Posts

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.

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.

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.