Even Lawyers Are Confused About What's Legal Or Not In The Prince/Radiohead Spat

from the wait-a-second... dept

Thu, Jun 12th 2008 10:22pm — Mike Masnick

We were just discussing how copyright has been stretched and twisted so many times that it really just isn't designed properly to handle internet communications -- and a good case in point may be the funny little spat we covered a few weeks back between Prince and Radiohead. If you don't recall, Prince performed a cover of a Radiohead song at a concert. Someone in the audience videotaped it and put the video on YouTube. Prince's representatives demanded that the content be taken down under a DMCA request -- raising all sorts of questions. After all, Prince didn't own the copyright on the song. That's owned by Radiohead, whose lead singer wanted the video back online. Prince didn't own the copyright to the video either, since he didn't take it. So how could he use the DMCA to take down the video?

But, it's not that simple, apparently. As Ethan Ackerman details, as lawyers began to think about the situation, the more confused they got, noting that maybe there was a right under anti-bootlegging laws. Only, then things got more confusing, because it turns out that anti-bootlegging laws aren't actually a part of the copyright act (though it does fall under the same "title" just to add to the confusion), and the DMCA (under which the takedown occurred) only applies to copyright law.

However, again, we're left in a situation where the "law" is hardly clear at all, and even those who follow the space were somewhat confused over whether or not Prince had any sort of legal standing here. A law is not useful if the boundaries of that law are not clear, and if someone has no clue if their actions go against the law. In the internet era, copyright certainly falls under that category of laws in which it is no longer clear what is and is not legal -- and that should be seen as a problem.

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Filed Under: confusion, copyright, prince, radiohead

32 Comments

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Anonymous Coward, 12 Jun 2008 @ 10:53pm

Am I first.......
... Or am I last.... It is so confusing.... my head hurts...
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Anonymous Coward, 13 Jun 2008 @ 12:42am

Except isn't Princes "performance" copyrighted? maybe as a derivitive work?
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Anonymous Coward, 13 Jun 2008 @ 1:31am

Re:
Except isn't Princes "performance" copyrighted?
No. Copyright doesn't apply to performances, only fixed works.
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zcat, 13 Jun 2008 @ 2:15am

weird
I would have thought that a bootleg was already covered by copyright law; surely it's an unauthorised copy of the original song-as-fixed-work?
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SteveD, 13 Jun 2008 @ 3:40am

Re:
Right, but the copyright in this case would belong to the person who recorded the video.

A phtographer doesn't need the consent of a celebrity to snap their picture and sell it to a magazine.

Increasinly it seems that copyright is being abused simply as a means of controling business interests, not artistic rights or as an intentive to innovation.
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Bob V, 13 Jun 2008 @ 4:55am

So what now
After reading countless stories about copyrights the one thing I am left wondering is how can the system be fixed, or even more to the point is it even possible for the system to be fixed. I can write my representatives but I have a complete lack of faith that they have either the willingness or ability to fix the system.

Through all of the changes that have been written over the years we're now at the point where even the lawyers don't know what the issues are. How can the average person be expected to know whether they are doing anything wrong. Ignorance of the law does not excuse is a principle of our legal system. So where does that put us when even the lawyers are ignorant of the law.
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Duane, 13 Jun 2008 @ 4:57am

Bootlegger
IANAL, but it seems pretty clear to me:

Copyright protects a fixed work, such as a recording or written song. So Radiohead can hold copyright to any recording which they make, or pay to have made of themselves singing their song. They could also hold a copyright to the actual sheet music of the song. "Covering" a song is a derivative work, almost the textbook case. A recording of someone covering a song would be copyright for the person doing the recording, unless they were a paid employee. If the recording occurs without the consent of the performer, then you're into bootlegging, since the concert was a private event.

So Prince could go after the video poster, and try to get them prosecuted for bootlegging, but no one's copyright seems to have been infringed. Since there is no infringement going on, this becomes just another case where people use the DMCA to remove content because they don't like it. Radiohead should not even have been involved, since their work was fairly used. Them having any kind of say would be a dangerous precedent which could lead to all kinds of derivitave works coming under fire from the original content producers.
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Anonymous Coward, 13 Jun 2008 @ 5:23am

Re: weird
But even if that were the case, it's Radiohead's song, not Prince's.
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asdf, 13 Jun 2008 @ 5:45am

Re: Re:
+1
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mike allen, 13 Jun 2008 @ 5:53am

fair use
have any of you seen this video it is short about 15 seconds seems like fair use of either fixed or derivative work to me.
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mcdougrs, 13 Jun 2008 @ 5:56am

Re: Bootlegger
I tend to agree with you Duane about the copyright issue and maybe even in to the bootleg issue. Where I get hung up on the bootlegging this is... doesn't bootlegging mean the person doing the bootlegging makes some sort of profit???

I also agree that Radiohead really doesn't have a say here. But I do think the video should be put back up seeing as how this does not seem to fall under the DMCA so therefor the takedown notice should be null and void. So in a way Radiohead would get their way anyway.
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Anonymous Coward, 13 Jun 2008 @ 6:39am

Re: Re: Bootlegger
Did prince license the song in question for use in his concert? if not then isn't he in vioaltion of radioheads copyrights? i think radiohead should sue prince for a portion of the proceeds from that particular show.
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Anonymous Coward, 13 Jun 2008 @ 6:40am

Just another example of DMCA abuse and why it shouldn't exist even though the rest of the world are going to have the same thing as time goes on. Might as well just shut down the internet.
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Formerly Anonymous Coward, 13 Jun 2008 @ 7:30am

Should DMCA have been involved
Last time I checked if you were the primary object of a U-tube video you could request a takedown, no DMCA, no copyright, just I don't want my face on teh intarnets please remove. Stop hiring lawyers and just make a simple request and prove ID. AFKAP wins, no lawyer fees needed.
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Anonymous Coward, 13 Jun 2008 @ 7:47am

Re: Should DMCA have been involved
Last time I checked if you were the primary object of a U-tube video you could request a takedown, no DMCA, no copyright, just I don't want my face on teh intarnets please remove.
You can request almost anything.
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Anonymous Coward, 13 Jun 2008 @ 7:49am

Re: Re: Re: Bootlegger
Did prince license the song in question for use in his concert?
Yes.
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Anonymous Coward, 13 Jun 2008 @ 8:06am

Re: Re: Re: Re: Bootlegger
"Yes"

Assuming this is correct, and it is certainly how the system almost invariably works, then P in his own right would hold a copyright in his performance of the RH song. RH likely holds a dominant copyright in both the lyrics and score, but P would hold a subordinate copyright re his performance as an authorized derivative work.

The consequence of this is that P would have every right to call for the clip to be removed, and RH would have no right under law to try and compel a different outcome.
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ehrichweiss, 13 Jun 2008 @ 8:36am

Re: Re: Re: Re: Re: Bootlegger
Except the person who is recording the song then technically owns the copyright to the video. Prince would have no rights in that case. That's the thing that makes the slope that much more slippery.
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Anonymous Coward, 13 Jun 2008 @ 8:50am

Re: Re: Re: Re: Re: Re: Bootlegger
Perhaps, except that the video of the performance is an unauthorized copy of the performance. Given circumstances noted in articles concerning how video made, it is almost certain that no copyright subsists in the video itself.
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Anonymous Coward, 13 Jun 2008 @ 7:51pm

Re: Re: Re: Re: Re: Bootlegger
Assuming this is correct, and it is certainly how the system almost invariably works, then P in his own right would hold a copyright in his performance of the RH song.
You need to go study US copyright law. Prince cannot hold a copyright on his performance because performances cannot be copyrighted. Only fixed works can be copyrighted.
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Anonymous Coward, 13 Jun 2008 @ 7:53pm

Re: Re: Re: Re: Re: Re: Re: Bootlegger
Given circumstances noted in articles concerning how video made, it is almost certain that no copyright subsists in the video itself.
Why not? Copyright law grants an automatic copyright as soon as a fixed work is created.
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Anonymous Coward, 14 Jun 2008 @ 7:53am

Re: Re: Re: Re: Re: Re: Bootlegger
"You need to go study US copyright law."

I have.
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Anonymous Coward, 14 Jun 2008 @ 7:56am

Re: Re: Re: Re: Re: Re: Re: Re: Bootlegger
For a work (in this case the video) to qualify for copyright it has to embody some measure of original expression beyond merely making a video copy of the performance.
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JMuniz3, 14 Jun 2008 @ 1:22pm

Prince-Radiohead Fight
I am a fan of both artists. I think Prince has a right to protect his image any way he wants, but his image only. He sang a cover of a song that is not his. He cannot dictate how material that is not his can be handled. He does have a right to his image as an artist though. I imagine he can ask or demand that his image be blurred or obscured in some manner. This would offer some level of anominity to the video and maybe satisfy his complaint.
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Anonymous Coward, 14 Jun 2008 @ 6:16pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Bootlegger
For a work (in this case the video) to qualify for copyright it has to embody some measure of original expression beyond merely making a video copy of the performance.
Wrong. Choosing a recording location, camera angle, editing, etc. is plenty to qualify for a copyright. If it weren't then movies (recordings of performances) wouldn't qualify for copyrights either. Furthermore, if everyone who attended the concert made a video each one would likely be unique and different in some way and each would qualify for it's own copyright.
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Anonymous Coward, 14 Jun 2008 @ 6:22pm

Re: Re: Re: Re: Re: Re: Re: Bootlegger
"You need to go study US copyright law."

I have.
Then you really don't have much excuse.
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Anonymous Coward, 14 Jun 2008 @ 6:28pm

Re: Re: Re: Re: Re: Bootlegger
RH likely holds a dominant copyright in both the lyrics and score, but P would hold a subordinate copyright re his performance as an authorized derivative work.

If you aren't making it up, would you please cite the US law that supposedly defines something called a "subordinate copyright"?
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Anonymous Coward, 14 Jun 2008 @ 9:28pm

Re: Re: Re: Re: Re: Re: Bootlegger
Since you clearly are familiar with copyright law, then perhaps you can help me understand an issue that has been particularly vexing. Under the Defense Supplement to the Federal Acquisiton Regulations (DFARS) at 252.227-7013, as modified in 1995, a change was made to incorporate prior separate licenses pertaining to trade secrets and copyrights into a single clause. Might you be able to elaborate on whether or not you believe the current definition of "unlimited rights in technical data" is effective in achieving its stated goal that the full panoply of rights under copyright law have actually been licensed in accordance with the terms of the new clause?

Moreover, and assuming that the provisions of the clause are effective as a broad, all-encompassing, license of copyright, does that license grant sublicensing rights. I say the answer is clearly "no", but am always open to opposing views with a clear summation of why.

Furthermore, and assuming that the a work is subject to the provisions of either the Export Administration Act or the Arms Export Control Act, can such a work be registered and are there any limitations of what can appear in the deposited best editions of the work?

I look forward to your response.
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Melted Metal Web Radio, 15 Jun 2008 @ 2:56pm

Special Judges With Technical Backgrounds
The answer to these issues are, as usual, quite simple. Create special courts with judges who have advanced technical degrees in the areas covered by their court.

Of course, you also have big businesses who like it this way. Currently, many large businesses love coming into courts to fake out judges and juries who have no clue, such as with the Copyright Royalty Board (CRB), in the disastrous explosion of webcaster fees.

Think about it- a judge making decisions on Internet based copyright law, with no technical knowledge whatsoever. Quite simply, 'Stupid'.

Bill Wilkins, CEO
Melted Metal Web Radio
http://www.meltedmetal.com/
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Anonymous Coward, 15 Jun 2008 @ 6:48pm

Re: Special Judges With Technical Backgrounds
The answer to these issues are, as usual, quite simple. Create special courts with judges who have advanced technical degrees in the areas covered by their court.
You mean like the special patent courts? The ones that have become packed with special interests intent on ever expanding the scope of patents? The ones that the Supreme Court has been trying to rein in lately? That disaster? No thanks.
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Melted Metal Web Radio, 16 Jun 2008 @ 12:30pm

Re: Re: Special Judges With Technical Backgrounds
No, that's not what I meant. But corruption in the legal system is another, completely separate, matter. But that very corruption is, even still, made worse by ignorant judges who are at the mercy of strategic business interests.
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es, 2 Oct 2008 @ 3:15am

f
is it legal to discriminate ?
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