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.
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.
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.
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.
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
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.
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.