Maristella Feustle: Thanks. And, and so uh as many of, you know, probably firsthand um copyright and radio collections is a, is a particular can of worms because of the many layers of copyright interests that can be represented in a single program, especially where music is involved, but also news, talk, sports, you know, in sports without the express written consent of the Toledo Mud Hens or whichever other team is involved. Uh Wherever you have copyright, you have the actual risk, the fear of risk based based on available information and limited bandwidth to deal with it all. So the opportunity costs from decisions under these conditions uh affect preservation decisions and it’s often easier to defer decisions or have them get lost in discussions rather than fully opening that can of worms. So in today’s town hall, we’ve assembled copyright experts, three of whom appeared in our prior speaker series on radio and copyright in late 2022 to talk about various angles of the issue. But also to give more time for people working in the field to talk about their own experiences across a wide geographical area.
Maristella Feustle: So we’ll have about half the session dedicated to our panelists and then we’ll open it up for Q and A and discussion. So, uh first, first off, um um if uh if our, our panelists can introduce themselves and today just arbitrarily we’re going in reverse alphabetical order. So I think uh Kevin, that’s uh that puts you first.
Kevin Smith: Sure, thank you. And I’m delighted to join you all. Uh My name is Kevin Smith. I am currently the library director- I should say that Michael and Eugenia Wormser Libra- Director of Libraries at Colby College. The chair was just endowed. So I have to practice uh using my new title. Um I’m a, I’m a lawyer who specialized in copyright throughout my career, but my career has always been in libraries. So um I’ll uh I’ll be focusing my remarks on library preservation uh and the creation of digital collections.
Maristella Feustle: Ok. And Eric.
Eric J. Schwartz: Uh Hi. Hi. And uh thank you uh for inviting me. My name is Eric Schwartz. Um I’ve been a copyright lawyer for 36 years. Um I’m currently in a law firm Mitchell Silberberg. Long, long ago, I worked at the US Copyright office and also long, long ago I started sort of a second career all pro bono doing film and later sound recording preservation work uh helping uh initially to start the National Film Preservation Board in 1988. And I’m still on that. Uh somewhere along the line, I should get a 35-year pin, I suppose, from the library uh and the uh National Film Preservation Foundation in 1997. And uh in the no good deed goes unpunished category in Washington DC. the librarian has also uh asked me to serve on the Recording Preservation Board and just recently the Recording Preservation Foundation. So 4,4 boards dedicated preservation.
Eric J. Schwartz: And I do a lot of advising uh over the years to archives, museums, um and educational institutions.
Maristella Feustle: Thanks. And uh Charles?
Charles Cronin: We’re trying to- am I unmuted now? I think so. Yes. [laughter] OK. My name is Charles Cronin. Um I am a adjunct professor at Claremont Graduate University which does not have a law school. Um And um a visiting scholar at George Washington University. Um My, I, while I am a lawyer, I think it’s been about 30 years since I actually practiced very briefly. Um I’m, I consider myself more of a humanist. I have a PHD in, in historical musicology. Um And I haven’t been uh uh uh seeped in, in library concerns at the moment, but I’m happy to talk about other copyright issues that I’ve been, I’ve been pondering.
Maristella Feustle: Thanks and Brandon.
Brandon Butler: Yeah. So I’m uh Brandon Butler. I’m currently the director of intellectual property and licensing at the University of Virginia Library. Uh I’m also a, a co owner in the little law firm called Yazi Butler P LLC that focuses on advising fair use uh devotees including filmmakers, podcasters, and uh and TV, producers about how fair use can help them. Um And in the, in, you know, my deep history is not, not quite so deep as Eric’s or Evans. I may be the, I’m like the youngster on the line here, which is weird because um anyway, I don’t feel young.
Brandon Butler: Uh I, I, but I’ve been working in libraries for, for a while. I uh I was uh the director of uh public policy initiatives at the Association of Research Libraries. And then uh for a little while I was a clinical law professor at American University.
Maristella Feustle: Thanks. So uh we’ll, we’ll go ahead and get started and I’m gonna mute my mic and uh and uh turn it over to, to Kevin as we go around again and reverse alphabetical order.
Kevin Smith: All right. Thank you. Um As I sort of hinted in my introduction, my remarks are very much focused on libraries. Um and they’re based on the presumption that in a digital age preservation and access really go hand in hand. That is, I’m looking at considerations for digital collections that although created for preservation purposes are also going to be accessible to some group of users. I think that’s a key aspect of why we digitize for preservation.
Kevin Smith: Um So I’m going to focus that way when Maristella asked us for topics, I guess I said the first things that came to mind, one is a strategy that I developed several years ago along with a team that was working on a large scale digital collection that focused on copyright risk management and I appreciated your opening remarks, Maristella about risk. Um My goal here is to give us a way to organize some of our thinking about how we control risk. Uh when we create digital collections for preservation as well as for other uses. The other topic I mentioned is the impact of the Music Modernization Act of 2018 on how we think about collections of sound recordings. I’m pretty sure there is more expertise on this panel than I have about the MMA. But it fits nicely into the strategies that I’m going to outline. So I will simply treat it as a diversion when I get to the relevant points in what is a four-point strategy. And as I say, this strategy is about risk management. I have observed that sometimes in libraries, we think in all or nothing terms about our digitization projects. We can only digitize a collection that’s entirely in the public domain, for example, or we cannot digitize a collection unless we have permission for each and every item in that collection. But copyright seldom works that way, especially when collections contain a diverse array of types of materials and Maristella’s introduction suggested that that’s what we’re talking about in many cases in radio preservation. Our approach needs to be more about considering the risk, both the risk of creating the collection and the risk of not doing so and then finding ways to mitigate that risk. And so in order to think in terms of risk management, I suggest looking at copyright issues for any digitization process from four distinct angles.
Kevin Smith: First, this is my first point of the strategy. First, we should recognize that for most projects that have a preservation aspect to them, some of the materials involved may be in the public domain. As a reminder, materials published before 1964 had to have their copyright renewed after 28 years, a majority of works were not renewed. So even though it may not be possible to know for sure which specific materials in a collection are in the public domain. Recognizing that there are some materials that likely are PD will help us put the risk of a digitization project in a better perspective. Also, the Music Modernization Act has begun to clear up some of the uncertainty around pre-1972 sound recordings. The act brought such sound recordings into federal protection and created a graduated schedule for when sound, certain sound recordings would become public domain. The earliest batch, those sound recordings fixed before in 1923 or earlier are now safely out of protection. And there is a rolling batch of early recordings that will become openly available each year going forward. So that may also factor into our planning and reduce the sense of risk associated with digital collections that include older sound recordings.
Kevin Smith: The second strategic prong that I suggest is to seek permission when it’s possible to identify a rights holder and to focus on those rights holders who hold rights in large batches of the material in question. This is not a suggestion that we get permission for everything because I don’t think that’s possible. But for a large digitization project on the civil rights movement, for example, that I was involved in, there were a lot of newspaper articles. We started by looking at one of the large newspapers for whom we have multiple articles, we want to digitize. The one that rose to the top was the Chicago Defender and we approached them for permission. Uh The advantage of it was not only did we get permission but, we found an ally to help us with the project.
Kevin Smith: So, um again, I’m not advocating that we seek permission for every item, but rather that we look for the large or potentially litigious rights holders in order to reduce the risk. And again, we’re trying to manage risk. Here again, the Music Modernization Act has a role to play by creating a mechanical licensing scheme and a statutory collective rights organization. The MMA has made it possible to license sound recordings for digital audio transmission much more easily. Now, to me, at least the MMA is a difficult piece of legislation to read and interpret. It seems to reflect all the messiness of legislative sausage making and I am hoping there are there is more expertise on this panel. But I say that to emphasize that its provisions may not apply to all of the radio preservation projects that you are involved in. But I do want to flag this blanket license as a potential way to save time and reduce risk for at least some of those projects.
Kevin Smith: The third strategy for risk management is not surprisingly fair use. Now, I think Brandon is going to talk in more detail about fair use and and he is definitely the expert uh as far as I’m concerned, so I won’t do a lot of that here. I just wanna note two things. First, fair use is an aspect of this strategy where it’s possible to exercise some degree of control over the risk. Fair use offers us some levers we can pull um to try and control risk for a particular project. We can take steps for example, to make our collections more obviously transformative by being sure that they are include criticism and comment in the overall collection for some materials. For some materials if we perceive them as a heightened risk, we might also be able to reduce the amount that we use without compromising the overall value of the collection. Again to improve the fair use case and reduce the risk. The other point I wanna make about fair use is simply that this is the core of our risk management strategy because fair use can apply to an entire collection not just selected elements, not just those that are in the public domain or that are potentially subject to license. Fair use is what’s going to encompass our thinking about the entire collection. Um And fair use is a strategy that is made for- its provision of the law- that is made for digital preservation, for the kinds of activities that libraries especially are involved in. So that’s just to say, please listen closely to what Brandon has to say and I’ll finish up pretty quickly so we can move to the other speakers.
Kevin Smith: Um My last strategy is simply what people generally call a takedown policy, which is to say that we should be prepared to take down materials from a digital collection if we receive an objection from the rights holder, of course, we might need to do that. But I wanna qualify this strategy with a caveat. Whenever possible I suggest that we don’t remove material from an- permanently remove material from an accessible digital collection until you’ve talked to the person who is raising the objection. For one thing, you can politely ascertain if they really do hold the rights on the basis of which they’re objecting to your collection. In my experience it’s surprising how often they cannot provide basic evidence of ownership. But more importantly is that those conversations often lead to better understanding from both sides and sometimes eliminate the need to take material down. I once had a conversation with a woman who was very angry about the fact that a letter she had written years earlier was part of a digital collection, uh this was at Duke University, and I had some responsibility for this digital collection. Two things came out of that conversation. First, I learned that her major objection to the inclusion of this letter was the address that was still visible on the digital version of the letter, which was actually the address of her mother’s house and she did not want that um on the internet. Well, we could easily redact the address from the digital version and we did so while she and I were still talking, but she also learned something that her letter had had a significant impact on the topic at issue and was really a part of the historical record. By the time we hung up, she had withdrawn her objection to the letter being included without the address in our digital collection. And we had become better curators of that collection from what we had learned by talking to her. So I wanna qualify a takedown strategy. It’s really a talk to people strategy. And that’s the final point in my four-point strategy for managing risk when we think about digital collections and especially digital collections that have a very diverse set of materials that are included in them. And that’s my dog.
Maristella Feustle: Thanks Kevin! And we’ll turn it over to Eric.
Eric J. Schwartz: Well, thank you. Um And I, I uh think that Kevin’s strategies, uh four points make total sense to me. Um One, quick caveat, of course, that lawyers also have always have to provide on these sorts of things is that I’m not here representing anyone and the opinions are solely, um, my own. Um, a couple of things I, I was asked, um, I think to take a look at Section 108. But before doing that, a quick structural uh comment for those of you unfamiliar with uh the sectional numbers of copyright law, the way copyright law is structured. Section 106 are the five exclusive rights of copyright owners, uh reproduction, distribution, adaptation, public performance and public display. Section 107 is fair use. And then 108 is the exceptions specific to libraries and archives, public libraries and archives. Uh And then there are other exceptions that run 109- sections 109 through 122. And if you look at the, the way exceptions were written by Congress and some amended over time, um some apply to specific users 108 public libraries and archives, some for specific types of uses, public performances in section 110. So I just, you know, uh uh when I start throwing around these numbers, I just didn’t wanna uh lo lose my audience as I usually do in my law school uh classes. Second point is that I think mostly I was here uh to participate in our so-called lightning round of questions or you may refer to it as the uh stump the copyright lawyer uh segment of our program today. So I’ll be happy to answer any questions you may have. Couple things on 108. When I started looking through some of my notes, at least the ones that are in my electronic system. I found my comments from 2009 the uh Recording Preservation Board, we had a 108 study group. I found my comments from 2013 at Columbia Law School, the uh so called Kernochan Center. And then I thought back to the studies that we used to be required to do at the Copyright Office in the 1980s, the so called 108 Istudies that uh the copyright office wrote and I probably nobody read.
Eric J. Schwartz: Um And, and I just realize how frustrating it is over time to look at a section of the law that could provide, I think a lot more. Yes/no to archives Um and um museums and libraries uh if it were to explicitly include museums which it currently does not. Uh and other educational institutions. Um and the efforts to amend section 108 are just so frustrating that it’s been drawn out for so long. So a couple of things about section 108, you know, how do you navigate a section that is for the most part uh written in the 1970s. Um Well, one was Kevin’s strategy which is by private contract or private agreement. Uh I see uh Emily from the Library of Congress is, is, is uh here and knows well, two agreements that she and I worked on. I for the rights holders, the Sony Music Agreement in 2010, which uh created the so-called National jukebox, um which gave pre-1925 recordings, Victor Records uh uh to the Library of Congress for, well, the the physical materials were already there but rights to use that material. Now, this is before the MMA and as Kevin mentioned, the, the treatment of public domain works, by the way, uh one thing you know, just one point on Kevin’s point about public domain, there are differences between published and unpublished works for duration just we’ll leave it at that. Um And that agreement, the Sony Music Agreement was also with uh UC Santa Barbara too. So uh allowing uh not just the Library of Congress but also UCSB to make uh access and use of the materials.
Eric J. Schwartz: The second Agreement uh that I worked on in 2011. I had to look at my own notes. Uh was the Universal Agreement. 200,000 masters were given to the Library of Congress 1928 to 1948 master recordings. So it’s not inconceivable that you can have agreements. I mean, these were large collections obviously with, with a national institution the Library of Congress. But it doesn’t mean as Kevin suggested that other institutions, smaller institutions can have their own private agreements. Uh and uh that, you know, detail the specific types of uses that institutions can make and that can essentially override section 108. You know, the second way to deal with uh the the the shortcomings of 108, of course, with legislative reform. And as I said, a study group was formed in 2005 by the Library of Congress. A lot of smart ideas, uh you know, and a lot of compromise, that’s what happens when you have groups of rights holders, libraries and archives and other interested parties in a room. And it, it stalled, it stalled in part because uh of um the, you know, some years later, I guess the litigation pertaining to uh Google books and, and a point I’ve raised before, um I don’t think it’s very kind controversial, but I really do think it’s unfortunate that some of the library uh organizations in my, in my term, not theirs were co-opted by a commercial enterprise like Google Uh that said, don’t fix 108 because fair use will, you know, take care of all of your concerns. Well, for all the libraries and archives that I’ve worked with for over 35 years, uh if you involve a lawyer, there’s usually one in the institution that has to deal with everything in the institution, you know, labor issue who slip and fall in the, in the buildings and everything else. And you say, so I think we can do this, but it’s complicated. That’s the point at which the lawyer simply says, no, don’t do it. Uh And that’s what fair use is. It is determined on a case by case basis, fact basis. And I know Brandon will talk about it in more detail, but I really don’t think that fair use is the, the panacea, that institutions think it is. The fact that institutions don’t necessarily get sued means that the rights holders aren’t necessarily enforcing their rights against the institutions. It doesn’t mean necessarily that the uses are fair. And so the third and final way to deal with section 108, of course, is litigation. And as I said, you know, you have cases, the Ha HathiTrust case and Google Books of almost a decade ago. But again, I don’t think it’s that useful to for most archives if a lawyer is involved, I think if section 108 ever were amended and they were clear yes, I can do this. No, I can’t do that. I think a lot of institutional uh archivists would say “Aha, now I know that what I can do and now I know what I shouldn’t do” because I think above all, uh from my experience, the most um law abiding copyright law abiding citizens are um archivists and, and librarians and, and other museum officials, it’s just sort of in their nature. Um So I looked at cases of section 108. The last, I went back the last three years. Um and there’s only four cases, three of them mentioned 108 in a footnote, um which just shows you how significant it is to the courts just very quickly to flash through them.
Eric J. Schwartz: So the book publishers sued the district Attorney uh excuse me, the Attorney general of Maryland in a case called AAP v Frosh in the District Court of Maryland. The decision rendered in February 2022 Maryland enacted a law which would have required publishers to share copies including e copies with libraries. The publishers sued saying that that law was state law was preempted by federal copyright law and they were successful. Um The, you know, the question was, was the state law requiring copyright owners to license works in conflict with the Copyright Act. And the District Court in Maryland said, yes, it is also looking by the way at a third circuit case, uh Orson involving a state law in Pennsylvania that had to do with how films were licensed. The one thing that the court did do sort of throwing a bone to libraries and archives. Uh It, it recognized and I’m reading my notes here, quote, the significance of libraries referring to section 108 and the quote privileged status. So you should all feel privileged of libraries and archives that permits reproduction for preservation purposes.
Eric J. Schwartz: But ultimately, the court said it’s for Congress, not the courts or the state legislature to regulate how libraries and archives can make use of materials and the rights of copyright owners to uh license their reproduction and distribution rights. With the exceptions of fair use and section 108 2nd case. And I’ll only mention uh two because the others are, are, are not all that significant. Um Where is the uh hachette the internet archive case which I’m sure you’re all aware of southern district of New York with a ruling uh in March of last year um for publishers suing the internet archive uh uh a nonprofit digital library infringing uh f for the infringement of books by copying 3.6 million books, scanning print copies and lending them to web users. And the court in the southern district of New York, a significant copyright uh court because it gets so many copyright cases said the uses were not fair use. The library had lawfully obtained the copies, but that didn’t support fair use because they copied entire works and they were competing with publishers uh for the licensing market and ebooks. Interesting.
Eric J. Schwartz: There’s a footnote in that case as well which mentioned section 108, which is the point of my mentioning these cases, not fair use but 108, the publishers had argued that uh that there that the ties between fair use and 108 were significant to the publishers, the court. However, uh in the southern district of New York, disagreeing with the publishers said that sections 107 and and 108 have to be constituted and treated separately. So in other words, if something is not fair use, then you’d look to section 108 or vice versa. The last case I I would mention uh was a photographer suing the University of Houston on a question of sovereign immunity. I know this is a question that uh Maristella asked us to treat in the Q and A. I’ll, I’ll simply say that the defendant, the University of Houston uh said that though they had infringed copyright, their use of the photograph was defensible as a matter of sovereign immunity. Sovereign immunity is a constitutional principle that says states can’t be sued without their consent. Uh It is also treated uh both as a matter of constitutional strength and also uh under the 11th amendment, at least in two specific instances.
Eric J. Schwartz: Um And the court agreed with the University of Houston, it said the single act of infringement is, is a kid to a transitory common law trespass. Um But so, so the bottom line is, it was not a taking uh because the author, photographer retained their right to possess use and dispose of their copyrighted work. Bottom line there is that the photographer could make the university stop its u unauthorized use of the photograph but couldn’t be paid for the unauthorized use. And in a footnote, the, the court simply mentioned section 108 along with all the other exceptions in 108 to 121. So, so that’s, you know, what, what we have on section 108. Last in my last minute, I would just mention the 22 other significant developments that you may want to be aware of. One is a this week development.
Eric J. Schwartz: Uh On March 11th, the European Union Parliament adopted the uh A I Act Artificial Intelligence Act. Uh It is a very pro copyright owner act uh with strong copyright rights protections for the ingestion of copyrighted material into the A I machines. The law is a regulation and not a directive under eu law, which means that once it goes into final force, it has to be adopted by the Eu Council. Uh And then I think there’s a two year um date of enactment. It will be the law of all 27 of the EU countries. And the other significant development. Uh If anyone wants to ask questions about is the, is the adoption of the small claims court which only started its activities in June of 2022. Uh And, and this is an alternative to federal courts for disputes which uh you know, libraries and archives can preemptively opt out of all proceedings if they want to, but they can also decide to bring disputes in the CCB if they choose to.
Eric J. Schwartz: So I’ll end there and, and turn it over, um, to, uh, the next speaker. Thank you.
Maristella Feustle: Thanks and over to Charles.
Charles Cronin: I be. Can you hear me? Yeah, you can hear me now. Got it. Ok. Good. Ok. Um, one thing I, I, uh, want to observe is that it, um, I suspect, um, one common, um, person among the, among the panelists is Pierre Ya.
Charles Cronin: Um, that, uh, I, I was a student of his many years ago and, um, I, I, so he, in fact, he spurred my interest in, in copyright, um, uh, from the get go. Um, in any case, I, I want to talk about uh, something far less, um, um, detailed, um, than uh, section 18. But, um, uh, first mention that my uh involvement with copyright has increasingly, um, been uh uh shifted to, uh, and a slightly uh related area and that is intellectual disputes and, um, international dis disputes involving cultural property. And that’s what I’m focusing on primarily at the moment. But, um, there are two things that I would, uh, I would, uh raise here this morning. Um, yeah, this afternoon for many of you. Um, and one is a project that, um, is now that I, that I’ve developed, that’s now at George Washington University Law School called Music Operating Infringement Resource.
Charles Cronin: Um, and, um, which I can, I can touch on a little later if we have time. Um But uh my current uh work in intellectual and in a copyright, uh it involves a AAA far higher level um uh concern. Um and specifically a, an article I’m thinking of uh of drafting um on literacy, technology and copyrightable expression. Um and the thesis of my article and I’ve been thinking about this for some time. I haven’t put any, put in, put the pencil to paper. Um is that copyright was intended and should, and it and should protect works of literate authors. Um And I’m sure this is uh it could be a somewhat controversial issue but um by literacy, I mean, the capacity of the author to understand and deploy visible symbols with which a work is assembled and recorded.
Charles Cronin: Um And in part, this uh this idea has come about um because of a couple of recent um uh high profile cases that you’re probably all very familiar with. Um one involving Ed Sheeran, the pop musician, um and another involving Pharrell Williams, also a pop musician um in a dispute with the uh uh heirs of the Marvin Gaye uh family. Um And in the, the Ed Sheeran dispute, which was uh um uh decided uh not sure some months ago, maybe a year ago, um Ed Sheeran was uh was, was held or the jury found uh for Ed Sheeran and that there was no uh copying of the protective expression of um um wasn’t actually Marvin Gaye was the, the co co-author of one of his, uh, one of his songs. Um, uh, and then in the Pharrell Williams case, he, uh, Williams was found liable along with Robin Thicke for, uh, infringing the protective expression in Marvin Gaye’s, uh, song that it’s, let’s give it up first. I’m not sure exactly which the song is. I’m not a popular musician and I don’t particularly enjoy pop music. Um, In any case, these are two somewhat conflicting um decisions.
Charles Cronin: They, they amazingly enough, in my opinion, the Ed Sheeran uh dispute, a decision has been appealed um which is, which I think is, is, is quite remarkable. Um And I, I doubt that it will be successful in any case. What, what I I observe from these cases is that none of the participants were in my opinion that they had only limited, if any musical literacy, it was technology that was responsible primarily for the appeal of the works. Um That is the sound engineering. Um The uh the, the, the, the audio uh engineers were in my uh view responsible for the appeal of works and even the creation of the works were probably um uh it’s, it’s the creation uh involved cutting and pasting uh sounds, basically audio, audio clips um using the technology of a recording uh recorded sound. Um The other uh case that uh has prompted uh my consideration of this uh issue of literacy, technology and copy edible expression is the um uh case um Goldsmith versus Warhol Foundation. Um Sure you’re all familiar with this.
Charles Cronin: Um in which, but very briefly, uh Goldsmith uh uh posed uh the pop musician Prince and took a photograph of him and then down the line, this is very, very, a very rough approximation of the facts. But down the line, Andy Warhol uh took that photograph, um doctored it with uh various colors and distortions. Um and uh and sold these, these uh these uh prints, um I guess they’re silk screens. Um And in that case, ultimately, the Supreme Court decided that um Andy Warhol’s uh taking of the or, or a uh adoption of these, of these photos was not uh fair use. And uh the foundation was found liable for infringing the uh photograph of Goldsmith. Um And again, in, in both of these cases, I don’t think either party um was literate in the visual arts. Um It was technology that was ultimately responsible for the marketable work and simply um conveying or, or translating the idea of conception of the, of the, of the, the purported author, whether it’s Warhol or Goldsmith.
Charles Cronin: Um And the, I think the, the um root of this evil if you will of uh of uh protecting works of non literate um authors is the Cerro case in which the um uh the Supreme Court held that uh photographs were uh potentially protect. Um based on the idea that uh, uh, a photographer didn’t simply press a button but actually posed the, the scene that he or she was, was, uh, was capturing, um, whether the dress of the, of the, the, the individuals being photographed or the, the background or the lighting, many other, many other aspects. Um, I think that there was a much stronger case for protecting, uh, uh, uh, photographs at the time of the case, which was 1884. Um Whereas today, it is machines that are, are primarily responsible uh for the, the, the value or the, the uh uh whether it’s aesthetic or, or, or, or financial of a, of a photograph. Um So I uh my, my uh thesis again is that literacy is uh is essential or should be essential for, for corporate protection and less uh less literacy. Um This uh shown in a, in a, in a work or the, the less of less a literacy is responsible, the a literate author is responsible for the, the ultimately marketable or uh appealing um artifact of the less the thinner the, the protection should be. And so literacy and music, for example, would involve um an understanding of notation um of melody, rhythm and harmony, literary works.
Charles Cronin: You obviously have to be able to, to write uh and uh and read uh words and punctuation, the visual arts, for example, um you would have to have a thorough understanding of drawing and perspective um because using visible symbols uh provides the author a distance um to uh have a high level understanding of, of uh of a work so that uh you can create uh far more complex works than you can if you simply use uh paint or sound or um uh or, or, or spoken words. Um And imagine if, uh if uh for instance, Proust had been illiterate, would we have any, um he, we would have nothing, he would, we would never have heard of, heard of Christ. Um In any case, that’s what I’ve been thinking about working on. And I don’t know whether I have uh time to talk about the music copyright infringement resource, but I can place it here in the chat if anyone is interested in taking a look at that and that now and uh I will uh let Maria Marcella take over from here.
Maristella Feustle: Thanks and uh we’ll turn it over to, to Brandon.
Brandon Butler: Excellent. Hello y’all. I am mindful that we have like uh not much time left. So what I’m gonna do, I do have some slides I am going to fly. Um And just, these are mostly like a, a little taste, a little pricey version actually of the talk that probably many of you heard uh that I gave about fair use uh at some length um to this group uh last year. Um If I have a, if I have a thesis, it is uh fair use is amazing.
Brandon Butler: It’s important. Uh it has many, many advantages over, uh, some of the, uh, specific exceptions that you’ve heard about so far and over, you know, uh, attempting to seek permission when it often isn’t necessary or, you know, attempting to determine copyright status of applying rules that are extremely confusing. Um, fair use can be, uh, a way to, um, to answer hard copyright questions. Um, much more simply actually, it has this sort of reputation as being uncertain and complicated. Um But for my money, the fair use calculus is uh a lot cleaner and simpler and faster than a lot of other technical determinations that one can make under the copyright act. So, right, in a nutshell, what is fair use? It’s the, it’s the flexible uh open ended users, right?
Brandon Butler: In the copyright Act that says you can uh use works that are in copyright, any kind of work uh uh in copyright uh without payment or permission under certain circumstances, right? And the judges use these four factors to decide whether your use is fair. Uh We probably all, you’ve probably heard these factors before, even if you haven’t heard them from me. Um You know, what is the purpose of your use, the reason for your use, right. What kind of work are you using? How much are you using? And what is the effect of your use on the market?
Brandon Butler: Those factors are great. They are based on, you know, a century and a half of previous case law that had developed in the courts. Uh Congress said very clearly when they codified fair use in the 76 fact that these factors are only meant to sort of gesture at that history. Right. And that the courts are con are supposed to sort of continue to be flexible, they’re not trying to freeze anything in place. And so courts have continued to sort of apply fair use to new situations that, you know, no one could have anticipated. I think we’re living through one of those situations right now in terms of artificial intelligence.
Brandon Butler: Um And so, but if you really, if you’re, if you try to be like a textualist and, and look at those factors and say, ok, fine, you know, let’s, let’s pretend I landed on earth yesterday from, from another planet. What are the factors mean? They’re not very helpful on their own? You really do have to read cases uh to get a sense of, of how to do fair use. Um But, you know, to my mind, the next most important thing to know about fair use is that the courts have really emphasized a couple of questions as sort of the overarching of uh the questions that drive those four factors. You know, some people don’t like that, some people regret it. Uh But I think it’s just true, we have sort of now uh somewhere between four and seven, you know, longitudinal studies of copyright case law that say this is what judges do in the vast vast majority of fair use uh decision making.
Brandon Butler: They ask under the first factor is your use transformative. Are you doing something new and different with the work that is uh you know, uh creating new information, providing uh providing a new context, serving a different audience and so on. Um Or are you doing kind of the same thing the creator was doing? Right? Um And that question informs the rest of the factor calculus because a lot of what fair use is really about is, you know, are you sort of unfairly intruding on the zone of control that copyright intends to give to the copyright holder or not? And uh if you’re doing something fundamentally new and different, uh then odds are you’re not intruding on that zone of control, you’re engaged in criticism, comment research and so on. That doesn’t uh uh offer a superseding substitute for the copyrighted work in the market. Um And then if you have a good sort of explanation of why your use is for a new and different purpose, then the courts ask whether the amount that you’ve used is appropriate to that purpose. And again, there’s a kind of mythology of fair use that says, you know, well, it’s a kind of thing that you get away with, you know, it’s something that needs to be very small and modest and, and, you know, the less the better um and in some circumstances, all else equal, less is better.
Brandon Butler: But in fact, uh what the law says over and over again and in the case law is the amount that uh the amount that you’re, that you use under fair use, um is an amount appropriate to your lawful, justified, favored purpose. And in some cases, in the entire work has been the appropriate amount. Um So its not the case, that sort of less is always more. There was a case you might have heard of in the last 20 minutes called Warhol V Goldsmith. Um And uh for my money, Warhol, V Goldsmith changed essentially nothing about what I’ve just told you that is the Supreme Court did not change fair use in that case. Um This is the core holding in in Warhol, if an original work and a secondary use share the same or highly similar purposes, right? Not transformative and the secondary use is commercial, then the first fair use factor is gonna weigh against fair use, absent some other justification, right?
Brandon Butler: So this is not a revolution in fair use. Uh case law at all. Warhol sort of doubles down on the transformative framework. Um It’s just that unfortunately, you know, uh Andy Warhol was pretty much engaged in selling images to the exact same people that Lynn Goldsmith was selling images to. Um and he used too much of her image in that context. OK. Um Another interesting thing that I’m probably I just always want to repeat in context like this one is that we have, you know, very good authority in the legislative history that fair use uh is, is very favorable to preservation, you know.
Brandon Butler: And so, um, again, you know, there’s, there’s specific protections for preservation in section 108 and those are fantastic for the reasons Eric described. It’s really nice to know and to have a very clear, you know, sort of yes, no answer uh under section 108. But I don’t know that it gets too much clearer than this in terms of what Congress intended for fair use to do as well. In terms of preservation. I think we can rely on the notion that uh fair use does apply to sort of preservation of material. So they don’t literally disappear right before their copyright terms run out. The really nice thing about fair use again is that it, it cuts a lot of Gordian knots, right? Um So there are a lot of works whose owners have, have fled the scene, you’ll never find them, you’ll never identify them.
Brandon Butler: We, we sometimes call those orphan works. Um And so, you know, a, a situation where seeking permission is, is impossible. Uh fair use uh can apply there and make seeking permission unnecessary. Um in the radio context, you know, one of the things that’s sort of confounding about radio is that you can, you can put all kinds of works on the radio, right? And so it may be that you’ve got sort of, you know, multiple copyright holders, multiple layers of works, you know, do I need to go to the sports league and clear this as well as to the broadcaster and clear this? And do I need to go to the poet who wrote the poem? And then do I need to go to the voice actor who performed it and, you know, who owns any of this stuff anyway?
Brandon Butler: And what were the contracts between these people? Um uh None of that matters if what you’re doing is fair use. Uh You don’t have to fall down those rabbit holes. And again, in terms of certainty, I’ll take the four factor calculus over, you know, uh trying to unearth the agreements that were governing, you know, CBS radio in the seventies any day, right? Um Also, there are very complex provisions in the law, uh which are important and they do what they do, you know, uh uh usefully when they apply, but fair use is always available as a kind of um adjunct to those provisions. And, you know, section 108 makes that very clear in the text of the statute that nothing in section 108 affects the rights uh under fair use. Um You know, uh and the last concept I I wanted to mention is again, the sort of undue diligence, right?
Brandon Butler: If you have, I I’m thinking especially of like collections at scale, you know, you have hundreds or thousands of items. And the question is, can I preserve all of it? Right. Um Libraries including Kevin, you know, Kevin Smith has been part of uh some of the pioneering work on this uh in the research triangle. You know, many studies have been done about how essentially this is impossible like at a collection level to determine who owns what as a pre you know, as, as a, as a, as a prerequisite for, for library uses, um can can really be essentially a project killer. But again, if you can do a kind of collection level, fair use determination, look, we’re just gonna migrate all this stuff into a format that will last more than more than five years because right now it’s stored, you know, on a fragile format, you know, that’s easy. You do that don’t hesitate.
Brandon Butler: There’s no reason to go ask someone’s permission before you do that and you save that media. Uh There are best practices uh in fair use these documents. I promoted them heavily in my last talk and I would just again commend in particular, the software preservation best practices because they are about preservation in particular. And they also highlight that, you know, there’s, there’s a fair use can apply at each step of a kind of preservation workflow, right? From kind of figuring out what is this thing to moving it to a stable format to describing it and, and, you know, cataloging it and so on. So, um so that might be a really good document for folks working with radio materials to look at and to use by analogy. Um And that’s it uh for my little talk and I’d love to hear your questions as long as they’re not about publication because I don’t know. I’m not good at that.
Maristella Feustle: Thanks. Yeah, this has been a really, really informative uh hour of uh a lot of, a lot of good, you know, a lot of good perspectives. Um So I, I do wanna open up the floor initially with the uh with the question, excellent question from Hope o’keefe about, about the publication status of, of broadcasts because uh yeah, those are definitely things that definitely questions that come up when you’re, when you’re planning and especially if you’re seeking external funding and there’s a whole section on, on copyright status, those, those things come up. Uh So, yeah, I’ll open the floor to that and uh others, if you have uh if you have questions, please raise your hand or, or type in the chat,
Eric J. Schwartz: I’ll start off since Brandon declined uh on the issue of publication. At least what, what the law says, it’s a development of case law uh from the frankly, the 1909 act signed by Teddy Roosevelt, uh which says that publication is the offering for sale or lease of copies to the general public. It’s so antiquated, you know, in a digital world. But to give you an example, four decades, one of the major news services in the time when there were only three, so you’ve got a 30% chance of guessing which one used to register its evening news that was viewed by millions of Americans as an unpublished broadcast because to their view and the copyright office accepted that while it was publicly performed and the definition of publication makes clear that a public performance is not a publication because it’s the copies. Now it would apply to digital, right? Or hard copy.
Eric J. Schwartz: In those days, it would have been tape copies. The tape copies were put into a machine and broadcast, but the copies weren’t offered for sale or licensed to their affiliates and it was just publicly performed if you ask the copyright office these days for that definition and, and I hope you’re in the building, uh you’ll get a, you’ll get a, a def uh uh they won’t answer the question on any particular use. I’ll simply say, well, you know, the punting that lawyers always do, which is to say that’s a difficult question. Thank you for asking. Um And, and fact, frankly, that’s one of what I think is one of the real shortcomings of the M MA I had nothing to do with its drafting. But I remember being asked at one point rather than determining the duration of protection of sound recordings. Right by A, as the M MA does, by the date of publication, it should have been by the date of fixation.
Eric J. Schwartz: That’s a lot easier to figure out. When was this recording made? At least it doesn’t have to be a day, month, year, just year. Much easier to figure that out than the date. When first of all, is that recording ever, especially for radio. Is it ever published at all? Um, and, uh even for recordings, I know there are some, you know, some people uh on, on this um program, uh Sam Broski could probably buy for memory, tell us, uh name a recording and give him 12 seconds and it’ll tell you the date it was released. But for the rest of us, human beings, we can’t figure that out. And I think, um by making duration based on that date makes it very hard to, if to figure out how long is, is that recording actually protected even under the M ma
Allison Schein: Brandon? Did you want to respond to that?
Brandon Butler: I just wanted to add, I did, I did, I just wanted to add one thing. I, I, uh sorry for throwing you to the wolves on that Eric. I avoid, I avoided the question for exactly the reasons Eric just described it just, it’s a crummy. It’s, it’s, I mean, it’s hard, it’s, it’s a hard one and he gave the best answer which is, we don’t know. Um, but I did want to say there’s a great, uh an important thing to know, uh to get to my original theme is that whether something is published or not is not a bar on fair use. Um It’s a thing that courts sometimes consider and they consider it, but they consider it on a case by case basis and, you know, uh, are very good friends.
Brandon Butler: The publishers actually lobbied for this change in the law after they lost several cases when uh when unpublished materials were included in, you know, like biographical books. Um and, and they got a, a AAA little sentence added to section 107 that says just because something is unpublished, doesn’t mean, you know, you can’t use fair use uh uh to use it. So, so fair use is available. Just don’t, don’t forget,
Allison Schein: did any of our other panelists want to weigh in before we moved to hope and then Harrison’s questions? No hope you have the floor and then Harrison will get to you next.
Hope: All right, thanks everyone. Um I really appreciate all of the comments you guys gave. Um And I, I’m gonna ask my question and feel free to fully respond. That’s a difficult, difficult question. Thank you for asking. Um Because I have a feeling it’s, it’s a little hyper specific.
Hope: So if it is apologies in advance, um So far, we’ve been talking about the rights to specific audio um and the artists rights within that audio. My question is about one layer above that. So I work at a university where we had a radio station that was the campus radio station here on campus. And we have um we have the doc I work in the university archive. We have the documentation uh for the releases of the individuals that are part of those recordings. Very great. Um The station was subsequently sold to a, a nonprofit outside of the university system.
Hope: Um They didn’t realize that we had the archival recordings dating back to the early sixties. The transfer contract is completely silent as to this topic. And I’m in the position where I don’t know if the rights of the previous broadcasts would automatically transfer over to them as, as part of that. And I, I do realize this is very specific but it’s sort of this upper layer of rights holders and where the copyright flows and again, feel free to say it’s a difficult question and it depends,
Eric J. Schwartz: it’s actually a straightforward question. Section 202. Copyright rights don’t transfer with the transfer of physical material unless the agreement explicitly says so. So if it didn’t say so, copyright rights were retained by the as and, or uh and all the subsequent buyer bought was physical material without copyright rights and they could make use of it if, if you know under fair use or if they were a public library or archive under section 108.
Hope: Ok. Well, that was much more straightforward than I expected. Thank you.
Allison Schein: Here, it lies the only time
Kevin Smith: the answer wasn’t. It’s too complicated. Well done. Hope. Thank
Allison Schein: you so much. You, how exciting for you. Right. But that’s a great answer. Thanks Eric for that as well. Um Harrison asks, preservation, uh, reformatting seems to be protected by belts and suspenders between 108 and fair use.
Allison Schein: Providing online access or determining the type slash degree of permission required by researchers to access. Radio programming is a big sticking point. If a researcher use is protected by fair use, could that be sufficient for an institution to provide a copy instead of requiring affirmative permission?
Brandon Butler: That feels like a me question, ah fine. Um So providing online access is a pretty broad description, right? Um And then uh on the other hand, providing access to an individual researcher who’s made a request is something different, right? Um If a uh if a researcher comes to you asking to sort of listen to or, you know, work with a copy of material, um uh I know I can think of a variety of sort of fair use arguments that might be available. Um It is case by case. And so I, you know, you might have a, a conversation with the researcher or it might be case by case in terms of the collection, like what is in this collection?
Brandon Butler: What are these materials? What are, what were their original purposes, you know, Um but uh certainly, I think uh fair use would be available. Um And, and I’d be fairly optimistic about uh relying on fair use, for example, to, to permit a researcher to get access
Allison Schein: Harrison. Do you want to jump in? I see your hand is raised.
Harrison: Uh Yeah, I will. Um because I guess the reason we think about both kind of together is increasingly is a full disclosure. I’m at the Library of Congress in recorded sound. Um And uh you know, our, our traditional access model is you can come in and listen to functionally anything in the collection, you know, specific restrictions notwithstanding. Um but it’s um almost always the second question or the first question is, well, cool. Can I get a copy or do I really have to book a flight and come all the way to DC?
Harrison: I just want to hear this one thing. Can’t you just send it to me? It’s for research and, you know, we say no. Um but, you know, that’s part of the question is that, that’s the, that’s the question that we, I think a lot of us here. And um you know, that’s the big Gordian knot that if fair use had a way through that, that would be fantastic. Um I don’t expect that that’s the answer, but that’s part of what I was
Eric J. Schwartz: getting at. So I would actually answer it the, the your comment in two parts. First of all, the question of preservation reformatting. I mean 108 has again, the antiquated, you know, damage destroyed. Well as everybody on this zoom knows too late, uh if it’s damaged or destroyed, right. That’s the whole point.
Eric J. Schwartz: Um Brandon mentioned the House report language for those of you who don’t know the House and Senate reports that accompanied the 76 Act are very instructive and, and with the exception of Scalia type judges who think legislative history has no validity, it does give a lot of direction to what did Congress mean when it adopted the law? And that reference to the A F I the follow, I think it’s the sentence following that I don’t have the report in front of me refers to uh wrong 1942 up to 1942 the transfer of nitrate film to safety film, acetate film um of the day is considered fair use. It’s the only reference in the House or Senate reports to making an entire copy of a work as being fair use. That’s not to say that the courts haven’t obviously Google books and other cases have said since then. But it is and even though A F I got the date wrong, it’s 1952 when most of the studios transferred from um nitrate to acetate it at least gives that reference, OK. That’s fair use. And, and 108, all that being said, you’ve got black letter law for transfer and then you’ve got practices and I know I’ve asked this question before of archives for decades.
Eric J. Schwartz: I do not know of institutions that have ever been dinged for doing a preservation transfer uh from a rights holder for material that is somehow in, you know, needs to be transferred from whatever original format to another format is that does, am I saying that it’s legal to do so? No, but in um Kevin’s excellent, you know, four step risk. It’s at least when you do a risk assessment, it’s relatively low, if not, no risk to do that. But as Harrison said, you know, where the rubber meets the road is? Ok. That’s the preservation copying. What about making it available on site? Um Again, I don’t think for something that’s in a collection you’re ever gonna find a rights holder that’s gonna say, you know, you allowed.
Eric J. Schwartz: So and so to put on um, headphones and listen to a recording. Uh and it’s a public performance because it’s in a public institution or looking, you know, watching a film on a steam deck is somehow, no, it’s all permissible. But outside the building and fair use does become the question. I mean, every researcher, every user of the library will say I’m doing research. Uh And is it actually research, the fact that it’s non commercial is not relevant to a fair use? But the facts would, into Brandon’s point, you sort of need more facts and need to know the particular to my point whether or not it is legally fair use. The question is for a particular one time use, is there gonna be a cause of action brought by the rights holders?
Eric J. Schwartz: A? Are they gonna know about it? And B would they do it anyway? You know, you, you can assess the risk is relatively low. But if it becomes the practice that everything in your collection is available for copying and distribution outside the building, you can be pretty sure you’re gonna hear from rights holders that say stop because it’s a, it’s a systemic issue, not a one time issue. And the other way to do it, of course, is to ask, you know, at some point, can you make copies that cannot somehow be subsequently duplicated? Because for all of my rights holders clients, right, in my firm, we represent, you know, studio record coming music publisher, individual, creative artists and on and on and on. Um their, their concern is migration out of institutions, not the use in by educators and researchers in the institution.
Eric J. Schwartz: And they also appreciate that in many instances, the institutions did a better job of sa saving their materials than they did. Charles Kevin. Did you
Allison Schein: have anything that you wanted to add?
Kevin Smith: Well, I’ll note the comment in the uh uh in the chat from Alison about whether password protection helps. And I was wondering, and I, I think Eric I’m probably looking at you about this, whether password protection help or whether specific agreements with the borrower, that is an agreement that specifies what the borrower promises to do with the work. If, does that help?
Eric J. Schwartz: Certainly, if you had a, a, an agreement with rights holders and, or if in certain subgroups of rights holders, you went to them and say, look, researchers want to make use of this material and we’re gonna password protect it on a one for one basis. Might some say, fine, they might, you know, you ask them, there are, you know, as we all know, there are three major labels, three major publishers, you know, six studios. Uh and, and they all have different um treatments of, of their own work and just as in a library or institution, no lawyer ever got fired for saying no, you can’t do that. So it’s just as likely that the internal studio lawyer or label lawyer is gonna say, no, they won’t get fired for that if they say yes and the stuff migrates out and suddenly this, you know, uh unknown recording is suddenly now widely dispersed. Why did it happen? Well, I allowed this institution to let it out um you know, that lawyers, you know, working up their resume for their next gig.
Kevin Smith: But that’s not. Thank you. But that’s not quite what I was asking. What I was asking is not an agreement with the rights holder, but an agreement between the library or archive that holds the material and the user who is asking for a copy for the purpose of research, if you have a, a contractually binding agreement where the researcher says I will not further distribute this or use it for purposes beyond research. Does that help in any way to protect the library?
Eric J. Schwartz: I, I think it would if you know, in the uh I was gonna say the old but now the 19 new mission impossible uh movies uh the the copy disintegrated after a period of time,
Kevin Smith: which, which is these days technologically possible, although probably beyond the technology of many of our libraries and archives. Thank you.
Allison Schein: Oh, sorry,
Brandon Butler: let me add one more thing. I mean, an example, that’s, that might be interesting. You know, the, the again, I think a lot depends on the kind of material you’re talking about. And so a case that, I mean, a case that’s, you know, that was litigated, actually multiple cases involved uh the use of the ingestion and processing and then literally selling access to uh attorneys briefs by lexis and Westlaw, right? And, and some attorney sued and said, well, that’s my brief. I wrote it and you’re selling access to it.
Brandon Butler: And uh the court said uh people are not, you know, you wrote that brief for a judge, you were trying to win a case. Uh Lexis and Westlaw are now selling that access to that brief and really access to not really to your brief in particular, but to, you know, browse thousands and thousands of appellate briefs as a research tool. Uh And so that’s a new purpose, different purpose, online access, commercially provided. Um you know, to anybody without asking permission from many of the rights holders, but it’s radically different right. Attorneys are in the, are in one business of winning cases for their clients. They’re not in the, the Lexus business of assembling a, a giant database of uh for research purposes. So, you know, I don’t think anybody is trying to, I don’t think any library is trying to compete with Spotify by putting radio recordings in the cloud.
Brandon Butler: I think we’re talking about recordings of rather a different nature and I would ask, what is the nature of this collection? Why were they, why were these items made? What was the interest of the person who made them and is my making them available competing with that interest in an unfair way? And I think in many cases that the answers to those questions will point in a good direction for you and you shouldn’t be scared to uh provide access.
Allison Schein: Excellent. Thank you so much, Laura.
Laura: Hi. Yes, thank you. Um I wanted to ask the four presenters about a specific case that’s been confounding myself and my colleagues for years and it seems like you all kind of touched on it. So you’re sort of the ideal people to weigh in on this because we haven’t been able to come up with an answer. Um I’m the curator of the broadcast archives at the University of Maryland. In our collection, we have the group w Westinghouse tape morgue.
Laura: So the Westinghouse company ran a Washington news bureau from about the mid fifties to the early 19 eighties. And the reporters are the ones who retained copies of a lot of the broadcast. These are speeches, their interviews, their voice cuts. Um So we have about 4000 of these tapes and we have through um outside funding, been able to digitize and make them available to the public and I’ll show you um you can look, I just sent the link if you want to see some of the tapes that we have digitized and they cover because of this time period. A lot of really seminal events in world history, the Vietnam War, Watergate Civil Rights Movement, all of that. So it’s really rich like historically rich and valuable collection. It is in high demand among podcasters and documentarians who will ask us for research copies, which we will provide because that’s part of the agreement uh that we make with them and that um we usually make with donors.
Laura: Although with this particular collection, we don’t have a specific agreement with anybody. Um but also claim that we don’t own copyright so we can’t give them permission for reuse. We do our best to try to point them in the direction of the copyright holder, which is also complicated because group W was sold and then resold and absorbed and reabsorbed and it went through all these various media conglomerations. It finally wound up with CBS. Um So we would tell people do your due diligence, try to find somebody at CBS who might be able to give you permission. But if not, a lot of people have gone ahead and used this in their documentaries and so forth. Well, we had one really hyper vigilant producer from England who said we have got to track down the copyright holder if we’re gonna use any of this, they found someone at CBS who said, oh, yeah, yeah, we own the rights to that.
Laura: Uh We’ll charge you something like $800 per second, which was a huge disappointment to us because obviously that’s very dissuasive to researchers if they’re gonna be slapped with that kind of a rate for reuse. My question is given all that you’ve said about publication. Um when it comes to broadcast and public performance, the time period of these recordings, the fact that they’re really chopped up in no way. Does this represent even the bulk of everything that Westinghouse uh produced and broadcast in their day? Does CBS have a legitimate claim to this
Brandon Butler: property? Can I say, I’m sorry. So I did, this is um this has become a major part of my law practice lately, is, is working with, with filmmakers and podcasters who are using this material and bless you for having it and taking care of it and making it available. It is a trove. Um And, you know, it’s a trove for them and it’s not really a trove for anybody else. You know what I mean?
Brandon Butler: Like it is extremely valuable for people who are writing and thinking and, and, and talking about history and, and it doesn’t have much of a commercial life on its own. Um uh And, and, you know, bless you for not requiring people to get permission. You know, there are some archives that still have these sort of weird agreements that sort of say we’ll give you a copy, but you can’t use it unless you prove to us that you went and got permission and you, you know, in many, many cases, the, the podcaster or, or doc filmmaker doesn’t need permission. And so what the archive is then doing is kind of adding more of a burden to their work than the law does. Um And that’s, I don’t think in anybody’s interests. So, um so, yeah, and, and, and I would say then, you know, you’re not obligated to do like that is not your role to tell the filmmaker, you have to go get permission, the filmmaker is on their own right to do that. They have to make that decision about their use.
Brandon Butler: Um When you’re providing things, you know, for, for, for research purposes, you know, the filmmakers trying to decide what is this film about? What am I going to put in it? Is this gonna be good audio, all that stuff? You don’t have to, you don’t have to prejudge whether, whether all that stuff is gonna require permission. I think you’re supporting research and then you should leave it to the filmmaker to make a decision about whether their downstream sort of publication uses are gonna require permission.
Eric J. Schwartz: Yeah, I, I can’t answer the question of whether CBS Desert doesn’t, you know, own the material. And do you know unless somebody did chain of title and also concern of, of a conflict of interest because I, I can’t unravel the CBS paramount via com uh WW world. Uh And we do work for uh at least I do work for one of those entities, not CBS. Um Couple of things. I mean, my bread and butter work is watching documentary film for documentary filmmakers uh including those including for instance, for PBS produced but also in independents that produce and are broadcast. They are and, and a lot of the other streamers and a review of the use of materials um is done, you know, with a time cue sheet that looks at how much is used and, and the context in which it’s used even, you know, after, I mean, Warhol did make a difference in, in its tying of the 1st and 4th, 4th factors um focusing on the competing commercial purpose that Warhol made of the photograph of Lynn Goldsmith.
Eric J. Schwartz: Uh and basically adding to the transformative use that it needed to be for a quote, further purpose or different character, uh you know, kind of tying those two things together in the commercial use. So when I watch a film with a documentarian who hates having their lawyer make creative decisions, believe me. Oh, how much did you use? How much are you commenting on it? How much are you repurposing that material for your own purpose? Uh And are you taking more than you need for that purpose? Whatever that is.
Eric J. Schwartz: And as I tell my clients, uh and they don’t think it’s funny, you know, I have a 50% chance of being right. Um But that’s, that’s what fair use is and that’s why I say, you know, a reliance sometimes on fair use. Now there’s a difference between what the law is and I may or may not be right on. Is that particular use fair? And whether or not a rights holder is going to bring a cause of action or send a letter or somehow stop a particular use uh I in, in a particular uh film or by a particular user. But I do think to Brandon’s point, it’s the ultimate user, the filmmakers responsibility. And because they have to get insurance to broadcast the, you know, they have to have a lawyer do a letter for uh eno insurance errors and omissions insurance to say to their insurer, we licensed everything there and what we didn’t license, we had, you know, a lawyer, look at it and she determined that the uses are fair use to the best of her ability.
Laura: Ok. I just want to clarify that. Um, I, I know it’s not my burden to give permission or not. Um, but I do like to give the best advice that I can to our patrons and I used to tell them, yeah, just look at fair use and, and determine what you think is best. But I think it’s low risk and I’m not a lawyer, but I think it’s low risk, but since they’ve kind of unearthed this one person at CBS who thinks they own copyright, I now feel a little bit um hamstrung like I can’t, I’m not sure what to tell them at this point. Um And that’s what I’m really asking like what, and, and, and you did answer that, uh Eric with, you know, having their own um lawyers review fair use
Eric J. Schwartz: if there is a sleeping dog problem, right? In terms of users, not n not asking the rights holders for permission. And now suddenly they know that it’s being used. On the other hand, I think the courts and I think, uh, you know, uh Charles and Kevin Brandon would agree will somehow look more favorably on a user that asked permission was denied and then decided to make fair use of the material because they’re showing I, I was willing to reasonable price, the rights holder maybe didn’t offer it at a reasonable price. And I look, weighing the four factors this determined that my use is fair and went forward with it. And the fact that I asked and they denied me a license or, you know, a license that I could afford doesn’t necessarily weigh against uh, the, the user.
Eric J. Schwartz: I could just
Charles Cronin: um mention something. Um Eric, a very, um what, what you mentioned just brings to mind, um, the sleeping dog uh uh issue. Um The same is true in music, copyright infringement cases, especially in terms of sampling. Uh I think a lot of uh uh uh songwriters make a mistake in uh seeking permission to use a snippet of uh of a pre existing uh uh audio recording and, and, uh, and uh if they, I often think if, if they had simply never requested that permission this, that, that they, this never would have been a problem. So these, these, uh litigation often seems to be um sparked by a good goodwill effort to obtain permission that was never needed in the
Eric J. Schwartz: first place. Yeah. And then, and to Kevin’s, you know, risk assessment, one of the things that I always tell clients is who is the rights holder since I’m, you know, equally on the user side and on the rights holder side, how litigious are they? I mean, who, who is, who, whose material are you using and what’s their track record of going after users for, you know, even miniscule uses. Uh And if that’s the case know what you’re stepping into because they’re gonna do it for an institution in terms of putting material up. Uh uh at least to the extent.
Eric J. Schwartz: And again, part of Kevin’s uh four stops, steps is a takedown. Um you know, respond to a takedown, have AD MC A agent and when you receive a takedown notice, I mean, that wasn’t Kevin’s point about automatically taking it down, but at least by doing that, you’ve minimized risk if, if a rights holder steps forward
Brandon Butler: and I, I’ll add, I mean, Eric’s exactly. Exactly right. You know, we have the highest possible authority for the notion that it doesn’t hurt to ask legally because it’s in the Supreme Court, you know, Campbell, the Acuff Rose, you know, poor two live crew went and asked, you know, Roy Orbison’s people and, um, and, and the Orbison folks tried to say, well, you asked and so that’s essentially a confession. You knew your use wasn’t fair and that’s why you asked. Um, and the court said, you know, quite realistically, people ask for all kinds of reasons. Um And so just because you asked, doesn’t mean your use isn’t fair at the same time.
Brandon Butler: I, I, you know, I would not feel obliged to ask in cases where, you know, your use is fair. You know, that, that to me, that’s a, sort of, it could be a waste of time and it could wake up that sleeping dog before you get your insurance bonded. Um, and, and, you know, you’d rather get the film made, get insured and if somebody is gonna get upset about it, uh, uh, let that happen, you know, at, at a point when you’re insured and your, your gnarly insurance lawyers will tell them to take a walk for you.
Kevin Smith: Yeah. And I, I’d just like to step in and agree with that. There was an article written, I guess it’s, uh, it’s a while now, uh, about the importance or not importance of fair, um, good faith, bad faith analysis as part of fair use. And the article points out that it is not, in fact a part of fair use and argues that it shouldn’t be. But what I was going to say in response to Eric’s point is, I think it’s absolutely right. And Brandon is correct that the courts are pretty clear that asking for permission doesn’t count against a user in a, in a subsequent fair use argument.
Kevin Smith: And that’s as it should be. And actually, I think in keeping with a lot of other principles in the law outside of copyright, but, um, it should not my assertion, it should not count against a user if they didn’t ask. Um, and again, I think that’s just reinforcing Brandon’s point that if they’re convinced that they have a good fair use argument. Uh They should not be penalized for alleged bad faith by not asking and some courts have done that so, but it was worth saying great thank you.
Allison Schein: From the earlier response, this is from Mike, from the earlier response regarding the college station sale of physical assets but not copyright of prior material. Is it unlikely that through decades of media mergers involving Group W CBS Paramount Viacom and other forgotten big media conglomerate names that copyright tapes, old tapes was specified. I have a uh the CBS would not own copyright question mark, but I missed how the university came into the material in the first place, but it formally transferred the university would own outright. Correct. Uh Not a lawyer. Mike says, so I think the it was Laura, the radio station originated in the university and thus then the university?
Allison Schein: No, or is this a different person? I’m sorry. That
Laura: was the, that was the college radio question. This is I’m talking about the Westinghouse. Yeah.
Allison Schein: Sorry. Yes. And so is Mike talking Mike, are you talking about the physical assets? Which I’m a little confused maybe. Um Oh, did you answer
Laura: that in the I did? Yeah, at least as far as the transfer of the materials, but it’s a good question. Um If CBS would actually own copyright or not, if they didn’t specify in the agreement and along the same lines, and I don’t want to monopolize this Q and a, and I’m sorry, but this is gone. I mean, there’s a lot of rabbit holes here. Um, kid, would we be, would somebody who is wanting permission from CBS? Would they be within their rights to ask CBS to prove that they own this collection?
Laura: Because that seems like that would be hard to do. And then it would be
Eric J. Schwartz: to interrupt, that’s the first step in copyright infringement, right? A, a, uh, a rights holder, bringing a cause of action for infringement has to prove two things, one ownership and two that there’s a taking of one of the five exclusive rights. So it the onus is on the rights holder by the way, one thing uh I’ll lose the entire audience here. But the, the section 202, that when you transfer physical, you don’t transfer copyright. That’s the so called New Act, right? That’s from 1978 forward the law before 1967 under the so called Pushman doctrine.
Eric J. Schwartz: I don’t know where I remembered that uh was that when you transferred the physical material, you also transferred the copyright even in the absence of an agreement. Uh And then at least state laws changed in 67 in New York and California, I know for works of visual arts and museums. That’s a big deal because they suddenly realized, wait, we own the canvas and we own the copyright up until that date. And the artist said, wait a minute and families, we transferred what? Um so the, the law changed by state law and then Congress basically enacted that change where the physical transfer doesn’t transfer copyright unless it expressly says. So, so to the question, and you’d have to go back to that original agreement from, you know, college station to point A to point B to C to D. And that’s what a chain of title. That’s what lawyers do is they’ll do a thorough chain of title review.
Eric J. Schwartz: And if there’s a break in the chain, then, you know, it is a so called Orphan Work and there’s uh no rights holders. I know we, we, there have been examples, for instance, the National Film Preservation Foundation where we’ve put up films on our website for the public where they, they’re probably still under copyright, but nobody owns it. So, you know, we figured, well, we have ad MC A agent and we could take it down. Um But we, we did a thorough chain of title review and said there’s a break in the chain. So whoever is gonna step forward, better prove that they own it. And nobody stepped forward in one very notable film on our website.
Brandon Butler: And a and a tiny thing to add to all that is, you know, if someone goes to CBS and says, hey, you know, I, I need your permission to use this material. Uh The, the contract that says I CBS give you permission if it’s a good contract, uh, or, you know, a relatively, you know, user, user protective contract will say I CBS, you know, represent and warrant that I own all the rights in this material and you don’t need to talk to any other parties in order to get all the rights you need. Um, you know, when we fill out, you know, Eric, Eric has seen, I’m sure many more of these than I have this sort of like insurance, you know, uh paperwork to get a piece of media insured. You know, one of the things the insurance companies wanna know is, you know, do all of your licenses include, you know, an indemnity that says that your license or represents, they own the material and if anything goes wrong, they’re on the hook, not you, right. So that’s an interesting, you know, element of all this, if you go to CBS and say, hey, I need your permission, will CBS be willing to say we will put our name on the line and promise that we have those rights
Eric J. Schwartz: and one other area in the risk assessment that we haven’t mentioned, um, is, and it wouldn’t be for large collections or la large cong you know, uh corporate rights holders necessarily, I wouldn’t go out on a limb in the risk for that. But for you, you have some material, um you can identify the author check the copyright office, has it, has it been registered in the absence of a registration writes the rights holders remedies are more limited than if it’s a registered work. And the limitation is uh injunctive relief. So they can say stop and they can sue for actual damages. Well, you know, or lost profits against the nonprofit, not for profit. The average cost of a copyright infringement case according to the copyright office two years ago is $400,000 so weighed against the $500 fee that they might get for a license versus the, that, you know, they may say stop.
Eric J. Schwartz: But that’s different than, you know, a full blown infringement. If it’s a registered work prior to when the infringement starts, then they’re entitled to statutory damages $750 up to $30,000 in the discretion of the court and uh, reasonable attorney’s fees. Um, so that’s the disincentive to use a registered work because it could be costly if you’re wrong.
Allison Schein: Excellent. And Brandon, that was a really good point that you made in the chat. If y’all didn’t see it is that they may not be tolerate, they may not be tolerating infringement so much as strategically avoiding making case law that would settle a limit on their rights. Um, which I think is an interesting point
Eric J. Schwartz: to be true by the way, because, you know, that’s how you get. Well, somebody used 20 seconds of, of a something and then suddenly the internet says there’s a 22nd fair use rule if you take 22nd because of one case, which is totally wrong because as Brandon has explained, fair use is on a case by case fact based in each instance. But once it gets out there, that’s extremely unhelpful to a rights holder to think that now this, you know, made up internet rule exists that everyone would
Allison Schein: say that. I mean, I even now lawyer, older generation lawyers will say, oh yeah, you can do that. Like you can use up to 20 seconds and I’m like, I’m not a lawyer but I’ve spent some time with them. I, I don’t think that’s true. Um, does anybody else have any, any other questions or any final thoughts? Uh, panelists? Do you have any, any closing remarks that you would like to send forth out into the universe?
Brandon Butler: I think I would just say and I bet everybody will agree. Don’t let anything stop you from doing preservation. There’s all kinds of edgy cases and, you know, could I do this? Could I do that? But the core work of preserving radio, um, you know, don’t let, don’t let any of this stuff, especially this crazy rabbit holes of stuff that you can really fall down into. Don’t let that distract you from the core work.
Allison Schein: Seven Blue. You have your hand up, please. I
Kevin Smith: think so. Hi,
7 Blue: Seven Blue is actually Wnyc. I’m in New York. Sorry. Um, I had a question that I put, I, I posted to a particular person, I meant to post it to the panel. And the question was, um I know that there’s been more types of exploiting music works, for example, like selling tiny snippets uh selling even the, the, well, that, that’s the one I I’ve, I’ve heard most and I’m wondering as, as those types of exploitation by rights holders um proliferate will the case for fair use be damaged by that? In other words, no, you cannot use five seconds of our, of this song because I am selling five seconds of that song.
7 Blue: Therefore, you’re infringing on my possibility to make money. Does that make any
Charles Cronin: sense? Yeah, I can um react to that. Um Yeah, I think it getting back to the sleeping dog, the, the uh I think the take it problem here is that uh uh many uh songwriters are um overly particular and overly um uh um cautious in uh seeking permission and probably um to the extent that they are seeking permission to use little snippets of uh of, of audio recordings in, in other words, sampling. Um It’s uh probably at the uh at the suggestion of their lawyer if in fact, they have one. and the songwriters, typically the defendants in these, in these cases um are uh don’t have uh a sophisticated Copyright Council and are um are probably unaware that what they’re doing is uh is perfectly uh uh legitimate. Um that, that, that said, um the sampling is a very, uh, thorny and unsettled area. Um, and, uh, you know, going back to, to one of the earlier sampling cases in which the court essentially said, uh, any sampling, whatever the, uh, the amount is, uh, is infringement unless it’s been, unless it’s been authorized.
Charles Cronin: Um, there have been subsequent refinements or, or, uh, elaborations on that, um, approach. Nevertheless, it’s still a, uh, a, uh, a non settled area um of uh music operating infringement law. Um So, uh bottom line, I think the, the problem is the um that uh uh songwriters um and particularly, and that, in fact, I was about to say unknown ones, but even, even well known uh performers often seek permissions uh for sampling where it’s, it’s, I don’t think it’s, it’s uh it’s necessary.
Eric J. Schwartz: Yeah, I mean, I think the music industry as it evolved and as, you know, rap, hip hop evolved from a little bit of Wild West in the early days, which, you know, the artists would say was much more advantageous for them to publishers and labels, both realizing that they were takers and takes, uh it probably made more sense to develop a, a licensing system amongst the, at least in the majors and large independents on the publishing and label side. So that there was at least some certainty by both the, you know, users and the rights holders. Um That said, I think your question actually goes a little bit to the Warhol case, which is where the Warhol case has tied the first factor the um the the, you know, transformative use and a commercial purpose to a need for a further purpose. Because in this case, the Warhol was selling in the exact same market that Lynn Goldsmith could have sold that that weighed at least for those facts in that case to be not fair use. And by the way, the Supreme Court never opined in that case on whether Warhol in, you know, 1981 when he, he was allowed by license to take the photograph of Lynn Goldsmith that she licensed the vanity Fair and recreate it. Uh as he did, what he wasn’t allowed to do and what no one knew he had done was to make other silk screen images.
Eric J. Schwartz: And the Supreme Court never opined in this case last year on whether those uses were were not fair. If he had done that and hung it in in a museum, was that a repurposing and reformatting transformative use? Yes, would have been in the same market as Lynn Goldsmith would have been a non commercial use. They might have ruled that that use is a fair use, but they didn’t rule on it. That wasn’t the question before the Supreme Court,
Brandon Butler: you have to add one thing which is, I mean, the courts have said in multiple courts multiple times, multiple ways that rights holders can’t sort of undermine fair use by creating a licensing market for fair uses. You know, if uh if, if, if Penguin Random House said, you know, from now on any critic that wants to write a critic, you know, a critical essay about our books, you know, we welcome that. Uh all we ask is that you pay us, you know, $250 and ask our permission if you want to include any quotations, right? You can’t do that. Um And the courts have, have described, you know, the markets that they care about as sort of traditional, reasonable, likely to be developed, right? Language like that.
Brandon Butler: So, you know, uh if uh for example, you know, snippets of music might be licensed for ringtones, right? OK. Like that doesn’t strike me as unreasonable. Um using music in a ring tone seems like something the artist should get paid for. That doesn’t mean that on the other hand, if, for example, I had a, a discovery service that would let people search music for a certain passage that was relevant to my research interests and I played snippets, right? So that they could do the equivalent of what they did in, in a Google search result for the internet. Uh and, and determine is this the song I’m looking for?
Brandon Butler: No, it doesn’t sound like what I’m looking for. I think that would have AAA fair use argument available to it regardless of the fact that snippets of the same length are sold for a, for a more traditional, reasonable, likely to be developed purpose like ring tones if that makes sense. Now, Hample sampling is totally a cautionary tale of, you know, a kind of a market being built up that, you know, I think some sampling is fair use and some sampling is not, uh that’s actually, I think, kind of a con a controversial opinion um because most people think it’s either all good or all bad. But um but in the, in the record industry, um it’s all bad. That is, it’s all licensed now. It’s uh it’s just become standard issue and that’s changed the way music sounds. And I think that’s, that’s too bad.
Eric J. Schwartz: I mean, I, and I agree with everything and one thing to note in the fourth factor, it’s the harm to the potential market. So, as if, for instance, in the Aster case, Aster argued, well, music labels and music publishers, you guys aren’t in the digital download market yet. So what’s the harm to the market? And the ninth circuit, the, you know, appellate court said, yeah, they, they are trying to get into the market. They had to clear all the rights with artists and songwriters and go back to all their agreements and figure it all out. But it’s certainly doing harm to the potential market because that’s where they wanted eventually to be. Um And so it found that the uh used by Napster of, of the compositions and of the recordings was not fair. Thank you.
Allison Schein: Excellent. Do we have any final questions? If not then um wanted to thank the presenters and the panelists for this great conversation and for returning once again and Eric for joining us. That was really wonderful. Um Again, this was a joint collaboration between the radio preservation task force, education, preservation divisions, as well as the National Preservation recording Board. And you will be able to find this recording and a transcript of it uh within the next couple of weeks and we will make sure everybody knows it, knows where to find it.
Allison Schein: And um, yeah, thank you, everyone and I hope you have a fabulous weekend.
Maristella Feustle: Yeah, thanks again and uh thanks for, for joining us and uh yeah, this was a really enlightening. Thank. Thanks so much. Happy Friday. Thanks. Bye.
RPTF 