Copyright Law and the Music Thesis

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As technology and the capability of removing artifacts from recordings improve this area of the law will be likely to be revisited in the future.

This last revision to copyright law raised more questions than it answered. For instance, was it acceptable to colorize black and white movies? Did this alter them from the original work, or was this an acceptable? Was it OK to alter pieces of work to make them more family oriented, or politically correct? Many of these issues are still a topic of debate in legal circles. As case law progresses, it is likely that many of these issues will be codified in future versions of the law.

Technology was a driving force in changes to copyright law over the years. When the concept of copyright, was first introduced, the printing press was a new idea. The idea of recording sounds or voices was not introduced until much later. The ability to store sounds, thus capturing a moment in time, and preserving it for future replay was even farther away. Now we have the ability to copy sounds at incredible speed and to distribute them to millions around the globe in a matter of seconds. We can take old master recordings and change them. We can alter the tone of the voice, and clean them to take out old blemishes. Like many technological advances, these inventions led from the question of "could we?" To the question of "should we?" Modern copyright law reflects the progression of technological advances, as much as it reflects the manner in which society views this technology.

Cases that Shaped Copyright Law and Interpretation

Case law and technology development have been the key driving factors underlying changes to copyright law. The DMCA was a result of the Napster Inc., v RIAA

. Another key law developed from the United States v LaMacchia case. In this case, David LaMacchia, a student at MIT, use University computers to create a bulletin board for users to download copyrighted software. Users could download millions of dollars of software such as WordPerfect, Excel and other proprietary brands. This was similar to the manner in which Napster allowed users to share music without a purchase. Copyright owners suffered huge losses in both cases. However, in the case of LaMacchia, he avoided punishment by proving that he never intended to profit from the act. These cases formed the basis for the most recent additions to copyright law.

In the case of Napster, copyright infringement nearly ended in a racketeering charge, as users formed groups for illegal file sharing

. The NET Act of 1997 was a result of LaMachia's case. It set limits on the number of times that a user could reproduce a copyrighted work. Under this act, a person cannot reproduce more than one song, more than one time during a 180-day period, and those reproductions cannot have a retail value of more than $1,000.00

At current retail prices, those who downloaded as few as 150 songs during a six-month period could be charged with felony copyright infringement. This could carry a 3-5-year jail sentence and a fine of up to $250,000

. The paralegal needs to be aware of the severity of copyright infringement and make their client aware of the seriousness of the crime as well.

Another case that shaped copyright law is Eldred v Ashcroft (2003). This case challenged the constitutionality of the Sony Bono Copyright Extension Act. Prior to the act, some businesses were in danger of losing proprietary rights to their most valued assets, including Mickey Mouse and Winnie the Pooh. Those that opposed the extension included Eldred and other who had their sights set on being able to distribute and profit from these works of art at their discretion. Eldred argued that Congress violated the Constitution by allowing laws that allowed copyright owners to renew the rights to their works. However, the under the premise that the Constitution did not prevent renewal of copyrights, common law won out and copyright owners were allowed to renew their copyrights. This decision means that the owners of classics such as Jailhouse Rock and the Wizard of Oz are still safe.

Baker v. Selden (1880) set limits on the amount of material that can be used for a work to be considered original

. In this case, the infringer attained fame and notoriety for a work that only consisted of a small portion of original work. Baker, the infringer won, due to the fact that he had better lawyers, not because he was correct.

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In a similar case, Computer Assocs. Int'l, Inc. v. Altai, Inc., (1992)

, the infringer was able to copy software from another, rewrite it and then take out the copied portions. Although, morally, what he did was wrong, the courts had to rule in his favor, as the final rendition contained none of the original work from which it was taken. These cases illustrate the crafty ways in which infringers can manipulate the law to get away with what is rightfully not theirs.

Understanding Common Law Copyright and Statutory Copyright

Copyright of a musical creation is based on the premise that a piece of music is the same as any other tangible property. Common law copyright holds that the copyright to a piece of music is the natural right of the creators of the piece. Under this legal definition, the music is considered a tangible creation, just as if it were any other type of invention. All works, including those that were unpublished, were protected under this clause of federal law

Common Law Copyright differs from statutory copyright. This type of copyright protection occurs because of the U.S. Copyright Act

. Copyright in the United States is guaranteed by the Constitution and is a Federal Law. Copyright law is administered on the Federal Level by the United States Copyright Office. The original intention of the Copyright law was to protect written works and inventions to promote the advancement of science

. Musical recordings, as we know them today did not exist when the original Constitutional Article was conceived.

There are several key differences between common law copyright and statutory copyright. In the beginning, copyright was regarded as a dual system that allowed the Federal and State laws to work in conjunction with each other. Much of early copyright law was determined by case law and precedence. Old statutory copyright only protected works that were registered. Common law copyright applied to unregistered works. In order to be covered under copyright law, the work must be fixed in a tangible form of medium. In other words, one cannot copyright an idea unless it is written on a piece of paper or recorded in some way as to preserve its original form.

Examples of pieces that would not be protected under copyright law are dances, or pieces of choreography that were never notated or filmed. However, once a piece has been filmed, it is fixed in a tangible form and can be copyrighted. An improvised piece of music that is never written down or recorded, but only exists in the artist's mind can never be copyrighted either. The only way to make a piece capable of being copyrighted it so write it down or record it.

After the Copyright Act of 1976, states no longer registered copyrights. The Federal government became the only entity that could register copyrights for any medium. If a piece does not meet the requirements to be protected under federal law, it cannot be protected at all. The state cannot protect a piece that federal law does not protect. This came principle applies to enforcement as well. A person cannot be prosecuted in state courts for copyright infringement. Copyright cases are always tried on the federal level.

Just as the original copyright law protected works in an attempt to encourage invention, modern copyright law is supposed to promote creation of artistic works of art. The original version of copyright law later developed into patent law. Copyright law then only applied to works of art. The two laws are differentiated only in the types of work that they protect. The concepts between patent law and copyright law are similar. The purpose of copyright law is to benefit the public be encouraging acts of creation. The rights of the individual are secondary to the rights of the public.

The Basic Rights of Copyright Ownership

Copyright ownership conveys with it certain rights regarding the work. The first right is the right to reproduce the work by copying or by other means of production. It also gives the author rights to produce derivative works based on the original. The owner of the copyright can change the work and use it as a springboard for other works. The copyright holder may distribute the works for sale, rent, or….....

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