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.

Filed Under: car seat headreast, cars, copyright, covers, fair use, music, ric ocasek, samples, transformative
Companies: matador records


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  • icon
    crade (profile), 25 May 2016 @ 9:00am

    Sorry, we did something new and interesting, and we were only licensed to do the usual expected boring crap.

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

  • identicon
    Anonymous Coward, 25 May 2016 @ 9:09am

    Not to be "that guy", but Benjamin Orr was the singer of the original, not Ocasek.

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

  • identicon
    I.T. Guy, 25 May 2016 @ 9:31am

    The Cars haven't been relevant for years and years. Even when they were... they weren't. The Cars and Candy O were the only 2 worth anything anyway. 7 "Albums" since 1978. They should have been glad someone remembered them as anything other than the track that played while Phoebe Cates removed her bikini top.

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

  • icon
    Wyrm (profile), 25 May 2016 @ 9:40am

    "we were working in full confidence that we had the legal side of it all worked out"

    Big mistake. The first rule of copyright law is that you never have it "all worked out".

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

  • icon
    TechDescartes (profile), 25 May 2016 @ 9:45am

    Just a Thought

    "There Is a Policeman in All Our Heads, He Must Be Destroyed"

    Next time, maybe just listen to that policeman.

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

  • identicon
    Anonymous Coward, 25 May 2016 @ 9:46am

    Rick who? What cars?

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

  • icon
    That Anonymous Coward (profile), 25 May 2016 @ 10:04am

    When everything is finally owned, nothing new can be created without getting the approval of the 500 people who own a piece of those 4 notes with these 3 words.

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

  • identicon
    Anonymous Coward, 25 May 2016 @ 10:25am

    So I'm confused. If it's always about the artists, which (if any) artists are benefiting from this whole snarfle?

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

    • identicon
      Anonymous Coward, 25 May 2016 @ 10:49am

      Re:

      The old and confused ones yelling 'get off my lawn' with a copyright stick in their hands because they don't like this new fangled music?

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

  • icon
    NoahVail (profile), 25 May 2016 @ 11:40am

    My son was telling me about this, the day his censored copy came in the mail.
    He also has a digital version of the original album.

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

  • identicon
    Anonymous Coward, 25 May 2016 @ 12:13pm

    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.

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

    • identicon
      Anonymous Coward, 25 May 2016 @ 1:52pm

      Re:

      That may be true and is a positive result in and of itself, but the fact remains that this artist could not express what he initially wanted to.

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

  • icon
    Ryunosuke (profile), 25 May 2016 @ 2:19pm

    up next, weird al sued for 30 years worth of work...

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

  • identicon
    Anonymous Coward, 25 May 2016 @ 2:36pm

    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.

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

    • icon
      Atkray (profile), 25 May 2016 @ 2:53pm

      Re:

      ^ This.....how may people who never heard of them would have at least looked into them and maybe bought something.

      I will admit though I'm surprised that Sting isn't involved because the title had "police" in it.

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

    • icon
      PaulT (profile), 26 May 2016 @ 1:13am

      Re:

      On the flip side, there's now a lot of people who had no idea who Car Seat Headrest was but might now check out his music. So, at least Ocasek's tantrum helped a later generation of musician even if he's now known as someone perfectly happy to destroy music he doesn't like.

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

  • icon
    John David Galt (profile), 25 May 2016 @ 3:40pm

    Speaking of Weird Al...

    I would suggest that Will Toledo just call his version a parody of the original. Then it's legal.

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

  • icon
    Whatever (profile), 25 May 2016 @ 6:34pm

    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.

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

  • identicon
    Anonymous Coward, 26 May 2016 @ 12:54am

    Will I be able to find the track on a torrent site? I imagine it has been dmca'd from utube before it arrived. Probably better than the original, and f___ the Cars anyway.

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


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