As EMI Cites Harvey Danger Lipdub As Inducing Infringement, Harvey Danger Singer Says Lipdub Makes Him Incredibly Happy

from the who-did-what-now? dept

You may recall back in December that we wrote about the oddity of EMI suing Vimeo, claiming that by creating its own "lipdub" videos of people singing along to a song, it was actively encouraging (i.e., "inducing") copyright infringement. The main example, of course, was the company's first lipdub, which kicked off the craze, to the song Flagpole Sitta by the band Harvey Danger:

Lip Dub - Flagpole Sitta by Harvey Danger from amandalynferri on Vimeo.

To claim that this is somehow harmful to EMI is flat-out ridiculous. The song got a lot more attention because of this video (which currently has over 2.3 million views) -- and almost certainly helped the band and EMI out in terms of sales. And yet, EMI says it was harmful. The Citizen Media Law Project points out that the lead singer of Harvey Danger appears to disagree in a big way, having sent Vimeo an email after that lipdub video came out:
That Flagpole Sitta video made me incredibly happy, just when I thought there was NOTHING that could make me listen to that song again. A thousand thank you's.
A thousand thank yous... and a lawsuit from your label.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    The Anti-Mike (profile), Jan 28th, 2010 @ 3:08pm

    Mike, I think you keep confusing the difference between a nice idea (lipdubs) and right issues (getting permission to use the music in the first place).

    Are the videos "happy"? Yes. Do they have rights to the music? No.

    You attempt to cloud the rights issue by bringing in things that are just not relevant to the rights situation. Does it matter if the singer is happy or sad? Would it suddenly be terrible is the singer was sad, or would you just tar and feather him like Bono?

    No matter how much emotion you try to inject, the story remains the same, Vimeo made and encouraged people to make videos with materials they don't have rights to, and then profited from them (or at least attempted to profit). No happy or sad, just the facts.

     

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      ChurchHatesTucker (profile), Jan 28th, 2010 @ 3:13pm

      Re:

      "Mike, I think you keep confusing the difference between a nice idea (lipdubs) and right issues (getting permission to use the music in the first place). "

      I think you're confused. The entire point is that EMI got a ton of free advertising, and they're suing for the service. That's stupid, regardless of what 'rights' you have.

      BTW, Harvey Danger is actually a guy named Harvey Danger? I'm strangely disappointed.

       

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      Alan Gerow (profile), Jan 28th, 2010 @ 3:20pm

      Re:

      No, because he isn't arguing whether or not the rights were violated. He's arguing the legitimacy of those rights to the point where the person who created the song likes what people are doing with his music ... but since another company holds the rights, and pretends to act in the interest of their recording artists, the use of the music is objected to.

      The system is out of whack because the person who wrote the song approves of its use. But, someone else owns the rights to it and doesn't.

      The argument is not: the lipdubs are right and EMI is wrong. The argument is: the system is messed up.

      Not to mention ...
      How can a video be happy?

       

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    •  
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      Marcus Carab (profile), Jan 28th, 2010 @ 3:23pm

      Re:

      I believe you keep confusing the difference between saying something is legally right and saying something should be legally right.

      In this case, the point is that the artist himself was in favour of the video, and the average consumer believes that it is artists who get to decide what happens to their music (that's what anyone would guess without knowing more about the situation) - however, as we know, it's usually not artists, but their labels, who make these decisions, and that the decisions themselves often make very little sense.

      No matter how much emotion you try to inject, the story remains the same, Vimeo made and encouraged people to make videos with materials they don't have rights to, and then profited from them (or at least attempted to profit). No happy or sad, just the facts.

      Mike is not injecting emotion - the emotion is already there. The artist himself "injected" it, not to mention the fans. You might only want the facts, but this isn't a Fact List, it's a damn Blog. To Mike, and to me, and to a lot of other people, this is a pretty sad situation, and a good example of just how estranged the music industry has become from music itself.

       

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      mrharrysan (profile), Jan 28th, 2010 @ 3:39pm

      Re:

      Fair use man.

       

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      •  
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        Brian (profile), Jan 28th, 2010 @ 4:09pm

        Re: Re:

        those terms are not in his vocabulary

         

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          identicon
          Anonymous Coward, Jan 28th, 2010 @ 4:31pm

          Re: Re: Re:

          But TAM is so in favor of artist's rights along with corporate interests who own creative content that other artists utilizing fair use are obviously in the wrong.

          You have to protect artist's rights by preventing artists their fair use rights.

          Makes so much sense, doesn't it.

           

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    •  
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      Richard (profile), Jan 28th, 2010 @ 4:34pm

      Re:

      The fact is that all these "rights" were designed for a previous world that no longer exists.In the modern world they are just a pain. Note that it is not the money that is the problem - rather it is the hassle of obtaining "rights" if you are not part of the corporate world. It is like the Swinford tollbridge - an anachronism that holds everyone up so that some greedy so and so can make some money for doing nothing.

      http://scrapthetoll.blogspot.com/

       

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      Simon, Jan 29th, 2010 @ 4:22am

      The midddle man that makes both sides unhappy...

      ... another point is that the labels are basically agents between the artist and the consumer. Many of the tasks of the agents (distribution, promotion) are increasingly being made more efficient by the Internet. This means that the labels have to evolve in order to add real value and justify their cuts of the revenue. In this position, it probably not a great idea to both piss off both your client AND the consumer; they will make you redundant.

       

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      Jeremy2020 (profile), Jan 29th, 2010 @ 11:44am

      Re:

      The fact is I had forgotten about this band until seeing this. Then I went to Amazon and bought the album. A sale they would not have seen if this video didn't exist.

       

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    Thomas (profile), Jan 28th, 2010 @ 3:18pm

    The point is that the ownership and enforcement of those "rights" (restrictions) are usually not in the best interest of the artist. Do you ever read past the headline?

     

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    RD, Jan 28th, 2010 @ 3:39pm

    And yet...

    "No matter how much emotion you try to inject, the story remains the same, Vimeo made and encouraged people to make videos with materials they don't have rights to, and then profited from them (or at least attempted to profit). No happy or sad, just the facts."

    And of course, you ignore issues within this like fair use, and if the infringement causes actual harm to the original content and their owners. According to you, there would never be documentaries that didnt pay for EVERY SINGLE thing shown in them that are held by a rights holders. According to you, there would never be transformative use, of which this most certainly is. Luckily, the law, and common sense, sees some of these things differently than you and your Corporate Masters do.

     

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    mrharrysan (profile), Jan 28th, 2010 @ 3:46pm

    TAM is earning some serious troll points on this thread... haha.

     

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    dsemaya (profile), Jan 28th, 2010 @ 4:25pm

    IIRC Harvey Danger was dropped by their label after their big hit (the song in the video). They released an album for free on the internet in 2005.

    http://news.slashdot.org/article.pl?sid=05/10/02/2056210

    I downloaded this album and their songs come up on my iPod all the time.

    So while I agree that EMI shouldn't be suing, clearly the relationship between the artist and the label are strained and the two of them would likely never agree on this.

     

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    Nick, Jan 28th, 2010 @ 4:36pm

    An Idea

    Mike,this could be fun.

    How about making 2 consecutive posts taking both
    sides of an issue, any issue, one in each post.

    Love to see how TAM responds. Would he disagree
    with both of your posts? Or would he be forced into
    actually agreeing with one of them.

    Then he couldn't, by definition, be the anti-mike
    any longer. Right?

    I need a drink.

     

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    Anonymous Coward, Jan 28th, 2010 @ 4:43pm

    pretty sures hes already done that, and TAM was caught contradicting himself

     

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      Anonymous Coward, Jan 28th, 2010 @ 5:00pm

      Re:

      It's easy to contradict yourself when your trolling technique requires that you have little to no principle.

       

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    RD, Jan 28th, 2010 @ 4:56pm

    Yep

    "Then he couldn't, by definition, be the anti-mike
    any longer. Right?

    I need a drink."

    Jan 28th, 2010 @ 4:43pm
    by Anonymous Coward

    "pretty sures hes already done that, and TAM was caught contradicting himself"

    Um, yes, in EVERY POST HE POSTS. EVERY single opposite-stance he takes, he hypocrisizes (word?) and contradicts himself in some way.

     

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  •  
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    Noel Coward, Jan 28th, 2010 @ 7:13pm

    What Rights?

    While I don't always agree with record companies interpretation of Copy Rights Management issues.
    I feel that artists who've sold out their Right's, have no cause for complaint and those that go out on public record voicing their discontent at their record companies, need swift dressing down verbally.

    It makes no difference whether it was rights to be exploited for several years or not, then reverting to back to the artist. A deal is a deal, and reneging on a contract is bad form whatever your back ground.
    Unless the contract was misrepresented, or the advice received was flawed or biased because of associations with the parties involved, then sorry no case.

    What needs to happen, if you believe in this new utopia that will bring new income streams to artists. Is have artists move away from old distribution models, not do deals with them.

    With respect to Vimeo exploiting the fair use angle, by deflecting responsibility on to the services user base. Well this is becoming the norm, but certainly pushes the fair use grey area and will no doubt be tested in the legal system, until the powers that be realize it would be best to redefine the terms given to "Copy Rights" within the international systems of LAW.

    This would require that humanity as whole would need to agree on something for a change.
    Thats when I begin to laugh ..... LOL

    I can see, and have seen, both sides of the fence. But artists are NOT abandoning these old distribution bastions in droves, and successes are varied in the NEW frontiers of distribution. Though I for one do believe in their merit.

    I think in the future you will see new models appearing, and perhaps the Old Record companies have had their day. But I dare say they'll be around for a lot longer than you think, just not in their current form.

    I look forward to the day when they are leaner and more creative in their operational directives. Not run by penny pinching accountants with no real depth of knowledge of the medium or how to generate sales.

     

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  •  
    identicon
    Urza9814, Jan 28th, 2010 @ 8:00pm

    I wanna see an artist get sued...

    Someone needs to create a fund where people can donate and the contents of that fund will be given to the first artist to be sued by the recording industry for infringing the copyright on their own music. Think of it as insurance - a way to pay off any legal fees that are incurred. That would make a hell of a show - the RIAA, who always _claims_ to be doing this to protect the artists, against an artist themselves. I know plenty of artists have already _encouraged_ pirating their works, but I don't know of any cases where artists have actually been a part of it - at least not when their label didn't support it. I think if they knew the legal fees would be covered, some artists might be a bit more bold about this.

     

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      transmaster (profile), Jan 28th, 2010 @ 9:08pm

      Re: I wanna see an artist get sued...

      This has already happened. More then ten years ago. I don't remember the details but an artist was performing his own music after he was booted form his contract by his record label. His former label sued him saying he was infringing on their copyright. The Judge dismissed the suit with prejudice which means the label could not refile the claim. He chewed the label basically telling them this musician composed this music and basically tied it into a free speech issue.

       

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    •  
      identicon
      Anon, Nov 27th, 2010 @ 7:18pm

      Re: I wanna see an artist get sued...

      Look up John Fogerty. Specifically, Fogerty v. Fantasy (1994). Not only has it happened before, it's happened to fairly successful (and famous) artists.

       

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    Hephaestus (profile), Jan 28th, 2010 @ 8:42pm

    Anti-Mike .... may the war begin ...

    As an outsider that cares nothing about the record labels, the artists contracts, piracy, ACTA, or the desperate plans of the middle men. I have an observation, comments like ...

    "You attempt to cloud the rights issue by bringing in things that are just not relevant to the rights situation. Does it matter if the singer is happy or sad? Would it suddenly be terrible is the singer was sad, or would you just tar and feather him like Bono?"

    Alienate people who the record labels are supposed to be working for and helping. Thats why comments like this ...

    "That Flagpole Sitta video made me incredibly happy, just when I thought there was NOTHING that could make me listen to that song again. A thousand thank you's."

    Combined with yours make me realise you and the record labels are self defeating. I get the new business plan, Alienate the Fans and alienate the artists. Makes great business sense in the alternate reality I just got back from ....


    .... where the labels were all publicly traded and all the board members went short on the stock.

     

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      The Anti-Mike (profile), Jan 28th, 2010 @ 9:50pm

      Re: Anti-Mike .... may the war begin ...

      Funny post, but way beyond missing the point.

      Let's say the record labels (or the rights holders, it isn't just labels, no matter how much you want to blame them) allow this. Then next week, someone makes another video, uses the music again, and sells advertising with it. Then the week after, someone uses the music for their non-profit organization video. Then a week later, someone uses it to sell toothpaste. Where in there should they suddenly react?

      You (and Mike) may not like where the line is being drawn, but at the end, there has to be a line, otherwise you are in the give a little, lose a little business until you have no more rights left. It's the old legal slippery slope.

      In the end, Mike knows the rights holders are well within their rights here, that Vimeo really doesn't have much to stand on, but we are suppose to be swayed by the "factoids" that the videos are somehow fun and that someone who appeared on the original song thinks they are fun too. I have to laugh, only because people here get upset at me if I don't have anything other than an emotional argument about something, yet this one is entirely on emotion.

      So keep going.

       

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      •  
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        PaulT (profile), Jan 29th, 2010 @ 12:39am

        Re: Re: Anti-Mike .... may the war begin ...

        http://en.wikipedia.org/wiki/Slippery_slope_fallacy

        You argument, as ever, is ridiculous. To begin with, there's a good argument that the video falls under some kind of fair use exception to copyright. Even if this is not the case, EMI are unlikely to have actually lost anything from this video - but have much to gain. It's free advertising, and there will definitely have been people out there who had never heard the song and decided to pay for a copy after seeing the video. No harm, no foul.

        "Then next week, someone makes another video, uses the music again, and sells advertising with it."

        Perhaps a grey area in some ways, but so what? The video still gets distributed and EMI get the benefits, only someone else gets a slice. Legally not correct, and in a grey moral area, but EMI will not lose anything unless they were also trying to stream the video with advertising. They're not, so the point is moot.

        "Then the week after, someone uses the music for their non-profit organization video."

        Why would this be a bad thing, either morally or legally? A charity decided to use a song? Great. EMI should support that, they would come across as the good guys and regain a bit of the good will they've squandered since the mid 90s. If they worked with the organisation to set up a sponsorship deal instead of calling in the lawyers, all parties would ultimately benefit.

        "Then a week later, someone uses it to sell toothpaste. Where in there should they suddenly react?"

        There we go - they react right there. Such an action would not be covered by any kind of fair use rights and is a clear violation of copyright law. EMI could happily sue, and neither the artist nor the general public would be likely to have any objection. This is the type of situation that copyright is set up for, not situations like the one in the article.

        "there has to be a line, otherwise you are in the give a little, lose a little business until you have no more rights left"

        ...and yet, as we often point out here, the actions they're taking to "protect" those rights are causing them large costs and a lot of lost business. The point is that everyone who posts here, with very few exceptions, are the customers (or potential customers) of companies like EMI. You consistently trash the ideas presented here, but all we're really saying is "these actions make me not want to buy music, here's a suggestion of how to make me want to buy".

        I personally used to not care about labels until the RIAA started their overreaching "protection" attempts. Now, it's over 5 years since I've bought a major label album - and, no, I don't "pirate" them either - as a direct result of their actions. I buy at least 4 albums per month. It's not "piracy" that's the issue here, nor other so-called infringement. It's the labels' own actions that have lost them not only existing fans but also the chance to sell the product a new generation actually wants.

        "we are suppose to be swayed by the "factoids" that the videos are somehow fun and that someone who appeared on the original song thinks they are fun too."

        The fans like the video and are encouraged to buy more music. The artist responsible for creating the original music is happy with it, stating that it reignited his love for a song that he had long tired of. Everybody wins, or they would if the middlemen weren't so utterly stuck in a previous era of marketing. All these actions are supposed to be "for the artists" and to "protect their business", right? How, then, does it make sense to piss off both the artists and the fans, and try to prevent a free form of advertising?

         

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          The Anti-Mike (profile), Jan 29th, 2010 @ 5:16am

          Re: Re: Re: Anti-Mike .... may the war begin ...

          Paul, let's start with the Wikipedia link. It's a link to an opinion page, not a fact page. It's someone basically expressing an opinion about a certain type of "slippery slope" argument, and not the one I am making.

          As for the rest of your post, let's poke some thing:

          and yet, as we often point out here, the actions they're taking to "protect" those rights are causing them large costs and a lot of lost business. The point is that everyone who posts here, with very few exceptions, are the customers (or potential customers) of companies like EMI. You consistently trash the ideas presented here, but all we're really saying is "these actions make me not want to buy music, here's a suggestion of how to make me want to buy".

          This starts back down the road of entitlement, where end consumers have been taught that they have all sorts of rights over IP that they just don't have. Would it have hurt Vimeo to get the rights first? Why should they have a business model that ignores the rights of others?

          Fair use in this case is very unlikely, the video is long, the content is fully used, and it is clearly being used with commercial purpose by Vimeo. If you permit this sort of use, why would the IP holder be allowed to stop the next commercial use?

          Vimeo may feel somehow entitled to thumb their noses at copyright law, and the end consumers may feel entitled to get something for nothing, but the buck has to stop somewhere.

          The fans like the video and are encouraged to buy more music. The artist responsible for creating the original music is happy with it, stating that it reignited his love for a song that he had long tired of. Everybody wins, or they would if the middlemen weren't so utterly stuck in a previous era of marketing

          There is no indication that the fans are buying any more music (they are likely to download it for free from a torrent), and in the end nobody wins. The rights holders who paid the Harvey Danger guys a sizable amount of money up front don't get paid, the artist / writers don't get paid, and pretty much the only people happy are the "fans" and Vimeo, who each get to profit from a free pass. Your version of "everyone" isn't very inclusive, is it? I have a feeling that the "everyone" you point to is the group you are in, but which doesn't include everyone.

          I personally used to not care about labels until the RIAA started their overreaching "protection" attempts. Now, it's over 5 years since I've bought a major label album - and, no, I don't "pirate" them either

          So wouldn't it be better if Vimeo only lipdubbed those artists that want it, and that Vimeo gets the rights to? Oh, wait, that would mean using music that few people know, few people would want to sing along with, and likely would not help promote Vimeo. I sort of see where this goes.

           

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            nasch (profile), Jan 29th, 2010 @ 7:50am

            Re: Re: Re: Re: Anti-Mike .... may the war begin ...

            There is no indication that the fans are buying any more music (they are likely to download it for free from a torrent), and in the end nobody wins.

            I have bought music because of hearing it in a YouTube video (not uploaded by the rights holder). It seems surpassingly unlikely that I am the only one. It seems much more likely there are thousands or more probably millions of other people who have done the same thing.

             

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            Anonymous Coward, Jan 29th, 2010 @ 6:50pm

            Re: Re: Re: Re: Anti-Mike .... may the war begin ...

            I wonder if we can coin a new fallacy when you just ignore facts you don't like.

             

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    BentFranklin (profile), Jan 28th, 2010 @ 10:04pm

    Those labels have every right to be idiot assholes. But I still have the right not to buy their product, right? Wrong, not if everyone has to pay some kind of tax to them, which is what they would like. Now who's the pirate?

     

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    Noel Coward, Jan 28th, 2010 @ 10:08pm

    Wana see an artist get sued?

    Gee, I remember quite clearly two artists who will go down in history for the biggest sham deals ever signed.
    Classic misrepresentation, ... or should I say they believed the hype unfortunately.

    Prince would have to be a classic, because they [ label omitted ] said they would give him complete creative control.
    He didn't bite at fist, then they offered a seat on the board with a deal worth 700 million US.

    He bought it hook line a sinker and signed.
    Only to find out how rules in the board room change very quickly, and the control can shift all of a sudden.

    Before long he felt like the character Kunta Kinte in the Alex Hayley novel [ ROOTED ], .... or should I say SLAVE!

    Silly move, he already had enough money, recording studio's & film studios in Minneappolis care of Paisley Park.
    He only need have organised his own distribution, not sold his soul.

    We all now know how many years he lost in the wilderness as Mr. Love Symbol.

    You have to give him credit for putting up one of the most creative legal battles in legal music business history.
    Which more than makes up for a slip in judgement.

    Hats off to you SIR :)

    P.S. He now has all business in house via his crew, artists and private fan club. Which incidentally offers great offers and perks for loyal fans.

     

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    identicon
    Doctor Strange, Jan 28th, 2010 @ 11:03pm

    What I don't understand is why, if giving your art away for free is so much better in every possible way than selling it, anybody would try to sell it at all?

    Is the hypothesis really that everybody is just an idiot?

     

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      nasch (profile), Jan 29th, 2010 @ 7:53am

      Re:

      I think the idea is if it's actually selling then that is great. But if you don't already have fans, then charging for your music is going to be a tough road. Giving it away will get you more fans faster. And if you're already selling music to your fans, be mindful of other opportunities that free music can open up.

       

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    RT Cunningham (profile), Jan 29th, 2010 @ 12:59am

    I watched the video but I'm not buying

    Because EMI owns it, I'm not buying a copy of the song or the album (is there an album?) and I like the song. Simple as that. I haven't bought music from a label since the RIAA sued the first person.

     

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    jezsik (profile), Jan 29th, 2010 @ 6:04am

    They STILL don't get it

    I'd never heard of Harvey Danger before seeing this video. I'd never heard the song, either. Thanks to this viral advertisement, they just made a sale. Tell me again, EMI, how this is a bad thing.

     

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    Glenn, Jan 29th, 2010 @ 6:32am

    Same old, same old...

    It's really the same concept behind charging producers millions of dollars more for the "right" to use music they've already paid to use (hey, do you mind if we pay you some money to advertise your songs for you?) when releasing an old show on DVD but have to because the original contract didn't specifically mention (then non-existent) DVDs (hey, do you mind if we pay you some more money to advertise your songs for you?) That's information super-highway robbery for you. And by the way, when are artists and labels going to start paying money out to the people whose works inspired them in the first place--seems only fair.

     

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    identicon
    Anonymous Coward, Jan 29th, 2010 @ 8:37am

    Who cares what the lead of Harvey Danger said? He signed over many of his rights to another organization. Work for hire, etc.

     

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    identicon
    lipdub team, Nov 24th, 2010 @ 7:29am

    Today starts the World Cup Lipdub 2010. It will run for two months until January 24, 2011. Go vote for your favorite lipdubs: http://lipdub.eu/gallery/

     

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