Category Archives: Copyrights

One of my all-time favorite singers is in the news this week. The Ray Charles Foundation, a charitable organization founded by Ray Charles to fund research and provide education relating to hearing loss, sued seven of Charles’ twelve children recently for allegedly breaching an agreement they made with their father regarding their rights to his musical compositions. According to the complaint, Mr. Charles gathered his children around him in December of 2002, Continue reading →

As an intellectual property lawyer, I often get questions from clients that have received a cease and desist letter alleging copyright infringement. One important defense to copyright infringement is the “fair use” defense, in which you basically say, “Okay, I copied it, but the use I made of your copyrighted material was legal.” Fair use is a very fact-intensive analysis and you often can’t know whether something was actually fair use or not until a judge or jury makes such a determination after trial. Because most people cannot afford to go the distance to determine the viability of the defense, the defendant who has used the copyrighted material often settles or removes the offending material (if possible) rather than litigate. In order to avoid being accused of copyright infringement altogether, it is helpful to understand the rules of fair use, which are discussed very comprehensively  in this resource from the Stanford University Libraries. I have found it be very useful, particularly the summary of fair use cases in Part C. I have also written earlier on this topic, here and here. I hope you find these  resources to be useful guidance on this complicated and fact-intensive issue, which can otherwise be a complete roll of the dice. And, I hope you are never in the position of having to convince a mad copyright holder that your use was fair.

Here’s another case that points out the perils of copying and distributing content belonging to others. MergerMarket sued Cantor Fitzgerald and its managing director on Tuesday for copyright infringement. MergerMarket is a business news organization that provides its subscribers, mostly financial institutions, with the latest news and intelligence on mergers and acquisitions. According to MergerMarket’s Continue reading →

A publisher that sells educational materials has accused the Toledo Public School System of intentionally and willfully violating its copyright by either encouraging or allowing teachers to copy its training guides–supposedly verbatim–by transcribing them onto the school system’s computers then distributing thousands of them among the system’s teachers.

Align, Assess, Achieve LLC (“AAA”) sued the Toledo Ohio Public School System in Columbus Federal Court last Friday. AAA says the school district bought 10 copies of books in its series, Common Core: Clarifying Expectations for Teachers and Students, “apparently for the sole purpose of stealing and widely distributing the materials by having TPS teachers illegally transcribe these materials.”

AAA says that the books were sold pursuant to a license agreement, under which the school district was explicitly limited to using one “pacing guide” from the series for each kindergarten, first grade, and second grade math and English teacher. Despite these restrictions, the AAA determined in August of 2011 that the school system was not abiding by the license and, instead, “had engaged in massive infringement of the AAA copyrighted works.”

The complaint alleges as follows:  “Unbeknownst to AAA, TPS had engaged its teachers over the summer to take AAA copyrighted works and transcribe them – word for word – into electronic word processing documents. On information and belief, this massive copying of the AAA copyrighted works required numerous hours on behalf of TPS teachers and was done without any authorization by or knowledge of AAA.”

Obviously, these are merely allegations at this point. The school system has not had the chance to respond yet. However, this situation points out the need for everyone in your organization to understand the parameters of copyright and “fair use,” or, to put it another way, what you can copy and what you can’t. First rule of thumb: if it comes with a license, read the license and comply with it. If in doubt, don’t copy it. Second rule of thumb: if the license is unclear or there is no license, ask for permission before you copy. Don’t copy the work unless you have written permission to do so. Don’t assume that you can copy someone else’s work if you give them credit for it unless they have given you written permission to do so. In other words, giving attribution is not a defense to copyright infringement. Third, you may be able to copy portions of a copyrighted work (and in some rare cases, the whole work), assuming your copying would constitute fair use under the Copyright Act.

Generally, to qualify as fair use, you must be using the work for purposes of commentary, criticism, news reporting, and scholarly reports. While using portions of copyrighted works for educational use can sometimes qualify as fair use, the wholesale copying described in this complaint likely will not cut it, particularly when it destroys the commercial market for the product being sold. Despite what your brother-in-law told you, it is not true that the copying will automatically qualify as fair use if you use less than a certain percentage of the work or a specific number of words, or a certain number of musical notes–at least not under US law.  Whether a particular use qualifies as fair use depends on all the circumstances and, ultimately, can only be definitively decided by a federal court. I would encourage you and the entire Toledo School System to check out The U.S. Copyright Office’s Circular 21, Reproductions of Copyrighted Works by Educators and Librarians. In addition, you can review this previous post for the big picture rules of fair use. While nobody wants to waste time reinventing the wheel, it sure beats being sued by an angry publisher seeking statutory damages and attorney fees in Ohio federal court.

One of the things I love about my job is representing songwriters—the folks who serve as the creative engine of Music City. (A gratuitous aside: How do you get a songwriter’s attention in Nashville? A: “Hey, Waiter!”). Because I am attune to the problems songwriters face, i.e. pirating, infringement, illegal downloads, Spotify, the demise of the “album cut,” lousy tips, etc., I liked this story about one of the most prolific, most enduring songwriters of all time: Charles Wesley. If you’ve ever attended a protestant church or sang Christmas hymns, you are familiar with his work. In case his name doesn’t ring a bell, he is the writer of more than 6,000 songs (some say more than 8,000+), including such well-known hymns as “Christ the Lord is Risen Today!,” “Oh For A Thousand Tongues to Sing,” “Come Thou Long Expected Jesus,” and, probably most famously, “Hark the Herald Angels Sing.” Charles was also the brother of the founder of the Methodist church, John Wesley, and,despite his prolific songwriting, Charles was sometimes called “the forgotten Wesley.” Charles wrote his hymns as his method of teaching Christian doctrine to the poor and illiterate of his day.

At any rate, when Charles first wrote “Hark the Herald Angels Sing,” it was sung to the more somber tune of “Christ the Lord is Risen Today,” and instead of its iconic first verse, it went like this: “Hark! How all the Welkin Rings / Glory to the King of Kings.” But over time, many hands altered it so that morphed into something quite different than Wesley’s original vision for the song. George Whitefield, Wesley’s co-worker, changed the opening couplet to the one we sing today: “Hark! The Herald Angels Sing/ Glory to the Newborn King.” The second couplet was also rewritten and the tune was changed over the years, most notably by the English musician, William H. Cummings, who adopted a cantata composed by Felix Mendelssohn  to fit the lyrics of “Hark! The Herald Angels Sing,” thus turning Wesley’s more somber song into the joyous carol we sing today.

So what did Charles think of the fact that so many people changed his songs and lyrics, spawning derivative works that weren’t quite true to his original vision? We don’t know for sure but John Wesley wrote what could be considered a gentle but pointed cease and desist letter in the Preface to his 1780 Hymn Book (“A Collection of Hymns for the Use of the People called Methodists”):

And here I beg leave to mention a thought which has long been upon my mind, and which I should long ago have inserted in the public papers, had I not been unwilling to stir up a nest of hornets. Many gentlemen have done my brother and me (though without naming us) the honour to reprint many of our hymns. Now they are perfectly welcome so to do, provided they print them just as they are. But I desire they would not attempt to mend them ; for they really are not able. None of them is able to mend either the sense or the verse. Therefore, I must beg of them one of these two favours: either to let them stand just as they are, to take them for better for worse; or to add the true reading in the margin, or at the bottom of the page; that we may no longer be accountable either for the nonsense or for the doggerel of other men.

In other words, if you print our songs, give us credit and leave them alone….a sentiment not unlike that of many clients I represent today, although the songwriters I represent usually want a royalty and a co-pub deal as well. However, I wonder if we would still sing “Hark! The Herald Angels Sing” if Charles had been successful in keeping the song true to his more sedate vision. In effect, the “commercialization” of the song gave it a second wind that has allowed the song to endure more than 200 years, relaying the message of Christ’s birth to generation after generation. So raise a glass to Charles Wesley and to those infringing, derivative innovators that came after him as you sing your carols and celebrate this joyous season. I sure will. Happy holidays to you and yours.