Tag: intellectual property

Do Candidates Have the Right to Conscript Songs for Political Purposes?

Posted on September 24, 2015 by Marc D. Ostrow - Columns

Great Debate, "Wah wah, wah wah, wah, waaah." A Creative Commons licensed image from DonkeyHotey's Flickr photostream showing two candidates with balloon heads staring at each other from podiums against a panoramic cityscape.

Great Debate, “Wah wah, wah wah, wah, waaah.” A Creative Commons licensed image from DonkeyHotey‘s Flickr photostream. (The background is a photo from Nokero’s Flickr photostream. The body on the left of a photo in the public domain from the Defense Department; photo 1. The body on the right is a Creative Commons licensed photo from Gage Skidmore’s Flickr photostream.)

It’s another presidential election cycle and—in addition to PAC moneymen, countless commercials, polls, trolls, sound bites, and sniping—there’s the new tradition of one candidate or another pissing off some well-known recording artist by using the artist’s song without consent. Already we’ve had Neil Young trashing Trump’s use of “Rockin’ in the Free World.” REM is suing Trump, along with Sen. Cruz, over their use of “It’s the End of the World as We Know It (And I Feel Fine).” “Survivor” is suing over the use of “Eye of The Tiger” during Gov. Huckabee’s rally in support of Kim Davis, the county clerk who was jailed for refusing to issue any marriage licenses since she’d have to issue them to same sex couples. And the election is still more than a year away!

Are the artists’ claims likely to be successful? Readers of my prior posts can probably postulate that my answer will be “it depends.” Let’s see what you can and can’t do when using recordings of songs in connection with political campaigns. While some of the dos and don’ts involve some now-familiar copyright and music licensing principles, others potentially involve the federal trademark statute and various states’ laws on the right of publicity as noted in ASCAP’s FAQs on music in political campaigns.

Who can forget The Donald riding down the escalator to the Neil Young classic to announce his candidacy? That use is probably permissible. If a venue, such as a hotel, convention center, or other public gathering place has licenses from the PROs (ASCAP, BMI, and SESAC), then the use of the music is almost likely allowed and there’s not much the songwriters can do about it. The songwriters probably have a better case against Kim Davis and her cohorts, as the organizers of the impromptu outdoor post-prison rally probably didn’t obtain PRO licenses for the event.

Notice I mentioned songwriters and not recording artists. There has long been a public performance right in musical works and that right is codified in Section 106 of the Copyright Act. However, as I’ve mentioned in other posts, the US is one of less than a handful of nations, including North Korea and Iran, that doesn’t have a public performing right in sound recordings for traditional television and radio broadcasts or for playing the recording over loudspeakers. Although legislation has been introduced in recent years and the Copyright Office endorses such a right, currently the only public performance right in a sound recording is in “digital transmission,” i.e., internet streaming, and Sound Exchange is the U.S. collective that licenses those rights and pays out royalties on behalf of artists and labels.

Readers of my most recent post on fair use would not be surprised that the use of the clips of politicos and other notables on newscasts would be clear examples of fair use under Section 107 of the Copyright Act. Before you even get to the four factors of Section 107, the statute states that items like “criticism, comment, news reporting, teaching, scholarship, or research” are among the uses typically found to be fair. And TV networks and stations have PRO licenses to cover the music use.

Both songwriters and recording artists would have a compelling case under copyright law if a candidate used a song in a commercial without permission. Using pre-recorded music in any audio-visual work requires synch licenses from both the copyright owner of the song (the music publishers) and the copyright owner of the recording of the song (the label). As I explained in my last post, a fair use argument for this kind of usage would almost certainly fail, given that these uses are typically licensed. Nor could a candidate claim that the use of the music is permitted as First Amendment “political” speech. The First Amendment protects the right of individuals (and according to the Supreme Court, corporations) to freedom of expression, especially political speech. It doesn’t generally give you the unfettered right to use someone else’s expression, however.

But consideration of Copyright Act provisions isn’t the end of the inquiry here. Artists may also claim violations of Section 43(a) of the Lanham Act, the federal trademark statute. Although it’s generally applied to false advertising claims, the statute could be used to claim that the association with an artist creates a “likelihood of confusion” based upon a misleading “association… with another person, or as to the origin, sponsorship, or approval of his or her goods, services…” or in other words, a false or misleading endorsement of the candidate. So, regardless of PRO licenses, candidates would be well advised to get permission if they wanted to use anyone’s hit as a theme song.

Moreover, it’s possible that a candidate could violate an artist’s actual trademark, which would constitute a direct violation of the Lanham Act, which—like the Copyright Act—can subject an infringer to money damages and injunctive relief. While it’s not likely that a candidate would use a band’s trademarked logo, names and phrases associated with recording artists and other entertainers often are trademarked. Just see how fast Michael Buffer’s legal eagles will swoop down on you if you use the phrase, “let’s get ready to rumble” in any kind of commercial activity. Many artists, including Madonna, have trademarked their names, and Taylor Swift recently filed a whole bunch of trademark applications for phrases associated with her 1989 album. As any copyright maven knows, titles, names, short phrases, and slogans can’t be copyrighted. But they can be trademarked for all kinds of uses from apparel to greeting cards.

Then there’s the “right of publicity” (sometimes referred to as the right to privacy), which, unlike copyright and trademark, is governed by individual state’s laws. While many states have statutes governing this right, including New York and California, other states enforce these rights based on common law (judicial precedents). The right of publicity typically includes the use of an individual’s name and likeness for commercial purposes. That’s why songwriter, label, management, and other agreements typically have provisions granting the use of the person’s name and approved likeness and bio for a variety of uses. While most composers would hardly object to their music publisher or label using their name and image to promote their works, these rights don’t automatically flow with the copyrights to songs or recordings of them. A candidate’s using a song without permission could constitute a violation of the artist’s publicity/privacy rights.

And there’s another wrinkle to the right of publicity. In some states, like California, a celebrity’s right to exploit his persona extends beyond the grave. In others, like New York, the right terminates when the individual does. So, in addition to wills, trusts, and other documents, if you’re a celebrity, a very important aspect of estate planning is deciding upon your domicile at the time of your eventual demise.

So, what have we learned here? Campaigners, much like cover bands, should be careful about using songs. If you’re paying tribute to a band by simply performing covers of their songs in a venue that’s got PRO licenses, then you’re almost certainly okay. But if you start selling hats, T-shirts, and mugs emblazoned with the band’s logo, a picture of its members, or a well-known phrase from one of their songs, or use the songs to sell products or services, then you’d better be prepared to pay tribute in the form of cold cash as you could run afoul of trademark and publicity laws.

One would think that politicians and their advisors would know this by now. Given that there are artists on every point in the political spectrum, a candidate could simply solicit one sympathetic to their views and avoid all sorts of tsuris. So when it comes to using someone else’s stuff, whether in political campaigns or artistic collages, when in doubt, leave it out. Or as I’ve said before, you might want to seek consent of the rights holder (or the advice of competent counsel) before putting it in.

This article, including the author’s replies to any comments, is intended to supply general information and guidance. It does not constitute legal advice and does not create an attorney-client relationship. Readers with specific questions should contact an attorney with relevant expertise for legal advice pertaining to their particular matter, as every situation is unique.

Are Transformative Fair Use Principles Foul to Musicians?

Posted on September 17, 2015 by Marc D. Ostrow - Columns

A Madame Talbot poster illustrating the three witches in Macbeth mixing a potion in a cauldron.

What’s the best way to determine if something is fair or foul? (Madame Talbot‘s Macbeth Witches Poster reprinted with permission.)

In my previous post, I sped through the history of fair use from Justice Story to the current statute and strolled through a few examples of the analysis that’s typically used when applying the four factors of Section 107 of the Copyright Act, the statutory test for fair use.

But while courts always construe the statutory factors, the “real” fair use test—at least since the mid-1990s—is nowhere in the statute. Instead, the dispositive inquiry is whether the usage is “transformative.” So, what is “transformative use” and where did it come from?

A) Transformative Use, Music and Parody

The “transformative use” test comes from an influential 1990 Harvard Law Review article by Judge Pierre N. Leval. But since neither articles, books, nor blog posts have any legal effect unless adopted by a court (or legislature), it’s the Supreme Court’s casting of Judge Leval’s concept that defines “transformative use.” In the 1994 case, Campbell v. Acuff-Rose Music, the high court, citing the Leval article in its analysis under the first factor, defined “transformative use” as follows:

The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original creation (“supplanting” the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” (Citations omitted).

If that sounds kind of vague, it is. And while ambiguity is often cultivated in the arts, it’s not so good in a legal standard. And as applied, it sometimes seems like a transformative use of Justice Stewart’s “I know it when I see it” test.

In Campbell, the Supreme Court established that parody can be a form of fair use. The case concerned 2 Live Crew’s use of part of the Roy Orbison hit, “Oh, Pretty Woman,” in their similarly titled song, “Pretty Woman,” despite being denied permission for the usage. The band used the introductory guitar riff and the first part of the chorus before moving on to new material that was deemed to mock the original tune. The Court found that 2 Live Crew’s use of Orbison song was “transformative” in that it did not merely reproduce and appropriate the original composition.

In reaching this conclusion, the Court established guidelines for determining whether a use would be a “parody” in the legal sense, i.e., one for which permission of the copyright owner of the parodied work would not be required: first, only so much as is necessary to conjure up the original work was to be used; and second, the parody must comment in some way on the original work. In other words, it wouldn’t be a “fair use” parody to write new lyrics to an underlying song that talked about something else. And as the Supreme Court noted, a parody protected by fair use need not be funny or artistically successful.

In other words, one can’t write new lyrics to every line in a Michael Jackson song as an ode to multifarious foodstuffs and expect it to be a protected parody. That’s why Weird Al gets permission for his “parodies” even though he obliquely cites fair use on his website.

These principles were more recently applied in Bourne Co. v. Twentieth Century Fox Film Corp., a 2009 decision from the Southern District of New York (district courts being the federal trial courts) involving the Family Guy episode, “When You Wish Upon a Weinstein.” The show featured a song called “I Need a Jew” that used elements of the Disney classic, “When You Wish Upon a Star.” Defendants, including the show’s auteur, Seth MacFarlane, had sought permission from Bourne but were denied.

MacFarlane had the chutzpah to use it anyway and the court concluded that Peter Griffin’s plaintive pleading was a fair use parody of Jiminy Cricket’s crooning in Pinocchio. Relying on Campbell, the Supremes stated: “[t]he Court finds that the new work is transformative; consequently, the first factor weighs in favor of a finding of fair use.”

B) Transformative Use in Dramatic and Visual Arts Cases

But now let’s look at a 2015 parody case from the same court involving another of the performing arts. In Adjmi v. DLT Entertainment, Ltd, the Southern District held that an Off-Broadway stage play, 3C, was a fair use parody of the iconic seventies sitcom, Three’s Company. There, “[t]he parties agree that 3C copies the plot, premise, characters, sets and certain scenes from Three’s Company.” After applying the four factors, the Court held:

The Play is a highly transformative parody of the television series that, although it appropriates a substantial amount of Three’s Company, is a drastic departure from the original that poses little risk to the market for the original.

Apparently, as long as you’re not mocking music, it seems you can take an awful lot of material, including entire scenes, so long as you’re making some sort of statement about the original.

But most fair use cases don’t involve parodies. Moving to the visual arts, Blanch v. Koons, addresses notorious appropriation artist Jeff Koons’s incorporation of—among other images—a cropped, rotated, and altered portion of a copyrighted photograph of a woman’s legs and feet from a shoe ad into a massive collage painting. The Second Circuit (circuit courts being the federal appeals courts between the district courts and the Supreme Court) held that Koons’s use of the magazine ad photo was transformative in that his change of colors, background, media, and size of the objects had an entirely different purpose and meaning from the original, as Koons’s work was commenting on “the social and aesthetic consequences of mass media.”

In the 2013 case Cariou v. Prince, the Second Circuit moved the dial further towards finding transformative (and therefore fair) use in appropriation art. At issue were 35 of Cariou’s black and white photographic portraits of Jamaican Rastafarians that were published in a book and which Richard Prince incorporated into large-scale artwork that altered the images, including cropping, coloring, and obscuring faces with painted “lozenges.” Some of Cariou’s and Prince’s works were reprinted in the court’s opinion. The Court found fair use with respect to 25 of the photos, reversing the district court’s contention that the “transformative use” had to comment somehow on the original photos as in parody cases:

The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute.

As to the remaining five Cariou photos, the Court noted that “Prince did little more than paint blue lozenges over the subject’s eyes and mouth, and paste a picture of a guitar over the subject’s body.” What’s striking, however, is that even with respect to these uses, the Second Circuit thought that even they could be deemed to constitute fair use and kicked the case back to the district court to make that determination. As we’ll see, the Cariou court’s expansive view of transformative use has its critics.

The Second Circuit has also ruled that the copying of entire posters, albeit in greatly reduced size, in a 480-page coffee table book about the Grateful Dead was fair game. The images appeared along with timelines and commentary about the band. The Court’s opinion stated that “the first fair use factor weighs in favor of [defendant] because [defendant’s] use of [plaintiff’s] images is transformatively different from the images’ original expressive purpose and [defendant] does not seek to exploit the images’ expressive value for commercial gain.” In reaching this conclusion, the Court cited an earlier case which held a search engine’s use of thumbnail reproductions of images was highly transformative. In case you were wondering, this is why I’m pretty sure my reduced-scale cell phone photo of the Chutzpah game reprinted in last week’s post is likely a transformative fair use.

C) A Fair Use Remix: Applying the Standards From Non-Music Cases to Musical Examples

But as this post is running long and my readers’ patience is no doubt growing short, let’s see what happens when we apply standards from these other cases to a few music hypotheticals:

1. As we know, reproducing an entire visual work, although in greatly reduced size, can be considered a transformative, and ultimately fair, use. Now imagine posting an entire John Adams or John Corigliano score, or even the complete sheet music to a Taylor Swift song – in miniature – without permission.

2. We also know from the Three’s Company case that taking entire scenes from a TV show is now fair game if you’re doing a parody of the underlying work. Now envision using a whole scene from an Adams opera or Sondheim musical or an entire Beatles song in a musical parody.

3. We’ve also learned from the appropriation art cases that taking recognizable portions of copyrighted works and creating a collage or visual remix can be a transformative fair use. Now try claiming fair use when taking twenty seconds of a recording of “Satisfaction” or any other famous song and putting it into a film or sampling several snippets of it in your own recording.

4. As was demonstrated in the Koons and Cariou cases, the recasting—including changing the color and background of a work—can be a transformative use. Now picture “recasting” the setting of an orchestral work by “coloring” it for concert band.

I’m guessing that most of my musician readers are chuckling at these, knowing that it would take chutzpah to claim any of the above to be a “fair use” of the music. Working backwards, we call the fourth example making an “arrangement” for which permission is clearly required. The two uses in the third hypothetical are typical examples requiring synch and sampling licenses, respectively. As for the second hypothetical, we know from the Family Guy decision that the more restrictive standard set out in the 2 Live Crew case two decades earlier still applies to musical parodies. And anyone who posts an entire piece of copyrighted music stands a good chance of being subject to a DMCA takedown notice or worse, as reprints of only a few bars are typically licensed.

Mind you, I’ve only cited a handful of the myriad fair use cases and all of them so far have been from courts in New York City. While federal courts throughout the country hear copyright cases, the New York decisions are particularly influential because of the copyright-based industries centered there, such as publishing, music, theater, advertising, and fashion. And not surprisingly, Judge Leval, the progenitor of transformative use, served as a judge both in the Southern District and on the Second Circuit.

If you’ve read my arrangements post you may be thinking that this whole “transformative use” thing sounds a lot like making a “derivative work,” something the copyright owner has the right to grant or deny approval. You’re not alone and last year at least the Seventh Circuit, in finding fair use in another appropriation art case, agreed:

We’re skeptical of Cariou’s approach, because asking exclusively whether something is “transformative” not only replaces the list in §107 but could also override 17 U.S.C. §106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2). Cariou and its predecessors in the Second Circuit do not explain how every “transformative use” can be “fair use” without extinguishing the author’s rights under §106(2). We think it best to stick with the statutory list, of which the most important usually is the fourth (market effect). [Citations omitted]

So why does music seem to have more restrictive standards for fair use than other creative arts? A clue is in the quotes from the cases. With respect to music, there’s a well-established market for these uses, including licensing arrangements, reprints, synchs, and samples, all of which are treated as derivative works. And courts are very reluctant to disrupt the marketplace— even one as dysfunctional as music licensing. This goes back to the first principles of the Copyright Clause, to Justice Story’s fair use test from nearly 175 years ago (“…the degree in which the use may prejudice the sale, or diminish the profits…”) and the fourth factor of Section 107. Ironically, it was the famous Southern District “Thou shalt not steal” case that essentially created the sampling marketplace.

And given the steep decline in mechanical royalties and the paltry payments from streaming, permissions, synch, and sampling uses are among the few areas where musical creators can reasonably be compensated. Do we really want to change this in order to expand fair use? While doing so would greatly enlarge the creative pallet available for new works, it would deny the owners of existing works the fundamental right to say “no” to uses of their works they don’t like and limit the creators of both the underlying and new works to profit from them. Whether or not such a reshaping of the fair use landscape is a good thing or not is a policy debate to be had elsewhere.

*So what does our slog through the thicket of fair use jurisprudence tell us? Clearly, fair use is a continually evolving doctrine and in recent years courts have construed fair use broadly, like a “right” at least as applied to creative works other than musical ones. In fact, in a bit of hot news, on September 14, the Ninth Circuit in California issued a 34-page fair use opinion in the “dancing baby” case, the one where a mom posted a 29-second video on YouTube that showed her toddler dancing to Prince’s song, ”Let’s Go Crazy” and Prince’s publisher, Universal Music, told her to take it down.

The Court held that a copyright owner must consider whether the online usage is protected by fair use prior to sending a takedown notice under the Digital Millennium Copyright Act of 1998 (DMCA). In reaching this decision, the Ninth Circuit confronted the issue of whether a fair use is an “affirmative defense” or a “right” and, at least for purposes of the DMCA, views it more like a right as fair use is “authorized by law.” Of course, any “consideration” of fair use involves application of the detailed analysis discussed above, including the application of “transformative use” under the Section 107 factors and increasingly complicated case law.

So how should one determine if a use is fair or foul? Especially if you’re a musician, you should be guided by the preamble to Section 107 and focus on traditional areas like “criticism, comment, news reporting, teaching, scholarship, or research.” Otherwise, be prepared to seek permission or at least the counsel of an experienced lawyer so that you don’t take a gamble on fair use and make schlimazels of your collaborators, commissioners, publishers, and presenters.

Do You Have the Chutzpah to Take a Gamble on Fair Use?

Posted on September 10, 2015 by Marc D. Ostrow - Columns

When I was a kid, my siblings and I played a board game called Chutzpah, which is a lot like Monopoly only the “properties” weren’t things like Boardwalk, Park Place, and Marvin Gardens but Son Marky’s Bar Mitzvah with Velvet Yarmulkes, Weekend in the Catskills, and Yacht Named Gevalt III. And rather than draw cards labeled Community Chest or Chance, you had four options: Schlemiel, Schlemazel, Chutzpah, and Do You Want to Take a Gamble. And instead of getting thrown in jail, you’d miss a turn if you landed on a “tsoris spot”—which is not the same as a tourist spot, I assure you!

For those of you who didn’t grow up in New York or laughing to Jewish comedians, here are brief explanations for these lovely Yiddish words. You’re at a dinner party and the guy next to you spills hot soup in your lap. The spiller is the schlemiel and you, the spillee, are the schlemazel. Tsoris means all manner of troubles, like getting the proverbial boil on your behind. And the concept of chutzpah (blandly translated as “guts” or “nerve” and more colorfully exemplified by variations on the theme of having a brass pair) is best illustrated with this classic example: a young man murders his parents and then pleads for mercy because he’s an orphan.

So, you wanna play? C’mon over to my place and I’ll break out the original 1967 edition. In the meantime, try your hand at the titular test, otherwise known as “Everything You’ve Heard about Fair Use is Probably Wrong.” It’s always a gamble as to whether something is or isn’t a fair use and, in my humble opinion, courts have recently shown a lot of chutzpah in making the determination.

Today’s “spot the fair use” game (not to be confused with “spot the looney”) consists of just two multiple choice questions:

1. How many of the following statements are true?

A) People have fair use rights.
B) There are specific rules on what is and isn’t a fair use.
C) Fair use determinations are governed by a particular provision of the Copyright Act.
D) Every determination of fair use must be made on a case-by-case basis.
E) Fair use is a defense to copyright infringement.

2. Assuming each example involves a use of a work still under copyright, which of the following constitutes fair use?

A) Reprinting or quoting four bars of music
B) Posting a 30-second clip of song or a movie on your web site
C) Putting only one line of a lyric on a T-shirt
D) Creating a painting that incorporates but modifies a pre-existing image
E) All of the above
F) None of the above
G) It depends

As for the first answer, the correct response is C, D and E. The answer to the second question is G. (That’s also the answer you’re most likely to get when you ask a lawyer a question, assuming he doesn’t first respond with two more questions.)

Now, in order to explain these answers, I’ll need to provide a little background with the caveat that, for true copyright mavens, my jaunt into the forest of fair use jurisprudence is kind of like the Classic Comics or Cliff’s Notes version of a copyright casebook.

Fair use was originally an English common law (case law) doctrine that was first incorporated into US law in the 1841 Supreme Court case Folsom v. Marsh. Writing for the Court, Justice Story (yes, that was his name) set forth a multi-factor test to determine fair use: “Look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” Ever since the current federal Copyright Law became effective in 1978, a restatement of Justice Story’s fair use test has been codified in Section 107 of the statute, which states:

Notwithstanding the provisions of sections 106 and 106A, fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

So what do we learn from parsing the previous paragraph? First, fair use is governed by a specific statutory provision. Second, as the Supreme Court made clear in the 1994 case Campbell v. Acuff Rose Music (concerning 2 Live Crew’s parody of the Orbison classic, “Oh, Pretty Woman” and which I’ll be discussing in my next post), a determination of fair use involves the application and weighing of the four statutory factors and therefore “is not to be simplified with bright line rules, for the statute, like the doctrine it recognizes, calls for case by case analysis.” Third, as Judge Easterbrook reminded us in a case from last year, “[f]air use is a statutory defense to infringement.” It’s not a “right,” despite whatever Prof. Lessig and his acolytes may write. So there’s your answer to the first question.

Explaining the answer to the second question involves applying the foregoing factors to each situation, although in the interest of brevity, I won’t apply all four to each example.

A. Reprinting or quoting four bars of music

Let’s look at the third factor first. Which four bars are you using? Is it the main hook in the chorus of your favorite pop song or four measures of the verse? Or for a classical work, would you be using four bars of the iconic brass theme from Fanfare for the Common Man or a few measures from the percussion parts? Not all four measures of a work are of equal importance—especially in songs. Let’s also consider the first factor. Are you reprinting four measures from a Beatles song in a scholarly article on their use of modal harmonies or are you taking the title hook from “She Loves You” and putting it in your own commercially released song (fourth factor as well)? In each example, the first use is more likely to be considered a fair use than the second.

B. Posting a 30-second clip of song or a movie on your web site

Again, considering the third factor, which thirty seconds are you using? It makes a difference whether you’re posting a critical “spoiler” scene from a newly released blockbuster (which also affects the fourth factor) as opposed to a clip from the official trailer which is intended for promotional purposes. Also, are you posting clips because you’re a fan of the band or the film and you’re linking to places where you can legitimately purchase the works or are you using these clips to link either to pirate sites or as a means to get eyeballs on your site to sell your own stuff? This involves consideration of the first and fourth factors.

C. Putting only one line of a lyric on a T-shirt

I’ll bet you can see where this is going: Which line—one from the chorus that includes the song’s title (although titles are not copyrightable) or a line from the middle of the third verse (third factor)? Are you selling these for profit or using them as an inspirational slogan to raise funds for a charity (first and fourth factors)?

D. Creating a painting that incorporates but modifies a pre-existing image

Okay, I’ll bet you’re getting pretty good at this game by now. Are you incorporating the entire image, the main focus of the image, or just something in the background of the image (third factor)? Are you incorporating a black and white photograph and adding color, changing the perspective, or distorting the image (second factor)? Are you selling your painting in a gallery or using it to demonstrate painting techniques to art students (first and fourth factors)?

*All of the foregoing are examples of the analysis that lawyers and judges use in determining whether an unauthorized use of a copyrighted work constitutes infringement or fair use, and none are definitively permissible. No simple bright-line rules; just an ad hoc analysis fudging the application of four statutory factors.

Now what if I said that everything I just told you is wrong (or at least not entirely right) because the courts had the chutzpah to change the rules of the game? And what if I also told you that fair use is far more narrowly applied to music than to any other art form? Would you still want to take a gamble that your usage of somebody else’s stuff isn’t infringing? Getting it wrong could bring you a lot of tsoris. So tune in next week when I discuss how the application of the concept of “transformative use” sometimes seems like a “parody” of traditional fair use analysis.

Copyright Conundrums for Collaborators

Posted on September 3, 2015 by Marc D. Ostrow - Columns

[Ed. Note: We’ve asked copyright lawyer and composer Marc D. Ostrow to write a series of short articles this month to clear up some common misconceptions about copyright and the music business. Marc’s widely read and informative post on rights in arrangements was the reason we thought it would be helpful to our readers to learn more about additional areas where composers and other creators can get into trouble. Marc’s first post below covers legal rights with respect to collaborations, and we welcome your comments and suggestions for other topics that you’d like to see him address.]

Illustrated cartoon of the "Jack and Jill" nursery rhyme including the text: "Jack and Jill went up the hilll / to fetch a pail of water. / Jack fell down and broke his crown / And Jill fell tumbling after."

An illustration from the public domain book, The Book of Knowledge, The Children’s Encyclopedia, edited by Arthur Mee and Holland Thompson, published by The Grolier Society of New York in 1912 and reprinted in 1912.

Here’s a situation that’s commonly misunderstood among creative collaborators: Jack and Jill agree to write a song together. They call it “Tumblin’ Down the Hill.” Jack writes the music and Jill writes the lyrics. Who owns what?

A) Jack owns the music and Jill owns the lyrics.
B) It depends whether the music or the lyrics were written first.
C) Jack and Jill each own 50% of both the music and lyrics.
D) Neither Jack nor Jill owns the music or lyrics.

Some of you may be surprised to learn that the correct answer is C. (Hint: when in doubt, always pick C.) In the absence of a written agreement to the contrary, Jack and Jill each own 50% of both the music and the lyrics.

Now this may seem counterintuitive at first. How can Jill own part of the music when she didn’t write a note of it, and how can Jack own part of the lyrics when he didn’t pen a single word? The key is that Jack and Jill agreed to collaborate to write the song. As a result, they’ve created a “joint work” of authorship under copyright law.

Section 101 of the Copyright Act defines a “joint work” as follows:

A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

That’s what Jack and Jill did in our hypothetical. They prepared a work with the intention that Jack’s contribution (music) and Jill’s contribution (lyrics) be merged into inseparable or interdependent parts of a unitary whole (the song).

Moreover, ownership of the work, that is ownership of the copyright in the work, initially vests (i.e., is automatically granted to) the authors (i.e., the creators) of the work. Section 201 of the Copyright Act states in relevant part:

Initial Ownership. — Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.

Absent a written agreement to the contrary, the creators of a joint work own that work in equal shares. So, if Jack and Jill collaborated on that song with John and Jane, each would own an undivided 25% interest in the copyright to the song.

Section 201(d) of the Copyright Act states that “[t]he ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.” A “conveyance,” other than a means of moving something from one place to another, is a fancy legal term for a written document. So if Jack and Jill want something other than a 50-50 split, they’ve got to put that in writing.

Some of you who are paying attention may have noticed the reference to an “undivided” interest in the copyright. If you’re wondering what that means, it’s the reason why Jack and Jill each own half of the words and music, even though they didn’t contribute to both parts of the song. Let me explain.

Copyrights, along with patents and trademarks (and a few other things) are often referred to as “intellectual property” or “intangible property.” And the laws for such non-physical property were developed from principles of law relating to tangible property like land (real property), which go back many hundreds of years.

Let’s say that instead of writing a song, Jack and Jill decide to buy a house. Now that “house” consists of the land that the house sits on, the front and back yards (yes, with shrubbery), and the building itself. Maybe it’s like the house I grew up in, a post-war split-level on a quarter acre in the ‘burbs. So, what do Jack and Jill own?

They are “joint tenants,” meaning they have an “undivided” interest in the property. Unless they’ve entered into some weird agreement, both Jack and Jill each have free and unfettered use (and joint ownership) of the whole house (not just the first or second floors) and also all of the front and back yards. So if Jack later sells his 50% interest in the house to June, he’s selling his 50% share in the whole thing, not just the second floor and the front yard, for example. That’s what we mean by an undivided interest in property.

A photo of the facade of the Jack & Jill Store in Hebron, North Dakota.

If Jack and Jill owned property together and opened a store there, perhaps it would look like this. (“Hebron, North Dakota” by Andrew Filer via Flickr.)

“Joint” authors of a work own an undivided interest in the whole work, even if each author contributes only a discrete portion of the work. That’s why Jack and Jill each own 50% of both the words and music to the song they wrote together.

So, let’s say Jack and Jill have a hit on their hands. And unbeknownst to Jack, Jill gets an offer to license the song for use in a new blockbuster movie: The Franchised Five, Part Six. Under what circumstances can Jill do the deal?

A) She must get Jack’s permission and also pay him his fair share of the proceeds.
B) She doesn’t need to tell Jack jack and she can pocket all the dough.
C) She doesn’t need Jack’s permission but she still has to pay him his cut.
D) She can license only her 50% interest in the song.

O.K., you probably figured the answer is C. But how many of you thought it should be A or D? In the absence of an agreement to the contrary, Jack and Jill, having an undivided 50% interest in the song, can each license the whole song (words and music and not just their 50% interest), subject, however, to a duty to account to the other joint author(s) and pay them an amount equal to their interest in the work. So Jill doesn’t have to get Jack’s permission, but she still would need to pay him 50% of the license fee, corresponding to his 50% ownership in the song.

Now, let’s say someone does an instrumental cover of the song and that, too, becomes a hit. CDs and downloads are sold, and the instrumental version is performed live and is broadcast over the radio and streamed over the Internet. Who gets paid the mechanical royalties for the sales and downloads, and who gets paid for the public performances? I think you know the answer: Absent a written agreement to the contrary, both Jack and Jill, as writers of a “joint work” should both get paid. Similarly, both writers should get paid when just the lyrics to the song are re-printed.

I’m sure many of my clever readers can come up with all kinds of scenarios, like Jack licensing the song to McDonalds without Jill’s permission and Jill licensing the tune to Burger King without telling Jack. Since advertisers usually want some sort of exclusivity, it may be that both agreements would be valid, but both McDonalds and Burger King could sue our songwriters for breach of contract.

Parenthetically, what if, instead of collaborating on a new song with Jill, Jack wanted to write a song using a poem that Jill had previously published in a periodical? Since Jill’s poem is a separate, pre-existing work, Jack’s use of Jill’s poem would not constitute a joint work. And just as Jack would have to get permission to arrange Jennifer’s pre-existing orchestral piece for a ukulele quartet, he would need to get Jill’s permission to set her lyrics to music.

But getting back to our collaborating songwriters, we can see that there are many reasons (e.g., Jack is a genius musician but Jill’s a much better businessperson) that collaborators should have contracts to spell out who can do what and to whom. And they should consult an experienced lawyer to help identify and document all areas of concern.

Moreover, many collaboration (and music publishing) agreements state that each party separately administers his own share, meaning you’ve got to get everyone’s permission. And the collaboration issues get particularly tricky when you’re dealing with works like operas and musicals or performing groups like string quartets and new music ensembles. Perhaps that’s a topic for another post.

Marc D. Ostrow (Photo by Karen Haberberg)

Marc D. Ostrow is a copyright and entertainment lawyer in New York City. Prior to returning to private practice, he ran the New York office of Boosey & Hawkes where he also was responsible for all copyright, legal and licensing matters, and served as a publisher member on ASCAP’s Symphony & Concert Committee. Previously, Marc was an attorney in BMI’s legal department. He has taught music business classes at the college level and is also a composer and occasional performer.

Who Owns a Musical Idea?

Posted on March 20, 2013 by Isaac Schankler - Columns

So I’m organizing this show about intersections between games and music, a topic I’m currently mildly obsessed with and will probably continue to be mildly obsessed with for the foreseeable future. Among other things, I was very interested in doing a demonstration or performance of John Zorn’s Cobra, since I think it’s probably the most successful and enduring example of the “game piece” genre. As it should be—it’s an amazing work that encapsulates almost an entire musical language in itself.
However, presenting Cobra without the presence of Zorn is…problematic. Zorn himself has said a number of times that a performance of the work is not official unless he is there to oversee it. In theory he left an escape valve, allowing unofficial performances of the work as long as they are marked with a figurative asterisk and clearly designated as “renegade Cobra,” or “outlaw Cobra,” or some other variant.

In practice, though, this mostly means that people are afraid to play Cobra, including me. It’s “bad karma,” as a friend once described it to me. If the planet were about 20x larger, maybe things would be different, but the new music community is just too small and intertwined, and hardly anyone is more than a couple degrees of separation away from Zorn.

What does this mean for the future of the work or works like it?

I recently learned about Blissymbolics, an ideographic writing system invented by Charles K. Bliss. Bliss’s motivations for creating the system were humanitarian, maybe even utopian. After spending time in the concentration camps of Dachau and Buchenwald during World War II, he was struck by how the German language was perverted by Hitler and the Nazis for their own ends. Bliss imagined a universal language that would be less susceptible to these distortions, and less prone to misunderstandings. This language could bring about peace between nations, Bliss believed.

Not terribly surprisingly, Blissymbolics did not have the effect or popularity that Bliss imagined. But years later, an educator named Shirley McNaughton discovered that it could be a powerful tool for helping children with cerebral palsy and other disabilities communicate with their teachers and each other. Bliss was initially overjoyed by this development, but soon became dismayed at the additions and alterations that teachers made to the language to make it more useful for their students. This was taking the symbols away from their original purpose, Bliss insisted, and back to the original problem of language. Bliss and McNaughton eventually reached an agreement, but not until after a protracted and expensive legal battle. One of the conditions of this agreement was an exclusive license—in other words, only one organization is authorized to use and publish the symbols throughout the world. The result of this is, arguably, that Blissymbolics isn’t nearly as widespread as it could be or should be.
I don’t think Blissymbolics is entirely analogous to Cobra—I’m not sure I’d call Zorn an idealist, for example—but the parallels are potentially illuminating. Cobra is almost 30 years old and no other game piece since has achieved the same level of significance. Is this because it said all the form has to say, or because development has been stifled somehow? I should mention that I’m sympathetic to Zorn’s point of view. It is extraordinarily hard to “get” Cobra without being taught it personally, and this kind of oral tradition is very susceptible to iterative distortion. Games seem particularly prone to being subverted for ends contrary to the original intent—I can’t help but think of how the socialist-leaning Landlord’s Game became the celebration of capitalism that is Monopoly.

At the same time, these distortions are an inevitable part of living culture. And Zorn is far from the only one to be wary of these distortions. In a way, the entire Western classical tradition, as it’s constructed today, is extraordinarily resistant to the idea of being a part of living culture. Compositions are fixed—the score is the work, differences in performances notwithstanding. Contrasted with most musical traditions, this seems like an anomaly, but composers are trained to accept this as the normal and natural state.

Of course, nothing’s stopping anyone from writing another game piece, but this proposition ignores how creativity actually works, how new ideas are derived from variations on old ones—that very same process of iterative distortion that we’re so scared of. I can imagine a genre of Cobra clones, or Cobra likes, each distinct from the rest. How far from the original would it need to be to be considered a new work? Should Cobra be considered a composition in the classical sense, or is it something different? And if it’s something different, what rules of ownership should apply to it? This is uncharted territory.

Blogging MIDEM 2013: Part 2 – From Ghanaian to Korean Hip-Hop & More

Posted on January 28, 2013 by Frank J. Oteri - Columns

The second day of MIDEM got off to an early start for me. I woke up quite early in order to upload the photos and video that appear in my report on Saturday’s events, but there wasn’t sufficient time to finish writing up the report before I needed to dash out of my hotel room and run to the Palais in order to catch the Legal Update for Entertainment and Technology, a panel of entertainment lawyers from all over the globe. The session was somewhat overwhelming and I unfortunately missed the beginning of it (video takes a very long time to upload on internet connections here), but the portion I did manage to attend was extremely informative.

It was particularly fascinating to learn from German lawyer Eberhard Kromer that, despite its geographical size relative to other countries in the world, Germany remains the world’s third largest music market. It was also very interesting to learn from Nikhil Krishnamurthy about the evolving situation of composers rights in India where the music industry was initially created as a subsidiary of the film industry and, as a result, film producers initially were the exclusive holders of copyrights for music and composers recouped no royalties for their work. In 1993, a so-called “encouragement fee” was introduced as an attempt to address the need for composer remuneration but it was taken away in 2003 which prompted an extensive lobbying efforts to the Indian government on behalf of artists’ rights. Just last year (2012), new laws were introduced that finally recognize the right of composers to accrue royalties from their music. But how this will play out both for Indian composers and the composers abroad whose music is performed in India remains to be seen. Joep Maddens from the Netherlands addressed some interesting Dutch legal cases in which web portals might be potentially held liable to pay royalties on content that appears on their sites even if it is not directly hosted by them. If content from another site is embedded directly into a site, the argument goes, it is ultimately a part of the website even if the content embedded is hosted elsewhere. A more extreme example of this line of thinking is a case involving a legal suit requesting remuneration as a result of a hyperlink since the link for the content was deeply buried within another site and had not been easy to access. MusicStrat’s Deborah Newman gave a brief update from the United States, referencing the direct licenses that DMX (a competitor of Muzak) has obtained from individual publishers, bypassing ASCAP and BMI which are now both now in litigation against DMX since DMX wants to have its blanket licensing fees reduced to carve out the portion that they now have negotiated with individual publishers. This is quite similar to a deal that Clear Channel recently made with Big Machine (which represents Taylor Swift among others). Clear Channel bypassed Sound Exchange and negotiated a reduced digital licensing fee from Big Machine in an exchange for granting the first-ever U.S. terrestrial radio broadcast fee for performers, presumably working under the assumption that the digital realm fee reduction will ultimately trump fees being paid to the allegedly dying medium of terrestrial radio. Are you still with me?

In all three years that I have attended MIDEM, Germany has had a bigger presence than any other country. Here is a photo of some networking in their section of the exhibition rooms. Might this be why Germany is the third largest music market in the world?

Following that session I attended a press conference about the United States Department of Commerce’s export project with the American Association of Independent Music (A2IM). This is the first ever music-related project funded under the Obama Administration’s Market Development Cooperator Program (MDCP). According to Nicole Y. Lamb-Hale, assistant secretary for manufacturing and services at the United States Department of Commerce’s International Trade Adminstration, the department is “looking for business plans that show you can help to assist export in new markets.” They are interested in “making sure that IPR [intellectual property rights] is protected” and want to “create new evangelists so that exports continue to grow.” MDCP’s Project Leader and Senior Media and Entertainment Analyst Andrea DaSilva admitted that “in dealing with the music industry” they “had to learn a whole new vocabulary.”

A2IM President Rich Bengloff, Nicole Y. Lamb-Hale and Andrea DaSilva from the US Dept of Commerce talk music export.

A2IM President Rich Bengloff noted that one of the key areas in which the music industry differs from other forms of business is that “it’s harder to show results up front.” Lamb-Hale was happy to learn that “independent music is particularly competitive” and Bengloff spoke about how campaigns in East Asia were designed specifically to promote jazz and classical music since they are both predominantly instrumental genres and therefore can bypass language barriers. It was great to learn that American jazz musicians will be getting this support but I hope that the classical music being exported includes music created by American composers and is not just American orchestras and other ensembles performing Beethoven and Tchaikovsky. Bengloff was unable to provide specific information about repertoire when I asked him after the session. This could be an extraordinary opportunity for American composers so I hope to continue this conversation with all parties involved.

The Texas Music Office has more of a presence at MIDEM than many other countries; But where are our other 49 states?

Filled with excitement about the possibilities of viable music export for the new music community, I wandered the exhibition rooms where elaborate displays of various countries’ musical offerings were on display, often through the support of their governments. There is no such exhibition for the United States, although as I have pointed out in my coverage of MIDEM in previous years, the very independent-minded state of Texas always has a presence here. In fact, Andrea DaSilva stated during the U.S. Department of Commerce press conference that the Texas Music Office is an initiative directly funded by the state of Texas since Texas governor Rick Perry is “very interested in the music industry.” Perhaps if we can’t have an official United States presence at MIDEM and other significant music export convenings abroad we can eventually have representation from all 50 states individually–imagine that.

Henry Holbrook-Smith and Kofi Amoakohene from the Ghana-based music company Scratch

Meanwhile, the entire continent of Africa, which has over 50 independent countries, has traditionally been poorly represented at MIDEM. As I mentioned yesterday, I was very excited to see that representatives from Ghana, Senegal, and Congo were listed as exhibitioners. Unfortunately, the Senegal and Congo booths remain empty thus far. I learned that the delegations from those countries were unable to secure visas to enter France. I did however have an opportunity to speak with Kofi Amoakohene, the CEO of Scratch which is a Ghana-based private recording and recording distribution company that also publishes a music magazine which is available both in hard copy and online. They are the defacto music information and advocacy center for Ghana. I was proud to tell Amoakohene that back in 2001 we featured Ghana-born, Portland OR-based composer and master drummer Obo Addy on these pages and then we proceeded to talk about how to foster stronger musical relations between Ghana and the United States. Ghana, of course, has been an important source of inspiration for composers ranging from Steve Reich (Drumming) to Wynton Marsalis. (Marsalis’s Congo Square features Obo Addy’s brother Mustapha Teddy Addy who is still based in Ghaha). He also told me about Gyedu-Blay Ambolley, whom he claimed was doing hip-hop before anyone else in the world. But you should hear about Ghanian music and its impact on the United States as well as what it means to be at MIDEM directly from Amoakohene…

Argentina pours the malbec.

After that very interesting talk, I was hoping to have a similar conversation with the delegation from Argentina, but the representatives unfortunately weren’t around when I passed by even though there were a group of waiters pouring malbec, one of which was from Colombia (which is not otherwise represented here). So I drank a glass and we got into a brief conversation about cumbia, vallenato, and salsa colombiana.

I eventually found my way to a panel about sound quality in the era of mp3s back at the Classical Discussion Lounge. Philip Hobbs, the chief classical producer for Linn Recordings in the U.K. adamantly declared that “audio quality affects attention spans” as do the ubiquitous shuffling functions on all playback equipment. He bemoaned that nowadays people have music playing from an iPod cradle with a TV playing at the same time: “No one’s enjoying anything; they’re just cluttering their brains with noise. Years ago we used to say that if you could read a book while listening to your hi-fi system, your hi-fi did not sound good enough.” Steve Long, managing director for U.K.-based Signum Records, however, was not dismayed by the current listening malaise: “It doesn’t matter what people are listening to now, but what people will listen to in the future.” The moderator, BBC Radio 3’s Andrew McGregor, added some levity to the discussion when he opined, “The only thing that bothers me about listening to LPs is getting up after 20 minutes to turn the damn thing over.” The discussion took a more serious turn when Hobbs acknowledged that the biggest problem is that creative artists and their representatives ultimately have less control over digital aggregators.

Before the Q&A period was over I scurried over to a panel on hip-hop with Kaylee Maize, whose showcase I heard last night, and a group of American-born Korean rappers who are huge stars in Korea. Drunken Tiger, originally from Los Angeles, is now a superstar in South Korea, as is his wife T Yoon Mirae. Drunken Tiger explained the attraction of hip-hiop as a young Asian American growing up in California, “Asian wasn’t even a minority but Wu Tang Clan made Asians cool. I knew we made it when these guys came up to me and said, ‘You’re not Chinese, you’re not Japanese, you must be muthafuckin’ Korean!”

The hip-hop panel (pictured left to right): moderator Emily Gonneau (Unicum Management, France), Keelee Maize, Drunken Tiger, T Yoon Mirae and Bizzy.

Drunken Tiger’s showcase later that evening at the Magic Mirrors was a performance highlight for me. He, his wife, and a third Korean rapper whose name I didn’t catch rapped almost exclusively in Korean but they completely engaged the audience even though alnmost no one there understood a word they were saying. Drunken Tiger challenged the audience to “open your mind up, let us in” and they did. Contemporary American composers could learn a valuable lesson from this, I think.

Korean Hip Hop showcase at Magic Mirrors

The last panel I attended on Sunday was about exporting music to China which focused on a collaboration between French synth legend Jean-Michel Jarre, the first artist to perform in mainland China, and Taiwanese singer Jolin Tsai.

Jean Michel Jarre (center) talks about performing music for audiences in China.

Then it was showcase time. I already mentioned Drunken Tiger whose showcase was revelatory. I also attended some of the “Malaysian Supernova” but nothing particularly resonated with me. I hope to return to some of this music in the future, however, since a less than extraordinary first encounter with something should not be a barrier for future exploration. Unfortunately I never found my way to the jazz showcase which was a bit of a trek from the Palais; there is just too much going on here. I also missed C2C, the turntable quartet which was the closing act at Magic Mirrors that I later heard was amazing; phooey, I was just too tired at that point. To be continued…

David vs. Goliath

Posted on June 4, 2012 by Frank J. Oteri - Uncategorized

I spent all of Friday attending the annual meeting of the Music Publishers Association, which is proud to call itself the oldest music trade organization in the United States. It was founded in 1895. This year, the MPA’s long history was much in evidence—even the printed program, as well as all the name tags for the attendees featured an iconic-looking old logo.

History screams from the Music Publishers Association’s logo printed on the program for their 2012 annual meeting.

After the announcement of the MPA’s 2012 Paul Revere Awards, which honor graphic excellence in published music scores, a lifetime achievement award was given to Frank J. Hackinson, who has been in the music publishing business for seven decades. Highlights of Hackinson’s CV include popularizing the mixed song folio (now a standard publication format for pop music), signing the Beatles to their first print music contract in the United States, establishing Columbia Pictures Publications (whose roster included Henry Mancini, Stevie Wonder, Bruce Springsteen, and Whitney Houston) in 1971, and, in 1988, the FJH Music Company which specializes in repertoire for concert band and educational music publications.

Bryan Bradley shows MPA attendees some facts and figures about the state of music publishing.

What was particularly heartwarming about this gathering was how deeply personal it all was. At one point during the meeting, there was a memorial to MPA members who had died during the past year, including, in most cases, brief archival video footage of conversations with them. Seeing the faces behind the names throughout the day, both of people who are now longer with us as well as those who very much are, helped me to understand how this particular industry—unlike most in our nation—is very much one that has been molded by individuals rather than by large corporations. Bryan Bradley, the chief operations officer of Alfred Music Publishing who moderated a panel in the afternoon, acknowledged that this “industry is very mom and pop.” And many of these individuals have also been and or continue to be composers or active performing musicians in addition to their work on behalf of other composers and interpreters.

Yet in the minds of many people, publishers are monoliths—giant, impenetrable entities that control the copyrights of others and draconically police their usage. And in the era of the internet, many people have taken an alternative view of intellectual property. Some believe that anyone should be able to disseminate any and all information to whomever they want to freely and at any time, and most believe that the duplication of intellectual property is not the moral equivalent of stealing a physical object. But people who create music in particular are, of course, well aware that this form of creation, though it can never be corporealized into a car or a diamond ring, can be far more valuable than either. And if there is no way to protect this kind of non-physical creation, the ability to make a living from creating it, which has always been tenuous at best, becomes even more of a pipe dream. Ironically, of course, many of those same folks who believe that intellectual property does not require financial remuneration spend loads of money on technological equipment, as well as on online connections, which would have considerably less value for them if these pieces of equipment and services did not supply them with that same intellectual property. As a result, companies like Apple, Facebook, and Google (which owns YouTube in addition to controlling how most people surf the web) are now catastrophically huge corporations, far bigger than any publisher. So much for monoliths!

One of the many slides that raced by during Viacom’s Stanley Pierre-Louis’s address at the 2012 MPA Annual Meeting

One of the most poignant observations about this phenomenon that I’ve yet heard was a comment made during the MPA meeting by attorney Kenneth B. Anderson. Anderson has recently been retained to serve as legal counsel for a new anti-piracy initiative launched jointly by the MPA and the National Music Publishers Association (NMPA), the other member organization for music publishers based in the United States. (Anderson, whose other clients include the Beastie Boys and the Dixie Chicks, is no stranger to a challenging fight. I imagine that representing the Dixie Chicks during the radio boycott following comments made by members of the band that were critical of then President George W. Bush must have kept him busy.) Anyway, during an updated Piracy Report given by Anderson, he exclaimed, “The concept that the entertainment industry is a Goliath and that the internet industry is a David is a 180 degree reversal of reality.”

Of course, whether or not Anderson can help the MPA and the NMPA change the climate of today’s digital environment remains to be seen. But if these mostly small organizations have anything going for them against giant corporate interests it is ultimately history. The NMPA, though not as old as the MPA, dates back to 1917. Together these organizations have been around for over 200 years and presumably have weathered a great number of challenges before the internet.

Bryan Bradley perhaps had the clearest vision of how the industry needs to move forward: “You need a specific knowledge to use the products we make. We’re not selling iPads that anyone can use. If we’re to survive, we need to create more customers. We’ve got to create more musicians, people who are passionate about music. If we don’t inspire that passion, we’re shooting ourselves in the foot.”

Blogging MIDEM 2012: Getting Paid vs. Getting Played

Posted on January 30, 2012 by Frank J. Oteri - Columns

If the opening salvos of MIDEM 2012 on Saturday seemed to be dominated by technology and internet-based content aggregators, throughout Sunday and Monday (thus far at least) I witnessed a great deal of talk back from various content creators and their representatives who are not particularly happy with the emerging music industry paradigms and are seeking to find a third path.

The Commerce or Chaos Panel (left to right): Pierre-Marie Bouvery, Paul McGuinness, Roxanne Frias (moderator), Robert Levine, Yves Riesel

Sunday morning at 10:00 a.m., I attended a press conference with the provocative moniker “Commerce or Chaos.” Among the speakers was Principle Management’s Managing Director Paul McGuinness (who reps, among many others, the band U2) who expressed astonishment at the “extraordinary greed” of technology companies including ISPs and manufacturers, “Why are they not more far-sighted and generous? Why are they not trying to solve this?” At the same time he acknowledged from an audio perspective that the overall “low quality of internet music is an accidental conspiracy.”

Yves Riesel, president of an internet-based music company called Qobuz which purports to have a more equitable remuneration model as well as to be the first and only CD quality audio download service, countered that the problem is that most web and tech initiatives did not originate with folks from the music sector: “There is no love of music in these tech companies. There is no one in charge of classical music in France for iTunes; just one person for all of Europe.” He also stated that standards for the quality of metadata should be included in copyright protection. French entertainment lawyer Pierre-Marie Bouvery pointed out that despite the current anti-copyright rhetoric of people who claim to be representing free speech, copyright has never been something against free speech. Rather these anti-copyright positions are ultimately about ensuring that regulations are not imposed on big businesses which have been reaping huge financial benefits from an environment without any kind of regulation. Perhaps the most outspoken panelist, however, was Robert Levine, the German-based American author of a bestselling 2011 book called Free Ride that is highly critical of internet business practices. He explained that over the last decade his opinions about the online sphere have changed considerably. Whereas once he believed it could give individuals more control and was therefore an unequivocally positive environment, now he’s far more skeptical.

These technologies are not giving bands more control; they’re giving technology companies more control. The issue [of having a completely unregulated internet] has been framed as the “people” vs. “the man,” but look and see what side the big companies are on regarding this issue.

He acknowledged that as a freelance journalist, his own efforts to receive remuneration as a content creator are diminished by news aggregating blogs which he described as inherently parasitic, which is why he feels empathy for music creators. He was unabashedly blunt in his criticism of Creative Commons (which only has one artist on its fifteen-member board) and Google, particularly Google’s tactics in lobbying the United States congress against SOPA (the recently defeated Stop Online Piracy Act), a campaign on which Google spent some $11 million according to Open Secrets (which he pointed out was far in excess of the $2.6 million spent by MPAA in pro-SOPA lobbying). Plus, in addition to their placement of an anti-SOPA banner on the Google homepage, Wikipedia’s blackout day suspiciously occurred right after they had been given a $2 million donation from Google. According to Levine, “If NBC put a banner on their screen supporting SOPA everyone would have been outraged, but no one was outraged by Google using their homepage to promote an anti-SOPA position.”

In the afternoon I attended a session about performers’ incomes in a digital economy (in French, but luckily there were headphones for instant translation). The session featured a group of four speakers, all of whom work for SPEDIDAM, a performing rights society that collects revenue for recording artists—roughly the French version of Sound Exchange in the USA. According to SPEDIDAM’s estimates, there should be a remuneration of somewhere between 4 to 9.5 euros per household per month to account for internet usage of music, but that obtaining such remuneration will ultimately have to occur as a result of governmental legislation. At the same time, it was pointed out that the current, mostly non-remunerative system for recording artists is largely the fault of the major record labels, who were interested in maximize corporate profits rather than sharing revenue and, in the old paradigm, rarely gave recording artists fair remuneration. According to SPEDIDAM’s President Jean-Paul Bazin:

The system of making recordings is tantamount to blackmail to performers. Producers and labels own everything. It is important to remember that the record industry wants to keep this money for themselves. […] The wrong choices were made by industrialists who refused to make their catalogs available in new platforms.

Never a dull moment at the Nordic Bar.

After all the talk about economic inequities between individuals and large corporations, my brain was reeling. Luckily at around 4:00 p.m., there were parties at exhibition stands with various countries offering regional drinks and foods. The Nordic countries (Denmark, Norway, Sweden, and Finland) pooled their resources for some really nice offerings—Swedish meatballs and bottles of beer, but the Czech republic was offering the herbal liqueur Becherovka with delicious sausages. The Belgians lured folks to their area with various lambics, but Switzerland perhaps gets top prize for serving white wine made from a nearly extinct Swiss grape called Heida along with the requisite fondue.

The evening, however, belonged to Singapore, at least for me. This was the first year that Singapore has ever participated in MIDEM and from while I was still in New York City, they were already lobbying hard for me to attend the first-ever showcase of Singaporean bands during MIDEM at a local club named DaDaDa. So I did and I brought along with me representatives from music information centres from Canada, Ireland, the Netherlands, Slovakia, and Greece. We were regaled with a succession of six different bands. Randolf Arriola performed one-man-band versions of some trippy, drony originals as well as a cover of Phil Collins’s “In the Air Tonight.” If that lulled anyone into a dream state, they were quickly awoken by a phenomenal percussion group called Wicked Aura Batucada that had at least 12 players (it was hard to tell) and a lead singer who had a penchant for climbing up on the bar while singing.

Wicked Aura Batucada proves that Singapore ROCKS!!!

There was even some Singaporean rap, from a group called SIXX. It was quite hard to catch the words, but at one point I thought I heard, “It’s contagious; it’s outrageous.” Indeed. Most of it seemed to have nothing to do with the traditions of Singapore, which is comprised of a large percentage of ethnic Chinese and Malays, but most of the bands were very integrated between these two groups and at one point Kewei, a female singer who performed with several of the bands, pulled out what sounded like an erhu and played a dizzyingly virtuoso solo for about a minute. The show came to an end with a brief set by Zero Sequence, which claims to be the only progressive rock band in Singapore. They’re quite an elaborate outfit which unabashedly carries on the legacy of mid-1970s British prog. Although according to their manager who spoke with me earlier in the day, the band members are also fans of American bands like Nirvana and Smashing Pumpkins. To bring the set to a rousing conclusion, one of the band members conducted the rest of the group in a bombastic cadence. Following their closing note, I wandered back to my hotel in the pouring rain in order to catch a few hours of sleep before it all started again this morning.

Frank J. Oteri

Subscribe to our newsletter and never miss a beat!