Tag Archive for: fair use

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.

The Good Wife and the Parody Defense

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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!

On Presidents, Copyright and a King

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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.

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.

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

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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.