You're not a musician. You're a hobbyist maker of noise.
By your very arguments, the real "musicians" are the ones that have the least right to fair use.
After all, you're the one that is arguing that if the music is part of a commercial endeavor, it is not fair use. So, if I'm merely a "hobbyist," then I should have more fair use rights than people who you consider "musicians."
Of course, I don't believe such nonsense, but it's the only thing that is consistent with your position.
Not at all. Karl isn't a musician or songwriter. Ask him for links.
My Techdirt account name has a link to my site in it.
If you don't think I'm a musician, and don't write songs, then you have no idea what you're talking about. My noise music is deliberately composed and arranged (some even have the [in]famous ABACAB form), and some has lyrics that I wrote. Before that, I played in a few rock bands. I can compose orchestral music (I studied music composition my first time through college), and my major instrument was guitar. For a while, I was playing out consistently, including a couple of small U.S. tours, and I have a couple of records out on (very tiny) labels. Also, in my last paying gig, I was contracted to do music, sound design, and write the Android sound engine for a local startup company.
I am not claiming I am anything special. In fact, the majority of the music I love is produced by people in roughly the same boat I am. (Most of whom I know personally.) And nearly all of the musicians who make any money at all - even the mega-stars - did exactly what I did, for many years, before winning the rock-star lottery.
If you think I'm "not a musician," then the only people you think are "musicians" are those who are bankrolled by some trans-national mega-corporation.
Which shows exactly where your loyalties lie. Hint: it's not with anyone who actually creates music.
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.
Do you, AC, honestly believe that a finding against fair use in this instance won't hurt musicians in the long run? Musicians (professional musicians at least) aren't just artists, they're for profit artists, and doing away with fair use because of the "profit motive" would effectively silence any pro musician who makes use of fair use laws. Which means pretty much all of them.
It is you, not Mike, who is engaging on a "war on musician's rights."
Fair use relates to copyright and creative expression. Expression only needs to be "minimally" creative to meet this standard. Generally speaking, if something is eligible for copyright protection at all, it is "art" for the purposes of fair use.
Fact: GoldiBlox is a for-profit entity, its very existence is to make money (otherwise it'd be a 501c3)
As are all of the entities who regularly use fair use (newspapers, publishers, or the label that released "License to Ill").
In fact, fair use generally looks at the use itself, not at the entities that do the using. So, if a 501c3 non-profit released the same music for sale, it would be a commercial use under the Copyright Act.
Fact: Test #1 for fair use is asking "Is this a work of social commentary or a work of a commercial nature?"
That is not the first test. The first test is: "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." As the court put it in Campbell v. Acuff-Rose:
The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely "supersede[s] the objects" of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative." Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. [Citations omitted.]
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.
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.
So I guess all of this drama could have been avoided if GoldieBlox had just paid their ASCAP/BMI feeds.
If those applied to sync licenses, then yeah, they could have. But they don't. ASCAP/BMI/SoundExchange handles performance royalties (streaming, radio, and live performances); Harry Fox (for the most part) handles mechanical licenses (e.g. putting the song on CD). There is no such agency for sync licensing (synchronizing a song to a video), so they couldn't do that.
It was never their intention to deny the writers credit or income.
Whether or not that was their intention, they did in fact use the song without permission (and without licensing). They did not pay a dime until "almost a year later, after nearly a quarter of a million copies of the recording had been sold" (according to the court documents).
The "credit" thing is a non-starter. The commercial was not claiming that the Beasties didn't write the original song that was being parodied. And, incidentally, "credit" has little to do with "infringement" - you can infringe on copyright while crediting the original, and you can fail to infringe on copyright even if you're outright plagiarizing (look at all those "term papers for sale" sites). The fact that you confuse the two makes me wonder if you "just repeat what other people tell you."
2 Live Crew DID ultimately get permission, DID license and certainly DID split the income with the rights holders for Roy Orbison's song. [...] When the resulting lawsuit became inconclusive the two parties settled out of court.
That's some revisionist history. The Supreme Court found that it was almost certainly fair use, siding with 2 Live Crew on every count. It remanded merely to determine some details that were not initially discovered. But nobody thinks it would not have been found to be fair use by the lower courts - all of their arguments against it had been explicitly overturned by the Supreme Court.
It is against this backdrop that the parties settled. Acuff Rose (the copyright holder for Orbison's song) lost pretty conclusively, but rather than prolong an expensive court battle, Campbell et. al. decided to take the cheaper option and settle by licensing the song.
The settlement isn't public, but I doubt very much that the licensing fees approached anywhere near half of the income ("split the income") for the song.
It's not my music so the only fair use of it it wat [sic] the creators and owners say is fair.
This is exactly the opposite of what fair use is.
Fair uses of someone else's work do not require licensing, or permission, and are legal even if the original copyright holder explicitly wishes that the fair use not exist.
That's because fair uses are totally outside the rights a copyright holder has in his/her work. People can make fair uses of your work, and there's not a goddamn thing you can do about it.
That's because copyright does not exist to give control to copyright holders; it exists to promote the production and distribution of artworks. Fair uses are exactly such artworks. That's why it's "fair:" if they weren't allowed, copyright wouldn't fulfill its purpose (and also be unconstitutional under the First Amendment.) It's why fair use has been a part of common law since copyright was invented.
However, since this new creation uses the title and melody of the Beastie Boys song, it requires their permission for the publishing license.
If the use of the title and melody is fair use, then it requires neither permission nor licensing. Fair use is a limitation on the rights of the copyright holder; making requirements of fair uses is not their legal right.
Parodies are a huge part of music publishing and it's standard for the parodist to split credit and income with the original writers.
Whatever "gentleman's agreements" the industry has, they are just that. They are not based on copyright law, and nobody else is required to abide by them. Hell, those in the industry are not required to abide by them. That's what the "Pretty Woman" case was all about: 2 Live Crew did not get permission, nor license anything, and certainly did not split the income with the rights holders for Roy Orbison's song.
I'm talking about a commercial as in an advertisement.
Using a song in an advertisement is no more of a "commercial use" than simply selling the song outright. At least, not under the law. "Commercial" here just means "for profit," it doesn't specify how that profit is made.
So, under the law, if it is not fair use to create a song used in an advertisement, it is not fair use to create a song and sell copies of it either.
That's why it's important that advertisers be allowed fair use. If they don't have it, no other for-profit entity has it either. And nearly all speech has some sort of for-profit entity involved at some level.
As an aside, if you think the songs themselves (hell, even the Beastie Boys themselves) are not "advertisements" for "products," then you really don't know what the music industry is.
If you make information public, you have no right to complain if others use it.
As the AC said, they did more than just "use" it. They expropriated it. They were claiming that they held the exclusive license to the photographs, and sued the photographer when he dared complain. (Do you have any doubt that AFP/Getty would have sued for infringement if someone else had used the images without their permission?)
In other words, it was more than just copyright infringement, it was copyfraud.
If the large judgement was based on this, then I would have no problem with it. Unfortunately, in cases like these, the law makes no distinction between "copyfraud" and "infringement." And when it does in other cases - for instance, by claiming copyright over public domain works - copyfraud is punished lightly, if at all.
The downside here is that people who infringe on copyrights without committing copyfraud are going to get punished just as harshly. And that is what is out of whack.
Corporations do not have the right to use songs in advertising without the permission of the songwriters!
If their use of the song is fair use, then yeah, they absolutely do have that right.
For example, 2 Live Crew were directly selling copies of their "Pretty Woman" parody. That's something that's as much, or more, of a commercial use as use in an advertisement. Yet their version was found to be fair use - and that's a very good thing.
Does Masnick truly believe corporations are super entities that can ignore the laws the rest of us have to follow?
On the contrary. He knows that nearly every publishing of a fair use work is "commercial" to some degree or another. And that if this company (who is no more of a corporation than Def Jam, Sony, Universal, or Brooklyn Dust) is not allowed fair use, the rest of us won't be allowed fair use either.
In fact, it is you who is arguing that we can "ignore the laws" that GoldieBlox is supposed to follow.
standing firm on a misogynistic message in their own song
I may be giving them too much credit, but I always thought that the misogyny in that song was an intentional joke.
Either way, this is not a good move on the Beasties' part. I'm hoping that this was done by the copyright owners themselves (i.e. Universal/Sony), and that the Beasties themselves had nothing to do with it.