The Good Wife is not usually where one turns for serious discussions of music copyright issues (nor is Stephen Colbert’s Christmas special where we found copyright issues discussed several years ago). But I was surprised to find this Sunday that the principal plot line of The Good Wife was focused on a music rights dispute. After watching, I wondered how many people in the show’s audience had any idea of what the legal issues being discussed were really all about. In fact, copyright law, as confusing as it can sometimes be, is an unusual topic for a plot line on a TV show. It is not as universally understandable as is a criminal trial, a custody case or some civil suit for damages. In fact, as we’ve written before, the complexity of copyright law makes compliance difficult even for those involved in the industry. The Good Wife episode itself made that complexity a comedic point throughout the program, as even the musicians involved in the plot line several times remarked that they, too, were clueless as to the rights issues involved in this fictional case. But, with a couple of days to reflect on the program, I thought that it might be worth expounding on some of the copyright issues involved, as they illustrate some of the rights that are included in the copyrights to every piece of music.
As we have written before, what makes copyrights in music so confusing is that there are several copyright holders in each recorded song, and each copyright holder has different rights, often administered by different organizations. We write much about the public performance rights in sound recordings (usually payable to SoundExchange by noninteractive digital music services, and to the record companies by interactive services) and in musical compositions (usually payable to ASCAP, BMI and SESAC, though some large publishing companies have started to pull their catalogs from these organizations to license directly). But The Good Wife did not deal with the public performance right, but instead with other rights in music. The two rights principally dealt with were the right to authorize the making of a reproduction (often referred to as a “mechanical right“) and the right to make a derivative work. The first is the right of the copyright holder to authorize others to use their compositions or recordings to make copies. In the TV case, the issue involved the rights held by the writer of the song to authorize others to make cover versions of that song and to reproduce those versions (e.g. through CDs, downloads or other digital reproductions). The right to make a derivative work is the right that the copyright holder has to authorize others to take parts of the original work but to make more than cursory changes to that work, e.g., keeping the melody and changing the words, or as in the TV case, keeping the words but changing the melody (in the TV case, taking a rap song and giving it a real pop song melody).
In dealing with the right to make reproductions, the show talked about the use of a compulsory license. But this is not the compulsory license that we so often write about in the context of Internet Radio royalties (see, for instance, our post just last week about the Copyright Royalty Board beginning a proceeding to set the royalties for the compulsory license to publicly perform sound recordings – a compulsory license, or statutory license, being one set by statute that the copyright holder must give if the user complies with the requirements of the statute). What was discussed in the TV show was the compulsory license to use a musical composition to record a cover version of a song – the mechanical royalty that is embodied in Section 115 of the Copyright Act. Essentially, whenever a recording artist wants to make a cover of a song that has previously been recorded and released to the public, the artist can do so, as long as he or she goes through a registration process and pays the composer (or the composer’s publishing company) a royalty. We wrote about a settlement in the most recent Section 115 royalty case to set the rate for the compulsory license – setting that rate at 9.1 cents per copy, a level at which it has been for many years. But the new settlement went further, setting rates for on-demand streams and other digital substitutes for a physical copy. I’m sure that the producers of the TV program had no idea that the settlement setting these royalties was just last month approved by the Copyright Royalty Board (see the Federal Register notices here and here).
In the case featured on the Good Wife, the manager of the band making the new version of the song got a license to use the composition apparently by approaching the artist directly, not through the process laid out in the Copyright Act, which involves many formal notices and filing procedures. In recording a single song, a direct license is usually the easiest way to license a composition to avoid all the paperwork set out by Section 115 required by the actual compulsory license. So, while the band on the TV show may not have technically received a true compulsory license – at least the show properly conveyed the idea that a band, when it records a song written by someone else, needs to get a license to do so.
On the show, the band had approached the firm in which Alicia Florrick (the title character for those who don’t watch the show) to sue a TV show, where singers on the show made a virtual note for note rerecording of the band’s recording (which had taken a rap song and mellowed it out and given it a real melody with a hint of a reggae beat). In order to sue the TV show for using the melody that the band had come up with, the lawyers had to find a way for the band to have a copyright in the work that was used in the TV show. Those who make a “derivative work” – a reworking of the song that changes the words, melody or otherwise takes the original and uses it some new way – can get a copyright in the derivative work itself. But that derivative work can only be copyrighted by someone other than the original composer of the song if the creator of the derivative work has the permission of the original copyright holder to make the derivative work – a permission that became problematic in the show.
When the rights to make a derivative work became problematic in the episode, it became clear that a copyright lawyer was consulting with the producers as, in what struck me as a smart piece of lawyering, one of the band’s lawyers came up with the idea of claiming that the song was actually a “parody” of the original rap song. If the song was deemed to be a parody, then the use of the original copyright holder’s work would not need any license as it would be a “fair use” (so avoiding the need to get permission to make the derivative work was the point of the maneuver in the show, but one which I think would have been lost on any but the most copyright geeky members of the audience – like the one I see reflected in my computer screen). So the legal point made in the show was that if someone makes a “fair use” of a song, the user does not have to pay royalties. A fair use is one the meets a series of tests set out in Section 107 of the Copyright Act. The test includes looking at the purpose of the use – favoring uses for some noble purpose – e.g commentary or criticism. The amount of the copyrighted work that is used is also a factor that is reviewed, as is the likelihood that the purported fair use will have an economic impact on the original copyrighted work. And whether the use is for-profit or not for profit can also weigh in the analysis. It is not an easy calculus, and no one factor is determinative, so any claim of fair use is always a risk, as a judge may not agree with the evaluation made by the user of the copyrighted work.
In the TV program, the Court had battling experts as to whether the song was a true parody – a parody being one that criticizes or makes fun of the original work – rather than one that is independently funny. So a song that takes a familiar tune and changes the lyrics to make them funny is not necessarily a parody, unless those changed lyrics criticize or otherwise comment on the original lyrics of the song (see our post here for one example of a dispute raising these issues). Again – it is a much-litigated area with no clear answers, so users should not lightly expect that an unlicensed use of a song will be considered a fair use.
In the TV program, the ultimate resolution, like in so many other cases, was a settlement. But let’s give credit to a TV producer tackling a difficult legal topic on their show, and giving us examples to illustrate difficult copyright concepts.