Generic Fair Use

... where pop culture meets intellectual property law

Tag: Copyright Office

Seeing “Red”: Taylor Swift and the Dueling Copyrights in a Song

Taylor Swift is one of the most prominent and successful musical artists of this decade. She has registered over 100 song copyrights with the U.S. Copyright Office.[1] Of course, Swift was a teenager when she first entered the music industry. The stories of exploitation within the industry by record companies, managers, agents and representatives are vast. It appears not even Taylor Swift was immune from a rather nasty dispute with the entity that produced her first six albums.

Over the weekend, Swift sent out a tweet to her 85 million Twitter followers.

While I am very familiar with who Taylor Swift is (though I prefer Tool), there are enough stories about her ongoing dispute with Scooter Braun, Scott Borschetta and Big Machine Records. I will let someone else explain the gossipy details involved there. Nor will I perform any deep dives into the private equity acquisition of Ms. Swift’s former record company that led us to these contractual impasses. Elizabeth Warren and AOC have already dipped their toes into that murky water.

Instead, I immediately realized this topic has copyright law implications. Did you know that most recorded songs have at least two separate copyrights associated with them? That is partially why there is such drama between Taylor Swift and Big Machine’s new owners. Ms. Swift, for one, very much does not welcome these new corporate overlords.

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No Skipping Steps? The Burdens of Artistry

SCOTUS to hear case on copyright registration requirements

July 10, 2018

Copyright law is quirky. On one hand, you have a copyright the instant you fix your work in a tangible medium of expression.[1] You do not need to do anything else. Copyright protection attaches right away. Yet to actually enforce that copyright against potential infringement requires that the copyright owner take steps to register the copyrighted work with the Copyright Office.[2] That is right – a prerequisite to any lawsuit is registration. This is an added step which requires lawyers and application filing fees. The legal system always seems to be set up to make sure it gets paid first. Funny how that works.

Some states and circuits, however, have operated under a “if the application to register is on file; that is good enough” policy. The Fifth Circuit, which includes Texas, is an example of this policy.[3] Strictly speaking, the Fifth Circuit “requires only that the Copyright Office actually receive the application, deposit, and fee before a plaintiff files an infringement action.”[4] For now.

Why is this important? Well, on June 28, 2018, the United States Supreme Court granted certiorari in the case Fourth Estate Public Benefit Corp. v. Wall-Street.com, to resolve this perceived “split” amongst the circuit courts for what is required to file a copyright infringement lawsuit in the United States. This issue will be heard by SCOTUS during the next term. The result will likely impact the strategies of copyright lawyers, including me.

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