Copyright Law and Ellen

EMILY SAIDEL: In the community of good liberals and active artists, record labels are often demonized. The wild witchhunts to track illegal music downloads of the early aughts, led to vast humor at these corporations’ expenses. However, The Ellen DeGeneres Show is now accused of using music without the permission of the rights’ holders, namely all the major record labels. And they are rightly being sued for that abuse.

It is important to keep in mind that this issue is distinct from that of the relations between labels and artists and the imbalance of power in many of those contracts. The suit alleges that the show has played more than 1000 songs without obtaining the appropriate permission for that usage. Ellen DeGeneres is not a defendant in the suit. That honor goes to Time Warner, Warner Bros. Entertainment, Warner Bros. Television, Telepictures Productions, WAD Productions, and A Very Good Production, according to Variety.

One could argue that the short clips profit the recording labels by exposing a wide, national audience to the musical selection of the day. However, the show does not have a featured music section at the end of the episode as do many shows on networks such as MTV or the CW, in which to specifically highlight the chosen artist. Without this feature, any profit from sales of the song are clearly not intended by the show, since audience members must seek out information about the song through the vagaries of the internet. Either way, this potential gain of the recording company is again, not the issue. Upholding the law as it currently stands is.

Recognizing the Copyright Act of 1976 and its subsequent amendments is much more than an issue of money and licenses. That producers would so flagrantly disregard these laws should be insulting to all others who hope to have a seemingly legally protected contract legally protected in reality. I’d like to ask these producers if they are comfortable with me taping The Ellen DeGeneres show from its broadcast and then showing it in public (and presumably not in a fair use kind of way.) If the answer is no, than their hypocrisy is evident, and if the answer is yes, it’s a good thing I have more respect for the law than they do.

STEVE MURPHY: Musicians can’t be expected to monitor, contact and invoice everyone who uses their music.  Several major organizations exist to fill this role of administrative middleman, to protect and enforce the performance rights of people who make music.  On it’s face, that sounds pretty noble.  Unfortunately these companies, which could better be described as collection agencies, have become so greedy and opaque that their ‘protection’ now means rabid enforcement to the point of decreasing the potential for an artist’s sales and exposure.

The rights to the music these agencies represent are often owned not by artists but by record labels, companies not exactly known for taking the thoughtful long-view.  And so these agencies are allowed to pursue the quick buck, ignoring the new music economy that is already shaping the future of music: give away the music (a non-scarce good) and make your money on scarce goods instead (merchandise, concert tickets, etc).

Ellen, from what I understand, plays song clips on her show, and she does a little dance to them.  Yes, she is using someone else’s music product for a commercial purpose, and her show’s producers haven’t been paying for the rights to that music  Yes, this is wrong, and the collection agencies that are demanding payment from the show are well within their rights to do so. But, to paraphrase Jeff Goldblum, just because they could… doesn’t mean they should.

The artists who made this music probably don’t mind that Ellen plays it and dances to it.  I haven’t done any interviews on the subject, but most modern artists recognize that their success is directly tied to their exposure.  When Ellen plays a song, millions of people hear it, maybe bounce to it, maybe decide to buy it for themselves, maybe come to see that band live and buy a t-shirt on their next tour.  That’s far more valuable to an artist than the few cents they’d get from having Ellen pay for the rights to use that one song one time.  I understand Emily’s point above regarding Ellen’s nonexistant “featured music” notice, but I personally feel these brief ads take away from the credibility of the artist, somehow making the band feel more corporate.  I know that when I hear a song I love on a show, I turn to the internet to find it and seldom have a problem.

So why don’t the collection agencies see that they’re missing the forest for the trees?  Because they don’t get a piece of the forest.  When an album gets sold, the ‘performance rights’ don’t get sold with it, and so these agencies don’t get paid a dime.  They don’t care if the artists would be better served in the long-term by allowing Ellen to play the song in question.  The artist is not their concern.  And the record labels who own the rights to most of these songs, have always been happy to make a quick money grab.

Take Pandora internet radio, for example.  This is a service that benefits everyone.  It exposes the right music to the right people (which is good for the user).  It provides links to buy all the music it plays (good for the artist/label), and it’s paying for every play (good for the collection agency).

But SoundExchange (a collection agency that specializes in internet and digital rights) wasn’t satisfied, and recently doubled the rate Internet radio stations like Pandora pay per play.   Pandora protested, explaining that with their business model this was not a sustainable number… but SoundExchange made the change anyway.  This almost immediately put Pandora into bankruptcy, and were it not for some skillful maneuvering and deal-making, Pandora would be dead today.

Rather than let Pandora exist in peace and benefit the entire ecosystem, SoundExchange nearly murdered it with intolerable fees.  This wasn’t a move aimed at protecting artist rights; from an artist’s perspective the death of Pandora would have closed a powerful window directly to an audience with a high likelihood of becoming paying fans.  This was a mugging.  SoundExchange didn’t mind taking all the money in Pandora’s wallet, and leaving it broke.  Nobody benefits.

Ellen is a similar situation.  After this toussle with SoundExchange, her producers may decide to ditch this dancing-to-music bit altogether.  Even if that doesn’t happen, how many others have heard about this and may no longer use popular music in their show because they don’t want to get sued?  How many will choose not to play popular music on their show because they don’t want to deal with the fees?  Who does that benefit?  Not the artist.  Not the collection agency.  Everyone involved needs to realize that Ellen and Pandora are promoting the music for free.  Free advertising.

And lest you think these are isolated incidents, there’s a history of absurdity and greed here.  In 1996, one agency made headlines for suing the Girl Scouts and Boy Scouts for singing songs around their campfires.  ASCAP believes that every time a ringtone of an agency-protected song plays (ringtones that have been paid for by the end user!) that agency should receive a performance fee.  In the UK, a similar collection agency famously prosecuted an auto mechanic shop for performance fees because an employee’s radio was on within earshot of customers.  Who benefits from any of this?  Isn’t there a solid chance that the Boy Scouts grow up to love those songs from around the campfire, and maybe become big fans of some of the artists?  Is there any downside whatsoever to a customer vaguely hearing a radio from another room in a mechanic’s shop?  Can that even be considered commercial use?

ASCAP and BMI even recently suggested they should be paid by Apple and Amazon every time someone clicks on a 30 second sample in their online music stores!  This is a very obvious mistake, isn’t it?  Apple and Amazon would almost certainly have to raise their prices, to make sure they could afford to keep their stores open with all these fees.  But of course, the collection agencies don’t make money when you buy the song, and so they’ll screw the customer (who has to pay more or buy less) and the artist (who therefore sells less music) just to ‘protect’ them.

MATTHEW DAVID BROZIK: Two words (in Latin, even): De minimis. (As in that well known limerick about the ill-endowed lawyer. You know the one I mean.)

De minimis is a general defense, equivalent to… well, “Come on. It’s too small to matter.”
In the specific context of copyright law, it is not a matter of harm to the holder, necessarily, since harm is not an element of a claim of infringement.

Playing Devil’s consigliere for a moment: How much of any particular song does Ellen dance to? Thirty seconds? So Ellen’s producers might counter an infringement claim with the defense, “We used all of thirty seconds of a three-minute song. That’s only one-sixth of the total work. That’s de minimis.

The copyright holder might counter back, “First, that’s hardly de minimis. It’s a whole sixth! But in any event, we’ve seen an immediate demonstrable drop in number of online sales of the single, since so many people recorded the episode of your program and are now just watching Ellen dance and listening to thirty seconds rather than downloading the entire song from iTunes. So even if the court finds the clip a minimal portion of the whole (in terms of length alone), the harm (which we need not prove in the first place) proves that despite its small size, the clip is actually a substitute for the whole work.”

De minimis is not, by the by, the same as fair use. Fair use will excuse what would otherwise be infringement because the benefit to society outweighs the harm to the copyright holder. One can copy an entire protected work if one can assert fair use. Fair use is a much stronger defense than de minimis. A finding of de minimis use is a finding that there has been no infringement. Fair use, on the other hand, is a defense to infringement, the sine qua non of which absolutely is public benefit–even if it is not the entire public that benefits. News reporting, edumacational usage, and the like… These are the sorts of things that open the door to the defense. The inquiry of “how much?” can let the infringer sail through the open door (if the answer is “very little”) or slam the door in the infringer’s face, if the answer is “much more than was necessary.” Fair use isn’t a blank check, on other words. It’s more like overdraft protection.

All that said, thirty seconds is unlikely to be deemed a minimal portion of a three-minute song. A symphony, perhaps, but not, say, “Walkin’ on Sunshine,” (or whatever the kids are listening to these days). So, starting from the idea that we want to protect the works of those who create them (in order to promote Science and the Useful Arts… not to mention to form a More Perfect Union), unless there’s a reason to permit another to infringe, the law forbids it.

It will be interesting to watch how Ellen’s producers try to dance their way out of this.

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