Tag Archives: music

Free Samples? Or Risky Riffs?

 

“I need a unit to sample and hold. But not the angry one. A new design.” Sample and Hold, music and lyrics by Neil Young

free sampleDigital sampling has become a staple of the recording industry. What’s sampling? It’s taking a snippet from one recording and splicing it into a new one. Typically, the sample is just a few bars, even a few notes. And it’s likewise typical for the producers and artists to digitally tweak those few bars or notes to alter their pitch or key and adding additional embellishments. As often or not, the listener is unaware that the “new” recording includes a “re-purposed” sample.

But is it kosher to lift a fragment from one copyrighted recording and implant into a new one?  That question has produced judicial sparring that rivals the most thorny of Talmudic conundrums.

Until last week, only one U.S. Circuit Court of Appeals, the Sixth Circuit, whose territory includes Nashville, aka “Music City,” had weighed in on this issue. It did so with Draconian precision, laying down a bright-line test. The case was Bridgeport Music Inc,. v. Dimension Films. The sample in question consisted of a chunk of guitar funk plucked from a recording of “Get Off Your Ass and Jam” by George Clinton. Specifically, a two-second sample from a four-second guitar solo was copied, the pitch was lowered, and the copied piece was looped and extended to 16 beats. Neither the brevity of the sample nor the transformation it underwent was enough to avoid a finding of copyright infringement.In the Sixth Circuits view: “[a] sound recording owner [and only a sound recording owner] has the exclusive right to ‘sample’ his own recording.”  And while a “de minimis” exception applies to other types of works (that, is, you likely can copy a phrase or two from a 400 page book without infringing the author’s copyright), the Sixth Circuit held that sound recordings are different. Samplers hoping to invoke the de minimis exception need not apply. In other words, if you want to sample, get a license and pay the piper.

But doesn’t that rule stifle creativity, which is what copyright law’s supposed to encourage? Not according to the Sixth Circuit. Leaning towards protecting the commercial interests of record labels and artists, the Court rejected a free-ride philosophy in favor of a market-driven approach. The Court identified two main reasons why musicians sample–either the sample adds value to a new recording because listeners recognize its original source, or it adds value by saving the cost or recording the same riff a second time. In either case, the sampler gets something of value, and should be willing to pay for it. Let the market decide the price.

But just last week, the Ninth Circuit Federal Court of Appeals, which includes L.A. within its jurisdiction, took the Sixth Circuit and its bright line approach to task. That case, VMS Salsous v. Ciccone (aka Madonna) also involved mining a prior recording for a musical sliver and then sliding it into a new track. In this case, the sliver was a .23 second “horn hit”–four trumpet notes forming a single chord, that originally appeared in the mega-hit dance track Ooh, I Love It (Love Break), recorded by producer Shep Pettibone in the early 1980s. In 1990, working with Madonna, Pettibone reached back to Love Breaks to salvage that same horn hit, doctoring it up in the process, transposing it to a new key, truncating it, and even adding other sounds to the chord itself.

If Pettibone and Madonna had worked this musical alchemy in Nashville and had been sued for copyright infringement there,  they would have been found guilty under the Sixth Circuit’s Bridgeport decision.  The Ninth Circuit, however, concluded that its sister court’s logic was badly flawed and that its refusal to apply the de minimis exception was dead wrong. The panel of three West Coast judges saw no basis in the Copyright Law or its legislative history to treat sound recordings any different from other works, such as books. That’s good news for recording artists who happen to be sued in L.A. or other places within the Ninth Circuit. But the Ninth Circuit’s ruling doesn’t change the Sixth Circuit’s decision, and it leaves artists in New York, Austin, Chicago, St.Louis, and other music towns on uncertain ground.

Such a  spat between two Courts of Appeal, however, may be the overture for the Supreme Court to step in and call the tune on digital sampling. Should music sampling be free, as the Ninth Circuit found? Or should producers have to pay to play, as the Sixth Circuit concluded? The answer may not be blowin’ in the wind, but its not exactly clear either. In other words, don’t be surprised if the Supremes refuse to decide whether digital samplers must “stop in the name of law” and leave the issue for Congress to sort out. And that could prove to be a “long and winding road.”

QUOTE OF THE DAY:  “People go back to the stuff that doesn’t cost a lot of money and the stuff that you don’t have to hand money to over and over again. Stuff that you get for free, stuff that your older brother gives you, stuff that you can get out of the local library.” Frank Black aka Black Francis.

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David’s In The Kitchen With Finnegan: INTA In DC

“Well this is my back yard – my back gate I hate to start my parties late.”  My Party, Dire Straits

This blog is dedicated to chronicling the intersection of music, art, culture, politics, and IP law.  All of those forces came together spectacularly last night as my law firm, Finnegan, hosted its 16th concert reception at the International Trademark Association’s Annual Meeting here in Washington D.C.   Back in ’97, we at Finnegan hit upon a recipe for party success–combine an inspiring setting, superb cuisine and convivial beverages, first rate music, and a few thousand of your best clients, colleagues, and friends, mix cleverly, and voila–you have an event to remember.  From San Francisco’s legendary Fillmore West to the House of Blues, Boston, these soirees have become the marquee event on Tuesday night at INTA.  Last night was no exception.  We took over the Newseum–a stunning architectural gem situated between the Capitol and the White House, and dedicated to news and journalism.  As soon as the doors opened at 9:00 p.m., a stream of IP professionals from around the world wound throughout the building, exploring provocative exhibits ranging from 18th century newspapers to portions of the Berlin Wall and the Twin Towers.

Providing the soundtrack for the evening was DC favorite David Kitchen and his crack band.  Combining the verve, energy, and harmonies of the Beatles with the soul and grit of Roots music,  Kitchen and the band captivated an audience of thousands, inspiring several revelers to kick up their heels in the Newseum’s main atrium.  A masterful cover of Todd Rundgren’s “In Your Eyes,” brought the vibe to crescendo level.  Moments later, the clock struck 11:00, and like IP Cinderellas, our crowd was ushered out the Newseum doors into the misty Washington night.  There, with the rotunda gleaming to the left and 1600 Pennsylvania Avenue beckoning to the right, all thoughts of contentious legal and political issues melted away.  We were aglow.

Music has a way of doing that.

QUOTE OF THE DAY: “There was music from my neighbor’s house through those summer nights. In his enchanted gardens, men and girls came and went like moths, among the whispering and the champagne and the stars. I believe that few people were actually invited to these parties. They just went.”  Nick Caraway, The Great Gatsby, F. Scott Fitzgerald.

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Once You’re Gone, You Can Never Come Back? Golan v. Holder Takes Copyright to New Heights

“Out of the blue and into the black.  They give you this but you pay for that.  And once you’re gone, you can never come back.”  Neil Young

In “Hey Hey, My My,”  Neil Young lamented the fates of Elvis and Johnny Rotten.  But his lyrics could have applied as well to the fates of  many songs, books, and other creative works that originated outside the United States, were protected by foreign copyright, but had entered the public domain in the United States.  Those works  free for anyone to perform, reproduce, or use in this country.  That situation was a boon for orchestras, singers, publishers and others, who had a trove of material to use for free.  At least that was the case until the U.S. Congress stepped in.  In 1994, Congress passes a law to implement treaty obligations imposed by a global agreement–the so-called Uruguay Round.  The law essentially rescued a large volume of foreign based works from the public domain and put them back under copyright.

The law threatened to impose a hefty toll on users who had become accustomed to using those works on the public domain’s “freeway.”  So a coalition of orchestra conductors, educators, performers, motion picture distributors, and others challenged the law.  They argued that the law violated the Constitution, challenging Congress’s right to resurrect works whose copyrights had died.  They also complained  that the law trammelled their freedom of speech.  The case is known as Golan v. Holder.

The U.S. Supreme Court, in a 2012 opinion by Justice Ginsburg, rejected the challenge across the board.   The Court confirmed Congress’s power to restore copyrights, just as the Court had previously affirmed Congress’s power to lengthen their term.    The Golan v. Holder decision confirms that works protected by foreign copyright also enjoy the protections of the U.S. Copyright law for the rest of their term in their home country, even if those works had entered the public domain in this country.  And the Court showed no sympathy for the challengers’ claims that plucking works from the public domain would put free-riding performers on the sidelines or in the poorhouse.

So now, orchestras will have to pay to play Prokofiev’s Russian-born Peter and The Wolf,  just as they pay to perform Aaron Copeland’s quintessentially American “Fanfare For The Common Man.”  But the United States will be able to honor its Uruguay Round obligations, U.S. copyright law will be harmonized with international standards, and, to paraphrase Neil Young, everyone can “Keep on Rockin ‘In the Free World,” just not for free.

Quote of The Day:  “If music be the food of love, play on. ”   William Shakespeare

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Marching To The Same Drummer: Hal Blaine and The Wrecking Crew-Coming To A Theater Near You?

“Lie la lie, [Crash], lie la la la lie la lie, lie la la [crash]!”   The Boxer, Paul Simon

Elvis, Sinatra (Frank and Nancy), The Mamas and The Papas, The Beach Boy, Simon and Garfunkel, The Righteous Brothers, Sonny and Cher, Steely Dan, The Byrds, The Association, Herb Alpert and The Tijuana Brass, America, The Monkees–these diverse musical legends seemingly have little in common, both in terms of their music and the personnel who performed it.  Appearances and sounds, however, can be deceiving.  All of these icons relied on one man to pound out the beat in the recording studio.  From the big drum echo crashes in The Boxer to the emphatic thud that kicks off California Dreaming,  that man was legendary session drummer Hal Blaine.

Blaine was not alone in providing expert, albeit nameless, faceless musical punch to the music of he sixties and seventies. He and a handful of equally superb musicians formed a collection of studio players for hire that became known as The Wrecking Crew.  Similar to the session men at Motown known as the “Funk Brothers,” the “Crew” could be relied on to create just the right  sounds and moods  through their expert playing and uncanny skill at devising arrangements on the fly.  A few of the Wrecking Crew went on to stellar careers of their own, most notably Rhinestone Cowboy Glenn Campbell, and piano player Leon Russell.  But the rest, like Blaine and guitarist Tommy Tedesco, remained unheralded and anonymous, not even earning mention on the liner notes of the many hit albums they created. But their work was prolific and prodigious.

The Funk Brothers’ unsung genius finally came to light through the marvelous documentary Standing in The Shadows of Motown.  Now The Wrecking Crew is poised to get the credit that is long past due via a documentary of their own.  www.wreckingcrew.tv   Tommy Tedesco’s son, Danny,  has a film in the can that pays homage to his dad, Hal Blaine, and the others.  It’s been shown and won awards and acclaim at SXSW, Sundance, and other film festivals.    It should be coming to a theater near you.

But there’s just one hang-up.  The Wrecking Crew played on so many records, for so many artists, on so many labels, that wrangling the necessary copyright clearances and licences for the film’s trove of music clips has proven quite the chore.  And an expensive one at that.  While the filmmakers behind Standing In The Shadows  had only Motown to deal with, Tedesco and company have had to haggle with multiple labels.  As recently reported in The New York Times, Tedesco says that “There are 132 music cues in this film, and you’ll know 99.9 percent of them. But when I asked one record company for a quote, they said it was going to cost $2.5 million.”  He’s been able to strike better bargains, but he is still short on cash to the tune of around $175,000.

According to the Times, with the music business on the skids due to declining record sales, digital piracy, and the stagnant economy, the record labels have tried to grab any opportunity to profit from their catalogues.  That’s spelled trouble for Tedesco and the film’s other producers.  But they have persevered.

Fundraisers, including a concert and an online campaign, are in the works.  Hopefully, before too long, the beat will go on and The Wrecking Crew, The Film will have its long-awaited  theatrical release.    Until then, we’ll have to make do with the trailer and all the great music that forms the Wrecking Crew’s true legacy.

Watch the trailer and learn how to donate @ http://wreckingcrew.tv/

Read the New York Times article @ http://wreckingcrew.tv/nytimes0412.pdf

QUOTE OF THE DAY:  “I didn’t realize the [bands] didn’t play on their own records until the Monkees came on [American Bandstand].”  Dick Clark

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No Direction Home?: British Boy Band One Direction Hits U.S. Shores and Trademark Shoals

“How does it feel?  To be on your own.  With no direction home.  Like a complete unknown.”  Bob Dylan

Those old enough to remember The Beatles debut may be surprised to learn that another British Invasion is underway a generation later.  Back in ’64, a nation roiled by tragedy discovered a quartet of musical savants, boyhood friends who honed their chops in the dank basement clubs of Liverpool and Hamburg.  A gifted producer, George Martin, molded their virtuosic talents to produce the greatest library of pop music the world has ever known.  When the cadaverous Ed Sullivan brought their infectious music into our living rooms on a winter’s eve, he instantly lifted the pall that had blanketed America since that dark Dallas day in November of ’63 and changed the world of music forever.

Today, our shores are graced by another collection of British lads, brought together by an even more formidable  impresario–Simon Cowell, the dyspeptic English architect of American Idol and The X-Factor.  The man whose scowl has sunk a thousand careers and launched several others.  This time, instead of a Fab Four, we have a pre-fab five called One Direction.  This band’s music has been percolating among tweens and teens for almost a year.  Now, One Direction is shattering the mainstream in a huge way.  The band has a number one album, outstripping the latest release by American icon Bruce Springsteen.  And they’ve had their own televised intro to the American viewing public via a coveted performance on Saturday Night Live.

By almost every measure, the “one direction” these phenoms seemed headed was up.  Nothing stood in the way of their meteoric rise–nothing that is except “softrights’ in the form of a trademark claim by another band by the same name–an unheralded American group also called One Direction.  Hailing from Los Angeles, that homegrown One Direction claims to have coined its name in 2009, well before the British belters even caught Simon Cowell’s ear.

If the American band’s claims of prior adoption and use pan out, it could spell trouble, with a capital T that stands for Trademark Infringement.  American trademark law gives ownership of a band name to the outfit that uses it first in this country.  With nothing to lose and everything to gain,  America’s One Direction has fired the opening salvo in a legal dispute that could wind up sending the British band to the wings.  In their complaint filed in a U.S. Federal court, the L.A. band seeks damages to the tune of $1 million as well as an injunction that would force Simon Cowell’s proteges to pick a new name.

The dispute is still in its infancy, but already, the British One Direction faces a stark choice, either pay the piper to continue using the name under which its accumulated fame and fortune, or take its chances before an American judge and Los Angeles jury.

Whatever the outcome, Simon Cowell’s “direction” in building his next international super group will surely include a visit with a U.S. trademark lawyer.  As for the American One Direction, the answer to Bob Dylan’s questions from “Like A Rolling Stone” is hardly blowin’ in the wind.  With their lawsuit taking center stage, being a complete unknown must feel pretty, pretty good.

Quote of the Day:  “If you don’t know where you’re going, any road will take you there.” George Harrison.


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