Prince DMCAs YouTube To Block Radiohead Song

Enigma2175 writes "CNN is reporting that videos from the Coachella music festival showing Prince covering Radiohead's 'Creep' have been removed by Prince's label, NPG records. Thom Yorke of Radiohead, when told of Prince's action, said 'Well, tell him to unblock it. It's our... song.' No comment from YouTube or Prince yet. Under the DMCA, YouTube is not required to verify the entity making a request is actually the copyright holder and this seems to be just another example of DMCA abuse." As the article points out, Prince seems to have a love-hate relationship with the Interwebs.

Comments

There are 3 copyright claims in play

[Anonymous Coward]

Radiohead's ownership of the song's copyright, Prince's ownership of the performance copyright, and the video recorder's ownership of the recording copyright. Prince asked for it to be pulled on his claim. Radiohead could sue him if he didn't properly license their song, though.

Re:There are 3 copyright claims in play

[Curien]

I was going to agree with you, but then I RTFA. Quoth CNN:

But the posted videos were shot by fans and, obviously, the song isn't Prince's. So no, Prince doesn't own the copyright on the recording of the performance.

Re:There are 3 copyright claims in play

[Curien]

A performance cannot be copyrighted. A record of it may be (such as a script, transcript, or video recording), in which case the copyright is owned by whomever created the record.

Re:There are 3 copyright claims in play

[mr_matticus]

Performances are part of the scope of copyright. 17 USC 106(4). Performance rights for other parties must be negotiated and licensed, and the derivative work then falls under the control of the licensee per the terms of their agreement. Recording rights will be included in that, as using the performance to fix the work to a different medium and sharing that publicly is not a right a person will have. 17 USC 106(2,5).
To say a performance cannot be copyrighted is to ignore the issue entirely. The whole reason that videos get pulled from YouTube is because they are unauthorized distribution of recordings.

in which case the copyright is owned by whomever created the record. Only if that person had the right to prepare the recording in the first place.

Re:There are 3 copyright claims in play

[Xtifr]

A performance cannot be copyrighted. Unless the performance has creative elements which stand on their own, i.e. the arrangement, the guitar solo, the intonations chosen when singing the lyrics, etc. Of course, that would technically be a composer's copyright, but that sounds confusing, so most groups that deal with legal fan-made recordings (i.e. the Internet Archive's Live Music Archive) usually just refer to it as a performance copyright. Basically, what it boils down to is that Prince's performance constitutes a derivative work, and unless Radiohead is now releasing their music under a copyleft, they have no say in the matter. The most they could do is ask the fan to remove the creative elements from the derivative work that Prince owns and release whatever is left, but the result would probably be incomprehensible, assuming that such removal were even possible. (Alternatively, they could try to prove that Prince's additions to his arrangement were too minimal to justify copyright protection, but that's likely to be very difficult.)

(If Radiohead's works were released under a copyleft, then Prince would have to choose between allowing fans to distribute his versions or not performing Radiohead compositions at all, but since they aren't, he doesn't.)

Re:There are 3 copyright claims in play

[SillyNickName]

Unless the performance has creative elements which stand on their own,

Still not. A work must be fixed in a tangible medium to be copyrighted under US law. Otherwise people could claim that everything they ever do or say is copyrighted and pretty soon people would be suing each other for walking down the street.

Wait a minute...

[sgant]

Under the DMCA, YouTube is not required to verify the entity making a request is actually the copyright holder

So let me get this straight, some person or group of persons could go and put a claim on every video on Youtube now and they'd have to take them all down...since they're not required to verify the entity making the request? That seems a bit silly doesn't it? What's stopping someone from mass emailing them with requests for a huge chunk of videos?

Re:Wait a minute...

[Enderandrew]

I do believe that DMCA claims can be contested, but if a site wants to make sure they're not liable, they have to immediately comply with DMCA requests.

Re:Wait a minute...

[LeafOnTheWind]

Falsifying a DMCA claim is a federal offense - you really don't want to get caught doing that.

Re:Wait a minute...

[Jah-Wren Ryel]

Falsifying a DMCA claim is a federal offense - you really don't want to get caught doing that. Yet, this is far from the first time a BigCorp as issued a DMCA takedown notice for material is clearly did not own the rights too. But I've never heard of a single prosecution over such fraud.

Re:Wait a minute...

[smwoflson]

just to be clear...you are correct, DMCA claims can be contested. Actually, under 17 USC 512 (c), the internet service provider (here youtube), after receiving a notice of the potentially infringing material must respond expiditiously to remove the material. However, the ISP must also send notice to the person who had placed the recording on youtube, under 512(g). Then, if that person sends counter notice to whoever sent the first request for removal, the ISP must put the potentially infringing material back on line unless the first person files a court action. If the person files a court action, then the material will be removed until after it. If the first person does not, then the material should be placed back online, i believe.

Re:Wait a minute...

[stinerman]

My original point is that lots of crimes are federal offenses, but aren't prosecuted.

I don't know of a single case of perjury being prosecuted for a false DMCA notice. I've seen several stories on this website that talk about people filing DMCA notices in bad faith, but no follow-up regarding any prosecutions.

Your point was that people won't file false DMCA notices because it's a federal crime (and with the implication that it carries a harsh penalty). I was simply pointing out that lots of crimes carry harsh penalties, but aren't prosecuted very often.

Yeah...

[jberryman]

videos from the Coachella music festival showing Prince covering Radiohead's 'Creep' have been removed ...and nothing of value was lost.

Prince "Owns" A Copyright

[Doc Ruby]

Radiohead owns the copyright of their original copy of the song (if they own the master media onto which it was recorded, and didn't release it from copyright control). That gives them "performance copyright", which lets them require permission from the first other person to "perform" their original recording (either a reenactment of producing the song using new instruments, or just playing back the original recording over speakers in the air to a large crowd or over other broadcast media like radio or TV soundtrack). But after they release the first public performance, anyone can perform the song, provided they pay the pre-set "mechanical" royalty rate (determined by the number of listeners in the venue's capacity, not necessarily those actually hearing the performance, though webcasting is per actual listener). The mechanical rate is low, like under $0.001 per listener, designed for repeated broadcast at rates recoverable by whatever commerce is operated using the performance.

But Prince does own his own performance of that song. He owns the copyright of his own performance, though not of the song he's performing. He's merely performing a song that copyright law lets him perform so long as he's in compliance with the royalty laws that pay Radiohead. Unless Prince was the first person other than Radiohead to perform it publicly, Radiohead doesn't have control over the public performance of the song, just the right to collect the royalties when it is played by whoever wants to.

Copyrights are fairly simple, if taken step by step. That doesn't stop them from being bullshit, especially when practiced by musicians, who always use copyrighted content from other artists without respect to the "original's" copyright.

When someone does something in public, I have the right to see it. I have the right to remember it. I have the right to record what I see and remember, even if the law these days is wrong and can stop me (like most copyright laws, and of course the Hollywood-written DMCA). And if I recorded it, I have the right to show it to anyone I want. This is a freedom of expression that copyright infringes. And since YouTube promotes Prince's commerce much more than it competes with it, no copyright is promoting "progress in science and the useful arts". In fact, this DMCA abuse is killing that progress, right when it could be exploding, but instead miserly copyright owners are pretending they represent "progress", when all they represent is profit.

DMCA Counter-Notice

[John Hasler]

> Under the DMCA, YouTube is not required to verify the entity making a request is actually
> the copyright holder and this seems to be just another example of DMCA abuse.

Under the DMCA the person who put the material up can file a counter-notice asserting that they have the legal right to distribute the item. YouTube can then put it back up with complete impunity and the only way Prince can get it taken back down is to file a copyright infringement suit (within 30 days) against the person who put it up and convince a Federal judge to issue a preliminary injunction. There are criminal penalties for filing a false DMCA takedown notice, and the target could also claim damages.