Intellectual Property (“IP”) is everywhere. IP laws cover things we interact with daily, like media, technology and even health care through patents, trademarks and copyrights. One of the reasons IP is so interesting is that despite its big impact it tends to be behind the scenes enough that many probably don’t even realize its influence. This post highlights some of these interesting behind-the-scenes tidbits of copyright law.
Did you know that the world’s most famous mouse is trying to change laws yet again? Disney has a long history of lobbying to change laws to protect their interests (such as changing copyright laws to extend the length of their copyright protection, and thus the time that it can profit off its copyrighted movies). Its newest endeavor is far bolder. Disney purchased Lucasfilm back in 2012, giving them rights to the entire Star Wars library. In 2019 it purchased 20th Century Fox and its lexicon expanded to include the classic Alien and Predator franchises. What do those two things have in common? Alan Dean Foster.
Foster is a fantasy and sci-fi novelist. He wrote, sometimes without credit, the original novelization (instead of a movie based on a book, he wrote the book based on the movie) of Star Wars,Star Wars: the Force Awakens, Alien, Aliens, and Alien 3, as well as the Star Wars Extended Universe novel Splinter of the Mind’s Eye. Ordinarily, authors negotiate a payment of royalties when they license or sell their copyright-protected works. This is because a copyright entitles its owner to legally exclude others from making their works and even creating derivatives (such as a movie version). Foster had licensed his novels to LucasFilms, but since its purchase of LucasFilms Disney has failed to pay him his royalties. Disney’s argument is that they bought the rights to these storylines (to profit and create new media), but not the liabilities (like royalty fees). Therefore, Disney alleges that they have no contractual obligation to pay creators royalty fees that were contracted by LucasFilms.
This seems a lot like Disney is trying to ignore its contractual obligation to pay creators, benefiting from IP rights without paying for them.
So, what now? Not much. Foster wrote an open letter to Disney asking for his “miniscule share.” But time will tell if Disney is successful in arguing their contract for Lucasfilms excluded liabilities. The fear to many is that this would allow publishers to break payment contracts by selling to sister companies. If Disney succeeds—how many creators like Foster will find that their contracts are meaningless once sold to the entertainment giant?
Don’t Play That Song!
Did you know that streaming copyrighted material, like movies, may become a felony? From a copyright perspective, streaming is a tricky topic. Unlike downloading, i.e. receiving data onto your device’s local storage for later use (creating a copy), streaming refers to a process where the data is accessed, but not retained. The distinction between a bath and a shower can be a helpful analogy. Both can use the same amount of water, but each delivers and stores water differently. A downloaded video file is more like the bath. It keeps the water on hand for when you are ready to use it and takes up a lot of hard drive space. It also takes a long time to fill and empty a bath. Streaming video is more like a shower. The video’s data is continuously and rapidly flowing to the user’s browser, but immediately drains from the computer storage.
So, when does streaming become illegal?
It’s hard to tell. The basic premise is that the waters get muddy when you host a stream where others can view, hear, or see the copyrighted material. But only if you’re not legally authorized to provide that stream. Watching Netflix is bed isn’t a problem because you (or the person you’ve borrowed a login from) are paying for that access! On the other hand, hosting a stream playing copyrighted music is a violation of the Copyright Act specifically this would be considered digital audio transmission). And the newest concern in streaming isn’t sporting events, Game of Thrones, or even dangerous malware, it’s streams playing copyright-protected background music. On platforms such as Twitch, gamers often live stream as they play. This live stream often includes commentary, pranks, and audio from the games themselves, it also often picks up on background noise, which is where streamers need to be careful
A felony streaming proposal Republican Senator Thom Tillis aims to provide the DOJ with the authority to charge commercial enterprises streaming certain kinds of works with felony copyright infringement. Tillis has stated that the proposal is only focused on commercial entities. Nevertheless, advocacy groups have raised serious concerns about aspects of the bill and its potential effect on creators, innovators, small businesses, online service providers, libraries, educators, and civil society organizations.
So what now? The COVID-19 stimulus package passed on Monday December 21 included Tillis’ proposal on the subject of streaming. While the Motion Picture Association of America celebrated the new law, streamers who are trying to profit from their streams could be hit with a hefty fine for an unexpected ringtone. It’s still in the early days, so the impact of the law likely won’t be felt for some time.
The bill also included the CASE act. This creates a small claims system allowing individual creators and small copyright holders to challenge copyright infringement without opening a federal case (which can be prohibitively expensive). The CASE Act is intended to be a solution to online copyright infringement, and can lead to fines of up to $30,000.
Look What You Made Me Do.
I’m sure you knew that Taylor Swift had her masters (this refers to a master recording) sold last year to Scooter Braun, and that he recently sold the rights to Shamrock Holdings. But did you know Taylor can rerecord her music?
To understand how Taylor can re-record her music, we need to explore copyright authorship and ownership. Taylor Swift is the copyright author of her music. That means she wrote the melody and the lyrics. In other words, she is the author of the composition. As the author and copyright owner, she has the right to create derivatives of her original (such as a re-recording). The master, on the other hand, is the original recording of the composition – every CD or Spotify stream is derived from that original recording.
So, what does this mean? Well, Taylor can’t authorize the use of the original recordings, as she doesn’t own them anymore. But that doesn’t mean she can’t rerecord them – after all, she still owns the rights to the melody and lyrics. And if this Match.com commercial is anything to go by, those new recordings are well underway!
IP law is constantly changing and affects many aspects of everyday life without us knowing it. There are twists and turns and it’s constantly developing!
Keep an eye on the IP Bytes blog to learn more about changes in IP law, including trademarks and patents and how they are applied!
Loyola Chicago School of Law, Class of 2022