School choirs use of copyrighted songs found to be fair use. TRESONA v. BURBANK

School choirs use of copyrighted songs found to be fair use. TRESONA v. BURBANK

A creator of a new work of expression is granted a copyright to that work when it is fixed in a tangible medium.  This means that when a photographer takes a picture, the photographer is automatically granted a copyright to that photograph.  In the United States, a copyright can be registered to strengthen the associated rights, however registration is not required for the copyright to be granted.  The owner of a copyright is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original work.  If someone other than the copyright owner attempts to exercise on of these exclusive rights, that can be considered copyright infringement.  A copyright owner can combat copyright infringement by filing a complaint in a Federal District court.  In the complaint the copyright owner can request and injunction to stop the infringement activity and request damages for copyright infringement which has occurred.

The rights granted by copyright law do have some limits.  The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship.  Sometimes the interest that the public has in a copyrighted work out weighs the interests of a copyright owner.  In these cases, a defendant in a copyright infringement lawsuit will be excused from liability.   For example, behavior that would normally be considered copyright infringement can be excused with the use of the copyrighted work is deemed a fair use.

A fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.  Fair use is a defense to copyright infringement.  A copyright defendant that demonstrates to a court that their use of the copyrighted work is a fair use would not be liable for infringement.

When a court is presented with a fair use defense the court will apply a test with several factors to the facts of the case to determine whether the defendant’s use constitutes a fair use. This inquiry can often be fact specific, therefore it is useful to study prior court decisions to understand how a court will apply the fair use factors to future cases.

TRESONA MULTIMEDIA, LLC v. BURBANK HIGH SCHOOL VOCAL MUSIC ASS’N, 2:16-cv-04781 (9th Cir. 2020) presents the question of whether a high school choir’s use of a portion of a musical work in a theatrical medley is a fair use.

This case began when a school commissioned the creation of a musical arrangement that included certain copyrighted works. Choirs sponsored by the school performed these medleys at competitions and  fundraising events. After these performances, the plaintiff, a licensing company acquired certain rights in the musical works through a series of assignments, brought copyright infringement claims against the school.  The school claimed its use of the copyrighted works qualified as fair use.

The district court found that the defendant’s use qualified as a fair use.  Plaintiff appealed to the Court of Appeals for the Ninth Circuit.

The Ninth circuit reviewed the fair use factors and determined that the defendant’s use qualified as a fair use.  The defendant’s arrangement was found to be transformative because the plaintiffs songs were used in a medley of songs as part of a new theatrical work with a different message. The court found that the first factor favored fair use because the use was for educational, and associated nonprofit fundraising, purposes.  The second factor weighed against a finding of fair use because the song was “undoubtedly” creative in nature rather than informational.

Neither the amount and substantiality of the portion used nor the effect upon the potential market for or value of the copyrighted work weighed against fair use. The court concluded that the defendant’s use of a small portion of the plaintiffs copyrighted song, along with portions of other songs, to create sheet music for a new and different high school choir showpiece performance was a fair use.

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