Clayton Mosbey, a student in Jon Pfeiffer’s Spring 2015 Mass Communication Law class at Pepperdine University, wrote the following essay in response to the prompt: Paul and Derrick both went potluck and ended up as roommates their freshman year at Pepperdine. Paul sang for Pepperdine’s A cappella group and Derrick was an aspiring DJ. Paul agreed to record one of his original songs for Derrick to mix. After graduation, Derrick made it big with his mash-ups and performed in front of thousands. One morning, Paul heard the following on the radio: “Here’s the newest from DJ Derrick!” Paul was furious when he heard his voice being played over one of Derrick’s new tracks. If Paul sues Derrick for copyright infringement, who will win? Who should win?
Considering the terms of agreement between the two former college roommates, Derrick will and should win the court case against Paul. Copyright laws state that any form of music is protected as soon as it is in tangible form. Because Paul recorded his original song, it became fixed in a tangible form, therefore protecting it under copyright laws. However, Paul did agree to record his song specifically for Derrick’s use. This creates controversy over the legality of Derrick’s new music playing on the radio. Even though Paul at the time of his agreement with Derrick did not realize it would be published for the public to hear, Paul gave partial ownership of his song to Derrick, making it legal for Derrick to do with it what he will. Derrick is legally allowed to use Paul’s song because agreeing to record it for him gives Derrick legal rights to the song.
It could be considered copyright infringement if the new track hinders in one way or another the original. For example, if Paul’s original was created for the purpose of gaining recognition or revenue, then Derrick’s new mix would tamper with this and would consequently break copyright laws. Derrick’s mix does not in any way hinder Paul’s original intention. Paul never intended to do anything with his song, as it was recorded only for Derrick’s use.
Derrick also has the creative rights to adapt, re-write, or edit Paul’s song, making his new tracks legal. This is called ‘music sampling.’ This could have been troubling to Paul because it was not his original work. However, Derrick was clear during their initial agreement that it would be used to mix. Therefore, by agreeing to record and later handing over his song, he also handed over adaptation rights. Sampling another musician’s work is allowed so long as permission has been obtained from the original copyright owner, which was done when Paul agreed to give Derrick his recorded song.
Clayton is a senior at Pepperdine University majoring in Business Administration.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.