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Prince DMCAs YouTube To Block Radiohead Song

Posted by kdawson on Sat May 31, 2008 04:41 PM
from the purple-power dept.
Media Music
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.
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Submission: Prince DMCAs YouTube to block Radiohead song by Enigma2175 (179646)
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  • There are 3 copyright claims in play (Score:5, Insightful)

    by Anonymous Coward on Saturday May 31 2008, @04:42PM (#23612625)
    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 (Score:5, Funny)

      by thermian (1267986) on Saturday May 31 2008, @04:50PM (#23612663)
      well since you commented on both, you own copyright on mentioning the copyright on the performance of the copyrighted song. I suggest you sue them all for ONE MILLION DOLLARS!!!

    • Re:There are 3 copyright claims in play (Score:5, Informative)

      by Curien (267780) on Saturday May 31 2008, @04:51PM (#23612677)
      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 (Score:5, Interesting)

        by sammy baby (14909) on Saturday May 31 2008, @07:34PM (#23613693) Journal
        That all depends on whether fan recordings are expressly permitted at Cochella. If I sneak a video camera into a performance of The Philadelphia Orchestra performing the Brandenburg Concertos, I don't get to tell the orchestra to piss off just because the piece was written by Bach.

        • Re:There are 3 copyright claims in play (Score:5, Informative)

          by Curien (267780) on Saturday May 31 2008, @05:17PM (#23612837)
          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: (Score:3, Interesting)

            by bennomatic (691188)
            I think there's some room for interpretation here. Maybe a performance can not be copyrighted, but there are privacy rights to be considered. If this was a free concert in the park, Prince did not have a reasonable cause to believe it was private and any recording would be permissible. However, if it was in a closed venue where there were published rules about video recording, he could get it removed because it is a privacy violation.

            It's kind of like paparazzi shots that get published. If someone ha

                • Re:There are 3 copyright claims in play (Score:5, Insightful)

                  by 2short (466733) on Saturday May 31 2008, @11:51PM (#23614789)
                  And maybe it wasn't really Prince, but Elvis, back from the grave, so the copyright really rests with the aliens who resurrected him!

                  How about we restrict our analysis to the facts as best we know them, rather than making up whatever unsupported hypothetical situation it takes to make your post make sense. (Not that one could actually file a take down notice even under the situation you describe, but that's beside the point.) I see no reason to believe the facts or legal situation are anything other than what the reporter who actually researched the story presents them to be. The idea that Prince filed a takedown notice despite not having any right to do so is both perfectly possible, and sadly consistent with his history.

          • Re:There are 3 copyright claims in play (Score:5, Informative)

            by mr_matticus (928346) on Saturday May 31 2008, @05:41PM (#23612993)
            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 (Score:4, Insightful)

              by void* (20133) on Saturday May 31 2008, @05:59PM (#23613149)
              Performance rights for other parties must be negotiated and licensed

              That sounds a lot more like 'If I write a song, you have to get a license from me to perfom it' than it does 'If you perform a song, you automatically have the rights to any recording anyone happened to make of the performance (unless, of course, you wrote it)"

              and the derivative work then falls under the control of the licensee per the terms of their agreement.

              Assuming the agreement gives the licensee control - which it doesn't necessarily have to. Most agreements probably would, but I don't see anything stopping anyone from saying "Yes, you can perform my work, but I get the rights to any recordings".

              If Prince didn't ask if it was ok to perform it, and if Radiohead still owns the copyrights, then it sounds like Radiohead gets to say what happens to any recordings made, even if Prince (or anyone else) made them.

                • You cannot copyright anything that can't be copied (Score:5, Insightful)

                  by 2short (466733) on Sunday June 01 2008, @12:07AM (#23614833)
                  "Prince owns the performance he gave"

                  No. You and everyone else saying things that amount to this are wrong. Copyright applies to things that may be copied, which performances are not. You cannot hold a copyright on a performance. You can hold a copyright on a recording. You can take legal and/or technological steps to ensure nobody records your performance that doesn't assign you the copyright to that recording. But the performance and the recording of it are different things, and the performance cannot be copyrighted because it cannot be copied.

                  The words to a song can also be copied, and can be copyrighted. There are two copyrights possibly at play here, and Prince owns neither of them.

                • Re:There are 3 copyright claims in play (Score:4, Informative)

                  by SillyNickName (1125565) on Sunday June 01 2008, @12:58AM (#23615003)

                  The performance may include a derivative arrangement of the music and/or lyrics (and likely does, given the notably different styles of Prince and Radiohead), and that is a matter of copyright.
                  I suggest you read the US copyright laws until they sink in and note the requirement that a work be "fixed" in a physical medium to be copyrighted. If Prince published his own DVD of his performance, that would be in a fixed medium and he could have a copyright on that DVD. But the performance itself, regardless of original content, is not copyrightable.

          • Re:There are 3 copyright claims in play (Score:5, Insightful)

            by Xtifr (1323) on Saturday May 31 2008, @06:01PM (#23613167) Homepage

            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 [archive.org]) 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.)

            • MOD PARENT UP (Score:4, Funny)

              by julesh (229690) on Saturday May 31 2008, @06:08PM (#23613217)
              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.)

              My god. Somebody on slashdot understands copyright. I'm stunned! ;)

            • Re:There are 3 copyright claims in play (Score:5, Interesting)

              by SillyNickName (1125565) on Saturday May 31 2008, @08:17PM (#23613915)

              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.

    • Prince seems a little desperate for spotlight attention these days.

  • Wait a minute... (Score:5, Insightful)

    by sgant (178166) <ksgant@gmAUDENail.com minus poet> on Saturday May 31 2008, @04:49PM (#23612649) Homepage Journal
    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... (Score:5, Informative)

      by Enderandrew (866215) <enderandrew@@@gmail...com> on Saturday May 31 2008, @04:52PM (#23612679) Homepage Journal
      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... (Score:5, Informative)

        by smwoflson (905752) on Saturday May 31 2008, @06:24PM (#23613301)
        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... (Score:5, Informative)

      by LeafOnTheWind (1066228) on Saturday May 31 2008, @04:53PM (#23612685)
      Falsifying a DMCA claim is a federal offense - you really don't want to get caught doing that.

      • Re:Wait a minute... (Score:5, Insightful)

        by Jah-Wren Ryel (80510) on Saturday May 31 2008, @05:48PM (#23613051)

        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... (Score:5, Insightful)

          by SeekerDarksteel (896422) on Saturday May 31 2008, @08:22PM (#23613939)
          The penalty of perjury for DMCA notices is with regards to you claiming that you are authorized to speak on the behalf of the holder of the copyright you are claiming is violated. If you claim that your copyright is being violated incorrectly, that's simply an incorrect DMCA notice. So if a lawyer for a record company sends a takedown for a video that they incorrectly believe to violate their copyright, there's no penalty. If I, however, sent a takedown notice for, lets say, a Radiohead song on YouTube claiming I owned the copyright that is being violated, that would be perjury.

      • Re: (Score:3, Informative)

        by smwoflson (905752)
        to be clear on this as well, under 17 usc 512(f), anyone who knowingly materially misrepresents a claim under the DMCA is liable for any damages, includign attorney's fees. So it is a bad idea to make a false claim under the DMCA.
        • OCILLA, the part of the DMCA dealing with takedown notices, requires the copyright owner to make an affirmation under penalty of perjury. Perjury is more likely to be a crime than petty copyright infringement, which is far more often treated as a tort.
          • 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.
    • They could, but the part of a takedown request where you assert that you are the copyright holder or their agent is made under penalty of perjury. A mass DMCA DoS would be legally actionable.

    • Re: (Score:3, Informative)

      by CyberLife (63954)
      No, the law does not require material to be taken down just because somebody asks. In fact, the law quite explicitly states that a takedown notice is only valid if it comes from a duly authorized party. If you read the synopsis carefully, you'll see that it does not say anything about what YouTube is required to do, rather it says what they are not required to do. They do not have to verify whether a takedown notice is legit. They could choose to do so, but it would seem they don't.

      This approach is probably

      • Re:Wait a minute... (Score:4, Informative)

        by HappySmileMan (1088123) on Saturday May 31 2008, @05:35PM (#23612955)
        They ARE allowed to verify, but only AFTER they remove the clip, then they can verify whether or not it's actually a legal problem, and 9if not, they can put the clip back up.

        Problem is, they probably get dozens, maybe hundreds of these requests per day, so they probably just comply and delete, because hiring people to verify these (they WOULD need new full time staff) would be stupid.

  • Prince has a performance copyright under U.S. law (Score:5, Informative)

    by buelba (701300) on Saturday May 31 2008, @04:49PM (#23612659)
    The performer of a song has a copyright protecting that performance, although obvs. not in the underlying song. Unlike a songwriter (who cannot block covers because of the compulsory license) a performer can block reproduction of the performance. So it seems as if Prince is acting within his rights to assert a copyright over the performance, at least under U.S. law. Whether that copyright trumps fair use, etc., I don't know. But it's not correct to say that Prince has no copyright because he didn't write the song. Like most Slashdotters, I hate the DMCA, and I think it's madness for Prince to try to block this stuff, since it's good advertising and he'll sell more albums if he doesn't, but there it is.

      • Re:Prince has a performance copyright under U.S. l (Score:5, Informative)

        by sn00ker (172521) on Saturday May 31 2008, @05:42PM (#23612997) Homepage

        Radiohead is an English group, and I'm not sure if what you're saying is true under English law
        Two problems with this.
        1) YouTube is American, based in America, subject to US copyright law. It doesn't matter a damn where Radiohead is from, because the jurisdiction that counts is the one where the law is being applied. The DMCA is a 'merkin invention, being used on a 'merkin site. Ergo, Radiohead's country-of-origin is irrelevant.
        2) Performance right is recognised in UK copyright law. So Prince is entitled to copyright in his performance of the song, even though he does not hold the copyright in the lyrics or the musical score.

        If Prince failed to get the appropriate licence to perform the song, as others have noted Radiohead have a course of action for breach of copyright in the lyrics and/or score. They have no grounds to get the video restored, because they don't hold the copyright in the performance and that's the right that the video infringes.

  • Love/hate ... what a convenient description. (Score:3, Funny)

    by pitchpipe (708843) on Saturday May 31 2008, @04:50PM (#23612667)

    As the article points out, Prince seems to have a love-hate relationship with the Interwebs.
    Yeah like I love this web stuff, it makes me lot of money
    Later... I hate this web stuff, these Intellectual Property burglars are taking food right out of my childrens mouths. WHAAA

  • Yeah... (Score:5, Funny)

    by jberryman (1175517) on Saturday May 31 2008, @04:54PM (#23612695)

    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 (Score:5, Informative)

    by Doc Ruby (173196) on Saturday May 31 2008, @04:59PM (#23612741) Homepage Journal
    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.

    • Re: (Score:3, Informative)

      by Anonymous Coward

      Er, no. Prince (or NPG Records, or any of Prince's other representatives, assignees, or whatever) does NOT own his performance of anything. Only expression fixed in a tangible form is protected by copyright.

      Radiohead owns a copyright in the score of the song, assuming one exists, because it was fixed on paper. Radiohead also owns copyrights on any recordings Radiohead may have made of the song, because they were fixed on some sort of media. This does indeed give Radiohead a performance right... they can

    • Copyrights are fairly simple, if taken step by step.

      Say I've written and recorded a song, and I want to avoid another "My Sweet Lord" scandal. What are the simple steps to determine whether my song is original or whether I have subconsciously plagiarized a song that I had heard on the radio a decade earlier?

      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".

      But the Supreme Court of the United States has interpreted Congress's power "To promote the Progress of Science and useful Arts" as merely the power to attempt "To promote the Progress of Science and useful Arts", refusing to review whether acts of Cong

      • Re: (Score:3, Interesting)

        by Tacvek (948259)

        Well, there are rights issues concerned with performance. For example you cannot in general perform a work without a license, despite the fact that under your definition, no "copy" was made. Further, Prince may own copyright to his arrangement of the work. Just like if i wrote a song, and performance it, and you recorded it, your work would still be a derivative of my work (my composition, fixed in the form of the sheet music I was using, even though you did not ever see the sheet music), generally requirin

  • Prince isn't exactly burdened with reality. (Score:4, Interesting)

    by Ransak (548582) on Saturday May 31 2008, @05:21PM (#23612875) Homepage Journal
    I have my doubts Prince is even aware of this particular DMCA take down notice. Reality isn't exactly where he spends most of his time.

    As Kevin Smith once revealed:

    t's 3 in the morning in Minnesota. I really need a camel . Go get it. - Prince

    (Yes, I know it was partly farcical, but the basic premise is sound - he's a loon.)

  • Tough call (Score:5, Funny)

    by DarkSkiesAhead (562955) on Saturday May 31 2008, @05:23PM (#23612883)

    I can see both sides of the issue here.

    One on hand, this is an ugly example of DMCA abuse and goes against the wish of even the copy right owner.
    One the other hand it's one less Prince recording on the internet.

    I'm inclined to side with Prince here since the public welfare outweighs the individual IP.

  • Fine by me (Score:3, Interesting)

    by CopaceticOpus (965603) on Saturday May 31 2008, @05:43PM (#23613001)
    If Prince doesn't want the free publicity, give him what he wants and ignore him. Then continue to ignore him when he releases a new album or comes to town. There are plenty of great musicians who aren't so dogmatic and naive about copyright issues.

    You're much better off watching Radiohead perform their own ... song:
    http://www.youtube.com/watch?v=nxpblnsJEWM [youtube.com]

  • DMCA Counter-Notice (Score:5, Informative)

    by John Hasler (414242) on Saturday May 31 2008, @05:44PM (#23613013)
    > 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.

  • Fixed (Score:5, Funny)

    by Dragonshed (206590) on Saturday May 31 2008, @05:58PM (#23613137)
    > As the article points out, Prince seems to have a love-hate relationship with his fans.

    Fixed

  • I'm amazed nobody said it yet (Score:4, Insightful)

    by Opportunist (166417) on Saturday May 31 2008, @06:47PM (#23613425)
    Video being uploaded again in 5...4...3...2...

    By 100 people now, instead of just one. Just out of spite.

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