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

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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.

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 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.

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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

 

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In Phoenix Before The Dust Storm, the Birthday of EMichaelMusic.com & John Lennon & Listen to Moses

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One year ago today (October 9, 2012), I wrote my first blog post on emichaelmusic.com. I knew October 9 was John Lennon’s birthday and thought that my new effort should coincide with a day that had meaning to me.  All things John Lennon have always been important to me.  I would not have become a musician if not for The Beatles and Lennon was my favorite Beatle.  (If you were alive in 1964 when The Beatles invaded my continent, you had a favorite Beatle.)

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I did something similar back when I was a graduate student at the University of Miami.  I needed to set a deadline to finish my orchestral composition that would be at the center of my master’s thesis.  I thought that the summer would be the best to time to complete a project this large, thought about what are my favorite dates, and then chose July 2, the date in which Thomas Jefferson finished writing the Declaration of Independence .  So, on July 2, I successfully pulled off something as responsible, mature and adult-ish as completing a large project on time that loomed many months ahead.  And as an extra bonus and most importantly, I loved the music I had written.  My orchestral master’s thesis is entitled:

C H E M I C A L      F O L K L O R E

Someday I might write about it here, but not today.

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Today I am in Phoenix, Arizona to speak to NARIP about my work in music copyright/IP, publishing and advertising, and to spout and rant too.  My 3-hour interactive lecture to NARIP will take place on Wednesday, October 9, 2013 at Paradise Valley Community College.  I’ve been referring this college as Paradise.  I like to abbreviate names sometimes especially when the abbreviated name seems appropriate – this area is really beautiful!

I’ll also discuss digital issues and possibly the fair and essential use of sampling as well.  By essential use of sampling, I am referring to situations when one MUST sample without permission in order to create a PARODY.  (Is Essential Sampling a good phrase?  Should it be Requisite Sampling?  Compulsory Sampling?  Sampling Because You Must?)  That First Amendment thing is important and should trump other given rights at times.

I’ll leave this topic now.  Near the end of my last talk at Harvard Law School on April 15, 2013, I first brought up this YOU MUST SAMPLE TO PARODY (in these specific examples) idea.  It was risky to talk this way then and there and maybe more so today.  But also, in three hours of interactivity today – interactivity is not the same as hyperactivity – this issue does not have to come up.  I’ll ponder another time or two between now and 2  PM and decide about this FORCED/ENFORCED sampling notion.

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There is a “BLOWING DUST ADVISORY for GREATER PHOENIX AREA, AZ” today and tomorrow here in Phoenix – blowing winds, reduced vision, warnings that cars must pull over, stop and hope for the best.  People shouldn’t breathe or be outside….  And I’ll be wearing my best black suit!  Yikes – this is not Gloucester MA or Nashville TN.  I am in a real desert – the Sonoran Desert – in the real, wild American West.

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And the best news for last – The BOSTON RED SOX won the ALDS last night beating Tampa 3 games to 1.  We were the worst team in baseball last year.  This year, objectively speaking, we are the best!  It was preordained.

“Listen to Moses!”

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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.)

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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.

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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).

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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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Copyright From A – Z, Crime Before Thanksgiving, my 19th Annual Berklee Lecture, Inna & The Farlanders

I always love the Tuesday before Thanksgiving because for the past 19 years I have spoken to students at the Berklee College of Music in Boston.  It has been an annual tradition, and a great honor, for me since 1993.  The second part of the tradition is our Thanksgiving Fish dinner at Legal Seafood in the Prudential Center, across the street from the Berklee classroom.  (The Prudential Center is posted as today’s photograph.  Finally, a post photo that relates precisely and without need for interpretation or metaphor-loading.)

In order to get to Boston, I’ll have to deport myself from Gloucester to Boston.  (I just wanted to use that “deport myself” phrase.)

At some points today, I’ll select some topics for my two-hour presentation.  I’ll choose from these questions and issues and more:

Can One Copy A Bass Line?

Can One Copy A Chord Progression?

Can One Copy A Guitar Solo?

How To Break The Law/How To Get Away With Crime (Crime?  “Fair Use” or The Perfect Crime ?)

What Is Fair Use?

Fair Use Done Right/Wrong

What Is Satire?

What Is Parody?

What Is Right of Publicity?

Can One Sample?

What Is A Mashup And When Are Mashups Legal/Illegal?

Publishing Done Right

Publishing Done Wrong

Co-Writing

Co-Habitating

I will play music from North America, South America, the Caribbean, The European Union, Asia, Africa, Australia-Oceania, and The Middle East.  Even if the Middle East is part of Asia, Africa and Europe, I consider it its own place/continent.  And I’m really thrilled that the CIA agrees with me!

I also consider the Caribbean NOT part of North or South America – it’s too much its own world/continent and shouldn’t be subsumed within NA, SA or The Americas.  The CIA disagrees.

I refuse to play music from Atlantis.  I’ve been boycotting it for awhile.  I have not ruled out music from Antarctica or Arctica (why isn’t it called A – R – C – T – I – C – A?).  Both poles speak to me.  Enough geography talk.

I’ll play music by

Louis Armstrong

Beastie Boys

George Clinton

Miles Davis

Evolution Control Committee

Foo Fighters

Ghostface Killah

Jimi Hendrix

Inna & The Farlanders

George Jones

Albert King

Led Zeppelin

Bob Marley

Nirvana

Roy Orbison

Steve Perry

Queen

Rolling Stones

Stravinsky

They Might Be Giants

Keith Urban

Vivaldi

Hank Williams

Xscape

Neil Young

Frank Zappa

Inna & The Farlanders  –  I assume that few of you will have Inna & The Farlanders’ The Dream Of Endless Nights album, so I included a link to a performance of “Ivan” from that album.  The studio version is better – get this album!

I could work the phrase, “A – Z,” into the title of this presentation, couldn’t I?  (Now I will.)  And discussing the music of “XSCAPE,” rather than “XENAKIS,” shows just how much of a stretch one (1) of these twenty-six (26) names was!

My questions for you  –

Do you have suggestions for adding topics?

Do you have suggestions for eliminating topics?

Should I write about these topics here at emichaelmusic.com or simply include them in today’s long talk?

Does the “How To Break The Law/How To Get Away With Crime” topic annoy anyone?

I hope your Thanksgiving preparations/travels are going very well.  I’ll have a special Thanksgiving post.

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Igor Got Game: A Musical and Legal Comparison of The Beastie Boys and Igor Stravinsky

Igor Got Game:  A Musical and Legal Comparison of the Beastie Boys and Igor Stravinsky

Today I am beginning my trip to New York.  It was going to begin with a stop at the Natick Mall for the only reason I go to any mall – an Apple store.  My iMac won’t play DVD’s and my 13 inch MacBook Pro won’t even turn on.  The laptop died about 30 minutes after I made the appointment at the Genius Bar for the iMac.  It was as if it too wanted attention and injured itself so they could visit the Genius Bar together.  But I canceled this as I now won’t be gone for 4-5 days as I had planned due to Frankenstorm.  I’ll bring the computers to an Apple store closer to Gloucester at some other time.

I’ll be in New York to speak at the 2012 IBS/CUNY Kingsborough Community College Media Conference.  One of the best things about this conference is its location on Oriental Blvd on the Atlantic Ocean.  My best and most expensive app, Navigon, indicates that the location of 2001 Oriental Blvd. is 3 ft. from Oriental Beach on the Atlantic Ocean.  Smile smile!!!  It is so nice to speak with a view of the ocean.  I’ll be in the building on the left in this photo.  And the water will really be that blue.  :  )

On Monday, I would have  spoken to a Corporate Social Responsibility class at 10 AM, and then to a Writing for Radio & TV class at 2 PM, both at William Paterson University.  I had prepared some really fun stuff – there really are enough examples of corporate social irresponsibility in the music and entertainment industry – but that will have to happen at a later time.

But Frankenstorm has changed that.

And now…something completely different.

This was the title of a presentation I gave at several conferences one century ago.  I loved what I was finding when analyzing the Beastie Boys new album at that time (1999) – Hello Nasty.  For one, they had sampled the music of Igor Stravinsky and Stephen Sondheim and found ways of connecting both Stravinsky & Sondheim.

I’ll return to this subject in the near future and possibly post this paper in installments.

Here is the abstract to that presentation:

“Igor Got Game:  A Musical and Legal Comparison of

The Beastie Boys and Igor Stravinsky”

E. Michael Harrington

1999

A B S T R A C T

Igor Stravinsky’s “Pulcinella” (1918) drew heavily upon music composed by Giovanni Pergolesi and others in the early 18th century.  The Beastie Boys, an extremely popular rap/hip hop music group since the mid-1980’s, in their best-selling CD, Hello Nasty (1999) drew upon the music of Stravinsky by means of the digital sampling of Stravinsky’s “Firebird.”  Both of these “borrowings” share important similarities and differences.  Furthermore, these borrowings shed light on several seemingly unrelated disciplines and fields of study.  These include music composition and the nature of creativity and originality, the intellectual property law of different times and societies created to protect authors from appropriations of their original works, the means by which borrowed music may be used and transmitted (sampling, digital streaming, MP3, etc.), and the business (financial, licensing, retail, broadcast, etc.) considerations involved in such borrowings.  Although neither Stravinsky or the Beastie Boys were alone in using preexisting music in their compositions, the manner in which they have borrowed in these specific instances is historically significant.  In addition, these borrowings, taken as a related whole, constitute an important educational paradigm by which we can better understand the definitions of creativity, and originality, and how these definitions have changed and remained the same in light of today’s legal, cultural, economic and technological developments.

Using the Beastie Boys’  Hello Nasty, and Stravinsky’s “Firebird” and “Pulcinella,” this presentation will demonstrate the advantages of a more multidisciplinary – creative, technological, legal and business – approach to the understanding and teaching of  music in the 21st century.  Classes which can be positively enhanced by such an approach include music appreciation, music theory, music composition, business, intellectual property law and technology.