In an interesting counterpoint to Prince’s latest takedown exploits – see Sam’s recent posts – rock band Metallica recently “ear spanked” its management for demanding that websites take down reviews of unreleased Metallica songs. While the reviews are back online after the short downtime, the dispute raises copyright issues worth further discussion.

Last Wednesday, June 4, Metallica representatives hosted an invitation-only listening party in London for U.K. music writers, previewing six of the band’s new songs. Several attendees promptly posted their impressions about the new songs online. QPrime, Metallica’s management company, just as promptly told at least four sites – Metal Hammer, Rock Sound, Classic Rock, and The Quietus – to remove the reviews. The sites complied.

At first glance, it seems the reviewers shouldn't have had anything to be afraid of. The most obvious claim against the reviewers would have been breach of a non-disclosure agreement, a standard procedure for leaks coming from such clandestine screenings. However, The Quietus editor Luke Turner said the band's representatives didn’t ask attendees to sign any such agreement, negating any contract claims.

Criticism of the songs typically would have posed no copyright issues either. Because the reviewers quoted lyrics from the unpublished songs, however, they may have opened themselves up to a copyright infringement claim. U.S. and U.K. law protect quotes used in the course of criticism under the doctrines of fair use and fair dealing, respectively, but both condition this protection to some extent on whether the content had already been made available to the public.

Absent the public availability issue, the reviewers would have had a relatively straightforward fair use defense under U.S. copyright law. In fair use cases involving criticism, the purpose of the use – the first factor in the fair use balancing test – tends to weigh in favor of fair use. Criticism is a core First Amendment pursuit and is well-protected by the law, so this factor outweighs most concerns raised by the other three factors involved in a fair use analysis.

Because the copyrighted work here was not yet available to the public, the fourth factor – the effect on the market for the original work – takes on a larger role in the analysis. Courts in some cases restrain uses of copyrighted content that otherwise would constitute fair use on the theory that advance availability of the content could effect the market for the original. See Publaw’s discussion of Harper & Row v. Nation Enterprises. Metallica could argue that the reviewers’ advance use of the lyrics would harm the market for the album by weakening the "new-ness" of the experience. Still, this is a weak argument under U.S. law given that this aspect of a fair use analysis primarily is concerned with uses that could “take over” the market for the original work, and a critique of an album is hardly a replacement for the album itself.

The outlook in the U.K. is bleaker, and since the situation has so many U.K. ties it's possible Metallica would have pursued claims under U.K. law. While fair dealing is similar to U.S. fair use in its favored treatment of criticism, it explicitly denies any protection to copying of works that have not yet “been made available to the public.” For more on U.K. copyright law and fair dealing, see JISC Legal and Wikipedia.

It isn’t clear what satisfies the “made available” standard – the requirement did not exist until a 2003 amendment – but it’s unlikely that Metallica's invitation-only event would cut it. The reviewers could say Metallica made the content available by screening it for music writers without having them sign non-disclosure agreements – basically, that “made available to the public” fairly should imply “made available to someone you know is going to make it available to the public.” Alternatively, the reviewers could argue that the private screening constituted a “public performance,” but this would be a difficult argument given the restricted, invitation-only access to the event.

To add one more wrinkle to the analysis, U.S. and U.K. cases involving prepublication use tend to involve cases where the user didn’t have permission to access the unreleased material. Permission to access isn’t the same as permission to copy, but it’d be interesting to see if Metallica’s screening of the songs would affect the analysis.

Taking all of that into consideration, my intuition is that the reviewers would have a strong fair use argument under U.S. law but probably would not under U.K. law. Either way, they would have had plenty of cause for concern if Metallica had filed a copyright infringement lawsuit.

To follow further developments in this matter, see the legal threat entry Metallica v. The Quietus in our database.

(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)