Copyright Fair Use-The Public's Interest
Mar 20, 2009
Marsha, Marsha, Marsha!. (I always wanted a reason to write that). Recently Marsha Blackburn wrote an Op Ed piece that appeared in the March 7, 2009 issue of Billboard. Congressman Blackburn (She refers to herself as "Congressman") represents Nashville and Memphis and consequently the interests of many in the music industry. I have had the pleasure of having Congressman Blackburn sit on a legislative panel I organized for the Americana Music Conference. And while I subscribe to the politics of a different party from the Congressman, she is an intelligent, informed representative whom I respect.
In her article she took the position that copyrights are a property right guaranteed by the 5th Amendment to the Constitution and therefore as a result of a radio station playing recordings on the public radio airwaves copyright owners are being deprived of their property without just compensation.
In response or as a counter to Congressman Blackburn, David Reher, president of the National Association of Broadcasters also wrote an Op Ed story in the March 14, 2009 issue of Billboard. His position is that radio stations provide a public service apart from the playing of music, and as a protector of the public airwaves the requirement to pay a tax to record companies is unfair and an undue burden.
While I may be subject to criticism by my industry brothers (which has never stopped me before), I would like to take up the interest of the general public. I don't really have the time nor the inclination to provide constitutional lesson to either one of them, nor do I want to boar the readers of this blog. However, a quick lesson is in order to help create the premise for my article.
The right of the U.S. Congress to make laws about copyright was granted in Article 1 of the Constitution. And its purpose was to "[to] promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." By reviewing the documented discussions of the founding fathers, the reasons for addressing this concept in the Constitution, the historical legislative discussion that is documented, and the case law we see that the founding fathers did not create an absolute property right to copyright for the purpose of doing what is written in the Constitution--to promote the arts and sciences.
It is up to the Courts of this country to interpret the laws of the Congress with the Constitution's intent. As a result the, concept of "fair use" has arisen many times to balance the public's right of access to artist's creations, the ability to comment or even use the art in a limited way without being sued for infringement. Examples of this use without having to get express permission is a right to write a review about an artist's music in a newspaper and show the cover art, the right to allow the public to check out a CD or DVD in the library, the right of a business to play the radio or a CD on a very small stereo system, the right to record someone's song as long as you notify the songwriter and pay him other 9 cents for each copy distributed and of course, the right of Weird Al Yankovich to write a parody of the words to a Nirvana song, the ability of radio stations to play a recording over the public airwaves (even though broadcasters have to pay the songwriters. That's a nuance to explain in another blog).
You see the founding fathers had a much bigger vision than the limited minds of major record companies and publishers looking to squeeze every penny from the users of music. The founding fathers wanted to "promote the progress of science and useful arts". It has been long established through Supreme Court cases and legislative history that Congress is charged with balancing the rights of artist's with those of the public. This is where the idea of "fair use" originated. This is the notion that some uses of recorded music or songs (or other forms of intellectual property) is just not an infringement when it balances the rights of the public to have these creations distributed, commented upon or used in some way that does not infringe upon the rights of its owners.
When you hear Congressmen, the RIAA, major publishers or major labels arguing for "artist's rights" in this country, you can bet the statements are made with some self-interest. As an attorney I have represented enough artists and songwriters in a manner that involved a fight with a record company or record label to get paid royalties. I have read tons of case law about artist's suing publishers and record companies to get paid for past royalties and the artist losing because of statute of limitations problem or contract accounting clause that limits the artist's rights to collect. So that every time I hear a major company arguing on behalf of artist's rights, I have to immediately proceed to the nearest receptacle and empty my stomach contents.
However, this blog is not about my stomach contents. This blog is to try to shed some light on the major labels and publishers taking the position that intellectual property rights is a property right that is so strictly held by its owner that if a song or recording is used by a person in any manner without just compensation that the person should be prosecuted for copyright infringement.
I am all for artists and songwriters being compensated for their works. I make a living trying every day to make sure this occurs. But fair use is why those same artists have radio stations playing their music that disseminates it to the public. It's that same public that buys the recordings and attends concerts. It’s fair use that allows the newspaper critic to quotes from an artist's songs to write an article about the song or recording. Its fair use that allows other artist's to learn those songs, record them and sell CD-with compensation to the songwriter.
This myopic view of property rights by record companies and publishers (and their loyalty to shareholders) has really gotten in the way of their ability to promote the arts and sciences. I am not naïve. But history of the music industry clearly demonstrates hat when labels spend time developing artists and recording an album's worth of good material, instead of making decisions trying to please Wallstreet, they are more successful.
The RIAA's efforts to sue children that illegally downloaded song files (an many that they could not prove they did) is a perfect example of how major music companies cannot see the forest for the trees. I don't condone illegal file sharing, but I abhor the idea of suing a 13 year old, to make a point about "property rights" that is misplace in the first place. I don’t' think our founding fathers ever contemplated children being sued for illegal file sharing when drafting the 5th amendment.
Therefore, I believe in the spirit of promoting the arts and sciences as the founding fathers set forth in the Constitution, which has been upheld by Supreme Court rulings over and over, based on both he founding fathers vision and legislative history, Congress needs to balance the idea of promoting the arts and sciences with those who elected them instead of for those who lobby them.