Copyright As Censorship: Questionable Copyright Claim Forces Indie Musician To Destroy All Physical Copies Of New Album

from the isn't-that-nice dept

Indie musician Will Toledo has a band (it’s all him, actually) called Car Seat Headrest that just (sorta) put out its first album with a label (pretty famous indie record label) after a whole bunch of self-released albums, and lots of (well-deserved) internet buzz. The album was released this past Friday… sorta. Apparently one of the songs included an homage to a song by The Cars. I’ve read a bunch of articles on this and Toledo’s own statement, and the homage is called a bunch of different things, from a “sample” to a “cover” and no one ever clarifies which it actually is. And that’s important because the legal issues are potentially different with each. But, it also doesn’t matter at all because Toledo and Matador have agreed to destroy all the physical copies of the album after The Cars’ Ric Ocasek complained that he didn’t like it. So the digital release came out, with a replacement version of the song that Toledo apparently rewrote a week before the album was released, and a new physical version will come out… sometime.

Here’s the way Toledo explained it:

Life happens and sometimes not in ideal ways. If you?ve heard anything about the new album, then you?re probably aware that one of its songs made use of The Cars song ?Just What I Needed.? Now, obviously, when we called the record ?done? and sent it off to be printed, we were working in full confidence that we had the legal side of it all worked out. We found out last week that this was not the case. I?m not going to get into the nitty-gritty of email chains and invested parties; suffice it to say that Matador (and I) were neither pulling a Banksy nor operating in ignorance of the law, but that we truly believed we had the issue resolved months ago, until last week.

As you may have heard, vinyl is being pulled from stores right now. There?s a total recall out, and all copies with the original version of the song will be destroyed. Nevertheless, Teens of Denial WILL COME OUT ON MAY 20TH, at least digitally. I spent the last 48 hours working on an alternate cut of the track, which is now called ?Not What I Needed?. It?s not merely an edit ? it is its own thing, about half a minute longer than the original track, and goes in a much different direction. Honestly, despite the apparent clusterfuck, I had fun doing it, and I think it?s a stronger song now. In any case I?ve grown up accustomed to working on an album right up to its drop date, so this is not a freak-out scenario for me. The album is going to come out on time and it?s going to be good.

The physical release will not come out on time, obviously. We?ll likely see a street date of sometime in July. I?m very sorry to everyone who was anticipating a preorder (it does sound GREAT on vinyl). It will be in your hands eventually. But it was very important to me that we keep the digital release for May. We?ve all been waiting long enough. Most of my music only exists online anyways, so it makes sense that this album should start the same way.

Thanks for your continued support, and I am very excited for this fucking record to come out already.

-Will Toledo aka Car Seat Headrest

In short, “we thought we had a license, but turns out we didn’t.” But I’m still confused as to whether or not a license is truly needed here. Of course, there’s enough ambiguity over the law that I can see why no one would want to chance it. If it was truly a “cover” then we have compulsory licenses for that, and it wouldn’t matter what Ocasek thought, because he couldn’t stop it. But, one of the true oddities of copyright law is that such compulsory licenses really only apply if you do a cover that is a faithful representation of the original, and from folks who have heard the now vanished song, it was not that at all:

?There Is a Policeman in All Our Heads, He Must Be Destroyed? starts off sounding like a straightforward cover of The Cars? ?Just What I Needed?, but Toledo superimposes a different vocal melody on the intro to create what is essentially a brand-new song. Later, in the outro, he returns to the Cars song and adopts Ric Ocasek?s original vocal melody. The end result is strange and delightful ? a kind of cover-within-a-song that plays around with expectations and comes across as entirely original.

From that, it certainly sounds like it was not “a sample” as many reporters are claiming, but rather just a transformative work paying homage to The Cars’ original. And, as such, you’d think that there would be a very strong fair use argument. But, fair use and music remains a tricky minefield with no clear rules, and I can see why Toledo and Matador wouldn’t want to spend time and money in court defending this, especially given that a positive result is no sure thing.

Still, for people who love music, this seems like a somewhat horrific result. Yes, Toledo is cheerful about the whole thing and insists that the revised work is a better track, but this is yet another example of copyright being used to literally destroy a piece of culture. And I think we should find that revolting. As the folks at Consequence of Sound, who heard the track, noted in their story on this:

The biggest bummer is that the listening public may never get to hear ?There Is a Policeman in All Our Heads, He Must Be Destroyed?

I’m guessing that sooner or later (or perhaps already?) some version of this track will leak out and become available, because this is the internet. But it’s still disappointing that Ocasek is using copyright as an effective veto on someone else’s creativity.

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Companies: matador records

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Comments on “Copyright As Censorship: Questionable Copyright Claim Forces Indie Musician To Destroy All Physical Copies Of New Album”

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23 Comments
Anonymous Coward says:

I had fun doing it, and I think it’s a stronger song now.

The is the ultimate ironic effect of rent-seeking control-mongering with copyright. Just as the Internet famously sees censorship as damage to route around, true creative talent sees copyright bullying as a challenge to overcome. The results are quite often better productions, new technologies, and larger revenue for everyone but the bully.

Anonymous Coward says:

There are a lot of people out there who have no idea who the Cars were, or who Ric Ocasek was/is. I think Ric lost an opportunity to get his name out in the public again, after thirty years. Well, in a positive way.
His name is in the news again, but it’s for being a bitch and a bit of a crybaby. Ahh, lost opportunity.

Whatever says:

Interesting, but...

Interesting story. However, I think you have written it in a way to avoid the elephant in the room: sampling.

Here’s the thing. It’s pretty easy to do a cover version of a song, you pay royalties and such and you are pretty much good to go. It is a guess, but I suspect that the licensing that Toledo got for the Cars song was as a cover. That would be a form of compulsory license, pretty hard to get around – it is a license with the song writer(s).

Then comes reality, where the finished product (apparently) included samples / vocal samples from the original work. That is a very different situation, and one that the original artist can (and often will) opt out of. There is no compulsory license for sampling, and thus it’s entirely at the discretion of the original sound recording artist (not the song writer) as this is a license with the performer(s).

I think what happened here is that when Ocasek heard the finished product and realized that his (or other bandmates) musical performance had been sampled, he just said no AS IS HIS RIGHT TO DO SO. It’s not censorship, Toledo could (and did) do the song without the samples. With a little extra effort, he has created something way more original, which should be the goal all along.

So rather than get mad at Ocasek, get mad at Toledo. He tried to cut corners and got caught – it’s his fault. No censorship here, just stupidity and ignorance of licensing.

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