Thursday, October 18, 2007

A Comment on Performances of Copyright

William Patry is my favorite commentator on copyright issues. No one can doubt the man's brilliance in and mastery of the subject, which is probably why I delight in responding to his occasional rhetorical questions. Patry is far more educated and has many years' more experience, but I enjoy the exercise of challenging some of his positions.

This time: Is there a violation of the exclusive public performance right when an otherwise authorized television broadcast in a public business environment (e.g., a gym or truck stop) is altered by a technology employed by the business owner to substitute its own ads in place of those aired by the networks?

Patry points to two cases, one of which is ABC, Inc. et al v. Flying J, Inc., 2007 WL 583176 (S.D.N.Y. Feb. 22, 2007). Flying J used a devise called the segOne, which monitors television broadcasts and when a commercial comes on, the device switches over to play commercials selected by Flying J. Patry questions the merit behind the case because ABC and company brought the suit based on an infringement of their exclusive performance right.

It is true that Flying J properly licensed the broadcasts it airs and it argues that substituting its own ads in place of the original ones is the equivalent of changing the channel during commercial breaks. Patry agrees with Flying J, or at least does not see how not performing part of a broadcast (the commercials) is tantamount to a violation of the performance right. However, I disagree.

The fundamental purpose of copyright is to encourage the arts by protecting the creative integrity of the artist. ABC and its broadcasting brethren create television programs, which are protected by copyright. The programs are financed with advertisements (also copyrighted), which in turn become as much a part of the program as the show itself. Just as the show is a reflection of its creators as an artistic expression, the commercials are equally reflective on the broadcasters. This presumption was confirmed when some broadcasters and local affiliates recently decided not to air a Trojan condom commercial featuring several "pigs" in a bar, hitting on women. In their opinion, this ad would reflect poorly on the network.

If it is accepted that a commercial becomes a part of the program and those commercials are replaced with unauthorized programs, the performance is transformed into something other than what the original author created. It is, to an extent, the legal opposite of sampling: Rather than taking parts of an existing work and incorporating them into a new one, this performance involves taking parts of new works and incorporating them into an existing one. On the other hand, it could simply be called a derivative work.

The end result is the same. By using the segOne, Flying J is performing the work in a manner not authorized by the copyright owner, which is grounds for an infringement action based on the exclusive performance right. Alternatively, a contract claim might exist based on a violation of the license. It does not matter that Flying J was authorized to broadcast the shows because Flying J did not broadcast the shows in the manner consistent with its license.

Flying J's conduct could be analogized to a company obtaining a sync license to use a song in a car commercial, then rerecording a vocal track to substitute the original lyrics with a catchy jingle. Sure, a valid license exists, but did the intervening modification of the song not step outside the scope of that license? Does the performance of the modified song in commercials constitute an infringement?

The argument that using a segOne is the technological equivalent of channel surfing also fails. First, Flying J is broadcasting a totally different program and ceasing the first broadcast entirely. Flying J is actually altering the performance of a single broadcast itself. Second, perhaps more of an equitable argument, viewers know when someone is changing the channel. However, when new commercials are automatically inserted in place of the old ones, the viewer has no reason to think that (a) those commercials were not a part of the original broadcast, or (b) the customized broadcast was authorized by the network.

As might be expected, I also side with the networks on this issue because Flying J and others are making money based on the creative works of others. I'm certainly no fan of major media conglomerates but that is primarily because they tend to be motivated by their profit margin rather than the quality of their artistic output. Where creative expressions are concerned (bearing in mind the very loose definition of "creative expressions" when dealing with copyrights), I find it difficult to support one business entity who is profiting from someone else's creation at the expense of the creator.