Adding Resources to – My Digital Hoarding On Display

Adding Resources to – My Digital Hoarding On Display

I am a collector, compiler and curator and have always been even from the time when I didn’t know the meaning of words such as “collector,” “compiler” and “curator.”  Growing up in Massachusetts and New England, I heard this type of behavior referred to as “hoarding” or being a “pack rat.”

As a college professor, the act (art?) of collecting/curating can be quite positive and in digital times, even essential.  In the recent past, I would compile lists of my favorite recordings, films, books, CD stores, stores, restaurants and bars (as well as a few places to avoid – in the pre-Twitter era, I found list of places to avoid very helpful) and provide them to my students usually in a long list found at the end of a syllabus.

That has led to where I am in 2014.  This list of needs to be much more of websites that I love/like and use.  And even better if the access to information is free, as in “does not cost” – one only needs Internet access, hopefully not the degraded 3rd world kind of Internet access provided by the Evil Comcast.  [I should have known Comcast was the worst company ever when I first saw this Comcast commercial a few years ago.]


I have finally created the first version of this bibliography/collection of thousands of my favorite and/or essential resources, entitled it

Music, Entertainment, Technology & Legal Resources

and placed it as a link in between “Calendar” and “Blog” on the first page of my website.  My definitions/stretches of meanings and category-creating allow me to squeeze “Business” and “Communication,” significant and stand-alone-worthy fields, into “Technology,” and perform other lexicographic contortions to my heart’s desire.  To paraphrase – “all the sites that fit.”

That there are nineteen (19) categories surprised me – my broad and sometimes narrow definitions resulted in these 19.  There are sites that reside in two or more categories because of some natural overlaps.  (This time around I have eliminated restaurants, bars, movies and record albums – the present nineteen categories are large and unwieldy enough!)

A few words on the first four (4) of nineteen (19) categories:

Broadcast  –  By “Broadcast,” I mean a site where one can hear and/or see audio & video, or sites involved in audio & video in some manner.  Portals for audio & video lie ahead.  Bloomberg – Brink to Tiny Desk Concerts – NPR Music to Hypster and more.

Concerts & Festivals  –  important festivals ranging from straight ahead music with broad appeal, to music with select appeal (intentional reference to This Is Spinal Tap with that “select” adjective) to academic/deep thinker to simple & perceptible conferences.  The Governor’s Ball Music Festival to Pop Montreal to Electric Daisy Carnival and more.

Education & Non Profit  –  Non profits, educators & educational sites I love/like and use.  Artists House Music to Electronic Frontier Foundation Deeplinks to Volunteer Lawyers For The Arts.  There is one exception, however – Better Call Saul – a site that also clearly belongs in Legal and which some might not consider “educational.”

Lawsuits  –  In “Lawsuits,” I vacillate between linking to a lawsuit as found in one of my Pinterest boards (containing three more links pertaining to CCNV v. Reid), to a government link (WNET v. Aereo) to a Google Scholar link (Campbell et al v. Acuff-Rose Music).  (I will greatly expand “Lawsuits” in the near future.)

I will elaborate on the other fifteen (15) categories –


Lifestyle Brands

Live Music & Culture


Music Labels

Music Marketing Platforms

Music Recording Stores


Performing Rights Organizations



Social Media


Trade Associations


–  in future posts.  As always, I welcome your input.

New Compulsory License & The USPTO Green Paper Roundtable at Vanderbilt Law School – May 21, 2014



A friend suggested I write a short account of the events at the Copyright Green Paper Roundtable Workshop sponsored by the United States Patent and Trademark Office and the Department of Commerce Internet Policy Task Force held at the Vanderbilt University Law School on May 21, 2014.  It was my privilege to serve on the three (3) roundtables that day:

Statutory Damages

The First Sale Doctrine in the Digital Environment

The Legal Framework for the Creation of Remixes

Each of the panels was followed by contribution from observers at the event and online.

Many of the panelists seemed to agree that the statutory damages for copyright infringement are too high.  The $150,000 per willful infringement screams of excess.  When penalties for copyright infringement are higher and more severe than what seem to be more serious crimes – domestic violence, abandoning a family, abuse and cruelty to animals to name a few – the public loses support and respect for copyright law.

Many of us agree that a small claims copyright court could be an improvement over the present expensive and time-protracted federal court situation.  If copyright infringement actions didn’t take so long, they wouldn’t cost so much and those who wish relief from the court would be more likely to pursue actions if the cost and time period was not as extensive.  (I’ve been in several cases that took more than 6 years – I am in Year 9 of one now.)

One songwriter expressed a strong desire to sue individuals who have downloaded his songs.  That, rather than the plight of those who are accused of infringing the copyright of an individual song by means of a new composition, was of more concern to one person on one panel.


 Compulsory License to

Sample Master Recordings

An idea I brought up seemed to get a lot of attention.  It’s an idea I developed back in 2001 and first spoke about in 2002 at the first-ever Pop Conference at the Experience Music Project Museum in Seattle.  I thought that a Compulsory License to Sample Master Recordings was a very good idea.  And because back in those quaint antiquated early days of the 21st century it was becoming obvious that the public was technologically empowered to become more than simple, passive consumers of music and could with great ease, modify any music, video or work of authorship that was floating around the Internet.  And it seemed that nearly all music and video from everywhere and anytime was becoming available.

A Compulsory License to Sample Master Recordings is a long overdue and obvious idea.  A fair, respectful and business-happy aspect of this license would be that a recording MUST be at least ten (10) years old.  That way, the original recording has had ample time to be sold in its original form, followed by the inevitable decline/stop sales of the original recording.  A new version will draw attention to the original version, the public benefits from having more art (or more recordings if we do not want to be complimentary) and options, and money will be generated from the rebirth of a 10 year old recording.

Why is this particular compulsory license a good idea?

1.  People are going to re-author/mess with existing music anyway.  Sometimes for fun, sometimes for ridicule (parody), sometimes to make fun of something else (satire), sometimes to escape boredom, something to do while the flight is on its final approach to landing, sometimes to do something that will keep them off the streets and out of gangs, etc.

2.  It is impossible in a free society to stop people from expressing themselves by re-expressing ideas as well as specific expression that surrounds us.  Computers, one of the most ubiquitous and simple-to-use instruments of expression, come in all sizes and shapes, but regardless their speed and size are designed to copy.  Computers make copying expression – whether it is one’s own or someone else’s expression – perfectly simple.

3.  Sampling is an old and venerable practice that dates back centuries and is common in many cultures, styles and genres of music from many locations globally.  Of course I am using the term “sampling” to include non-electronic/non-silicon based means to use preexisting expression that one did not author but wishes to re-alter and include in new expression. If Palestrina, Josquin, Monteverdi, Vivaldi, Bach, Haydn, Mozart, Beethoven, Berlioz and others had had electricity, I believe they would have used it and associated technologies much as they used the best technologies of their times to compose.  If they could have sampled, they would have sampled.  Instead they simply copied, stole, ripped off, borrowed, quoted, paraphrased, paid respect and reverence to and venerated other composers who were their antecedents as well as contemporaries.  And always without consultation of preeminent forensic musicologists and attorneys.

4.  If this kind of creative or unauthorized behavior in the 21st century cannot be stopped, it could be monetized and legalized.  The creators of the new work could be required/mandated to pay for each version of the new work that is sold, just as the enormous BIG U. S. FEDERAL GOVERNMENT law mandates that when a songwriter has had her song recorded, anyone is free to record that same song provided the songwriter is paid.  If FAMOUS SONGWRITER’s EGO is so large that s/he only wants her/his version to exist, then s/he better have been born outside the United States in a country that shows more respect for the songwriter and will not anyone else record her/his song, if s/he so desires.  The United States of America would rather offend the songwriter and modify one of the exclusive rights given than deprive the American public of numerous (dozens/hundreds/thousands) versions of her song.  (Actually, there is an already hard-to-believe-and-rarely-used provision in the Copyright Law of the United States that is meant to assure that any re-recording of  an author’s work is to be done nicely and not change the “fundamental character” of the original work.)

Taking away a right from creators, like I am proposing above, is nothing new.  Our Big Federal Government takes away our rights as authors/creators.  It even does so in the Copyright Law of The United States.   Section 106 gives 6 exclusive rights but then Sections 107 and others modify some of those rights so as to benefit society.


I’ve heard complaints from smart, well-intentioned songwriters and lawyers who bemoan the fact that this recorded music needs to be PROTECTED.  That the artist did not intend for this kind of expression.  But….

We do not have control of ideas and expression once they are released.  Editorial writers get slammed, authors get lampooned, musicians, actors, politicians, sports stars and celebrities get parodied, slammed and lampooned, etc.  This is what happens and fortunately in a free society, this can’t be stopped.  Far more often, however, writers get praised, elevated and worshipped as they are hailed as gifted, fearless, passionate, a singular voice for their generation,  etc.

A very good thing for these artists who are being parodied, slammed, belitted, etc. is that they already have the right to have their best version of their song/film published to the world (or where they want) with the support and backing of the very large United States federal government.  The artist has already released her/his best version and that version will live on no mater what subsequent versions are released.  Original artists are even free to re-record their song so as to acquire another copyright and/or re-imagine their new version.  Igor Stravinsky did this to take advantage of publishing and financial benefits that would stem from such actions.  And so too did The Beatles, The Beach Boys and all of those who re-release new versions of songs/compositions/works of authorship, greatest hits compilations and more.

I will delve into the specifics of my proposal for a Compulsory License to Sample Master Recording in another post but for now the appeal of hiking at Radnor Lake in Nashville, Tennessee (3 or 4 miles from my home) beckons.  Loudly.

Happy Sunday, June 1, 2014


Making Music Make Sense; Making Music Make Evidence


I spoke to students and faculty at the Harvard University Law School on Tuesday, March 11, 2014.  I am always thrilled and humbled to be invited to come to that great campus and interact with these brilliant, insightful and original thinkers.  Fortunately, many of our ideas and concerns overlap and intersect and as fortunately, there are always surprises for me and them.

One constant issue with which I struggle is how to explain music – music as evidence – evidence that will sway a judge and/or jury to understand what I know about the music.  Many probing questions were addressed to me about this concern.  Explaining music as evidence to a judge and/or jury is similar to teaching whether in the forms of interaction with a student, small group of students, class, or large class in person or online.  Teaching music, something I have been paid to do since I was 12, has always been an extremely happy-engendering, inspiring activity that is similar to presenting evidence of a musical nature.  The end goals – will my intended audience understand how I perceive this music – are similar.  Is what I have selected and arranged for the particular audience pertinent, relevant, meaningful and/or convincing?

Teaching a judge and/or jury is analogous to teaching in the traditional offline and online manner.  (Online instruction has been around long enough – since the pre-Google, pre-Napster mid/late 1990’s – that I would claim online teaching is itself “traditional” and that there are traditional models of online education.)  At its core, there are perhaps four (4) components with respect to evidence –


Means of communication



which to me are tantamount to





The following possibilities are in play:

Have I gathered the right materials to get across my point(s)?

If so, have I used the right or good/good enough, means to get across my point(s)?

If I do not have the right materials, then even if the means to present the materials are very good, the end result could be failure.

If I have the best means to convey my message/materials but have gathered  material that is not optimal, the end result could be failure.


How does one make music make sense or make music make evidence?  Does music ever make sense?  What does it mean to “make sense?”  A lot of effort and ink has been spent on trying to understand the meaning of music and even more have labored to understand the meaning of life.  (Let’s leave life out of this!)  But the meaning of music, from a philosophical perspective, is irrelevant in most and perhaps every legal situation.

How does one explain music?  By explain music, I am suggesting that we can make someone hear something specific and special in music.  It could be a chord or chord pattern, an unusual sound or sounds, a specific melody or melodies, a lyric or lyrics, a combination of any or all of these, etc.


What will best convey the message, i.e., make the evidence most effective?  What is/are the most important factor(s) in making the message understandable and persuasive to listeners, jury, judge, students and audience?

A.   The messenger’s skills, credentials and background.

B.   The nature and quality of the technical and visual exhibits (charts, numbers, graphs, images, etc.).

C.   The musical examples (perhaps edited and/or enhanced).

D.   The musical examples along with technical exhibits and complex verbal expression.

E.   The musical examples along with technical exhibits and simple, understandable verbal expression.

F.   The musical examples along with non-technical exhibits and simple, understandable verbal expression.

G.   The musical examples along with non-technical exhibits and complex verbal expression. 


Musical evidence can be

1.  Technical

2.  Not Technical

3.  A Hybrid of Technical & Not Technical

Can one type of evidence work in one particular instance and another type of evidence work in another instance?

Would a musical style dictate or suggest a particular type of evidence?

Can the style and substance of evidence differ according to a musical style?


(This post reminds me of another post of mine – Which Words Work With Which Music? – in which the difficulties and frustrations of writing about music are played with.)

These and many more questions should be addressed and evaluated along the road to making music make sense and making music make evidence.  Until then the state of musical evidence and its presentation continues to be (as reflected in this short lyric) “something wild and unruly.”


2013 Future of Music Coalition – My Tweets, Rants & Reactions (Part 1 of 2)


I thought before too much time passes, I should collect my tweets and comments about The 2013 Future of Music Coalition Policy Summit held in Washington DC October 28-29, 2013.  The 2013 World Series was happening at the same time, so FMC was not my top priority.  Taking notes and tweeting about an event is also not my favorite activity but one that I occasionally delve into. (Grammar Girl believes we should be able to end sentences with prepositions, in case you were wondering abut that last sentence.)

This will be fun to collect and NUMBER tweets.  I had no idea that I wrote 75 tweets (shown below) and more in the next posts.  I wrote more at one part of the program but will not include these as I was writing about the worst presentation I had ever seen at an FMC event.  (If you are curious about it, you could go search my tweets from October 28-29, 2013.  I won’t and I don’t think you should either.)

It is important to note when reading tweets below that Peter Jenner has a great British accent and would usually be the smartest guy in the room.

1.  Peter Jenner is dead on. It has to be made easier to access music. The scandal is that Spotify is the only best access to music #fmc13

2.  Peter Jenner: “Anyone who thinks that we can control the Internet is up their ass.” #FMC13

3.  Peter Jenner – we have to think “collective” in order to create a means by which more are paid. (Socialism! Hah hah!) #fmc13

Like I said. The man’s lovable RT @emh2625: Peter Jenner: “Anyone who thinks that we can control the Internet is up their ass.” #FMC13

4.  Peter Jenner: “Anyone who thinks that we can control the Internet is up their ass.” #FMC13

5.  Peter Jenner – we have to think “collective” in order to create a means by which more are paid. (Socialism! Hah hah!) #fmc13

6.  Are you sure you want to be in the music biz? Be extraordinary. Do not sharecrop. Don’t sell copyright unless price is high. #fmc13

7.  Make community, support & be supported. Learn to pay fair wage & get fair wage. If you don’t like status quo, change it. #fmc13

8.  Learn you’ll be popular & not know why. Learn you’ll be UN-popular & not know why. Love music. (Erin McKeown) #fmc13

9.  Music business should be a part of music instruction. (EMH – do 4 hrs, not 8, 2 not 4 in a practice room-Learn Business & more) #fmc13

I had to add that ditty to my tweet as I think time has long passed when musicians, songwriters, and music students in music colleges and conservatories can expect to work 100% on their craft and the gorgeous invisible substance of sound and music.  Musicians, whether they want to acknowledge it or not, are involved in the world of business (who pays for these habits of theirs?) and technology (the body is tech, instruments are tech, electronics are tech, computers are tech, etc.).  Musicians need to develop their skills of conning people into thinking they (the musicians) are needed and should receive money for playing and/or writing music.  These skills have to be developed with an eye and ear for social media, business, technology, government and new means of touching the world.  I added “government” in that sentence because if it wasn’t for a very large and powerful central federal government and its blueprint plans, i.e., the Constitution, there would be no copyright law and no basis for federal support for authors and inventors.  And with the status of laws and litigation always in flux, interested parties need to continue to lobby their government to keep acting on their behalf.

10.  Jeremy Peters: Copyright is broken but other than Creative Commons, what is being done to fix it? #fmc13

11.  We’re moving from culture of owners to that of renters (of intellectual property – IP) #FMC13

12.  The conversation of “you are all thieves” to those not paying for IP is useless. Reminsicent of Federal government shutdown. #fmc13

13.  Artists who have been burned so badly by the miscreants in the music business – go out on their own is an option #fmc13

14.  Stream of income helps buy new gear, but this is not a solution, just an income stream #fmc13

15.  Get rid of minimal fee (for mechanical royalty) & concentrate on the amount of time is used in a composition or film #fmc13

16.  Methodology that can fairly compensate artists, writers. Amount of time is more realistic and fairer. #fmc13

17.  A new mechanical license proposal that is clear to artists, publishers, lawyers & the courts is needed. Modernization. #fmc13

18.  Songwriters Assn of Canada Prez has introduced himself as “sad Eddie.” Because of the Cardinals WS loss? Songwriters’ prospects? #fmc13

19.  New models gaining traction (Spotify). Legit, paid. Pandora too. Music creators embrace these models (EMH: not the RIAA) #fmc13

I think it is very bad to always ignore, then underestimate, misunderstand, litigate and then try to legislate against new technologies (a la RIAA & MPAA versus every new tech toy). The technologies always win.  

20.  Uh-oh. We’re hearing “I love the Internet” (“some of my best friends are black” comes to mind…) Then comes the HOWEVER. #fmc13

21.  “However” is Canadian for “but.” Some arithmetic is coming “the nitty gritty.” What’ll follow is lots of Internet plays & tiny money #fmc13

22.  For the umpteenth time & to paraphrase Carl Sagan “billions & billions of” music spins & zero money. #fmc13

23.  To legitimate creators there is no difference between piracy & the legitimate new services. (Oh God) That attitude will help. #fmc13

24.  Rich people get richer by these new legit services while musicians stay poor. Music creators need a new narrative & new initiative #fmc13

25.  “Adopt fair trade” principles for musicians. (Good!) Next he describes the new categories. Now he’s bemoaning SOPA. (Glad it lost!) #fmc13

26.  To put all our eggs into the US Congress basket is a bad idea. They were crushed by the crushing of SOPA. #fmc13

27.  Fair trade criteria that is fair to consumers & businesses. Certify biz as fair trade coffee is done. Fair principles for creators #fmc13

28.  What is fair compensation for creators? “fair & sustainable” Need for transparency in all collective societies, pubs, labels. #fmc13

29.  Shouldn’t everyone be transparent in all the facets? (Yes, but keep dreaming, I’m afraid. This is the music industry…) #fmc13

29.  Want transparency? Good but when did that ever happen in the past? Too many speak as if the past was great & now is Evil Google #FMC13

30.  Canadians are not calling for new legislation or regulation. They are being pro-active. But pro-active in what way? Huh? #fmc13

31.  Canadians songwriting group is being pro-active. But pro-active in what way? By applying a “fair trade” sticker? No law, no reg? #fmc13

32.  Music Creators Alliance & Songwriters Guild of America are behind these past ideas (from my tweets). #FMC13

@future_of_music Thank you! I hadn’t heard the Happy and Sads from earlier! Being a Bostonian, first I think baseball & Boston & St. Louis!

I appreciated the FMC informing me of the “Happy” and “Sad” humorous labels from earlier.  (This was only the second FMC Policy Summit I’ve missed.  They are great events – much better in person –  and I hope to be at the next one.)

33.  Now we are able to hear the audio of FMC stream. Thank you, you tech people who turned it up to 11. #FMC13

34.  Small broadcasters have no clout when it comes to licensing. One-stop shopping (licenses) is essential to run music services/streams #FMC13

35.  Are exclusive deals (direct licensing) harmful to smaller broadcasters (I think so). Can anti-trust issues get in the way? #FMC13

36.  Good news about direct licensing – they can license around the consent decree. #FMC13

37.  Direct licenses problem – transparency! Usually there are non-disclosure agreements. Songwriters are kept in the dark. #FMC13

38.  Publisher can cut off payments to a songwriter during a dispute.” – Sad Eddie (of Canada) #FMC13

39.  Non-disclosure agreements hurt (prevent) transparency. #FMC13

And now, Jim Griffin.  When Jim Griffin speaks, I listen.  Only fools wouldn’t.

40.  What would direct licensing be on the entire music atmosphere? “Fragmentation is cancer.” – Jim Griffin #FMC13

41.  There needs to be a draft-draft musicians into publishing agreements like athletes are drafted by teams! – Jim Griffin #FMC13

42.  Jim Griffin is joking (somewhat) but his point is that there is power in unity. (Sounds like pro-union too.) #FMC13

43.  When athletes work together to get as much money as they can, musicians should do the same. But there’s antirust to prevent it! #FMC13

44.  Why is there only one (1) antitrust department? Excellent funny question relayed by Jim Griffin! (power via unity is the point!) #FMC13

45.  Musicians especially those early in career need better legal representation. – Sad Eddie (of Canada) #FMC13

46.  Why someone who has significant part of market then pulls out is now exempt from legal restraints? (issue in direct licensing) #FMC13

47.  Excellent and educational analogies with sports teams and unions presented. #FMC13 (EMH – We have to think this through and change.)

48.  Sound recording (SR) is not an exclusive license It is statutory right. Recordings cannot be withheld. #FMC13

49.  Ann Chaitovitz explaining SR & Sound Exchange. Perf right is split 50/50 – 50% musicians, 50% record label/SR owner. Copyright basics #FMC13

50.  Direct licensing by a label could (would/will/does?) result in keeping money from the artist/performers. #FMC13

51.  Union musicians until digital performance right (DPRSRA) & Sound Exchange were never paid for their contribution to sound recording #FMC13

52.  USA still does not have a terrestrial right for musicians (musicians are not paid when music is played on AM/FM) unlike rest of world #FMC13

53.  Musicians should be wary of the “workaround” that big broadcasters are doing by direct licensing. Big Radio wants to keep govt out. #FMC13

54.  U.S. “Green Paper” recommends a terrestrial right for sound recordings (SR). Terrestrial radio has huge advantage over digital radio #FMC13

Do you want to read the aforementioned “Green Paper?”  It is called, “Copyright Policy, Creativity, And Innovation In The Digital Economy” and was authored by the Department of Commerce Internet Policy Task Force in July 2013.  (If you are still reading and still interested, click on the following link and the 112-page “Copyright Policy, Creativity, And Innovation In The Digital Economy” will open. This enormous work is several other subjects for several other times.

55.  Is Pandora in favor of wanting a performance royalty for terrestrial radio? (Surely as it somewhat levels playing field) #FMC13

56.  Pandora might be paying over 50% of their revenues as opposed to others that pay much less. What is rationale for rate setting? #FMC13

57.  Exact same radio signal but different radio companies pay between 0 and 70% of revenue. Insane! What is the logic/rationale? #FMC13

58.  Argument about any study on this subject. Would be good to have written facts in front of the panel & audience. #FMC13

59.  For clarification, “Sad Eddie” as he has humorously been calling himself, is President-Songwriters Assn of Canada #FMC13

60.  Praise for US Copyright Law for Recapture Rights. YEA! Songwriters & musicians are able to recapture their copyright after 35 yrs #FMC13

61.  Recapture is the only country in the world that lets one change a contract after 35 years. #FMC13

62.  Better Call Saul! Ann Chaitovitz – 25 yrs after you’ve created something, call a lawyer (and get things fixed!) #FMC13

I use every possible occasion to mention Saul Goodman, an attorney who thinks quicker and acts more decisively than most and always has that 6th & 7th suggestion ready for you if you didn’t love the initial several.

63.  Best point yet – we’re in this mess because we deregulated radio in that damn awful Telecom Act of 1995 (bad Pres. Clinton bill) #FMC13

The Let’s Blow Up Clear Channel so that we can Homogenize the United States further and NEUTER Regional Radio and Music Act, i.e. The Telecommunications Act of 1996, did just what I described. 

64.  “Lifting the lid…”letting in antiseptic sunshine” (TRANSPARENCY) would be most helpful. #FMC13

65.  Best way to improve licensing- record & enumerate a globally-unique song identifier (VIN Vehicle Iden #) – Jim Griffin #FMC13

66.  If this (music) is property, why isn’t there a VIN or globally-unqiue identifier? Excellent idea by Jim Griffin (yea metadata!) #FMC13

67.  Musicians need level playing field. Can’t compete w/broadcasters. Musicians (serfs) must bow to broadcasters. #FMC13

68.  Both are true – musicians are not being paid via AM/FM radio and need the right, and some musicians fear testifying before Congress #FMC13

69.  It’s understandable that lowly musicians would fear speaking out against radio as radio can stop playing them. True? #FMC13

70.  Why is an audience member afraid to mention the huge radio station (for being against AM/FM performance license)? #FMC13

71.  Aud member: Many small club owners have stopped having live music b/c of high royalty rates via ASCAP, BMI, SESAC high rates. #FMC13

72.  You have to pay for the music or you won’t get much more of it. – Jim Griffin (last & great comments of panel) #FMC13

73.  The first Future of Music Honors dinner will be tonight. Sadly, I’ll be here in Nashville instead of Washington DC #FMC13

74.  4 bipartisan politicians have reauthorized FCC to create a new class of low power radio stations. Will be honored tonight at FMC #FMC13

75.  Congratulations to my friends Ann Chaitovitz & John Simson who will be honored tonight by Future of Music Coalition at Honors awards #FMC13

Soon I will publish

FMC – My Tweets, Rants & Reactions, Part 2

Fair Use, the 2-line rule & my heart tells me it’s real


The 3,398th Day Anniversary of an email

As I was wading through “All Posts” in the space behind/under the hood of my site, I stumbled upon this – an email I posted to an online discussion of Fair Use nine years (3,398 days) ago.  I don’t remember the person to whom it was addressed or the name of the forum so I will expunge three names in my post.

I wanted a 2/3 silly title to this post and I hope I have succeeded.


“Fair Use.”  Fair use is not silly – it’s essential.  Fair use is the use a copyrighted work (or more than one) without the author’s permission.  It’s what we were forced to do in the American education system.  It’s not enough that we spouted our views – we needed to COPY and quote others’ views as well, and it was unthinkable that we’d go to the trouble of writing to a book publisher to ask for permission, for example, to COPY a few sentences/paragraph from an author and insert it into our original work.  This new original work by a student was usually a paper that had to be handed in to a teacher to fulfill an assignment.  Asking for permission would take too long.  Proper attribution (and copyright notice) for an academic assignment is usually considered a good reason to violate/break/pillage the “Copyright Law of the United States and Related Laws…”


The “2-line rule.”  There are so many references to a “2-line rule” that many believe there might really be a 2-line rule.  To annoy certain people and for the humor of it, I have gone to that ultimate DETERMINER of what does and does not exist – Wikipedia.  I entered the term, “2 line rule,” and then “2-line rule” and both times got this in return:

“The page “2 line rule” does not exist. You can ask for it to be created, but consider checking the search results below to see whether the topic is already covered.
For search help, please visit Help:Searching.”

I guess that puts an end to it – there is NO 2 line rule!  But the next item Wikipedia informed me of was “Bright-Line rule,” and still, under Bright-line rule, there is no 2 line/2-line rule, hyphen or not.  Therefore, I still believe, unlike Virginia with Santa Claus, that there is NO 2-line rule.


“My heart tells me it’s real.”  To some, this short phrase is a sweet sentiment but I find the lyric silly, so that is my 2nd and final silly part of a 3-part title (but I will quote these six words again below).

To summarize the analysis of this post’s title:

Part 1 (“Fair use”) – Not Silly.  

Part 2 (“2-line rule”) – Silly.  

Part 3 (“my heart tells me it’s real”) – Silly.

Now to my ranting about fair use from May 2004.  I could revise and re-word this (and perhaps I should) but I won’t.  I’ll let this frozen-in-time rant imperfectly represent my thoughts from that day.


4.   May 16, 2004

May 16, 2004

Dear X:

Your story (and Y’s paper) well illustrates the out of balance copyright world.  Few people know that the first U. S. copyright law was meant as, and called, “An Act for The Encouragement of Learning.”  The most important reason for copyright in the U. S. was to provide our not well educated 18th century public inexpensive access to educational materials.  The Founding Fathers felt that an educated public was necessary in order to have a well intentioned government.  The second point of copyright, and one that was not as important as the dissemination of knowledge, was to provide the writers and inventors a reasonable financial return on their labors.  This financial reward was to come about through a monopoly for a short time on their works.  But judges throughout our history have made it clear that the authors’ and inventors’ monopoly for limited times was of secondary importance to dissemination of a rich wealth of ideas in a rich public domain.  Today, however, the balance between the welfare of the public and that of the authors is out of whack, as many copyright holders wield far too much power, and the public either is unaware of its importance or unwilling or financially unable to fight back.

I highly encourage U. S. citizens/authors/educators to be well aware of section 107 of Title 17 of the United States Code (The 1976 U. S. Copyright Act).  Section 107 outlines the four Fair Use factors which allow anyone to borrow from a copyrighted work without the permission of the copyright owner, but with consideration of these four factors.

There are no bright line tests to determine whether one has infringed a copyright by borrowing from another work.  The law states that copyright protection subsists in original works of authorship fixed in any tangible medium.  But no law can state what is original and what is not, and at what point does original and protectible expression arise.  There are no specifics in the 1976 Act pertaining to how much can be taken from another work, but a close look at any short “sample” of an original work of authorship reveals that little is original.  In fact, in most works of authorship of popular expression, short segments are unoriginal.  They merge with more unoriginal segments and eventually become original.  This applies to words, pitches, sounds, colors on a canvas, dialog, etc.

One should use other copyrighted works after one has assessed the originality of the material that is being borrowed, the amount to be taken, the nature of the material (facts are rarely protectible; fiction can have much more protection), whether the intent is educational or for profit, and the effect the borrowing will have on the market for the original work.  I know of no “standard formula of seeking permission whenever quoting more than two lines of a song.”  If there is such a “standard formula,” to the best of my knowledge it is not based in the law or common law.  One cannot be found guilty of copying if what is copied is unoriginal.  Copyright infringement only comes when what is copied is “original” (and “fixed in any tangible medium…”).

To illustrate why one could copy more than two lines of a song without permission, I offer the following.  I would feel free to quote the following four lines without asking permission:

Tell me how you feel

I finally know how love feels

Tell me if it’s real

And my heart tells me it’s real

Or the following:

When it’s warm outside

And the look in your eyes

Is longing to show me the way

I don’t want to wait

or the following:

I don’t know how to live without your love

I was born to make you happy

cuz you’re the only one within my heart

Again, I would reiterate the importance of considering the four fair use factors in assessing the “criminality” of the above “thefts.”  In all three, the “purpose and character” of my use is educational.  Even if the use is for profit, that still would not exclude the borrowing from being a fair use.  Secondly, the nature of the copyrighted work is fictional/creative.  Borrowing from creative works is less fair than borrowing from factual works.  So, this factor goes in favor of the original author, and against my borrowing.  The third factor is two pronged:  what is the quantity and quality of what I have taken?  The quantity is relatively small in relation to the work.  The quality is very low in that these words are extremely common, mundane and unoriginal. And copying unoriginal material is not infringing a copyright as unoriginal material, by law, cannot have copy protection, i.e., is uncopyrightable.  Fourth, what effect would my borrowing have on the market for the originals?  Answer:  None.  These excerpts are from three Britney Spears songs.  Assuming Britney Spears fans are reading this email, would this email containing exact short quotes from her songs (or if the email found its way into my forthcoming book) be a substitute for three actual recordings of her singing these songs?  Certainly not.  So, I win on most of the fair use considerations and could borrow without asking permission.

I recommend a less fearful reading, interpretation and implementation of Section 107 of the Copyright Act, and would recommend the model of Oxford University Press.  Check out the two-volume “The Beatles As Musicians,” by Walter Everett.  Where in these two books does it state that lyrics or music has been used with permission?  All of the excerpts were considered to be fair uses.

Before I ramble on too long in this long email, I will close by responding to a point made in Z’s  previous email.   Fair use in sampling is now here.  Get the excellent opinion of Judge Higgins in a recent case in the Middle District of Tennessee – Bridgeport Music et al v. Dimension Films et al (October 11, 2002).  I discussed Higgins’ ruling briefly at my EMP presentation this month.


E. Michael Harrington

September 4, 2013 postlude:  There really might be more to this talking heart thing (“my heart tells me it’s real”) than I realized.


Preying On Songwriters, My Winter Vacation & Re-Gifting


I’ve been gone from this space (my blog) for way too long, so long that readers have scolded me and told me to get back to writing.  Wow – that was very nice to hear.  I didn’t want to be gone this long but there were substantive reasons for being out of cyberspace.

For one, I decided “at the 11th hour,” to leave the lovely Wingaersheek Beach and drive south to be with friends in Nashville for Christmas.  That, I did after a fun stop in New Jersey.  I left on the afternoon of December 23.  I ended up spending more than a month in Nashville, so long that I actually found a house I wanted to buy, put an offer on it the first day it was for sale, and took ownership of it 30 days later!  The Dwelling caught my eye on January 6, I made an offer January 6, and officially owned it on February 6.  It’s a much more involved, fun, foolish and complicated story than that but I can tell you more when I see you.  (By “you,” I mean any interested reader.)

*  *  *  *  *  *  *  *  *  *  *

And now to get back to music and an issue about which I care deeply.  Songwriters.  Not composers, in this instance, but songwriters.  (Not all songwriters – just songwriters who have been taken advantage of, with or without a preposition at the end of a sentence.)

I was reminded again recently how songwriters have so many things going against them.

The public is never pleading  –  “PLEASE let me hear from songwriters.”  No.  The public wants songs and doesn’t care about the nameless person behind the song.

The public loves stuff for free.  Why pay songwriters?  Aren’t they rich?  Don’t they write songs because they “receive” these songs (for free)?  (From God?)  (They are “gifted,” so they didn’t have to work – they simply received a pre-formed, pre-packaged “gift” and gave that “gift” to those who wanted it.  (These “gifted” songwriters, perhaps, were like the unsophisticated, uncouth Giver who simply Re-Gifts at Christmas time.)

Record labels do not want to pay songwriters.

Recording artists do not want to pay songwriters.

Radio (AM/FM as well as Internet) does not want to pay songwriters.

Sometimes publishers don’t want to pay songwriters.

Some famous recording artists have refused to record songs by songwriters unless the recording artist can be (dishonestly) listed as a songwriter and receive royalties as if s/he had written the song.

But I want to begin to discuss a different problem from those.  Several of the problems above get a lot of publicity and are well-known.  I want to get to a very serious problem that gets almost no publicity.  In fact, this problem is usually shrouded in mystery.  Sometimes the mystery – the “secret” – even has legal protection mixed in – “sign this confidentiality agreement if you know what’s good for you.  If you ever want to happy hour in this town again, you’ll do as I say, sign here and beg me, ‘THANK YOU SIR, MAY I HAVE ANOTHER?'”

It can be very difficult for songwriters.  As Morris Levy once said,

“You want royalties, GO TO ENGLAND.”

H E R E    I S     T H E     P R O B L E M     A S     I    S E E     I T 

Sometimes the songwriter’s team members are playing for a different team, or perhaps playing a different sport.  What I mean can be illustrated in a situation like this involving Songwriter(s) A and Songwriter(s) B.

Songwriter A’s publisher and/or attorney receive(s) a letter from songwriter B’s publisher and/or lawyer telling Songwriter A that her/his new song has ripped off or infringed or copied or stolen Songwriter B’s song.  Publisher A/Attorney A informs Songwriter A that we better fix this.  The way to fix this?  Songwriter A simply and quickly needs to fork over half of A’s copyright and future royalties on his/her song, and make sure that Songwriter B’s name appears everywhere that Songwriter A’s name appears on this song.  All future royalties will be split between A and B.

Or another sharing scheme could be worked out.  If not 50/50, perhaps 55/45, 60/40, 65/35, 75/25, etc., and the larger percentages could be assigned to Songwriter B.  Songwriter A might not only lose a lot now and for generations of nameless/faceless descendants (copyright is nearly eternal in length), but Songwriter A might get marked as an easy mark for others to attack in the future.

Why should this happen?  Can someone simply assert that you, the Songwriter, have stolen someone else’s music?  Does the fact that someone alleges theft make it a theft?  Are you guilty because someone with more (A)  power, (B) influence or (C) money (A, B, C, A+B,  A+C, B+C, A+B+C) asserts so?  Does that more powerful person have any alternate and/or better ideas?  Has that more powerful person investigated other solutions?  What can you, the Songwriter, do?  Do you admit to the “facts” with which you have been confronted?  Is there a loved one, friend or family member who can help? Do you need emotional help?  Do you need financial help?  Do you need legal help?  Do you need MUSICAL help?  Or do you need every kind of help just mentioned?

In my next post, I will expand on scenarios like the above and pose much better resolutions.  Shortly after that, I’ll name names.  I will discuss a specific situation, explain why it was completely WRONG, and explain why I know much better ways of handling similar situations.  As always, I welcome your input.  If you are a songwriter who has been so bereaved, please tell your story here.



Uncopyrightable introductions – Part 2, William Shatner obliquely, Martha Stewart to me


I found a way to incorporate William Shatner into this post.  You’ll see.  Keep readin’ and a-clickin’.  I really like it.  It’s way off the subject but it brings us to a better place.

I also NEEDED to link to Martha Stewart for reasons that will be obvious.

Yesterday’s post stemmed from a discussion of song introductions and to what extent they might be copyrightable.  And that discussion stemmed from my post the day before in which I claimed that the intro to the following commercial  –

Sandals – Do It All Again

had copied the intro to the Beatles’ song  –

The Beatles – Getting Better

I should add that I feel that consciously, carefully and deliberately copied the intro to Beatles’ Getting Better. did not accidentally derive this introduction, or independently create their introduction.  Some composer labored over this.

The only reader to comment on this felt that copying of the Beatles was NOT an example of copyright infringement.  I agreed with him.  I posed many questions pertaining to this  –  few were answered.  As Martha Stewart would likely say to me, “it’s a good thing,” as that means I can either

A.  answer them now

B.  answer them later at  or in an article, book or app

C.  answer them later at a conference, law school or university

D.  answer them later under oath at a deposition

E.  answer them at a restaurant/bar

F.  let someone else answer them

G.  not answer them

I’ll likely opt for option B, or B and F.

I am trying to establish that one can copy INTENTIONALLY without infringing copyright. copied The Beatles and it was not copyright infringement.  I think a statement like “one can copy INTENTIONALLY without infringing copyright” could be controversial.

*   *   *   *   *   *   *   *   *   *

And now to continue from yesterday’s topic  –  song introductions that are likely NOT copyrightable.  Here are a few new songs.  You’ll notice that these are Neil Young-loaded.  That’s simply due to where I was looking/listening  –  it is not scientific or anti-Canadian:

Frank Black  –  Tossed

Caetano Veloso  –  Jasper

Neil Young  –  The Old Laughing Lady

Neil Young  –  The Last Trip To Tulsa

Neil Young  –  Mr. Soul

Neil Young  –  Bringin’ Down Dinner

Katy Perry – Teenage Dream

*   *   *   *   *   *   *   *   *   *

The seven (7) songs from yesterday:

(Again, these are intros that are NOT very copyrightable.)

The Doors  –  Back Door Man

Isaac Hayes  –  By The Time I Get To Phoenix

 Frank Black  –  Hang On To Your Ego

Katy Perry  –  Circle The Drain

Neil Young  –  Without Rings

Pixies  –  Bone Machine

White Zombie  –  Thunder Kiss ’65 

*   *   *   *   *   *   *   *   *   *

At some point soon, I really want to explore the opposite  –  COPYRIGHTABLE introductions – highly copyrightable introductions.  I’ll tease by offering a highly highly highly copyrightable introduction.  It’s by The Beatles, a band that formed in Liverpool in the 1950’s.  This was early Beatles  –  pre-Ed Sullivan Beatles  – showing off.  One of the things I think they’re saying is:

“We’re darn good.  We can play well.  Can you play this much this fast?”

Here is their earliest Highly COPYRIGHTABLE intro:

Beatles  –  Like Dreamers Do

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


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:












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


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…” 


Haiku 101, Intellectual Property Haiku (IP Haiku)

I’ve written thousands of haiku.  It all started one morning in Pittsburgh.  I woke from the strangest dream.  In my dream, I tried to convince people I was a composer (I was and am a composer) but they wouldn’t listen.  They found a poetry journal from Australia and in the journal were haiku I had written.  They told me I was an INTERNATIONALLY PUBLISHED POET who specialized in haiku.  I told them I was a composer, not a poet, but I couldn’t convince them of this.  Strangely, after I awoke, I laughed at this bizarre dream but then started to research haiku.

I found out that the most common form of haiku was a three-line poem consisting of 17 syllables.  And there was a nice symmetry to the structure.  The first line consisted of 5 syllables, the second had 7 syllables and the third had 5 syllables.  An “A – B – A” form.  In music a “rondo” has an A – B – A form (and a rondo can have a few other forms).  I had never written a rondo (and still haven’t) but I decided to start my RONDO CAREER as a poet instead of  a composer.  So, I started to write   5  –  7  –  5  haiku.

My haiku obsession – haiku career – began that way.  I’ve gone through periods of writing hundreds in a few hours.  Sometimes my haiku tell a story.  Other times they are related to a theme, and still other times they are disconnected and without any purpose, like my life.  (I do not have a purposeful life – I have a purpose-less life.  An ambient free-form, drifting life.  Enough of this theme.)

I used to get reprimanded by poets and scholars who knew better than I (knew better than I about everything – just ask them).  Even my Japanese girlfriend told me that haiku were supposed to be about nature, not vehicles for telling deranged and absurd stories that would be parodic and unauthorized episodes of   –  –  –  –

The Dating Game

Leave It To Beaver

The Brady Bunch or

Love Boat

Or that haiku were not supposed to be vehicles to criticize and protest President Reagan, Barry Manilow or American pop culture.  My haiku started out as an escape mechanism – I was composing too much complicated concert music and found that if I got away from the music and started to write in this happy 5-7-5 format, I’d feel better.  My escape would be realized.

Here is one installment of a bunch.   These are about copyright and intellectual property and date back to 2004.  If I can find my first analog book of haiku, I’ll break those out over a period of time at  But for now, here are some IP haiku.


Copyright haiku
Musings manipulations
And sometimes held thoughts

If you can publish
Them they might bring you good luck
Forward them to friends

(Maybe I’m confused
Maybe it’s email that needs
To be forwarded)

In any event
Here is the first installment
Of  I. P.  haiku

Chapter 1

I just bought a bomb
It came from Best Buy and I
Think it is legal

The bomb has a name –
Jay-Z’s “A Cappella Black
Album.”  Still, a bomb

I think of it as
Silly Putty; a means for

But this Putty is
Also copyrighted stuff
So, fun with limits

Press Silly Putty
Onto newspapers and watch
The print get copied

I now have a new
Cool thing –  an embodiment
And derivative

My Silly Putty
Has infringed the copyright
Of a newspaper

Chapter 2

And it gets worse – I
Copied an Op-Ed piece from
Today’s New York Times

I took the writer’s
Best part and transferred it to
My Silly Putty

This Silly Putty
Is worth more financially
As I took good stuff

My idea was
To combine Putty and print
And make something new

There were thousands of
Print sources for me to use
I had to choose well

Or I could phrase it
This way – there were thousands of
Sources I could steal

Not “use” but “steal.” But
Isn’t all expression at
Some level not new?