Magic Wands of Copyright

“Music is a higher revelation than all wisdom and philosophy” – Beethoven. I can’t help but wonder what Beethoven would think of the takedown notices sent to websites earlier this week that display song lyrics. As Billboard reported in THIS article, the National Association of Music Publishers sent takedown notices to nearly 50 websites that publish lyrics to songs. It is the contention of the National Association of Music Publishers that these songs lyrics have not been licensed before being displayed on these websites.

Pretty immediately my inbox was flooded with emails from friends and blog readers who knew this type of news story would be dear to my heart. Most of you wanted an explanation about how copyright law could also protect the lyrics put on these websites. As many of you pointed out, it was not an actual album cut or song performance, but only the lyrics that are displayed.

Your thinking is actually quite logical because the song lyric websites are not like Napster or other free music sites, which displace or eliminate sales of music. In fact, one might even argue that lyric sites actually help to fuel music sales. However, the answer to your questions lies in §106 of the Copyright Act and the exclusive right a copyright owner has to display a work publicly.

To borrow slightly from my wise copyright professor, §106 of the Copyright Act titled Exclusive Rights in Copyrighted Works is most easily explained by thinking of each “right” as a separate stick. For my purposes – let’s think of each right as a Copyright Magic Wand and each wand can cast a different intellectual property spell. And, yes if you were wondering, in my mind there is a different colored glitter explosion involved with each of these spells. 🙂

In very simplified terms, the Exclusive Rights in Copyrighted Works are:

1. Right to Reproduce

2. Right to Prepare Derivative Works

3. Right to Distribute Copies by sale, rental or lease

4. Right to Perform the work publicly, if the copyrighted work is one that can be performed like choreography or dramatic works

5. Right to Display the work publicly, if it is a type of copyrighted work that can be displayed like literary, sculptures, dramatic or musical works

6. Right to Perform the work, if the copyrighted work is a sound recording

The copyright owner “holds” all of those rights/wands exclusively. The owner of the copyright is the exclusive person who can say how each right is used. In addition, the copyright owner can divide and subdivide each of the six above named rights. The copyright holder can give away one, or several, of the wands and still keep the rights in the remaining wands.

By way of example, let’s say that I wrote a book. I wanted my book turned into a movie, which would be a derivative work of the copyright in my book. Therefore, I would give away (license) the Copyright Magic Wand that is associated with the number two above listed right, which would give permission to the movie studio to prepare the derivative work in the film based on my book. My giving away of the derivative works Copyright Magic Wand would not diminish the rights I had in the remaining five (5) magic Copyright Wands.

As the owner of a musical work copyright (think song and lyrics), the copyright owner has the exclusive right to “display the work publicly” as indicated in Title 17 U.S.C. §106(5) the Exclusive Rights in Copyrighted Works. What really has the National Association of Music Publishers so upset is that companies advertise on these music lyric sites. Meaning, the website owners are making money from displaying song lyrics. The Billboard article states that they are not targeting fan sites, but are concerned with commercial sites with advertisers like I described.

As I explained above, displaying is a right that is exclusive (until permission is given to another person or group) to the copyright owner. Notice that this right does not mean that others can display so long as they are not making a profit, have no ill will or are simply putting it out there for information. If that is the case, then perhaps a fair use defense may be applicable. However, in the case of the song lyric websites that received the takedown notices it does not seem a fair use argument is available, especially in light that the website owners charge companies to advertise on the website and make a profit from the ad sales.

While these commercial websites might not want to face the music and license the song lyrics, it is still the copyright owner’s exclusive right to say how, when and if ever their work is displayed. Displaying is one of the exclusive rights, or magic wands, granted to the copyright owner. When displaying another person’s copyrighted work you should tread lightly. You might find yourself as covered in copyright litigation as Christmas ornaments are covered in glitter in the House of Saucier.

What do you think? Is this fair to the lyric websites? Take part in the conversation in the comment section below and Stay Tuned In!

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