Why The Obama Big Bird Ad’s Going Bye-Bye

Since last week’s Presidential debate, Big Bird’s eight-foot high profile has grown even larger.  It started with a comment that Republican contender, Gov. Mitt Romney, made to the moderator, Jim Lehrer of PBS , about cutting federal funding for PBS programs, including Lehrer’s own NewsHour and Sesame Street. Mr. Romney specifically singled out Big Bird for the budget ax.  Thereafter, Big Bird, who claims he’s normally in bed well before 11:30 p.m., made a guest appearance on Saturday Night Live’s Weekend Update to address the issue.  Being non-partisan, however, Mr. Bird declined to make any political pronouncements, stating, “No, I don’t want to ruffle any feathers.”

Unfortunately, he’s managed to do so, courtesy of a TV ad from President Obama’s campaign.  Prominently featuring Big Bird and the familiar green Sesame Street  sign, the ad has a satiric quality to it that one doesn’t typically see in Presidential campaign ads. It seemed, at least to me, more like one of the fake ads produced by Saturday Night Live. But it’s real and Sesame Workshop, the company that owns the rights to Sesame Street and its many characters, made it known that they are not amused.

Sesame Workshop’s demand that the Obama campaign cease using the Big Bird ad has been widely publicized.  But you might well ask, “doesn’t the President’s campaign have a First Amendment right to use Big Bird?” After all, “political speech” is the very core of our right to free speech.  And wouldn’t the use of Big Bird constitute “fair use” under copyright law? Wouldn’t it be considered a protected “parody”?

Well, probably not. Let’s first look at “fair use,” something that’s often misunderstood. Much ink has been spilled in recent years over so-called “fair use rights.” Actually, “fair use,” which is codified in Section 107 of the Copyright Act, is a defense to copyright infringement – not a “right.” And one of the purposes of “fair use” is to balance first amendment speech rights with copyright law’s limited monopoly.  Section 107 does state that use of a work may be “fair use” when used “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research….” Moreover, the courts have repeatedly held that there are no black line rules for determining fair use and that each decision is to be made on a case-by-case basis through an analysis of Section 107’s four factors. These include the “the purpose and character of the use”, such as whether it’s a “commercial use” and how much of the underlying work is used in the allegedly infringing work.  More recent cases also look to see if the use is “transformative,” meaning that the underlying work is not merely reproduced but is used in a new way.

One thing’s clear: just because it’s a political ad doesn’t mean you can use someone else’s copyrighted work.  The First Amendment guarantees free speech, but it doesn’t give you the right to freely use someone else’s speech.  A few years ago, Joe Walsh of The Eagles sued Joe Walsh the Congressional candidate over the use of one of his songs in a TV ad.  Many composers won’t allow their works to be used for political purposes. For example, Aaron Copland’s estate won’t allow the use of the iconic “Fanfare for the Common Man” to be used in political campaigns. A few years ago, when I was at Boosey & Hawkes, I was able to slap Comedy Central on the wrist for an unauthorized use of the Copland anthem on The Daily Show that was discovered by my staff. The result: a hefty license fee and some tickets to a taping of the show.

So what about the Big Bird ad? The use of the clip of Gov. Romney from the Presidential debate is likely  a fair use. It’s a short clip of a public, newsworthy event and the ad is commenting on Gov. Romney’s views and criticizing them.  With respect to Big Bird, it’s a bit more tricky.  He’s not the subject of the criticism, but his name and likeness is being used to criticize Gov. Romney’s statements.  And there’s an awful lot of Big Bird in the ad.

But, isn’t it a “transformative” use? After all, parody is one of the uses that may be considered transformative.  But, sometimes a parody is not a parody in the legal sense. The 1994 Supreme Court case of Campbell v. Acuff-Rose Music, Inc. (involving 2 Live Crew’s unauthorized use the Roy Orbison hit, “Oh, Pretty Woman” in one of its songs) and many subsequent cases, hold that a new work is a protected parody under copyright law only when it is commenting on, i.e., parodying, the underlying original work.  In the 2 Live Crew case, the Supreme Court found that the rap group’s song did, in fact, comment upon the Orbison hit.  In the Obama ad, it appears that the parody is directed not at Big Bird (the underlying copyrighted work), but at Gov. Romney. That would tend to defeat the parody defense. For example, it’s not a legally protected “parody” if you take a popular song and merely change the lyrics to comment on some topical issues of the day as opposed to scorning the song itself. But what about Weird Al Yankovic? Actually, Weird Al gets permission from the copyright owners of the songs he “parodies.”  And, as the Supreme Court noted in the 2 Live Crew case, the parody doesn’t have to be either good or funny.

So, it’s murky at best under copyright law as to whether the Obama campaign can use Big Bird in its ad without permission.  But it doesn’t end there. Remember the “Sesame Street” street sign? Sesame Workshop has a trademark in that famous logo.  Not surprisingly, there’s a “fair use” provision in the federal trademark act (that’s Section 33(b)(4) of the Lanham Act for you footnote freaks) and the courts construing it typically consider three factors, including whether the use of the mark suggests sponsorship or endorsement by the owner of the trademark.  Under that test, it looks like Sesame Workshop has a legitimate gripe about the use of its trademark “endorsing” the President’s position.

And remember, I mentioned the use of Big Bird’s “name and likeness.” That’s typically an area of law known as the right of publicity, which allows celebrities, often very dead ones, to make lots of money off of their name and likeness and to prevent others from cashing in without their consent.  However, unlike copyright and trademark, the right of publicity is a matter of state law, not federal law, and every state’s law is different. And while I know of cases where actors portraying fictional characters have successfully made publicity claims (e.g., George Wendt and John Ratzenberger suing over a “Norm” and “Cliff” robot impersonators), I’m not aware of any right of publicity cases involving characters such as the likes of Big Bird, Mickey Mouse or Spiderman.

So, the Big Bird ad, on intellectual property law grounds, is likely to fly the coop. However, that’s not why it’s going bye-bye. While I’m sure the lawyers working for the Obama campaign know that they’re not on solid ground, the Sesame Workshop folks aren’t likely to file a lawsuit. For one, Sesame Workshop’s gotten a lot of favorable free publicity.  But more importantly, the Big Bird brouhaha has a shelf life that will last only until the October 11 Vice Presidential debate and I suspect both sides know this and don’t want to spend a lot of money fighting over something so ephemeral.  Even if there weren’t any legal issues, I’d be very surprised if the Big Bird ad continues to air after this week, by which time it’ll be as fresh as last week’s leftover chicken.

Composing for Orchestras and Other Ensembles, Part II: Doing the Deal

Last time, I told you how you can find someone to commission you to write a new composition and how much you might get paid for your trouble. Now, I’ll outline the major deal points in a typical commissioning agreement so you’ll be able to deal the deal once you’ve gotten the gig.  A commissioning agreement will cover most, if not all of the same terms whether you’re writing for the Chicago Symphony, New York City Ballet, San Francisco Opera or any number of smaller ensembles. Given the current labor and economic troubles of the Minnesota, St. Paul, Atlanta, Indianapolis and other orchestras, it’s probably better to pursue  a commission from a regional ensemble or from colleges and conservatories like Indiana University and Juilliard.

So, let’s assume you’ve convinced the Schenectady Chamber Arts Brigade to pay you $18,000 to compose that 12-minute piece for soprano, accordion, bag pipes, didgeridoo and percussion you’ve always wanted to write. Now it’s time to negotiate the commissioning agreement.

What goes in the SCAB contract? Of course, your name, the commissioner’s name, the length of the work and the instrumentation all are spelled out. You’ll also agree that the work is original, that it doesn’t infringe upon anything, that any text, samples or quotations you include have been cleared and that the agreement won’t violate any other contracts you’ve entered into.

Typically, you’ll be paid your fee in two parts: half on signing the contract and the rest when the score to the work is delivered. This brings me to a major pitfall: preparing the actual written music. Let’s assume the SCAB piece requires 10 performers plus a conductor. They’ll each need music. And that costs money. Even if you write with Finale or Sibelius, it could cost a few grand to create performance-quality score and parts for this piece. These costs can exceed $10,000 for orchestral works; a full-length opera, with soloists, orchestra and chorus, can easily cost more than $50,000 to prepare. Make sure that in addition to the commission fee, there’s a provision to pay for some, if not all, of the prep costs.

So what does SCAB get for the 18 grand it paid you? They get one or more exclusivities. You’ll always want to limit the exclusivities, as they prevent others from performing your piece and earning you royalties, which can be in the hundreds of dollars per performance from the public performance fees and renting out the score and parts. Any commissioner will get the exclusive right to present the world premiere of the work. If you’ve got a lot of clout or a good lawyer, that’s all the commissioner may get.

Other typical exclusivities include: the right to perform the work for a certain period of time (e.g., one year), the right to present premieres in other territories and the right to make the first recording of your new masterpiece. If there’s more than one commissioner, internal squabbles over who gets the world premiere, recording rights and what territories are reserved for each of them will also need to be resolved. I once engaged in major international diplomacy over several months to sort these issues out in one agreement among six different commissioners in five different countries on both sides of the Atlantic!

There should be limits on liability in the event of late delivery or failure to complete the work. I also like to spell out the precise dates and venues of any performances covered under the contract. I also try to get the commissioner to give the composer a free archival recording of the premiere to help secure future performances of the work, although some of the major orchestras will resist this because of union issues.

There are certain industry customs and they are often somewhat different whether you’re dealing with American or European commissioners. And commissions for major works such as operas, symphonies and concertos are often shared among several commissioners. This can be daunting even for the most business-savvy of composers. If you’re a self-published composer you should definitely consider hiring a lawyer experienced in negotiating these deals to help you.

Finally, make sure the commissioner pays reasonable travel, hotel and per diem expenses if the world premiere takes place far away from where you live, and that you get free tickets to the world premiere for your family, friends — and your lawyer.

An earlier version of this article was published in BMI’s Songwriter 101 site on August 25, 2010.

Composing for Orchestras and Other Ensembles, Part 1: Getting the Gig

Have you ever wanted to write a symphony, a tone poem for wind ensemble or an opera? Knowing something about orchestration certainly helps. But you should also know a bit about the business of writing these kinds of works, which like great music in any genre, has its unique twists and turns. Pulitzer-Prize winners like John Adams, George Crumb, John Harbison, Jennifer Higdon, Steve Reich and Christopher Rouse don’t simply sit down to write a 20-minute concerto on spec.

These composers are commissioned to write new works. And it’s not just a handful of Pulitzer Prizers and ivory-tower academics that get gigs to write works for string quartet, percussion ensemble or choir. Jazz musicians like Billy Childs, Chick Corea, Paquito D’Rivera, Wynton Marsalis and Brad Mehldau have also gotten commissions to write concert works and there are many rock-oriented writers who’ve crossed over as well. So whether you’ve got a doctorate from Juilliard or are just a graduate of Mom & Dad’s garage, you, too could be commissioned to write new music if you’ve got the talent and desire to pursue it.

Major symphony orchestras, opera companies like the Metropolitan Opera and Houston Grand Opera as well as presenters like Carnegie Hall commission new works. But smaller, regional orchestras, opera companies and venues also do so and are sometimes more willing to take a risk on a lesser-known composer. Conservatories also commission works for their wind ensembles and the fees they pay rival those paid by major orchestras. Individual patrons, from billionaires to your local dentist or fast food franchisee, also commission pieces.

Now you’re thinking, “How do I get me one of them commission gigs?” Classical publishers like Boosey & Hawkes and G. Schirmer have Composers & Repertoire departments with trained professionals who seek new commissions for their composers. However, organizations like New Music USA (which formed as a result of the merger of Meet the Composer and the American Music Center), which has an excellent, free guide to the commissioning process and the American Composers Forum  offer resources to assist the self-published composer.  Some organizations like Chamber Music America offer grants to classical and jazz composers to write new works. The friendly folks in ASCAP”s concert music department and BMI’s classical department can also provide guidance.

So, how much can you get paid to write that concerto for electric guitar and orchestra? The fee depends upon several factors, including the status and experience of the composer, the length of the piece and the instrumentation. A five-minute piece for sax quartet and vibes by someone straight out of Berklee won’t command as high a fee than a work for full orchestra written by a living legend like Elliott Carter shortly before his 103rd birthday.

Assuming you’re neither a novice nor a superstar, you might get paid around $2,000 for a five-minute work for voice and piano. A work for a handful of musicians that’s less than 10 minutes long might garner a fee in the range of $7,500, while that 20-minute concerto for electric guitar and orchestra might get you somewhere in the range of $30,000 or more. If you’re lucky enough to be asked to write a full-length opera for a major opera company, you could be paid well into six figures, while a one-act for a small company may get you something in the range of the fee for that guitar concerto.

Finding a patron and agreeing on the type of work and the fee is just the beginning of the process. In Part II, I’ll discuss the major deal points as well as some pitfalls to avoid.

An earlier version of this article was published in BMI’s Songwriter 101 site on July 28, 2010.

Pouring Out My Soul In Song

Of course, they’re forecasting torrential rain tomorrow. Just when I’ve got my first gig since July. Tomorrow night is my latest return engagement at The Cornelia Street Café in Greenwich Village. I’ll be doing a set of my own songs at 6:30pm with a little teaser at about 6:15pm for anyone who gets there after we do our sound check. The prognosticators of precipitation are predicting that most of the deluge will occur during the daytime. Hopefully it’ll be somewhat dry by the time any of you may venture forth to hear me play. And I’ll be dry at least until my set is done.

If you’re curious as to what this lawyer’s songs are like and how and why I go about writing them, you’ll have to check out the blog post on the Cornelia Street site, which, of course links you to their earlier interview with me from my last outing in July. So this is kind of a meta–blog post of a quasi-meta-blog post, if you will. And while my lawyerly paranoia always makes me feel like I’ll be playing to a room where my audience consists solely of the Cornelia Street staff, it hasn’t happened yet and people in addition to my friends and relatives usually have a good time. We certainly do up on the bandstand.

And while I’m grateful for the recognition of my talents as an attorney and teacher, anyone who writes and performs his own music wants to be appreciated as an artist as well. So, come on down tomorrow if you can or tell your New York friends to check it out. My dear friend, Cathy Thorpe, will be sharing the stage with me, singing the girl’s tunes as my soprano ain’t what it used to be. And Jerry DeVore and John Bishop are a great rhythm section on bass and drums, respectively. And I’ve been told that tomorrow is the anniversary of President Ford signing the Copyright Act of 1976, our current copyright law, which makes for a truly auspicious occasion.

And please also check out my prior posts as well, leave a comment in the box below and maybe even take my copyright quiz. It’s fun, free and you might learn something. And now, back to the woodshed….

Was Steve Jobs Good or Bad for the Mus(ic)?

Last week, I was observing Yom Kippur, along with other members of The Tribe. It’s a time when we not only atone for our sins, but also reflect upon the past year, especially remembering those who’ve left us during that time. Growing up, it was not uncommon to ask if some prominent world leader or captain of industry was good or bad for the Jews. Often, it was a mixed answer. Having contemplated the passing of Steve Jobs on an empty stomach, I have similar mixed feelings about his legacy on the music front while fully appreciating the visionary he was in creating and marketing technology that’s changed our lives.

Let me explain. Try to remember a time before there was iTunes. It was truly the darkest of the dark ages for the music business, especially the recording industry.  There was this relatively new format, MP3, that allowed music files to be compressed so that they could easily and quickly be distributed over the internet. And then there was this thing called Napster that allowed millions of people to download millions of copyrighted musical tracks of their favorite artists – for free! And then there were its progeny like Grokster, Gnutella and Kazaa spreading the gospel of free music.

The labels justifiably cried foul because this “sharing” was really stealing despite the sophistry of Google shills such as Larry Lessig and his ilk. But the labels largely had themselves to blame.  Why? Well, Napster, Grokster, SterSter (ok, I made that one up) and all the others wouldn’t have gained so much traction if the labels had actually listened to their customers who were demanding the availability of their music in this new format. Instead, what did they do? They dragged their feet, locked up the content with “digital rights management” tools or DRM and formed alliances that distributed only some, but not all of the major label’s content and largely locked out the indies. With no really good legitimate download service to cater to this market, the pirates naturally stepped in. The labels spent the next several years wringing their hands, suing their customers and clinging to these label-owned download services, the names of which I don’t even remember anymore.

Enter Steve Jobs. He created this thing called the iPod. Perhaps you’ve heard of it. Anyway, Apple’s goal wasn’t to sell music but to sell lots and lots of iPods – which they did. But they needed the music to be legitimately available for people to put on their iPods. So he created iTunes. Yes, it took someone outside of the record industry to finally create a viable, legitimate download service and to get the labels  on board. And while some naysayers in the industry said you couldn’t compete with free, others of us who drink bottled water (I suspect Steve Jobs did, too) maintained you can compete with free based upon quality and service. And he was right. And, at least some people started paying for music again. And it was good.

So what’s wrong with this picture? Well, nothing that time and a little market evolution can’t fix. Remember, Jobs’ goal was to sell iPods, not music. So he priced the downloads cheaply and at a one-size-fits-all price point of 99 cents. And as someone who has been – and soon will be again – a music publisher, he created a pass-through so that iTunes only got permission from the labels. The music publishers who represent the songs that are recorded by the labels and the songwriters who create them didn’t get paid by iTunes but had to rely on the labels to account for their share. OK, the music publishers were a little groggy when this was going down and didn’t protect their turf as well as they could have. Why is this bad? Well, record labels have occasionally been known to employ some creative accounting practices when it comes to paying artists and publishers. But these things can and will be addressed and fixed.

The larger issue is a cultural one. Awhile back a colleague of mine and I were musing about the business over single malt scotch. He’s a few years older than me and told of how appliance stores used to throw in a free box of Tide (remember powdered laundry detergent?) with every washer. Like Steve Jobs, all the appliance store cared about was selling the hardware. My friend said that music has become like the box of Tide. Not an article of value in and of itself, but merely the ancillary content to be run on the hardware. While it’s great that people are paying for this “content”, treating music as a fungible commodity ultimately devalues it and the craft and artistry of those that create it. That’s why I feel Steve Jobs’ legacy in the music business is mostly – but not completely – a positive one. At least not yet.

It Takes (At Least) Two To Tango: Using Pre-Recorded Music In Audiovisual Works

So you’ve made a funny video of your cat that you want to post on YouTube and you think that if you put the Stray Cats’ Stray Cat Strut as the soundtrack it would be really groovy. Now, you know a little something about copyright law and you actually do the right thing and get permission from EMI Records to use the “master” in your video.  Correctly feeling that you’ve achieved a minor miracle by getting someone in the synch licensing department at a major label to pay attention to your request, you think you’re done, right?

Wrong. To use pre-recorded music in an audio-visual work, whether it’s a feature film, TV show, video game or a video on a web site, like YouTube, you need the permission of both the copyright owner of the recording (typically a record label) and the permission of the copyright owner(s) of the underlying song that’s embodied in the recording (typically one or more music publishers).  Why? Because the Copyright Act says so.  The permission that you need is called a “synchronization” license – as you’re synchronizing music to picture – or a synch, for short.

To better understand this, think about songs that have been “covered” a lot. Most jazz fans like me are familiar with the Johnny Hartman recording of Billy Strayhorn’s Lush Life, which many think is the definitive rendition.  My favorite is Nat Cole’s – the original, not the Cee-lo Green remix although I like that, too.  But there are dozens of recordings of that standard to choose from, including covers by Johnny Mathis, Linda Ronstadt and Robert Goulet.  The reason for so many covers is that the song is itself a copyrighted work, with a legal life separate and apart from any individual recording of it. And the copyright to the song is likely owned by one or more music publishers.

Therefore, in order to secure all the rights you need have your cat struttin’ away, you have to get the permission of the owners of the song, EMI Longitude Music and Rockin’ Bones Music, Inc. (at least that’s who BMI’s web site says are the music publishers) and permission of the owner of the particular recording of the song, EMI Records.  That means in order to put the track of your choice to your swingin’ cat video, you need to get three companies to dance: the record label and two music publishers.

Well, you say, “I’m not selling the video. Do I still need permission? And if I just put it up on YouTube or my own web site, what’s anybody really gonna do about it?” You’ll have to read my next post to get the answers.  Stay tuned.

© 2011 Marc D. Ostrow

Stripping Out – Not Stripping To – Music

A few months ago I reconnected with a friend of mine from law school who lives down South. She came to my last gig at Cornelia Street Café in July and we hung out at my Club the next day. Anyway, she inspired me to write a song in the style of a 60s pop tune about this, called “Who’s That Blonde Girl” but that’s another story and if you want to hear the song you can catch my upcoming gig at Cornelia Street on October 19.

Anyway, her boyfriend is a jazz musician and she’ll occasionally pepper me questions about the music biz or point out interesting news articles, like this one from NPR.

Part of the article dealt with why some popular TV series, especially those that used a lot of period pop music like WKRP in Cincinnati and The Wonder Years haven’t been released for home video.  It doesn’t have to do with any producer or actor disputes. Believe it or not, the reason is the music. It’s too expensive – or so the producers of those shows claim.

When I was at Boosey & Hawkes, I personally experienced both sides of the coin.  At the time, we licensed some pretty cool music, including Steve Reich and some other works to be used as underscore in The Sopranos. But when the shows were released on DVD, they stripped out the music – and not just the B&H tracks – and replaced it with cheaper library music.   It wasn’t that the music supervisors and clearance people weren’t aware of the need for home video rights.  Home video and other options are typically negotiated upfront.  But the surprising thing here was that the Sopranos people didn’t even try to negotiate with us. They just assumed clearing the tracks would be too expensive and replaced them.  This happens a lot in TV these days.

I find this troubling as the consumer is buying a product that is different from what they saw on TV and what they expected to purchase. Imagine if they stripped out James Gandolfini and put in some other actor for Tony Soprano and didn’t tell anyone? OK, the music isn’t as important as the lead actor, but try telling the directors of these episodes that their artistic vision is being altered for the sake of saving a few shekels.

On the other hand, we were able to get some hefty fees from the producers of Monty Python’s Flying Circus when they came to “renew” a home video license and my crackerjack synch licensing executive – or Senior Music Crisis Counselor as she preferred to be called – discovered there was no license to renew. I would like to think we’d have been a bit more charitable if those guys were up front about their past infringements rather than trying to slip one by us.

It doesn’t serve the creators of the shows or the public who wants the ability to enjoy them again to have a system where music has to be stripped out. Given the ability to negotiate options up front for home video and other releases and the possibility that less expensive music could be substituted, the producers, music publishers and labels should be more flexible in licensing these rights, especially so that classic shows that used lots of good music can be reissued and enjoyed by past and future fans.

The Blog Is Back

Dear Readers:

It’s been way too long since I lasted posted anything on my blog. It’s not that there hasn’t been anything interesting to write about in the realm of copyright, music, my cats or any other myriad topics like “why can’t Roger Federer convert two match points?” No, I’ve just been too focused on other things: launching a new business for classical and jazz composers, assisting my clients with their legal issues, teaching college classes on music publishing and the recording industry, losing 20 pounds, doing a gig at Cornelia Street Café, writing new songs in preparation for an October 19 gig and finally learning to hit a one-handed topspin backhand.

However,  my friend and professional butt-kicker, Nancy Tierney, tells me that if I really want my law practice and my new business – which I hope to launch in the beginning of next year –  to soar, I’ve got to keep this blog thing going on a regular basis.  So, I’m going to update the blog by starting with some re-posts of articles that originally appeared on BMI’s Songwriter101.com site, where I am a member of the “faculty” (check out the site in a month or so for some new articles on Grand Rights and other topics) as well as some new musings written just for you.

So, if you’re interested in music, tennis, copyright and cats, please check back here regularly.  And if you haven’t already done so, please take my Copyright Quiz. Nancy says I should post something once a week and I’m going to try very hard to do it because I really don’t want bruises on my behind.  Comments are always welcome and appreciated. Thanks for reading.