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Beach Boys Lyricist Goes After Artist Who Dared To Paint Works Inspired By Beach Boy Songs

Culture

from the copyright-dreamin' dept

Thu, Feb 2nd 2012 10:50am -

Peter Friedman alerts us to yet another ridiculous copyright claim (of which there have been a few) from a member of The Beach Boys. You may have heard that, last year, the Beach Boys’ Smile album was finally released, despite being recorded in 1966. An artist, by the name of Erik den Breejen, found out about this, and he (a lifelong Beach Boys fan) set out to create a series of paintings inspired by the songs on the album. Sounds good, right? Art inspiring art. Not so much. After completing the works and getting set up with a gallery show to display the works, den Breejen reached out to Beach Boys lyricist Van Dyke Parks, who he figured would like to know about this. Turns out… that wasn’t true. Instead, Parks shot back a cease-and-desist.

Instead of fighting back with lawyers, den Breejen and the gallery have approached Parks himself to try to negotiate some kind of out-of-court agreement. Parks was already credited in the exhibition’s press release and in a booklet den Breejen distributed at the gallery, but soon he could be considered a collaborator — entitling him to a percentage of the proceeds. (Van Dyke’s manager did not respond to a request for comment.)

Until the two sides settle their differences, the gallery has put on hold at least two sales inquiries

It’s difficult to see how this is not fair use, but since we live in a world where fair use isn’t determined until after an expensive court process, we’ll never know in this case.

Update: Just some clarifications, as per the comments. Parks was a lyricist for the band, rather than a direct member. Separately the paintings do include lyrics from the songs, which should have been made clear. I don’t see how either point really changes the overall analysis, however.

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Comments on “Beach Boys Lyricist Goes After Artist Who Dared To Paint Works Inspired By Beach Boy Songs”

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91 Comments
Anonymous Coward says:

Re: Lawyers like to support...

The only problem is that if I am sued by a large company my lawyer fees are going to be incredibly small compared to the large company’s gaggle of lawyers. If I win the large company will pay for my court costs which will increase their costs very little. But if I lose I will definitely go bankrupt as there would be no way for me to pay a large company’s court costs.

cc (profile) says:

Re: Re: Bitch Boys

I’m not really criticising the quality of his art (though personally I think it’s horrible), I’m pointing out that his art wasn’t just inspired by the songs, some of it actually contains copyrighted lyrics.

That doesn’t justify Parks’s reaction, of course (I think he’s being a prick), but at least there may be legal grounds for it.

Anonymous Coward says:

Re: Re:

Are you saying that if I paint purple on canvas and call it Haze of Purple I’m violating the estate of Hendrix’s copyright?

Yes.

When the Copyright Office says, ?Copyright Protection Not Available for Names, Titles, or Short Phrases?, well, that is just some lawyer-dudes saying that. It doesn’t mean anything until you go to court, and get a real judge to say it. And that costs money. More money than you can afford.?.?. ? ?Capiche?

Don’t violate copyright.

Ben in TX (profile) says:

Pathetic

Anyone who knows the Beach Boys’ history won’t be too surprised by this. Those guys are a bunch of drug-addled has-beens who couldn’t get a gig playing anything after about 1969. Everything they did after that failed and they were totally washed up until the re-released all their hits from the 60s on the Endless Summer album. They’ve been making money touring ever since, but not producing anything new that was noteworthy.

So here’s a golden troll opportunity and they jump on it. I don’t expect much else from washed up losers like these guys. I hope they reach an agreement but I won’t be surprised if they don’t, or if any agreement they do make is totally unfair.

I may have to go torrent Endless Summer purely out of spite.

Ninja (profile) says:

It’s all about protecting the creators, can’t we see this simple truth? It’s obvious that Beach Boys fans would get irreparably confused thinking their beloved artists decided to stop singing and start painting, which would cause despair among the fanbase. And the non-fans would think they are devoted to paintings and drawings and it might drive them away without ever listening to the great music created. And this would generate billions of losses for the group forcing them to beg for money on the streets. I”m ashamed to be a TD reader today. Mike, couldn’t you see something that simple?

Ahem, sarcasm apart, fail band is fail. Artists that behave like this don’t deserve any respect and I will make sure to keep my distance from anything related to them, including illegal downloads. Needless to say, I hardly believe that this is a way to make fans love you and send money your way. Total fail.

Someone says:

Re: Re: Re:

I have to agree with that. The article was mistitled just to be provocative. It should have really read “Beach Boys Lyricist Goes After Artist Who Republished his Copyrighted Lyrics”.

It would be a different matter if the work wasn’t comprised entirely of his verbatim text, with only the alteration of coloring them. It’s no different than his profiting from a book of their lyrics. If he had managed to write a book of poetry, would he have been wrong to sue the Beach Boys for profiting from the singing his text?

Anonymous Coward says:

Never trust a tech dork to know anything about music.

This article and the following comments are so full of inaccuracies that it surpasses even the usual Techdirt BS quotient.

The Beach Boys aren’t suing the artist.

In fact the Beach Boys have absolutely nothing to do with the cease and desist letter.

Van Dyke Parks worked with a member of the Beach Boys, under a work-for-hire situation, 46 years ago. His lyrics are the subject of the painter’s work.

This sort of sloppy “reporting” is what we’ve come to expect here at Techdirt, which is really nothing but a dumpster for Mike Masnick’s daily intellectual dishonesty and propaganda.

Mike Masnick (profile) says:

Re: Re:

Van Dyke Parks worked with a member of the Beach Boys, under a work-for-hire situation, 46 years ago. His lyrics are the subject of the painter’s work.

If it were work for hire then that would mean he doesn’t own the copyrights in question, and his cease-and-desist would be copyfraud.

I did, however, clarify the point concerning his role as a lyricist. That had not been clear in the original, and (contrary to your daily personal attacks), we aim to be as accurate as possible. That’s part of the reason why we have open comments, so that knowledgeable people can add information to the discussion. Most people can do that without also being total assholes.

TtfnJohn (profile) says:

Re: Re: Re:3 Re:

Please remind me of the last time The Beach Boys made or created any art, original or otherwise.

A few nice bouncy tunes before they decided to be the California Beatles and the drugs dragged them into a pit. (All of which happened before they learned to play a note on their “instruments”.)

So a visual artist decides to make a series of paintings inspired by the release, finally, of Pet Sounds and Parks decides to land on him with a truckload of lawyers.

There’s something just a bit wrong with this. There’s a difference between being celebrated and being ripped off. Parks can’t see that difference.

Ya know something. I’m not one little bit surprised.

Daria says:

Re: Re: Re:3 Re:

Mike Masnick thinks everything is fair use.

The goal of Masnick, Google and the rest of certain parasitic internet “businesses” is to attack copyright. They can’t create original art themselves, so they look to profit off the backs of those that do.

Maybe so, but copyright in itself is a lot of BS. Can you honestly tell me why it’s ok for copyright to last 70 years past the life of the creator? So not only his children, but his grandchildren never have to work a day in their lives? Please! The same can be said about studios – they can’t actually create the art, they just profit off the backs of those that do. I’m a translator – technically, my translations belong to me and I should retain copyright, in the sense that every time my translation is republished, I should get a cut (a very small sum, but still). In reality, big publishing houses consider it’s ok to pay me just once for the translation and then use it forever without having to pay me a dime. Basically, I have absolutely zero rights to that translation, once the publishing house gets it. And guess what, sometimes the publishing house does not even pay the agreed upon price, coming up with excuses like “the book market is at an all-time low”, sometimes they don’t pay at all, because “the book will not be published at this time” – do I feel entitled to publish said translation on the internet for free? You bet! The TV station I worked for stipulated in the contract that I “voluntarily” give up copyright for my translations for 99 years – wanna know how many times I’ve seen reruns with my name on them, even though I stopped working for them 12 years ago? I’m one of the people who can’t stand copyright, even though sometimes I benefit from it (that is when I find publishing houses with an ounce of ethics, which is rare). There’s absolutely no doubt in my mind that the artists should get rewarded for their work, which is why I always buy the things I love, to make sure that they keep doing what they’re doing and that I will be able to enjoy them in the future as well. But there’s also no doubt in my mind that sometimes the prices they charge are outrageous and that only a small part of that money actually gets to the artist. Copyright is fighting for the artist? Give me a break! I can’t tell you how many times I discovered through “pirating” a series that I wouldn’t have even heard about otherwise and then went out and bought it. The point is people who can afford it, buy it, people who can’t wouldn’t buy it even if there was no alternative. It’s like Gucci claiming that they lost sales because of cheap counterfeit “Guggi” bags. Do they actually think that people buying the counterfeit product would suddenly rush to buy the real thing if the counterfeit was no longer available? Seriously? It’s the same with movies. Do they actually think that people who can’t afford it would suddenly decide to starve for a couple of days just so they can watch the latest block-buster?

JMT says:

Re: Re: Re: Re:

You certainly don’t have to be an asshole to want to encourage others to infringe on artist’s copyrights, you just have to feel that copyright has been stretched ridiculously beyond its original intent, and is of far more benefit to the copyright holder than to the public, the exact opposite of what it was intended to be. And judging by the worldwide scale of copyright infringement, either most of the world are assholes, or copyright holders have simply lost most people’s respect due to their actions.

Anonymous Coward says:

Re: Re: Re:2 Re:

And the term “work for hire” here is being used to define Van Dyke Parks relationship to the band the Beach Boys.

It isn’t being used in the discussion about copyright. The term is not mutually exclusive to copyright.

The copyrights Parks owns on lyrics from that album are a separate issue. Don’t conflate them.

Anonymous Coward says:

Re: Re: Re:3 Re:

You seem to be using the term “work for hire” in a manner I have never heard it used.

What do you mean when you say “work for hire”?

I would caution that, since “work for hire” or “work made for hire” *is* a term of art used to refer to copyright ownership status, you might want to be careful using in some other manner. It is likely to lead to confusion.

Mike Masnick (profile) says:

Re: Re: Re:3 Re:

And the term “work for hire” here is being used to define Van Dyke Parks relationship to the band the Beach Boys.

It isn’t being used in the discussion about copyright. The term is not mutually exclusive to copyright.

I have never heard the term used outside of the copyright context. I don’t mean to cast aspersions — though, you seem to throw ad homs around at any chance possible — but perhaps this is a case where you heard a phrase “work for hire,” had absolutely no clue what it actually meant, and then used it. Amusingly, of course, you used it in the context of accusing someone (me, in this case) of not knowing what I was talking about.

So, given the initial comment in this thread, would it be fair for me to state: “Never trust a music dork to know anything about copyright.”?

Anonymous Coward says:

Re: Re: Re:4 Re:

To you, a clueless tech dweeb that hates copyright, “work for hire” probably is only associated with copyright.

But if you actually knew anything about music, which you don’t, or the time-frame that this particular music was created with union musicians, which you know nothing about, you might understand the meaning.

But clearly you don’t.

You fucking worthless, uncreative gutter vermin.

Anonymous Coward says:

Re: Re: Re:5 Re:

It’s sad that I must explain this to you, a person that loves to opine on the music business as if he is an expert, but I will anyway.

What happened with Van:

You ask me to write songs with you.

I want to be paid for my time and creativity (a foreign concept to the the parasitic non-contributing members of society that live or die by this blog).

Our deal, made between you and me:

You agree to pay me, a member of the musician’s union, for my time.

You also agree to grant me a piece of the back end: co-writer credit and half of the the copyright on this song(s), thus giving me publishing royalties on radio play, commercials, movie use, etc.

I make no claim on your band’s RECORDS SOLD with my songs on it; I was not in your band, and your band’s records were not advertised as me. I was only working on this album on a WORK FOR HIRE basis. I can not make any claims on that.

I can ONLY make claims on my songs when used outside of Beach Boys albums that are for sale.

Any use of Beach Boys albums that contain my songs rests within the domain of the Beach Boys. Not me.

Anonymous Coward says:

Re: Re: Re:6 Re:

As a musician and lawyer (and lawyer for musicians), I can say you are using the term “work for hire” in a misleading sense.

The relationship you’re describing is not a work made for hire relationship, because the lyricist retains his share of the copyright on the work he created.

The fact that he has no claim on the records sold does not change that fact, because records (i.e., mechanical reproductions) are subject to a compulsory mechanical licensing rate anyway (although it’s common for songwriters to agree to a lower rate).

The fact that he was paid for his work does not make the relationship a “work for hire” relationship. This is a common misconception amoung musicians (and others).

Mike Masnick (profile) says:

Re: Re: Re:2 Re:

Is his lyrics were “works made for hire” as that term is used in U.S. copyright law, then he as no basis to bring a copyright infringement claim (because the copyright would be owned by the people who paid him).

I think that’s the point Mike is making.

Yes, this is exactly the point I am making.

Mike Masnick (profile) says:

Re: Re: Re: Re:

Van Dyke Parks was not a member of the Beach Boys. He was work-for-hire as he does not get mechanical royalties from his work. He was paid a salary. His lyrics being copyrighted have nothing to do with that.

Again, if it’s work for hire, it means he doesn’t hold the copyright. So… what is he suing over? Or are you mistaken in your claim?

CJ (profile) says:

Fair use

I am not good at this, but I believe it is time for President Obama to say if he is for fair use or not, and what constitutes as fair use so this can move on to the next stage. As long as the White House does not take a stand one way or another fair use is open to anyone’s interpretation for which can be abused.

But I am no good at writing this sort of thing up.
https://wwws.whitehouse.gov/petitions#!/petition/create

Beach Boy Historian says:

The inaccuracies people are spouting about the Beach Boys here are just plain ridiculous. Why do people write things as fact when they have no frickin idea? At least put some disclaimer like “i think that what happened” or whatever. Btw I think there just “might” already be torrents available of every single Beach Boys album already 😉

Christopher Joel (profile) says:

Fair use? No...

AFter seeing one of the paintings in question, I’d say the painter clearly violated the song writer’s copyright. The entire painting IS the lyrics from the songs. That’s not fair use, that just USE. The songwriter should definitely be a co-creator the painting since it’s his copyrighted work that’s being presented. If the paintings were anything other than the lyrics (street scenes, abstract blobs, etc), then the painter would not have been contacted in the first place. But this is clearly NOT fair use.

Anonymous Coward says:

Re:

He/she may or may not own the copyright in the photos. It depends on whether you signed a valid work made for hire agreement and/or whether he is working as an employee within the scope of his/her employment.

Without a written work made for hire agreement or an employment relationship, it’s not a “work made for hire,” so the photographer retains his rights.

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