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Harvard Law School Lecture – December 5, 2012

 

I will be speaking at The Harvard University Law School today between noon and 1:15 PM in Wasserstein Hall 3036.  The subject will be my work in, and take on, music copyright, intellectual property, tech and entertainment issues.  This is a great honor and I am very happy to have been invited.

(If you haven’t been to campus, there is a magnificent statue of John Harvard.  It has always looked like this, except for a few hours in 1996 when MIT students dressed him up to look like the Unabomber.)

*   *   *   *   *   *   *   *

This blog post will also double as my notes or at least a guide to the order of subjects.  I’ll be able to see this post on a monitor or my iPhone while my iPad plays the music.  I’ll also bring a DVD or two, unless I choose to access the same material on the Very Wide World Spider Web.

Videos I will use:

Excerpt from film, “BASEketball”  –  Joe Cooper says the name, “Steve Perry, Steve Perry!”  He then sings the opening line  –  “And I should’ve been gone”  –  from Steve Perry’s “Oh Sherrie.”  Did this need to be licensed?

And Woody Guthrie’s “This Land Is Your Land.”  In 2004, Greg & Evan Spiridellis created a video parody of Jib Jab – Woody Guthrie.  Their docile, innocent not-for-profit two-minute video went viral becoming the first Internet mega-hit and drew the wrath of a publisher.  I was involved in the defense of this.  I might talk about it  –  maybe give my take on whether this is a parody, satire, parodic satire, satiric parody, or some of more of those words, as well as other issues that arose.

*   *   *   *   *   *   *   *

As of now, my first Harvard Law set list will cover:

Tracks 1 – 7   Infringement?  Not Infringement?

Tracks 8  –  16   Parody?  Not a Parody?

Tracks 17  –  27   Mashups

Tracks 28  –  36   Sampling

Tracks 37  –  48   Advertising, Right of Publicity, Copyright

Tracks 49  –  74   Evidence/Exhibits I will use

Tracks 75  –  78   Licensing issues

Tracks 79  –  80   Co-Writing/Joint Works

Tracks 81  –  96   Originality, Copyright Myths

Tracks 97  –  118   Big Publishing Mistake

This is not firm and these examples vary in length from 2 seconds to 120 seconds.  I might jump around (I’ll resist the urge for a Jump Around link as it is too predictable).

*   *   *   *   *   *   *   *

Most significantly and solemnly to me, my Dad, Edward F. Harrington, died on December 5, 1991.  This day is always very important to me.  I was the luckiest person to be his son.

 

 

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I’ve Had The Time Of My Life & Do I Owe It All To Sandals.com Ripping Off The Beatles?

Yesterday (November 26, 2012) I posted about the Beatles, specifically, intros to Beatles songs.  I ended yesterday’s post with this:

The Beatles amped up the strong, loud and cutting intro with the song, “Getting Better” from Sgt. Pepper’s Lonely Hearts Club Band.  The intro to The Beatles’ Getting Better features strong sforzando guitar and keyboard again but this time, in addition, the strings of the piano are struck with mallets to make it an even more brittle, piercing sound.  Because “Getting Better” has such a distinctive and unique intro, it could be used or imitated for special effect.

I heard (and saw) a commercial a few years ago that I knew immediately was a strong reference to the opening of The Beatles’ Getting Better.  This commercial is still running and can be heard frequently on U. S. television stations, and as of last week, I have finally been able to find it on YouTube.  Do you know the commercial to which I refer?

I’ll discuss it tomorrow.  To me, this commercial is the essence of “reference” and “referencing” music, an important practice in contemporary advertising.

*   *   *   *   *   *   *   *   *

Now it’s tomorrow (almost a Ringo-ism).  

The television commercial to which I have been referring is for Sandals.com.  In the commercial, young good-looking people are taking vacations in tropical locations.  (For nanosecond subliminal flashes, one also sees an elderly but healthy looking retired couple who might have escaped from their assisted living penitentiary and are also dancing on the beach.  But they don’t count as we are lead to believe that these Sandals paradises are inhabited only by the young and beautiful.)

A famous song, “(I’ve Had) The Time Of My Life,” recorded by Bill Medley and Jennifer Warnes, that was featured in the finale of the 1987 film, “Dirty Dancing,” serves as the essential song of the commercial.  If one didn’t know better, however, one might assume that the Sandals.com commercial is for a song entitled, “Do It All Again,” or

perhaps a medley/mashup of three (3) songs  –

“Getting Better”

“(I’ve Had) The Time Of My Life”

“Do It All Again”

Listen to the introduction of both songs  –  The Beatles’ “Getting Better,” and the Sandals.com arrangement of “(I’ve Had) The Time Of My Life.”  The forceful, repeated staccato chords.  Do you think they sound the same?  Similar?  Not similar ?  Not even remotely similar?

[PLEASE NOTE:  Today, August 17, 2013, I discovered that the Sandals link below had been removed – it was suddenly “Private.”  As of 11:30 AM Central, I found this new link of the same commercial.]

Sandals – Do It All Again    

Listen especially to the opening fifteen (15) chords.  Here it is again,

or to better fit into this context:

“Do it all again, do it all again.  Do it, do it!”

Sandals – Do It All Again

Listen to the opening eight (8) chords of  The Beatles – Getting Better.   Here it is again:

 The Beatles – Getting Better

Now:

Sandals – Do It All Again

 The Beatles – Getting Better

*   *   *   *   *   *   *   *   *

Q U E S T I O N S 

Does Sandals sound like The Beatles?

Does Sandals rip off The Beatles?

Does Sandals infringe The Beatles?

Does Sandals sound too much like The Beatles?

Is the Sandals/Beatles issue a copyright problem?

Is the Sandals/Beatles issue a right of publicity problem?

Is the Sandals/Beatles issue an unfair competition problem?

Would a listener/viewer think that The Beatles are associated in any way with Sandals?

Is there a Sandals/Beatles problem?

Should Sandals have to pay The Beatles?

Should the Sandals commercial be no longer broadcast (in order to remedy The Beatles)?

Should Sandals pay The Beatles and stop broadcasting the commercial?

*  *  *  M O R E      Q U E S T I O N S *  *  *

Is this practice of sounding like/referencing well-known songs common?

Is this practice of sounding like/referencing well-known songs in commercials common?

Is this practice of sounding like/referencing well-known songs problematic?

Is this practice of sounding like/referencing well-known songs in commercials problematic?

Is this practice of sounding like/referencing well-known songs the same as “copying?”

Is this practice of sounding like/referencing well-known songs in commercials the same as “copying?”

*   *   *   *   *   *   *   *   *

Instead of The Beatles and/or a famous song, substitute an unknown band signed to a small record label, and an unknown song, in all of the questions above.

Would this change any of the answers?

I have many more questions but this is enough.  As always, I look forward to your response.

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Talk Amongst Yourselves, Turn Me On, Beatles One Louder, the Buttocks Bowl

This week is beginning perfectly.  It is sunny up here on Wingaersheek Beach in Gloucester.  Thanksgiving was a great one in Massachusetts as we New England Patriots fans owe gratitude to the New York Jets for their comic ineptness on Thanksgiving evening  –  I’m calling it the Butt Bowl  –  and projects of mine are getting completed.  And I’ve been invited to speak about my work in copyright and intellectual property at the Harvard Law School again.  All good things.

*   *   *   *   *   *   *   *

How can you get one’s attention?  Play a Beatles recording.  Play something loud and very noticeable. Maybe the intro to a Beatles song.  If one wants to hear a loud, striking, very original opening of a Beatles song, one that will really hit the ear, there is one song that WILL not do it.  It would be the WORST BEATLES SONG, worst only in terms of making a listener notice.  What is the Beatles song LEAST likely to get one’s attention?  “Eight Days A Week.”  Remember how Eight Days A Week by The Beatles opens?  It can be heard here Eight Days A Week by The Beatles or back in the last sentence.

It……………….f  a  d  e  s…..i n……..

shhhhhhh….shh….sh… and now you HEAR IT!

That was an amazing stunt way back in 1964.  It was the first time I had heard a recording that faded in.  Songs fading out were common but this fade-in was really fun and another innovation (of many) by the Beatles.

But the subject of this post is getting someone’s attention loudly and at the opening, and a Beatles song that does both.  I want a song that is LOUD and NOTICEABLE and unlike any other Beatles song and I want the LOUD and NOTICEABLE and UNIQUE to happen immediately.  Right at the opening.

The Beatles’ She’s A Woman is a song that is loud, distinctive and original at the opening.  The song is notable for a few other reasons too.  Structurally it is often a 12-bar blues (0.10-0.42;  0.43-1.14;  1.20-1.52), with an instrumental 6-bar blues (1.53-2.09), and two (2) 2-bar bridges –  the first at 1.15-1.20, the second at 2.09-2.14.  A 2-bar bridge, you say?  And the 2-bar bridge contains the words, “she’s a woman.” !?!  If the 2-bar bridge contains the title, “She’s A Woman,” wouldn’t it be a chorus and not a 2-bar bridge?  In the words of Linda Richman… Talk amongst yourselves.

The opening of “She’s A Woman” features loud piano and guitar in unison playing the same staccato chords.  When the bass and drums enter, it becomes clear that what the guitar and piano had been playing, what seemed like downbeats, were really upbeats!  A very cool deceptive trick.  A deception as to where you count 1, 2, 3 and 4.  If you were dancing at the opening of the song, your dancing had to change a bit as your perception of the beat changed.

The opening chord  –  what one thought was the “tonic” chord, the most important, central chord, hierarchically, to all of the other chords – the “I chord” (pronounced, “One” chord)  –  was really the “V chord” (pronounced, “Five” chord), another fun deception.

I think that “She’s A Woman” was the first time the Beatles hinted at drug use.  Three times in “She’s A Woman”  Paul sings, “turn me on when I get lonely” –  at 0.32, at 1.42 and finally at 2.36.  It was not obvious in 1964-65 that “turn me on” referred to drug use, however.  Some people knew this but “turn me on” was not yet in the public lexicon.

She’s A Woman also contains the worst lyric the Beatles may have ever written –

“My love don’t give me presents.  I know that she’s no peasant.”  

Huh?  “Peasant?”  I wish Paul hadn’t pursued the giving “presents” line as then he wouldn’t need a rhyme, and wouldn’t have to relate that he knows his woman is not a “peasant.”  Of all the things I’ve ever heard ascribed to any woman, “peasant” has never  been one!

*   *   *   *   *   *   *   *

The Beatles amped up the strong, loud and cutting intro with the song, “Getting Better” from Sgt. Pepper’s Lonely Hearts Club Band.  The intro to The Beatles’ Getting Better features strong sforzando guitar and keyboard again but this time, in addition, the strings of the piano are struck with mallets to make it an even more brittle, piercing sound.  Because “Getting Better” has such a distinctive and unique intro, it could be used or imitated for special effect.

I heard (and saw) a commercial a few years ago that I knew immediately was a strong reference to the opening of The Beatles’ Getting Better.  This commercial is still running and can be heard frequently on U. S. television stations, and as of last week, I have finally been able to find it on YouTube.  Do you know the commercial to which I refer?

I’ll discuss it tomorrow.  To me, this commercial is the essence of “reference” and “referencing” music, an important practice in contemporary advertising.

 

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Do The Macarena (On A Fishing Boat In The North Atlantic With An HP Printer)

C O M M E R C I A L S

Do you like this HP Office Jet Pro commercial?  I think it is very effective.  The people are of all ages, attractive (including adorable little kids in commercials, TV shows, video and film is usually a no-brainer) and very happy.  The colors are beautiful.  Everyone seems to be having fun in the upcoming celebration of AnnaBel’s birthday.  The fishermen look like good wholesome hard working Scandinavians or Scandinavian-types, and the ocean is a sapphire blue – it must be the North Atlantic.  The wood of the ships is good wood (that sounded like something Mitt Romney would have said  –   “the trees are the right height, the wood is good wood”) .  Everything that needs to be good is good.  Everything that needs to have color has color.  And so on.

But what first caught my attention is the music of this HP Office Jet Pro commercial.  Because I am always multitasking, I am always hearing television before I am watching television  For me, the trick is – if the music and/or sound is interesting enough or familiar enough, I look up.  If not, I keep writing/goofing off at my iMac while I am also looking at my iMac, not a television screen.

While working on a project, I heard this HP Office Jet Pro commercial and looked up.  What distracted me and attracted me to the commercial was the manner in which it referenced the way-too-big hit song from the mid 1990’s, “Macarena.”  (When I just wrote, M-A-C-A-R-E-N-A, WordPress thought perhaps I meant, “Macaroni,” or “Macaroon.”  No, I meant M-A-C-A-R-E-N-A.  It might take a few more years to convince the world of words that Macarena is Macarena, just as it took a long time to make “Beatles” not be “Beetles.”

“Macarena” features its hook at these eleven (11) places in Macarena:

0.41-0.50

0.51-0.59

1.19-1.27

1.28-1.37

2.14-2.23

2.24-2.32

2.54-3.03

3.04-3.12

3.13-3.22

3.23-3.31

3.32-3.40

The hook in the “HP Office Jet Pro commercial” is heard once in HP Office Jet Pro commercial:

0.07-0.17

Do you think the hooks between these two songs are similar?

Which of the following do you think is/are true?

HP Office Jet Pro commercial  copies  Macarena

HP Office Jet Pro commercial  infringes the copyright of  Macarena

HP Office Jet Pro commercial  references  Macarena

HP Office Jet Pro commercial  does not reference  Macarena

Please post your thoughts.  Maybe I’ll post mine.

One final thought re these videos:

“I like, uh, I like seeing the, uh, I like seeing the videos.  I love the videos.  There’s something very special here.  The great videos but also all the little inland videos that dot the, uh, the, uh, parts of Michigan. Um…” 

 

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Watching Me Walk Around Naked

D I R E C T V

Directv has created and is airing a sticky – to be more concise, “ICKY” – television commercial that only succeeds at showing a young couple in their loveless relationship.  And the “zinger” line, aired by the male, is mean spirited and aimed at demeaning the woman.  It suggests danger, discomfort and intimidation, not exactly positive qualities to connote by means of a television commercial.  When I first saw this commercial, I was shocked and thought, “he didn’t just say that, did he?  Yikes, this is one ugly and disturbing commercial.”

I’ve heard:

All publicity is good publicity.

Being bad is good for a reputation.

Hey, at least you remembered the commercial – you’re talking about it, aren’t you?

Yet I feel that these three sentences/sentiments do not apply to television commercials or a company’s reputation in the age of ubiquitous social media.  It’s a hard enough proposition for a telecom to have a good reputation and associated good will without the company airing an ugly and disconcerting commercial.

This awful 30-second television commercial is so bad:

FIRST  –  There’s no music.  Music should be in almost every TV/radio/Internet commercial as it can enhance the company or service’s message, as much as visual stimuli  –  art, photographs, video  –  can enhance text.  (Notice the visual for this post.)

To move slightly off the subject and introduce something to explore later:

Music accompanying a television commercial should

a)  herald the message (of the commercial)

b)  be supportive of the message

c)  reinforce the message, or best of all

d)  be memorable so that when the music is heard again, the audience will conjure up the commercial

e)  optimally, introduce a cool new music composition, style, musical artist, band or gangnam-like/macarena-like thing or other foolish fad

SECOND  –  these two young lovers (they were likely lovers in a distant time and galaxy) are at their worst and we the audience are watching the précis worst of their worst.

THIRD  –  the commercial opens with what looks to be the making of an Alfred Hitchcock-Janet Lee-Psycho type shower murder scene – the glass is foggy, and she is naked and cannot see the danger that is lurking just outside the shower.

FOURTH  –  the woman is vulnerable and frightened by an enormous bright billboard-like sign that is waiting for her as she exits the shower.   The unrealistic large sign indicates…

“R E C O R D I N G     C O N F L I C T” 

FIFTH  –  now for the demeaning part.   Shocked by and referring to the sign, the woman says, “OK I am sick of this thing!”  He replies, “Hmm.  Well, see we have cable and if it didn’t record your shows while I am recording my shows, we wouldn’t have to deal with this” (as he points to the huge sign).  She replies, “I just feel like it’s watching me walk around naked.”  He then stops brushing his teeth and delivers his zinger, “Well, at least somebody gets to.”  He smirks, starts to brush extra hard and walks away.  Meanwhile, she looks hurt by his callousness and stands frozen, tightly holding the towel around her body.  Just before the scene fades, a message in white letters, “DON’T LIVE WITH CABLE’S CONFLICT BOX” is briefly displayed on the screen.   Finally, an unseen new male VOICE says, “Upgrade to Directv and record five shows at once.  Call 1-800-DIRECTV.”

The commercial has reminded us that a naked woman in a shower is in a potentially dangerous situation – how can Hitchcock’s “Psycho” not be implied?  Instead of being murdered by a psychotic individual, an enormous psychotic sign is there to startle her.  The only conversation after this is meant to belittle her – she doesn’t know enough about technology for the household, but if she did, the psycho sign wouldn’t be there to scare her coming out of the shower.

As an obnoxious bonus, we are reminded that as a lover, this woman is worse than she is a technophile – she is belittled because she does not know that Directv is better than cable.  Finally, we are told that at least the scary sign is likely to see her naked –  she is more receptive to the Big Brother Recording Conflict sign than the male in the house as he never gets to see her naked.

In this, the most expensive and media-saturated election period in United States history, we have heard several infamous, idiotic and sexist utterances from certain Republican male politicians including these sledge hammers:

“if it’s a legitimate rape, uh, the female body has ways to try to shut that whole thing down,” (Todd Akin, R-MO)

and

“I came to realize that life is that gift from God and I think even when life begins in that horrible situation of rape, that it is something that God intended to happen.” (Richard Mourdock, R-IN)

At any time in civilized society, this Directv commercial would have been inappropriate.  But in this 2012 “legitimate rape” and “God intended to happen” election period, this Directv commercial is vile, offensive, more off base and ultimately more harmful than beneficial to the Directv brand.

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Did Big Happens Here Do Digable Planets?

I love the 1993 Digable Planets album, “Reachin’ (A New Refutation of Time And Space).”  Their big single from the album, “Rebirth Of Slick (Cool Like Dat),” might have been overplayed and overhyped but I still like it.

I love seeing how others view music that is not their native music.   By “native,” I mean this is music that is not their primary music – not the music that they first performed or were “into.”  Many in hip hop came to R & B and jazz after they were first immersed in hip hop, just as many in jazz may have started in rock, and so on.  One of the things that intrigues me is how someone from outside a musical tradition can latch onto a small phrase that might seem not extremely interesting or important to those who are the REAL practitioners of a style, i.e., musicians who are inside that tradition.  For example,  what a hip hop musician might think is important in a jazz composition can be much different from what a jazz musician might think is most important.

I know that many traditional jazz players, especially in the early and mid-1980’s, would not likely latch on to a short phrase, repeat it many times and make this small and almost “throw away” motif into something big.  This tiny melodic gesture, in the hands of an outsider (with respect to a musical tradition), could become the most important part of the melody, or sometimes the only melody that matters to someone from outside of that tradition.  This “how does a foreigner view our music” idea is one I will explore later.  I’ll include myself in this – how and why did I get into hip hop, or Senegalese, Malagasy, Brazilian or Cuban music.

All of this to get back to that famous Digable Planets song that samples some jazz.  Digable Planets were not the first group to sample jazz but this song did influence a lot of people and inform others that something new was happening.  And that this new thing was happening from the confluence of more than one musical style.

I got thinking of Digable Planets a few days ago (during Hurricane Sandy) when I saw a television commercial promoting the idea that New York state is a great place to have technology companies – that New York is “home to the fastest-growing tech sector in America.”   (Massachusetts needs a “tech is our kind of place” and “we are the [tech] champions, my friend” commercial to top New York, but I digress.)

As always, I was doing something other than watching television passively.  I must have been playing on my iPad waiting for the winds to blow harder (as they did).  I heard music that seemed quite familiar – my instant thought was that this music on the tube was a “write around” aka “writearound” aka “reference” of Digable Planets’ “Cool Like Dat.”

Fortunately, the tech commercial was on YouTube, so I lassoed it and placed it here:

Big Happens Here:  Technology

Now here is Digable Planets’ “Rebirth Of Slick (Cool Like Dat).”

Digable Planets – “Rebirth Of Slick (Cool Like Dat)”

What do you think?  Do you hear a relationship between Big Happens Here and Digable Planets?

Is Big Happens Here a ripoff of Digable Planets?

Is Big Happens Here somewhat similar to Digable Planets?

Is Big Happens here not related to Digable Planets?

I think there is a relationship.  I’d rather not divulge my thoughts but read of yours.  I’ll explain my thoughts later.  Soon.  Maybe tomorrow.  But I await your responses.  :  )