legally license classical music recordings of music works that are in the public domain. When you purchase a license from UniqueTracks, you are acquiring master use rights to use the recordings in your projects and products with no further licensing or payments to us.

The UniqueTracks Stock Music Library licenses public domain classical stock music recordings for a variety of media use.  Classical music offers the benefit of time-tested melodies that have moved listeners for generations. Included in our series are movements from Tchaikovsky’s famous ballets ” Swan Lake“, “Sleeping Beauty” and “The Nutcracker (Suite)“, the famous “Blue Danube Waltz” by Johan Strauss, Mozart’s “Eine Kleine Nachtmusik” Vivaldi’s brilliant “Gloria” for choir and orchestra, numerous solo Piano Waltzes by Chopin, the “Air on a G String” by J S Bach, and Schubert’s “Fifth Symphony”.

Public Domain Sites, More Information
Project Gutenberg – A great site of public domain literature, Project Gutenberg is the oldest producer of free electronic books (eBooks or etexts) on the Internet. All may be freely downloaded and read and redistributed for non-commercial use.

Copyright Confusion by Neil Wilkinson
Clear and concise discussion of copyright from WritersWeekly.com

United States Copyright Office – Library of Congress. Lots of copyright information, also tells how to register your own work for copyright.


Premium Stock Music for Film, TV, Advertising, and Interactive. Editor-selected, Easy Search, Fast Results.  UniqueTracks has a vast library of music loops and grooves plus a large selection of classical production music available for licensing into your production.


Royalty Free Music, Sound Effects, and Animated Video Backgrounds

How To Use Music Legally In Your Work

When do I need a license to use music in my work?
You need to acquire a license when you want to take music that you have not personally created and use it as background music soundtrack in your production.  Acquiring a license gives you the legal right to include someone else’s copyrighted work as a part of your own work.

What is a Copyright?
Copyright is a federal law that protects creators by giving them exclusive rights to their works for a period of time.  Once a work is under copyright, it is considered copyright infringement (illegal) to use the work without the permission of the copyright owner.

How does copyright affect my decision to use music?
Music that has been recorded and issued on CD is protected by 2 copyrights.  To use a recording of a musical composition in your work, you need to get permission from both copyright holders.

The first permission you need is from the music’s publisher.  The music publisher holds the copyright for the actual written music – the melody, the lyrics, the accompaniment, the actual music as it would appear in sheet music.  This copyright is shown by using the familiar © symbol.

The second permission is for the recording itself.  To get this, you would approach the record company that released the recording.  The record company holds the copyright for the actual performance of the song captured and mastered on tape and released on CD.  The symbol for this copyright is the letter (P) inside a circle. (look on the back of your own Cds, you will see these symbols in use)

The fact that music is protected by copyright doesn’t mean you cannot use it, it simply means you have to seek permission to use it.  To receive that permission you will typically have to pay a licensing fee.

What licenses do I need?
Here are the licenses you need for the right to use music in your media project:

Synchronization License – This license is issued by the music publisher.  The Synchronization License (often abbreviated as “sync” license) gives you the right to “synchronize” the copyrighted music with your images and dialogue.

Note: Having a sync license means you have permission from the publisher to use the music but it doesn’t give you the right to use a specific recording of the composition.  For that, you need the following…

Master Use License – This license is issued directly from the record company. Fees can range from several hundred dollars to millions of dollars depending on the popularity of the music.

Once you have paid the music publisher for a Sync License and the record company for a Master Use license, you have the legal right to use the music in your production within the terms of the license you negotiated.

Sidebar
This article is about music that is under copyright and NOT in the public domain.  In the United States, music written before 1933 is in the public domain and can be used without having to acquire a synchronization license.  However, you will still need a master use license if you use a recording of a piece in the public domain.  Music written after 1933 is still under copyright according to US law.  Public Domain is defined and interpreted differently in Canada, Europe, and the UK. Here is an article with more detail about using public domain music.

How do I find out who owns the song rights?
If you don’t know the publisher of the song you want to license, you should contact the major Performance Rights Organizations like BMI, ASCAP, and SESAC.  These groups have large databases of composer and associated publisher song titles.  Another place to try is The Harry Fox Agency. This company mainly grants mechanical rights (for recording and existing song), but their database is also huge.

Music Clearance
As you can see from the process described above, licensing music can be a time-intensive, form-laden, and expensive process.  There are companies that just specialize in finding and processing the paperwork to get you the rights to a song. If you enter the term “Music Clearance” in a search engine, many music clearance companies will appear.  If you have a music supervisor on your project, he or she will also be experienced in music clearance.

A Licensing Alternative – Production Music
Using Production Music (also referred to as Stock Music), is the easiest way to quickly license music to use legally in your work. Production Music fills a niche for producers who don’t have a million dollar music budget and can’t afford to license a major hit song.  Production Music gives the smaller, independent producer the ability to use music soundtracks in his or her production.

Is Production Music under copyright?
Production music is protected by both the (C) and (P) copyrights.  When you buy a track from a production music library, you’ll receive a license agreement which grants you both synchronization and master use rights. It’s simple and easy to do.  For instance, at the UniqueTracks Stock Music site, your license and recorded master track can be downloaded right to your computer upon purchase.

Stock Production Music is not copyright-free as some have termed it.  It is fully protected by copyright law. With production music, you get the ease of licensing.  You don’t have to contact several sources to seek sync and master use licenses.  These licenses come bundled together and the rights granted are very wide.  A typical stock music license grants you permission to use the music in TV broadcasts, TV & Radio advertising, Internet streaming (great for YouTube videos) music-on-hold, apps & video games, in-store broadcast, and as corporate trade show products and giveaways.  Here is an example of a typical stock music license agreement.

Can I license a famous song from a production music library?
There are no production music pop hits.  You won’t find an Eminem track in a royalty free production music library.  To use an Eminem cut you would have to negotiate a license with Interscope Records.  That’s not to say you can’t find Hip Hop tracks in production music libraries but you won’t find current or past pop hits.

Unlike a pop song, production music is composed to be used specifically as background music. It is usually instrumental, with no vocals or lyrics, and is similar to a film soundtrack.

The simplicity of licensing makes it a perfect choice for corporate videos, Flash animations, Game apps, Music-On-Hold, PowerPoint presentations, independent film, multimedia applications, – virtually anywhere where music is helpful but where the project budget doesn’t include hundreds of thousands of dollars to license expensive songs.


Premium Stock Music for Film, TV, Advertising and Interactive. Editor-selected, Easy Search, Fast Results  UniqueTracks has a vast library of music loops and grooves plus a large selection of classical production music available for licensing into your production.


Royalty Free Music, Sound Effects, and Animated Video Backgrounds

DMCA needs to actually enter the millennium

The DMCA (Digital Millennium Copyright Act) of 1998 sought to give Internet Service Providers legal protection (a “safe harbor”) against copyright infringement claims should one of their users upload copyrighted material. The act made sense at the early stages of the Internet before broadband expansion lead to companies like YouTube and sites like the Pirate Bay.

The DMCA puts the burden of enforcement squarely in the hands of content providers by way of the “takedown notice” which is essentially a form sent to the ISP owner stating that there is some type of media or software on their site which they do not have the rights to be hosting. The takedown notice informs the ISP owner that further legal action will be taken if they don’t comply by removing the sited item(s).

The problem with the DMCA today is that content owners can’t keep up with the volume of takedown notices they have to file. YouTube has received over 100 million DMCA notices from the recording industry in just the last few years. Google’s own statistics show that 97% of these claims are valid.

The DMCA’s safe harbor is also the main defense used by pirate sites like The Pirate Bay, KickAssTorrents and Torrentz. These sites have earned millions by illegally hosting content for which they have no rights or licenses.

Unfortunately, rather than manage copyright, it [the DMCA] has provided a huge loophole through which a number of online pirate entrepreneurs sail blissfully through. Known as the “safe harbor” provision, this oft-abused language has served to shelter digital thieves at the expense of rights holders. ”Safe Harbor” has enabled the growth of a criminal cancer and it’s a cancer–that as of now–cannot be beaten, only kept (marginally) at bay. – See more at VoxIndie.org

The DMCA is Broken from fastgirlfilms on Vimeo.

Digital Thieves and the Hijacking of the Online Ad Business

In 2013, Digital Citizens Alliance set out to understand how content thieves operate and profit from the works of others. In an effort to determine how much bad actors earn through advertising, Digital Citizens commissioned MediaLink LLC to undertake a research project focused on the ecosystem’s revenues and profitability.

The findings, published in the report “Good Money Gone Bad: Digital Thieves and the Hijacking of the Online Ad Business” show that these sites are making incredible profits off of the works of others.

The highlights include:
• Content theft sites reaped an estimated quarter of a billion dollars in ad revenue alone in 2013.
• The 30 largest sites that make revenue exclusively through ads averaged $4.4 million in 2013.
• The most heavily trafficked BitTorrent and P2P sites, which rely exclusively on advertising revenue, averaged a projected $6 million per year in 2013.
• 30% of the most heavily trafficked content theft sites carried premium brand advertising and 40% carried secondary brand advertising
• The sites studied in the sample had a estimated profit margin of 80-94%.
This presentation includes screenshots from many of the sites reviewed by MediaLink.

Download Digital Citizens Alliance Report

Download More information (Media Packet)
mediapacket

digitalcitizensalliance-infographic

How Is Music Clearance Different from Music Licensing?

Every few weeks or so I’ll get a phone call with an inquiry that goes something like this…

I’d like to use Elvis Presley’s recording of ‘Don’t Be Cruel’ as background music in my film. Can you help me do that?

Regretfully, beyond recommending some other companies to investigate, I am not much help in this regard.  Though music licensing is our core business, UniqueTracks only licenses recordings that we have created in-house or that we control the publishing rights to.

What these folks are looking for is a firm that will do “music clearance” work for them.  Yes, there are companies you can turn to when you are looking to obtain music licensing rights but have no idea where to turn.  These companies will help you acquire the rights to use famous songs but they are even better at finding the rights for obscure songs.  Music clearance companies are experts at finding the needle-in-the-haystack information that will eventually track down the song you’re interested in.  They will then act as your advocate with the publisher and record company to try and get you the best license pricing available.

What is Music Clearance?

Music Clearance is the process of obtaining the permissions necessary to include a music recording in a production.  The music clearance process should encompass all music used in the production.  This means every music cue, not just the soundtrack but also any source or background music.

For instance, if a film includes a scene where the characters are listening to music on the radio, the song being broadcast from the radio will need to be “cleared” –  you will need to get permission to use the song.  If the characters are at a bar and live music is being performed in the background, you will need to obtain the permissions necessary to use the song in that way.

The act of “clearing” these music cues involves obtaining the necessary licenses needed to use the music in the production.  You will need a synchronization license and a master use license.

Licensing is priced based on the type of project.  For instance, with a film, a festival rights license will be cheaper than a general release license.  Licensing music for use in a TV commercial will cost whatever the market will bear.  A famous recording of a song will command a much higher rate than an undiscovered or unknown song.

Performance Rights Organizations

If you are doing music clearance yourself, the best place to start is with the major performance rights organizations (PROs).  ASCAP, Broadcast Music (BMI) and SESAC are the major PROs in the United States.  Chances are the song you are looking for is registered with one of these organizations and you can obtain valuable publisher and writer information from them for free.

Note: You will still have to track down the owner of the recording rights (usually the record company) to get permission to use a recording of the song you’re interested in.  Hint: A great way to find the name of the record company is to use Amazon.com’s search function.

Most nations have their own performance rights organizations. In the United Kingdom, the performance rights organization is PRS. In Canada it is SOCAN, in Australia it is APRA, Germany has GEMA.  These groups link their database of songs so they are aware of each other’s listings. If a song registered with ASCAP and created by an American composer is played on the radio in England, PRS, the UK performance rights organization, will log that performance in their database and send ASCAP a report of all performances of that song (usually on a quarterly basis).

Music Clearance Companies

The links below are to some notable companies that handle music clearance and music licensing.  I’ve linked to informational articles on their sites so you can get more information on this subject.

EMG Music Clearance – Do It Yourself Music Clearance (good article)

The Music Bridge LLC – A Music Clearance Primer

Parker Music Group – A good FAQ

The Rights Workshop – Licensing & Music Clearance

One of the reasons stock music companies like UniqueTracks exist is because we can license music quickly and easily without having to seek a third-party company to negotiate licensing for you.  We are a one-stop shop.  When you purchase a stock music track on the UniqueTracks site, you are immediately issued a synchronization and a master use license to use the music in your production.

The trade-off, of course, is that UniqueTracks cannot license a Beatles or Led Zepplin song to you. We can, however, license famous classical production music like this piece by Tchaikovsky.


Premium Stock Music for Film, TV, Advertising and Interactive. Editor-selected, Easy Search, Fast Results UniqueTracks has a vast library of music loops and grooves plus a large selection of classical production music available for licensing into your production.

Postcards to Defend Copyright

We at UniqueTracks want to pass along this link to a very smart messaging program from copylike.org (Defend Copyright). These are online postcards displaying easy to understand statements about the damage to artists caused by piracy and file-sharing. The postcards can be sent directly from the copylike.org site.

See some examples below…

copylike.org_postcard_rightsandtheft

copylike.org_postcard_money

copylike.org_postcard_musicisfree

 

Spread the word at
http://copylike.org

Wikipedia leverages user-generated content for its own politics

Information wants to be free… (or so the Web gospel reads)

Wikipedia apparently has entered the political arena, closing the site for one day to protest the SOPA bill.

What’s interesting to me is the notion that the knowledge collected by Wikipedia, freely given by volunteers spending untold hours contributing to the site, can be leveraged by the site’s owners to support their own politics.

I’m not sure if that would meet the approval of the many, varied, unpaid writers who contribute freely to Wikipedia or so-called crowdsource or “open source” platforms.

In an article titled The importance of Wikipedia published Nov 30, 2011 on opensource.com, Susan Hewitt, a 63-year old contributor to Wikipedia says

“Wikipedia is self-organizing and self-correcting,”. “There is no boss and police force, yet at this point in its development it’s perfectly clear that it works really well.” Wikipedia calls to the better angels of people’s nature, and those angels respond.

No police force, but apparently a higher power.

It’s the downside of the concept of a free web. The truth is there are powers behind the free web and they can use their power when it suits them. Now it’s free, now it’s not. Who decides? Well, we saw this week who decides.

Interestingly, a paid product, Encyclopedia Britannica, for instance, could not be so leveraged. Once you purchase it, it is yours. It can’t be removed from your home by the publishers because they don’t agree with your politics. Is that what we pay for? Ownership? Control? Privacy? Autonomy?

http://en.wikipedia.org/wiki/Hubris

Charlie Crist Apologizes to David Byrne for Copyright Infringement

Charlie Crist has issued a formal apology for using the Talking Heads’ song “Road to Nowhere” in his 2010 campaign for governor of Florida.

Byrne sued Crist for 1 million dollars after Crist’s campaign used the song illegally. Byrne and Crist settled out of court. This video apology by Crist was probably part of the settlement.

Crist lost his election bid. During the campaign, he left the Republican party to run as an independent after a strong push from Tea Party-backed candidate Marco Rubio. Rubio went on to win the election.

Road to Nowhere was released on Talking Heads 1985 album Little Creatures.

Information Piracy and the Bottom Line

Internet piracy is a hot issue these days. As the amount of non-text media online grows, so does the amount of pirated media. But, just how much piracy is going on has largely remained a topic of speculation.

Until now.

Putting Hard Numbers to Online Piracy

A new study conducted by the British firm Envisional has shed new light on just how widespread the piracy problem is.

According to the study, in the United States alone, 17% of the content streaming, downloading, or otherwise being viewed via the internet is pirated material. That’s nearly one-fifth of all the content viewed by Americans.

To be clear, the study measured bandwidth usage. So, Envisional is not saying that 17% of the population in the United States is pirating copyrighted materials. However, it does show that a massive amount of piracy traffic is cutting into the bottom line of many companies in several industries.

The Magnitude of the Problem

If you own your own business, you can readily understand how devastating these numbers are. Imagine if, after paying for your employees’ benefits, covering workman’s comp insurance, paying business taxes, and shelling out for all the operating costs of your business, someone took 17% of your profits and walked out the door.

In fact, you don’t even have to own a business to understand how frustrating this situation is. If you’re a U.S. employee, you’re used to getting a pay check that’s missing a large chunk of the money you’ve worked hard to earn. As the old saying goes, “Who’s FICA and why is he getting all my money.”

Take another 17% off that and imagine how happy you would be.

The Good News

There is a bright side to the Envisional study. It shows a growing online market for a variety of new media. The interest is there, if we can find a way to control widespread piracy, it will open new doors for legitimate businesses to not only make money but provide additional jobs, which, in this economy, would be a welcome sight.

You can read the full Envisional report here.