On Saturday evening, May 16, 2020, Donald Trump shared
a cartoonish deepfake video to his Twitter account. Trump’s 80 million
followers saw an edited video of the famous speech from the 1996 movie “Independence Day,” only
with the faces of the characters being edited to reflect certain individuals in
politics and pop culture, namely with Trump’s face superimposed over Bill
Pullman’s face (but not his voice).
While this predictably led to outrage from various corners
of the internet, including
from Bill Pullman himself, the most common complaint seemed to be “isn’t
this copyright infringement?” The answer to this question, as always, is: well,
Trump is unlikely to have acquired permission to use this
clip from Disney,
including any right to create or share derivative works, but
whether or not Trump’s uses constitute copyright infringement is not an easy
answer. Copyright is not absolute. There are always defenses to allegations of
infringement. Trump could assert the defense of fair use, specifically the
right to use the work as part of a parody – which the Supreme Court has held is
a fair use of copyright.
If this use is considered a parody, legal precedent holds
that Trump did not infringe any copyrights. What if Trump’s use is instead
considered satire? Yes, there is a difference between “parody” and “satire” and
these distinctions are significant in a copyright fair use analysis.
… and your own concert
video recordings on YouTube could be infringing, too
Prince has been gone for nearly four years. But his presence
still looms large over copyright law. Even in death, Prince’s estate continues
to keep a watchful eye over potential infringers of his musical works. The
latest dispute is a potentially haunting restriction of a popular feature on
YouTube: people posting video clips of live performances. On January 6, 2020,
the federal district court in Massachusetts determined
that Prince’s estate has the sole right to distribute video clips of his live performances
and that uploading certain song clips to a YouTube channel may even constitute
This case presents a multitude of legal issues to assess. Additionally,
this ruling leaves a potential to a technology-based philosophical conundrum for
future copyright cases as they intersect with YouTube style sites. I have a
YouTube channel. On this channel I have posted covers of songs that I play on
guitar. My videos are nothing fancy, but this recent case and others like it
have determined that these videos can actually be infringing works. This
article will try to address these legal landmines while exploring any
possibility for copyright law as it exists today to be reconciled with how
these personal camera-phone videos are treated by the law.
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. 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
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.
Kawhi Leonard sues
Nike over the copyright to a logo
June 4, 2019
On June 3, 2019, Kawhi Leonard, a professional basketball
player currently with the Toronto Raptors, sued Nike over
the rights to a logo.
Leonard contends he personally created the logo and owns the copyright to it,
but that in 2017, without his knowledge or consent, Nike filed an application
to register the copyright to this logo. From
October 2011 through September 30, 2018, Leonard was a sponsored athlete under
the Nike® brand. According to the lawsuit, he signed a standard “Men’s Pro
Basketball Contract” with Nike to be a sponsored athlete. Throughout the duration
of this relationship, Leonard endorsed Nike products and Nike used Kawhi’s name
and image to promote its products.
This is why the purported rights to the “Leonard Logo” are
Leonard’s lawsuit seeks to resolve who owns the copyright
and possible trademark rights in a logo he claims to have designed himself. The
interesting twist is that even if Kawhi created the logo by himself – that fact
alone does not resolve the dispute.
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. 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. 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. 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.” 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.
Americans buy millions of new guitars every year. Many of these are “entry-level” guitars intended for those trying to learn a new instrument. Yet somewhere in the range of 90% of new guitar players quit trying within the first year. When the electric guitar first became popular in the 1950s and 1960s, there were few ways to accelerate the learning curve. By the late 1990s, along with the advent of the internet, a tool for learning guitar and how to play popular songs reached the masses: guitar tablature or “tab” for short. The concept of tablature was not new, but the ability for an individual to read and acquire tabs through the internet was groundbreaking.
Guitar tab is essentially a shorthand method for transcribing the specific notes and chords of a song in a format that mimics the finger positions on a guitar’s fretboard. Instead of having to learn to read and translate formal sheet music, tablature is simplified. Each note is represented by a number that corresponds to a particular string and location on the fretboard. The beauty of guitar tab is that most anyone who plays guitar can transcribe a song into this format and share it with others as a teaching tool.
Naturally, it did not take long for the internet to respond in kind. Sites with collections of thousands of tabs populated the web seemingly overnight. To the surprise of no one, this also caught the attention of the music publishing industry. And their lawyers. Copyright law concerns threatened to shut down online guitar tab publishing in its entirety.
My question today is simple: while guitar tablature is likely a “derivative work” restricted by copyright law – should it be? Or should there be some sort of expressed fair use exception for guitar tablature? And if not, why not?