Beastie Boys Say They Don't Want Music In Ads, But Fair Use Doesn't Care

from the that's-not-how-it-works dept

On Friday, we wrote about the declaratory judgment lawsuit that toy company GoldieBlox filed against Universal Music, the Beastie Boys and a few related parties, arguing that their commercial, which parodies the BB's song "Girls" is fair use and not copyright infringement, following what they claimed was a threat from the band's lawyers. Over the weekend, some in the press started quoting a representative of the Beastie Boys who said no such threat ever happened:
A representative for the Beastie Boys explained: "There was no complaint filed, no demand letter (no demand, for that matter) when [GoldieBlox] sued Beastie Boys."
Today, the Beastie Boys, clearly in damage control mode, sent an open letter to the company:
Like many of the millions of people who have seen your toy commercial “GoldieBlox, Rube Goldberg & the Beastie Boys,” we were very impressed by the creativity and the message behind your ad.

We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.

As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads.

When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.
Now, it is true that some in the press have mistakenly stated that the Beastie Boys sued GoldieBlox, and that's clearly not the case. GoldieBlox filed for declaratory judgment, which is a fairly standard move after someone claims that you violated their rights. It's not a lawsuit seeking money -- just to declare that the use is fair use. While the Beastie Boys say they made no threat or demand, the lawsuit notes that their letter (which still has not been revealed in full) made a direct claim that the video was copyright infringement, and also that this was a "big problem" that has a "very significant impact."

Many people in our comments and elsewhere who have defended the Beastie Boys have pointed out that the band does not allow its music to be used in advertisements. And, in fact, that in Adam Yauch's will, it explicitly stated that none of their music was ever to be used in advertising. And, from the Beastie Boys' open letter, it appears that was their main concern.

But, here's the thing: as principled as Yauch was about this, and as admirable as it may be for him and the band to not want their music appearing in advertisements that does not matter under the law. If the use is considered fair use, then it can be used. Period. There is no clause in fair use law that says "except if someone's will says otherwise." The very point of fair use is that you don't need permission and you don't need a license.

So the fact that they don't like their work in advertisements is entirely meaningless to the legal question. In fact, if anything it may harm the claim that it's infringement. I've spoken to a bunch of copyright lawyers about this, and almost all of them agree that this is likely fair use (with some arguing that it's a totally clear-cut case). Some have argued that because it's an advertisement for a company that precludes any possibility of fair use, but that's absolutely not true. Plenty of commercial efforts have been considered fair use, and, in fact, many of the folks who rely the most on fair use are large media companies who are using things in a commercial context. Furthermore, the Supreme Court explicitly stated in Campbell v. Acuff-Rose Music, Inc. that commercial use can be fair use, noting that if commercial use made things automatic infringement, it would destroy fair use:
If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country." Harper & Row, supra, at 592 (Brennan, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common-law cases...
And later, in overturning the appeals court ruling that went the other way:
It was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew's parody of "Oh, Pretty Woman" rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of the use.
Both of those clearly apply here as well. Some have pointed out that GoldieBlox didn't "declare" this video a parody. But, once again, in the very same case, the Supreme Court notes you don't need to do that:
We note in passing that 2 Live Crew need not label their whole album, or even this song, a parody in order to claim fair use protection, nor should 2 Live Crew be penalized for this being its first parodic essay. Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived).
That's not to say the commercial nature of this venture won't play into any analysis. It is certainly one factor in many. However, as Ken White points out, if this weren't a commercial, there's absolutely no doubt that it's fair use, as it hits on pretty much every other factor. Furthermore, the very fact that the Beastie Boys refuse to allow their songs in ads actually works against them because they can't legitimately argue that they lost money because of this, since they've outright declared that they won't license music for such things. So no money could be lost.

And, in fact, this is exactly what fair use is for: to enable people to use music, without permission, in situations that create a very different kind of work where the copyright holder would almost certainly not grant permission.


Reader Comments (rss)

(Flattened / Threaded)

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    Christopher Best (profile), Nov 25th, 2013 @ 11:07am

    I've got an idea...

    Someone mail the Beastie Boys (and their lawyers) the collected works of "Weird Al" Yankovich, a DVD of Spaceballs, and a nice, dog-eared paperback of Bored of Rings. At the very least, it should keep them busy for a week or two while adults discuss this...

     

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      Christopher Best (profile), Nov 25th, 2013 @ 11:07am

      P.S.

      And yes, I know "Weird Al" gets "authorization" for his parodies, but the record will show that's out of respect for the original artists, not due to any legal necessity, as evidenced by the hissy fit over Amish Paradise.

       

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        Anonymous Coward, Nov 25th, 2013 @ 11:30am

        Re: P.S.

        My favorite was actually the "You're Pitiful" incident. James Blunt granted permission, but the label didn't want it. Al released it (for free) anyway, because it was the artist's permission that mattered to him.

         

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      Christopher Best (profile), Nov 25th, 2013 @ 11:14am

      Re: I've got an idea...

      P.P.S

      Oh, throw in some of the better MAD Magazine or Cracked movie issues, as well. I recall the send-up of Star Trek: Generations I read years ago having a much more believable ending...

       

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      Sneeje (profile), Nov 25th, 2013 @ 12:23pm

      Re: I've got an idea...

      Holy carp, I thought I was the only one who had ever bought/read (wish I hadn't) Bored of the Rings...

       

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      Anonymous, Nov 25th, 2013 @ 4:50pm

      Re: I've got an idea...

      Better yet, send them several ApologetiX albums. That might plant a seed which yields positive results.

       

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    kenichi tanaka (profile), Nov 25th, 2013 @ 11:16am

    I just don't see GoldieBlox winning this one. CFrom the way I understand it, what GoldieBlox did with The Beastie Boys music cannot be claimed as "Fair Use" since they used the music to advertise their own product.

    It's like if you took someone's song and used it in your advertisement. You simply cannot claim "Fair Use" if you use someone else's copyrighted material to sell your product.

    Common forms of Fair Use:

    Criticism and comment -- for example, quoting or excerpting a work in a review or criticism for purposes of illustration or comment.

    News reporting -- for example, summarizing an address or article, with brief quotations, in a news report.

    Research and scholarship -- for example, quoting a short passage in a scholarly, scientific, or technical work for illustration or clarification of the author's observations.

    Nonprofit educational uses -- for example, photocopying of limited portions of written works by teachers for classroom use.

    Parody -- that is, a work that ridicules another, usually well-known, work by imitating it in a comic way.

     

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      Rikuo (profile), Nov 25th, 2013 @ 11:29am

      Re:

      I don't see anything there that outright forbids the use of someone else's music in a commercial advertisement.
      Also you ignored this paragraph from the article
      "If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country." Harper & Row, supra, at 592 (Brennan, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common-law cases... "

       

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      Christopher Best (profile), Nov 25th, 2013 @ 11:29am

      Re:

      Er... You even list Parody as legitimate Fair Use, and then say GoldieBlox cannot claim Fair Use on their Parody?

      Does not compute.

       

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        anonymouse, Nov 25th, 2013 @ 12:16pm

        Re: Re:

        Fair use where it is a parody and there is no intention to make money from it. I dont know what the situation is with weird al but surely he should be paying any money created from the use of others work even if it was a lousy 2% of his profits.

         

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          Anonymous Coward, Nov 25th, 2013 @ 12:28pm

          Re: Re: Re:

          Fair use where it is a parody and there is no intention to make money from it.

          Is the same as saying parody is not fair use.

           

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          Greevar (profile), Nov 25th, 2013 @ 12:48pm

          Re: Re: Re:

          No, profit does no negate fair use.

           

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            Anonymous Coward, Nov 25th, 2013 @ 2:30pm

            Re: Re: Re: Re:

            And fair use doesn't negate non-protected derivative works of a commercial nature, which this circumstance clearly indicates is the case.

            Did they release this song as an independent piece of art?

            No?

            So, is the entire video a part of parody?

            No?

            Ok, so it's a commercial venture then?

            Yes.

            To put it another way, if this was a "commercial" in the style of Saturday Night Live, it'd be clear parody and protected right out, I'm confident of that...but this is being used to sell stuff as the primary function. Yeah, this ain't going to hold up.

             

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              Rikuo (profile), Nov 25th, 2013 @ 2:38pm

              Re: Re: Re: Re: Re:

              So if we were to take Saturday Night Live as the "advert", then they'd be what? Advertising the network/channel, which in their case was NBC (according to Wikipedia)? So, since SNL was advertising NBC, would they then, in your logic, NOT be allowed, since they're advertising to sell a subscription to NBC (if NBC needs/or ever needed one, please let me know).

               

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                Anonymous Coward, Nov 26th, 2013 @ 9:15am

                Re: Re: Re: Re: Re: Re:

                No, what I mean is that the parody SNL advertisements are being sold within the proper context of an entertainment avenue - a TV show - which is the product itself being sold. This example isn't a parody of a commercial, it's a commercial posing as parody for a distinct business / capitalistic reason. It's going to lose.

                 

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              Anonymous Coward, Nov 25th, 2013 @ 3:41pm

              Re: Re: Re: Re: Re:

              "And fair use doesn't negate non-protected derivative works of a commercial nature,"

              What? That's exactly what fair use does. It applies when something would otherwise be infringement, and says "nope, that's not infringement."

              If you are so certain that commercial use is inconsistent with fair use, perhaps you could explain the Campbell v. Acuff-Rose decision (i.e., the law of the land).

               

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                Anonymous Coward, Nov 26th, 2013 @ 9:15am

                Re: Re: Re: Re: Re: Re:

                From a commenter on another site, someone who seems very familiar with this case (though has not outed themselves as a lawyer):

                Check this line from the original Campbell vs. Acuff Rose decision: "...the use of a copyrighted work to
                advertise a product, even in a parody, will be entitled to less
                indulgence." This is as opposed to “the sale of a parody for its own sake.”

                Basically the court is saying what I'm saying, and y'all are going to owe me an apology when the case comes down the way I say it will.

                 

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              Karl (profile), Nov 25th, 2013 @ 6:02pm

              Re: Re: Re: Re: Re:

              And fair use doesn't negate non-protected derivative works of a commercial nature, which this circumstance clearly indicates is the case.

              Fair use doesn't "negate non-protected" works of any kind, since fair use is a limitation on the rights held by copyright holders. Hence, a fair use of a work is "not protected" by the original copyright holder.

              Unless you mean that the derivative work is not subject to copyright protections? That is clearly false, as commercials are protected by copyright.

              Ok, so it's a commercial venture then?

              So was "License to Ill." So are the parodies on SNL. Legally, there is no distinction at all.

               

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              Greevar (profile), Nov 27th, 2013 @ 7:42pm

              Re: Re: Re: Re: Re:

              Criteria for Fair Use:

              1.The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

              2. The nature of the copyrighted work

              3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

              4. The effect of the use upon the potential market for, or value of, the copyrighted work

              1. Commercial use is a consideration, but it is not a negating factor. 4.It also has to be considered on a basis of impact on the affected work. As in the case of the Beastie Boys, the impact is rather nominal. 3. The amount used is rather small considering the song is a completely original recording that only uses the composition of the original BB song. The lyrics, vocals, instruments, and arrangement is new. 2. The song itself is a commentary on the original song because the lyrics (although it's assumed to be a sarcastic slant) take an opposing attitude compared to the literal phrasing of the original song.

              Based on that criteria, it stands a high probability to be subject to fair use.

               

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          Anonymous Coward, Nov 25th, 2013 @ 12:48pm

          Re: Re: Re:

          Not true at all.

           

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          art guerrilla (profile), Nov 25th, 2013 @ 1:45pm

          Re: Re: Re:

          disappointed in you, anony mouse, you are usually better than that...
          8^)

           

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      Anonymous Coward, Nov 25th, 2013 @ 11:31am

      Re:

      Um, this view is blown out of the water, with specific citations from the Supreme Court, in the article. Did you read that?

       

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      The Mighty Buzzard (profile), Nov 25th, 2013 @ 11:34am

      Re:

      Article was too long to read, eh?

       

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      Anonymous Coward, Nov 25th, 2013 @ 11:47am

      Re:

      I believe you are mistaken. 2 Live Crew sold copies of their parody recording "Big Hairy Woman", but it was still considered fair use by the Supreme Court. There is not per se rule that commercial use cannot be fair use.

       

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        Anonymous Coward, Nov 25th, 2013 @ 2:42pm

        Re: Re:

        It seems to be a case where BB has a principle and wants others to respect it. GoldieBlox doesn't seem to have been in any kind of dialogue with them about what they did and therefore disrespected BBs wishes. As much of a moral high ground it is for BB, it doesn't, as such, seem illegal. Again and again we see artists and publishers with a range of addendums about how to use the product.

        While it doesn't necessarily change anything legally speaking, it would be extremely valuable to have a site summing up the different legal exceptions attached to cultural products. The usage rights should be open for people to see and standard contracts for use should be public. Only then can copyright gain some trustworthyness as a property right.

        If property is out in the open, so should the guide on how to use it be! That situation is unfortunately lightyears away even though copyright holders may benefit a lot from it in the longer term.

         

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      Anonymous Coward, Nov 25th, 2013 @ 11:54am

      Re:

      That's simply wrong.

       

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      raindog469 (profile), Nov 25th, 2013 @ 1:55pm

      Re:

      While I'm sure it's not intended as such, this seems like pretty much the ideal test case for corporations who want to use "parodies" of popular music in their ads without paying royalties or getting permission. You've got the unsympathetic source material, the plucky upstart who's "fixed" that material to make it more palatable in the process of selling their product, and a product that looks like it really could make society better or at least educate a few kids.

      I love what they did, but I agree that it would be pretty bad in the long run if they got their declaratory judgment. Given that Tom Waits once got a multi-million dollar judgment against Frito-Lay for a similar work of "parody" (the outcome of which, I suspect, people here would cheer for, not because of the merits of the case but because Frito-Lay is a less sympathetic company than Goldieblox), I would think that won't happen, but you never know.

      That said, I would think the Beastie Boys wouldn't have as much of a complaint as whoever it was who wrote "Shout", upon which "Girls" has always transparently been a riff of the sort that would make Led Zeppelin blush.

       

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        Anonymous Coward, Nov 25th, 2013 @ 3:44pm

        Re: Re:

        Except that a "parody" is not the same as a parody.

        There is no question that this song is critical of the content of the original, and is therefore a parody.

        This is not comparable to the Tom Waits case (which wasn't a copyright case anyway) for that reason (among others).

         

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      Anonymous Coward, Nov 25th, 2013 @ 3:13pm

      Re:

      "...what GoldieBlox did with The Beastie Boys music cannot be claimed as "Fair Use" since they used the music to advertise their own product."

      The fact that the Supreme Court says otherwise means anything to you?

       

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      Stevo (profile), Nov 25th, 2013 @ 5:36pm

      Re: GoldieBlox winning

      I completely agree with you as far as the legalistic and ethical points, and I'm sure any court will concur.
      However, GoldieBlox IS winning in terms of a massively successful advertising campaign.
      I doubt they ever cared about any legal decision, obviously they preemptively sued the Beasties to get even more attention.

       

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        That One Guy (profile), Nov 25th, 2013 @ 6:00pm

        Re: Re: GoldieBlox winning

        Any court other than the Supreme Court I'm guessing? You know, the one that clearly said that just because a parody is being used for commercial gains, that doesn't disqualify it from being considered a valid, and therefor protected, parody?

        As far as GB suing, they did that because BB was claiming that they were violating their copyrights, and they didn't care to have that hanging over their head, so sued for declaratory judgement to get it out of the way now.

         

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      Anonymous Coward, Nov 26th, 2013 @ 4:33am

      Re:

      The way I see it and what I believe Mike is saying is that the commercial is both substantially transformative and is parody. The advertisement conveys its message through parodying the original lyrics. On a personal note I wholly agree that copy write law should only be used to ensure that the creators of a work are paid for it and not to stifle other pieces of art (which is what I regard this ad to be)

       

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    Internet Zen Master (profile), Nov 25th, 2013 @ 11:28am

    Huh. Did not know that

    I still have a problem with GlodieBlox parodying the song for purely commercial benefit, but if it's the law says it's fair use, then it's fair use. Still won't approve of it, but then again, I don't approve of that absurd $150,000 per file amount they use when calculating damages in copyright infringement trials either, and it's part of the law too.

    Guess I'm a little sensitive to respecting the wishes of the artist after having several of my fellow artists getting their artwork stolen by hacks who repost it ON THE SAME SITE and claim it as their own work after removing the creator's signature, or reposting it on places like Tumblr without the artist's permission.

     

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      Christopher Best (profile), Nov 25th, 2013 @ 11:33am

      Re: Huh. Did not know that

      Guess I'm a little sensitive to respecting the wishes of the artist after having several of my fellow artists getting their artwork stolen by hacks who repost it ON THE SAME SITE and claim it as their own work after removing the creator's signature, or reposting it on places like Tumblr without the artist's permission.

      But, see, what you're describing there is plagiarism--a practice universally reviled.

      I can't see how an intellectually honest person can compare a Constitutionally protected creative endeavor like parody to plagiarism...

       

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        Internet Zen Master (profile), Nov 25th, 2013 @ 1:53pm

        Re: Re: Huh. Did not know that

        To be fair, one of the excuses that one of the more recent jackasses tried to use was parody, claiming that because she took the original picture and quickly scribbled over it in one area with MS Paint that it was parody under fair use and not plagiarism.

        The defense didn't hold up under scrutiny.

        Like I said, I've gotten a little sensitive to the whole "respecting the wishes of the artist" thing, so this commercial parody of Girls just feels... off in my mind. Yeah, you don't need a license and you don't need permission to do so because it's fair use, and normally I wouldn't complain, but trying to make a buck by parodying a song from a recently deceased artist who went out of his way to make sure that his music wasn't used for commercials seems kind of insulting.

        That being said, I like listening to the Beastie Boys, so my view is probably slightly biased on this issue.

         

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          Rikuo (profile), Nov 25th, 2013 @ 1:57pm

          Re: Re: Re: Huh. Did not know that

          This is where you are somewhat disconnected from the rest of the Techdirtians. I will not be the first to say that of course there should be consideration for the wishes of the artist, but the problem here is that I (and others) don't believe that that wish should be given legal weight, especially that of a dead one.
          I'm not a BB fan. I've never listened to their music, I don't care about them, like or dislike them. Should I be prevented by the law from creating a parody video simply because the artist is dead and I "have" to respect that?

          Remember, respect is earned, not demanded and taken.

           

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          Christopher Best (profile), Nov 25th, 2013 @ 2:50pm

          Re: Re: Re: Huh. Did not know that

          I'm gonna paraphrase Rikuo here in my own response: You (Internet Zen Master) have every right to dislike this company's use of Beastie Boys music in their advertisements. You have every right to say you dislike it, to send them angry letters, to start a petition, to hand out pamphlets, whatever. You have the right to refuse to buy their products and call for a boycott.

          But no one has the right to use the law to forbid them from doing it. And EVERYONE should be disappointed and disgusted by the attempted legal strong-arming that attempted to do that.

          If the Boys and their record label don't appreciate the parody, they're welcome to state their case, and then it would be up to the public to decide who they want to support. But by bringing legal threats into this, they deserve any legal repercussions as well as the scorn and vilification coming their way.

           

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            Anonymous Coward, Nov 26th, 2013 @ 9:23am

            Re: Re: Re: Re: Huh. Did not know that

            So, elsewhere a person made this analogy and I think it's very fitting because a lot of what you (as in pro-GoldiBlox / fair use in this case) are advocating will come with consequences that the courts (the public) simply won't allow. Here, I didn't write this but it drives the point home:

            So you can use any song for an advertisement as long as you subvert its original meaning? I can't wait to see the Snickers ad with the song, "I CAN get SOME satisfaction." You see your honor, use of the double negative aside, in the original Mr. Jagger was claiming that he could not get satisfaction, and particularly that commercial products were not suitable to that end. We are subverting that original meaning by playing into Snickers' long standing claim that it will indeed provide satisfaction, thus parodying Jagger et. al.'s critique of commercialism and general negative outlook.

             

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          Tim Griffiths (profile), Nov 26th, 2013 @ 4:20am

          Re: Re: Re: Huh. Did not know that

          "To be fair, one of the excuses that one of the more recent jackasses tried to use was parody, claiming that because she took the original picture and quickly scribbled over it in one area with MS Paint that it was parody under fair use and not plagiarism.

          Parody inherently negates plagiarism because the merit of it is based on the familiarity of the audience with the original work. In other words you can't claim parody as a defence for plagiarism as you either need the work to be well known or to be willing to provide the original as context. Or in other words parody is inherently tied up with attribution.

          In this case they flat out titled the video "GoldieBlox, Rube Goldberg & the Beastie Boys" and the whole merit of using the song is based on the audience being aware of the original work.

          Yeah, you don't need a license and you don't need permission to do so because it's fair use, and normally I wouldn't complain, but trying to make a buck by parodying a song from a recently deceased artist who went out of his way to make sure that his music wasn't used for commercials seems kind of insulting.

          His music wasn't, an interpretation of his song being used to parody the overtly sexist lyrics was.

          Don't get me wrong while I'm not a fantastic musician or artist I do produce work, almost all my friends do in one way or another. I'd hate to see, say, their songs being co-opted and used to support a message that is the antithesis of their politics that drive the creation of their music but if it was done with fair use (or dealings as it is over here) I would have to accept it because being invested in the idea of artist rights is to be invested in the rights of ALL artist.

          To coin a phrase everything is a remix, fair use is one of the bulwarks that prevents this culture of inherent artist ownership from destroying new artists ability to make work. This might not be tasteful and it's your right to dislike it but the reason it can be made is more important to more artist that just one or even 3 guys.

           

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            Tim Griffiths (profile), Nov 26th, 2013 @ 4:24am

            Re: Re: Re: Re: Huh. Did not know that

            I used in other words twice their with out meaning it... or in other words...

             

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            Stevo (profile), Nov 26th, 2013 @ 10:19am

            Re: Re: Re: Re: Huh. Did not know that

            'everything is a remix'
            said no musician ever!

             

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              Gwiz (profile), Nov 26th, 2013 @ 10:59am

              Re: Re: Re: Re: Re: Huh. Did not know that

              'everything is a remix'
              said no musician ever!



              I have no clue if any musician actually said that or not. But if you take a deep down, honest look inside where your creativity resides, you can see that it's true.

              I believe you mentioned you were a songwriter. Do you really think that all those melodies and lyrics you put together come solely from within you, without influence from the world around you? Those are the culmination of all the music you've ever heard and all the words you've ever read throughout your life. It's all built on what others have done before you. Nothingness is what gets created from a vacuum and you don't live in a vacuum.

               

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              Tim Griffiths (profile), Nov 27th, 2013 @ 7:17am

              Re: Re: Re: Re: Re: Huh. Did not know that

              Except me... above... :P

              It's a sad thing that the essence of peoples creativity is being clouded by this increasing sense of total ownership of the products of it.

               

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    Anonymous Coward, Nov 25th, 2013 @ 11:43am

    Furthermore, the very fact that the Beastie Boys refuse to allow their songs in ads actually works against them because they can't legitimately argue that they lost money because of this, since they've outright declared that they won't license music for such things. So no money could be lost.


    Yes but what of all of the other musicians who do license their music for commercials? Where will they be if this is upheld? And, other than copyright- what other vehicle is available to the Beasties to assure companies cannot promote their products using their music?

     

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      Anonymous Coward, Nov 25th, 2013 @ 11:51am

      Re:

      If the other uses are parodies, then they'll be in the same boat as the Beasties. If they are not (i.e., most commercial licensing), then they won't.

      This case is different than typical commercial licensing, and has no bearing on non-parody cases.

       

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        anonymouse, Nov 25th, 2013 @ 12:22pm

        Re: Re:

        This is actually a case where profits are being made from the use of the beastie boys content. I am normally completely against most copyright laws but when someone is benefiting financially from someone eases work i just dont see how it can be declared fair use. That goes totally against the principles of copyright law as I want it to be where those benefiting financially from using someones content should be paying the original creator.And should be forced to pay a licence for using it if they want to sell them a licence.

        I am now wondering if this case was not started just for the attention the case and therefore the advert would receive, It has received a lot of from the articles that have been written about it.

         

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          Rikuo (profile), Nov 25th, 2013 @ 12:27pm

          Re: Re: Re:

          Okay, you seem to be arguing a Zero Sum Game i.e. the fact that GoldieBlox are making a profit due to sales generated by the ad somehow means that Beastie Boys are directly losing money.
          As Mike pointed out in the article, Beastie Boys DO NOT want to licence their music. Thus, there is no market for their music in ads to be harmed. Thus, there is no loss to them. Thus, it is not a Zero Sum Game.

           

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          Sneeje (profile), Nov 25th, 2013 @ 12:30pm

          Re: Re: Re:

          You keep focusing on profits and that is completely blocking your understanding of the issue. Copyright was never intended and does not exist to block profits--it exists as a temporary right to exclude and comes with exceptions such as fair use.

          If you read the fair use clause and the fair use tests, you would understand that commercial benefit is not a definitive criteria against fair use.

          Especially when the use was also transformative. In this case, while the tune is the same/similar, many words were changed and the context of the ad places the use squarely in the parody camp.

          As a result, fair use is strongly indicated.

           

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          Anonymous Coward, Nov 25th, 2013 @ 12:59pm

          Re: Re: Re:

          "This is actually a case where profits are being made from the use of the beastie boys content."

          That's not different than what I said.

          Profit and fair use can coexist. Newspapers and book reviews, for example, are profit-making entertprises, yet they are allowed to copy portions of works for criticism.

          More relevant to this case, artists are allowed to sell parody recordings for profit and still be considered fair use.

           

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          Keroberos (profile), Nov 25th, 2013 @ 2:08pm

          Re: Re: Re:

          This is actually a case where profits are being made from the use of the beastie boys content.
          You mean just like when the Beastie Boys made profits from using the content of others.
          I am normally completely against most copyright laws but when someone is benefiting financially from someone eases work i just dont see how it can be declared fair use.
          You mean like the Beastie Boys benefiting financially from someone else's work. I'm guessing the part of copyright you're aganst is fair use?
          That goes totally against the principles of copyright law as I want it to be...
          How your wants are relevant to this, or to what copyright law actually is?
          ...where those benefiting financially from using someones content should be paying the original creator.
          I guess in your world the Beastie Boys should be paying some original creators some money.
          And should be forced to pay a licence for using it if they want to sell them a licence.
          Umm...last I checked, fair use doesn't require any payments or licenses (wouldn't be fair use if it did).
          I am now wondering if this case was not started just for the attention the case and therefore the advert would receive, It has received a lot of from the articles that have been written about it.
          Probably not. If any legal advice was sought on the song being used, most lawyers would probably say it's fair use parody. Using the possibility of getting your ass sued off in exchange for free publicity is not a very good marketing strategy.

           

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            Anonymous Coward, Nov 25th, 2013 @ 4:08pm

            Re: Re: Re: Re:

            "Using the possibility of getting your ass sued off in exchange for free publicity is not a very good marketing strategy."

            Some disagree.

             

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          JMT (profile), Nov 25th, 2013 @ 2:22pm

          Re: Re: Re:

          "...I want it to be where those benefiting financially from using someones content should be paying the original creator."

          This case has rekindled my interest in the Beastie Boys, and I spend a couple of hours last night watching BB videos on YouTube, which they probably made some money on. You can bet there are many more doing the same. So BB are now receiving more attention, more interest and more money than they would've without GoldieBlox's parody song.

          Not everything has to be about forced licences and payments.

           

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          Anonymous Coward, Nov 25th, 2013 @ 2:44pm

          Re: Re: Re:

          Did I miss something and GoldieBox is selling this commercial as a single on iTunes and making a profit from the actual music?

          Or are they using a parody of the music in a commercial to generate sales of another totally "NON MUSIC" product?

          Even if they were making a parody of the song and the only product being sold was the song, that would be legal fair use (see Wierd Al), so why do so many people not understand that this parody of the song in a commercial is legal fair use?

          It's not like this is going to climb to the top of the charts and become a platinum single making the company millions of dollars based on nothing other than the music, the company may sell more of their other products based on the popularity and creativity of their marketing, BUT THEY ARE NOT SELLING THE FRACKING SONG ITSELF (AND EVEN IF THEY WERE... IT WOULD BE A LEGAL FAIR USE PARODY).

          Does anyone think that Wierd Al doesn't actually have a COMPANY that markets and produces his albums, does anyone really think that Wierd Al is a sole proprietor and that he hasn't incorporated to take advantage of the tax and other benefits? Just because it's the name of one man doesn't mean that there aren't multiple corporations profiting from his parodies...

           

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      Anonymous Coward, Nov 25th, 2013 @ 11:58am

      Re:

      The same place they were before: collecting royalties for actual uses of their music and SOL for collecting on the works of others like parodies of their music.

       

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      Rikuo (profile), Nov 25th, 2013 @ 11:59am

      Re:

      You do realize you are now arguing that a profession should be protected by law against anything that may threaten it? Which is not what the free market is about?

       

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      Mike Masnick (profile), Nov 25th, 2013 @ 12:37pm

      Re:

      Yes but what of all of the other musicians who do license their music for commercials?

      Nothing changes. They can continue to do that. Except for fair use, but they never had a right to the fair use versions anyway.

      Separately, no copyright case ever has been decided based on "but even if this one case is fair, that'll be bad for the rest of the industry." That's not how copyright law works.

      And, other than copyright- what other vehicle is available to the Beasties to assure companies cannot promote their products using their music?

      None. And that's kind of the point. Contrary to the faulty belief of some, you do not have full control over your works. That's always been true no matter how much some don't want to believe it.

       

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    Anonymous Coward, Nov 25th, 2013 @ 11:45am

    I usually just roll my eyes when a Techdirt writer claims something is "clearly" fair use, but this is clearly fair use. It's pretty much the exact same thing as the Campbell v. Acuff-Rose case, and probably an even stronger case that the alleged infringement is critical of the original material.

    That said, the use of the Beastie Boys name to promote the video might be a different story, and in any case not sure it's worth a lawsuit if the BBoys weren't going to take it to court.

     

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    Me, Nov 25th, 2013 @ 11:55am

    I'd like to see how the Beastie Boys lawyers defend the group from claims for the unlicensed samples on Pauls Boutique. That's the really funny part here.

     

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    Anonymous Coward, Nov 25th, 2013 @ 11:56am

    Putting Shame In Your Game

    I might stick around or I might be a fad
    But I won't sell my songs for no TV ad


    Beastie Boys

     

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    Violynne (profile), Nov 25th, 2013 @ 12:07pm

    Switch to Fair Use and you can save up to $365 million a year on advertising costs.

     

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    anonymouse, Nov 25th, 2013 @ 12:13pm

    explain

    Could someone explain to me how it could be fair use if it was being used for advertising...that is not what fair use covers.
    Advertising is a form of business use and is therefore not fair use surely.

    And if they have not licensed the right to use their work in the advert surely they are wrong and should pay some compensation for not licensing it.
    Just as any advertising group would have to licence any content to be used in an advert.

    This is where the difference comes in between fair use and the use of content for monetary gain.

    Surely if i use someones music to create a parody and make a few dollars nobody is going to demand i pay thousands but if i used someones content and eventually receive millions surely i should be paying to the original content creator. Even if it is just a few percent of my surprise earnings.

    What i would like to know is how anyone can call this fair use when we all know it is not, it is the use of music for monetary gain from using that content for advertising...

     

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      Anonymous Coward, Nov 25th, 2013 @ 12:20pm

      Re: explain

      Could someone explain to me how it could be fair use if it was being used for advertising...

      Why should we explain, when Mike provided a citation above of the Supreme Court itself doing so? Perhaps you would care to read it?

       

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      Rikuo (profile), Nov 25th, 2013 @ 12:21pm

      Re: explain

      Point out to us where in copyright/fair use laws it states that parodies may not be used in advertising, then we'll say "yes, it's illegal". I won't agree with you that it should be illegal, but that would be what the law says.
      Note that this is a PARODY, not the "original" BB song itself just tossed into an add. It is clearly transformative (different lyrics) and a commentary, in that the lyrics call out on the original's lyrics. So again, point out to us where in copyright law it says Joe Schmoe may make a parody and put it up on Youtube, but if a company does the same in an advert, suddenly it's infringement?

       

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      jupiterkansas (profile), Nov 25th, 2013 @ 12:33pm

      Re: explain

      Because the law recognizes that a parody is a legitimate form of speech, just like criticism, and is therefore considered its own work of art and protected by the constitution. It's why we can freely ridicule our government and corporations and popular culture.

      After all, what artist would give permission to let other people make fun of their work? They let Weird Al do it because they know as an artist he's pretty innocuous and whatever he sings isn't going to be truly critical. But what if the artist doing the parody was a lot more pointed?

      The work in this commercial is far more critical of the Beastie Boys song and the image of women it presents than Weird Al would be (even though the original was obviously a joke too.)

      The fact that it's for a commercial is irrelevant. Weird Al is commercial too. The Daily Show is commercial. Mad Magazine is commercial. Many forms of parody are commercial.

       

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        Rikuo (profile), Nov 25th, 2013 @ 12:38pm

        Re: Re: explain

        Linkara and Nostalgia Critic make parody reviews and while the shows can be viewed for free through the ThatGuyWithTheGlasses.com website, they also sell DVDs of their reviews. Not once have I heard anything about even one of the authors/developers of the works parodied by them saying "Thou Shalt Not Sell Thy DVDs".

         

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          [citation needed or GTFO], Nov 25th, 2013 @ 2:52pm

          Re: Re: Re: explain

          To be fair, Doug Walker makes sure that there aren't any copyrighted film clips in the DVDs. That's why the only reviews on the DVDs are either public domain or made by someone he's able to get the permissions from (i.e. Ed Glaser for Turkish Rambo, Brad Jones for Paranoia). Heck, when he put Kyle Justin's AVGN theme parody for the Critic during "The Final Battle" saga, Doug recreated the AVGN title graphic so it didn't look anything like the original as a precaution.

          I haven't seen Linkara's DVD yet, but I plan to buy it when I get the funds.

           

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            Rikuo (profile), Nov 25th, 2013 @ 3:01pm

            Re: Re: Re: Re: explain

            TGWTG Best of Volume 1
            http://theawesomestore.com/index.php?dispatch=products.view&product_id=29923

            says it has Transformers 1 and 2 reviews on it
            I doubt he called up Michael Bay and asked.

            The other volumes though are as you describe, since they mainly have Bum Reviews, which don't show any clips from the movies in question.

             

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              [citation needed or GTFO], Nov 26th, 2013 @ 10:20am

              Re: Re: Re: Re: Re: explain

              I'm not sure if you remember, but the Transformers 1 review was the first review he had ever done as the Nostalgia Critic. Although he's said that this style of reviewing he eventually decided to use for Bum Reviews instead.

              As for the Transformers 2 review, he does it in the same style as Chester A. Bum only as the NC in honor of his first review. Hell, the Bum shows up at the very end and asks rhetorically if the NC just stole his bit. =P

              In this particular review, he makes the callback Optimus Prime/Jesus joke "Remember, I died for your sins" that he originally used in his Surf Ninjas review (2:06-2:10). However, just for the DVD, he actually redrew the graphic himself similar to how he redid the AVGN logo for his Bebe's Kids SNES review for the DVD.

               

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      Mike Masnick (profile), Nov 25th, 2013 @ 12:39pm

      Re: explain

      Could someone explain to me how it could be fair use if it was being used for advertising...that is not what fair use covers.

      I did explain it. In this very article. Did you read it?

      Advertising is a form of business use and is therefore not fair use surely.


      Again, as was clearly explained, with citations, in the article you are replying to, you are wrong.

      And if they have not licensed the right to use their work in the advert surely they are wrong and should pay some compensation for not licensing it.

      The whole point of fair use is you do not have to license.

      What i would like to know is how anyone can call this fair use when we all know it is not, it is the use of music for monetary gain from using that content for advertising...

      Except that the use for monetary gain and often is still fair use *as is explained multiple times with citations* in the article itself.

       

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        fairuse (profile), Nov 26th, 2013 @ 2:47am

        Re: Re: explain

        Elsewhere I gave in to the "for profit" nature of Goldieblox's video and called it infringing. My inspection didn't take into consideration the "2 Live Crew" case. With that information digested I can change my opinion.

        The marketing style of the company is just what it appears to be; use any and all devices to obtain a goal. In this case a coveted Ad Spot during the Super Bowl. All this gashing of teeth in the online community is scripted by Goldieblox for Goldieblox. It is no accident that the DJ requests a jury trial.

        Basically Goldieblox has already won even if it never gets a day in court. Goldieblox is guilty of perpetrating a social lie to sell toys no one needs, not guilty of infringing the song "Girls".

         

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      Anonymous Coward, Nov 25th, 2013 @ 1:27pm

      Re: explain

      "Could someone explain to me how it could be fair use if it was being used for advertising...that is not what fair use covers."

      Others have tried, but I'll have a crack at this:

      Is it fair that they used the BB song? Hell no!

      Is it fair use of the BB copyright? Yes.

      Don't assume the fair in fair use to actually mean fair. It's a legal term. Don't apply common sense to it.

       

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        Anonymous Coward, Nov 25th, 2013 @ 1:35pm

        Re: Re: explain

        Wait, what? So, having complete and unrestricted control over content with no limit (time, whatever) is fair?

        Yikes.

         

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          Anonymous Coward, Nov 25th, 2013 @ 7:37pm

          Re: Re: Re: explain

          GP wasn't trying to suggest that licensed use is fair either - the only point being made was that use of the word "fair" in "fair use" is a legal rather than a dictionary term. I don't believe the dictionary definition of "fair" is relevant to legal discussions of copyright at all.

           

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            jupiterkansas (profile), Nov 25th, 2013 @ 7:46pm

            Re: Re: Re: Re: explain

            Parody a 25 year old song? Sounds like every kind of fair to me. The same as if Beastie Boys had parodied Pretty Woman from 1964.

             

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      Zonker, Nov 25th, 2013 @ 4:24pm

      Re: explain

      You seem to be confused into thinking that Goldiblox is using the copyrighted recording of the Beastie Boys performing their song "Girls" in their advertisement without a license. They did not do so, at all.

      Goldiblox put the creative effort into rewriting almost all of the lyrics to the extent that their meaning is the direct opposite of the original song. This is a transformative work and certainly qualifies as a parody or satire. Goldiblox recorded their own performance of the rewritten parody and used this in their video. Goldiblox actually has copyright over the recording of their parody of the Beastie Boys song under copyright law, which in turn was fair use of the source material.

      As stated by the Supreme Court, in the article, in the law, and many comments here: parody is a fair use exemption of copyright law regardless of whether it is commercial, academic, non-profit, for-profit, corporate, public, or personal use. You don't have to like or approve of a parody, you just have no legal rights over other peoples parodies of your work even under copyright law.

      I might share your outrage if Goldiblox had played an original recording of the Beastie Boys performing the original "Girls" in their video without a license (their permission), especially if they don't want it to be used in advertising. That is not the case here and it does not prevent them or others from enforcing copyright in those cases.

       

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    Anonymous Coward, Nov 25th, 2013 @ 12:52pm

    Curious if anyone has opined this may not at all be a fair use case, but rather one comprising the creation of a derivative work for which ordinary rules of copyright infringement would apply?

    See, e.g., comment 8 to Friday's article here, and then consider the possibility that the advertisement may comprise a parody/satire of the original work.

     

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      jupiterkansas (profile), Nov 25th, 2013 @ 12:58pm

      Re:

      Derivative works are fair use when it's parody - that's the one instance where the court allows derivative works. Hard to parody without using the original work in some way.

       

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        Anonymous Coward, Nov 25th, 2013 @ 1:13pm

        Re: Re:

        The parody/satire distinction is to my way of thinking a weak attempt at crafting a rule that is rife with ambiguity and adds unnecessary confusion to the already confusing process associated with fair use.

        To the extent persons continue to make the distinction, parody has been associated with fair use and satire with non-fair use (though other statutory factors in both instances may be deemed as critical and controlling the eventual outcome).

         

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          jupiterkansas (profile), Nov 25th, 2013 @ 1:31pm

          Re: Re: Re:

          I agree - fair use is often rife with ambiguity which is why it unnecessarily stifles artistic creation - because you can never be certain something is fair use until a court determines that it is.

          That's exactly what GoldieBlox is asking for from the court - a declaration of fair use.

          It's one of the many ways the copyright law is jacked up, and it's mainly so that first amendment rights are not infringed upon. It makes people ask permission when they don't need to (setting up the expectation that it is always needed) or worse, keeps people from being creative at all.

          Of course, if we had a more reasonable copyright term of 25 years, the work would be entering the public domain next year and we wouldn't have to worry about all of this.

           

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        Rikuo (profile), Nov 25th, 2013 @ 1:13pm

        Re: Re:

        Which is a damn shame, because copyright's original purpose (as laid out in the US Constitution at least) was to promote the creation of new works. How can copyright fulfill that purpose if it blocks the creation and publication of derivatives?

         

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          Stevo (profile), Nov 25th, 2013 @ 6:17pm

          Re: damn shame

          Your question EXACTLY defines the problem were all dancing around:
          'How can copyright fulfill that purpose if it blocks the creation and publication of derivatives?'
          This is where existing copyright law has failed our society, artists and enterprises.
          Creating a derivative work should be just as simple and permission free as 'covering' a song!
          I would propose that anyone can sample or quote from existing music to create a new copyright that splits credit and revenue with the holders of the original property.

           

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            Karl (profile), Nov 25th, 2013 @ 6:53pm

            Re: Re: damn shame

            Creating a derivative work should be just as simple and permission free as 'covering' a song!

            Say, you do realize that when you cover a song, you are creating a derivative work, right?

            If you want to perform your cover in a club, that club must pay royalties to ASCAP, BMI, and/or SESAC. If you want to put your cover song on a CD, you or your record company must pay mechanical royalties to the Harry Fox agency.

            There are no such licensing schemes for sync rights (putting a song with a video), and no such licensing schemes for sound recordings (the actual recording rather than the song). Nor are there these sorts of licensing schemes for any other kind of work protected by copyright.

            So, in that sense, you're right. The entire problem is the formation of the next ASCAP, which has a long and sordid history of shutting down smaller music venues, and doing it on behalf of artists who weren't informed of the suit. They also have a long history of taking money from smaller musicians to pay Top 40 artists.

            That "simplicity" comes with the price of screwing over smaller live venues and non-Top-40 musicians. I'll leave it to you to figure out whether it's worth it.

             

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              Stevo (profile), Nov 25th, 2013 @ 9:04pm

              Re: Re: Re: damn shame

              Sure, when you cover a song the Master recording becomes a 'new' work, but but it doesn't create a new 'publishing' copyright.
              I'm not sure, but perhaps you are implying that rather than 'improve' copyright we should eliminate it?
              Of course I don't agree but I do concur about the offensive behavior of ASCAP and all the PRO's . GEMA is particularly merciless about strong arming local music venues in Germany.
              It's also true that you can't expect much money from the PROS without a hit or movie/television placement.
              In that sense they took from the poor to pay the rich.
              But with their crooked bookkeeping, the labels took the profits from their big acts to develop new artists, so in a twisted rather unfair fashion, pop music thrived for nearly a century. The fact that most touring groups now are 'legacy' acts in their 50s shows that the musical ecosystem is dying. Something will take its place and I hope the experience of the creative community will shape what the next musical ecosystem is. Here's why I believe in copyright or some method of royalties.
              Without copyright composers like myself will be working exclusively 'work for hire' My experience is that 'work for hire' is low wages, making not the music you want, but what the boss wants. When you write for yourself you can make what YOU want and take chances that others would not allow.
              Although my 'speculative' works offers no initial payment, there is the POTENTIAL for escaping the wage slave existence of 'work for hire'. IF the work finds an audience , only then am I rewarded with the means to continue. THIS is the model that benefits me and society. As far as I can see, this is only possible with a royalty system infrastructure.

               

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                Gwiz (profile), Nov 26th, 2013 @ 8:11am

                Re: Re: Re: Re: damn shame

                The fact that most touring groups now are 'legacy' acts in their 50s shows that the musical ecosystem is dying.

                Actually, that is incorrect. The Sky is Rising, not falling.



                Although my 'speculative' works offers no initial payment, there is the POTENTIAL for escaping the wage slave existence of 'work for hire'. IF the work finds an audience , only then am I rewarded with the means to continue. THIS is the model that benefits me and society. As far as I can see, this is only possible with a royalty system infrastructure.


                Do you realize that these things can and are accomplished without relying on copyright?

                Mike has spent the last fifteen years discussing these things right here on Techdirt.

                Here's a good place to start:

                http://www.techdirt.com/blog/casestudies/

                 

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                  Stevo (profile), Nov 26th, 2013 @ 8:59am

                  Re: Re: Re: Re: Re: damn shame

                  I AM optimistic . Since I work in both film and music I see directly in real time who and what's working. I certainly can't speak about video and books , but I will say the 5% increase for books is less than inflation for that period.
                  The film business has reinvented itself, with a long form narratives for small screen and big budget CGI pix for big screen. I suspect the streamers are heavy into the red but they're investing a lot into content and there's lotsa work.
                  Music scene is bad! Saying that music is doing great because there's more dollars is exactly like when we are told the economy is great because Wall Street is at an all time high.
                  All studies that propose performers are earning more money are referring specifically to touring income.
                  It's true there is more money in live music than ever. but it's going to 'legacy' acts like Madonna, the Stones, U2…
                  Ticket sales are markedly down in numbers but drastically higher in price.
                  (average ticket for Rolling Stones: $500)
                  So the music economy, just like the rest of the economy is only benefiting the 1%
                  Touring is not profitable for smaller acts and even mid-level artists have only sustained their careers from broadcast royalties .
                  The transitional stage the music business is in is no worse than pre-Motown/British Invasion or pre-Punk/New Wave. The commercial and artistic breakthroughs of those eras happened because of the entrepreneurial incentives for people like Berry Gordy, Brian Epstein and Andrew Loog Oldham. But the entrepreneurs of today are internet cloud-barons reigning over a feudal structure of unpaid musical serfs.
                  If the music streaming services can graduate from a venture capital-Ponzi scheme model into truly viable businesses, then maybe they can fill the gap being left by dwindling radio and television royalties.
                  Advertising is what supported musicians for the last 90 years and music is even more integral to commerce than ever. Torrent sites lower the bar for ad rates, helping to create a junk mail landscape of online advertising.
                  This hurts music much more than downloading.
                  If the torrent sites are allowed to continue unmolested but cut out of the advertising business they will provide a very healthy underground community that promotes creativity, while the streaming services would get higher ad rates which would sustain music creators.

                   

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                    Gwiz (profile), Nov 26th, 2013 @ 10:29am

                    Re: Re: Re: Re: Re: Re: damn shame

                    Music scene is bad! Saying that music is doing great because there's more dollars is exactly like when we are told the economy is great because Wall Street is at an all time high.


                    I disagree. More people are making a decent living from music these days than ever before. That's a huge improvement over the heydays of the major labels where only about 2% of musicians ever recouped their advances. And most lost control of their copyrights to the labels either way.

                    Yes, the golden days of superstardom are waning, but the wealth is being spread amongst many more musicians now and as a result we have much more music to choose from.

                    And the myth of superstardom was really just that - a myth perpetrated by the labels in order to exploit more people. Even Mick Jagger admits that in the last 100 years or so, there was only a small period that musicians actually made decent money selling music, and that was only if you were one of the chosen few that the labels actually choose to promote.

                    http://www.techdirt.com/articles/20100620/2311049880.shtml

                     

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                      Stevo (profile), Nov 26th, 2013 @ 12:21pm

                      Re: Re: Re: Re: Re: Re: Re: damn shame

                      everything your saying is absurd tech-lord propaganda.
                      I grew up in the music business , had my first record contract as a teenager.
                      Now I work deep in the intersection of music and film because its one of the few pillars standing.
                      I'm not saying the end result of the internets impact on music isn't gonna be great ,
                      but so far Google has hijacked ad revenue from the internet so basically none goes back to the creators.
                      This is class warfare , conducted by the Libertarian investor class against the creative community.
                      They want the professionals to be replaced by 'users' essentially serfs tilling the fields of the internet, generating 'user content' that is monetized in such small increments that it's useless to the 'users' but at such a volume that it generates millions for Google.
                      Musicians are disappearing but there are more HOBBYISTS than ever before.
                      I don't mind music being a nearly impossible career.
                      It needs to be because only 1 per cent of people can make good music, and only 1 per cent of that 1 per cent are going to be lucky enough to be successful.
                      The more people there are making their shitty hobby music, the harder time we have wading thru it to find the good stuff. But the good stuff is there! it's out there somewhere. but now there's no tour support for them be discovered by audiences.
                      here's some numbers for you:
                      in 2011 there were 76,865 new releases, only 3,148 sold more than 2,000 units = 4% of new releases sold over 2,000 units
                      in 2011 there were 878,369 total releases in print, only 15,613 sold more than 2,000 units = 2% of ALL RELEASES in print sold more than 2,000 units.
                      2012:
                      in 2012 there were 76,882 new releases, only 3,074 sold more than 2,000 units = 4% of new releases sold over 2,000 units
                      in 2012 there were 909,799 total releases in print, only 15,507 sold more than 2,000 units = 2% of ALL RELEASES in print sold more than 2,000 units.
                      So in the last two calendar years only 4% of New Releases and only 2% of ALL releases managed to sell more than 2,000 units.
                      That means 96% of all music released and in print sells less then 2,000 units per year.
                      No way are these people making a decent living from music!
                      If you don't show a profit to the IRS after 3 years you can't claim to be a professional and you lose the ability to write off the considerable costs of doing business. At that point you are out of the business, you are a hobbyist.
                      The amount of professional music artists plummeted by 45.3 percent between August 2002 and August of 2011.
                      There ARE bright spots in music and out of these troubles will come something new and great but what it will be is not clear yet,
                      Festivals are getting bigger and providing a place for fresh live talent to be discovered. My hope is that we will see a rebirth of regional music. A phenomenon that has strangely not occurred for over a decade.

                       

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                        jupiterkansas (profile), Nov 26th, 2013 @ 12:28pm

                        Re: Re: Re: Re: Re: Re: Re: Re: damn shame

                        but so far Google has hijacked ad revenue from the internet so basically none goes back to the creators.

                        Please explain how Google has killed the music business with advertising? I can't connect the dots there.

                         

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                          Stevo (profile), Nov 26th, 2013 @ 1:37pm

                          Re: Re: Re: Re

                          http://thetrichordist.com/2013/02/07/google-advertising-money-and-piracy-a-history-of-wrongdoing-exp osed/
                          Musical artists never survived from artist royalties. The bread and butter and gasoline for musicians always came from broadcast royalties that are derived from radio and television advertisers.
                          As the dissemination of music has moved from radio to the internet this special bond between music still exists but without the revenue sharing device of the 'compulsory license'. That's fine, it's a new medium and a new marketplace, let's see what happens right? Let the market decide?
                          Problem is to have a genuine market requires 'price discovery' so we arrive at a valuation for goods and services . Music is the goods , advertising is the service. Right now we don't know the real value of music, obviously if 70 per cent of music is pirated goods distributed from peer to peer torrent sites then this undermines valuation and legitimate distributors and streamers can't discover a genuine price. That problem is well known, but what's not talked about is the only way the torrents survive is from their advertising. Advertisers pay them because the free pirated goods they offer attract massive user traffic. Because unlike Spotify or Pandora they don't have to pay for 'eyeball bait' they can offer incredibly cheap advertising. Therefore they are not just destroying valuation of music, perhaps more importantly, they undermine valuation of advertising and THIS is the real reason the internet marketplace cannot yet sustain music artists.
                          Google has a long history of sharing ad revenue with the piracy sites but I'm reading that perhaps they are shying away from them more recently.
                          Doesn't matter , actually everything I've said the piracy sites is even more true of YouTube . The fact is that Google can monetize ad revenue at such high volume and low cost that there is currently no way to make ad revenue from music streaming financially viable.
                          Ads just need to cost more, and when that happens, I suspect there will be a music business again.
                          http://thetrichordist.com/2012/04/03/who-profits-from-piracy/

                           

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                            Rikuo (profile), Nov 26th, 2013 @ 3:13pm

                            Re: Re: Re: Re: Re

                            You're quoting from the Trichordist?

                            Is that you darryl? (Or was it bob who breathed that site? I can't remember).

                             

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                              Anonymous Coward, Nov 27th, 2013 @ 10:10pm

                              Re: Re: Re: Re: Re: Re

                              hurricane head. I guess this is one of his sleeping giant artist friends? Who had the balls to sign up for an account? Never mind we still have no idea who this is.

                               

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                            jupiterkansas (profile), Nov 26th, 2013 @ 3:19pm

                            Re: Re: Re: Re: Re

                            All you're complaining about is a revenue stream that used to feed musicians has dried up, and nothing has come along to replace it.

                            Blaming Google because of their incidental involvement in all this is ridiculous. Why not just blame the pirate sites instead instead of targeting Google? Killing Google will not fix your problem.

                            If Google weren't around, other ad companies would easily fill that void (and some are - Google is not alone). And people are making money and getting famous on Youtube, so it can't be Youtube's fault either.

                            The constant refrain on this website is the artists need to find new ways of making money instead of blaming others that the old ways aren't working.

                            And as it's been said many times - if the pirate sites are making so much money, why aren't the music labels imitating their success? The multi-national conglomerates that own the music labels could easily out-Google Google with advertising if they wanted to (or at least there was a number of years where they could have if they had Google's foresight). In fact, they're probably buying up a lot of that ad space on Google.

                             

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                              Stevo (profile), Nov 27th, 2013 @ 6:21am

                              Re: Re: Re: Re: Re: Re

                              yes , I accept your suggestion. Let's target pirate sites instead of Google.
                              If we can get rid of the piracy sites, we will have a valid marketplace and genuine prices for music and advertising. The musicians and businesses will be able to adapt and compete.
                              People have become famous from YouTube . They're making money ? Practically nothing , it's a joke. But maybe all that matters about YouTube is the exposure. MTV didn't pay artists but if you became famous you could sell CDs.
                              The record companies can't do what the pirate sites do because it's illegal .
                              Yeh, Google is smart and they're too far ahead for anyone to catch up.
                              And if the record companies were smart they could have been Google, just like Sony could have been Apple.
                              Perhaps Google is only ' incidentally ' involved , I mean what company would not take advantage of an opportunity to make profits where no one else can?
                              But I do notice that Google finances many think tanks and lobbyists that promote eliminating copyrights and royalty methods, so I'm not inventing the fact that they are waging war on the creative community.

                               

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                                jupiterkansas (profile), Nov 27th, 2013 @ 9:59am

                                Re: Re: Re: Re: Re: Re: Re

                                Thanks for the reasoned response. Just a couple of things:

                                The record companies can't do what the pirate sites do because it's illegal.

                                What the pirate sites do is illegal because they don't have permission. If the labels copied what the pirate sites do, they would have permission and it wouldn't be illegal. This is exactly what Napster tried to negotiate, and the labels decided to take them to court instead. So you can try shutting down the pirate sites (a futile effort some would say) but the problem is one of the label's own making.

                                But I do notice that Google finances many think tanks and lobbyists that promote eliminating copyrights and royalty methods, so I'm not inventing the fact that they are waging war on the creative community.

                                There's nothing wrong with trying to get laws changed. A lot of people would like to eliminate or change copyright - not just Google.

                                However, asking for copyright reform is not waging war on the creative community. I'm part of the creative community and I think copyright laws are extremely messed up. It doesn't benefit the creative community at all. It only benefits large corporations that basically own the country's creative output for the last century, and under current law will also own the creative output of the next 100 years. I'd much rather most of that content be freely available to the public.

                                One of the consequences of current copyright law is we're only given access to the art that's profitable. If the corporations can't make money on it, it just sits in their vaults where nobody can touch it. This applies to movies and music and photographs and magazines and books going all the way back to the 1920s. How much of that material is out of print?

                                As a creative person, having free access to all that material to use would be amazing, such as that 1933 book I want to adapt into a play, or that 1927 sound recording I want to use in my video - work created by people who have been dead for more than 50 years, and work that under the copyright law when it was created would be in the public domain right now. I feel like I have been robbed of my creativity.

                                If Google is at war with anyone, it's the legacy industries represented by the MPAA and RIAA that have continuously lobbied and gotten multiple copyright extensions and more draconian copyright laws for decades.

                                If they changed the law tomorrow so copyright lasted 500 years - do you think that would be a benefit or incentive to anybody in the creative community to create more and better work?

                                 

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                                  Stevo (profile), Nov 27th, 2013 @ 12:41pm

                                  Re: Re: Re: Re: Re: Re: Re: Re

                                  going straight to your question:
                                  I am surprised to find that every songwriter I ask, would be completely fine but absolutely insistent that a copyright should ONLY be for the length of the creators lifetime.
                                  This I would address directly the issue you mention about mining the treasures of the past that rightfully should be in public domain. I think writers especially in film, TV and theater would embrace this very enthusiastically.
                                  Artists pushing for reform thru the PROs could make this happen. But when you say that copyright ONLY benefits corporations you alienate the artists because we use copyrights as PROTECTION from the corporations. The ONLY thing keeping my works safe from them is the law. There's an old saying ' if your shit ain't being stole , it ain't good.'
                                  Copyright REFORM and ELIMINATION are such different things , they should not be in the same sentence. Reform is way overdue and I'm trying to make it happen, but elimination IS the usual class warfare between capital and labor.
                                  Unfortunately these reforms you and I seem to agree on will be resisted by the entrenched media companies.
                                  Your comments are interesting because I think they point to potential WEDGE issues between the creatives and the corporations. I think that reform can happen when it's championed by the artists because they own so much content.
                                  Artists have been too passive in letting the labels and studios run rampant over the public. At the time of Napster, music artists were in long term contracts and really had no voice making an impact on emerging distribution models.
                                  The situation is very different today when perhaps most artists own their products outright. The time is right for copyright reform but vilifying artists like the Beastie Boys just polarizes people who should be working together for a more creative future.

                                   

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                                Rikuo (profile), Nov 27th, 2013 @ 9:59am

                                Re: Re: Re: Re: Re: Re: Re

                                Out of pure boredom, I revisited this page, and to my horror, I came upon your comment. Your comment is so full of wrong and fail, that I just feel compelled to de construct it, line by line.

                                "If we can get rid of the piracy sites, we will have a valid marketplace and genuine prices for music and advertising."

                                Even if you somehow nuke all pirate sites out of existence, you then still have a rather important step to do - selling your content, in a way that the customer wants. You don't mention that. You simply assume that if all pirate sites die, you automatically have online stores just popping into existence. Besides, how are pirate sites stopping a valid marketplace? If I want to watch anime, I can either go on Amazon and buy the DVDs, or I can pay Crunchyroll and stream it from there; and this is while pirate sites exist.

                                "The musicians and businesses will be able to adapt and compete."

                                They already do. Dan Bull is a famous UK musician who has found a way to adapt to the modern marketplace. He deliberately releases his music for free on Piratebay and Youtube.
                                No, your definition of adapt isn't what's in the dictionary. Your version says otherwise. It's to stay beholden to the record labels. That's the only way the above sentence of yours makes sense, if they don't change their business model in accordance to the modern world.

                                "MTV didn't pay artists but if you became famous you could sell CDs." You want artists to focus on selling CDs? Already we've seen the release of optical disc players that don't play CDs (the PS4), because they're an out-dated method of storing music.

                                "The record companies can't do what the pirate sites do because it's illegal ."
                                This sentence is the creme de la creme of your shit turd of a comment. (Forgive the bad language, I've been watching Angry Video Game Nerd all day). No thought at all went into what you wrote, you just spewed it forth in a dire attempt to slay any credibility you had. Well congra-tu-fucking-lations, you've accomplished it. Stand up and take a bow, here's a dunce's hat, you well deserve it.
                                What is it that the pirate sites do that is illegal? They distribute (or help in the distribution) of content they don't own the copyrights to. Now, imagine if a movie studio were to do like Piratebay and distribute their movies via bittorent.
                                IT WOULD BE LEGAL. They own the copyrights. If Disney were to stick Disney movie torrents on Piratebay, there is no way in hell it would be illegal. Copyright means having the right to distribute your works (or more accurately, removing that right from everybody else). There is literally nothing stopping a copyright cartel company (hey alliteration FTW!) from distributing their works via torrents. Nothing. No laws, except for their own constant attacks on the method.

                                "But I do notice that Google finances many think tanks and lobbyists that promote eliminating copyrights and royalty methods, so I'm not inventing the fact that they are waging war on the creative community."
                                So do your beloved record labels. They finance think tanks and lobbyists, to promote the ever increasing expansion of copyright and royalty methods, so as to wage war on the creative community. So does Disney and all the other major movie studios. Why aren't you calling them out?
                                No, your hypocrisy is as clear as day. You call out Google for doing evil things (which you and I can agree on, when Google is evil, they are evil), but when those on the side of copyright expansion DO THE EXACT SAME THINGS, you don't mention it.

                                Congratu-fucking-lations, your comment was one of the stupidest, mindless, uninspired pieces of filth that I have had the displeasure in reading in quite a while, and this is from the guy who reads OOTB quite a lot.

                                 

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                                  Stevo (profile), Nov 27th, 2013 @ 1:27pm

                                  Re: Re: Re: Re: Re: Re: Re: Re

                                  I forgive the bad language but not the poor english skills. did you notice the past tense in 'MTV didn't...' ? and I'm sure you know MTV hasn't shown videos for 20 years.
                                  Notice I didn't say 'Disney', I said 'record companies'
                                  The record companies' contracts with their artists explicitly forbids them from distributing their products for free, hence it WOULD be illegal for them to do 'what Pirate Bay does'.
                                  They're not my 'beloved record labels' they're ripping me off all my life but when my works are copyrighted, it gives me my only protection.
                                  I complete agree with your objections to copyright expansion. I am hoping to mobilize artists to promote copyright reform but it's hard in an environment of so much polarizing opinion.
                                  Yes the media cartels are are more criminal than Google, and I mentioned some of that in a different post.
                                  I could go on for days about the evil record companies and the horrors of copyright expansion and the need for permission free copyright but the day is getting too short...

                                   

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                                    Anonymous Coward, Nov 27th, 2013 @ 10:13pm

                                    Re: Re: Re: Re: Re: Re: Re: Re: Re

                                    So you're the battered wife that screams that all men are jerks but still return to the abusive husband that anally perforates you with a chainsaw. Okay, then.

                                     

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                        Gwiz (profile), Nov 26th, 2013 @ 1:13pm

                        Re: Re: Re: Re: Re: Re: Re: Re: damn shame

                        That's a really big wall of text. I'm only going to respond to a few things here.


                        Musicians are disappearing but there are more HOBBYISTS than ever before.

                        I disagree with that assessment. Whether you label them musicians or hobbyists, more people are earning income from music. You seem more upset that your exclusive club has more members now, than anything else.


                        The more people there are making their shitty hobby music, the harder time we have wading thru it to find the good stuff. But the good stuff is there! it's out there somewhere.

                        I also disagree with this statement. Your "shitty hobby music" is another man's 5th Symphony. It's all subjective and I'd rather make up my own mind as opposed to some A&R man doing it for me. Also, with today's technology, there are filters to find the good stuff and those will only get better as time goes on.


                        here's some numbers for you:

                        For clarification, what are referring to with "units sold"? If you are talking about CD sales, then yes, that is declining drastically. Why would people want physical CD's in this always connected internet age? That's kind of like pointing to the decline in sales of player piano rolls and saying the the music industry is dying.

                         

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                          Stevo (profile), Nov 26th, 2013 @ 1:50pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: damn shame

                          all your points are valid , but yes that's units, not CDs, good lord.
                          I am assuming we are all subjective about what constitutes quality.
                          but as many commenters are fond of saying, you don't have a 'right' to make a living at music. It really is based on having very competitive skills.
                          Yes the filters get better but there are opportunities for yet unimagined social media , tastemakers, bloggers, who knows what?
                          I am hopeful for the future, but to say we have a functioning musical ecosystem is very premature. That's a good thing because it's not too late to have a voice in what shape it takes.

                           

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                Karl (profile), Nov 26th, 2013 @ 7:34pm

                Re: Re: Re: Re: damn shame

                Responding to two of your posts, just to keep one thread going.

                Sure, when you cover a song the Master recording becomes a 'new' work, but but it doesn't create a new 'publishing' copyright.

                I'm not sure that's true, but I'm also not sure what that has to do with anything. All I said was that it was a "new" work for the purpose of the Copyright Clause. Which it is.

                I'm not sure, but perhaps you are implying that rather than 'improve' copyright we should eliminate it?

                No. Significantly reform, yes. Specifically, get it back in line with its explicit purpose of primarily benefitting the general public. Additionally, make it more friendly to newer artists than to legacy labels and publishers. Since newer artists are also part of the general public, these goals coincide for the most part.

                One of those goals is the expansion of fair use, which helps everyone.

                Of course I don't agree but I do concur about the offensive behavior of ASCAP and all the PRO's .

                Glad you do. I'm actually not opposed to statutory royalties, I'm just saying that before we introduce new middlemen, we have to make sure we don't have middlement like the current PRO's. (SoundExchange seems to be doing OK so far, all things considered.)

                But with their crooked bookkeeping, the labels took the profits from their big acts to develop new artists, so in a twisted rather unfair fashion, pop music thrived for nearly a century.

                Pop music never "thrived," even by the labels' own standards. At the height of the music industry's profits (1999), 1 in 10 acts didn't recoup. (Meaning that, in all likelihood, at no point did over 1 in 10 of the artists on a major label make any artist royalties.)

                On the other hand, the monopoly that the majors had on the entire industry effectively acted to keep everyone else out. There is no question in my mind that this resulted in pop music that is much lower in quality and quantity than it otherwise would have been. To misquote Macaulay, the effect of the major labels' monopoly was to make music scarce, to make it dear, and to make it bad.

                Without copyright composers like myself

                You should be very happy that you're in a growing ocupation. According to the BLS, there are almost three times as many music directors and composers working in 2012 (24,940) than there were in 2002 (8,980), and furthermore their income has increased by 36% ($53,420 vs. $39,270).

                I AM optimistic .

                You should be, since more people are making a living through music now than they were ten years ago.

                Music scene is bad! Saying that music is doing great because there's more dollars is exactly like when we are told the economy is great because Wall Street is at an all time high.

                Quite the opposite. The largest growth in the music industry is from middle-class and indie musicians. Exactly the musicians that would have made no money whatsoever ten years ago.

                It's true there is more money in live music than ever. but it's going to 'legacy' acts like Madonna, the Stones, U2…
                Ticket sales are markedly down in numbers but drastically higher in price.


                The "ticket sales down, prices up" numbers specifically refer to the "legacy acts" that you mention. In fact, there are more opportunities for lower- and middle-class musicians than ever.

                And it should be said that, even among the "legacy" acts, almost all of them made the majority of their income through touring, merch, and endorsements. They made almost nothing from royalties (songwriter or performance).

                Touring is not profitable for smaller acts and even mid-level artists have only sustained their careers from broadcast royalties .

                Touring was never profitable for most smaller acts, and that's true today as well. But more smaller and mid-level artists are making money touring than they would before. (And, of course, most smaller and mid-level acts wouldn't get tour support. The smaller acts because they weren't on labels; the mid-level acts because the labels wouldn't give them any unless their recordings turned a profit, which most didn't.)

                The commercial and artistic breakthroughs of those eras happened because of the entrepreneurial incentives for people like Berry Gordy, Brian Epstein and Andrew Loog Oldham.

                The commercial and artistic breakthroughs of punk and the British Invasion happened because nobody gave a shit about copping other peoples' music. The people you mentioned took already-popular music and made it mega-popular, that's all. (Not to say that isn't an accomplishment, of course.)

                But the entrepreneurs of today are internet cloud-barons reigning over a feudal structure of unpaid musical serfs.

                It's at this point that you show you have no idea what you're talking about. YouTube, for example, shares more of the income from music with the actual artists than any label does. And they treat musicians (and other artists) far, far, far less like serfs than the traditional music industry ever did.

                The rest of your post is just a thoughtless regurgitation of the talking points of people like David "Trichordist" Lowery or Chris Castle. Do not listen to them. They are outright liars. And I do not use that word lightly.

                 

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                  Karl (profile), Nov 26th, 2013 @ 7:43pm

                  Re: Re: Re: Re: Re: damn shame

                  I'm not sure that's true, but I'm also not sure what that has to do with anything. All I said was that it was a "new" work for the purpose of the Copyright Clause. Which it is.

                  Whoops! I thought you were talking about a fair use work, not a derivative work that is specifically a cover song. My bad. Ignore that bit.

                   

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                  Stevo (profile), Nov 27th, 2013 @ 5:06am

                  Re:PUBLISHING

                  I'm encouraged you're not a copyright denier.
                  I think we see similar injustices and have the same hopes for the future of music
                  You and I view the history of music from a different perspective, but that's natural and it's healthy to get a different perspective.
                  yes, ARTIST royalties are mythical, except for spectacularly big acts who ALWAYS had to sue to collect 50 cents on the dollar.
                  The first rule of music is: never sell your PUBLISHING.
                  I get 2000 per cent more publishing income from the tired old broadcasters than I get from ALL digital media combined. My income from YouTube is 00.01 per cent of my songwriter income and other writers I know report similar results.
                  It's true US broadcasters NEVER paid musicians, but if you owned your own publishing AND you had a hit, then only then , you were truly in business. Without the hits, there is no stadium tour, the merch, endorsements and other things you mention. I can understand that you see unfairness in that ecosystem, all I can say is at least there WAS an ecosystem.
                  Touring income is always reported in terms of gross ticket receipts but touring costs are so merciless that even for huge acts the profit can be elusive. 2 canceled shows can wipe out all your profit. One bass player OD mid-tour and your platinum selling band declares bankruptcy.
                  So as I say publishing was and is the bread and butter.
                  The giant record companies are almost all gone but their publishing entities remain and are making only slightly less money than in their peak.
                  I guess what you're saying is YouTube (and Pandora/Spotify etc,) pay a higher percentage of what they CLAIM is their ad income. I suspect that like the record companies and all corporations they have 3 sets of books, but it doesn't matter. I'm just saying no songwriters are making a living from YouTube and probably not from the streaming services either.
                  I hope your view of there being more artists supporting themselves from music than ever before is more correct than what I see. If you see statistics that support this, please share, because I'm very interested.
                  For instance, the BLS figures you quote jibe with what I see in the film and TV where I assume those jobs are coming from. It's good news in that it indicates growth and activity but at the same time horrifying about what it indicates about budgets and compensation. That also jibes with the quality of the work that I hear on low budget projects. (not dissing anyone's work , it's hard when time and money are short.)
                  I do notice that people establishing themselves in music are middle-class even upper class. Actually what I notice is that they COME from rather privileged backgrounds and sometimes are able to leverage this advantage into a viable career. Just as I see the interns in the film biz who get out of expensive schools and have parents well off enough to support them for the 2 or 3 years of unpaid labor that just may land them entry to a desirable position.
                  I don't know who Chris Castle is but please feel free to tell me what lies you think Lowery is posting , it's good to get information and fact check.

                   

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                    Karl (profile), Nov 28th, 2013 @ 1:21pm

                    Re: Re:PUBLISHING

                    Sorry, haven't checked this thread in a while. I'm going to just reply to a couple of things, because I think that they will cover the rest of what you said.

                    The giant record companies are almost all gone

                    No, they're not. They're simply consolidated into fewer multi-national corporations. They still control 70% of the global music market, and 85% of the United States music market. (At least as of 2004; I couldn't find more recent figures.)

                    I guess what you're saying is YouTube (and Pandora/Spotify etc,) pay a higher percentage of what they CLAIM is their ad income.

                    No. If you use YouTube's ContentID, they split the profits with the copyright holder, 50-50. That's mainly ad revenue. But with Pandora and Spotify, they pay the majority of their total revenue (not just "ad income") to copyright holders. Pandora pays 54% of its revenue. Spotify pays 70% of its revenue. If you want to know why the artists aren't seeing that, here's a hint: they're paying the copyright holders, not the artists - and the copyright holders are usually major labels.

                    Which brings me to the next reply:

                    I don't know who Chris Castle is but please feel free to tell me what lies you think Lowery is posting , it's good to get information and fact check.

                    Chris Castle is the person behind the Music Technology Policy blog. He is an anti-Google and anti-tech copyright attorney (ironic, since he originally represented Napster), and former VP of business affairs at both Sony and A&M. Trichordist often quotes his biased rants.

                    Trichordist also links to, and talks about, Pop Up Pirates, a site which I talk about here.

                    But since you know who Lowery is, I'll focus on him instead. And, boy, where to start. The guy lies about pretty much everything.

                    I first heard of him when Techdirt ran a story about a Facebook post that mirrored some talking points in a speech he gave. In response, Lowery showed up in the comments, saying things like "if i wanted to fucking sue you i could" and "I expect a retraction and an apology. fuckface."

                    I suppose you've read his letter to Emily White. In it, he makes a number of false statements. Techdirt wrote about them here. I debunked them here, in the comments to that story. Jeff Price at TuneCore also debunked them, and I'm sure more people did too. The letter was generally panned by his fellow musicians, including Steve Albini and Gang of Four's Dave Allen.

                    That wasn't the worst of it, of course. As I said in another comment:
                    Lowery is a douchebag. He exploited the tragic deaths of two music artists to advance his anti-tech agenda. He quite literally claimed (without one shred of evidence) that without piracy, Vic Chesnutt and Mark Linkous would still be alive.

                    This is shameful propaganda in the extreme, and it is utterly disrespectful to Chesnutt and Linkous. It shows just how little Lowery respects his musician "friends."

                    That's just the beginning, naturally. Trichordist has all sorts of factually inaccurate claims (I assume from Lowery, but Trichordist often doesn't explicitly name who writes their stories). I debunk his "Why aren’t more musicians working professionally?" blog post in the comments here. He similarly claimed there are 45% Fewer Professional Working Musicians Since 2002, a claim which I debunked here. This post at JawJawJaw explains how Lowery cooked the statistics by using incompatible sets of BLS numbers. Techdirt also ran a story showing the actual numbers, and I dug deeper into those numbers in a comment on that story.

                    He also wrote a misleading story about "YouTube contracts", and I pointed out that he lied in this comment, namely that they're contracts with Machinima, not YouTube. It should also be noted that the post at Trichordist linked back (negatively) to Techdirt, with the bogus and overused claim that Techdirt's sole music business model is "selling t-shirts and touring." (I should hope that you already know it's not.)

                    He's also lied multiple times about Spotify and Pandora not paying artists, which I already debunked above.

                    I'm sure there is more - lots more. But, frankly, if I had to debunk all the lies on Trichordist, it'd be a full-time job. I hope the aforementioned is enough to convince you that at the very least, the site shouldn't be trusted.

                    Also, digging into the numbers I posted (in the comments I linked to) will probably give you some idea of how I would reply to the rest of your post. I've included links where I could, so feel free to fact-check.

                     

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        identicon
        Anonymous Coward, Nov 25th, 2013 @ 2:15pm

        Re: Re:

        So, would a reasonably minded person look at this circumstance and say GoldieBlox was engaging in artful parody for the purposes of which the protection was designed, or were they re-working the lyrics to suit their advertising desires? Doing the latter in this case, while claiming the former, is probably what's going to be tested here. Prediction: GoldieBlox rightfully loses.

         

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          jupiterkansas (profile), Nov 25th, 2013 @ 2:25pm

          Re: Re: Re:

          It's not either/or. GoldieBlox was doing both - parodying the original song and changing the lyrics to suit their advertising desires. Still fair use.

           

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            Anonymous Coward, Nov 25th, 2013 @ 2:37pm

            Re: Re: Re: Re:

            No, GoldieBlox is claiming their changes to the lyrics constitute parody, from a legal defense standpoind so they don't have to be liable for violating the rules of derivative works. The only people claiming the GoldieBlox lyrics are parodic in the legal sense are lawyers. To any reasonable person, it looks like a distinctly derivative work for the sake of commerce, and they broke the rules in place for that very well-established form of business, and they're going to lose because of it.

             

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              Rikuo (profile), Nov 25th, 2013 @ 2:43pm

              Re: Re: Re: Re: Re:

              Okay, new tactic. What is commerce? Define it. This is the legal world, where definition is king. Given that practically everything is commercialised in one form or another, even a person making a parody and putting it up on Youtube can be said to be commercial in a way (since Youtube is a commercial for profit enterprise, who would run ads on the video).
              How do you square the property of commercial with the freedom of speech if your claims of commercialism removing fair use status are true?

               

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              Anonymous Coward, Nov 25th, 2013 @ 3:49pm

              Re: Re: Re: Re: Re:

              "The only people claiming the GoldieBlox lyrics are parodic in the legal sense are lawyers."

              Shockingly enough, the lawyers happen to know what constitutes a parody in the eyes of copyright law. You obviously don't.

               

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            Anonymous Coward, Nov 25th, 2013 @ 2:39pm

            Re: Re: Re: Re:

            Um, no.

            They don't have a snowballs chance in hell of this being declared fair use.

             

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              Anonymous Coward, Nov 25th, 2013 @ 3:50pm

              Re: Re: Re: Re: Re:

              Oh, well, you've clearly done your research and I'll just accept your summary conclusion, despite the directly contradictory Supreme Court precedent.

               

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                identicon
                Anonymous Coward, Nov 25th, 2013 @ 9:25pm

                Re: Re: Re: Re: Re: Re:

                average_joe can't stand the enforcement of due process. It makes his dick sad, and then he has to mimic a cow on his wife's laptop.

                 

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          JMT (profile), Nov 25th, 2013 @ 2:37pm

          Re: Re: Re:

          "So, would a reasonably minded person look at this circumstance and say GoldieBlox was engaging in artful parody for the purposes of which the protection was designed, or were they re-working the lyrics to suit their advertising desires?"

          Why do you think it has to be one or the other? It's pretty obvious to a reasonable minded person that they are doing both. The use of that particular song, with lyrics rewritten to flip it's premise completely around, fits in perfectly with the company's aims of selling products that encourage girls' interest in engineering fields.

          "Prediction: GoldieBlox rightfully loses."

          The Supreme Court recommends you don't bet money on that prediction...

           

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            Anonymous Coward, Nov 26th, 2013 @ 9:13am

            Re: Re: Re: Re:

            From a commenter on another site:

            Check this line from the original Campbell vs. Acuff Rose decision: "...the use of a copyrighted work to
            advertise a product, even in a parody, will be entitled to less
            indulgence." This is as opposed to “the sale of a parody for its own sake.”

            Basically the court is saying what I'm saying, and y'all are going to owe me an apology when the case comes down the way I say it will.

             

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      identicon
      Anonymous Coward, Nov 25th, 2013 @ 3:48pm

      Re:

      It is both (i.e., a derivative work and fair use).

       

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    identicon
    Anonymous Coward, Nov 25th, 2013 @ 2:12pm

    "And, in fact, this is exactly what fair use is for: to enable people to use music, without permission, in situations that create a very different kind of work where the copyright holder would almost certainly not grant permission."

    Um, no, as you've succinctly pointed out elsewhere, the whole premise is to benefit the progress of the arts and sciences...this situation is going to be clearly in the "works for hire for purposes of advertising" situation, and rightfully so.

    As pointed out in the AV Club comments by a rather astute person, the real meat of the issue goes like this:

    If GoldieBlox released the song on iTunes as a song purporting to parody the lyrics to enhance meaningful discussion of their mission statement, great! Way to go! Fair use all the way! That's art, and the territory of fair use.

    That's not what happened. GoldieBlox re-tooled lyrics to suit their purpose - wholly commercial - and are hiding behind "fair use" as a woe-is-little-old-me defense that rightfully will get its teeth kicked in by the courts.

    Before it's too late, realize you're on the wrong side of this scenario, back away slowly, and realize that GoldieBlox is trying to pull a fast one on you, on the court, and really, at the end of the day, make a profit by co-opting the popularity of the Beastie Boys.

    Normally you're pretty on-target with these types of cases, but this time, out of your league, can't see the forest for the trees, etc, but there's time for you to figure out what's correct before the case is ruled in favor of the Beastie Boys and you waste a bunch of time writing wrong-headed articles about why the decision was wrong (which it will not be in this circumstance). Take a deep breath on this one.

     

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      Rikuo (profile), Nov 25th, 2013 @ 2:28pm

      Re:

      Again, you are simply asserting that the property of this parody being commercialised strips it of fair use status...without BACKING IT UP.
      Think about the implications of Goldieblox losing here. This then means that parody in any commercial setting would be challenged. Professional comedian who quotes a (portion of a) song and parodies it? Challenged. Professional reviewer a la Nostalgia Critic? Challenged. Your average person making a parody for free but putting up on a website (there's a commercial element there, since the site has to be bought and paid for)? Challenged.

      All I see in the above comment is you asserting that the property of commercialism is enough to squash fair use, but you do not back it up at all.

       

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      jupiterkansas (profile), Nov 25th, 2013 @ 2:28pm

      Re:

      Creating a parody and selling it on iTunes is even MORE commercial than using the parody to advertise a business.

      You presume that because it's an advertisement, it can't be creative or fair use. I know plenty of ad people that would disagree with you.

      IT DOES NOT MATTER THAT THE USE WAS FOR A COMMERCIAL.

      It is still fair use.

       

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      •  
        identicon
        Anonymous Coward, Nov 26th, 2013 @ 9:40am

        Re: Re:

        The fair use doctrine has long been wielded to protect musical expression, perhaps most famously in the 1994 Supreme Court decision ruling that 2 Live Crew’s bawdy take on “Pretty Woman” was a legal parody of Roy Orbison’s original. But using a song in an explicitly commercial context, like the GoldieBlox ad, limits its protection from copyright infringement lawsuits. “Whether or not a work is used for a commercial purpose has been part of the fair use analysis for a very long time,” says Andy Sellars, a staff attorney for the Digital Media Law Project housed at Harvard University. “The use of media in advertising has often been a tough place for people to make fair use claims.”

        Read more: Beastie Boys Battle GoldieBlox Over 'Girls' Video in Lawsuit | TIME.com http://business.time.com/2013/11/26/fight-for-your-right-to-parody-beastie-boys-goldieblox-and-the-f uture-of-commercials/#ixzz2lm4wHWuz

         

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          jupiterkansas (profile), Nov 26th, 2013 @ 10:12am

          Re: Re: Re:

          Yes, but 2 Live Crew recording a song and selling it is also commercial purpose. They are professional musicians who make their living recording and selling music. It is no different than recording a song to use in a commercial, or a music video. IT'S ALL COMMERCIAL.

          Did 2 Live Crew write the song for a non-for-profit? Were they fiddling around in their bedroom and upload it to Youtube? No. They recorded it for Atlantic Records, which proceeded to make a profit off the recording. IT'S COMMERCIAL!

          You are confusing a commercial for television with commercial intent, and implying that a commercial has less creative value than other expressions. The court doesn't see it that way.

           

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          •  
            identicon
            Crabby McGruff, Nov 27th, 2013 @ 12:54pm

            Re: Re: Re: Re:

            You are 100% incorrect. In the 2 Live Crew case itself, the Supreme Court said:

            The use . . . of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry, than the sale of a parody for its own sake.


            Not exactly ambiguous, is it?

             

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      Christopher Best (profile), Nov 25th, 2013 @ 3:20pm

      Re:

      That's not what happened. GoldieBlox re-tooled lyrics to suit their purpose - wholly commercial - and are hiding behind "fair use" as a woe-is-little-old-me defense that rightfully will get its teeth kicked in by the courts.


      By which court, exactly? It sounds like you're suggesting the Beastie Boys go fetch their big brother to beat up GoldieBlox, without realizing GoldieBlox's big brother (the Supreme Court, in this case) is the current reigning MMA world champion...

      You're entirely right a lower court can completely "misinterpret" (ie: ignore) existing law and precedent and find against GoldieBlox in this case, but courts make crazy decisions all the time. So GoldieBlox is doing the smart thing and heading this off at the pass--getting their day in court immediately instead of having a legal threat hung over their head. Considering they've got cases from the Supreme Court of the United States to back them up, I think they're justified in feeling confident about their chances...

       

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    •  
      identicon
      Anonymous Coward, Nov 25th, 2013 @ 3:52pm

      Re:

      You are saying a lot of things that don't matter. Can you provide some reason anybody should thing the things you are saying matter? Like, a judicial opinion saying so?

      Because there is an opinion from the Supreme Court directly contradicting some of the things you are saying (which was cited in the article).

      BTW, I'm usually the first to jump on Techdirt articles for trumpteing wrong-headed fair use opinions, but this one is right on the money.

       

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    •  
      identicon
      Crabby McGruff, Nov 26th, 2013 @ 2:23pm

      Re:

      100% correct, thank you!

      I don't know if people here are being willfully obtuse or really are too thick to understand the distinction. There is a big difference between making fair use of someone's work to create a piece of art intended to stand on its own merits and doing so to hawk a completely unrelated product. And I'm not just saying that because I believe it should be the case (trying to will it into law as many commenters here seem to be doing), it is also exactly what the Supreme Court itself--in the very case (the 2 Live Crew case) people are citing to support fair use here--has said, namely:

      The use . . . of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry, than the sale of a parody for its own sake.


      The point here isn't that use in an ad is necessarily not fair use, but it's a very uphill battle to show that it is. And as fair use is a defense to infringement, that burden is on the defendant.

      I can only think of one case (the Annie Leibovitz/Naked Gun case) that has found use for these purposes to be fair use. And that case is from the Second Circuit and not binding on the San Francisco court where this suit was filed.

      Nowhere but in the Silicon Valley, techno-utopian echo chamber would anyone familiar with fair use case law say this is a strong case for fair use.

       

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  •  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 4:56pm

    Think I'll get a copy of the Godfather, change a couple lines, and sell it.

    Fair use, man.

     

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  •  
    identicon
    Anonymous, Nov 25th, 2013 @ 5:05pm

    Speaking of parodies...

    ApologetiX has their new album, "Handheld Messiah", available for listening on their Myspace page. You can listen to each complete track individually. If you like Weird Al, give these guys a listen. ("Nice Iced Pavement" is particularly humorous.)

     

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  •  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 9:09pm

    Holy crap what does this mean for Weird Al or any other comedian? :( Their entire career relies on fair use and parody... It would be pretty hard to come up with good jokes if you had to ask people before you decided to make fun of them.

    There would be no such thing as the Streisand effect which happens to be the biggest trolling move ever. I love it! and I love Mike for thinking of it. I also love out of the blue for providing me with plenty of content to make fun of.
    AND most of all I love big titties, & Vicodin,, & Xanax, & Soma,, & Walter Cronkite RIP.

     

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    Servographics (profile), Nov 26th, 2013 @ 12:20pm

    Fair Use Won't Protect Them

    Sorry, but they'll never win this; otherwise ad agencies would be taking hugely popular songs and changing the lyrics to sell a product ALL THE TIME. Notice how that's almost 100% NOT the case? GoldieBlox were total douches in how they went about this, and simply will not win. Regardless of an article or two on the internet, fair use won't protect them.

     

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    kenichi tanaka (profile), Nov 26th, 2013 @ 2:45pm

    I think Mike's article is wrong because if the courts rule for GoldieBlox that using music is 'fair use' then it would be open season for any business, retailer, advertiser, movie studio or television studio to use copyrighted music without having to license it.

    I'm shocked that neither the RIAA nor the MPAA have filed amicus briefs with the court opposing the GoldieBlox motion.

     

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    •  
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      Gwiz (profile), Nov 26th, 2013 @ 5:31pm

      Re:

      I think Mike's article is wrong because if the courts rule for GoldieBlox that using music is 'fair use' then it would be open season for any business, retailer, advertiser, movie studio or television studio to use copyrighted music without having to license it.

      That's silly. Fair Use can only be determined by a court. It's determined on a case-by-case basis. There will be no "open season" on anything if this individual case happens to be declared Fair Use or not. The next infringement/Fair Use case will be determined on it's own merits.

       

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    Stevo (profile), Nov 27th, 2013 @ 2:04am

    fair use vs copyright reform

    Having the courts arbitrate massive amounts of creative disputes is even stupider than letting them decide our presidential elections.
    f we have copyright reform we won't need to tie up the courts with expensive and often inconclusive litigation.
    'determined on a case-by-case basis'
    You are exactly correct and thats why 'fair use' is not the path to a more creative future, we need to make things easier and simpler, not harder and more complicated.
    Make copyright permission free' so that anyone can sample or quote from existing music to create new copyrights that split credit and revenue with the holders of the original property.

     

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    identicon
    Unicorn Glitter, Nov 27th, 2013 @ 2:31pm

    This clever attention-seeking ad might be fair use, but is it ethical? The creators of this ad have the same legally-protected, entitled, self-serving, what-can-I-get-away-with-mentality that leads to things like financial crises.

    But don't they have to remove the Beastie Boys name from the ad for it to be a transformative work rather than a derivative one?

     

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  •  
    identicon
    Miss K, Nov 28th, 2013 @ 6:07am

    ReallY Beastie Boys

    The Beastie Boys may claim they don't want their music used for advertising but that hasn't stopped them from selling $2 plastic watches for $75 on their website.
    How many "musicians" have made the statement they don't want their music used in advertising? Then their fame fleets their bank accounts get low and just like Bowie and the Rolling Stones they find themselves hawking cars or computers. Never....let's wait & see.

     

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