The Brave New World Of New Media

Editor: Please give our readers some facts about your career prior to the law and why you made the decision to enter the legal profession?

Field: I'm originally from Los Angeles and began my career as a composer, having gone to college to study music composition and even attaining a Ph.D. in that field with the thought of becoming a professor. Instead, I sought opportunities in the music business, a fortunate turn of events because I discovered how much I enjoyed the business side of the creative industries as well as working with creative people. I worked in international classical music publishing which is very copyright intensive - everything from what happens when music is recorded, performed live, used in television or films or used on the Internet. Having a practical working knowledge of licensing, copyright issues and business matters in my role as the Vice President of a publishing company afforded me good preparation for becoming a copyright lawyer. After the company moved to the Philadelphia area from New York, I decided that it would be worthwhile to get a law degree while I continued to work full time in the music business.

The underlying principles of these two careers (music business and copyright lawyer) are much the same in that I have always worked with businesses and individuals who create things. Compared to my former career as a music publisher, being a copyright and entertainment lawyer represents not a change of direction, but an opportunity-filled expansion.

Editor: Please tell us about your current practice.

Field: As a member of the IP group at Ballard Spahr, I arrived with a fairly good working knowledge of copyright law and music licensing, and have been given the opportunity to develop a much broader skill set. So in addition to being an IP litigator in copyright, trademarks, and patents, I have an entertainment transactional practice; do complex copyright registrations; and do trademark counseling and registration.

My copyright and entertainment practice began with an emphasis on music publishing matters, and now includes music-related arts and music entities of various sizes in the United States, Europe, and Asia; individual composers including several recipients of the Pulitzer Prize; performing groups such as orchestras and other ensembles; record companies; media companies; Internet-based entities; and non-profit organizations. It has expanded into serving cable television and film production clients as well as matters on behalf of authors and publishers including book and magazine publishing. Ballard clients include advertising companies who are heavily involved in entertainment, including long-form television advertising and creation of celebrity-themed restaurants and other entertainment-related ventures.

Editor: Copyright law has undergone a sea change with the development of many platforms for media, particularly on the Internet. In fact, many platforms have become multifaceted owing to the development of new technologies for getting into the home. Would you discuss this phenomenon?

Field: Copyright law is the fulcrum in a balance between people who own creative works and the public's demand for access to them. Copyright law is about trying to find a way to define and protect ownership interests in relationship to customers. How do IP owners relate to the public in an era where the Internet has allowed individuals to get access to copyrighted works in new ways? Now, copyright users demand a role in the copyright legislation discourse via public interest groups that promote their own vision of what fair use should mean on the Internet. We are still in the early stages of figuring out what that means.

There are so many types of entertainment today on so many technological platforms. And each platform comes with its own business model and licensing needs. For example, electronic games are a huge industry now, which leads to the realization that with new platforms it is still possible to do well financially from copyrighted works. There is still a large amount of income that can be generated when the public's imagination is captured by a new platform. The changes in platforms make it more challenging to protect copyrights but that has not destroyed the potential for success.

Editor: Would you agree that some of these technologies are borderline in terms of violating copyrights ?

Field: Copyright owners have seen repeatedly how new digital technological platforms break down distribution and control barriers and feed off copyrights owned by others, leading to a continuous line of new technology copyright infringement cases such as Napster , Grokster , and no doubt many others as technology progresses. Look, for example, at the litigation by studios and television companies against Cablevision and its plan to offer a virtual digital video recorder. With that system, instead of recording a program on a DVR Tivo-like box connected to your TV, you would record it on Cablevision's system, similar in concept to storing your own computer files on Microsoft's Hotmail servers. The system was never commercially implemented because the litigation arose immediately over whether it constitutes fair use or massive copyright infringement that deprives copyright owners of their right to exploit the commercial value of recording their programs for later viewing. It's a telling example of how new technology and platforms raise new copyright questions and how the fair use analysis under the Supreme Court's Sony Betamax analysis is still a benchmark.

Editor: How are copyright owners and marketers affected by use of their material on community Web sites?

Field: Community Web sites like YouTube and MySpace are leading examples of how new broadband technology has unleashed video on the Internet, and brought with it lots of copyright and marketing issues. But unlike the music industry where songs don't usually have built-in advertising "sponsors," television copyright owners realize that popularity on YouTube can translate into higher ratings and even increased ad impressions. So in at least one case, a network has seen its legal and marketing departments arrive at compromise positions. There have been publicly announced co-ventures between the community Web site and the copyright owners that make popular shows available for free online, yet control how they are accessed and feed additional advertising along the way. Free shows online may seem to go against the grain of copyright law, but it's also a reminder that copyright owners can do what they like so long as its their own decision and not forced on them by others.

Community sites like YouTube may be stretching the boundaries of copyright law in other ways. Copyright law protects not just stories, but it can protect the characters as well. When an amateur video producer bases a production on copyrighted characters, that "tribute" may cross the line into copyright infringement. With so many thousands of amateur producers suddenly online, how will courts address massive amounts of potential infringement that is not based on overt copying, but may skirt the line between fair use parody, and infringement of copyrighted characters? These are new areas where, again, copyright owners and the mass public are encountering each other for the first time in the context of a new technology, and the results may be hard to predict.

Editor: Does the Digital Millenium Copyright Act ("DMCA") address all the points at issue where copyright owners may be challenged?

Field: Copyright legislation is where the future is being fought over. The DMCA was a circa-1998 attempt to define the future of the Internet, and has several provisions aimed at protecting copyright in digitized form. One part was meant to figure out how to avoid saddling Internet Service Providers ("ISPs") with secondary liability for infringements by their users. The resulting "notice and takedown" procedures outline how a legitimate copyright owner can give notice to an ISP, who will then remove or "take down" infringing content from the online service. ISPs who comply are granted "safe harbor" against infringement claims.

Other DMCA provisions are designed to protect digitized content, for example the encryption of a DVD movie that theoretically can't be uploaded to the Internet. The question then becomes how to enforce these rights when technology allows millions of users worldwide to easily overcome such protections. Also, there are legitimate areas where scholars have successfully argued that strict digital fair use needs exceptions, for example showing excerpts from DVD movies in a film studies class.

The DMCA also includes Internet music licensing provisions, and those have already come under scrutiny because different industry factions dispute who should pay when technology blurs the boundaries of established distribution platforms. The DMCA dates back to 1998. It is interesting to see how many things in that law still work, and what provisions may be short-lived.

Editor: What have been some of the responses by media companies to unauthorized uses of music, music videos, television shows and other copyrighted works?

Field: One encouraging response has been the creation of new markets. For example, during the Napster litigation in 2000, there was no way to legitimately buy most of the major labels' songs online. It was not until iTunes was developed a few years later that there was a mass commercial availability of music online. And film and television companies are now exploring lots of different ways to "monetize" online media by taking advantage of new technological platforms.

Now, the "cross platform" concept has become the entertainment industry mantra: movie and television companies are eager to provide shows on the Internet, and music companies are breaking down the barriers between record company, manager, touring, publishing, and merchandising. "Branding" of artists and performers is huge right now as well as the corresponding area of entertainment law, the right of publicity.

Another recent development is that some of the successful Internet search-engine companies like Google are increasingly built on the concept of fair use of copyrighted works that ultimately appear in the search results. Does this new technology serve the enhancement of humanity's knowledge base, or make exploitative infringing use of valuable works and information? Currently, there is a lawsuit in which Google is the defendant and the Authors' Guild is among the plaintiffs. The issue is whether one of Google's search engines which can find and display actual passages of a copyrighted book is an infringement. Google argues that this is fair use because it provides an index of books, and in many cases seeks permission from copyright owners. The authors argue that this search function has clear monetary value to Google in which they should share. Google is engaged in similar litigation concerning image searches.

Editor: With the increase in bandwith for the home user, sharing of program content, which requires a much large file than a music file, is becoming easier. Do you see a further crisis similar to that of the music industry?

Field: The advertising-revenue model may mean that free television becomes a good match for free viewing on the Internet so long as companies can control and protect their "brand." Motion pictures however don't have the advertising connection and face very similar infringement issues as compared to the music industry, especially with increasing broadband availability. However the movie business is exploring opportunities not only online, but also "on demand" in partnership with cable television. That's why "cross-platform" is where it's at. Technology presents problems as well as opportunities.

I recently participated in negotiating a master license for a sound recording to be used in a high profile television advertisement. In addition to the usual broadcast usage for the ad, one of the rights the ad company wanted was Internet usage worldwide, which assumes broadband for the ad to be easily viewed. As we have learned from YouTube, popular ads might be seen millions of times online, easily garnering more ad impressions and "eyeballs" than conventional television showings. The right to show an ad online in the broadband context is no longer a "throw in" addition but a valuable right on its own. Broadband has changed the value of the Internet, as we learned when Google recently purchased YouTube for $1.65 billion dollars.

Editor: What are the future prospects for protecting IP?

Field: You have to go back to the fundamental relationship between creative works and the public's desire to enjoy them. The Internet has unleashed such an interest in so many copyrighted works because, right or wrong, it has made so much available. You have millions of people actively seeking copyrighted materials and enjoying them on a scale that we have never seen before. Conceptually, that is a wonderful thing. The conundrum is to figure out how to make the Internet work in a fair way that preserves the fundamental notion that those who create things that others enjoy should be compensated.

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