GoldieBlox and the Beastie Boys: Parody, Piracy or Publicity Ploy

This article was originally posted on the ScoreStreet blog on November 27, 2013.

In case you’ve not tuned into the TV news, the blogosphere or social media in the past couple of days, you may have missed the uproar over a small company’s use of the Beastie Boys’ song Girls in a YouTube video ad that quickly went viral. Goldieblox, which describes itself as “building games for girls to inspire future engineers,” produced a video with young girls using the company’s products in a Rube Goldbergesque contraption. This was set to a re-recording of Girls, sung by young girls with the lyrics changed from the original to one of empowerment.

The Beastie Boys are well-known for refusing to allow their music to be used in commercials and it was widely reported that Adam Yauch had a provision in his will prohibiting such exploitation. So, it wasn’t surprising that Goldieblox did not seek permission to use Girls – particularly in a way that substantially altered the original.

Instead, GoldieBlox felt it was just right to file for a declaratory judgment, seeking a determination in federal court that their use of the song in the commercial did not constitute copyright infringement, claiming  “fair use” in the nature of a “parody.”  There already have been numerous blog posts analyzing the matter to varying degrees.  I simply want to use the Goldieblox – Girls situation to illustrate some fair use principles and to dispel some misconceptions.

First, there is no doubt that the use of the song by GoldieBlox without permission would constitute infringement unless there was a valid defense to the infringement. In that regard, “fair use” is not “right” as some like Larry Lessig and his acolytes have maintained. Rather, it is a defense to copyright infringement.  Moreover, there are no hard and fast rules as to what is, or is not, fair use. For example, it is not automatically a fair use to use 30-seconds or less of a recording or to copy four or fewer bars of a piece of music.  Unfortunately, what constitutes fair use has to be determined on a case-by-case basis in accordance with Section 107 of the Copyright Act, which reads as follows:

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the 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.

As for “parody” being a defense to copyright infringement, that was established in the 1994 U.S. Supreme Court decision, Campbell v. Acuff-Rose.  In that case, the band, 2 Live Crew, used a portion of the Roy Orbison hit, Oh, Pretty Woman,” in their song, Pretty Woman, despite having been refused permission by the copyright owner of Oh, Pretty Woman, Acuff-Rose Music.  In that case, the Court went through a lengthy fair-use analysis and found that 2 Live Crew’s use of Oh, Pretty Woman was “transformative” in that it did not merely reproduce and appropriate the original song.

In so doing, the Court set forth 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. Among the criteria are 1) that only so much as is necessary to conjure up the original, parodied work was to be used and 2) that the parody must comment on the original work. In other words, it would not be a “fair use” parody to write new lyrics to an underlying song that talks about something else. That is why Weird Al gets permission for his “parodies.”  To constitute a parody protected by fair use, the “parody” need not be funny or artistically successful.

How does this apply to the GoldieBlox situation? It has been pointed out that the original Beastie Boys’ song is misogynistic and that the GoldieBlox version changes the lyrics to a message of female empowerment.  However, more than a mere conjuring of the original song was used. Basically, the whole song was used – and to shill a product, however positive the message embodied in the ad may be.

So, is the use a parody protected by fair use? You now have the tools to do your own analysis. My own view is that using substantially all of a song for an advertisement for a product should not constitute fair use. But, as I said, that determination must ultimately be decided by a federal district judge.  And as of now it seems unlikely that will happen. Apparently, GoldieBlox has changed its tune; the company uploaded a new video without music or lyrics and has issued an apology – of sorts– to the surviving members of the Beastie Boys.

Although we may not have a court decide whether the GoldieBlox use of “Girls” was parody or piracy, one thing is absolutely clear: it was a brilliant publicity ploy for the company.

The Good Wife and the Parody Defense

Imagine my surprise when I tuned in to yesterday’s episode of The Good Wife, expecting the usual sexual and political intrigue and found myself in the middle of a copyright infringement case that seemed to have elements of the Supreme Court’s  decision in Campbell v. Acuff-Rose Music (the case where the high court held that 2 Live Crew’s use of the Roy Orbison hit, “Oh, Pretty Woman” was a parody of that 1960s classic), Glee and the recent furor over the Goldiblox ad using The Beastie Boys’ song, Girls. What fun!

Although the technicalities of these types of cases were somewhat glossed over for dramatic effect, things like “parody”, “transformative use”, “derivative copyright” and “compulsory license” were bandied about in the middle of the battle between Alicia Florrick’s client and that of her nemesis, former lover and head of her former firm, Will Gardner.

The fictional case involved a duo that had done a “cover” of sorts of a rap tune where they kept the original rap lyrics but wrote a new melody for the song, “transforming” it into a bouncy pop tune. This version was, in turn, “covered” by yet another artist and was broadcast on a fictional Glee-like show.

Now, those of you who’ve read my previous blog posts both on here and on ScoreStreet, are already familiar with these concepts. But, for you fans of The Good Wife who want to know what all the fuss was about as these legal terms went whizzing by, here’s a brief explanation of some of what was going on in the case where one party was portrayed by F. Murray Abraham (who won an Oscar for his role as the composer, Salieri, in the film, Amadeus), and where the judge was Dominic Chianese, Uncle Junior of The Sopranos  fame and someone who released a recording of Italian songs. Kudos to the casting department for the inside jokes!

The manager for the budding pop duo spoke about getting a “compulsory” license. This, is in fact,  known in the music biz as a “mechanical” license. Typically, a record label (on behalf of its recording artist) obtains this license from the copyright owner of the song to be “covered,” which is usually a music publisher. It is a compulsory license under Section 115 of the Copyright Act in that once a song has been commercially recorded and released, any artist can “cover” that song and the copyright owner  must grant permission (hence, the “compulsory” license), provided that the artist (or more likely, their label) pays the “statutory” rate, which is currently 9.1 cents unit distributed for a song that is 5 minutes or less in duration. So, if an artist sells 100,000 downloads of a song that’s less than 5 minutes long, the record label owes the publisher $9,100.00.

Compulsory mechanical licenses only give the artist rights to make an audio-only recording. And while an artist under the mechanical license can arrange the covered song to his own style, he can’t make fundamental changes such as material alterations to the song’s lyrics. The right to make other uses of the song requires additional rights – as was noted during the show. This is where this “derivative copyright” stuff comes in.

A copyright owner has a “bundle of rights” including the right to make and distribute copies and to create – or authorize others to create – “derivative works.” What’s a derivative work? You can look it up in Section 101 of the Copyright Act, but arrangements, translations, adaptations and the like are derivative works. For example, making a film from a novel is creating a derivative work of that novel. So is making a video of a song or doing a new arrangement of a song, such as keeping the lyrics but writing an entirely new melody to them, as was done in The Good Wife. Such derivative uses are often viewed as being “transformative,” in that the new work has recast and re-purposed the original work.

Most derivative uses of a copyrighted work need to be authorized or licensed by the copyright owner of the underlying work. For example, if a producer wants to use a hit song in an upcoming TV show, they need to get a “synchronization” license from the copyright owner of the song (typically, a music publisher) and permission from the copyright owner of the recording of that song (typically, the artist’s label).

However, there is an exception under the doctrine of “fair use” for a “parody” of a work. An artist may use another’s copyrighted work without permission if the new work  is commenting in some manner on the underlying original, as was held to be the case with 2 Live Crew and “Oh, Pretty Woman.”  Such a “parody”  is said to be a “transformative” use of the work, and under certain circumstances, no permission would be required and the use, even without permission, would not constitute copyright infringement.

But there’s a catch:  what was not made clear in last night’s episode, probably for dramatic purposes, is that in order to have a fair use “parody” of the work, one can only use so much of the underlying work as to “conjure” the original. One cannot simply take the entire underlying work and use it wholesale, such as taking an entire lyric and writing a new tune to it. In the “Oh, Pretty Woman” case, 2 Live Crew only used a portion of the original song and the rest was original material, thereby creating a “transformative” use of the Orbison hit. Got that?

Who knew that copyright and music licensing could be so dramatic!

Artists and Labels Paid for Radio Airplay?

Composers know that they should sign up with a Performing Rights Organization (PRO) such as ASCAP, BMI and SESAC to make sure they receive royalties for when their works are publicly performed in live performance venues, when broadcast on radio or TV or streamed over the Internet. Most people don’t realize, however, that when a work is played over the radio in the US, the writers and publishers of the composition receive payment for the performance through the PROs but the recording artists and record labels don’t receive a dime. So, whenever a radio station played Frank Sinatra’s recording of “New York, New York”, Kander & Ebb and their publisher got paid, but Ol’ Blue Eyes and Reprise Records did not.

In most other countries, there is a public performing right in a sound recording, but not in the US. There have been attempts over the years to fix this inequity. For example, since 1995, as amended in the Digital Millennium Copyright Act of 1998 (DMCA), there has been a limited public performing right in a sound recording. But, it only applies to “digital transmissions” which basically constitutes streaming over the Internet. SoundExchange was formed to act as a licensing collective, like the PROs, for this growing revenue stream and they pay artists and labels.

Last month, however, something occurred that may be a step in the right direction. Clear Channel, which owns 850 radio stations, and Warner Music Group, one of the industry’s major labels, announced a private deal where Clear Channel will pay public performance royalties to Warner and their recording artists. Clear Channel, apparently, will get a more favorable rate with respect to online streaming, which if you have been following what has been going on with Pandora’s continuing lobbying of Congress to reduce the rates they pay, has been an ongoing battle between webcasters and publishers and labels. Warner, in return, will receive promotion from Clear Channel, which likely means increased airplay, for their artists.

Is this a good thing? Paying artists and labels for the public performance of their recordings is certainly a step in the right direction toward aligning the US with the rest of the world. But at what cost? In exchange for increased exposure on Clear Channel stations, royalty rates for streaming are being nearly cut in half. And unlike the situation with SoundExchange, artists are not directly paid, but will be paid by the label. What is perhaps of even greater concern, however, is that this is a private deal between two industry giants. It remains to be seen whether this will deal set a precedent that will eventually enable all recording artists and labels (including indie, and artist-produced recordings) to collect public performance royalties. It probably won’t happen soon. A Congressional bill that would have given labels and artists a public performing right akin to what composers and publishers have long enjoyed died in committee in 2009. But one can hope – and lobby your local Congressman.

Update: On September 30, right before the government shut down, Rep. Melvin L. Watt (D-NC), introduced H.R. 3219, the Free Market Royalty Act, which would among other things create a public performance right in sound recordings when played on AM or FM radio.

This article was originally published in September 2013 on the ScoreStreet web site.

Happy Birthday, You’re Sued!

The mere filing of a copyright case doesn’t usually make a major splash in the media but when it involves the most performed song in the world, even The New York Times takes notice.  Apparently, filmmaker, Jennifer Nelson, was making a documentary about the song, “Happy Birthday to You” and didn’t like the idea that Warner/Chappell Music insisted on her taking a $1500 license to use the song in the film as she – and probably most people – think it’s in the public domain.  So yesterday, Ms. Nelson filed a birthday suit of sorts: an action in federal court seeking a declaratory judgment that the song is, in fact, in the public domain and no permission is needed to use it.

So, in little more than the time it takes to sing the song, I’m going to use it as a way to review a few basic copyright law principles that are sometimes misunderstood. Let the questions begin!

What is the public domain? The public domain is the body of works, music, novels, plays, texts, etc., that is no longer (or never was) protected by copyright and is therefore free for anyone to use or adapt.

When is a song in the public domain? As they say in Facebook status land, “it’s complicated.”  For songs written since 1978, a U.S. copyright lasts for the life of the author (or last surviving author if there’s more than one) plus seventy years. If there’s no author, such as a work-for-hire, the term is 95 years. For older works, the U.S. used to have a system of an initial term and then the copyright had to be renewed for, you guessed it, the “renewal term.” For these older copyrights, the initial term was 28 years and the renewal term, through various extensions, was increased to 67 years, for a total of 95 years.  There’s more to it than this, but basically, if a work was written prior to 1923, it’s most likely in the public domain here. Maybe you’re thinking that’s an awfully long time when the Constitution says that copyrights are supposed to be “for limited times.” Larry Lessig thought so when he challenged the 1998 Sonny Bono Copyright Term Extension Act but the U.S. Supreme Court strongly disagreed.

Do I need to get a license to sing “Happy Birthday to You” to my kid at my backyard barbecue? Even assuming the song is still under copyright – and as we’ll soon see that’s a big assumption – the answer is still “no.” U.S. Copyright law gives copyright owners a certain bundle of rights. Among them is the exclusive right to authorize “public performances.” A backyard barbecue, a birthday party in your basement and most other gatherings among “a normal circle of a family and its social acquaintances” is a private performance for which no permission is needed.

What if I sing the song at a gig or at a party of 500 of my closest friends and acquaintances? You’re probably safe to sing the song – or any other copyrighted song. Most public venues where music is performed (concert and catering halls, clubs and stadiums) or broadcast (TV and radio stations) have licenses from “performing rights organizations” such as ASCAP, BMI and SESAC. These companies issue “blanket” licenses to venues and broadcasters (and web sites, too) which allow the licensee to perform all the works in their respective repertories as much as they want.

Why would a filmmaker need a license? The permission that Warner/Chappell sought from Ms. Nelson for her film is known as a “synchronization” or “synch” license because the user is synchronizing music to picture. Whenever a pre-existing copyrighted song is used in any audio-visual work, such as a film, TV show, TV ad or videogame, a synchronization license is required from the copyright owner, usually a music publisher. If you’re using pre-recorded music, then you need permission from both the music publisher of the song and the copyright owner of the recording, typically a record label.

What if I post a video of my kid dancing to a Justin Bieber song? Putting aside issues of taste, technically, you’d need synch licenses from the music publisher(s) of the song and from The Bieb’s label although the actual performance of the video may be covered if the site has licenses from the performing rights organizations. As a practical matter, unless your home video is generating millions of views or you’re selling truckloads of DVDs it’s unlikely that anyone will come after you for a technical violation.

So, is “Happy Birthday to You” in the public domain? That’s for the court to decide, but if the facts are as alleged in the complaint and as cited in the  news reports and elsewhere, it seems that the song would be “PD” as we music types say.  The melody is said to come from a song called “Good Morning to All” written in 1893 and, the combination of music and lyrics is said to have appeared in print in 1912, possibly earlier. By my reckoning, if these are the facts, both 1912 and 1893 are prior to 1923. At least one legal scholar, Richard Brauneis, has written a 68-page article (with 320 footnotes!) in which he concludes that the song is in the public domain.

How can Warner / Chappell claim the song is still under copyright? Again, the facts will play out in the lawsuit, but it seems that W/C has a 1935 copyright registration, crediting different writers as the creators of the song. The complaint alleges that this registration is for a piano /vocal arrangement of the song.  Another of the things in the “bundle of rights” a copyright owner gets is the right to make a “derivative work” of the underlying work, such as an arrangement or adaptation. Turning a novel into a film constitutes making a derivative work, which is why the novelist gets paid when the film is made.

For example, the song “Simple Gifts” is a Shaker hymn from the nineteenth century.  Most people know it from Aaron Copland’s arrangement of the tune in his ballet, “Appalachian Spring.” As the original song is PD, anyone can perform the original melody and lyrics or make their own arrangement. But, if you want to use Mr. Copland’s treatment of the work you’ll need permission from Copland’s publisher, Boosey & Hawkes.  So, if the underlying song, “Happy Birthday to You” turns out to be in the public domain, anyone can use it and make their own arrangement of it, as long as they don’t use any particular copyrighted arrangement of the work, such as ones owned by Warner / Chappell.  And, of course, you can write a new song, with your own melody and lyrics, and call it “Happy Birthday to You” as titles are not copyrightable.

Wanna Buy a Used Download?

While not nearly as exciting as the same sex marriage cases, it’s always noteworthy (at least to people like me) when the Supreme Court issues a decision about copyright. A recent high court case and an even newer one from the district court highlight some real differences between the physical and digital worlds for producers and consumers of copyrighted stuff. On March 19, the Supreme Court issued its opinion in  Kirtsaeng v. John Wiley & Sons (No. 11-697). This case involves a conflict between two provisions of the Copyright Act, the “first sale” doctrine” under Section 109(a) and the “importation” provision of Section 602(a)(1).

The “first sale” doctrine is what enables so much commerce at garage sales and  flea markets and the very existence of used book and record stores. In short, it says that once a copy of a copyrighted work, such as a book or CD, has been lawfully sold (or given away), the purchaser (or other lawful recipient) is free to dispose of that particular copy as he wishes. The copyright owner of the work no longer has a say in the matter. More on the “first sale” doctrine later.

The importation provision states that bringing a copyrighted work into the US without permission of the copyright owner violates that owner’s right to distribute copies of the particular work.  It’s easier to understand in the context of the Kirtsaeng case. Wiley is a publisher of text books. It’s common for a publisher to print different editions of texts in various geographic markets and at different prices. Often, these editions are printed overseas or licensed to an overseas publisher, printer and/or distributor.

Kirtsaeng was a graduate student who figured out that certain English-language texts published by Wiley for the Asian market were significantly cheaper than their domestic counterparts. So, he was able to finance his education by buying up foreign editions and selling them stateside for less than the US editions while still making a tidy profit. That is, until Wiley sued him for copyright infringement. Cutting to the chase of the typically lengthy and arcane Supreme Court opinion, complete with a dissent and concurrence, the Court concluded that despite the provisions of the import clause, the first sale doctrine applies to works lawfully made overseas.

Unless one is selling lots of stuff overseas or is setting out to be a text book arbitrageur, the Kirtsaeng decision is not likely to have an immediate impact on your life. However, another decision involving the “first sale” doctrine, Capitol Records, LLC v. ReDigi, Inc., (No. 12 Civ. 95 (RJS)), may have a more direct impact on music lovers. In this March 30 decision from the Southern District of New York, the court essentially held that digital really is different.

Let me explain. ReDigi is a recently launched service that claimed to allow people to sell their “used” downloads of music. A user would download the company’s software, which would go through their computer’s hard drive and locate eligible files, e.g., downloads lawfully purchased through iTunes and not ripped from a physical CD. The files would be uploaded to ReDigi’s cloud server so that customers could purchase the “used” recording at a discount. ReDigi would take a cut of the sale as its commission fee.

Capitol sued, claiming copyright infringement and other unpleasantness and ReDigi replied that it was lawfully facilitating a digitized record swap. In other words, since the downloads were lawfully purchased, the “first sale” doctrine applies, just like reselling physical copies of recordings at a garage sale. Without going into all the technicalities (and the techno-geeks among you should do so as the opinion contains a digestible discussion of the first sale, direct, contributory and vicarious infringement and fair use), the Court concluded that despite ReDigi’s claims, additional copies of the music were being made and distributed – even if the “seller” of the “used” file no longer had access to it. If the music is transferred first to the cloud, that’s one copy and if someone purchases and downloads the “used’ music file, that’s another copy. The “first sale” doctrine only applies to that particular copy; it doesn’t allow you to make and distribute more. Then, there’s the concern that ReDigi will only search the particular machine on which the software has been downloaded. Other copies of the “used” file could easily be saved on other devices.

ReDigi claimed that the Court’s analysis is a hypertechnical view of the law that prevents the first sale doctrine from operating in the digital world. The Court, however, was not convinced and cited examples of handing over your hard drive or your iPod if you want to legitimately resell your particular copy of a digital file. Because of the distribution of unauthorized copies of copyrighted works as part of its service, the Court found ReDigi guilty of direct, contributory and vicarious copyright infringement.  The Court concluded that whether these incidental copies and distributions should matter is a policy matter for the legislature – current copyright law is clear.

What does it all mean? You can bet there will be much lobbying of Congress as to whether and how the “first sale doctrine” should apply in the multinational and digital environments. But as for now, I wouldn’t advise opening a used download store.

Bunheads: My Guilty TV Pleasure

So I’m hooked on Bunheads. No, I don’t have a thing for teenage girls (or boys) in tutus.  I’m actually a fan of Amy Sherman-Palladino’s writing.  I first encountered her allegro vivace rhythmic patter peppered with pop culture references when I used to watch Gilmore Girls with my (now ex) wife.

It’s basically the same show. Both take place in quirky small towns about a two-hour drive from a major metropolis. Michelle is Lorelei 2.0, although two-time Tony winner Sutton Foster is a better Broadway babe than Lauren Graham. (Getting to watch Ms. Foster belt one out in a leotard is definitely a reason to tune in.)

And Bunhead’s Sasha is kind of a Gilmore Girl’s Rory reboot, too, especially since Michelle’s her surrogate mother since her parents conveniently left town. Then there’s Kelly Bishop: mother on Gilmore Girls, now mother-in-law on Bunheads. And Liza Weill has a recurring character on Bunheads, just as she did on Gilmore Girls. I’m just waiting for a special guest appearance by Edward Herrmann.

But, again, I watch it for the writing – and the quirky, if sometimes caricatural characters.  I may be biased, but the dialog is better in the scenes between the adults than the teens. I recently read an article about Ms. Sherman-Palladino and her obsessive Bunheads creative process through the ArtsJournal blog.  As to her writing style, she says:

“Well, my writing is very rhythmic,” she said. “It’s got a very specific beat to it and its part of the reason that our show is pretty much [acted] verbatim, word for word. It’s not just my Mussolini complex. Sometimes you drop ‘and’ or ‘a’ or ‘the,’ it just shifts the rhythm off and it doesn’t land the way it’s supposed to land, and that I think it’s like a dance, almost.”

Ms. Sherman-Palladino was a dancer before she became a writer and it shows. Her style is similar to that of Diablo Cody, of Juno fame. Ms. Cody was also a dancer, albeit of a more exotic kind, having exchanged her lap dances for laptops.  The rapid-fire delivery owes much to the screwball comedies of the 1930s, Bringing Up Baby, with Katharine Hepburn and Cary Grant being a prime example of the genre. While the style has a certain artifice   – and in unskilled hands it becomes cloying quickly – the jazz-like rhythms and swinging pacing enhance the wit and weirdness of it all.

I think I respond to this writing because, as a musician and songwriter, I also write rhythmically. Readers of my blog and other writings will notice the frequent use of alliteration and rhyme as well as a certain cadence or beat to it. While it’s my natural style, I do cultivate it a bit  (particularly in this post) as it makes blogging on otherwise dry and technical topics less plodding so that hopefully people will really read what I write.  And, I too, will add or subtract a word in a sentence or a lyric to make sure it “sounds” right.

But Bunheads also engages my brain – at least the music publisher part. Watching a show with plenty of set-piece musical numbers and many scenes of dance rehearsals, I sit there thinking things like: “who’s the music supervisor on the show?” and “did they do a MFN deal for the music and master with the label and publisher(s) for the featured choreographic performance of They Might Be Giants’ Istanbul (Not Constantinople)?

And while there’s shows like Glee and all the singing contest shows, there’s something to be said for one like Bunheads that features numbers from classic musicals, as in recent episodes, where, as part of the plot, Sutton’s Michelle sang show stoppers from Bells Are Ringing and Sweet Charity.

But the season’s just ended and it’ll be quite awhile before I can get another fix. At bottom, Bunheads is a guilty pleasure. Sure, it’s a confection, but  more like what you buy at the bakery rather than the wrapped nougat one gnaws on from the newsstand – not that there’s anything to snicker about the latter. It’s light entertainment, sometimes informative, with occasional sprinkles of meaning – hopefully like my blog posts…:)

The Lawyer as Artist

Yesterday, I came across a blog post that was highlighted by The Dean’s List, Dean Kay’s daily listing of online articles relating to the music business and copyright law. I highly recommend it to anyone who’s interested either topic. Anyway, the first article Mr. Kay listed was one by Mark A. Fischer, Esq., of the  Duane Morris firm, called “Artists, lawyers and specialness.”  I agree with most of what Mr. Fischer had to say. Artists are very special and as Mr. Fischer aptly points out, they are different from practitioners of other professions in that they are creative and are often willing to pursue their craft without compensation.  After all, we lawyers, wouldn’t be in the lawyering business purely for the love of it. We do it to pay the bills.

However, here’s where I take some slight exception to Mr. Fischer’s comments. And, I suspect that upon further reflection even he would agree: the best of us, in any profession, whether law, medicine, banking, teaching, hairdressing, auto repair or computer programming, are creative. We don’t just do things the way everybody else does. Most of us who take pride in our work try to be the best at it and that often entails trying (and sometimes failing) to do something new and different.

And then there are those of us lawyers who fancy themselves creative artists, as well. There have been many who successfully combined legal and literary careers, such as Louis Auchincloss, Scott Turow and John Grisham.  As a songwriter and performer, I feel I can connect with artists, especially musicians, in a way that other lawyers can’t. For example, last week I met with a client, an aspiring pop singer-songwriter and his manager. We were brainstorming on how to move his career forward and he was pleased that I spent as much time talking about and analyzing his music, from chord progressions, to lyrics, to piano licks, as I did going over legal and business issues.

As a lawyer, I’m always looking at new ways of approaching problems. And it’s that creativity with respect to my legal work that’s made me realize that it’s often hard for artists, whether musicians, writers, dancers or painters, to have access to convenient, affordable legal advice. So, I’ve put my creativity to the test, done some homework and will soon be announcing my new service targeted to artists of all stripes. So, stay tuned….Artist at work…

On Presidents, Copyright and a King

As we all know, today was the ceremonial inauguration of Barack Obama for his second term as President (although the official one was yesterday). Many have pointed out how fitting that the inaugural of our first African American President would occur on the day honoring Martin Luther King, Jr.   But while Mr. Obama took the oath of office on one of Dr. King’s personal bibles and alluded to his ideals, the President did not choose to quote Dr. King as he did the Declaration of Independence.

And what if someone wanted to make an artistic statement quoting speeches by President Obama or Dr. King? Anyone who may be inspired to incorporate any of President Obama’s speech it into a musical or other creative work should not have any difficulty doing so. Section 105 of the Copyright Act states  “[c]opyright protection under this title is not available for any work of the United States Government.” Section 101 defines a “work of the United States Government” as “ a work prepared by an officer or employee of the United States Government as part of that person’s official duties.”  Certainly, the President is an officer of the United States Government. And while the  Constitution doesn’t require the President to deliver an inaugural address (unlike the State of the Union address), every President since Washington has done so.

However, many would be surprised that Dr. King’s very publicly delivered “I Have a Dream” speech is protected by copyright and has been registered in the U.S. Copyright Office. And while Dr. King, like President Obama, was a public figure who delivered many noteworthy speeches, he was not a government officer or employee. As with every other private citizen, Dr. King (or his estate) was entitled to obtain copyright protection for the fruits of his creative labors.

Now, I’m not suggesting that the President chose not to quote Dr. King because of copyright considerations.  A small quotation, along the lines of what Mr. Obama used from the Declaration of Independence would undoubtedly have constituted fair use.  But it would be a different matter altogether if someone wanted to incorporate Dr. King’s speech in musical composition or other artistic work.

And while quoting from most government documents probably won’t make for great artistic achievement (although John Adams did try with “Doctor Atomic”), some Presidential utterances are worth remembering.   So, feel free to liberally quote President Obama’s inaugural address – or those of Presidents Reagan or either Bush if you’re so politically inclined (although you may still need to get permission for any audio or video recordings of them), but be careful  when dealing with the public speeches of private citizens.  If you want to use portions of the “I Have a Dream” speech or any of Dr. King’s other well-known (and copyrighted) works, in your own creative endeavors you will probably need to obtain permission – a topic I’ve previously written about.

Getting Permission to Use Copyrighted Texts in Musical Works

For those of you who read my articles on the commissioning process, you’ll recall that one of the things a commissioning contract will typically contain is a clause stating that you’ve cleared the rights to any copyrighted text or music you use in your work. Music publishers put similar clauses their writer agreements and labels have them in their artist contracts, too.

Let’s say you’re a composer and you want to set a text by your favorite poet. If your selected sonneteer happens to be Shakespeare, Elizabeth Barrett Browning or some other person who’s been dead for several hundred years, then there’s no problem since their works are in the public domain. But what if the versifier of choice is only more recently deceased or even happens to be a living, breathing writer like you? Then you’ll need permission to use the poem. Why? Because their works are still under copyright. Setting a copyrighted text to music constitutes making a “derivative work” of that text and the Copyright Act gives the copyright owner the exclusive right to do that in Section 106. And trust me, you can’t claim “fair use” if you use a whole stanza, let alone an entire poem, for the text of your composition.

You’ll always want to get permission before you write that magnum opus. If you write the piece first, especially if it’s a large-scale commissioned work like a song cycle for tenor and orchestra, there’s a good chance you’ll find yourself in deep doo doo if the copyright owner of your chosen text just says “no,” which they have every right to do. Weeks or months of precious writing time will be wasted and you’ll undoubtedly miss the delivery deadline under your commissioning agreement. Even if you can get permission, the rights holder will be able to drive a very hard bargain on the price and may even demand a piece of the copyright to your work if they know you’ve already written your masterpiece around their poem.

So whose door do you go knocking on? It could be a publisher or a literary agent. Start with the copyright page at the front of the anthology that contains the text. Send a short, polite note to the permissions department of publisher listed for the text, explaining who you are and what kind of kind of work you wish to write. Also ask the publisher to refer you to the appropriate rights holder if they aren’t it.

As for the specific rights you’ll need, these include the right to perform your work indefinitely, to have printed music made available and to be able to record the work, both in sound recordings and in audiovisual works. You’d be amazed how often composers, thinking only about the premiere, will only get the right to perform the work for a short time and neglect to obtain, or even ask for, the necessary publication and recording rights.

You’ll also need patience and persistence. It can take anywhere from a few weeks to several months of follow-up emails and voicemails to get a response and then negotiate a deal once you get to the proper rights holder. Don’t pester and always be polite. Otherwise, you’ll guarantee a slow — and negative — response.

The publisher of the text will want an appropriate copyright notice in any concert programs, printed music or recordings. Although they’ll sometimes insist upon a portion of the writer’s share of royalties (i.e., income), you should avoid giving them a share of the copyright (i.e., ownership) in your work. Flat-fee buyouts in the range of $500-$1,500 are common, especially for choral works written for the educational market, although these fees can range from nominal (e.g., $50) to enormous ($5,000).

The process is very similar if you want to use a quotation of a copyrighted musical work. Start by contacting the business affairs department of the music publisher for the work. If you don’t know who the publisher is, you can search on the website of the appropriate performing right organization. ASCAP, BMI and SESAC all have searchable online databases for their repertoire.

An earlier version of this article was published on BMI’s Songwriter 101 web site on October 8, 2010.

The Chess Game of Fact Checkers As Applied To Music

“You are entitled to your own opinion, but you are not entitled to your own facts.”

– Sen. Daniel Patrick Moynihan

For the past several election cycles, a cottage industry of fact-checkers emerges from their pumpkin patches each fall to assess the credibility of candidates’ claims.  One of most-quoted of these, FactCheck.org, is affiliated with my alma mater.  These groups’ findings are not only cited by the media but are also used by partisans of both Presidential candidates.  And while neither the press nor the candidates are free to plagiarize the articles produced by fact-checkers, the facts themselves are fair game.

In fact (sorry), it seems fact-checkers have themselves become the story. Yesterday, CBS Sunday Morning dedicated an entire segment to the role of fact checkers.  It seems these trufflers of truth have become pawns in the political chess game of electoral politics, with each campaign’s spinmeisters trying to use the checkers to “king” their candidate by persuading the voters that their opinions are facts.  In keeping with the non-partisan nature of my posts, I’ll not comment on which candidate appears to have racked up the most misdemeanors from the fact checkers – but I do have my own opinion!

As it turns out, the late Senator Moynihan is absolutely right from a copyright perspective. Section 102 of the Copyright Act not only states what is subject to copyright, including various forms of musical works and sound recordings, but also sets out many things that are not subject to copyright protection. For example, there is no copyright protection available for any “idea, procedure, process, system, method of operation, concept, principle, or discovery.” And while the statute’s list doesn’t explicitly include facts, the FAQ on the Copyright Office’s web site does state that “[c]opyright does not protect facts…” More importantly, the Supreme Court has said that facts are not copyrightable.

Facts are either ideas or concepts (e.g., 1+1=2) or discoveries (e.g., it’s a fact that the earth revolves around the sun).  So, the candidates and their minions, along with the media and everyone else can freely use the findings of fact-checkers as to what a particular candidate said or didn’t say and whether his proposals are better than the other guy’s.  As I said in my last post, as with fair use, the exclusion of facts, concepts, discoveries and ideas  — as opposed to the individual expression of them, reinforces our First Amendment freedom of speech as nobody can monopolize an idea.

These concepts apply not only to political discourse, but to musical expression, as well.  Section 102 states that copyright applies to “original works of authorship.” It is the individual expression of an idea or concept, not the concept itself, that is subject to copyright protection. So, what does this mean in a musical context? Imagine if C.P.E. Bach had been able to get a copyright in sonata form. Or if Bach and Vivaldi had sued each other over the exclusive right to use a circle of fifths?

It would be absurd to think that Jerome Kern couldn’t use that chord progression  in “All The Things You Are.”  Structural forms (such as a 32-bar AABA song or a 12-bar blues) and chord progressions are among the things that are generally considered to be non-copyrightable concepts or ideas.  One would probably be justified in having the opinion that they’re musical “facts.” Just think of the all the songs and standards written on “blues” or “rhythm” changes.  Or consider the thousands of symphonies, concertos and sonatas that use sonata form. Steve Reich has copyrights in his works,  “Piano Phase” and “Violin Phase” but he can’t prevent another composer from utilizing phasing techniques in their own works. The same principle would apply to performance techniques: there’s no copyright for wind players playing double stops or practicing circular breathing.

So, feel free to marshal as many facts as you can to support your opinion as to which candidate “won” tonight’s final Presidential debate.  Or write and perform a new work on the topic using whatever forms and techniques you like. I only ask that you not post any politically-oriented comments in response to this piece. That said, your opinions as to copyright and music are most welcome.