Wednesday, March 18, 2015

3.19.15 WHAT'S GOING ON


This article originally appeared in the 3.19.15 issue of Metroland.


            OK, so the Blurred Lines verdict came down and Robin Thicke, Pharrell, and TI were found guilty of infringing a Marvin Gaye song to the tune of $7.3 million.  Of course everybody had an opinion on this, with plenty of people, some of whom who are friends, otherwise intelligent beings whose opinions I generally respect, applauding the verdict.  I heard a panel of exceedingly smart people on the radio seemingly accept the verdict as correct, with one smart person saying “all they had to do was credit Marvin Gaye and give him a percentage and this would have been avoided.”

            Uh, no, that’s not how it works.  And there’s no reason Gaye should have gotten any credit or should get any money. The bottom line is that the verdict borders on insanity.  Ask any copyright expert who isn’t beholden to some corrupt special interest (and even some who are) and they’ll tell you.  Heck, I’ve been telling you for a couple years that this wasn’t a case.  Even Dean Kay, who’s been ringing the copyright maximalist bell for years with his e-mail news service Dean’s List (and with whom I agree on very little but like very much) is linking to articles declaring that the verdict was ridiculous.

            The matter will no doubt be appealed, and hopefully the case will be tossed.  Jury verdicts are notoriously difficult to overturn; appeals courts tend to bend over backwards to cede to the “wisdom of the jury” and all that.  But the better argument might be that, as I’ve pointed out here, and as Tim Wu argues emphatically in his New Yorker article “Why The Blurred Lines Copyright Verdict Should Be Thrown Out”, the trial judge erred in even letting this case get to a jury.  Many, if not most cases that don’t settle end at the summary judgment phase, where a judge can determine that no reasonable jury could possibly find for one or the other party.  And given what I’ve read, the “Blurred Lines” judge should have done just that.  No reasonable jury, applying the correct standards, could have possibly found that the Thicke & Co. infringed on Marvin Gaye’s song.

            Why not?  Well, as my pal the prominent musicologist Michael Harrington told a Nashville TV station "There were no lyrics, none. There was no melody, no chords. Not only is there no original expression taken, there is no expression taken."   Somehow, the jury, after being told that Pharrell and Thicke readily admitted to being influenced by the Marvin Gaye song, decided that since the songs had a similar groove and vibe that there must be infringement.  I wonder what the judge’s jury instruction (where he tells the jury what the legal standards are that must be applied to the facts) was.  Because either it was a horrible instruction or the jury ignored it.

            As Andy Herman wrote in his LA Weekly article “Great, Now Blurred Lines Has Ruined The Entire Music Industry”:
Musicians admit their influences all the time. And they should. There are only so many notes on the scale, only so many tempos and drum patterns, only so many harmonics pleasing to the human ear. Every song, no matter how great or how terrible, builds on the work of past artists.
The "Blurred Lines" verdict ignores this, placing for the first time what boils down to "feel" under the heading of copyright infringement. By this logic, the Bob Marley estate can sue pretty much every reggae artist of the past 30 years. The Bo Diddley estate can sue George Michael for "Faith" and Bow Wow Wow for "I Want Candy." Phil Spector can sue The Raveonettes for their entire catalog.

            Most commentators think that the jury was reacting to the douchey-ness of Robin Thicke, who by all accounts was swarmy and, well, douchey.  He claimed he didn’t write actually the song because he was drunk and high on Vicodin, basically trying to throw his onetime friends Pharrell and TI off the cliff.  What a nice man!

            But this wasn’t a popularity contest between Robin Thicke and Marvin Gaye, or for that matter Marvin Gaye’s kids, who by most reports conducted themselves in a fashion that could charitably be called low-rent.  This was an infringement lawsuit.

            What disturbs me is to see songwriter friends hailing the verdict.  What, they don’t have influences?  They don’t think that this verdict will open the floodgates and make every hit song a target, including theirs should they be so fortunate?

            My band used to do a ska version of Sam Cookes’ “Just Another Saturday Night.”  Then one day we stuck in some new lyrics and bounced the melody and harmonies around and voila, there’s a new song “Gimme The Girl.”  We recorded it and the day the record came out Dr. John Cooper on QBK played “Gimme The Girl” and followed it with “Just Another Saturday Night.”  Busted?  Yup!  Infringement?  Nope!


Paul Rapp is a lecherous ex-clergyman... no wait, that was Richard Burton in “Night Of The Iguana”... Paul Rapp is a dapper Berkshire attorney, semi-retired musician and fitness buff who doesn’t only sing but he dances.  Just as good as he walks.

Wednesday, March 04, 2015

3.5.15 NOT HAPPY



This article originally appeared in the 3.5.15 issue of Metroland

The “Blurred Lines” case, in which Marvin Gaye’s kids are trying to shake down Robin Thicke, Pharrell and TI, is in the midst of trial right now in LA.  It’s not going very well for Team Gaye.  The judge knocked the stuffing out of the Gayes’ case last month by ruling that the jury would not be allowed to hear the Marvin Gaye recording of “Got To Give It Up,” the song allegedly infringed by Thicke & Co. in writing “Blurred Lines.”

            Why, you ask?  Well it’s like this.  With any recording, there are two copyrights: one for the song, the composition, and another for the performance of that song, the recording.  What constitutes the song is typically limited to the melody and lyrics, and sometimes a unique chord or song structure.  Everything else is embodied in the performance.

            Here, the Gaye children are claiming that “Blurred Lines” infringes the song “Got To Give It Up,” which they own.  However, they do not own the recording of “Got To Give It Up.”   That is owned by Motown Records, which has the same parent company (Universal) as Interscope, which released “Blurred Lines”.  And Motown isn’t about to sue its cousin.

            What the Gayes are left with is what was submitted when the song “Got To Give It Up” was registered at the Copyright Office: sheet music.  That’s what they own, and that’s what they have to show was infringed by Thicke, Pharrell and TI.  Not Marvin Gaye’s voice, not the groove, not the background vocals, not the bass line, not the drum sound or the instrumentation.  The melody and lyrics.  Not a whole lot to go with.

            So it’s been a hard slog at trial, with the jury being presented with piano-and-voice versions of the competing songs, and with Thicke giving a mini-concert of the various songs he says influenced the songwriting process (a medley including "With Or Without You," "Let It Be," "No Woman No Cry" and "Man In the Mirror").  Then the jury had to suffer through the Gayes’ musicologist experts trying to tie the competing songs together, including comparing the “hook lines” “keep on dancin’” and “took a good girl” which both come “immediately after the bar line” and “share three out of four notes.”  What? 

            That’s the best the Gaye camp has got, apparently.   They also made a big deal out of the fact that Thicke, Farrell and TI listened to “Got To Give It Up” during the songwriting and recording process, which proves exactly nothing.   As Bert Sommer used to say “That’s show-biz babe!”  This lawsuit should never have been brought, and it never should have been allowed to go to trial.  We’re talking here about influence, not stealing, and if Marvin Gaye’s kids got a piece of every tune Marvin Gaye influenced, they’d all be richer than Warren Buffett.

            The trial should wind up this week and we’ll probably get a verdict sometime next week.

            You may have heard that a library in Trumbull, Connecticut (near Bridgeport) recently removed a recently-donated painting of Mother Theresa out of concerns of copyright infringement.  I guarantee you that this wasn’t a librarian’s decision, because librarians, every single one of them in the world ever, are so much smarter than this.  The trustees of the library, and any attorney they consulted, should be publically shamed, tar-and-feathered, or perhaps taken out back and whooped good.  And the same goes for the knucklehead reporters who were on this story.

            The painting showed Mother Teresa surrounded by numerous activist women, including Margaret Sanger, the founder of Planned Parenthood.  The painting had been in the library for months when complaints started coming in from local Catholic leaders.  The library appeared to be holding tough until someone mentioned there might be a copyright issue with Mother Teresa’s image, and down came the painting.

            The problem is that no one can own a copyright in a person’s image. And there’s no “right of publicity” claim here either, as Mother Teresa was a rather famous person and her image isn’t being used to sell things.   And then there’s the small issue that she’s a dead woman from India whose image has popped up in Connecticut.

            So the Catholics came up with a scare tactic that smoked the ignorant and cowardly trustees of a little library and a piece of art got banished as a result.  I could see nonsense like this happening in Alabama or East Texas.  Or Iran. But Connecticut?  In 2015? Really?


Paul Rapp is an attorney ensconced in his mountain lair deep in the Berkshires, where he makes nougat, watches old movies, and drinks prodigious amounts of bourbon.

Wednesday, February 18, 2015

2.19.15 IN WHICH THE COPYRIGHT OFFICE FIXES EVERYTHING


This article originally appeared in the 2.19.15 issue of Metroland


            In my last column we talked about the Flo & Eddie lawsuit seeking performance right payments for pre-1972 recordings.  The lawsuit is going very well for them, and as I explained, it highlights what a putrid and stupid mess copyright law has become, especially regarding music.  If you wanna go back and review the article now, we’ll wait.

            Tap tap tap... OK, on the same day my article ran, the Copyright Office (the federal agency that oversees all things copyright) issued a 250-page report entitled Copyright and the Music Marketplace, calling for a massive restructuring of how music is licensed and how musicians and songwriters get paid.  Sort of.   I think.

            When the report came out on February 5, everybody in the music biz trumpeted its existence.  A few hardy souls even made cursory comments about whether it was good or bad, based apparently on what is contained in the 13-page executive summary of the report.  Since then it’s been radio silence all around.  None of my go-to sources have said a peep, and I could find only a small handful of obscure blogs have attempted to sort it all out and explain the report comprehensively.

            I think a lot of this has to do with the complexity and mundaneness of the issues.  I’m not sure it’s possible to sit down and read the entire report without losing one’s mind and entering a state where violence and substance abuse seem like the only answer.  Heck, that’s how I felt after just reading the executive summary.  But let me try to, in the space allowed, impart at least a little of what I think is going on here.

            First the report recognizes that the current system is broken.  There are rules that date back to the days of player pianos, there are internet-specific rules that were made before anyone really realized what the internet was and what it could do, there are distinctions made that are artificial and nonsensical, and there is a tendency for secrecy among big players that benefit the big players at the expense of everyone else.

            The report explicitly recognizes this, and notes that consumers are rapidly switching from owning music (CDs and downloads) to accessing music through streaming services (like Spotify and Pandora) and how the current and outdated structure of payments doesn’t compensate musicians and songwriters at nearly the same rate as before. The report appears to suggest a consolidation of rate-setting under a single tribunal at the Copyright Office, and an effort to treat various types of music delivery (radio v. streaming v. physical delivery) as functional equivalents (which they are) and give them equivalent pricing structures.

            That sounds good to me.  We’ve now got a situation where the license fees from radio / TV/ nightclubs, etc. to ASCAP and BMI are set by a couple of federal judges, the price of using a song on a recording is set by Congress (if you’re using the entire song) or by private negotiation (if you’re using part of the song), and where Pandora pays marketly different royalties than Spotify, simply because Pandora won’t play the specific song you feed it (it only will play similar songs) while Spotify does.  It’s really just plain dumb.  And expensive.  And unpredictable.  It makes sense to have all this set by one dedicated body that has the expertise to do it.

            There were a number of other specific proposals that were good.  Like extending federal copyright protections to pre-1972 sound recordings.  This would take care of the multitude of issues we discussed last week arising from the Flo & Eddie litigation.  Like imposing on broadcast radio a performance license for sound recordings, which would put broadcast radio on par with the various forms of digital transmissions, would provide performers with a much needed income source, and would free up for US musicians foreign airplay performance royalties that are currently being withheld by foreign performing rights groups because the US (almost uniquely in the civilized world) refuses to pay them.  Like transparency in licensing and music use.  The most valid complaint about Spotify is that it doesn’t disclose how it determines its pay-outs.  Does anyone know how ASCAP whacks up its money?  Shouldn’t musicians know who is listening to their music, so better to whip up marketing strategies?  The report suggests that market participants disclose huge amounts of information about the deals they make, where the music goes, and the calculations used to determine where the money goes.

            Not that the report’s not all good, of course.   It really seems aimed at perpetuation the music industry as we know it.  Who knows how it will all shake out, how it gets through Congress (which needs to OK much of what’s proposed), and how long it will take.  What I’m not sure it does is ensure that the music marketplace will be fair and navigable to the smaller players, the indies, and lone rangers who make music because they have to and can’t be bothered becoming technocrats for the sake of getting the music to market.

            We’ll see.


Paul C Rapp is a high-altitude attorney and budding cheese aficionado who is pleased to be travelling to Harrisburg PA this weekend to give presentations at the Millennium Music Conference.

Saturday, February 14, 2015

VALENTIME'S DAY 2015


It was 35 years ago today!  Blotto released its first EP Hello My Name Is Blotto What's Yours?  I took my boom box to work at the Empire State Plaza and had Q104 playing low ... Ellen McKinnon didn't play it, neither did Dan Boyle.  I was walking home to have lunch a little after noon and it happened: John Cooper played our version of Stop In The Name Of Love... and we were on the radio.  With my boom-box on my shoulder bro-style, I was mesmerized, so much so that I stepped into traffic on the corner of Hudson and Dove and nearly got run over.

We had a record release party that night at the Hullabaloo, which was a blast.   It would be months before we learned we had a real hit on our hands with I Wanna Be A Lifeguard; we were just a hard partying, silly, half cabaret, half rock band that made sure we all had a good time every time.

Anyway, one of the big regrets we've always had was that we didn't have a good live video of the band.  I have a vague recollection of a multi-camera shoot at a big Washington DC club called The Wax Museum, but nobody's ever seen any footage.  Then about a year ago I got a Facebook message from a guy named Charles Johnson that he had a copy of Tonight at Toads.  Apparently there was a television show in New Haven featuring bands playing at Toad's Place, one of our regular haunts, and there was an episode featuring us!  Who knew?

The show is from very early 1982; we'd driven to the gig from White Lake Studios in White Plains, where we were finishing up what was to become our album Combo Akimbo.  We were all wearing the embroidered bowling shirts I'd given out for Christmas a few weeks before.  The one thing I remembered from this gig was that at the time Portrait Records was trying to sign us, and a couple people from the label drove up from NYC to see us.  They brought this crazy little girl to our dressing room-- she had crazy hair and yelled a lot and clearly thought we were great.  I recognized her about 11 months later when Johnny Carson introduced her on her national television debut singing her new song Girls Just Wanna Have Fun.

Anyway, here it is, enjoy.  Thanks to Charles Johnson for digging it out and to Rob "Bert Blotto" Richter for cleaning it up!




Wednesday, February 04, 2015

2.5.15 I CAN'T SEE ME SUING NOBODY BUT YOU


This article originally appeared in the 2.5.15 issue of Metroland

Maybe you’ve heard about how The Turtles’ Mark Volman and Howard Kaylan (a/k/a Flo and Eddie) just won a big lawsuit against Sirius radio that will entitle them to all kinds of money related to the satellite broadcaster’s use of their recordings.  Maybe you thought oh good for them, they’re stickin’ it to the Man, musicians should get paid more by the greedy corporations, power to the people right on, etc..  Which is a sane reaction until you realize what this really is all about.  And what it’s all about is what a steaming pile of crap our copyright laws are, how they’ve been hijacked and warped by lobbyists, and this ruling (and several more recent rulings that follow it) are just the copyright karma chickens coming home to roost.  It’s messy.
            Explaining this in 800 words is gonna be tough, but here goes.  It concerns sound recordings, which have long had a dicey relationship with copyright law.  Sound Recordings are considered derivative works of musical compositions and weren’t covered at all by federal copyright law until 1972 (musical compositions, on the other hand, have been covered by federal law since the 1830’s).  And when Congress decided that sound recordings were entitled to federal protection in 1972, it only protected recordings made in 1972 forward.  So owners of pre-1972 recordings have had to rely on state laws for protection.  And, as you might know, there are 50 states.  Some have statutes that protect sound recordings, some have built up court-made common laws, and they’re all a little different.
            Some court decisions in the 1930’s established that states’ copyright protection for sound recordings didn’t include the “public performance” of sound recordings.  In other words, radio could play the recordings on the air without getting permission or paying the owner of the copyright to the recording, which is typically a record company.  And when Congress decided to start protecting sound recordings in 1972, it followed this ruling, and carved out public performances from the protections sound recordings would get.  Why?  Well, inertia, for one, it was the way it always had been, but it was the broadcast radio industry lobbying that really did it, convincing Congress that airplay was just a promotional device to sell records, so no protection or royalty was necessary.  Never mind that songwriters had always had a public performance right in their compositions (ASCAP and BMI are licensing agents for songwriters’ public performance rights) and that every other performance-oriented art form (theater, film, choreography, etc.) had a public performance right.  No performance right for you, sound recordings!
            Following me so far?  Really? Weird got weirder in 1995, when Congress decided to give sound recordings a performance right, but only for digital transmissions, like satellite and internet radio and music services.  Compulsory licensing terms would be set by a tribunal under the aegis of the Copyright Office. Sound recording owners couldn’t refuse digital airplay, but they would get paid for it under pre-set terms.  So if your record got played on broadcast radio, you got nothing.  But if that same radio station had an internet feed, you got paid for that.  Stupid?  Yes.  Is this the shadow of lobbying and big money causing nonsensical changes in the law because of nothing but greed?  Absolutely.
            So along come Flo and Eddie arguing that (a) the 1995 federal digital performance right thingee doesn’t apply to their pre-1972 recordings and (b) the court rulings from the 1930’s were wrong, and that they have a performance right in their pre-1972 recordings.  And last fall a court, a federal district court on California, agreed.  And a couple of other courts, including one in New York, have also agreed.
            This opens not a can of worms, but a flotilla of snakes.  The finding that pre-1972 recordings have a performance right means that everybody who has been playing these songs, not just Sirius, but every radio station, music service (like Spotify), shopping mall, wedding hall, etc., may be on the hook.  For what?  We don’t know, because the royalty rate would be a matter of negotiation between the owners of the sound recordings and those who have used them.  There are lots of owners, not just Flo and Eddie (Flo and Eddie did something very smart years ago.  They bought their masters back from their record company), but record companies with pre-1972 catalogs. There are lots of users, and, again, there are fifty states, which might have differing spins on how this all goes down.  Does enforceability go back in time?  How far?  Who knows?  This is why god made lawyers!
            These rulings will all be appealed, and sometime in the not too distant future the issue could end up in front of the Supreme Court.  Or Congress could just jump in and say that federal law protects pre-1972 recordings, putting an end to all this nonsense.  Oldies stations could start disappearing because their corporate parents are worried about potential catastrophic liability.  Spotify could pull all pre-1972 tracks.  It is this cataclysmic and bizarre.
            Meantime, all the far-flung elements of what can laughingly be called “the music industry” are... wait for it... Unhappy Together! Stay tuned!
Paul C. Rapp is an urbane-yet-rural attorney from the wilds of the Berkshires who is making an art form of woodstove fire maintenance.