Old Wine in a New Bottle: “Annotated” Lyric Sites Are Not “Fair Users” of Others’ Music
By Thomas D. Sydnor II*
On January 28, 2014, the Subcommittee on of the House Committee on the Judiciary held a hearing on the fair-use limitation on copyright protection. During the hearing, recording artist, songwriter, and University of Georgia professor, David Lowery, (best known as the vocalist and guitarist for the bands Cracker and Camper Van Beethoven), offered—as an example of what is NOT “fair-use”—the case of unlicensed “lyric sites” that reproduce and “annotate” the lyrics of his songs. Lowery cited the example of Rap Genius, the now-reforming site that topped his last list of 50 Undesirable Lyric Websites.
The usual defenders of most all forms of Internet piracy may claim that this proves that Lowery doesn’t really “get” the affirmative defense of fair use. After all, if an unlicensed lyric site “annotates” complete copies of Lowery’s, some might argue that annotations that add new context could somehow “transform” rote copying of lyrics into a “fair use.” Indeed, this was defense of the unlicensed-version of Rap Genius offered by both its operators and by Techdirt ‘s Mike Masnick, who also made the even-less-credible claim that “the most obviously single-purpose lyric site that does nothing but post song lyrics is likely innocuous at worst and beneficial to all involved at best.”
Meanwhile, back on Earth, Lowery’s testimony re-proves that artists and those businesses that fund their work—because they are constantly on both sides of the “fair-use” equation—tend to instinctively understand fair use as well or better than the most learned scholars of copyright law or practicing copyright lawyers. The case of unlicensed “annotated” lyric sites proves this point. The lawyer or law professor who carefully researches the question of whether the appending of original “annotations” should rationalize otherwise unauthorized mass copying and distribution of complete copies of song lyrics should conclude that Lowery is right: this is copyright infringement, not “fair use.” Indeed, it is “old wine in a new bottle”—a 21st-Century echo of a 19th-Century trick that U.S. law has condemned as infringement for at least 100 years.
Long before we had the Internet—or even computers—would-be copyright pirates concocted the idea of adding original “annotations” to the works of others and claiming the reproduction and distribution of the resulting “annotated” work was lawful and “fair.” As a result—no later than 1914—the United States ratified, (and still adheres to), The Buenos Aries Convention (1910) (the “BAC”). Article 13 of the BAC thus condemned the by-then-familiar trick of appending annotations to rationalize the mass copying and distribution of someone else’s copyrighted work:
13th.–The indirect appropriation of unauthorized parts of a literary or artistic work, having no original character, shall be deemed an illicit reproduction, in so far as affects civil liability.
The reproduction in any form of an entire work, or of the greater part thereof, accompanied by notes or commentaries under the pretext of literary criticism or amplification, or supplement to the original work, shall also be considered illicit.
The BAC is still the law of the United States. The U.S. and many other Members of the BAC re-affirmed their intent to abide by it in the 1952 and 1971 versions of the Universal Copyright Convention. Today, the teaching of BAC Article 13 could be subsumed by the general “three-step test” for judging the validity of copyright limitations exceptions. See Berne Convention on the Protection of Literary and Artistic Works, art. 9(2). (1979) (the “Berne Convention”). If not, then BAC Article 13 would be a “special agreement” under Article 20 of the Berne Convention. In either case, it would be part of the legal obligations arising under the WTO’s Agreement on the Trade-Related Aspects of Intellectual Property Rights, art. 9(1) (1994) (the “TRIPS Agreement”).
This also means that U.S. courts interpreting the meaning of the fair-use defense under U.S. law would interpret the defense to respect BAC commitments were it reasonable to do so. As a result of what U.S. courts sometimes call “Charming-Betsy deference,” federal judges interpret existing U.S. copyright laws to conform to the international obligations of the United States whenever any reasonable interpretation of them would do so. See, e.g., Murray v. Charming Betsy, 6 U.S. 64, 118 (1804) (Marshall, J.).
To be clear, this does not mean that someone creating and distributing an unauthorized “annotated” version of a complete or mostly complete copy of someone else’s copyrighted work can never establish the affirmative defense of fair use under U.S. law. But the fact that the use of annotations to justify rote copying turns out to be “old wine in a new bottle,” does mean that unauthorized lyric sites are highly unlikely to be able to prove that the addition of “notes or commentary” can somehow transform the unauthorized, commercial rote copying and distribution of the lyrics of thousands of copyrighted songs into fair use. Both Mr. Lowery and Members of Congress were thus well-served by his research on lyric sites and his songwriter’s instincts.
*Mr. Sydnor serves as a Consulting IP Fellow to the Innovators Network, a 501(c)(3) organization that studies the relationships between innovation and intellectual property rights. The views expressed here are solely his own.