Monkeys, Turtles, and Cheerleaders: Copyright in 2017 and Beyond

2017 has come and (almost) gone, and with it, another year of noteworthy copyright developments…sort of. While there have undoubtedly been some interesting developments in copyright litigation—with the Turtles taking it on the chin and the Supreme Court contemplating the meaning of cheerleading outfits—the reality is that some of the most important questions involving the administration of copyright law entering 2017 remain unresolved. The Copyright Office (USCO) is not only still under the control of the Library of Congress and in need of modernization, but 14 months have gone by with no permanent Register of Copyrights appointed, notwithstanding a rigorous SurveyMonkey vetting process. Oh, and speaking of monkeys, that opportunistic macaque continued to dominate copyright headlines, despite it being years since the selfie seen ‘round the world was snapped.

The Copyright Office

A year ago, I wrote about a tumultuous year in copyright that saw the unceremonious removal of Register of Copyrights Maria Pallante by the newly appointed Librarian of Congress Carla Hayden. I considered the immediate and long-term effects a new Register would have on the administration of copyright law and warned of the seemingly unchecked influence of Ms. Hayden. Well, a year has gone by, and there’s been no progress in the search for a permanent USCO head and little movement towards overdue Office modernization.

In March, House Judiciary Committee (HJC) Chairman Bob Goodlatte and then Ranking Member John Conyers, Jr. introduced the Register of Copyrights Selection and Accountability Act aimed at modernizing the USCO and revamping the Register of Copyrights selection process. The Act was the first legislative effort to follow a four-year review of U.S. Copyright law and would require the Register to be nominated by the President of the United States and be subject to confirmation by the U.S. Senate—rather than appointed and dismissed at the pleasure of the Librarian of Congress. Unfortunately, despite easily sailing through the House with a lopsided vote of 378-48, the bill has stalled in the Senate, and much-needed change at the USCO has yet to occur.

In October, Congress introduced another bill intended to modernize the USCO with the Copyright Alternative in Small Claims Enforcement (CASE) Act. The CASE Act looks to establish a long-discussed small claims court at the USCO that would empower individual creators of limited means to bring claims against the unauthorized use of their works. And though the legislative effort currently has bipartisan support and is backed by stakeholders throughout the copyright industries, the skepticism of a few powerful critics has left the bill’s fate up in the air.

What we do know is that HJC Chairman Goodlatte, who has been a champion of effective copyright reform for years, has announced his retirement and will no longer lead the Committee in 2018. While Representative Jerry Nadler (D-NY) is now the Ranking Member of the HJC and has been a strong supporter of the rights of copyright owners and creators throughout his career, copyright skeptics lurk dangerously close behind, and the time to act on reform is now.

In the Courts

The past year saw two significant losses for Flo & Eddie, founding members of the 60s rock group The Turtles, in their ongoing battle with SiriusXM and Pandora over royalties for pre-1972 sound recordings. In February, the 2nd Circuit Court of Appeals in New York upheld a lower court ruling finding that New York common law does not protect the public performance of songs recorded before 1972, the year federal protection was extended to sound recordings.

Flo & Eddie brought suit against streaming radio services in New York, Florida, and California in an attempt to establish state common law rights in their songs, which include the 1967 number-one hit “Happy Together.” In October, the Florida Supreme Court issued a ruling in line with the New York court’s, finding that Florida law doesn’t recognize an exclusive right of public performance for pre-1972 recordings and that holding otherwise would affect consumers and stakeholders far beyond Florida’s borders.

It seems rather inequitable that artists who recorded a song before an arbitrary date are granted no rights in the sound recordings of their work, while those who happened to record after that date enjoy federal protection which enables them to collect royalties and enter into licensing agreements, but that’s essentially what these rulings have reinforced. Flo & Eddie’s last stand will be before the Supreme Court of California which has agreed to hear the case in early 2018. Unfortunately, experts predict California will follow New York and Florida’s lead, which would result in a clear consensus against states recognition of rights in pre-1972 recordings and avoid the “chaos” that would ensue if states treated them differently.

Perhaps the most interesting copyright decision handed down in 2017 was the Supreme Court’s ruling in Star Athletica v. Varsity Brands, which found that a feature of the design of a useful article—in this case, a cheerleading uniform—is eligible for copyright protection if (1) the feature can be perceived as a separate work of art, and (2) would qualify as a protectable pictorial, graphic, or sculptural work on its own or fixed in some other medium of expression. The case involved the copying of a somewhat unoriginal chevron design on the front of a cheerleading outfit, with the accused infringer arguing that the uniform would cease to be a cheerleading uniform if the graphical elements were removed.

In finding for Varsity Brands, the Supreme Court embraced a “conceptual separability” test that would protect designs featured on useful articles, such as clothing and furniture, as long as they could be perceived separately in one’s imagination—without the requirement of physical separation. Critics of the decision claim the court was too broad in interpreting the copyright statute, but it’s important to note that while the decision supports the protectability of the graphical designs seen on the uniforms, is does not expand copyright protection to the uniforms themselves.

Finally, I guess I have to mention to the monkey selfie. Though the story’s ubiquity in copyright law circles has spanned the better part of the last five years (and many a copyright law exam), 2017 saw some apparent closure to the copyright infringement suit brought on behalf of the Indonesian macaque against the photographer who set up the camera that historic day. In September, PETA, which had sued David Slater on behalf of the monkey, announced a settlement in which Slater would donate future revenues from the famous photograph to groups who protect macaque habitats in Indonesia.

Looking ahead

Though no one really knows whether the Copyright Office will get a new Register in 2018 or whether the proposed modernization bills will become law, there are a few issues likely to make headlines in the New Year.

Regardless of the outcome of the Flo & Eddie case in California, streaming royalty rates remain a contentious issue for artists and the services offering their music. Just last week, the Copyright Royalty Board issued a decision increasing the royalty rate SiriusXM pays its artists and labels by 40%. The decision comes after SoundExchange, a digital performance rights organization, argued Sirius was underpaying its artists, and while 40% might seem like a significant jump, the rates only rise from 11 to about 15%.

Underpaid musicians will also continue to fight exploitation on YouTube, where royalties generated by their music are a mere fraction of what they earn elsewhere and stream ripping technology allows for rampant piracy. This “value gap” has recently been lamented by some of the most popular artists in the world, and the pressure is on YouTube (and Google) to revamp a system in which it uses copyrighted content for its own profit.

2018 will also likely feature developments in international copyright agreements, most notably a reworking of the IP sections of NAFTA. And though it remains unclear how potential updates will take shape, it’s essential they give creators and copyright owners a fair shot at protecting their works, rather than reinforce an outdated system that promotes immunity for those who continually facilitate infringement

Thanks for reading in 2017, and here’s to a monkey-free 2018 that sees real Copyright Office modernization!