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Lawgirl

August 24, 2000

"Lawgirl" Jodi Sax

Hello, and welcome to my world. I'm Jodi Sax, an Internet and entertainment lawyer in Los Angeles. I have been appointed to be your virtual tour guide through the wonderful maze of intellectual property rights, musicians' interests, and the Internet. For my first column, I'd like to introduce some of the concepts we'll cover in future columns, so that no one gets lost along the way. Let's jump right in, as it's a long and bumpy road.

Basic Concepts for Musicians

Intellectual Property Law governs products of the mind (often intangible assets), such as sound recordings and lyrics. Basically, we'll be talking about two types of intellectual property: copyright and, to a lesser extent, trademark law, although we will also look at various other doctrines, such as the principles of contract law.

Copyright protects works of authorship, including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software, and architecture. (It doesn't protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.) The owner of a copyright has the exclusive right to reproduce the copyrighted work, distribute it, perform and/or display it publicly, and, in the case of sound recordings, to perform the work publicly through digital audio transmission. The present term of copyright protection is the life of the author plus 70 years for individuals. (Slightly different rules apply for institutions, in which case the term is 95 years from publication or 120 years from creation, whichever expires first.) In the United States, copyright vests upon the moment of fixation in a tangible medium -- other words, the moment you make it, you own the copyright. Registration, though not required, is recommended for additional benefits. The US Copyright Office (www.loc.gov/copyright) is an excellent source for more information.

Trademark refers to any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In other words, a trademark is a brand name. Trademark law comes into play for musicians in the context of band names and domain-name rights.

Contrary to what many people believe, trademark rights are gained by actual use of a mark rather than by registration. Generally, the first party who uses a mark in commerce has the right to use it in that geographic area and the natural zone of expansion from that area. Thus, if you've got a New York-based band called the Bugs, and you are the first person to use that name, you hold the superior right to that mark in the New York area and any surrounding areas to which the use of the mark would naturally extend.

As a side note, service marks are the same as trademarks but are for services. This can also be important to bands, because for purposes of trademark law, live performance by a musical group qualifies as the provision of a service. For more information on trademarks, you can visit the United States Patent and Trademark Office Website (www.uspto.gov).

Digital Distribution. We hear this term thrown around a lot these days. What is it? For our purposes, it boils down to the distribution of sound recording by means of digital transmission. This can include a stream (where a copy of a digital file does not remain resident on a users' hard drive), or a download, (where a specifically identifiable reproduction of the sound recording is made and can be stored on a hard drive or other storage device). I'm oversimplifying a bit here, but it's important to remember that when we speak of digital distribution, we are usually speaking about distributing music as a file over a computer network, as opposed to via a physical copy of a record or tape that embodies music. Digital distribution is significant for musicians, because it is the direction in which music distribution is headed. Thus many issues are raised regarding the retention and value of these rights.

Fair Use Doctrine is another valuable legal tidbit for musicians. Under the Fair Use Doctrine of the U.S. Copyright Act, you can use limited portions of a work -- including quotes -- for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentages of a work. Whether a particular use qualifies as fair use depends on the circumstances and is determined on a case-by-case basis.

This often comes into play in the context of music, both on and off-line. Two examples are sampling, and "nontraditional" distribution channels such as Napster. Whether the use of music without a copyright holder's permission is allowable in these and other circumstances will depend to some extent on whether the person seeking to use/distribute these works can invoke the protection of the Fair Use Doctrine.

For you lawheads out there, the test for whether the Fair Use Doctrine applies to your work is:

• the purpose and character of the use, including whether such use is of a commercial nature, or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and importance of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use on the potential market for, or value of, the copyrighted work.

More information on fair use is available at fairuse.stanford.edu.

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