An Axl Rose sample used in a mash up often doesn’t sound as sweet.

An Axl Rose sample used in a mash up often doesn’t sound as sweet.

The bright lines of the real property based view of copyright are being blurred by technology. In 1991, Mr. Biz Markee was found liable for infringing Mr. Gilbert O’Sullivan’s copyright in his song, Alone Again (Naturally), when Mr. Markee used an unauthorized sample in his rap song entitled Alone Again. Had Mr. Markee used Mr. O’Sullivan’s song in a mash up, the result may have been different.

A mash up is a digitally created song that splices in elements of other songs, sometimes in very small increments — not in quarks, but in milliseconds — to create what some would argue are original pieces. Think of a mash up as a fusion dish that blends elements of Chinese, southern soul food, Italian, and Mexican cuisine into one dish. The question arises whether the unauthorized use of other people’s songs in a mash up is an infringement or a fair use of their copyrighted works?

The question isn’t an academic one. According to Turning Profit from Music Mashups, New York based tech company Dubset Media, Inc., collects royalties from mash up artists who use other copyrighted songs in their works. The company’s technology, known as “MixScan,” tracks uses of copyrighted songs down to the second on mash ups. It then distributes royalties to labels depending on the extent of use.

These royalty streams come in different forms and can be lucrative, Turning Profit saying that such mini sampling can generate an additional $1.2 billion a year in revenues. That’s because there is a copyright in the musical composition underlying the song, and in the recording of the song. In Mr. O’Sullivan’s case, he would own the copyright to the composition of Alone Again (Naturally), which includes the musical notes and lyrics to the song, in addition to his recording of the song in the studio, known as the “master.” Mr. O’Sullivan collects royalties from those who wish to publicly perform or re-record his composition, and from others who wish to use the recording of the song in their music or in a film. Mr. Markee avoided paying these royalties to Mr. O’Sullivan by using the uncleared sample in the rap song Alone Again.

However, had Mr. Markee used Mr. O’Sullivan’s song in a mash up, the resulting decision finding infringement wouldn’t have been so easy. Mr. Markee would likely have had a colorable fair use defense if he: physically transformed the sample (changing the frequency, tone, bass) so that it became physically unrecognizable in the final product, sampled only a small part, and if the resulting rap song either had no effect on the market for Mr. O’Sullivan’s work, or exposed it further.

Courts are more prone to find fair use — and no infringement — when there is either physical transformation of the copyrighted work in a new work, or application to a new purpose. Patrick Cariou, a photographer, lost his copyright infringement lawsuit against appropriation artist Richard Prince because he had physically modified the photographer’s photos of Rastafarians — in one case, putting a gas mask and guitar in the Rastafarian’s hands. In the recent Google books case, Google was found to have fairly used authors’ copyrighted indexes to their books by making them searchable via Google books. This is so even though there was no physical transformation of the copyrighted work, but, rather, only application to a new purpose.

Before the recent technology boom, copyright infringement was viewed with a real property monocle — one toe over the line constitutes a trespass. But technology is making that toe harder to see and the resulting line between properties less clear. A rose by any other name may smell as sweet, but an Axl Rose sample in a mash up doesn’t smell as sweet.

Death of the thrift shop?

Death of the thrift shop?

We all know the thirft shop. You go. You buy The Great Gatsby. It is used. It is cheap. It is a great read. And potentially illegal contraband? That could be so. Under the Second Circuit’s ruling in John Wiley & Sons, Inc. v. Kirtsaeng, you may not resell copyrighted materials that are manufactured overseas in the U.S. The Supreme Court heard oral arguments in the case on Monday. Until Congress amends the Copyrigt Act to limit the first sale doctrine to copyrighted materials manufactured in this U.S., the Supreme Court should overrule the Second Circuit.

Under the first sale doctrine, you are permitted to buy a book and then resell it. The copyright owner no longer has a right to restrain your use of the book once you have paid for it. However, there is a provision in the Copyright Act which prohibits you from importing copyrighted works into the U.S. without first obtaining the copyright owner’s permission. The question is whether that provision of the Act applies to copyrighted works that are used.

In Wiley, the Second Circuit was asked to resolve the apparent conflict between these provisions of the Copyright Act. The defendant had family members buy academic books overseas and then send the books to him in the U.S. When here, he sold the books for a profit. The books were manufactured overseas, and were protected by U.S. copyright law. The plaintiff, a publisher of some of the books that defendant was importing, sued him for copyright infringement, claiming he was violating their right to decide what copyrighted goods to import, or not. His defense was that he was protected by the first sale doctrine because all of the books he was importing were used. The lower court refused to instruct the jury about the potential applicability of the defense, and the man was found liable for copyright infringment.

Using some mental gymnastics, the Second Circuit held in Wiley that the first sale doctrine did not apply to the books in question because they were manufactured overseas, whereas there would have been a defense had the books been manufactured domestically. The Second Circuit came to this decision after reading a concurrence by Justice Ginsberg in Quality King, a previous Supreme Court decision in which the court held that the first sale doctrine applies to copyrighted products produced in the United States and resold here after being re-imported. Even though the majority opinion in Quality King didn’t peg its first sale doctrine holding to the fact that the product in question was domestically produced, Justice Ginsberg suggested a different outcome could result if a product were produced overseas and then imported.

It seems if Congress wanted to expand a copyright holder’s rights beyond the first sale depending on whether the product in question was produced oversears, it could easily do so by amending the Copyright Act. Until then, it seems the best way to keep cool local thrift shops (and others) from getting sued and put out of business by major book publishers (or others) for selling used books (or other copyrighted items) manufactured overseas is for the Supreme Court to reverse the Second Circuit.