2.21.13 TALE OF 2 INFRINGEMENTS

This article originally appeared in the 2.21.13 issue of Metroland.

A week or so ago I got a very agitato email from the proprietor of one of those fine live music clubs in town.  He’d just received a nastygram from a purported professional photographer hundreds and hundreds of miles away claiming that the club had stolen the photographer’s intellectual property, to wit, a photograph of a musician. The club had posted the photo on its website for a gig that took place last May.  The ominous letter said there was no question that this infringement was willful, because the photograph appears on the photographer’s website with a big copyright notice and watermark, so the damages could be as high as $150,000, with an additional award of attorneys fees, blah, blah, and blah blah.  The letter included a copy of the original photograph, a screen capture of the club’s website showing the photo, and what was claimed to be the copyright registration certificate for the photograph.  The photographer said that litigation was “imminent” if the club didn’t immediately cough up $5000.  Then there was a page and a half of various detailed technical demands on how to electronically preserve all the damning “evidence.”  Or something.

            Good lord.   All this for a couple weeks of displaying a little photo on a website for a music club in Albany, New York.

            When I finished laughing, I did a little digging and found out that the club’s web-person got the supposedly-purloined JPG from the band that the musician was appearing with, and the band got it from the musician’s Facebook page.  And the JPG lacked any copyright notice or watermark.  So the web-person assumed this was a promotional photo and used it for exactly what promotional photos are used for:  to promote.

            So, where does this leave things?  Well, if the photo really was created by this photographer, OK, the club probably infringed.  Copyright infringement does not require any intent on the part of the infringer, i.e. you can infringe without knowing you’re infringing.  So there’s that.  But, the law also provides that if the infringer shows that he or she had no reason to suspect that he or she was infringing, the court can declare an “innocent infringement” and cut the damages to as low as $200.

            Which is what I think we have here.  The club’s web-person was given a promo pic from the band.  All bands have promotional photographs, and they all carry an implied license that the photos can be used in various ways to promote the band.  Duh!  There was no reason to think this was anything other than business as usual, no reason to think that this particular photograph (which wasn’t extraordinary or special in the least) was anything but a standard promo photo.

            So I told Mr. Big Pro Photographer not to get his undies in a bundle and to just go away.  

            This is a little like what I deal with all the time with clients getting nailed by photo licensing libraries, most notably the Getty Archive, which has “enforcers” combing the web for unauthorized commercial uses of its hundreds of thousands of images, and then shaking down the perps for thousands of dollars in retroactive license fees.  Typically, the images were found elsewhere on line, through Google images or the like.   Which doesn’t make it legal, something many people don’t understand, and their ignorance can be costly.  Just because something is hanging out there in the internet doesn't mean you can just grab it and use it for whatever you want, even though that would seem to be the natural order of things.  Except here the club was provided the photograph by the band, which ostensibly had some legal authority to allow the photo’s use.  The home team is innocent.  We'll see what happens.

            Compare this with the matter of jazz singer – bassist Esperanza Spaulding and her boom-box.  She’s sitting on the boom-box on the cover of her Grammy-winning album Radio Music Society, she’s referred to it as her “totem”, and she’s selling t-shirts and other merch with the image of the boom-box on it.  Except it’s not a real boom-box, but a sculpture—a wooden box covered with photographs so that it resembles a boom-box. Spalding bought the sculpture from a Brooklyn art gallery.

            The photographer who provided the sculptor with the boom-box photos asked that Spalding license the images and credit him, she's refused, and the photog, an avowed Spaulding fan, has now sued Spalding in federal court for copyright infringement.  As well he should.  The fact that Spalding purchased the physical sculpture doesn’t give her any rights whatsoever to the copyright to the sculpture or the images on it, any more than buying a CD gives you ownership rights to the songs on the CD.  And of course Spalding and her team know this.  So, unless there’s some facts here we’re missing (this is all based on a New York Post article earlier this week, so it’s very possible that there are), Spalding’s refusal to pony up to a fellow artist with a legitimate beef is not just sad, but reprehensible.

Paul Rapp is an entertainment lawyer who’s looking forward to hitting things with sticks with his Blotto mates at the WCDB anniversary party next Friday at Valentine’s Music Hall and Beer Joint.

2.7.13 BABY GOT PLAGIARISM

This article originally appeared in the 2.7.13 issue of Metroland

A bunch of people have asked me to write about this Jonathan Coulton / Glee thing, so here goes.

            Those of you who are over, say, 30 have probably never heard of Jonathan Coulton until now.  The rest of you certainly know, and most of you are fans.  Coulton is a good-natured singer-songwriter who has become successful and famous totally outside of the music biz star-making machine.  He’s built a rock-solid relationship with his growing legions of fans by engaging them via social media, self-releasing clever songs under Creative Commons licenses (so fans can fool around with the songs, make videos, etc.), being an unrepentant geek (he’s the “Contributing Troubadour” for Popular Science magazine) and constantly touring and requiring low ticket prices for his shows.  He’s truly The People’s Singer.  He’s pretty amazing.  And he’s pretty huge.

            A few years ago, he released a totally reconstructed version of Sir Mix-A-Lot’s Baby Got Back; he added and changed lyrics, stuck in a melody, and created a gentle folksy-sounding track that owes more to John Denver’s “Leavin’ On A Jet Plane” than Sir Mix-A-Lot.  It’s one of Coulton’s more popular tunes.

            Then last week, the teevee show Glee (I don’t need to explain this, do I?) featured the depressingly happy youth thereon performing Coulton’s version of Baby Got Back.  Coulton wasn’t paid or even credited.  The internet blew up with indignity: How could Fox (Glee’s network) so brazenly rip off this beloved artist?

            Well, Fox did it for the same reason a dog licks its privates—because it could.  In fact, it’s not Fox that’s in the wrong here, as a technical legal matter.  It’s Coulton!  This is a terrific case study on just how stupid our copyright laws have become.

            Coulton has been paying the writers of Baby Got Back what’s called a mechanical royalty for his version of the song.  Mechanical royalties date back to the days of piano-rolls for player pianos.  Piano roll companies were buying up the copyrights to popular songs and then barring other piano roll companies from putting the song out.  Congress decided this was anti-competitive and enacted a law that said once a song has been published (via sheet music, piano roll, and very soon, on records) that anybody could make a “mechanical reproduction” of their own version of the song so long as they pay a royalty (set by the copyright office) to the copyright holder of the song.  This continues to this day—if you want to release a cover version of Gangham Style, Bootylicious, Tie Me Kangaroo Down, or any other song, you don’t need permission, you just need to pay the royalty (currently 9.1 cents per distributed copy) to whoever owns the copyright to the composition.

            It gets weird for Coulton because a mechanical license only covers fairly faithful versions of the song, or as the statute says “the arrangement shall not change the basic melody or fundamental character of the work”.  Now, most publishers are just happy to get royalty payments, so traditionally artists doing cover versions have been given a wide berth in terms of arrangements.  Coulton’s version of Baby Got Back, however, is beyond the pale by any measure—there is a new melody and new lyrics that largely dispel the misogyny rampant in the original... the fundamental character of the song has been profoundly changed.  So although the song’s publisher hasn’t complained, Coulton’s version is actually a derivative work of the original, something for which permission must be granted by the copyright holder.  If Coulton had secured that permission (and the song owner can just say no), he would own the copyrights to whatever new original stuff he put into his version.  But he hasn’t, so his work is an unauthorized derivative work of Baby Got Back, and he therefore owns nothing.

            In order for Fox to use a song in Glee, it needs to negotiate a license with the copyright owner of the song.  And Fox did this for the copyright owner of Baby Got Back, which as we just determined is not Jonathan Coulton.  When questioned about this, Fox said that it had done everything it was required to do under the law.

            So, did Fox plagiarize Jonathan Coulton?  Absolutely!  Did Fox commit copyright infringement?  Nope.  Why?  Because the law is stupid, that’s why.

            Unless (and here is an excellent example of why there are rarely any definitive answers in copyright law.  Ready?  Here we go!).  Unless Coulton’s version is a parody of the original.  If it is, it’s fair use, and Coulton would own his contributions lock, stock and barrel.  And have Fox behind the 8-ball.  In 1994 the Supreme Court ruled that 2 Live Crew’s incomprehensible version of Roy Orbison’s Oh Pretty Woman was quite likely a parody of the original.  If 2 Live Crew's imbecilic nonsense was probably a parody, then Coulton’s Baby Got Back is definitely a parody.

            Definitely. 

Paul C. Rapp is an area intellectual property attorney and former rock musician who’s reminded of his wayward 1980’s by an occasional sinus infection.