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Termination Rights and the Musical Modernization Act’s Blanket Licenses

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By: Perry Maybrown

Copyright law in the digital age is tricky, to say the least. Scrolling through blog posts on WJLTA’s own website will demonstrate that fact; when you search the keyword “copyright” there are over 100 related posts. Music copyright law is no exception. Since October 2022, the U.S. Copyright Office has been working through the long and arduous process of formal rulemaking (also called notice and comment rulemaking) to pass a rule clarifying who should receive royalties from blanket licenses after a copyright transfer is terminated. A blanket license is a set amount of money (currently 9.1 cents per play) that a composer gets whenever his or her work is performed. This can be through plays from a streaming service or a recording broadcast in a public place, for example. The Copyright Office’s stance is that authors, not publishers, should receive the royalties after the copyright is terminated. 

Relatedly, a right found in the Copyright Act of 1976 has recently begun to slowly creep into relevance. According to 17 U.S.C. § 203, authors have the right to terminate the transfer of a copyright (except in specific circumstances like work made for hire) between 35 and 40 years after the transfer occurred This allows artists and their heirs to reclaim copyrights that were transferred in raw deals and renegotiate for better terms. However, in the case of music rights, this may not always be a clean break.

The issue is: who receives the royalty once the copyright transfer is terminated? Theoretically, the royalty rights should revert to the author or their heirs. Still, some loopholes allow companies to keep raking in profits even after the right has terminated. 

There is, however, an exception in the termination statute:

(1)A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. 

A derivative work is ‘‘a work based upon one or more preexisting works, such as a . . . musical arrangement, . . . sound recording, . . . or any other form in which a work may be recast, transformed, or adapted.’’ In plain English – if the copyright holder makes a derivative work before the copyright is terminated, then they can use that derivative work the same way they have been using the original, but they cannot continue making derivative works.

For example, let’s say Musician A makes a beautiful song and then signs their rights to the song over to Company B. Company B starts making derivative works, such as a parody or a movie, based on Musician A’s beautiful song. Musician A decides that they do not like the deal they made with Company B and, after 35 years, terminates the copyright transfer. Company B can now no longer do anything in relation to that specific copyright. But, they can keep making money from the derivative works they made prior to the termination of the transfer.

Unfortunately, reality is often more complicated than the example given above. Rather than creating something themselves, companies will pass the license on to other more specialized groups in order to create a derivative work. Does the exception still apply under these circumstances? Take the example of Mills Music, Inc. v. Snyder, a 1985 case that involved this issue. There, a musician signed over their copyright to a publisher, who in turn granted a blanket license to recording companies. The publishing company was able to collect royalties through that license. But then the musician terminated the copyright transfer, posting the question of who should keep getting the royalties? The publisher didn’t make the derivative work themselves; they just licensed the work out to another company that then made the new work. In this case, the court found that the chains of licenses were protected by the exception and therefore the publisher got to keep the royalties.

However, things have changed since the 1980’s. Currently, the issue surrounds a type of blanket licenses introduced in 2018 that only apply to digital distribution of music. The Copyright Office’s view is that the exception does not apply to this newer type of digital licenses. To clarify its stance, the copyright office is working to promulgate a new rule. The three reasons the copyright office believes that the exception does not apply are:

  1. The blanket license is not something that can be “terminated.” Rather, it is a statutory license that is “self-executing.” Because it cannot be terminated, it would not make sense for a termination exception to apply.
  2. For the exception to apply, there must be a derivative work prepared “under the authority of the grant.” Under the new blanket licenses there is a presumption that digital music publishers are not creating their own derivative works, only obtaining and licensing sound recording derivatives from other companies. The blanket license that ties together the digital music publisher and company that made the derivative work is not one that is protected by the blanket license. 
  3. If the exception were to apply to blanket licenses then it would apply to all terms, which could lead to a wider effect than intended. For example, if the termination exception is applied broadly then it could also impact statutory changes. If there is a termination and Congress changes the statute on blanket licenses, what laws would apply? Would it be the law in force at the time of the termination? Or the most up to date law?

The copyright office concludes their analysis by discussing the reasons why, if the exception did apply, it would be irrelevant. The wording of the statutes indicate that “copyright owner” receives the royalties, and this owner is subject to change for a variety of reasons. Thus, the copyright office claims, it would be unreasonable to assume that the music publisher would become the permanent recipient of royalties. This rule proposal is subject to notice and comment, which means it’s subject to change. The public was able to offer comments on the proposed rule, sharing their views on its impacts and why they disagreed or agreed with the copyright office’s proposal. The opportunity to comment closed January 5, 2023. The copyright office will now consider all comments before releasing a decision. From the discussion occurring around this rule change, this update is absolutely needed. However, formal rulemaking is a long process. As of right now it is unclear how long that may take and what exact impact this new rule will have on digital licenses.

Yung Gravy’s “Never Gonna Give It Up” Attitude May Let Him Down: Impersonation of Rick Astley’s Voice and a Little-Known Legal Theory

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By: Cooper Cuene

Yung Gravy’s biggest hit to date has clocked over 34 million YouTube views, nearly 200 million Spotify plays, and has been featured in over 300,000 TikTok videos as of this February. The most prominent feature of the song, titled “Betty (Get Money),” is a repeated sample of Rick Astley’s 1987 hit “Never Gonna Give You Up.” What is less apparent is that the voice singing the sampled track is not, in fact, Astley’s. Rather, Gravy – whose legal name is Matthew Hauri – and his producers carefully impersonated Astley’s voice after being unable to secure the licensing rights to Astley’s original vocals. Unsurprisingly, Astley has sued.

The complaint alleges a mix both of California state and Federal law claims, but a careful reader would notice one type of claim missing. Unlike other recent high-profile music industry litigation, Astley does not allege that his copyright on the song has been infringed. Rather, Astley is suing Gravy for a number of other causes of action centering around the impersonation of his voice. While Gravy had obtained a license for the underlying music and composition, the license did not allow Gravy to use Astley’s voice on the original recording. Rather, Gravy’s producer Nick Seeley spent weeks auditioning vocal impersonators before eventually recording the part himself. 

The results of these efforts? Quite good, as Astley’s complaint takes pains to illustrate. Wikipedia, Billboard, allmusic.com, songfacts.com, whosampled.com, and other music outlets all wrote that “Betty (Get Money)” had directly sampled Astley’s original recording instead of impersonating it. Beyond passively going along with appearances, Gravy seemed to reinforce that Astley had participated. In his complaint, Astley alleges that Gravy had repeatedly suggested on social media that Betty (Get Money) was created with Astley’s blessing and involvement.

Astley focuses extensively on the public’s actual belief that his voice had been used because his claims essentially assert that Gravy had wrongfully used Astley’s voice, not the original recording of “Never Gonna Give You Up”. These claims include false designation of origin under the Lanham Act, an illegal appropriation of Astley’s property interest in his identity, and a violation of Astley’s right of publicity under California’s common law – a right that protects Astley’s right to “exploit his proprietary interest in his voice” as he pleases. Under Astley’s theories, he has a right to the commercial use of his identity and its defining characteristics, specifically his voice. When Gravy impersonated Astley’s voice despite knowing that he did not have the right to its use, he deprived Astley of his ability to commercialize his identity and voice, therefore causing consumer confusion about the projects that Astley had given his blessing and lent his performance to. 

The case law surrounding wrongful impersonations of musician’s voices is concise yet impactful. Midler v. Ford Motor Co. is the only case cited in the complaint, and its facts track closely with those alleged by Astley. In Midler, an advertisement for new Ford cars planned to use songs from the 1970s sung by their original artists. When Bette Midler – among others – refused, Ford’s ad agency used “soundalikes” to mimic the sound of her voice from her original recording of “Do You Want to Dance?” In a 1988 decision, the 9th Circuit ruled that because Midler’s distinct voice was part of her identity, Ford’s imitation of it without permission was unlawful. Upon remand, a jury awarded Midler $400,000, worth close to $1,000,000 today.

While Midler is the voice impersonation case most on point for the facts involved in this case, other relevant cases reach similar results. For example, in Lahr v. Adell Chemical Co., the 1st Circuit held that a commercial that impersonated a comedian’s voice without permission gave rise to an unfair competition cause of action. The court reasoned that the ad saturated the market for the comedian, reasoning that it could negatively impact the demand for that comedian’s unique voice and delivery in other endorsements. Midler distinguishes Lahr because Midler did not typically perform in commercials, but Astley’s market for licensing future samples could be saturated by Gravy’s use of his voice. Beyond Lahr, the case of Motschenbacher v. R.J. Reynolds Tobacco Co. provided an earlier precedent for recognizing an individual’s proprietary interest in their own identity. In this 1974 opinion, the 9th Circuit held that a tobacco company’s permissionless use of a famous racer’s defining characteristics and car in an advertisement gave rise to a cause of action. Notably, both the Motschenbacher and Lahr opinions focus on the extent to which the characteristics of the victim are identifiable by those viewing the product that imitates them.Based on the precedent stemming from Midler and other cases, Astley’s case against Gravy is strong. Like in Midler, Gravy had tried and failed to obtain a license for the original artist’s voice before being forced to use an impersonation instead. The impersonation used by Yung Gravy was actually mistaken for Astley’s voice in many cases, meaning that the focus on identifiability in Lahr and Motschenbacher will weigh in favor of Astley should the case go to trial. Further, although Lahr is not cited in the complaint, the fact that the use of Astley’s voice may saturate the market for future use of his voice as a sample would also support Astley’s claim based on Lahr’s reasoning. Regardless of the support found in other cases, however, the factual similarity to Midler should alone, in all likelihood, motivate Gravy to settle rather than take the case to trial. Unfortunately for Gravy, once it became clear that Astley was never going to give up the rights to his vocal performance, he should have known that his efforts to circumvent Astley’s wishes would only let him down.

Under a Microscope: Megan Thee Stallion trial shows how women of color are hypersexualized and criticized rather than protected

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Courtroom in the Federal Building and U.S.Courthouse built by architect Henry B. Carter in 1938. Original image from Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel. by Carol M Highsmith is licensed under CC-CC0 1.0

By: Talia Cabrera

*TW: Story about Victim of Assault*

At the end of 2022, Megan Thee Stallion entered a courtroom in Los Angeles, CA to face her assailant and finally testify in the court of law. For the past two years leading up to the trial against Tory Lanez, Megan Thee Stallion has dealt with the court of public opinion as she has defended her name and actions every time she stepped outside her home. At the age of 25, Megan Thee Stallion was a victim to gun violence, yet has faced an endless amount of public scrutiny.

From the moment Megan Thee Stallion was shot, every word and action she would do was under a microscope. Those who did not believe Megan was shot would doubt whenever she was silent after a question or make a video analyzing her body language to prove that she was lying. As if public scrutiny was not enough, Hip-hop artists were quick to capitalize on Megan’s trauma. Artists like Da Baby would retweet jokes about Tory Lanez shooting Megan. Even Drake made an insensitive comment about Megan’s credibility in his song “Circo Loco” rapping, “This bitch lie ‘bout getting shots, but she still a stallion. She don’t even get the joke but she still smillin’.” What’s funny about a woman being shot for no reason?

Megan Thee Stallion has been told she is too aggressive, sexual, and a liar. She was a victim of gun violence but was instead painted as a villain. Too many men continuously treat women as objects and find ways to justify their abuse.

In the height of the MeToo movement, women were empowered to step forward to confront a long history of being abused and taken advantage of. However, we tend to look at these movements with a white lens and never talk about the discrepancies women of color face. The hypersexualization of women of color is often the justification for abuse. Latinas are often described as “fiery”, “spicy”, and my least favorite thing to be called is “exotic”. This is not an experience latinas only face but is shared with other women of color. We are fetishized yet not protected. Women of color, particularly black women, are often not believed when they are victims of abuse. 40 percent of black women at some point in their lifetime will experience some form of physical violence. These high numbers are alarming but never given the same amount of attention. In a recent interview with CBS Morning news, Gabrielle Union points out how this discrepancy plays out in the media. In the new season of “Truth Be Told,” Gabrielle Union and Octavia Spencer are putting a spotlight on sex trafficking of young black and brown women and the disparity of media attention on this global epidemic. It is not the rest of the world taking initiative to report but instead it is in the hands of women of color to make sure this information is shared. Remember Gabby Petito and the endless reporting? Where’s the same outrage for black and brown girls being kidnapped? While there was extensive reporting around the Gabby Petito episode, the same outrage is not shown for black and women. 

The trauma Megan Thee Stallion has gone through and is continuously facing is an example of women of color, specifically black women, falling through the cracks of our community. We have failed to protect black women, yet they are the first to stand up for others. Without Alicia Garza, Patrisse Cullors, and Opal Tometi, there would be no #BlackLivesMatter. Black women and girls were in the shadows of the civil rights movement but nothing would have gotten done without their accomplishments. Megan Thee Stallion is a victim. The complexity of this situation is that “justice” was never served. Megan Thee Stallion should have never been shot and no man should ever think shooting a woman is ever justifiable. We need to do better in bringing attention to the harm women of color face on an everyday basis. In the meantime, women of color are going to continue to protect themselves since it seems like no one else is willing to.

Zoom Voir Dire: A Technological Gap is Not Going to Solve the Lack of Diversity in Jury Pools

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By: Talia Cabrera

Voir dire is the process of ensuring the “jury of your peers” is a representation of your community. Juries are made up of ordinary citizens and play an important role in the criminal justice system. Jurors, who are given the responsibility to decide a case’s verdict, enter the complexities of the courtroom with their own experiences and biases. Notably, jurors are often shouldered with the responsibility of making a decision that will impact how an individual’s life will play out. However, justice is often compromised due to the discrimination that occurs in selecting a jury. Juries that are not representative of the community at large will not only affect marginalized communities of color, but will also lead to higher rates of wrongful convictions and, ultimately, a system far from just.

Unrepresentative juries disproportionately affect communities of color. This discrepancy is apparent first in the unrepresentative jury pools from which jurors are selected and is then reinforced through current and historical use of peremptory strikes to remove people of color from juries. Apart from the institutionalized racism engraved in our history, there are a variety of factors that predominantly affect communities of color and prevent them from serving on juries. According to a report from the Equal Justice Initiative, these factors include: the inability to request time off for work; the financial burden of participation, which includes the courts not paying jurors enough money to participate and the difficulty of obtaining family care; and the lack of transportation for people to report to the courts. Ultimately, these barriers to jury service, which deeply affect the makeup of juries across the nation, need to be reformed to ensure the court system is fair. 

Discrimination in jury selection is a problem many courts have recognized and are striving to change. In 2018, the Washington Supreme Court adopted General Rule 37, which sought to eliminate the unfair exclusion of potential jurors based on race or ethnicity. According to the text of the rule, “the court shall then evaluate the reasons given to justify the peremptory challenge considering the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied.” Given the adoption of this rule, it is clear that Washington has taken initiative to reduce the discrimination we see in a courtroom in order to strive for justice. However, even courts like Washington, who have taken some steps in the right direction, need to take a step further. In order to have more inclusive juries, courts must create opportunities for more diverse communities to participate in jury selection. While it is clear that a state like Washington is trying to reduce unfair exclusion of potential jurors, peremptory challenges are just one part of a bigger issue that needs to be reformed. Courts need to take a step back and see how they can create a comprehensive solution that will bridge the gaps of accessibility that are currently present in jury selection. 

For example, the COVID-19 pandemic forced many sectors to transition to a “work-from-home” format in order to preserve workers’ health and the health of others around them. As of today, many companies continue to employ workers who work remotely, as many realized workers could continue to be efficient from the comfort of their home. While remote work was initially a temporary option for the pandemic, Washington state has seen more participation in remote jury selection and continues to use Zoom for that purpose. Whether Zoom or courthouse, not much has changed in the way jury selection occurs in King County, e.g., jurors still get notified in the mail if they have jury duty. But now, jurors no longer need to attend in person. In King County, jurors are still required to set time aside to attend court but now, so long as they have an electronic device, jury duty can be completed anywhere.

Through the incorporation of Zoom in court proceedings, jurors no longer need to spend time on tasks such as figuring out how to get to the King County Superior Courthouse downtown. Jury members are now able to eat lunch at home, avoid paying expensive parking, and still appear for 90 minutes in the comfort of their living rooms. Increased participation should help create a better reflection of the community in the jury of our peers. However, there are still many issues left unresolved. Even though Zoom voir dire may help with accessibility, such benefits are only available to those who have the privilege of possessing technology. Technology may not be available for everyone. It is possible that a juror may not have the appropriate resources to withstand hours of jury selection. For example, some jurors may not even have Wi-Fi. In addition to the technological divide that zoom voir dire creates, many of the same factors we have seen in the past, like the financial burden of taking a day off work, continues to be a prominent issue for people participating in jury selection. Although participation may have increased with zoom voir dire, it may have only done so for those who have the privilege of accessible technology.

Maybe there is a way for technology to help eliminate the risk of unrepresented juries in our court system. It is possible that new laws, policies, or even court rules like General Rule 37, will need to be created to help alleviate the factors that prevent jurors from participating. If possible, courts should provide individuals without access with loaned technology. For jury participants who do not have access to Wi-Fi, the courts should provide usable locations with Wi-Fi or temporary Wi-Fi vouchers. Currently, there is not a lot of faith in the criminal justice system in part because of the disparity in makeup of the broader community and that of jury pools. Efforts must be made to dismantle discrimination and create a fair and just court system. If not, we will continue to see the reinforcement of systemic racism throughout our criminal justice system.

Into the Dungeon–A Comparative Look at the Original and 2023 Open Gaming Licenses

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By: Perry Maybrown

It all started with a leak, which led to a draft, before ending in a retraction.

Wizards of the Coast (WotC) rolled a critical failure when trying to modify their Open Gaming License (OGL)—a license that allows other creators to make use of some Dungeons & Dragons content as building blocks for their own games—after a draft of the updated license was leaked to news outlet Gizmodo. While WotC insisted that little would change, the new license seemed to say otherwise.

The community revolted, leading to promises of boycotts, mass cancelations of subscriptions to D&D Beyond, and a new license called Open RPG Creative License (ORC) from rival company Paizo. Faced with this onslaught, the gaming company chose to back down and keep the OGL intact.

The OG OGL

The original OGL (1.0a), published in 2000, offered prospective gamers a perpetual license to “copy, modify and distribute” the open game content making up the Systems Reference Document (SRD). While the SRD changes with each new edition of D&D (excluding the 4th edition, which is a completely separate can of worms), the OGL stays the same and is perpetual, meaning the license has no set expiration date. The mechanics and building blocks for a Table-Top Role Playing Game (or TTRPG) make up the bulk of the SRD, which creates a base from which creators can build their own games. You can’t use the OGL to publish works that use WotC’s trademarks, like the famous dragon ampersand.  

1.0a includes several caveats that creators must follow to not confuse anyone about what is and what isn’t open game content. For one, a complete copy of the OGL must be included with every copy of open game content distributed. To avoid confusion, creators must also label what is open game content. Content can be directly from the SRD, open game content from other game makers, or original works that the creator wishes to add to the proverbial open game content pile. 

The license is far from perfect, however. Most notable is the lack of the  terms “revocable” or “irrevocable” in its text. This omission makes it difficult to know if WotC can terminate the OGL. Only further muddying the waters is section IX of the license. Through this clause, WotC retains the authority to update the license and allows creators to apply any authorized version of the OGL to any open game content distributed under any license version.  

WotC may argue that they can update the OGL and include in the new version language that declares the old to be unauthorized and thus void. However, because the OGL is a long-standing open license, there are legal arguments and evidence that may contradict WotC’s statement and prevent them from deauthorizing 1.0a. Many online have weighed in on the issue, even some legal authorities, with varying conclusions. For now, it’s challenging to say what way a court may lean, but even in that uncertainty, WotC pushed forward with the plan. 

The Leaked Draft

On January 5th, 2023, a draft of the new OGL 1.1 was leaked, and it was a radical departure from 1.0a. The license now limited the OGL to the “creation of roleplaying games and supplements in printed media and static electronic file formats.” Meaning creators could no longer create other media such as video games, videos, plays, or otherwise use open gaming content. There was a misunderstanding because one of the sections seemingly implied WotC would own any creations made under the OGL; however, that reading was likely incorrect. While section III does state that WotC owns both the licensed and unlicensed content, as defined in the OGL section I(A), neither of those categories include content made by the licensee. Licensed content refers to content within the SRD, and unlicensed is content not within the SRD. However, under section X(B), creators would grant WotC “a nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose.” So while creators would still own their content, WotC would still be allowed to use it. 

Some provisions did remain the same between 1.0a, and 1.1. For example, publishers would still be required to include the license with distributed works and identify anything considered “licensed content.” Some sections were expanded in the new draft, like the termination clause, which now allowed termination for various causes. In addition to these expanded terms, further requirements were also tacked on to the license. Such as a clause detailing the repercussions of terminating the license and an indemnity clause that would shift the financial burden to the licensee in several instances if WotC faced legal action due to the license’s contract. While these modifications were likely made to shore up 1.1 legally, the words “revocable” or “irrevocable” were still not in the new license.

The most significant change in 1.1 was that it had been split into two parts, commercial and non-commercial. Commercial had additional monetary requirements regarding royalties and registration. If someone wished to create content to sell, they were required to register and provide WotC with extensive information about the product and creator, reporting any revenue of more than $50,000. Royalties to WotC were only required once a creator had made more than $750,000 in revenue per year across all products produced under the OGL. Creators would have to send 25% of any qualifying revenue exceeding $750,000. Separate terms and royalty rates were detailed for Kickstarter-backed projects. 

The Updated Draft

Incensed by this update, fans pushed back, leading WotC to respond with a new draft, 1.2. The license was no longer split in two and did not require creators to pay royalties to WotC. Core D&D mechanics were now licensed under the creative commons license 4.0 CC BY. Rather than requiring the full license, creators could now either include the license or display the newly designed OGL product badge on their work. 

Creators were also no longer required to grant WotC a license to use works created under the OGL. Even a new provision under section 3 allowed creators to WotC for copying works (though it does have quite a few restrictions). There was no longer an indemnity clause, though the license bar users from participating in class actions against WotC for activities regarding the OGL. To avoid further conflict, 1.2 finally incorporated the magic words. “This license is perpetual (meaning that it has no set end date), non-exclusive (meaning that we may offer others a license to Our Licensed Content or Our Unlicensed Content under any conditions we choose), and irrevocable (meaning that content licensed under this license can never be withdrawn from the license). It also cannot be modified except for the attribution provisions of Section 5 and Section 9(a) regarding notices.” 

In The End

While 1.2 was created to appease the masses, the die had already been cast, and fans were not ready to accept what seemed to be just a modern rewording of 1.0a. WotC eventually backed down, deciding it was not worth the hassle to update the OGL. It is unclear in the future if any new content will be included from the next generation of D&D or if the OGL will stay as it is, only covering the three SRDs, and other open gaming content created for it. The future of these available licenses is unclear, but at least 1.0a is safe from change for now.

Disclaimer: I worked at Wizards of the Coast from 2019-2020. None of the information discussed in the above article is confidential, or provided directly to me by Wizards of the Coast or any of its agents during or after my year of employment. All documents and sources referenced are in the public domain.