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Cirque du Soleil’s Steel Dream is a Legal Nightmare for Justin Timberlake

by Katherine Imp

Cirque du Soleil sued Justin Timberlake last week, alleging that the singer, along with his writers, producers and recording company, “sampled” a portion of Cirque’s song, “Steel Dream” without permission on his 2013 song, “Don’t Hold the Wall”.

Before reading any further, listen to the first 20 seconds of “Steel Dream.” Now listen to Timberlake’s song, beginning at 4:04.

If you were on a jury, would you say that Timberlake and his team used a portion of Cirque’s song in “Don’t Hold the Wall”?

The answer is undoubtedly yes, even if the “Justin Timberlake fan” inside of you is telling you otherwise. Those 15-second tracks are nearly identical.

So can Timberlake and his team get out of this mess?

To answer that question, you first need to understand how “sampling” fits into US copyright law.

“Sampling” occurs when one artist takes a portion of another artist’s song and reuses it in a new song. Note, however, that sampling does not necessarily require use of a pre-existing recording.

Here, Cirque du Soleil has a copyright interest in the composition (codified in 17 U.S.C. § 102(2)) of “Steel Dream” and a second copyright interest in the sound recording (codified in 17 U.S.C. § 102(7)). Thus, even if Timberlake did not use Cirque’s pre-existing recording (that you just listened to on YouTube), he could still be liable for copyright infringement for use of the underlying melody or lyrics.

In the early days of hip hop, no one bothered to get a license to “sample” another artist’s work, but once the music business tanked, publishers and recording companies needed to find more ways to make money. Thus began the trend of requiring a license to “sample” the work of another artist and slapping a copyright infringement claim on anyone who refused to obey.

Under Section 106(2) of Title 17 of the United States Code, the owner of a copyright has the exclusive rights “to prepare derivative works based upon the copyrighted work.” The argument being made by publishers and recording companies (and Cirque du Soleil) is that “sampling” is a derivative work and thus protected under copyright law.

Timberlake now has three arguments he can make:

1. No Copyright Infringement

To establish infringement, Cirque du Soleil must prove that it has a copyright interest in “Steel Dream” and that Timberlake copied elements of the work that were original. “Copying” requires Cirque to prove that Timberlake’s song is “substantially similar” to Cirque’s song and that Timberlake had access to the song.

Timberlake could argue that the similarity is not substantial and that no one from his team saw the show or heard Cirque’s song prior to creating “Don’t Hold the Wall”.

2. Fair Use

17 U.S.C. § 107 allows one artist to use the copyright of another artist without permission in certain, limited situations. In determining whether a particular use is “fair”, courts will consider: the purpose of the use; nature of the copyrighted work; the amount used; and the effect the use has on the copyrighted work’s commercial success.

Timberlake would have to admit to using “Steel Dream” without permission, but could defend himself by arguing that the use was “de minimis” and did not hurt Cirque’s ticket and record sales.

3. De Minimis

Some courts have argued that “de minimis” is available as an alternative to fair use in cases where the violation is “so trivial that the law [should] not impose legal consequences.” Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).

Timberlake could argue that the copyright infringement should be privileged because of the extremely limited use, the lack of harm on Cirque’s sales and the excessive cost of adjudication (a lawsuit like this could cost hundreds of thousands of dollars).

While these may seem like good arguments, courts have been hesitant to side with defendants. In Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), the court ruled that the defendant’s sampling of a two-second guitar chord constituted copyright infringement.

Getting back to my question above: Can Timberlake and his team get out of this mess? Unlikely.

The legal system around sampling is a complete disaster. According to Variety, Timberlake has had several copyright infringement claims filed against him just in the last year alone.

None of the courts want to be responsible for establishing a bright-line rule, and none of the publishers or recording companies want to force the courts to establish a bright-line rule (e.g., by suing the creator of Girl Talk, whose entire work is made up of sampling) for fear that the resulting rule will not be in their favor. And most artists don’t have the money to fight the legal battle so they pay the license fee or wait to get sued and then settle as quickly as possible.

All I can say is, I’m glad I’m not a musician in 2016.

Katherine Imp is a transactional entertainment attorney at Cummins & Associates, Ltd., specializing in production legal, film finance and intellectual property matters. Contact Katherine at @KatherineImp or kimp@cumminsassociates.com.

Disclaimer: The information in this column is intended for general information purposes only and should not be construed as legal advice.

To see the original post, and similar articles, check out Katherine Imp’s SCREEN Magazine column, Street Legal.

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Expanding Copyright Protection for Sound Recordings

by George M. Borkowski

It may come as a surprise to some that sound recordings – the actual performance of music and lyrics fixed in a recording medium, as opposed to the underlying composition – were not protected by federal copyright law until 1972 – and then only prospectively.  The Copyright Office has now recommended that the Copyright Act be amended to encompass such sound recordings.

The reasons for the exclusion of sound recordings from the Copyright Act until 1972 are not entirely clear.  To protect sound recordings created prior to 1972, record companies and other rights holders had to rely on a variety of state statutory and common law, which is specifically permitted by the Copyright Act.  In California, for example, Civil Code section 980 grants the author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, exclusive ownership of the sound recording until February 15, 2047.

This situation obviously makes it more difficult for owners of pre-1972 sound recordings to protect their rights to those recordings.  State laws that may offer some protection have been described as a patchwork of often vague and inconsistent rights.  In addition, there is no presumption of validity that is accorded by a copyright registration from the Copyright Office, and chain of title thus may be more difficult to establish.  This is a significant limitation, given that these are older works and include, for example, recordings of old radio broadcasts.  It is also harder to have pre-1972 works that are being infringed on websites removed from those sites, given that the notice and takedown provisions of the DMCA (section 512 of the Copyright Act) apply only to copyrighted works.  Also, statutory damages (and often attorneys’ fees) are not available to plaintiffs in infringement actions of pre-1972 works.  Moreover, after February 15, 2067, the Copyright Act provides that all pre-1972 sound recordings will enter the public domain at once.  Ironically, this gives pre-1972 sound recordings – which are not protected by copyright – a longer term of protection than many old works that are subject to the Copyright Act for which protection expires after a set number of years.

In response to this issue, in 2009, Congress instructed the Register of Copyrights to conduct a study as to the “desirability and means” of extending federal copyright protection to pre-1972 sound recordings.  The Copyright Office took comments from numerous interested parties, including sound recording and other libraries, recording industry associations, broadcasters and satellite radio, music publishers, songwriters, universities, as well as other organizations and individuals.  It also conducted public hearings and met with interested parties.

The study has now been completed, and the Copyright Office has released several recommendations based on its results.  These recommendations include the following:

  • Federal copyright protection should apply to sound recordings fixed before February 15, 1972.  (Special provisions will be needed to address ownership issues, term of protection, and registration.)
  • All rights and limitations of the Copyright Act applicable to post-1972 sound recordings would apply to pre-1972 recordings, including a public performance right for digital audio transmissions, fair use, DMCA safe harbor for Internet service providers, and the anti-circumvention provisions of the DMCA.
  • Authors of pre-1972 sound recordings would have the right to terminate grants of transfers or licenses of copyright that are made after (but not before) the date federal protection starts.
  • The term of protection for pre-1972 sound recordings would be 95 years from publication, but in no event beyond February 15, 2067.
  • A transitional period would be instituted during which owners of pre-1972 sound recordings would be able to seek statutory damages and attorneys’ fees in infringement litigation notwithstanding the lack of registration of those works prior to filing suit.

There are several other recommendations as well.  The full report can be accessed at http://www.copyright.gov/docs/sound/pre-72-report.pdf . If accepted, these recommendations should go a long way toward harmonizing copyright protection for all creative works of original authorship, regardless of the medium (and regardless of the reasons why pre-1972 sound recordings were treated differently to begin with).

Mr. Borkowski is a partner at Freeman Freeman & Smiley LLP.  He represents major entertainment and technology clients at the intersection of content creation and protection with technology, focusing on the impact of technology on traditional intellectual property rights and business models.  Mr. Borkowski has handled the full continuum of intellectual property, technology, and entertainment litigation, as well as anti-piracy and rights enforcement, and counseling.  He can be reached at george.borkowski@ffslaw.com

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