Wednesday, October 02, 2013


This article originally appeared in the 10.3.13 issue of Metroland

Big congratulations to Phantogram’s Josh and Sarah on the release of their teaser EP on Barsuk / Universal (the full album will drop soon), their song placement in (1) that ubiquitous Gillette teevee commercial and (2) the upcoming Hunger Games movie, their return visit to Late Night With Jimmy Fallon (Friday October 4) and their recent gig at the freakin’ Hollywood Bowl!  Dayam guys!  And Godspeed to the remarkable Sean Rowe, who’s in Black Dog Studio in Stillwater conjuring up his third album for Anti Records, working again with the local brain trust (Frank Moscowitz / Troy Pohl & Co) that made his first album Magic so intimate and powerful.  Proof times two that with the right combination of talent, hard work, dedication, timing and luck you actually can blow this pop stand and reach for the stars.

            Moving on.  A few weeks ago I noticed people posting these Peanuts cartoon frames with the characters spouting Smiths lyrics.   A young woman had created a Tumblr page called “This Charming Charlie” that was chock-full of cute Peanuts / Smiths mash-ups.  Not being much of a Smiths fan, I didn’t pay it much mind until it was reported last week that Tumblr was pulling down some of the frames.

            Now, you would think that this was the work of the Charles Schultz estate, right?  Those involved with “protecting” the Peanuts franchise have traditionally been pretty aggressive, and who can blame them?  The most successful comic strip ever (still in syndication), TV, movies, massive corporate tie-ins (like MetLife), merchandise, etc. and so on.  That’s some serious property to protect right there.  Mondo dinero! And one could easily envision that a Peanuts fan, unfamiliar with the Smiths’ ouvre, might be a tad confused and concerned to happen upon Nancy holding the football and saying to Charlie Brown “boot the grime of this world in the crotch, dear”, or Linus carrying a sign that says “shoplifters of the world unite and take over,” or Charlie Brown saying to Linus “when you’re tied to your mother’s apron, no one talks about castration.”  Good grief, indeed!

            But no, it wasn’t the Peanuts people.   Perhaps there’s some Morrissey freaks in the Schultz clan?  Who knows?  The culprit that sent take-down notices to Tumblr was Universal Music Publishing Group, which controls the Smiths’ songs.  And Tumblr reflexively complied and removed the posts.  Oddly, only three of the dozens of frames using Smiths lyrics were removed.

            Music publishers have a long history of over-reaching with this sort of thing.  A little snippet of a lyric has always been strictly verboten.  I get asked often by authors about using a couple words from a song in a book or story—is it OK?  My standard answer is I think it’s almost always fair use, but that the song’s publisher will feel otherwise.  I’ve known authors that contacted publishers and have gotten charged as much as $500 for sticking one line of a song at the head of a chapter of a self-published book.  Other authors have asked permission to use a lyric and have been turned down.  A recent article noted that the DVD release of the TV show China Beach has been held up because a character quotes a 60’s song lyric in an episode and the producers can’t “clear” the quote.

            It’s all a little ridiculous.  And this was pointed in a concise and happy little letter sent by Boston lawyer Dan Booth (of the Cambridge firm Booth Sweet) to Tumblr (and posted on the Charming Charlie page).  Booth points out that the quotes were small (12 words or less), that the use was transformative (“as you can see”) and had absolutely no negative commercial effect on the original.

            Of course he’s right.  Although sometimes publishers jump up and down and say that they’ve always made money licensing lyric snippets, so it does have a commercial effect. But that’s a circular argument.  Just because you’ve wrongly shaken people down in the past for uses that are obviously fair uses, that doesn’t make it right today.   The use of the Smiths lyrics in the Peanuts cartoons does not diminish the value of the Smiths songs.  If anything, it enhances them.  Period.

            It’s unclear that Tumblr has gotten around to re-posting the three offending frames yet.  But late last week a spokesman for Universal told the L.A. Times that it was “dropping its pursuit” of the Charming Charlie site.

            Which is encouraging.  It does feel like notions of fair use are expanding to allow for mash-ups like this one, things that people do on the internet for fun which shouldn’t have a big ka-ching attached to them.  And here we have a Big Media player backing off, something that would have been inconceivable only a few years ago.  Yay.

Paul Rapp is an intellectual property lawyer and backwoods gourmand who likes the Greeks’ idea of throwing extreme right-wing politicians in jail to rot.


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