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Viacom v. Google – It’s Cool, I Read It So You Don’t Have To.

Yes, I am fully aware that is not a grammatically correct sentence.  However, I think it gets my point across!  If you’re interested in copyright at all (or, if you read any online news source at all), you’re probably aware that Google beat the crap out of Viacom this week in a copyright infringement suit based on the Safe Harbor Provision (17 USC §512).  But what effect does this have on copyright owners?  On the dissemination of information and art on the internet?  Well, I’m going to tell you.  See?  I read the WHOLE opinion so you don’t have to!  And I’m going to attempt break it down in a way that makes sense.  Here goes nothing.

 

Alright, so what the heck is the Safe Harbor rule anyway?  It’s a provision of the Copyright Act that basically allows awesome websites like YouTube to exist.  It basically says that websites and ISPs are NOT responsible for infringing content on their site that’s been uploaded by users as long as they comply with the following: 1) They need to have a way for copyright owners to submit information to the site detailing the infringing content; 2) the communication to the site must be “written,” 3) it must describe the content to such a degree that it can be reasonably identified by the site admins; 4) Once notified, the site must try and find it and, when they do, delete the content.  If they do, they’re given “safe harbor” from being responsible for the infringement. 

 

Now that we’ve got that down, here’s some VERY important holdings that the Supreme Court handed down.

 

1)    Safe Harbor is Determined on an item-specific basis;

2)    ISPs and sites have no active duty to seek out infringing content;

3)    “mere knowledge” of prevalence of infringement is NOT enough.

 

In the rule, it states:

 

“Whether a service provider qualifies for the limitation on liability in any one of those subsections that be based solely on the criteria in that subsection, and shall not affect a determination of whether that service provider qualified for the limitations on liability under any other such subsection.”

 

When this was written, it probably meant “look ISPs – you don’t get a free ticket to ride just because you qualify once.  You have to do this EVERY TIME.”  But, the Supreme Court said, it works the other way around, too: “Presently, over 24 hours of new video-viewing time is uploaded to the YouTube website every minute.” (Emphasis added.)  YouTube has been consistent with taking down infringing works every time they receive a notification; indeed, later in the case, the Court notes that Viacom sent a list of over a hundred thousand of individual violations – and by the next day, almost ALL of them were gone.  Here’s the key: the Court said that a “general awareness” of infringements is NOT enough to take sites and ISPs outside of Safe Harbor.  The actual or constructive knowledge of infringement must be “specific and identifiable.”  YouTube has no active duty to track down infringement, even if they have a general idea that it exists on their site.

 

The Court then talks at length about the interesting legislative history around the rule, demonstrating a clear attempt by the Senate to balance the rights of copyright holders and the expansion of the internet and information. 

 

“Copyright owners will hesitate to make their works readily available on the Internet without reasonable assurance that they will be protected against massive piracy….At the same time, without clarification of their liability, service providers may hesitate to make the necessary investment in the expansion of the speed and capacity of the Internet.”

 

Safe Harbor is about protects sites and ISPs – NOT copyright owners.  It is copyright owners that hold (and always have held) the active duty to seek out infringers.  The Court is refusing to shift that burden on ISPs simply because they provide the ability to disseminate content – both infringing and legitimate content.  Says the Court: “a service provide need not monitor its service or affirmatively seek facts indicating infringing activity…”  They need only be aware of “red flags,” which they DO need to address – they can’t turn a “blind eye.”

 

Furthermore, stated the Court:

 

“The provider could not be expected, during the course of its brief cataloguing visit, to determine whether the photograph was still protected by copyright r was in the public domain; if the photograph was still protected by copyright, whether the use was licensed; and if the use was not licensed, whether it was permitted under the fair use doctrine.”

 

So, it’s officially and legally not the JOB of the ISPs to search for legit content on behalf of copyright owners.

 

It’s also not enough that YouTube might have had “general knowledge” that infringement occurs on their site.  Stated the Court, “[to] impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.”

 

The DMCA is designed to provide a streamlined, focused way to ISPs to regulate content – it’s not meant to impose burdensome active duties upon them.

 

The Court also distinguished YouTube from Grokster, who actively facilitated P2P file sharing – which actually always necessitates infringement because users do not have the authority to copy their own CDs.  In contrast, YouTube provides the ability to upload content, much of which IS legitimate.  Providing “’such means of facilitating user access to material on its website’ do[es] not cost the service provider its safe harbor.”

 

Now, Viacom alleged that YouTube had the “right and ability” to control the content, which is a standard for vicarious infringement.  However, the Court (rightly, in my opinion) pointed out that “the ‘right and ability to control’ the activity requires knowledge of it, which must be item-specific.” 

 

So there you have it.  Obviously this is an extremely truncated version of the entire opinion, but, in MY opinion, it’s the real meat.  In so many words, the Court was like “Dude, copyright holders, step up to the plate.  It’s not YouTube’s duty to comb their site 24/7 for your content.  It’s yours, so you do it.”  The Safe Harbor rule is very clear (for a law, that is), and YouTube has been diligent about following it.  So that’s that.

 

I think it’s very difficult to determine how this is going to affect content uploading and content-providing sites.  I think it’s pretty clear that Google is basically the Master of the Universe (yes, like He-Man… only with less loincloth and more music videos), and, at this point, it’s going to be damn-near impossible for anyone to successfully sue for them copyright infringement as long as they keep following the same protocol they follow now. I must, indeed, applaud their legal team.  Their arguments make perfect sense to me, and it’s simply unrealistic – and a detriment to the advancement of technology – to have found any other holding.  I think other outlets will pop up and try to find a middle ground between Grokster and YouTube, and that we’ll have more cases in the future refining these findings.  Until then, YouTube is safe.  And thank god, because I’m kind of in the mood to watch David after Dentist.  Or an illegal copy of a Carrie Underwood video.      

 

 

 

 

 

 

 

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The 'Hurt Locker' is Only Hurting Itself

(In voice of Peter Griffin) You know what really grinds my gears? THIS.

When is Hollywood going to learn that this is NOT the way to solve current copyright problems? Solving your fans is NOT the answer. And let me tell you my honest opinion - these downloaders are not really displacing sales. Are they displacing a few folks that were on the edge about purchasing the DVD? Of course. But I'll tell you one thing - most of these downloaders would simply NOT buy the DVD if they can't get it for free. They're just wait; wait til it's on demand, or HBO or whatever. They just don't feel that this is a good use of their disposable income! And suing them is not going to change that.

The most these producers can hope for is to scare the defendants straight. Well WHOOP-DEE-FUCKING-DOO. At best, you'll get 5,000 people to buy your movie, or at least not download.... for a while. Is 5,000 sales really going to make that much of a difference for you, producers? I didn't think so. And that's as far as it will go - the folks that are downloading other films, or that weren't caught - you won't stop them. And they're a much bigger pool than your 5,000 defendants.

This is just useless and, frankly, STUPID. The plaintiffs are going to expend more in legal fees than the pithy $1,500 they're asking from each defendant. Not to mention they're just reinforcing the contempt that downloaders feel for move companies.

Look, I don't know the perfect solution right now, but I can't tell you THIS AIN'T IT. Movie companies - it's sad, but YOU have to be proactive about providing outlets for media that your audience will WANT to consume. It's up to you, not them. If you can't do it, they're going to take the risk of viruses (and suit) and just download it. Suing them in NOT the answer.

www.newleaflegal.com

What Is Grooveshark?: A Look at the Evolution of File Sharing and Licensing

My journey through file sharing and digital downloading has been kind of a strange one.  I had Napster back in the day, then switched to Morpheus.  I think I had Limewire in college, but I can’t exactly remember.  Even in those days, it took FOREVER to download a song (or god FORBID a movie), and you never knew what you were actually going to get at the end of the day (i.e. is that really An American Tail or Debby Does Dallas??  Fuck it, it’s free, right?!).  My junior year, Napster came back as a legit subscription service and worked out a couple of licensing agreements with a bunch of Universities – my now alma mater, University of Miami (aka “THE U”), was one of those schools. 

I stuck to Napster like white on rice – I absolutely loved being able to stream any music I wanted for a small monthly fee.  In fact, when I was in college, Napster was FREE to UM students; I just loved it so much, I started paying the measly $12.95/month after I graduated to keep the features.  To this day, I am still a Napster subscriber, and the price has gone down.  Now, it’s only $15 every three months AND you get 15 free credits for tracks.  It’s cheap, it’s easy, and they have a great catalogue.  Plus, I’m in control.

I didn’t jump on the iTune bandwagons until I got my iPhone in…. god, I’m so embarrassed to say this… November 2009.  I never owed an iPod; I always have third party MP3 players because iPods were compatible with Napster (they are now).  I’m going to say it – I honestly don’t like iTunes.  I think the only thing it offers is mild convenience, esp with my iPhone (or the iPod Touch), you can get your music instantly, but only if you pay for it each time.  Napster “feels” more free to me.  Sure, I can’t instantly grab music on my MP3 player on the go, but I can stream it from up to 5 PCs at a time, and, honestly, that’s mostly where I listen to my music.

I think the fact that people want a lot of music but they don’t want to pay for that music (or feel like they’re paying for it) has given rise to this kind-of “customized” radio services like Pandora.  Because you can interact with the genome and “refine” it by adding variety and thumbing up or down certain songs to refine your taste.  I actually have friends that spent months refining their genomes to get the “perfect” station.  It’s fun!  It’s kind of like building a CD collection – it takes time and effort.  Remember how rewarding that used to be?  All their shiny cases lines up in a row, sorted alphabetically, or (if you’re daring) maybe by genre or cover art.  But I digress.  My point is that people still take pride in their music selections, and Pandora feeds that need.

But what if I crave MORE customization?  What if I crave “on demand” content all the time?  The music I want when I want it.  None of this “you can only interact with the genome up six times an hour.”  I want music without boundaries!  And I want to be free!  Well, industry folks say, you can’t have it for free.  As my old music business professor used to say: “when music is playing, someone is paying.”  Advertising just doesn’t cut the mustard for the licensing fees (plus, users hate commercials… yet still don’t want to pay for music.  Have you guys ever heard the expression ‘you can’t have your cake and eat it too’??)

Enter Grooveshark.  They say… why yes, you CAN have your cake and eat it too.  We’ll even BAKE your cake and handle all the liabilities and law suits when it poisons someone!  Ta da!  Grooveshark has taken a similar approach to Limewire and Grokster – “Come and get us.”   However, unlike Limewire and Grokster, Grooveshark preemptively offered music as an enticement for the majors to garner licensing deals with them.  Lots of indies are on board, but the real meat and potatoes (and what their success depends upon) are the major label releases.

Well, their plan has worked…. Kind of.  In ’09, EMI inked a licensing deal with Grooveshark licensing their entire catalogue under undisclosed terms.  Did EMI take equity?  What kind of licensing fees is Grooveshark paying?  Where is their leverage here??  Ooh… the contract deets are KILLING ME!!  But it appears that Grooveshark is leading the way in a new(er) approach to copyright licensing.  Give the people what they want, and when Big Daddy sees people love it, offer them a piece of the pie.  If the Copyright Act isn’t working for digital downloading (and, in many instances, it’s not), private contract seems to be the way to go.  Innovation can’t be stopped, so we need to contract around it.  All’s fair in music and war, I suppose.                

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The Helping Hand: The Limewire Case and Secondary Liability in Copyright Infringement

In a precedent-setting ruling, the U.S. District for the Southern District of New York has found both Limewire and its sole owner, Mark Gorton, “vicariously liable” for copyright infringement on a myriad of sound recordings.  You can read the full decision here, but for those of you less-inclined to spend a substantial amount of time reading 59-pages of legal jargon, I’m going to try and break it down for you.

First of all, let’s take a look at the different levels and types of copyright infringement.  The most common is direct infringement, where the person is held liability for actually committing the act of infringement themselves.  This is theory behind the RIAA cases that are suing consumers; it is the consumers that are either (or in some cases, both) uploading or downloading music from illegal peer-to-peer music sharing networks.  It does seem over the top for the RIAA to sue individuals for literally millions of dollars – the phrase “you can’t get blood from a stone” comes to mind – but it’s the one of the easier copyright claims to prove, and there are substantial statutory damages if you do.  They are capped at $175K PER infringement – that means not only per SONG, but also per upload or download.  Now I’m sure you can see how those ridiculously high verdicts are coming down.  Is it equitable?  Of course not.  However, the law allows for that as long as the RIAA can prove the person actually did the copying… which is pretty easy once their hard drive is seized.  So that’s direct infringement.

But the real meat is what’s going on with the companies “allowing” the file sharing, but they’re not doing the actual up or downloading.  So how are they being held liable?  Secondary infringement. 

After the Grokster case, there are actually now three theories of secondary liability that content owners can hang their hats on – the first is “contributory liability,” that is, when someone (or something, in the case of a company) knows or should know that infringement is occurring and that person is inducing or contributing to that (direct) infringement.  For example, let’s take the topic of my last blog entry, GirlTalk.  Let’s just assume for a second that DJ GirlTalk’s fair use defense failed; he would be directly liable for unlicensed samples, because he’s doing the actual creating.  His label, Illegal Art, could be held secondarily liable under contributor infringement for encouraging GirlTalk to use samples, supplying him with samples or the facilities to record his music, etc. (DISCLAIMER: I have no idea what GirlTalk’s relationship with his label is, and I am merely throwing possibilities out there.  I am not stating that ANY of this is fact).  Actually, depending on who owns the masters, they might actually be directly liable as well.   

However, it’s more likely that peer-to-peer file sharing networks will be held liable under the second theory of secondary liability – “vicarious liability.”  Unlike contributory infringement, vicarious liability does not require that the secondary infringer knew or even should have known about the infringement.  Instead, the two-prong test requires that the infringer 1) has the “right and ability” to exercise control over the direct infringers (and did not); and 2) they had a financial interest in the resulting infringement.  This claim is most about the connection between the direct infringer and the secondary infringer; not the actual act of infringement.

The third claim arose in the Grokster case, where the court held that the defendants “induced” direct infringement by distributing a device with the “object of promoting its use to infringe copyright, as shown by a clear expression or other affirmative steps taken to foster infringement.”  Unlike contributory infringement, the secondary infringer here must purposefully be inducing infringement for their own benefit and has taken “affirmative steps” to foster infringement.

This is exactly the snag that Limewire hit in their case.  A couple important things to note that Limewire did not before we get into what Limewire did do.  First, the court stressed that merely making the recordings available online, whether they were infringing or not, was not enough to hold Limewire liable for either direct or secondary infringement.  While Limewire’s program alone might be enough to meet the “inducement” standard, the company really shot themselves in the foot by coming up with a “Conversion Plan,” which encouraged users to join the site for free (and upload or download files illegally) so that Limewire could convert these users into paid subscribers and promote sales in their online.  In this plan, they also acknowledged that most of their users were infringers. In fact, there was a folder found at the Limewire offices labeled “Knowledge of Infringement.” Um…. OOPS. 

At first blush, it may seem that Limewire actually had a plan to stop infringement, and yes, that was part of the plan.  However, in order to execute it, they needed to promote more infringement first… and wouldn’t you know…that’s against the law.  They had a whole plan on college campuses that was designed to appeal to “Napster-banned colleges,” and was related to “file-sharing and getting free MP3’s.”  But it doesn’t stop there.  Limewire worked to make improvements to their software which would make it easier for users to locate unauthorized digital music, and its success was clearly dependent on these users.

Gorton himself was actually found liable as well, which surprised me at first, given the so-called “corporate veil” that is supposed to protect shareholders of a company.  However, I guess there is precedent in NY law to hold a person liable if they hold the majority of a company and are involved in its day-to-day decisions and activities.  Scary thought for those operating small companies! 

So what does this all mean for the future of file sharing and copyright?  As usual… TBD.  Grokster set a strong precedent against file sharing networks that is clearly being taken seriously.  It seems that the technicalities of “breaking up” a file-sharing company across jurisdiction isn’t working, and the company can’t avoid liability even if they don’t actively induce infringement; because the standard now includes new grounds for secondary liability, the pool of defendant will only expand.  There is still a slight caveat here, though – the court noted that (at least for summer judgment), Limewire could not be held liable for contributory infringement because they weren’t exercising meaningful control over their users.  So it looks like if you just stand back and mind your business and let the money come to you, you could fight a claim of secondary infringement.  Given that the law in these circumstances has been very broadly interpreted against infringers, though, I doubt this will last long. 

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Girl Talk and Fair Use: Toeing the Line

Alright, I know I’m late to the party, but I am completely and utterly obsessed with Girl Talk right now.  I mean, I just can’t get enough of it.  Every time I listen to his stuff, I find something new.  And then I literally freak out visibly in my car and scare passers-by.

However, I think part of my fascination with it is deeply connected to my affinity for copyright law and the internal struggle I’m facing with the fact that Girl Talk doesn’t have any kind of licensing arrangements (to the best of my knowledge) for the 300+ samples on Feed the Animals alone.  Girl Talk hasn’t been sued as of yet, which makes me think it’s probably unlikely that he will; let’s face it, not only would it be interpreted as a seriously dick move from either an artist or the RIAA, but it would also be terrible for their publicity and nothing but amazing for Girl Talk’s image and his music (which, unless the suit resulted in a judgment, simply means more and more money in HIS pocket).  It’s very clear that he’s a champion for what I generally think of as the “new” copyright law, but from a legal standpoint, does his art have a place in the current copyright law?  I actually don’t think so, and here’s why.

Girl Talk relies heavily on the concept of “fair use,” and claims that his short snippets and samples fall under what he terms an “exception” to copyright law.  Do I think Girl Talk knows his shit and is probably backed by one hell of copyright attorney?  Yes.  Do I think he probably falls under fair use?  Yes, but not for the reasons that he seems to be asserting.

Let’s talk about what fair us is NOT.  First of all, fair use is NOT an exception to copyright law; it’s a defense to copyright infringement applied on a case-by-case basis.  Fair use is probably one of the most widely known and widely misinterpreted parts of copyright law, which makes it extremely dangerous for people to rely upon.  There is also no time when you can rely on fair use based on “how much” you used.  There is no “six bar rule” or some minimal amount that people can use of a copyrighted work that is an absolutely bright line for fair use.  Roy Orbison has sued people over the first 6 notes of the bass line intro for “My Girl,” and Queen sued Vanilla Ice over the 7 note bass intro to “Under Pressure” (and though the case settled, I do believe some of the royalties for “Ice Ice Baby” are paid to Queen).

So what is fair use?  It’s an oh-so-fun 4-prong test that is applied when someone is sued for copyright infringement.  It’s up to the person that is being sued to apply the test which examines: 1) the nature of the original work; 2) the amount and substantiality of the content used; 3) purpose and character of the new work; 4) effect on the potential market.  “Nature” of the work basically refers to how “creative” the original work was – was it an original novel or the phone book?  The more “original” the original work was the more copyright “protection” it’s thought to have.  Amount of substantiality of the content used is pretty straightforward – how much did you take?  But beyond that, did you take what could be considered the “heart” of the work, or did you take an obscure, hidden 3^rd layer guitar track?  This is why the “six bar rule” doesn’t work, because everyone knows within 2 notes when “My Girl” in on the radio.  The bass line is so essential to the recognizability (that’s a technical term, btw) of the work that it’s taken on very strong copyright protection.  Purpose and character of the work refers to the new work and basically examines whether the work is for personal gain (“commercial” use) or more for educational purposes or for some universal betterment of society.  This is often why universities and educational institutions are not often bothered by content owners.  Although there are specific statutory provisions that safe guard schools and libraries, copyright is generally a bit more “elastic” in educational setting – after all, there’s a complete school of thought (HA!  PUN!) that revolves around the idea that copyright is all about the dissemination of art for the good of society. 

That prong is a serious issue for Girl Talk – no matter what artists say about doing art for art’s sake, we’re all out to support ourselves and make a living, and whether he cares about the fact that he IS making a living out of this… he is.  And that money is obviously due largely in part to the ridiculous number of samples he’s using. People know all these songs due to the success of the original work, and he’s capitalizing off of someone else’s goodwill for his own personal gain. Now, his response to this is that it’s HIS work – the mixing and the creative mashing he’s doing – that’s the real product people want.  And you know what?  He’s right.  I didn’t buy Feed the Animals because I wanted to hear a loop of “Jessie’s Girl,” “The Sign” and “Nothing Compares” all in one album, I bought it because the creativity blows my mind.  But the court looks at the commercial side for this answer, and it’s a tough one for him to fight.  

But the most important prong by far is the effect on the potential market of the original work.  The court basically examines whether the new work is a potential “substitute” for the original work – is it displacing potential profits that should be going to the original work?  (This is why the existence of YouTube just baffles me; obviously its entire purpose is to substitute free content for free content.  That’s a whole other ball of wax.  Or can of worms.  Whatever.)  Anyway, this is undoubtedly the prong that Girl Talk can hang his hat on.  As I said above, people aren’t buying his albums and going to his shows because they want to hear specific works – most people don’t even know what they’re going to be hearing at a Girl Talk show.  They aren’t picking Girl Talk over a Lil’ Wayne or Ludacris show or album – there’s just not enough of their content on the album to justify that. 

A Google images case actually set an amazing precedent in this field when they won a case that was brought by an artist that was upset about the thumbnails of her work that we being displayed by Google Images that were housed on unauthorized sites.  Google won because they successfully proved that anyone seeking out her works would not substitute a bad resolution thumbnail for the real deal.  Similarly, no one is going to pick Girl Talk for one sample or even ten of the samples; his work is not replacing the songs contained in his samples.

From a legal standpoint, Girl Talk is really toeing the line here because of the sheer quantity of samples – he’s basically flying in the face of copyright law and giving it a huge “fuck you.”  From a strictly legal standpoint, mind you.  However, from a practical standpoint his art can’t viably exist under the current interpretation of fair use and copyright law – the costs would simply be too prohibitive.  And it should exist.  Fair use has long been a thorn in the side of copyright law and it clearly needs actual common law (case precedent) or statutory reform.  Creative and innovation cannot be stopped, and the law needs to mold to it, not the other way around.

               

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Copyright Rights Demystified: A Practical Guide to Copyright Licensing, The Final Act!

Alright copyright licensors and licensees!  By now, I hope you’re feeling pretty comfortable with the way copyright rights break down; or, at least, more comfortable than you were before.  We’re finally in the home stretch, and today we’ll be tackling the last two rights in the copyright owner’s “bundle”: public display & derivative works.  I’ve saved these for last simply because they are generally more specific and less utilized than some of the other rights, particularly in the world of music.  But they are still important, and I advise that you ignore them at your peril.

Public display somewhat functions the same in public performance, at least with regard to the “public” part.  Once again, in order to qualify as a licensable right, is must be displayed to more than mere family or close friends in a private gathering; it must be a place that is generally open to the public, even if the display in a particular instance is during a private event in public.  Please see my blog on public performance for more detailed information on what constitutes a copyrightable work being in “public.” 

Assuming your display of the work is in “public,” you must obtain a license from the owner.  As you can probably surmise, this really isn’t applicable to music because music isn’t visual (philosophical arguments aside); this right mainly covers works of visual art and sometimes literature.  With regard to works of visual art, it is the right that needs to be licensed and needs to be negotiated straight with the copyright owner via a private agreement (to the best of my knowledge, there is no licensing agency for these situations, except maybe the gallery housing the work… although they are often the licensee!).  Like music, where the finer points of audio and performance are often hotly debated, so the elements and aspects of the display of art is of great import.  Whether you’re a licensor or a licensee, must sure your agreement covers the most detailed description of display possible.  Some things to consider are:

1)    Angle of display;

2)    Size of wall (required and/or preferred/mandated);

3)    Framing (if applicable);

4)    LIGHTING, including natural light;

5)    Placement within an actual space (featured, grouped with paintings of similar theme/ origin, etc)

6)    Space conditions, including temperature, air pressure/quality (lighting comes into play here, too);

7)    Moral Rights

8)    Length of display and/or rotation;

9)    Insurance;

10) Transportation and storage of the piece(s) before and after, including liability and responsible parties depending on the location of the art

The last consideration is especially important, given that visual art is often VERY expensive and irreplaceable.  If you are an artist, you want to strive for FCA with regard to transportation; this means as soon as the piece arrives in the hands of a “common carrier” (i.e. UPS, USPS, Fed Ex), it becomes their responsibility.  In contrast, so-called FOB shipping means that liability doesn’t shift to the carrier until it’s actually loaded on “board” – so if something happens before that time, you (artist) could be left holding the bag.  Not a good thing.

If you’re an artist living in Massachusetts, you should familiarize yourself with MGL 104A, the consignment art law.  It was revised a few years ago and lays out detailed (and rather strict) requirements for anybody or anything holding your art on consignment (which is almost always the case with galleries). 

Another important right exclusive to fine art is the idea of “moral rights.”  Basically, moral rights gives the copyright owner extended creative control over their art, even after it leaves their hands.  It protects against destruction of the art (and not just total destruction), as well as misappropriation (either putting someone else’s name on your art or putting your name on art you don’t want to be associated with).  Moral rights has been an area of constant debate and contention, particularly here in the US, where moral rights are extremely weak as compared with some of the origin countries of these rights, including France and other European countries, and Mexico.  As the US is a signatory to the Berne Convention, many feel that we need to beef up our moral rights to meet European standards.  However, this is another blog for another time.  For now, here is some light reading on moral rights, including the US and global comparison.

If you are involved with visual, graphic or fine art, I would highly recommend aligning yourself with an attorney that specializes in this area of law.  I don’t mean merely copyright law, either; there are a myriad of considerations are both important and specific to visual art, ranging from transportation to estate planning. 

Alright, that’s my 2 cents on that!  On to our last right: derivative works!

As defined by the Act, a derivative work is: “a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.” (17 USC §101). 

So what the HECK does that mean in normal terms?  It means that you changed the essential “character” of a work; that is, more than a mere cover (which is covered by a mechanical license, remember?!), but, say a POLKA cover of Metallica’s “Enter Sandman.”  If you change the “heart” of the work, be prepared to license the right to create a derivative work.

If is also important to remember that even though you, new artist, is creating a “new” work with it’s own, separate copyright, you don’t have any sort of copyright ownership over the original content you used; only the “new” stuff you created.  So, for example, if you take a series of short stories from the 60’s, let’s say, you only hold a copyright over the “new” work.  Generally, that’s the arrangement of the stories (assuming it’s unique enough to qualify for copyright), and any new material such as a foreword, epilogue, annotations, etc. 

What constitutes a derivative work is often difficult to quantify, given that it often walks the line between statutory licensing and another beast of copyright law… the dreaded FAIR USE DEFENSE (*shudder!!*).  The simplest advice I can give is to err on the side of caution – if you think your new work might be so transformative as to create a new work out of an already-created work, get a license.  I know this can seem like a pain in the ass, especially if you don’t think your work will garner enough to expose to warrant the payment of licensing fees.  But I PROMISE YOU, copyright litigation is lengthy and expensive, not to mention a complete pain in the ass.  If you reach out directly to the copyright owner, depending on how “big”/”popular” the work is, they will often charge a nominal or reasonable one-time fee.  I can assure this will NOT be the case if your work makes it big and you didn’t get permission. 

I think that’s really the lesson overall with copyright licensing – in case of doubt, simply ask.  You may be surprised at what the copyright owner has to say.  At its core, copyright is designed to create of balance of artistic dissemination and artistic protection.  And, often, it’s the sense of fairness and respect for your fellow artists that is at the heart of copyright licensing.  In a time when no one wants to pay for copyrighted materials, it’s important for copyright owners and content users to pave the way for new licensing deals that respect both the value of artistic expression and the new free market.

I hope you’ve found this series interesting and educational!  If you have any questions, please do not hesitate to post them here on the blog (I check it often as do some other copyright nerds), or visit our site at www.newleaflegal.com and email info@newleaflegal.com.  And for more information and cool blogs specifically covering licensing deals and issues, visit my partner Steven Shapiro’s blog, Brand Licensing – YEAH!  Happy licensing!

Posted via email from shannonjamieson's posterous

Copyright Rights Demystified: A Practical Guide to Copyright Licensing, Part Trés

Ok, my soon-to-be copyright gurus, we’re half way through our riveting discussion of the separate rights that come with each copyright!  Today’s amazing break down covers a right that is fairly new to the Copyright Act: the right to public performance via digital transmission. 

Though a newer addition to our law, since this new rights initial inception into the Act in the 1990’s, it has been the subject of constant debate.  The most memorable recent debate is one most of the public is actually familiar with; the settlement between webcasters and the RIAA.  Just in case you’re not into reading Congressional rulings, here’s the skinny: fees for public performance were wiping out webcasters left and right, basically making it impossible for them to exist profitably as a business.  This was because, before the settlement, a webcaster had to pay a fee each time a song was played, and for each user that was playing it.  Although that fee was mere hundredths of a penny, it adds up FAST.  Let’s do a quick math problem: 15 songs per hour (approx 4 minutes/song), and let’s say 100,000 people are listening to a webcasted station at a given moment.  I can’t remember the exact old fee, but let’s say it is .007 cents.  That’s a whopping $10,500 PER HOUR for a webcaster!!  Hell, even if I completely off and it is $1,500, that’s still astronomical.  According to this article, under the old fee arrangement, even giants like Pandora were sending about 75% of their revenue straight out the door for this licensing fee.  And to add insult to injury, we’ve officially approached a time in history where no one wants to pay anything for music, leaving webcasters to rely solely on advertising income to stay afloat.  The system was clearly broken.

Luckily, after years of negotiation, a settlement was reached.  I won’t get into the nitty gritty of the exact figures (truth be told, I’m having a bit of trouble finding them online), but the fees are now structured around a percentage of revenues that increases with revenue size (i.e. Pandora pays more than your local radio station that simultaneously webcasts).  Also, content providers should not that subscription stations have different rates – in fact, there are quite a few different rates based on the type of digital broadcast you’re providing.  I would highly recommend spending some time on Sound Exchange, particularly in the FAQ (for both content providers and content owners) and in the Service Provider and Owner sections, respectively. 

Besides the fees themselves, the most important thing to ask is: Who is getting paid?  Well, this particular right belongs to the owners of sound recordings – not the owners of the songs themselves, who get paid under the Public Performance Rights that we discussed last time.  Thus, it’s mostly record labels that are seeing the benefit of this moolah, although there are some artists that have retained the rights to their sound recordings, particularly in the hip hop industry.  Sound Exchange is basically the “PRO” of sound recordings; much like ASCAP, BMI and SESAC oversee payment directly to publishers and songwriters, so Sound Exchange oversees the payment of royalties to the owners of sound recordings. 

PLEASE NOTE: if you are an artist and your own your own recordings (most likely where you are NOT signed to a label), you should register with Sound Exchange here.  Much like the PROs, Sound Exchange has a complex system for tracking plays of recordings and may have money for you!!  So get on the ball, people.

As a final note, I would like to briefly address the Performance Rights Act, which would essentially extend the “digital” rights to terrestrial radio… aka “regular” radio.  It is currently stalled up Capital Hill.  You may have heard some PSAs (Public Service Announcements) regarding this possible amendment, which essentially threaten to start charging people for radio and incorrectly label it a “tax” on radio.  I am not taking an official position on this, but you should note two bias things here: 1) these commercials were paid for by the broadcast industry, who are the direct targets of these new proposed fees; 2) the original proposal regarding payment on sound recordings was meant to encompass both analogue and digital broadcasts, but as a result of a tremendous lobbying effort by the broadcasters, it was limited to “digital” transmissions.  On the flip side of the coin, here is an article opposing the Act, and some perfectly logical reason supporting the proposition.

So there’s your crash course in digital transmissions.  Hopefully I’ll be able to button it all up real nice for you later this week when we round out with the last two rights: public display and derivative works.  As always, please feel free to email me directly @ shannon@newleaflegal.com

www.newleaflegal.com                  

Posted via email from shannonjamieson's posterous

Copyright Rights Demystified: A Practical Guide to Copyright Licensing, Part Duex

First and foremost, my deepest apologies for the untimely break in blogging…right in the middle of this series. Things at New Leaf (hyperlink) have been pretty nuts, and then I took a last minute trip to Vegas with my fiancé for a business trip, and, well, you know, there’s no excuse. Back I have returned!

Today we’ll be covering one more very important right in the copyright owner’s “bundle”: the right to publicly perform.

The right to publicly perform is actually a pretty sneaky beast in copyright law. First, let’s look at actual “live” performances, because this one is a TINY bit more straight forward. Basically, the Copyright Act says that if you’re performing for anybody more than your close family and friends in a private dwelling, it’s a public performance. So this excludes things like parties in a private residence (so no, Moms don’t have to get licenses for their kids’ birthday parties, and you don’t have to get one for this weekend’s frat party). However, this technically doesn’t exclude “private” parties in places that are generally open to the public, or which cater to events. So, if you have a birthday party, a wedding, or a bar mitzvah at a public event hall, even though the general public isn’t allowed at your event, a license needs to be obtained. Please note this also includes outside venues, such as parks with public stages.

But before you freak out about licenses, there’s good news! This is NOT your responsibility as an individual hosting the event; it’s the job of the commercial venue itself. Public performance licenses are issued by Performance Rights Organizations. Most countries only have one, but in the essence of true capitalism, in the US, we have three: ASCAP, BMI & SESAC. If you own a venue, ASCAP & BMI and absolute musts – each hold a huge catalogue of music, and each has active scouts in every area of the US that will check in on the venues regularly to make sure they’re up to date on their licenses. SESEC used to be somewhat optional because it was a private, for profit company that held a very small and somewhat obscure catalogue of music, mainly classical (and for you music nerds, by “classical” I mean the mainstream genre encompassing all orchestral music… not the classical period of music… all of which is now in the public domain ;) ). However, SESAC has been expanding its catalogue over the last decade or so, and I would now advise to play it safe and get a blanket license for all three organizations.

So how do you get a license? It’s relatively easy and can be done online for all three organizations - ASCAP, BMI & SESAC. I think the better questions are these, though: 1) How much will my license cost? And 2) Do I even need a license?

The fee for your annual license is based on a crazy complex calculation, which varies for each organization, based on a variety of factors such as square footage, number of speakers, number of events, how often you have live performances and how often you pump music through the speakers, etc. Thus, Madison Square Garden is going to pay TONS – not only are they a huge arena, but they basically play music all the time between concerts and sporting events. In contrast, a town park may only pay a little for summer chamber music concerts. However, the number one question I get from small businesses is ‘Well, I’m only a small business that plays the radio/CDs. Do I have to pay and, more importantly, WHY I have to pay?’ The Copyright Law is very specific on exceptions to licensing, including down to the square footage. If you’re considering foregoing a license, I would STRONGLY urge you to read the article I just hyperlinked, and understand your rights. (For example, playing the radio is different than playing CDs, etc) If a scout tried to tag you on it, the fines are be substantial and, if you truly understand you don’t need to pay, you want to be able to assert that with certainty.

One last thing that is important to remember if you’re a copyright owner: public performance rights belong to the owners of songs, not recordings; basically, songwriters and publishers – NOT record companies. This is generally why songwriting and publishing is actually more lucrative than the recording business; royalties are paid straight to these folks from the PROs without deducting overhead or other expenses. It’s something to keep in mind when you’re paying your license bill as well – in a way, you’re funding the source of music creation more directly.

Alright, I think that pretty much covers us on public performance. On Monday, we’ll hit up digital transmission: how it is different from “regular” public performance, and who needs to be concerned about it.


www.newleaflegal.com

Copyright Rights Demystified: A Practical Guide to Copyright Licensing

Are you an artist that is registered with BMI or ASCAP (or SESAC)? What about an artist with a publishing deal? A record deal? Is someone interested in placing your song in a movie, tv, etc.? If so, you are probably REALLY confused about how copyright works and exactly what you're getting paid FOR.

What the hell is a "mechanical" license? A "synch"? Over the next couple of blog entries, I'll be breaking down the maze that are the copyright "rights" and giving you a practical guide to managing and licensing them.

Ok, first and foremost, copyright is actually 6 different rights rolled into one, each of which can (and should) be licensed separately; that means, for each "right" someone needs to use your music, they should be paying a fee. Here's a run down of the rights:

1) right to copy (or "reproduce");
2) right to distribute;
3) right to publicly perform;
4) right to publicly perform via digital transmission;
5) right to create derivative works;
6) right to publicly display

Before we even get to those rights however, lets talk briefly about recorded music. Recorded music almost always contains TWO copyrights: one for the actual underlying song - this invokes so-called "publishing rights" - and one for the actual recording of that song - often referred to as a "master." So, for example, if you want to re-record someone else's song, you only have to licensing the song's copyright. In contrast, if you want to use a "sample" of a song, you're often dealing with the copyrights for both the song and master (which are often owned by different parties). This is often why you might hear a bit of a song that isn't the "original" recording you know and love, say, on a Television commercial. That is because there is often an additional (and substantial) fee for using the recording itself.

The difference between song rights and masters rights are VERY important, especially if you're a musician signed to a label. Often, you technically don't OWN the actual recording copyright; the label does. So you actually don't have the right to give out the recording or treat it in any way that isn't consistent with your contract (or with the label's consent). Something important to keep in mind.

Alright, let's get back to copyright in general. Let's look at the rights to copy and distribute first, which are normally licensed together.

The right to copy technically means any of the song. In the physical sense, this incorporates any burned copies of your work, any downloaded copies, and, technically any "streaming" (because the work is considered to be temporarily copies onto the listener's computer). Contrary to popular belief, people are not allowed to make additional copies of CDs they own, even for so-called "archival" purposes. That idea came from a judge in a very old case, BetaMax, but it was actually never enacted into law. So why can you put a copy of your CD onto your iPod? Well; from a strictly legal perspective, you can't. And back in the mid-late 90's, record companies tried to stop you by putting DRM ("digital rights management") onto the CD to prevent it. However, it also had the unfortunate side effect of crashing your FUCKING computer... so public policy forces this kind of copying to basically be "overlooked."

However, it is still faux pas - legally and ethically - to make copies of CDs for your friends or send them Mp3. That is why, for example, iPods can only synch to one iTunes account, and why Napster only let's you maintain your library on 5 computers. They are limiting your "license" to use the music.

Which brings us back to copying; as an artist, when you sell a CD, you're actually only selling a LICENSE to your listeners to listen to that one copy privately, or to sell that ONE copy as they see fit. Nothing more. If they want to make additional copies, they have to license that right from the owner of the song (usually the songwriter or a publishing company), and from the record company (if they want to use a particular recording).

Well, what if you want to do a cover of a song? This is where the "statutory" or "mechnical" license comes in. It's the right to copy and distribute a song, and it MUST be granted to anyone that agrees to pay the fee of 9.1 cents PER song, PER copy. These licenses are very easy to get and are administered through the Harry Fox Agency. Simply type in the song info, how many copies you're going to press and VIOLA! Instant license. Now it is important to note that there are TWO rights being licensed here; the rights to copy AND to distribute. Practically, one is really no good without the other.

In tandem with this, I would like to touch briefly on live performances of covers. Musicians, please note - it is NOT your responsibility to get or to pay for a license to do this IF you are playing in a venue. It is the venue's reponsibility to buy "blanket" licenses from BMI, ASCAP and SESAC. If they don't, THEY are on the line for it, not you. The only time this comes into play is if you are performing in a public place - but we'll get to that later.

Let's switch the to "other side" of licensing the rights to copy and distribute - for masters. This comes into play usually when musicians want to use a "sample" of a recording, or for compilation CDs (i.e. "Now that's What I Call Music 1,567!") If you want to use a sample, the first part is easy - just log onto Harry Fox and license the song. The second part is usually a bit more complicated because it's usually a label that owns the rights to the actual recording. However, if you're licensing a song from an indie artist, you can often call them right up and ask; usually they will grant it for a small fee, or sometimes for free if they really want the exposure. The most important thing to note here is that, unlike mechanical licenses, there is no absolute right to use a recording, nor is there a set fee. You have to go straight to the owner, who CAN tell you no and technically set any price they'd like. Neither will probably be the case, but just be aware.

So you've got to reach the record company; yes, I understand that can be a complete pain in the ass. However, many labels do have licensing departments and even with some of the bigger indie labels, you can send an email to customer service and get a response. After all, you want to give them money! They'll respond.

One small note before we stop for the day - all this counts for digital distribution too. So make sure if you are contacted to license music, you ask if the person wants to distribute it online; that's an expansion of right that has a value!

Until next time, then.

www.newleaflegal.com

REPO! The Genetic Opera: An American Original

Way back in the beginning of '09, my friends and I got wind of a little movie called "Repo! The Genetic Opera"; it takes place in the future, where a corporation called "GeneCo" has figured out how to manufacture synthetic organs and sells them to people on credit. However, if you can't make your payments... the Repoman comes and takes back whatever organ you've been given. Sounds like a bomb ass movie, right? But it gets better.

My friends and I had no idea what we were getting into when we drove out to a little theater in Worcester, MA that night. It was, in short, a complete and utter shitshow - in an amazing way. This "little" movie (with a mere $8MIL budget) became a completely enormous underground and cult success! I'm not kidding when I say that my friends and I were basically the only people in the entire audience not dressed up and who didn't know the word to every single song in the film. Since then, I have been schooled; I own the DVD and the soundtrack, and I am anxiously awaiting MY chance to dress up at the movies (yes, the movie is still touring and in theaters... 2 years after its release) and sing the songs at the top of my lungs.

However, while anxious cult fans such as myself wait, it seems big budget Hollywood has been busy developing Repomen, a bold and blatant rip off and complete copyright infringement of our beloved Repo! The Genetic Opera. When my fiancé called me just now and told me the plot of that movie, I thought he was joking. Sadly, he was not. So, I search the interwebs and found this article, which features a side by side comparison of the trailers and a blog written by Repo!'s director, Darren Bousman of the Saw series. He, too, is pissed off about what has gone down, as it is ABUNDANTLY clear that the Repo! intellectual property has been stolen from them right under their noses. What I want to know is, why aren't they fighting this??? If anything, they could at least get a settlement that could be used to tour the movie again and open up more people's eyes to the amazing cult experience that only Repo! can provide. So to Darren, I say this: I understand you want people to continue to celebrate Repo! but, from a legal perspective, you SHOULD fight this!! Repo! is an amazing project, and an incredible subculture I am proud to be a part of. You should fight for its rights! Ok - that's all I'm going to say about that, out of respect for Darren's request.

On a separate note, I would like to encourage anyone that knows about Repo! to tweet, blog, post, yell - WHATEVER - about Repo! and how amazing it is. The more noise we make, the more people will continue to love it and the more we can have the amazing experiences of seeing it in theaters, singing and dancing in the aisles. TESTIFY.

www.newleaflegal.com

My Best Sites, Blogs & Twitter Peeps for Entertainment

As a young attorney, I kind of feel this weird sense of duty to bring law practice into the 21st Century. It's actually a bit more difficult than it sounds; not only do you have a rift between the "young" attorneys and "older" attorneys. It's not really an age thing, it's more of a way of practicing. As a young attorney, I want to be flexible with billing (hence our flat-fee based model at New Leaf), I want to really interact and build a relationship with my clients, and I want to promote what they're doing because I'm genuinely excited about it! However, this has not been the traditional way of legal practice, which is traditionally tight-lipped.

Thus, in the spirit of creating a new legal landscape; one that is tied to its fellow entrepreneurs and artists, I would like to share a list of my favorite sites for entertainment-related (business) content.

A Snippet of the Bestest Websites & Blogs for Artists:


lawyers4musicians.com

In a nutshell, this website totally rules. Not only is it a great resource for artists to learn about their rights, options and the law, it's also a great place for entertainment lawyers to stay up-to-date on the latest rule-world developments in this area of law. It's a perfect mix of cases, news and events.

The Hollywood Reporter's Law Blog

The Hollywood Reporter can be a very overwhelming website, especially for folks that focus more on the creative side of the industry and keep up on the business side because they have to (and that's ok!!). But Matt Belloni artfully manages a blog through the site that focuses on interesting legal happenin's in the industry. While it may seem at first only a resource for "boring lawyers" and copyright nerds like me, its content is interspersed with valuable lessons any musician, filmmaker or artist should find valuable. For example, today's blog highlights a film that is about to debut at Sundance this year - and it's FULL of unlicensed corporate logos and mascots, an issue that, as Matt points out, would make any entertainment lawyer faint. However, this is an issue that is often overlooked by many filmmakers because they have 50,000 other things to be (rightfully) concerned about. You scan this blog, and you'll be even more the wiser to the legalities you should make sure your lawyer takes care of.

arstechnica.com

Ars Technica is the go-to resource for all geeky entertainment industry peeps - whether you're a web developer, marketing/viral guy, game developers (!!), you need to hit this site on a daily basis. Though it's content is VERY rich, it's easy navigation system makes scanning through it and finding relevant, valuable information a cinch. I highly recommend the "Gaming" section for developers, industry professionals and consumers alike.

Best Twitter Content:
Gaming news: @arstechnica (for obvious reasons), @goodgaming
Entertainment law: @musiclaw09, @entlawupdate
Entertainment/Industry news: @hypebot (who also has an amazing website for musicians), @fightpiracy


A couple of other invaluable resources for Artists:
- Your local film bureau or Chamber of Commerce
In Massachusetts specifically, the Film Bureau is an amazing resource for understanding laws right regard to filmmaking, tax credits, and a myriad of other issues. There are similar organizations for other areas of entertainment as well.

- Your local arts lawyers organization
The Volunteer Lawyers for the Arts has a presence in most jurisdictions, especially ones where the area is thick with entertainment and art. I actually worked at the Volunteer Lawyers for the Arts of Massachusetts and am now a member attorney. Most of these attorneys will take artist cases pro-bono if you qualify.

How, this clearly isn't an exhaustive list; these just happen to be some of the sites I like, for various reasons. I would invite everyone to contribute their favorites as well. The bottom line at the end of the day, though, is that it is more important than ever that entertainment industry folks understand the latest news and legal developments in their industry. Not only is it (slightly?) interesting, it is most likely relevant to something you're working on, and simply being aware can save you loads of time and money on the back end. Enjoy!



www.newleaflegal.com

Beyoncé to Promote Nintendo's "Style Savvy" Game

In the latest development of what appears to be the gaming industry's attempt to lure in more female gamers (as creepy as that sounds), Nintendo has paid top dollars to Beyoncé to be the new spokeswoman for "Style Savvy." "Style Savvy" is a fashion-focused game that lets players build and run their own fashion boutiques; an opportunity that, according to Beyoncé, is not only fun and stimulating for young minds, but also educational.

My initial impression upon reading this will blip was "well, it seems Nintendo did a bit better than Playstation." I'd take a crack at Style Savvy for shits and giggles, although I'm not sure Beyoncé would be my motivating factor. On the other hand, you would have to strap me into a chair and staple my eyes open and FORCE me to play Hanna Montana. But I digress; clearly I am not the aim of these ad campaigns. The way I see it, the target are young girls interested in fashion, or women interested (or in) fashion that will use the game as a time killer during commutes.

So what are these women saying about the game? Well, the few comments on the article weren't exactly rousing. One commenter pointed out the (fatal?) issue of initial investment in a DS, which run $129. I certainly wouldn't invest in one for the sake of a casual game or two (although, people do pay $299 for Kindles for the exact same commuting purpose...). On top of that, you're competing with investments in actual fashion (i.e. the pair of shoes the same commentor pointed out she would rather purchase). So... maybe the game isn't such a slam dunk for "adults." But what about kids?

The game reviewed well for tweens/teens interested in fashion, and noted the entrepreneurial value of building a virtual store and helping a variety of customers with different needs. Also, given it's over 10,000 lockable garments, the game could provide a depth that both casual and more loyal gamers can appreciate.

Overall, I'd say hiring Beyoncé was a good move for Nintendo, as long as expectations are realistic and Nintendo is looking to recruit female (casual) gamers for the long-tail. Will this add send women out in droves to buy a DS just for this game? Probably not. But, it may motivate young women that already HAVE a DS. Likewise, if this campaign continues on a Nintendo or industry-wide scale, the industry will likely garner a larger portion of female gamers over time. If that is the aim - which is likely given the magnitude of female-focused games out there now - this crazy plan may work.

The Gaming Industry is Doing Well. I mean Badly. I mean... Crap.

I absolutely LOVE reading my daily Google alerts on the "video game industry." Its like reading a paper written by someone with multiple personality disorder. Or an identity crisis. One headline reads "EA forcasts another tough year for gaming..." while the next reads "video games are starting 2010 strong." This a hilarious daily occurrence for me.

What does this mean for gaming? Personally, I think folks are just freaking out that the bubble is going to burst, a la internet companies of the 90's. I can understand that trepidation; video games aren't cheap to make, and spend years in development surrounded by uncertainty as to whether that investment will ever be recouped (much less whether there will be a profit). However, I don't think the industry is even CLOSE to experiencing the cataclysmic shift that occurred in the music and film industry... because geeks are smarter than you and me. I mean that lovingly!

People are still craving video games, and a recession is the time for them to shine! People are not going out and spending money; they want to invest in something that will have lasting entertainment over days and months, and not merely hours. So you know what? Maybe 2010 won't be as great as 2007-2009 for video games. But the industry needs to keep in mind that it's doing substantial better than most other entertainment industries AND in a recession. As long as games continue to be innovative and push the envelope, there's no reason to panic. Be cautious? Yes. But you don't need to push the red button yet.

PSP Insults Female Gamers By Issuing Hanna Montana Bundle

According to PSPWorld.com, more than half of all PSP owners - "52%, to be exact" - are female. In fact, according to Nielson, PSPWorld states, 45% of overall gamers are female.

First of all - yay for us!! Aaaannd second... I told you so. Third... where the HELL are all these women hiding?? Almost every gamer I meet is a guy, and they are always fascinated to meet a female gamer. I feel like an endangered species or something! Perhaps they don't leave their houses enough (both the guys and the girls). Perhaps I am also making the false assumption that these gamers are grown women like myself; as an adult, I like to think that most gamers are adult, too. If you jump into any Halo game on Live, you'll see that's clearly not true. However, this is an undeniable trend that gamers are getting older. But I digress - this is another blog topic for another time. Back to the PSP.

As I was saying, the majority of the PSP Market is female. Thus, in response to this, in an apparent attempt to please/capture this market, PSP issued a lilac-color PSP as part of a Hanna Montana Entertainment Pack.

Um... wait... WHAT THE FUCK?! Hanna Montana? Jesus Christ, that's like slapping any female gamer over the age of 12 in the face. Ouch. That hurt, PSP. "Why you do this to me, Demi?" I'll admit, the lilac-color PSP - I could buy into that. In fact, I would actually buy that. I don't have a PSP; I have a white DS. But I'll admit, when the pink ones came out... I was tempted. I have this weird underlying desire to bring something slightly feminine to gaming... however, not the term slightly. Hanna Montana is not slightly feminine. Not to sound all dirty-hippie-feminism on your asses, but she's "a whore in sheep's clothing," as Coheed and Cambria so eloquently put it. And now she has bastardized the color purple for her own evil, evil purposes. Bad, PSP, bad.

Of course, I approach this slightly - SLIGHTLY - in jest. If the PSP is attempting to capture younger female gamers, there is certainly no smarter way to do that (from a marketing perspective) than to brand your product with Hanna Montana. She's freaking made of money. And, realistically, most female gamers will not shun the PSP because they launched a tween-focused product. My beer is more selfish - where's the PSP for adult female gamers? You could have WAY more fun with that than with the tweens product - take that for what you will.

Listen, at the end of the day, the industry is skewing toward adult gamers. Adult gamers with their own jobs and income... not allowances. Once the initial investment in a console is made, $60 bucks for a game isn't that bad. At least, I don't think so. Plus, the industry has set a smart standard price for new releases, unlike other entertainment industries. So, PSP... get me a stand-alone lilac-colored handheld for my birthday (which is in April). Pretty please?

New Year, New News - Aren't You Excited?!

First, let me start by wishing all of you a Happy New Year! Personally, I'm not a big believer in the "new year, new you" mentality; I rarely reflect on the last 365 days, and I don't make New Year's Resolution that I'll inevitably end up breaking away. Perhaps I should start. To me, the New Year is just a confusing time where I constantly write/type the wrong year for several weeks. Then we all get into the swing of things and say "yeah, it's 2010, so what?"

However, I noticed a huge flux in facebook status updates (the be-all, end-all of public sentiment, of course) generally stating something to the effect of: "thank GOD 2009 is over. What a shit year." That actually got me thinking and I realized... why yes, 2009 was kind of shit. The economy basically gave up and committed suicide in January (along with several celebrities throughout the year... oooh... too soon?), a sadly alarming number of my friends don't have jobs, and Tiger Woods - Tiger WOODS - cheated on his wife. What is the world coming to??

Seriously, though - 2009 wasn't the best year for mankind, and I think most of us can agree this year would be hard-pressed to be worse. I hope I didn't just jinx us...

Alright, enough about the New Year. With regard to the blog, you can expect more snarky commentary or the music and gaming industries, and plenty of news. I will try and be more diligent and scheduled with my blog postings.... law practice tends to get in the way of that sometimes. Stupid job...