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).
Continue Reading Learning Copyright Law from TV’s The Good Wife – Compulsory Licenses, Derivitive Works and Parody and Fair Use