p2pnet.net News:- Tuesday, February 24, was Grey Day - the day 170 sites around the world hosted DJ Danger Mouse’s Grey Album, a remix of Jay-Z’s Black Album and The Beatles’ White Album. Hundreds more went Grey and it was all in response to a call for action from DownhillBattle to protest an attempt by EMI to dictate what musicians and music lovers can and cannot do.

EMI is one of the Big Five record labels and it said because its Capitol Records controls all Beatles sound recordings, it’s illegal for anyone to do anything with Beatles music without payment to, and permission from, EMI. It sent out some 150 Cease and Desist emails warning host sites of dire legal consequences if they hosted the album and failed to supply Capitol with certain information.

Go here for the whole letter, but four of the main points were:

• Cease and desist from the actual or intended distribution, reproduction, public performance or other exploitation of The Grey Album and any other unauthorized uses of the Capitol Recordings or any other sound recordings owned and/or controlled by Capitol;
• Identify the names and addresses of any third parties who have supplied you with physical or digital copies of The Grey Album or who are otherwise involved in The Grey Album’s unauthorized distribution, reproduction, public performance, or other exploitation;
• Provide Capitol with an accounting of all units of The Grey Album that have been distributed via your website, either physically or digitally, and of all instances of public performance of The Grey Album rendered via your website; and
• Preserve any and all documents and records relating to this matter, including but not limited to electronic data and other information which may be relevant/discoverable in the event of litigation.

We haven’t heard of any follow-ups, and we’re waiting to learn from J. Christopher Jensen (whose name was on our email and, presumably, the others) what EMI/Capitol intends to do next.

However, in the meanwhile, with the caveat "This is not legal advice. Consult with an attorney with respect to your own circumstances before acting on this, or anything else you read on the Internet," the EFF (Electronic Frontier Foundation) has produced a Quick Overview of the Legal Terrain to explain some of the basic copyright law principles involved..

Now read on >>>>>>>>>>>>>>>

Background

First, it’s important to understand that there are at least 4, and maybe 5, "rights-holders" potentially involved:

1. Owners of the rights to the sound recording ("master") for the Beatles’ White Album. That’s EMI.
2. Owners of the rights to the musical works (songs or "compositions") that appear on the Beatles’ White Album. For the Lennon and McCartney songs, that appears to be Sony Music/ATV Publishing, a joint venture between Michael Jackson and Sony. It’s unclear who owns the rights to the George Harrison songs.
3. Owners of the rights to the sound recording for Jay-Z’s Black Album.
4. Owners of the rights to the musical works that appear on Jay-Z’s Black Album.
5. And, possibly, the owner of the rights to the Grey Album (presumably DJ Danger Mouse).

As of February 24, 2004, only EMI has sent cease and desist letters to those who are posting the Grey Album as part of the Grey Tuesday online protest.

Does EMI have a case?

There is no federal copyright protection for sound recordings made before 1972. Because the White Album was released in 1968, it appears that EMI has no federal copyright rights in the sound recording. Some record labels have argued that "digital remastering" creates a new work, protected under federal copyright laws. There don’t appear to be any cases supporting this view, however, where a simple transfer to CD is involved.

Because federal copyright law does not protect the sound recording of the White Album, the usual federal copyright law remedies (statutory damages up to $150,000 per work infringed, relaxed standards for preliminary injunctions, attorneys fees) also do not apply.

State laws, however, may protect sound recordings made before 1972. Many states have their own copyright laws or may apply common law doctrines to protect sound recordings from misappropriation. The rights and remedies are likely to vary from state to state.

Are the Grey Tuesday protesters protected by fair use?

Fair use generally refers to the federal copyright law exception contained in Section 107 of the Copyright Act. Because the White Album is not protectible under federal copyright law, fair use is not directly applicable.

State courts, however, are likely to look at federal fair use principles, as well as general principles of "equity" (i.e., fairness) in applying state law doctrines. There are a number of characteristics of the Grey Tuesday protest that would likely weigh in favor of those who post the Grey Album:

1. the posting of the Grey Album is for a noncommercial purpose;
2. downloads of the Grey Album do not substitute for purchases of the White Album;
3. the Grey Album is a transformative use of the White Album, not a wholesale copy; and
4. the posting of the Grey Album is intended as part of a commentary on the use of copyright law to stymie new kinds of musical creativity.

   This entry was posted on Friday, February 27th, 2004 at 5:10 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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