Issues
This case raises pertinent issues. The first issue is whether copyright is infringed when a musician revives an old song and performs it in his name. Under the first issue, is an artist free to copy or adapt an old song that was sung by another artist? And does it matter the quantity of the adaptations made to the old song? Does it also matter whether the songs were released on an album or as singles?
The second issue is whether an artist is liable for copyright infringement if the artist uses the name of another artist’s copyrighted song in his release. Under the second issue, how free is an artist to name his song after another artist’s copyrighted songs? Would the artist remain liable even if his music did not sell much? Does it also matter whether the new song is released on an album or as a single?
Rules of Law
The U.S. Copyright Act protects all created works including works of a musical nature. In this regard, the Act mentions expressly that musical works “including any accompanying words” and sound recordings are copyrightable. Copyrightable work is created when the work is fixed in some tangible medium. The fixation must be for a sufficiently permanent period to facilitate the reproduction, communication, and perception of the work to the intended audience. Accordingly, the portion of the work that is so fixed constitutes the copyrightable musical work of the musician. With that understanding, the ideas, principles and concepts in musical work cannot be copyrighted because copyright only protects the expression of ideas and not the ideas themselves. The Act also defines a derivative work as work whose creation is based on pre-existing work. It follows a derivative work includes work which is a modification, revision, or elaboration of a pre-existing original work. Individuals must seek the consent of the copyright owner to modify their work.
Copyrighted works grant exclusive rights over the works. It follows, the artists have the right to produce and distribute, perform, and display their works to the public; the right to make derivative works from their works; and the right to distribute their music digitally using and audio transmission mechanism. It follows; a copyright owner is permitted to deal with his creation at his discretion. Copyright owners also have the right to sue anybody who infringes their copyright by either copying or adapting the copyrighted works without prior consent.
Copyright over musical works is rather complicated than other forms of works. In music, copyright protects both the composition and the recorder sound itself. The composition aspect involves protecting the words that are composed by the composer. It follows; a song could have copyright protection in two ways. The composer of the music would have rights over the composition while the recording company would have rights over the recorded sound. The law provides an exception of the copyrighted owner’s right to reproduce the works. When a musician puts his music in a CD and distributes it to the public, anybody may reproduce the song from the CD subject to the payment of a fee to the copyright owner. Also, under the arrangement, any entity that intends to play the music in a public medium is required to pay some amount to the musician through a Performance Rights Society.
The Copyrighted works are subject to exceptions such as the Fair use exception. Under fair use, several factors are put into consideration. First, the reproduction must be for a non-commercial reason. The courts will also look at the amount and substantiality of the work copied or reproduced. Also, an individual cannot claim fair use if the copying or reproduction would affect the market value of the original work. It is also worth noting that not all old songs are in the public domain. It all depends on when the song was created. Generally, in the United States, all works copyrighted after 1978 last the lifetime of the author plus an additional seventy years after the author’s death.
The courts have previously held that any person who reproduces the musical work of another artist should duly compensate the original owner of the music. In Arnstein v. Porter, the plaintiff alleged that the defendant had copied his musical creations. The courts held that to determine whether a musical work is reproduced, there must be a substantial similarity between the defendant’s work and the plaintiff’s work. Also, in Structured Asset Sales. LLC v Sheeran et al., the Supreme Court observed that the appellant’s works were substantially similar to the appellee’s and that customers could easily take the appellant’s songs for the appellee’s.
Application
The words of the song Michael Bolton and Goldmark’s song, “Love Is a Wonderful Thing” infringe on the Copyright of The Isley Brothers because copyright protection of musical works extends to the words of the music. The Isley Brothers’ works satisfied all the requirements for a copyrightable work. Notably, their songs were produced in a tangible form either as singles or in albums. It follows; the law only looks at whether the musical work is in a tangible form. It matters not whether it is released in an album or as a single. In that light, Michael Bolton and Goldmark had an obligation to seek the Isley Brothers’ consent to make a derivative of their work or to use the copyrighted name of the Isley Brothers’ song. Besides, the title of Michael Boston and Goldmark’s song was exactly like that of the Isley Brothers. Lastly, Michael Bolton and Goldmark cannot rely on the fair use exception because their use of the Isley Brother’s title was for commercial gain and ended up performing well in the pop chart.
Conclusion
In conclusion, Michael Bolton and Goldmark are liable for the infringement of the copyright of the Isley Brother’s song, “Love Is a Wonderful Thing”. They failed to follow the due procedure of obtaining consent from the Isley Brothers before using the name. Accordingly, they are liable for damages ordered by the court.
REFERENCES
Arnstein v. Porter, 154 F.2d 464, 1946 U.S. App. 68 U.S.P.Q. (BNA) 288.
Burgunder, L. B. (2011). Legal aspects of managing technology. Mason, OH: South-Western Cengage Learning.
Structured Asset Sales. LLC v Sheeran et al. No. 1:2018cv05839 (S.D.N.Y. 2020).
U.S. Code Title 17 §101, 102, 106, 107, 115.
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, we will be able to prepare the legal document within the shortest time possible.