Thus, the film was released theatrically in 1968 without a claim to copyright. Under the applicable law of the time, the owner of a copyright lost all rights to a work if he did not affirmatively claim copyright in the work’s initial publication, so the movie immediately lapsed into the public domain. Since this time, the movie has been one of the most downloaded feature length movies extant in the public domain.

This draconian law of forfeiture led the motion picture and music industries to lobby Congress for greater copyright protection during contemplation of the Copyright Act of 1976 and, eventually, accession of the United States into the Berne Convention in 1989. The result of this extensive lobbying effort caused a great change in the paradigm of copyright. Where every work was presumptively unprotected before  (because a work would lapse into the public domain absent an affirmative claim to copyright), after the accession to the Berne Convention by the US, works were presumptively protected.

Indeed, the Berne Convention obligates countries to abandon requirements of formalities in gaining copyright protection for their works. Having no formalities means that copyright protection attaches to a particular work as soon as a work is created. No formalities also means that no paperwork needs to be filled out to maintain copyright protection. In the current state of the law, a copyright holder need not claim copyright or maintain copyright, he only needs to create. Upon creation of a protectable work, copyright attaches and remains for the life of the author plus 70 years.

In order to be in compliance with the Berne Convention, the US was required to remove all formalities form its copyright law. As the word “formalities” includes those applicable to securing copyright and to maintaining copyright, the norms of copyright registration and copyright renewal after a specified term were removed. Thus, as soon as a creative work is created, it is protected irrespective of whether it is registered; renewal is now automatic. The end result of these new laws is that any and all creative works are protected for 70 years after the death of the author.

One of the major flaws of these new laws is that permission is now presumed to be required to use a work, as copyright attaches at the creation of a work, not to any formal requirement. Also, the public domain will not grow significantly until 2018. However, in celebration of the public domain and some of its pioneers, like Eric Eldred, I am screening Night of the Living Dead at my school this Friday.

Last month, I discussed the potential impact of Cable News Network, Inc., et al. v. CSC Holdings, Inc, et al. To recap, a litany of studios and networks sued Cablevision for its plan to offer DVR/on-demand services where subscribers could save programs without using their at-home cable box. That is, subscribers would save the programs with Cablevision and be able to access them, commercial free, at home. Thus, the studios and networks were afraid that this added convenience would increase use of DVR and decrease the watching of programs live and, subsequently, put a serious dent into their revenues by removing commercials and the networks’ advertisements for their other programs.

The networks and studios sued Cablevision for copyright violations. After a district court held on behalf of the networks and studios, a court of appeals overturned the decision in favor of Cablevision. The networks and studios petitioned for a writ of certiorari so that the Supreme Court would hear the case. The U.S. solicitor general urged the high court not to.

Well, yesterday the Supreme Court denied cert. Although this technically does not mean the Supreme Court agrees with the court of appeals, it does mean that the court of appeals’ decision is now the binding case law on this matter. This is good news for cable providers and subscribers. Now if only I could figure out how to use my DVR…

On the following June 4th, U.S. District Judge Dean Pregerson ruled that the segment represented speech protected by the First Amendment. Burnett’s $2 million lawsuit was thrown out and the creators of Family Guy scored a victory. See the full story here.

That October, the creators of Family Guy were sued by the rights holder of the tune When You Wish Upon A Star. Bourne Inc., a music publisher, sued Family Guy for its reproduction of the tune with anti-Semitic lyrics. Judge Deborah A. Batts ruled that “[t]he song can be ‘reasonably perceived’ to be commenting that any categorical view of a race of people is childish and simplistic, just like wishing upon a star.” She also restated the law on parodies saying that a parody does not have to be effective to be fair use.

In its latest season, Family Guy has used Stephen King and Revenge of the Nerds in ways that seem to invite litigation. For example, in the episode, “Three Kings,” Family Guy uses three Stephen King stories and ends the episode with the Peter Griffin character telling King that he will see him in court. The creators of Family Guy managed to get Roy Scheider and Richard Dreyfuss to do cameos on the episode.

In another episode, Family Guy uses the classic scene from Revenge of the Nerds wherein the nerds outdo the jocks in a musical performance at a talent show. The scene in Family Guy concludes with a reference to itself being a rip-off. However true this may be, Revenge of the Nerds has been imitated many times in the past.

I would propose applying a snicker test before media companies or actors and actresses sue the creators of Family Guy. A snicker test is the test that is normally applied to determine whether a complaint should be filed. Traditionally, if the complaint makes a reasonable person snicker, then it should not be filed. So, if the complaint is, for example, a complaint against God, it will likely make a reasonable person snicker, and should not be filed.

The snicker test that I would have the prospective plaintiffs follow would bar complaints where the subject matter of the complaint makes the reasonable person snicker. So, where the actual complaint may not make a reasonable person snicker, if the Family Guy segment complained of makes a reasonable person snicker, then the complaint should not be filed. In the cases cited above, Family Guy made great episodes and managed to get some of the original talent from the works parodied to contribute artistically to the parodies. All of the episodes cited certainly made me snicker.

However, where the complained of segment lacks a logical nexus between the Family Guy characters and their alleged parody of an original work, the complaint is more likely to pass my proposed snicker test. If you click the link above and watch the clip that Carol Burnett complained about, you may struggle to figure out why Carol Burnett and an adult book store have been juxtaposed.

Burnett and porn would seem to have nothing to do with one another. As mentioned previously, Family Guy’s use of Burnett was protected speech. So while complaints like those brought by Burnett are legitimate, there is still no guarantee of success.

In conclusion, I would argue that much of the comedy on Family Guy is protected either by fair use or by the First Amendment. Courts should continue to exercise the doctrine of aesthetic non-discrimination. Where there is some modicum of comedy and some modicum of a relationship between the comedy and the person parodied, a competant court should protect the speech. A court should not dictate what its idea of humor is, and while this has been the practice of many federal courts hearing cases involving Family Guy, I hope that all courts follow suit (forgive the pun).

When songwriters compose material, they generally want it to be safe from replication by others. They do not want others to profit from their work. This is accomplished by obtaining a copyright. A copyright gives the author an exclusive right to publication, distribution or adaptation of a piece of work for certain time period. During this time period, no one can use the piece of work without certain permissions. Once the copyright is up, anyone can use the work because it is said to enter the “public domain.” A songwriter’s work is copyrighted as soon as it is in a tangible form such as CD or sheet music. However, most songwriters get their songs registered so as to make it easier for them to receive compensation in court if their copyright is infringed upon. To copyright a song, the songwriter needs to obtain the proper forms. For a sound recording, the songwriter should obtain Form SR and possibly form CON. You can request a copy by mail at US Copyright Office, Library of Congress, Washington D.C. 20559, by phone at (202) 707-3000, or at www.copyright.gov. The forms must be filled out and sent back to the copyright office along with $45 and a non-returnable copy of the song. If the form is filled out correctly, a certificate of registration will be sent 4-5 months later.

Once the song is copyrighted, the writer is entitled to mechanical royalties under the Copyright Act. This means that whenever the copyrighted song is further recorded, the writer is entitled to royalties. Thus, the writer is entitled to compensation for each record that the record company produces. As of 2006, the statutory mechanical rate is $.091 for songs that are five minutes or less in length, or $.0175 per minute or fraction thereof per copy for songs that are over five minutes. So as you can see, songwriters can accumulate a ton of money for songs that achieve gold or platinum status. For example, if your song sells 1,000,000 copies, as the songwriter, you would be entitled to $91,000! This is a substantial sum if you have a knack for this sort of thing.

This rate is subject to periodic change. Thus, most songwriters will negotiate with record companies to receive the rate that is in place at the time of the manufacture of the record. Otherwise, if the writer negotiates an agreement where the rate is based on the rate at the time of the song’s release, the songwriter will receive a much lower rate if the song is ever re-issued or re-released. So it is advantageous for the songwriter to negotiate for the rate in place at the time of manufacture.

Most songwriters in the U.S. employ the Harry Fox Agency to handle their mechanical royalties. They issue the licenses and collect the royalties for the songwriters in order to save the songwriters the time and aggravation of going through the mechanical license process. Many other countries have similar agencies that deal with mechanical rights such as MCPA (England), STEMRA (Netherlands), GEMA (Germany), and CMRRA (Canada).

So if you ever thought about songwriting or already have written several pieces, I encourage you to copyright the work for your protection.

In the time period since, most users of digital media purchased DVDs and music without noticing that they were often paying multiple license fees, all for the privilege of watching or listening. For example: when you buy a DVD, you are paying for a license to watch it; when you buy an operating system for your computer, a portion of the purchase price goes towards another license; when you buy blank DVDs, a portion of the price is basically placed in escrow to be dispersed to the artists and others. If you don’t own a computer, the price of your DVD player includes a fee that the manufacturer must pay to an organization representing the artists on the DVD. So today when you buy a DVD and decide to make an archival copy of it using a proprietary operating system, you have payed for the privilege three times.

The extra money that you shell out when you are buying a computer operating system or DVD player is for a license to decrypt the DVD movie’s encryption known as CSS, or content scramble system. Non-proprietary and free operating systems do not have this decryption capability, which is why Linux users have been without DVD support even if they legally purchase a DVD.

The recording and motion picture industries began experimenting by using technical protection measures on copyrighted works in the mid-nineties. These technical protection measures acted as digital locks that could control the ways that an end user could use a work such as a music CD or DVD movie. With 1998 came the advent of the Digital Millenium Copyright Act, and takedown notices soon became prevalent when trying to discourage circumvention of protection and unauthorized access of digital works. The DMCA made circumvention of these digital locks or unauthorized access of the works underlying the locks illegal. Soon after the enactment of the DMCA, DRMs (a type of technical protection measure) became an easy way for the recording and motion picture industries to gain extra revenue. The DRMs that are prevalent preclude copying of the work they are applied to, or they may allow access to the work only for a specified period of time. Avoiding these protections violates the law.

A file protected with DRM or another technical protection measure gains legal protection in addition to that provided by copyright. Even when the underlying work is unprotected by copyright, one who circumvents a technical protection measure or accesses a work without authorization may be liable under the DMCA for doing so. The person ‘may’ be liable because the question of whether copyright law and the DMCA are independent of each other has not been answered.

A working example is illustrative. Recently, the Motion Picture Association filed a complaint in a Federal District Court in LA requesting an injunction against the sale of Real Network’s RealDVD software, saying that the RealDVD software violates the DMCA by allowing its users to copy DVDs to their computers. The MPA claims that these copies are achieved by circumventing the CSS protection in the DVD disks. Real Network, who recently released RealDVD, claims that the copy is a fair use archival copy recognized under copyright, and that the DMCA is not meant to apply to otherwise fair uses of works. The Los Angeles judge will have to determine whether the DMCA is to apply in cases where there is no actual infringement alleged. The LA District Court judge hearing the case recently asked an MPAA attorney if he thought that a consumer had a right to make a personal copy of a purchased DVD; the attorney said “Not for the purposes under the DMCA.”

If the DMCA can be applied when there has been no copyright infringement, there may be far-reaching consequences. Works in the public domain, or works no longer under copyright protection, could be locked up indefinitely with technical protection measures. Thus, accessing a work in the public domain by circumventing a technical protection measure could lead to considerable liability even though the underlying work is not protected under copyright. More to the point, DVD and CD lovers will be unable to make copies in case the original copy is destroyed. Instead, those people will have to purchase another copy, something the MPA would enjoy.