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!

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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                  

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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

Minimizing Risks in Start-Up Gaming Co's

I read a great article this morning (thanks, Google alerts)about Kalypso, a Baltimore start-up that just launched it's first game, Tropico 3. That's right, Tropico 3. How did Kalypso accomplish the amazing feat of creating the third game in a popular series as their first release? No, my friends, they did not rewrite the laws of physics.. they purchased the right to the series from Take Two, creators of GTA. You see, as the article points out, while the Tropico series has sold hundreds of thousands of copies worldwide (thanks in part, no doubt to both physical and downloadable sales on sites like Gametap & Yahoo! Games), it's still not profitable enough for Take Two to keep in its roster. Not when they have GTA (which sells millions of copies per release) and some of the best game developers in the biz; priorities = profit.

Now, that's not to say that Kalypso, who only opened their doors in June, don't have equally talented programmers and developers on their team. Quite to the contrary, I think this move was GENIUS for a start up, especially one in the cut-throat gaming industry. On the one hand, entrepreneurs "have no place to go but up," states Kalypso founder Deborah Tillet. But on the other hand, the risk of crashing and burning is higher, and of greater personal risk than it is with larger, established companies. So what better way to balance these interests than to purchase a more established IP? I touched on this topic a little while back, but it's certainly no secret that established IPs are an easier sell (and a better idea?) in this current economy. I applaude Kalypso for taking the leap and starting their own company @ a time when everyone is clinging to the known and the safe. I think purchasing the rights to an established title is a perfect & creative way to get on the map, and a chance for Kalypso to become truly innovative much quicker. Huzzah!

I'm Speaking on a Music Industry Panel - Sweet!

Attention all Boston Artists/Entertainers! I am honored to announce I will be speaking on a music industry panel on October 27th at Vlora Restaurant and Wine Bar in Copley Square on October 27th. The panel is being put on by the Boston Songwriting, Production and Performance Group, and will feature myself, music producer Evan Shapiro, and music industry marketing expert Scott Feldman. Topics will vary by expertise, and I will personally be addressing legal issues surrounding personal management agreements and music licensing/placement agreements. Details be found here:

http://www.meetup.com/The-Boston-Songwriting-Production-Performance-Group/calendar/11541024/

The event is FREE and is sure to be a good educational and networking opportunity. I hope you'll join me and help make this event a success.

I am the License King. I can do… ANYTHING

By: Steven Shapiro, Esq.

Licensing Folks, bear with me for a few lines because I’m going to talk law for a bit. “The operation won't take long and you'll feel much better in the morning.” –Jim Morrison, Celebration of the Lizard King

I had the pleasure of hearing University of Minnesota Law School’s Professor William McGeveran speak about Trademark Fair Use Reform. Basically, the idea of fair use in the trademark context is a defense to an infringement claim, where the defendant alleges she’s using a brand, but is NOT using it like a trademark (as a source identifier), but in a First Amendment-protected, expressive, non-source identifying manner.

So if the pop band Aqua wants to sing about being a Barbie girl in her Barbie world? Let her.

Unfortunately, no matter how good your trademark fair use defense may be, in order to get to the point where you can actually raise it, you have to slog through an entire likelihood of confusion, actual factual analysis of the use in front of a jury. End result: expressive use defenses are expensive and random, so many defendants roll over, rather than fight for their non-infringing expressive use.

McGeveran argues that there are some cases where an expressive use of a trademark is so clearly present, that it’s a no-brainer-- a question of law that on which a judge can rule immediately. These wouldn’t be a get out of jail free cards for ANY ol’ use dressed up as expressive. But some of the more obvious works that would otherwise be completely shut down could instead receive help early on to resolve their cases. He then went on to talk about trademark compliance departments and how entertainment folks have to clear rights anytime a cheerleader sticks her hand down a garbage disposal on Heroes or INSINKERATOR will sue them. He believed that his ‘safe harbor’ fair use categories could alleviate the need for such departments all together.

To his point about trademark compliance, I suggest that the cheese needs to be moved to a different part of the maze. There is a clear market for branded goods in creative works. The Play Pen doesn’t want you displaying its strip club in GTA: San Andreas? Okay. Follow TV and films lead: there are THOUSANDS of gentleman’s clubs that would pay hand over first for that kind of brand exposure.

Do small and lean entertainment companies have product placement departments that can capitalize on those ancillary revenue dollars? Probably not. So how can these companies use trademarks for a reasonable fee? Let’s look across the fence to our copyright folks and their blanket licenses. One can receive certain rights to ASCAP’s entire library of 8.5 million+ songs for a standard rate. Well, why not have a similar collective that provides compensation to licensors for expressive use of their brands?

DISCLAIMERS:

There would need to be incredibly strict quality and brand message guidelines as to what can and cannot be done with each individual brand/trademark.

The licensor would need some kind of right of approval that does not exist in the ASCAP context because of the nature of trademark acquiescence and the realities of brand bibles.

Such a collective would probably be of most interest to less iconic brands.

I do not suggest that this is a perfect model for every situation or even a perfect model for any situation! But such a collective may allow for more efficient implementation of creative and targeted ad dollars. From the creatives’ perspective, instead of the realities of paying cautionary dollars to avoid paying litigation dollars, this might allow cash flows to come into a content-creator’s company in exchange for access to goods that may help them express their story more effectively by aligning with a licensor’s brand message with very little of the intensive legwork.

"Los Angeles, California has the best landscape and climate, but New York has the grooviest people." –Jim Morrison, Celebration of the Lizard King

Greed or Fairness?: Collecting Royalties on 30-second Clips

Hello readers! After a restful vacation in Florida, I am back and ready to take my rightful place on the self-proclaimed soap box that is my blog. Today's topic covers a post on Mashable written by Barb Dybwad entitled "Greed: Music Industry Wants Royalties on 30-Second Previews and TV Downloads." I would invite you to read her article for her take on the situation, but one of the questions presented it whether an MP3 is a "performance" of a song for licensing purposes. Now, I can't help but read in between the lines at the more equitable question presented as well: is it "fair" for PROs (Performance Rights Organizations) to ask for licensing monies for "preview" clips?

First and foremost, I'll get my opinion about performances out of the way, which will probably piss some folks off. I do believe that 30-second clips are streaming, as as any MP3s. From a legal point of view, there is no difference between me clicking "play" on iTunes (or Napster, to which I'm a long-time subscriber) or turning on the radio. If anything, it's MORE of a performance because I'm dictating what gets performed. I may be sitting alone in my office, but iTunes and other download/streaming services offer those songs to the public. Each time one is played, it's a performance.

That being said, I don't think royalties for MP3 (or clips) should be handled the same way that traditional performance royalties are handled (namely, broadcast and live venue performances). The cost is simply too prohibitive for companies to pay each time one of their users downloads or streams a song. Sure, maybe iTunes can pay, but isn't free market about allowing other companies a chance too? Smaller digital distributors simply cannot afford these fees, and it effectively keeps them out of the market. That shouldn't be the case. Copyright reform in this area is certainly making progress, but I don't know that we're 100% there yet.

Related to this, I believe there's a public policy balance between copyright rights/law and the public enjoyment of music. You don't have to pay to test drive a car, but you certainly can't drive it home without paying for it. You don't have to pay to try on clothes, but you certainly can't walk out of the store with them on. Similarly, isn't there a crossroads where the right to get compensated has to bend to the right of the public to "try before you buy"? I believe that point is here @ the 30-second clip mark. I sincerely believe that most performing artists feel this way; they WANT people to hear their music! Should they get paid for that music? Of course. But licensing companies, especially PROs that supposedly have the interests of artists in mind, should recognize when the need to get compensated is overshadowing the greater good (and potentially bigger profits for artists in the long run).

The Power of He-Man and Branding for Adults

By: Steven Shapiro, Esq.

I had the pleasure of growing up a child consumer in the 1980s. It’s POSSIBLE that I might be a little biased here, but there was no better time to BE a child consumer than the Reagan years. Watching 80s Cartoons was like peering through the window of KBToys… if KBToys still had window through which you could peer. And we loved every minute of it.

G.I.Joe. Bionic Six. Transformers. Thundercats (HOOOO!). I could go on, but let’s not allow nostalgia to derail us. Otherwise, we’ll be making vroom noises on our office floors with our M.A.S.K. car/tanks and motorcycle/helicopters.

As you can see, I dabbled in many a horizontally integrated sandbox growing up. But Masters of the Universe was by far my favorite property. Every way that you could interact with a brand, I bought into Masters of the Universe. I watched the cartoon show religiously. I had the clothes. I ate the cereal. I slept on the sheets. And of course, I collected every single action figure that came out. Especially the ones that transformed into boulders.

I propose that the licensing industry has matured with us over the past twenty+ years. 80s Saturday Morning Cartoon properties like He-Man paved the way for our current acceptance of adult licensed products in an unprecedented way. I use the word ‘adult’ to mean just about anything that isn’t an action/adventure cartoon. No longer does a brand’s reach expand to ancillary products only in the realm of child products. As adults, we might watch our favorite cook on the Food Network, but we don’t stop there. How about buying some Food Network brand kitchenware? Or, what if USA Today is your go-to newspaper when you’re traveling? Check out what other travel amenities USA Today has to offer in its airport convenience stores. Few of us have been formally trained in cross-platform brand productization, but most of us dig connections between an entertainment source and a given product line. Why? Because Saturday Morning Cartoons made us more receptive to those kinds of connections!

So in parting, I leave you with Stonedar… rockin’ out: http://www.youtube.com/watch?v=NmQTfNuZTyc

Looks like Mickey Just Ate Spiderman...

Now there's a mental picture that should last you the rest of the afternoon, huh? It's not as carnal as it sounds though; Disney announced today that it is acquiring Marvel Entertainment Inc. and ALL of it's over 5,000 characters.

Some of you may be thinking "So what? It's just another deal." Well, I'm taking this one personally, so watch it. First of all, Mr. Shapiro is a huge comic book and Marvel fan... so in weird way I get to shove this into his face. My company ate yours, nah-nahnah-nahnaaaaaah-nah. (Sorry, momentary lapse in maturity..) Secondly, I am a HUGE Disney fan; I grew up in Florida, and my ties to the magic of Disney run deep. I take my Disney experiences very seriously, and any change in the "magic" of the franchise is a big deal to me. Some of you are probably thinking I'm completely out of my gourd right now, but if you're not a Disney fanatic, it's difficult to explain. If you are, you get exactly what I'm saying.

That said, what does this mean for Disney's brand? Namely, the theme parks - Does this mean we'll be seeing Spiderman @ Disney World now? And tied into that, what about Marvel's section of Island's of Adventure? That's a Universal theme park! So are my friends going to see Spiderman in Disney World AND Universal? That's a branding disaster, right there.

I understand there are a myriad of other branding outlets that can be explored to exploit the property while the theme park aspect gets wrapped up. EDITORS NOTE: My understanding is that the licensing deals currently in place will remain in place until they expire. But my point is that with such monumental brand and trademark staples, the integration into a new (larger?) brand such as Disney is sure to be full of interesting twists and turns. We shall see...

Continuity: Licensing, Product Placement and the Comic Book Industry

By: Steven Shapiro

I did a double take the last time I walked into a supermarket. Prominently displayed for sale in the beach toys was a boogie board with a giant image of Smiley: The Psychotic Button screened on it. Yes, the blood-thirsty, imaginary friend-given-life of Chaos! Comics’ Evil Ernie… on a boogie board.

I mean damn.

For the uninitiated, Evil Ernie was one of the most metal comics produced in the 90s. Chronicling the undead adventures of an emotionally disturbed, yet psychic (!), teenager, who cut a swath of terror across the American heartland in order to bring his one true love, Lady Death, back to Earth, Evil Ernie was like a zombie movie dipped in a Dethklok concert and baked at like a million degrees. Unfortunately, Chaos! went belly up back in 2002 and sold off all of its kickass intellectual property. And though Lady Death’s skull-studded bikini has found a home on wince-inducing D2V cartoons and a series of sword & sorcery books that feel more like Dungeons and Dragons than Demons and Wizards, Pulido and Hughes’ brutal heavy metal icons have not reached anywhere near their former epic glory.

This in mind, coming across Smiley: The Psychotic Button seven years later as a brand license deal for a boogie board was disconcerting. Stephen Hughes is a pretty remarkable artist and his imagery clearly has value beyond the page. So much so, that some kid who has never heard of Ernest Fairchild might want to identify with that toothy grin and skull & cross-bone icon. But is the goal here to suck every last shred of brand equity out of these properties? Marc Gobé, the fantastic author of Emotional Branding and Brandjam, would have us believe that if we have learned anything from the Apples or Googles of the world; it’s that brands should not be about commoditization, but individualized resonance. There is a subsidiary of Omnicom out of Chicago called RiverWest, which is part brand licensing agency and part venture capital house. At RiverWest, they take ‘dead’ brands and reanimate them into ‘zombie’ brands. By this, I mean that RiverWest takes defunct companies that pretty much exist only as intellectual property (trademarks and maybe a trade secret or two) and infuses a management team and capital into it to make the brand live again.

Appropriate, hm?

Making a zombie brand of Evil Ernie and friends would create a certain poetic justice that the ‘90s nostalgia hounds as well as a group of metalheads, who would never dream of entering a comic shop, would dig. Chaos! Comics largely zombie and horror-related properties slated to come back from beyond the retail grave? Epic. Yet diluting the brand through window-dressing fast cash hits, not only fails to achieve this resonance, but can place the goal of capitalizing on the long term equity in the emotional reaction to the Chaos! properties that much harder to accomplish. No one likes a sell-out. Especially when the brand is on its sunset or, in the case of the Chaos! properties, past it.

Consumers are savvy. Whether they have the language to articulate their opinions on marketing campaigns or not, they know what they like and they know what works. As Gobé would remind us, what ‘works’ isn’t necessarily logical either. But these consumers, who have been inundated in marketing noise since they were infants watching Sesame Street, are kinda cynical. If a brand licensing campaign causes them to be jarred out of the ‘magic’ of the retail experience, its failed.

Related to this, and though it KILLS me to call attention to it, is the product placement buzz that’s been plaguing one of my favorite comic titles, The Amazing Spider-Man. Marvel has apparently entered into a deal with mattress retailer, Sleepy’s, to incorporate Sleepy’s logos and ads into the billboards depicted in Marvel’s flagship title. Of course, cash is king, and if Sleepy’s is willing to pay for the 2-D real estate of Puny Parker’s Friendly Neighborhood, I can’t really fault Marvel for assenting. But where’s the cross-promo synergy? Spider-Man moonlights as a superhero- he’s not even in bed that often, right? Is this a Ford Mustang Pony Girl thing, where we’re trying to get consumers’ loyalty BEFORE they have the need or ability to buy? When a fanboy moves OUT of his parents’ basement, he’s going to need a bed of his own-- and he’ll turn to the Mattress Professionals for it.

I would argue that there has to be other prominent brands with deep pockets that actually resonate with a comic book fan (and more importantly, potential NEW comic book fans!), avoid that jarring electro-shock of inappropriate pairings, and give back to both brands. In the case of Spider-Man, the tried & true everyman from New York, how about the New York Mets? Unlike most comic book fans who debated whether The Mighty Thor could beat up the Incredible Hulk in a fight, my friends and I discussed whether Peter Parker was a Yankees or a Mets fan. Not that I’m biased, but CLEARLY, the kid from a working class family in Queens, would identify with the blue collar underdog vibe of the Mets brand. And Mephisto’s Brand New Day aside, did he get married in the Bronx or did he get hitched at Shea Stadium?! ‘Nuff said. Spider-Man plus the Mets could sell books, tickets and contribute to the promotion of the mythology of both New York icons.

So the moral of the story is continuity isn’t just about whether Spider-Man was in the Savage Land with the New Avengers at the same time that he was battling the new mandibled Vulture in Amazing. Or whether it’s cheaper to just dust off the cool old psychotic button, rather than make something new and cool for that boogie board company. Brand licensing and product placement tools are also aspects of a long game. They are about fidelity across product lines and industries towards the goal of promoting the narrative of all brands in play.

Steven Shapiro is an attorney and Vice-President at Exemplar Law Partners, LLC. He specializes in brand licensing in the comic book and apparel industries.

The Reason Why I Can Do Without a Don Draper Action Figure

By: Steven Shapiro, Esq.

As many of you may have seen this past week, Banana Republic has entered into a co-marketing deal with AMC’s Mad Men to promote the latest season of the hit ‘60s era period drama. I admit that I am relatively new to the Mad Men bandwagon, but if you’re looking for a show that teases out the almost other-worldly anachronisms of early ‘60s culture, this is the one.

Beyond a doctor smoking a cigarette in a gynecology ward, the most striking thing about Mad Men is the fashion. Any given issue of GQ will tell you that the American-Style of men’s fashion was buried with Cary Grant. In contrast, Mad Men showcases a throwback to when the American man could dress—pocket squares, tie clips, fedoras and all. Even before I started watching the DVDs, I started intergrating three-piece suits in my everyday business attire. Can we say that Mad Men sparked a resurgence in the well-dressed American? Or perhaps we can say that the show merely (and perfectly) rode an already forming fashion zeitgeist? Either way, Mad Men reminds us that dressing sharply is striking.

What’s also striking is that the producers of this program about a Madison Avenue Ad Agency actually get marketing. Over the past season, we have seen some well-executed product placement endeavors featuring Sterling Cooper account execs sitting across from famous real world prospects like Heineken and Cadillac. But the current promotion running in tandem with Banana Republic further demonstrates that not only can they do marketing, but that they can do it authentically and seamlessly. Could any other retail store connect with the property, fashion and viewers of this show better than Banana Republic? Go to BR’s website to find full-length character profiles paired with Banana merchandise that calls to mind the Mad Men Look.

But… why stop there? The ingredients are already here, why not take the plunge and make this an iconic licensing relationship? As Michael Stone, President/CEO of The Beanstalk Group, is often quoted, licensing is NOT a non-strategic, transactional decoration exercise, but an opportunity to build enduring brand equity through “…match[ing] or extend[ing] the brand to products so authentically that the brand enters consumers’ lives in ways that are unpredictable, but natural.” Look at Trump, Inc.’s relationship with Van Heusen for dress shirts. It took time and energy to build from Donald Trump’s persona to The Apprentice to Macy’s best selling high quality branded line of men’s wear. The title to this article may seem silly, but that is exactly what happens when licensors omit such time and effort from a licensing program— at best, no one cares and, at worst, everyone groans! Don Draper action figures with waist-activated infidelity action? LICENSING FAIL. Toys would not cause the brand to resonate with viewers.

Whether intended or not, this co-marketing promotion has created just such an unpredictable and genuine relationship between Mad Men and Banana Republic in the minds of consumers. So why stop at showcasing vintage suits next to pictures of actors, when you could launch The Sterling Cooper Line from Banana Republic? Mad Men would certainly benefit from the exposure of having an official vintage clothing line and all those men (and girlfriends/significant others/moms shopping for those men), who dig that vintage look, are going to have a direct tether back to the exclusive retail location showcasing the official men’s wear of Mad Men. For what it’s worth, I’d buy Mad Men-inspired attire.

So while I may be shooting my dream of having my own 6” Christina Hendricks plastic idol in the foot, bringing these two brands together was brilliant and they should continue to intertwine them. Besides, Firefly’s Saffron getting the action figure treatment makes a lot more sense than Joan Halloway.

Steven Shapiro is an attorney and Vice-President at Exemplar Law Partners, LLC. He specializes in brand licensing in the comic book and apparel industries.

Songs v. Recorded Music, or Artists v. Labels

In my line of work, I do quite a bit of copyright consulting for my customers, many of whom are musicians. My approach to copyright registration is more "teach a man to fish" than "give a man a fish"; as an integral part of their careers, I think artists should be empowered to learn how to register and manage their copyrights. This is especially important if the artist later signs with a label or a publishing company, who may be administering the copyright on the artist's behalf. An artist needs to be able to read royalty statements and understand which copyrights are generating which type of income.

Tied to this, I frequently hit a road block when I talk to musicians about recorded music. Every piece of recorded music actually embodies two separate copyrights - one for the actual "song" and one for the actual "recording" or "master." For example, if you would like to record your own version of a song, you need only license the copyrights associated with the "song" itself, not the recording. However, if you wish to sample a bit of recorded music, you must license both copyrights associated with the "song" and the "master."

Enter the issue of contention between Artists and Labels: when an artist signs a recording agreement, they retain the copyrights to the songs (subject to any publishing agreement they may have signed), but any recordings made of the songs under the label belong to the LABEL. This is an unfortunate industry standard that very few artists have been able to avoid. Case in point: British artist Calvin Harris lashed out on Twitter when YouTube removed a music video of his song that he posted himself. The article cites that the copyrigt claim was most likely put forward by BPI, a representative for the recorded music industry. Recorded music = labels. I can totally understand why Calvin Harris is pissed off, but my assumption here is that he probably doesn't own the rights to the masters; his label does. This disconnect in copyright ownership creates inherent and added friction to the already strained relationships between artists and labels.

So how can we stop this? There needs to be a balance here. If the recording industry wants to keep the standard of owning masters (which I'm sure they do), they should be extending licenses back to artists to promote their recorded own work. Artists extend that right to labels by licensing their name and likeness for labels to use for promotional purposes, so license should be reciprocated. The idea that an artist can't post their own recorded music on a FREE site for their own promotional purposes is simply ludicrous. In this digitally driven world, there needs to be new and reasonable standards for labels. After all, in the words of Calvin Harris, "it's my fucking song you absolute bastards."

Local Boston Artist Launches Healing DVD

Over the course of the last few months, I have had the privilege of representing one of the kindest and sweetest artists in the Boston Area - Ms. Linda Dehart, a seasoned and talented artist specializing in watercolors. In October 2008, Ms. DeHart approached myself and a colleague witha big dream: she wanted to create a DVD that synchronized 1,000 of her watercolor paintings to ten pieces of healing music. This project was going to be massive and unlike anything she had ever undertaken; it would require a full web team, a marketing and PR team, and organizational team, and, of course, a legal team. From a legal persepective alone it required substantial drafting and negotiating of 3 separate copyrights: a synchronization right ("synch"), a master use right, and a public performance right (as the DVD would be marketing to health facilities who would play it publicly at their offices, in patient rooms, etc).

A quick copyright diversion for those interested - copyright owners hold 6 "exclusive" rights: the rights to 1) copy/reproduce; 2) distribute; 3) create a "derivative work"; 4) publicly display; 5) publicly perform; and 6) perform publicly via digital transmission. If you wish to do anything with a piec that someone else wrote/painted, etc., you need to get specific permission (except in some instances where you can go through one organization that issues that type of license). When you "synchronize" music to any image, you must negotiation straight with the copyright owner. Luckily, all of the artists Ms. DeHart was working with own all their own copyrights, save two, which were own by record companies. So on my end, there were 10 licenses to negotiation, each with 3 different rights in them.

This was the first project that I had licensed from beginning to end, and I was honored and proud to be a part of it. The launch of the DVD was last night at the British Consulate Offices in Cambridge, MA and it was just beautiful. I would urge everyone to visit www.dehartart.com and check out the samples of each of the tracks, which are designed to offer a broad range of healing, from a mere moment of repose to relief from serious pain. I hope you will find them as relaxing as I did, and in such a busy world, I believe we all deserve a moment to ourselves during the day.