Tag Archives: copyright

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Learning to Write

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Let’s say you want to write a sonnet. This means you have 14 lines, typically written in iambic pentameter, and separated into an octave of eight lines (or two quatrains that sum to eight) as well as a sestet, or a six-line stanza. And you then choose a rhyme scheme. There’s, for example, the Shakespeare approach: ABABCDCD EFEFGG. Or you might opt for the Petrarchan sonnet: ABBAABBA CDCDCD.

Or let’s say you’re feeling somewhat more adventurous and decide to pen a villanelle. Here you are going to write five three-line stanzas and end with a quatrain. However, the first and third lines of the first stanza are alternatively repeated in the subsequent stanzas. The consequent rhyme scheme is: ABA ABA ABA ABA ABA ABAA.

Or, frustrated with either of those, go for a haiku. This is certainly simpler: three lines with a combined 17 syllables, with five in the first and third and seven in the middle.

(Writing a haiku/can cause a feeling of calm/as others frustrate)

Regardless of which form you follow, assuming that you’re writing in English, there are some 470,000 words that you can use.

However, if you’re opting for the sonnet or the villanelle, there are a few more challenges, in that there are several words in English that don’t rhyme. Yes, orange. But the colors purple and silver don’t have rhymes, either. Wolf and walrus. And many others.

So there are restrictions, or boundaries, that are necessary in order to create something within a particular form or genre. Things can be done differently (Shakespeare published 154 sonnets), but in order to be in a particular form there are things that must be there.

Which brings me, in a roundabout way, to the lawsuit brought by the heirs of Ed Townsend against Ed Sheeran in which it was claimed that there was a copywrite violation with Sheeran using chords and rhythms from “Let’s Get It On” in “Thinking Out Loud.”

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Words and Music

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Webster’s Third New International Dictionary, Unabridged, and its 1993 addenda, includes approximately 470,000 words.

It is calculated that 171,146 of those words are in common use. (Words that are in uncommon use are things like lunting, or walking while smoking a pipe, a word that you’ll now want to use although are unlikely to find an opportunity to do so.)

Shakespeare used more than 20,000 words, invented some 1,700 (including bedroom, critic, fashionable, gossip, kissing, lonely, rant, undress and worthless, which themselves could be worked into some clever poem).  The Folger Shakespeare Library has it that he wrote “at least 38 plays and over 150 short and long poems.”

Let’s say that back in Shakespeare’s day there were a total 400,000 words. This means that he used 5% of all of the available words in the English language to write what are widely considered some of the best works in the English language.

While you consider that, you might go lunting.

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The Excerpted “WIPO Performances and Phonograms Treaty”

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In 1996 the World Intellectual Property Organization (WIPO), which, as of 2019, had 192 states as signatories, from Afghanistan to Zimbabwe, established a treaty with the objective of developing and maintaining “the protection of the rights of performers and producers of phonograms[*] in a manner as effective and uniform as possible. . . . Recognizing the profound impact of the development and convergence of information and communication technologies on the production and use of performances and phonograms, Recognizing the need to maintain a balance between the rights of performers and producers of phonograms and the larger public interest, particularly education, research and access to information.” Yes, a treaty that takes into account the provisions of both the Berne Convention (1971) and the Rome Convention (1961).

It is a 38-page document.

So here are a series of excerpts from it, which, may provide some insights into the rights of performers, which, somehow, seem to be almost equal to those of producers.

All of this may be worthwhile keeping in mind as the issue of remuneration for performers vis-à-vis streaming services continues to roil the music industry.

Keep in mind, however, that this treaty was established in 1996, a year after the Fraunhofer Society released the mp3 digital audio coding format and three years before the creation of Napster.

Mutare tempora, as they used to say some 1,520 years before the treaty was signed.

Article 1

Relation to Other Conventions

(1) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations done in Rome, October 26, 1961 (hereinafter the “Rome Convention”).

(2) Protection granted under this Treaty shall leave intact and shall in no way affect the protection of copyright in literary and artistic works. Consequently, no provision of this Treaty may be interpreted as prejudicing such protection.

(3) This Treaty shall not have any connection with, nor shall it prejudice any rights and obligations under, any other treaties

Article 2

Definitions

(a) “performers” are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;

Article 5

Moral Rights of Performers

(1) Independently of a performer’s economic rights, and even after the transfer of those rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.

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History Lesson from Alanis

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On April 3, 2001, Don Henley spoke to the Senate Judiciary Committee on the subject of “Online Entertainment and Copyright Law.” To hear Henley say, “Like it or not, Napster has changed everything” makes you realize how far in the past 2001 is, perhaps not in terms of time as much as in technology. And just as a historical side note, also speaking to the Committee was Hank Barry, then-CEO of Napster, who noted that Sean Fanning was in the audience and was 20 years old, which made him, Barry undoubtedly said to be funny as he spoke primarily to a group of people who had white hair, “over the hill.” As Barry is an attorney and a venture capitalist, he probably had a better sense of Congressional humor than I do. And speaking of senators, it did seem odd to see, while watching the C-SPAN coverage of the testimony, Senator Patrick Leahy, then as now representing Vermont (he is presently the longest-serving senator, besting both Chuck Grassley and Moscow Mitch McConnell), sitting next to Orin Hatch (who retired from Congress in 2019 after 42 years—bet you didn’t know you were going to be getting a civics lesson on GloNo), pull out a camera—yes, a full-size camera, as, remember: this was six years before the iPhone—and presumably take a picture of Henley.

It is also worth noting that following Henley, Alanis Morissette spoke, and I must say that she actually did a better job of making a presentation, raising—remember, this is 2001—an interesting argument that because when it comes to royalties musicians were pretty much not receiving them due the the accounting practices of the labels and consequently it wasn’t an entirely bad thing that listeners were getting access to music free from the Internet because from her perspective, she wasn’t seeing anything in the way of remuneration, so that music would help build community which would then allow her (and others) to make money from touring and merch. She also stated, “History has not been kind to artists who have candidly expressed points of view that differ from recording companies.’”

Last week, Henley was back in front on the Senate Judiciary Subcommittee on Intellectual Property Law. The subcommittee is now chaired by Thom Tillis, who is in his first term representing North Carolina, and who is running for re-election this year. When I Googled him the first result is an ad that has below the text headline: “Support North Carolina’s Warrior in the Senate. Donate Here! Conservative. Father. Proud North Carolinian. Husband. Grandfather.” I wonder how his wife feels about her position in the rankings. Apparently the first live concert that Tillis, 59, Warrior, saw was. . .the Eagles. Which segues nicely to: “As a 55-year veteran of the music industry, I was asked, by the chairman of this Senate subcommittee, to come here and testify today on behalf of the creative community—songwriters, musicians, music publishers—also known, in today’s digital world, as ‘content providers.’”

Henley stressed that he was speaking on behalf of the little guy: “It is truly unfortunate—and patently unfair—that the music industry is perceived only in terms of its most successful and wealthy celebrities, when in fact there are millions of people working in the industry, struggling in relative obscurity, people whose voices would never be heard were it not for hearings such as this one being held today.”

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Did Obama Violate Copyright?

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God Save the Queen, we mean it, manBy now, you’ve all heard that President Obama gave the Queen of England an iPod. Turns out there were 40 songs pre-loaded on it. Showtunes to accompany a coffee table book he also gave her. When I heard about this, the first thing I wondered was whether or not the RIAA was going to go after his ass. The Electronic Frontier Foundation has been wondering the same thing: iPods, First Sale, President Obama, and the Queen of England.

In the digital era, however, first sale has been under siege, with copyright owners (and even the Copyright Office) arguing that it has no place in a world where “ownership” has been replaced by “licenses” and hand-to-hand exchanges have been replaced by computer-mediated exchanges that necessarily make copies. But it’s precisely because first sale is central to everyday activities like giving an iPod to a friend, selling a used CD on eBay, or borrowing a DVD from a library, that EFF and others have been fighting for it in case after case.

So, how does President Obama fare in this? It’s nearly impossible to figure out. If he’d simply purchased a “greatest hits” CD of show tunes and given it to the Queen, the first sale doctrine would have taken care of it. But because digital technology is involved here, suddenly it’s a legal quagmire.

The fact that this is such a convoluted issue kinda proves we need to reform copyright law, doesn’t it?

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Techdirt vs. ASCAP (Round 2)

Piracy is not theft

Six months ago, we linked to a Techdirt article wherein Blaise Alleyne challenged the premises of ASCAP’s “Bill of Rights” for Songwriters. One of our regular commenters immediately rebutted Alleyne’s arguments (“That post is BS and uses disingenuous comparisons to make untenable points.”). It took him a while, but Alleyne finally responded:

The problem with the copyright crutch is that digital audio files are an infinite good. The price naturally tends toward zero because the supply is infinite. Musicians and music fans alike would be much better off leveraging the infinite value of digital music (i.e. spreading thread music as far and wide as possible), and capitalize on the scarcities associated with their music (e.g. physical goods like CDs, concert tickets, access to the musician, the ability to create new music, etc.).

ASCAP is stuck trying to enforce artificial scarcity on music through draconian copyright measures. Good luck with that. Musicians would be better off not to get sucked into the sinking ship, but to leverage the economics of abundance to their advantage.

I’m linking it to here so it doesn’t just get lost in the itty bitty comments section…

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RIAA Loses Another Filesharing Trial

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Well, the RIAA didn’t technically lose the trial, but a federal judge declared a mistrial and threw out the verdict against a Kazaa user who had been ordered to pay the recording industry $222,000 for allegedly sharing music online:

U.S. District Judge Michael Davis of Duluth, Minn., declared a mistrial in the case against Thomas, who was charged in October with violating copyright law by making 24 songs available for others to download on the Kazaa network.

Davis set aside the verdict on the grounds that he misguided the jury, telling jurors that simply the act of making a copyrighted song available for sharing amounts to infringement.

Looks like that “Making Available” case that the RIAA lost back in April is setting a precedent. Just because someone made files available doesn’t prove that anybody actually downloaded them.

Via Idolator.

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Wanna Buy Some Promo CDs? It's Legal!

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Remember that case we told you about a few months ago where UMG claimed that it was illegal for recipients of promo CDs to re-sell them or even to throw them away? Well, a judge disagreed, and held the the “first sale” doctrine. Liberation Day for Promo CDs: Victory in UMG v. Augusto:

In its ruling (PDF), the district court found that the initial recipients of “promo CDs” own them, notwithstanding “not for resale” labels. The court rejected the notion that these labels create a “license,” concluding that the CDs are gifts. According to the opinion, “UMG gives the Promo CDs to music industry insiders, never to be returned. … Nor does the licensing label require the recipient to provide UMG with any benefit to retain possession.” (The court also found that federal postal laws relating to “unordered merchandise” establish that promo CDs are gifts to their recipients.)

So there you have it. If anybody wants to buy a bunch of crappy CDs (cheap!), we can hook you up…

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Techdirt vs. ASCAP's Bill of Rights

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Over on Techdirt, Blaise Alleyne rips apart ASCAP’s “Bill Of Wrongs” for Songwriters and Composers, point by point, item by item.

1. We have the right to be compensated for the use of our creative works, and share in the revenues that they generate.

Why? In what other industries do creators maintain control over their creations after they reach consumers? Lenovo has no right to be compensated for the use of my laptop or to share in the revenue I generate through developing software. This is not a given.

It’s all debatable, of course, and that’s the point. These are not rights granted by the U.S. Constitution or current copyright law, as ASCAP implies. It’s just a wishlist, “just an assertion of the status quo by those who depend on copyright law to protect their obsolete business models.”

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Elvis Enters Public Domain, Sony-BMG in Denial

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Elvis Album At The Center Of U.K. Copyright Row:

In one of the clearest signs to-date of Sony BMG’s tough policy of enforcing the copyright of its vintage Presley works — even though some sound recordings have become part of the public domain — the music major put pressure on Cargo to withdraw the release, “New York: RCA Studio 1: The Complete Sessions.” Sony BMG disputed that a handful of outtakes on the album, which was released by Memphis Recording Service, were public domain.

Songs originally recorded in 1956 entered the public domain on January 1, 2007, since the copyright term for sound recordings in the UK is 50 years (in the US, it’s the life of the author plus 70 years). Looks like the album in question has been pushed back to February 25, 2008. We’ll see…

Previously: UK Copyright Not Extended.