In Which Joe Defends A Big Record Company
Frank Field points to this press release from Irdial Records describing their settlement of a copyright dispute with WEA International.
Here’s the story. Irdial put out a CD full of recordings of shortwave “numbers stations” called The Conet Project. The numbers stations are broadcast anonymously and more or less everyone acknowledges they have something to do with international espionage. For this reason, the recordings themselves are probably either not covered by copyright at all (in the case of recordings made by the United States government) or are protected by rights that are extremely unlikely to be enforced, since doing so would blow the broadcaster’s cover.
Wilco sampled one of these recordings at the end of “Poor Places” on their album Yankee Hotel Foxtrot — a numbers station repeating the words “Yankee… Hotel… Foxtrot”. The sample was taken from the Conet Project CD. Irdial sued WEA, Wilco’s record company, for copyright infringement in the UK. They claim, first, that their recording is unique because of the radio interference that surrounds it, and that this interference gives them a copyright in the recording. Second, they edited the recording to make it more interesting. Third, they processed the recording to make it clearer . Each of these, they say, gives them exclusive rights in their recording.
I don’t know UK copyright law very well, so I don’t know whether this claim has more merit there. But under American law, Irdial probably would have lost had the case gone to trial. First, simply recording a radio broadcast does not give a person rights in the recording. A recording of a preexisting transmission does not have the requisite originality for copyrightability. Second, Irdial’s editing may have been sufficient “selection and arrangement” to give rise to a copyright in the whole track, preventing wholesale verbatim copying. But from the description they give, there were no edits within the “Yankee Hotel Foxtrot” sample; the sample Wilco used was an unedited slice of Irdial’s source material, and thus Irdial’s edits cannot have given rise to copyright in the sample. Finally, the equalization and processing. Irdial admits that the EQ was “to remove noise” — not for any creative purpose. This would be the closest issue, I think, but WEA could argue that any new matter added by Irdial in the noise-reduction process is purely functional, increasing the clarity of the recording, rather than constituting protectible expression.
Given that last issue, I understand why WEA settled; this would end up being a fact-intensive dispute that would be expensive to litigate. But I don’t think the Wilco sample, in fact, infringed Irdial’s copyrights.
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Hmmm. I’d think that between being recorded off the airwaves and
being pressed to CD, the recordings would have gone some audio
production and engineering. That would make it a derivative work,
wouldn’t it?
I know that record companies have sued over one-note samples so I’m
not surprised that WEA settled. Even if it’s not legal, it’s the way
the content industries claim copyright law works.
Comment by Chris Reuter — 22 June 2004 @ 13:39
On the first question — yes. Irdial did create a copyrightable derivative work when they recorded the audio, cleaned it up, edited it, and sequenced the tracks on the CD. But just because there’s a copyrighted work doesn’t mean that *all* copying of some part of the content violates the copyright holder’s exclusive rights (so we wouldn’t even reach a fair use analysis). If I collect a bunch of public domain posters and publish them in a book, grouped by theme, I’ve created a copyrightable work; if you copy the whole thing, you’re an infringer. But if you just copy one of the posters, you’re not violating my copyright, because the poster is not my original expression.
You’re right that the processing might have made even the sample a copyrightable derivative of the (probably) public-domain source. But if the processing was purely technical work to make it more intelligible, there’s probably no copyrightable expression there.
Two good cases to look at on this question are Bridgeman Art Library (on the issue of what it takes to make a copyrightable derivative from a public domain source) and the recent decision in Silverstein v. Penguin Putnam (on the issue of compilation and editing as derivative works).
Comment by Joe Gratz — 22 June 2004 @ 17:41
Under UK Copyright law, and in countries that are signatories of the Berne Convention, anyone that fixes a work is instantly protected by copyright law for that work.
This means that the recording that was made of the signal in question, from a shortwave radio to a cassette, was protected by copyright from the moment it was made. The owner of the copyright was the person who made the cassette recording.
This copyrighted recording was then transferred to a digital master, which was used to manufacture a CD. That master tape, and each resulting CD manufactured by the company are all protected by copyright under the same rules; that means that no one may take a copy from these physical objects without the permission of the copyright holder.
Wilco took a copy from a copyrighted CD, which has a clearly written copyright notice printed on it (not that that makes any difference to the status of the protection afforded to that disc), and incorporated it into one of their works, without permission.
Their record label, then took this infringing work, made an infringing master tape for CD manufacture, and then manufactured infringing copies from that master and then sold them to the public.
This is a clear cut case of copyright infringement. The content of the recording is irrelevant; the tape that was copied was copyrighted. This is the same protection offered to the recordings of nature sounds, or for example the Zapruder film.
If it were the case that anyone can copy from a disc without the permission of the owner of the copyright of the disc, then the people who manufacture compilations of old recordings would have no recourse in the law to shut down people who made duplicates of their compilations for sale (piracy).
Comment by John Weston LLB — 23 June 2004 @ 03:55
What the heck does “fixes a work” work mean? UK law and Berne Convention law doesn’t take into account creativity (the whole reason copyright exists)? It’s clearly not creative to simply record something so if it did cover that the first step, at the very least, would not be copyrightable.
“then the people who manufacture compilations of old recordings would have no recourse in the law to shut down people who made duplicates of their compilations for sale (piracy).”
As has been said before collections are be covered seperately from the original recording. Anyone could copy any part of the collection, but they just couldn’t copy the collection as a whole… So those people who manufacture the recordings wouldn’t go out of business.
Comment by Anonymous — 24 June 2004 @ 06:30
Creativity? Hmm, the anonymous poster seems to have a limited view of what can consitute a work of art.
Isn’t Taking a Photo much the same as m,aking a recording yet you would not question the “creativity” in doing so.Thanks John Weston for clearing up the issue and showing how really it is quite a clear cut issue.
Comment by Luke — 28 June 2004 @ 01:13
Luke,
You’re right — taking a photo is just like making an audio recording. But there isn’t always originality (leaving creativity aside) in a photo, just as there isn’t always originality in an audio recording. If your photo is just a copy of some other work — like taking a straight-on shot of a painting — it’s not copyrightable because you’ve added nothing. The same is true of a recording that’s just a copy of whatever was broadcast on some shorttwave station when you happened to be recording.
Comment by Joe Gratz — 28 June 2004 @ 11:50
Copyright Bizarreness
Via boing boing, via Joe Gratz, comes word of an interesting copyright infringement case: Frank Field points to this press release from Irdial Records describing their settlement of a copyright dispute with WEA International. Here’s the story. Irdial …
Trackback by pseudorandom — 25 December 2004 @ 13:22