29th Annual BTLJ-BCLT Spring Symposium: Origins, Evolution,
and Possible Futures of the 1976 Copyright Act

Panel 2: The Role of the Author and the Acquisition and
Duration of Their Rights

Molly Van Houweling, UC Berkeley Law (Moderator)

Tyler Ochoa, Santa Clara School of Law: why do we have
formalities? Path dependence is one big explanation for registration, notice,
deposit. If © is designed to incentivize exploitation, then formalities make
sense—if you’re willing to create the work regardless, no point in ©; you should
do something to claim that © was important to the creation (or distribution).
Utilitarian view expressed in 1909 Act. Deposit and registration required for
lawsuit in 1909, not pre-publication as in early republic. Domestic manufacturing
clause.

1976 Act didn’t make huge changes in its initial form:
notice was required for all copies published anywhere in the world, not just in
the US, to avoid public domain: an expansion of the notice rule. UCC: notice substituted
for other formalities. Failure to affix proper notice placed work in PD,
subject to a cure provision. Manufacturing clause was kept, but sunsetted. Deposit/registration
required to sue. Biggest single change in 1976 Act was duration. 85% of registered
works went into public domain after 28 years, though musical works and motion
pictures were heavily renewed (about 2/3). Books: 7%.

No works that received life+75 under the 76 Act have
expired. The only works to enter the PD under the Act are pre-76 works that
hadn’t yet been published or registered and were still unpublished as of 2002. And
there’s still 45 years to go b/c of term extension.

Post-76 change gets most rid of the formalities that were preserved.
BCIA: mandatory notice eliminated Mar. 1, 1989. Manufacturing clause expired; registration
no longer required for foreign works to sue, though statutory damages/attorneys’
fees still require registration but there’s no technical violation of Berne b/c
neither of those are required. VARA gives us something couched in the language
of moral rights for the first time, but it requires single/limited edition
(requires it to be signed/consecutively numbered, which is a formality). Automatic
renewal; copyright restoration; CTEA term extension.

David Nimmer, UCLA School of Law: we have never known which
works will still be popular several decades from now. Congress wanted to
eliminate the Fred Fisher doctrine allowing assignment in advance of
renewal rights. But it wanted to handle contributions to collective/joint
works. That required more drafting.

How did that work? Winnie the Pooh termination: The current
owner did a recission and regrant, all in one transaction. Nimmer argued that,
before they got into that room, there was a termination right, and the
agreement was an “agreement to the contrary” that was ineffective to override
that termination right. He lost (but thinks he was right, and I definitely see
his point). Congress could have allowed this, but the statute is categorical
(w/the slight exception of renegotiating with the current owner once the
termination notice has been sent). It’s not that he didn’t have authority to
sign a contract. But the Supremacy Clause says that termination may be effected
notwithstanding any agreement to the contrary. Fred Fisher has been
resurrected.

What should we do? All we need are 2 changes: (1) voluntary
nature of termination/all of the hoops to jump through make it practically
impossible without counsel, and not easy even then. Termination should become
automatic. (2) Congress should re-pass the provision about “any agreement” and
say it really means it.

Robert Brauneis, GW Law: When does creative work get
recognized as authorship? Most obvious exclusion doctrine is WFH; direction of
76 Act is really complicated there. It could be read as author-friendly only in
relationship to the “instance and expense” test developed after the grand
bargain was penned.

Other doctrines about recognizing creative work as central:
fixation; derivative work authorship; joint/co-authorship. Under 1909 Act,
phonorecord wasn’t fixation b/c not human perceptible, nor was choreographic
work fixed in a visual record. The Office then adopted that requirement for
deposit—registration had to be by visual notation and that forms the boundaries
of the registered work. Many composers who don’t notate end up never being
recognized as authors of the musical works they composed, especially in blues
and folk genres.

That changes in terms of using recordings for fixation. But
recordings are easier to pass back and forth b/t coauthors; it’s still possible
for composers to lose out, but the average number of composers credited has
grown a lot—Glynn Lunney says it’s more than doubled in a few decades; Emma
Perot said it starts taking off in the 1990s and picks up speed. Possibly some
is performers added as a condition of performance; others added because of
fears of liability; sampling may also have added composers. Lunney suggests
that each songwriter is becoming less productive.

More optimistic possibility: when he investigated “A Little
Bird Told Me” from 1949, there was a composer of basic melody/lyrics, there was
a lot of collaboration—singer Paula Watson and backup singers went over to his
house and worked up new lyrics, a new bassline, a new arrangement & hummed
introduction. But the “composer” was singly credited, leaving nothing but
session payments for the other collaborators. Today, the others who contributed
might have gotten a composition credit. A vanishingly small percentage of
revenues today comes from sheet music; the authorship of the recorded version
is much more collaborative; the rise in credits may not be less productive songwriters
or overreaching of performers, but at least partly that more of the creative
contributors are being recognized as authors, and the musical work recognized
is “thicker” in that it contains more of the elements that make the work a hit.

1978 is when the legal change of the Act takes effect, and then
there’s a change in form of deposit: by the 80s, 80% of applications are
accompanied by phonorecord deposits. [What an interesting story!]

Copyright in unauthorized derivative works: the creators are
doing something that authors do, but may not be recognized as authors.
Protection doesn’t extend to unlawfully used material, and arrangements made
for cover version can’t be ©d without permission of original © owner. Melville
Nimmer argued that the first provision was inherited from 1909 Act; current
edition of treatise says that the statute was ambiguous and the decisions
contradictory, and Silbey/Samuelson argue that the text didn’t provide for
forfeiture of © in newly added content, making the 76 Act an innovation.

Joint work: Intent to combine is required; designed to
overrule precedents allowing music publishers to create joint works by
combining music and lyrics written independently, but read much more broadly. Comment
in legislative materials: Desirable to reduce as far as possible the situations
in which a work is a joint work. Courts seem to have taken that to heart, including
both in the 9^th and 2^nd circuits. Resulting problem:
dominant creator gets sole ownership when other creators were consciously and
intentionally creatively involved—denying authorship status to the creative
work that authors do. Litman: courts erase the contributions of “inconvenient”
co-creators.

Is the 76 Act to blame, or the courts resisting something outlined
in the statute? More of the blame is on judges than on the language in his
view.

Peter DiCola, Northwestern Pritzker School of Law: Reforms
of the Act did not, and could not, meaningfully help authors given what else
was about to happen, that is, consolidation, here in the music industry. Most conversations
he has, people think he’s talking about Taylor Swift. But he thinks of the bell
curve: a distribution of musicians—Swift is not representative. The industry
has literally made sure that some things she’s done will never be possible for
any other musician again.

Market demand determines copyright payout. But market demand
is also shaped by concentration among companies that deliver content; in the US
4 have 97% of market share in streaming music. 3 major publishers and 3 labels,
down from 7 even in past decades. Independent sector claims are often
misleading (Spotify claims to send a lot of revenue to them) b/c an artist’s
vanity label can be claimed as an indie but distributed by a major. And they’re
parts of larger conglomerates. Composers and songwriters/recording artists face
very large entities with lots of bargaining power. Recording contracts have
become more structurally exploitative—shift to 360 deals where labels “participate”
in revenue of artist in other endeavors like tours & t-shirts. Labels have moved
to contractual agreement against re-recording, so Swift will be the last unless
we restrict those contracts.

Biggest story now: consolidation of entities that retail or
deliver music. Wal-Mart used its power to control both pricing and content. Now
big companies are negotiating with big companies: oligopolies selling through
oligopolies. That’s why Spotify, YouTube, Apple and Amazon are subject to
increasing scrutiny and discontent by musicians. © can only deliver economic
benefits based on structure of markets into which authors sell. Demand isn’t
enough: the market structure is categorically different now from the market
structure in 1976: twin oligarchies; tech companies may be willing to sell
music at a loss to keep people on the platforms, which hasn’t happened before;
Act wasn’t designed w/that kind of music in mind.

Along with antitrust, you could have more default rules
prohibiting contracting around. Draft legislation: allowing sectoral bargaining
for musicians against streaming companies. Could create authors’ rights to
access data about how their works are exploited; transparency in accounting
practices.

Biggest new hole in authors’ rights: Spotify’s policy
starting 2023 is that they don’t pay royalties on tracks that get less than
1000 streams in the last 12 months. Perlmutter referred to streaming as a huge
success compared to the litigation against filesharing, but now we see what happens:
having music on Spotify means agreeing that your less successful tracks
won’t get any royalties. How do we know what’s happened to the © system? It’s
opaque! Don’t take Spotify’s word for it.

Q: are these mostly music-specific?

Brauneis: On coauthorship, there are field-specific
practices and many are affected by the law/not in line with the caselaw.

Nimmer: ProCD v. Zeidenberg was bad—circumvented © law;
contracts prohibiting soundalikes are systematically trying to defeat the right
to make soundalikes, and we should also be hostile to them.

DiCola: we could elevate the negative space of 114(b) into
the right of the public.

Ginsburg: who deserves the blame for the exclusion of
inconvenient co-authors? It’s the judges! The statute only says intent to merge
contributions, not intent to be co-authors. Master mind reasoning is
nonsensical! Doctrinally, this is wrong, but it does have the merit of getting
rid of the inconvenient co-contributors. If you apply the statute as written,
how do you decide who is enough of a contributor to be an author? Should ideas
be enough? [I think editing is the classic difficult case unless you bring in
reasoning about the social meaning of various roles, and that just helps you
with the editor, not with the dramaturg in the next case.]

Brauneis: the courts don’t feel competent to modify the rule
that co-authors get equal shares to allocate ownership, so they need to find a
rule to prevent people like Jefri Aalmuhammed from being authors. We would have
to confront unequal shares—or say that if you didn’t plan for the situation you
have to live with the default rule. Both Aalmuhammed & the Second Circuit
case are about motion picture companies refusing to do things that they should
have done (getting WFH agreements in place).

Ochoa: could have said that everyone in the credits is a
co-author, but everyone else signed a WFH agreement, so Aalmuhammed only gets a
1/1000 share, but it made no sense for the Second Circuit to say that the
director isn’t a coauthor.

from Blogger https://tushnet.blogspot.com/2026/04/29th-annual-btlj-bclt-spring-symposium_16.html