Zappa Threatens Zappa Over Zappa Plays Zappa

from the stupid-family-ip-disputes dept

Another week, another story about the abuse of intellectual property. This one, like many, involve the "estate" of a famous, but deceased, creator. In this case, it's the estate of Frank Zappa, which apparently is managed by two of his four children: Ahmet and Diva. The other two children are beneficiaries of the estate, but not trustees. The issue here is that one of the other siblings, Dweezil Zappa, wanted to go out on tour under the name "Zappa Plays Zappa" in which he plays songs by Frank Zappa. Sounds reasonable... and, in fact, he's been playing under that moniker for a while. Except, this time, Ahmet has said that it's not allowed and forced Dweezil to change the name to "Dweezil Zappa Plays Frank Zappa" which is not nearly as catchy.

The intellectual property claims made by Ahmet and the Zappa Family Trust are mostly not based in any actual US law. Here's the way the NY Times describes it:
This month, the Zappa Family Trust, which owns the rights to Mr. Zappa’s music, informed Dweezil that he did not have permission to tour as Zappa Plays Zappa — the name is a trademark owned by the trust — and that he risked copyright infringement damages of $150,000 each time he played a song without proper permission.
The trademark claim makes at least some sense. The estate does, in fact, hold a trademark (78938430) on "Zappa Plays Zappa," which was registered back in 2007 and covers live music concerts. Late last year, however, it appears that Ahmet and the Zappa Family Trust filed for two more trademarks on the phrase: one to cover various apparel and one for musical recordings. It appears this may be the root of the issue here. However, Dweezil claims that he's already licensed the Zappa Plays Zappa brand for his concerts from his now deceased mother, claiming he paid her "an exorbitant fee."

Apparently, some of the complaints here stem from disagreements over payments from merchandise sales on this tour and who gets the money.

But the really nutty part of all this is the copyright part. The claim that he risked $150k each time he played a song is just nuts. First of all, even if it was infringing (and it's not, as we'll explain in a minute), the law actually provides only a maximum of $150k "per work infringed" not "per act of infringement." It's a fine line distinction, obviously, but it's worth noting. But, either way, it's dumb because Dweezil isn't infringing.

As we've discussed probably hundreds of times here at Techdirt, anyone can cover another artist's song. If you're doing a recording, you just need to pay compulsory mechanical licenses, but if you're just performing it live, it's covered via the venue's blanket performance licenses with ASCAP or BMI (with Frank Zappa, it's ASCAP). Except... the Zappa family wants the world to believe that the law there does not apply to them. Rather, they're playing fast and loose with some tricky definitions. Section 115 of the Copyright Act is about how the compulsory licensing works, and it has an adjective that the Zappas are trying to turn into a loophole:
In the case of nondramatic musical works, the exclusive rights provided by clauses (1) and (3) of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section.
"Nondramatic." Historically, this has been interpreted by many in the copyright space (perhaps reasonably) to say that compulsory licensing a la ASCAP or BMI can't be used for putting on a musical. Instead, for a musical, you do need to negotiate directly with the composers/publishing rights holders. A somewhat murky area of copyright law has grown up around this which is sometimes referred to as "grand rights," despite no such phrase appearing anywhere in the actual law, and that has resulted in some amount of confusion. If you really want a deep dive on grand rights, this article is a pretty good start.

But, again, grand rights (whatever they may actually be) only apply to "dramatic performances," which generally means plays and musicals. That's got absolutely nothing whatsoever to do with Dweezil Zappa going on tour as (basically) a cover band of his father's work. But don't tell that to Ahmet Zappa:
But the most contentious part of the dispute is over the minutiae of music licensing, an area in which the Zappa estate has long taken controversial stances. The family trust argues that for a show consisting largely of Frank Zappa’s music, performers cannot rely on the standard performing-rights licenses that music venues typically get from agencies like Ascap or BMI, but instead need special permission from the estate for “grand rights,” a term that usually applies to theatrical presentations.

Gail Zappa and Ascap pursued a number of bands under this theory, with mixed success. Project/Object, a well-known Zappa tribute group, had some of its shows canceled by clubs that had received legal letters, but Andre Cholmondeley, a member of the band, said that the group was advised by a lawyer that it did not need a special license, and so has never gotten one. “We simply adhered to U.S.A. law,” Mr. Cholmondeley said in an email.
The NY Times article, thankfully, quotes a copyright lawyer, Conrad Rippy, who explains why grand rights don't apply here at all:
“Is it performed in a place where you generally would perform a theatrical work? Are people wearing costumes? Does it advance a narrative story line?” Mr. Rippy said. “The closer you get to answer those questions ‘Yes,’ the more it looks like that’s a grand right. A tribute band playing a Frank Zappa song in a club meets none of those tests.”
So, yeah, the whole "grand rights" claim is ridiculous -- and as with so many intellectual property disputes involving the heirs of famous artists/creators, this seems to be yet another case where it's just family members squabbling over how to divvy up the spoils, and using obscure intellectual property laws to try to advantage themselves over others. And, in the end, all it really seems to do is tarnish the legacy of those creators.

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  • identicon
    Glenn, 3 May 2016 @ 8:47am

    Life's tough when you're greedy but have no talent for performing. Those who can, do. Those who can't, sue their family members to try to stop them from doing.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 May 2016 @ 8:49am

    Every article I read about the conduct of the estate and/or family of a deceased artist, it just gives more fuel to the argument that copyrights shouldn't be inherited or at least that estates should have bylaws that require public benefit rather than trustee/beneficiary benefit - you know, the purpose of copyright.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 4 May 2016 @ 12:13am

      Re:

      I say this a lot, but I'm a fan of the idea that copyright should be short (15-20 years), and can be renewed by the artist and only the artist up until his death. Once he dies, the remaining copyright can be inherited by the family, but nobody can renew it after the latest period's up.

      That gets rid of most of the current problems associated with the current system (orphaned works, near-infinite corporate-owned copyright, feuds such as the above, retroactive robbing from the public domain), while retaining the copyright for the artist should he wish it and the ability for the family to get something if the artist dies before he can invest his income or before success hits.

      reply to this | link to this | view in chronology ]

      • identicon
        Wendy Cockcroft, 5 May 2016 @ 7:50am

        Re: Re:

        I'm increasingly of the opinion that, since copyright is being co-opted to act as life assurance, life insurance, and a family trust fund, why don't record companies and publishers provide those financial services as part of a package when signing up an artist or band?

        There's no reasons why artists' unions can't offer such a service — that's what unions used to do.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 May 2016 @ 8:50am

    Why Does It Hurt When IP?

    reply to this | link to this | view in chronology ]

  • identicon
    I.T. Guy, 3 May 2016 @ 8:52am

    Zappa's music sucked anyway. I tried to like it.

    "claiming he paid her "an exorbitant fee.""
    Seems Copyright also causes family members to forget where they came from.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 3 May 2016 @ 8:55am

    Get a family. Add money. Have the actual owner of things die. Watch it melt.

    It's been like this since humans recognized property as a thing.

    reply to this | link to this | view in chronology ]

  • icon
    SteveMB (profile), 3 May 2016 @ 9:03am

    Ultimately, the only thing that will stop this sort of nonsense is a "death penalty" (work matures into the public domain immediately) for particularly egregious attempts to abuse copyright law.

    reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 3 May 2016 @ 9:26am

      Re:

      Or, you know.. *any* punishment for abuse at all might help.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 May 2016 @ 1:57pm

      Re:

      That won't make a bit of difference. All it will do is ensure that lawyers get paid to argue about what constitutes "abuse."

      I like the idea of a literal death penalty - when the artist dies, all his work immediately enters the public domain. No assigning ownership to corps or kids either. You wrote it, you die, it is freed.

      That would have stopped prince from hoarding all of those recordings in his vault.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 May 2016 @ 9:10am

    If anybody asked me, I would say that the one in this story who is truly promoting the progress of the arts is the one who is actually performing music. The other people are just being ogres.

    reply to this | link to this | view in chronology ]

  • icon
    Derek Kerton (profile), 3 May 2016 @ 9:50am

    Working

    Wow. Usually this "descendants of musicians" stories revolve around a cast of ne'er-do-wells who pick through the ashes of their ancestors for the family jewels.

    But this case offers a neat contrast:
    One descendant wants to actually WORK for his spoils, i.e. literally sing for his supper, while the others want to prevent him from actually performing art that the paying public will enjoy.

    Ahmet: "No, Dweezil. Don't perform and create new value. Just get back here and pick through these ashes with us."

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 May 2016 @ 1:17am

      Re: Working

      Oh they don't want to prevent him from actually performing art, they just feel that they deserve a cut of what Dweezil gets paid for working. Because, copyright.

      reply to this | link to this | view in chronology ]

  • icon
    Nathan F (profile), 3 May 2016 @ 9:52am

    This makes no sense! I thought Copyright was there to enrich the creators heirs after their death? How could Dweezil's siblings even THINK about denying him his hard earned residual income? Think of the children for God's sake!

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 3 May 2016 @ 10:01am

    Zappa Threatens Zappa Over Zappa Plays Zappa"

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 3 May 2016 @ 10:04am

      "Zappa Threatens Zappa Over Zappa Plays Zappa"

      Take two. I really do think hitting [ENTER] in the subject field should take the user into the comment field...or at least give a warning that there's no comment.

      I was really hoping this was Zappa performance art using the Intellectual Property legal system.

      Disappointed, Zappas. Disappointed.

      reply to this | link to this | view in chronology ]

      • identicon
        Orpan2 (profile), 4 May 2016 @ 9:10am

        Re: "Zappa Threatens Zappa Over Zappa Plays Zappa"

        Playing the Intellectual Property legal system will NEVER sound as beautiful as Zappa Playing Zappa.

        Dweezil, you can just call your tour, 'Zappa Plays Himself' now, my friend! Your great performances are one thing your Dad is smiling about.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 May 2016 @ 10:28am

    Zappa plays Zappa...

    As a trademark, if ya don't use it for three years, an argument can be made that you lose it. So... who has used "Zappa plays Zappa" these last three years?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 May 2016 @ 11:27am

    Nothing Dweezil does will add value. Frank sucked. Dweezil doesn't even rise to that level. Just saying.

    reply to this | link to this | view in chronology ]

  • icon
    Richard (profile), 3 May 2016 @ 12:21pm

    What the Dickens?

    On behalf of the estate of Charles Dickens I claim $150k damages for the title of this post which is clearly infringing on the "Jarndyce v Jarndyce" case in Bleak House.

    Yes I know that:
    1. I've got no legal connection to the estate of CHarles Dickens
    2. Dickens' work is out of copyright
    3. There is no copyright claim on vague similarities.
    4. There is no copyright in titles.

    But then the legal shortcomings of my claim aren't that much greater than those reported in the article and the legal problem with their case didn't bother them so...

    reply to this | link to this | view in chronology ]

  • identicon
    Craig Maloney, 3 May 2016 @ 2:16pm

    Likely fallout from the Zappa Kickstarter Documentary

    I think this is related to blowback from Dweezil and Moon Unit getting upset with being associated with the Zappa Family Trust's Kickstarter for the upcoming "Who the F@#$ is Frank Zappa" (http://www.jambase.com/article/zappa-family-divided-alex-winters-kickstarter-campaign).

    Expect this to get uglier.

    reply to this | link to this | view in chronology ]

  • identicon
    Matthew A. Sawtell, 4 May 2016 @ 5:23am

    So after a couple of more decades of trying to wring a couple more bucks, Frank Zappa (and his family) will be nothing more than a couple of minor footnotes in history at best to most of the general world...

    Nice way of 'preserving his memory' kids.

    reply to this | link to this | view in chronology ]

  • identicon
    Digitari, 4 May 2016 @ 5:34am

    history repeats

    we can only hope....


    "..some stupid with a flare gun, burned the place to the ground......

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 May 2016 @ 7:46am

    If only there was a master satirist and iconoclast around who could give this story, and the ZFT, the ridicule they so richly deserve.

    reply to this | link to this | view in chronology ]

  • identicon
    Fellow Orphan, 4 May 2016 @ 8:53am

    Once Mom is Gone

    Dweezil, Sorry to hear about your Mother dying.

    My Mom was the hub of our family. Seems like a whole lotta love died amongst my siblings when she went.

    I saw your show, 'Zappa Plays Zappa' three times and just want to say,Thank You. You are truly carrying on your Father's Trust. Ahmet, Come On, Man..

    reply to this | link to this | view in chronology ]

  • identicon
    Motovet51, 4 May 2016 @ 12:16pm

    The Dweez!

    Caught your show last night in Ridgefield last night, Dweezil. Now I know why you weren't playing some of our favs. You have a right to be 'down', but still put on a hell of a show! (The closing medly was amazing!) I saw Frank in the "Warner Brothers SUCKS era...." I can hear his voice, opining about this matter, "ZFT suuuuucks...."

    reply to this | link to this | view in chronology ]

  • identicon
    Luis Misiara, 4 May 2016 @ 5:29pm

    I'd say this needs an update

    Ahmet published a very interesting note on the matter. Some facts disclosed by Dweezil may not be facts at all. I don't know for sure, of course, it's one man's word against another's, but I guess I'm glad I didn't start judging either brother from the first articles that popped up.

    https://www.facebook.com/notes/ahmet-zappa/an-open-letter-to-my-brother/10153667213097309

    reply to this | link to this | view in chronology ]

  • identicon
    Paul Carr, 5 May 2016 @ 2:59pm

    Grand Rights

    Good article. If anyone is interested, I published an article on all of this a number of years back. You can get details here

    https://paulcarr.org/2016/04/29/frank-zappa-and-grand-rights-again/

    reply to this | link to this | view in chronology ]

  • identicon
    Jose100, 21 May 2016 @ 7:23am

    Zappa Theater

    At Anonymous Coward. Saying musicians suck. Frank sucked, Dweezil sucks worse. Saying bad things isn't going to win you any points here. You did pick your moniker right. You truly are an Anonymous Coward.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 May 2016 @ 11:39am

    I have been waiting for an opportunity to address the business doings of the ‘Zappa Family Trust’ to those who would never know . Your blog article opens a door for me.
    I wish the best for the current Zappa Family Trust . It just fell into the wrong hands when Gail Zappa took onto herself to run the Zappa empire. Bad medicine leads to further complications down the road. And Gail Zappa was not what the doctor ordered.
    I played with the Grand Wazoo and the Mother’s of Invention (also referred to as the Petit Wazoo) during a great part of 1972. Frank recorded all the concerts and the ‘Zappa Family Trust’ released recordings from these two groups 34 years after, without informing me ( as well as other musicians I spoke to ) and without any payment whatsoever to me (nor to the other musicians whom I spoke to ). I had contacted Gail Zappa by mail at the time of the first release of the Mothers of Invention ‘ Petit Wazoo’ CD :  "Imaginary Diseases " 2006 and she responded saying that the musicians would be paid “something” in time. They were just empty words. Zero cents for this recording and for the two other CD’s ( which I’m on) which followed : "Zappa Wazoo"2007  and “Zappa-one shot deal” 2008
    Frank Zappa would be the last person to support such disrespectful dealings of this nature . So the ‘Zappa Family Trust’ can complain of how unfair the music business has been to them from the outside as well as from the inside, but they should wise up to how they themselves had dealt with others who have shared in the Zappa journey.
    As far as other artists performing Zappa’s music, including the Zappa family, musicians have always been inspired to take artistic license in interpreting works and songs of composers and they should have the right to do so.
    Let the the original compositions as they were written-orchestrated-performed and recorded by Zappa stand alone. If one wants to hear how Zappa performed his own music, then the listener should discover Zappa’s music by Frank Zappa : by listening to the voluminous sound recordings of his that exist. You cannot seperate his music from the man.

    If interested, open the PDF link to get a close insight into the biz dealings I had with Gail Zappa in our e-mail conversations pertaining to the above blog comments I made .
    http://bit.ly/27RosGT

    reply to this | link to this | view in chronology ]


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