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

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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.

A Small Claims Court for Copyright Claims?

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Although the shutdown of the federal government has justifiably grabbed most of the headlines, and despite this week [October 3] being labeled “Hell Week” for classical music, something potentially good for composers, self-produced recording artists, visual artists and other artistic creators was announced: On September 30, just before the government shut-down, the Copyright Office released a 155-page report – plus appendices – outlining recommendations for the equivalent of a voluntary small claims court for copyright claims, primarily infringement.

The full report is available here. The majority of the report deals with legal niceties such as constitutional authority for a copyright small claims tribunal, subject matter and personal jurisdiction issues, analogues to other specialized tribunals and the scope of clams this copyright tribunal would handle.

However, the Copyright Office summarized its recommendations as follows:

  • Congress should create a centralized tribunal within the Copyright Office, which would administer proceedings through online and teleconferencing facilities without the requirement of personal appearances. The tribunal would be staffed by three adjudicators, two of whom would have significant experience in copyright law – together having represented or presided over the interests of both owners and users of copyrighted works – with the third having a background in alternative dispute resolution.
  • The tribunal would be a voluntary alternative to federal court. Its focus would be on small infringement cases valued at no more than $30,000 in damages. Copyright owners would be required to have registered their works or filed an application before bringing an action. They would be eligible to recover either actual or statutory damages up to the $30,000 cap, but statutory damages would be limited to $15,000 per work (or $7,500 for a work not registered by the normally applicable deadline for statutory damages).
  • Claimants who initiated a proceeding would provide notice of the claim to responding parties, who would need to agree to the process, either through an opt-out mechanism or by affirmative written consent. Respondents would be permitted to assert all relevant defenses, including fair use, as well as limited counterclaims arising from the infringing conduct at issue. Certain DMCA-related matters relating to takedown notices, including claims of misrepresentation, could also be considered, and parties threatened with an infringement action could seek a declaration of noninfringement.
  • Parties would provide written submissions and hearings would be conducted through telecommunications facilities. Proceedings would be streamlined, with limited discovery and no formal motion practice. A responding party’s agreement to cease infringing activity could be considered by the tribunal and reflected in its determination. The tribunal would retain the discretion to dismiss without prejudice any claim that it did not believe could fairly be adjudicated through the small claims process.
  • Determinations of the small claims tribunal would be binding only with respect to the parties and claims at issue and would have no precedential effect. They would be subject to limited administrative review for error and could be challenged in federal district court for fraud, misconduct, or other improprieties. Final determinations could be filed in federal court, if necessary, to ensure their enforceability.

Addressing the extremely burdensome time and expense for creators to pursue a copyright claim is a good thing and this report is definitely a step in the right direction. For example, the report states that for a copyright case that’s worth less than $1 million, it typically costs over $350,000 to litigate it and around $200,000 of that is spent on “discovery”, i.e., document requests, depositions and interrogatories. Most artists, including composers, don’t have the resources to pursue a copyright infringement claim – or defend one — unless they qualify for representation by VLA or a similar organization.

Wearing my various hats as creator, copyright lawyer and administrator of other’s creative works, I do have some concerns about the report’s recommendations. For example, centralizing the small claims tribunal within the copyright office, even with most matters handled by written submissions and video-conferencing seems impractical. While there is reluctance among the federal judiciary (and copyright claims are exclusive to the federal courts) to create specialized tribunals, it would make more sense, both for the convenience of the parties and to distribute the administrative burden, to have these streamlined procedures available in each federal district.

Alternatively, one might consider the approach for the “circuit rate court proceeding” under Section 513 of the Copyright Act to have the small claims tribunal available in the district court that is the “seat” of each of the 12 Circuit Courts of Appeals (e.g., New York, Chicago, Denver, San Francisco). This did not seem to be addressed in the Copyright Office report.

Another concern is that with a voluntary proceeding, a well-funded party, such as a major corporation, may simply opt out of these proceedings and force a plaintiff to spend resources he or she doesn’t have. On the other hand, there should also be provisions to ensure that frivolous claims are swiftly dismissed and that creators don’t use these procedures to attempt to try to get a windfall in unwarranted copyright damages where the “notice and takedown” procedures under the DMCA would be sufficient.

The recommendation for some form of small claims proceeding is a welcome one, albeit one that should be subject to further refinements. However, given the current Congressional climate, it’s also unlikely to be acted upon anytime soon.

This article was originally published on the ScoreStreet Web Site on October 3, 2013.

The Chess Game of Fact Checkers As Applied To Music

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“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.

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

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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.

My Jewish Christmas Song

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I’ve decided I’m going to be the next Internet sensation. That’s right, me: a forty-something copyright and entertainment lawyer. Hey, if Susan Boyle can do it, why the hell not?

There’s a method to my madness. I’ve spent the better part of the last two decades helping composers and songwriters do what they do, as a music publisher, an attorney at BMI and now, as a lawyer in private practice. And I’ve done my best to keep up with all the changes that the digital revolution has wrought, from sites to sell sheet music and CDs to Facebook, Twitter and other social networking arenas, to the sites that help keep track every kind of statistic through nifty analytics.

But, it’s one thing to know what composers and songwriters go through and tell them how about the various tools available to them. It’s another thing to actually do it yourself. So, I decided the best way to really understand and to advise clients was to become one.  From doing the recording and the video to the inevitable viral release to having the means to connect with and market to both of my fans.   And all because I hate sending Christmas cards!

Let me explain.  The song I’m about to release to the world is a little ditty called “Let’s Have a Jewish Christmas.” It’s destined to become a holiday classic, right up there with “Grandma Got Run Over By a Reindeer” and “Jingle Bell Rock.” I assayed the role of DIY musician from start to finish – attempting to do for myself all the things I’ve either advised others to do – or had a staff of people to do it for me. OK, I did hire some elves along the way, but more on that in our next installment….

The first thing I did was to call up my friend, Dean, to line up some studio musicians to record two tracks: the Christmas song and one other.  As a fellow musician, I assured Dean I’d pay the musicians “scale” for the recording. Easier said than done.  Have any of you tried going to the AFofM site to figure out what “scale” is for an individual track to be released as a download?  Well, I’m a lawyer in the music biz and I couldn’t figure it out!  Dean, who’s been a member of Local 802 for more years than he’d care to admit and who rehearses his big band at the union hall, couldn’t figure it out, either!  So, after a collective shrug we just agreed upon a number that we thought reasonably approximated “scale” and left it at that.

Now, as a lawyer, I always advise clients to make sure everybody understands everything up front and to get it in writing, even if it’s just scribbled on a napkin.  Naturally, based upon Dean’s assuring me that “everything would be OK with the guys,” I acted like a musician and ignored my own wise counsel.

For those of you who’ve never experienced the joy of being in a recording studio it’s simultaneously  exhilarating, scary, tedious, frustrating  — and fun.  Especially as the artist, songwriter, producer and label all rolled into one. Yes, folks, you can have total artistic control – as long as you’re signing the checks.

We recorded two songs, with five musicians: me on piano and vocals, along with a reeds, trumpet, bass and drums. And we recorded the songs live.  Even so, it took nearly three hours to record six minutes of music and another three and change to mix and master the tracks.  And that’s actually moving at a brisk pace.   We recorded about a half dozen takes each and then did some overdubbing and punches – – and had doughnuts and coffee. And as fun as working with good musicians is, I actually had an even better time after I sent the boys on their way and I was just working with my recording engineer, Jim, cutting and pasting among different takes and cleaning things up while trading Monty Python quotes.

After my hired hands left, I realized I had this freshly tuned grand piano at my disposal that sounded really great. So, as label and producer, I authorized myself to record a pretty ballad with just me singing to my piano accompaniment.  And I did it live, one take, no punch. Another three minutes of music recorded in…. three minutes! I felt like a pro!

However, having a freshly burned master in my hand was just the beginning of my very odd Odyssey. After all, what’s a track without a video and I still had no online infrastructure to capitalize on the notoriety that’s sure to come my way…..

Next: making the video….