Cameo Clips

ANTI-BOOTLEGGING LAW/

CONSTITUTIONALITY

The U.S. Court of Appeals for the Second Circuit ruled that 18 U.S.C. Sec. 2319A ' the federal statute enacted in 1994 to criminalize the bootlegging of recordings of live performances ' is valid under the commerce clause of the U.S. Constitution. U.S. v. Martignon, 04-5649-CR. (The Eleventh Circuit also upheld Sec. 2319(A) under the commerce clause. See United States v. Moghadam, 175 F.3d 1269
(11^th Cir. 1999).) When defendant Jean Martignon, the operator of Midnight Records in New York City, challenged his indictment under Sec. 2319A, the district court found the law violated the copyright clause of the federal constitution by providing perpetual, rather than limited-time, protection.

Vacating and remanding, the Second Circuit explained: 'Section 2319(A) does not create and bestow property rights upon authors or inventors, or allocate those rights among claimants to them. It is a criminal statute, falling in its codification (along with Section 2319B about bootlegged films) between the law criminalizing certain copyright infringement and the law criminalizing 'trafficking in counterfeit goods or services.' It is, perhaps, analogous to the law of criminal trespass. Rather than creating a right in the performer him ' or herself, it creates a power in the government to protect the interest of performers from commercial predations.'

The appeals court then noted for purposes of the commerce clause: 'Sec. 2319(A) has substantial commercial and economic aspects. Indeed, regulation of bootlegging is necessary at the federal level because of its interstate and international commercial aspects.' The court remanded the case for consideration of whether the anti-bootlegging law is 'unconstitutionally overbroad [under the First Amendment], containing no fair use exception or durational limitation.'

TELEVISION BROADCASTING/

FCC INDECENCY POLICY

The U.S. Court of Appeals for the Second Circuit decided that in developing a stricter indecency policy the Federal Communications Commission 'has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC's new policy regarding 'fleeting expletives' is arbitrary and capricious under the Administrative Procedure Act.' Fox Television Stations Inc. v. Federal Communications Commission, 06-1760-AG (L). The fleeting-expletives policy grew out of an expletive from musician Bono in accepting a Golden Globes award on a live NBC-TV broadcast in 2003. The FCC claims that the stricter policy is justified under the 'first blow' theory, which posits that tolerating any expletive unfairly forces it upon viewers. But the appeals court noted: '[T]he Commission will apparently excuse an expletive when it occurs during a 'bona fide news interview' ' Furthermore, the Commission has also held that even repeated and deliberate use of numerous expletives is not indecent or profane under the FCC's policy if the expletives are 'integral' to the work ' [But] viewers, including children who may have no understanding of whether expletives are 'integral' to a program or whether the interview ' is a 'bona fide news interview,' will have to accept the alleged 'first blow' caused by use of these expletives.'

SYNCHRONIZATION LICENSES/

KARAOKE MACHINES

The U.S. District Court for the District of Utah held, in a case of
first impression for the court, that a producer of sound recordings for karaoke machines did not need a synchronization license from the publisher of the underlying songs. EMI Entertainment World Inc. v. Priddis Music Inc., 2:05-CV-26BSJ. The defendants had obtained compulsory licenses to reproduce the musical compositions and reprint licenses to display the lyrics, which were seen by karaoke-machine users on a static background.

The district court explained: 'Both concepts ' synchronization rights and karaoke recordings ' have been known for many years, yet none of the cases cited by EMI squarely holds that a synchronization license is required to produce a sound recording of a musical composition accompanied by displayable text of the lyrics, but without the visual image content that characterizes an audiovisual work ' Absent a series of related visual images, e.g., a motion picture, film or video recording, the display of the lyrics represents the display of a 'literary' rather than 'audiovisual' work.'

ANTI-BOOTLEGGING LAW/

CONSTITUTIONALITY

The U.S. Court of Appeals for the Second Circuit ruled that 18 U.S.C. Sec. 2319A ' the federal statute enacted in 1994 to criminalize the bootlegging of recordings of live performances ' is valid under the commerce clause of the U.S. Constitution. U.S. v. Martignon, 04-5649-CR. (The Eleventh Circuit also upheld Sec. 2319(A) under the commerce clause. See United States v. Moghadam , 175 F.3d 1269
(11^th Cir. 1999).) When defendant Jean Martignon, the operator of Midnight Records in New York City, challenged his indictment under Sec. 2319A, the district court found the law violated the copyright clause of the federal constitution by providing perpetual, rather than limited-time, protection.

Vacating and remanding, the Second Circuit explained: 'Section 2319(A) does not create and bestow property rights upon authors or inventors, or allocate those rights among claimants to them. It is a criminal statute, falling in its codification (along with Section 2319B about bootlegged films) between the law criminalizing certain copyright infringement and the law criminalizing 'trafficking in counterfeit goods or services.' It is, perhaps, analogous to the law of criminal trespass. Rather than creating a right in the performer him ' or herself, it creates a power in the government to protect the interest of performers from commercial predations.'

The appeals court then noted for purposes of the commerce clause: 'Sec. 2319(A) has substantial commercial and economic aspects. Indeed, regulation of bootlegging is necessary at the federal level because of its interstate and international commercial aspects.' The court remanded the case for consideration of whether the anti-bootlegging law is 'unconstitutionally overbroad [under the First Amendment], containing no fair use exception or durational limitation.'

TELEVISION BROADCASTING/

FCC INDECENCY POLICY

The U.S. Court of Appeals for the Second Circuit decided that in developing a stricter indecency policy the Federal Communications Commission 'has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC's new policy regarding 'fleeting expletives' is arbitrary and capricious under the Administrative Procedure Act.' Fox Television Stations Inc. v. Federal Communications Commission, 06-1760-AG (L). The fleeting-expletives policy grew out of an expletive from musician Bono in accepting a Golden Globes award on a live NBC-TV broadcast in 2003. The FCC claims that the stricter policy is justified under the 'first blow' theory, which posits that tolerating any expletive unfairly forces it upon viewers. But the appeals court noted: '[T]he Commission will apparently excuse an expletive when it occurs during a 'bona fide news interview' ' Furthermore, the Commission has also held that even repeated and deliberate use of numerous expletives is not indecent or profane under the FCC's policy if the expletives are 'integral' to the work ' [But] viewers, including children who may have no understanding of whether expletives are 'integral' to a program or whether the interview ' is a 'bona fide news interview,' will have to accept the alleged 'first blow' caused by use of these expletives.'

SYNCHRONIZATION LICENSES/

KARAOKE MACHINES

The U.S. District Court for the District of Utah held, in a case of
first impression for the court, that a producer of sound recordings for karaoke machines did not need a synchronization license from the publisher of the underlying songs. EMI Entertainment World Inc. v. Priddis Music Inc., 2:05-CV-26BSJ. The defendants had obtained compulsory licenses to reproduce the musical compositions and reprint licenses to display the lyrics, which were seen by karaoke-machine users on a static background.

The district court explained: 'Both concepts ' synchronization rights and karaoke recordings ' have been known for many years, yet none of the cases cited by EMI squarely holds that a synchronization license is required to produce a sound recording of a musical composition accompanied by displayable text of the lyrics, but without the visual image content that characterizes an audiovisual work ' Absent a series of related visual images, e.g., a motion picture, film or video recording, the display of the lyrics represents the display of a 'literary' rather than 'audiovisual' work.'