Last week, as you may or may not have heard, a guy named Jack Ely passed away at the age of 71. The name may not be that familiar, but the voice almost certainly is. Jack Ely was -- fairly briefly -- the lead singer of the Kingsmen, and happened to do a cover song in a single take under poor conditions, that created one of the most memorable songs in rock and roll history, also known as Louie Louie:
You know the song. You also know the lyrics are completely indecipherable. However, with Ely's death, there's been renewed attention to the fact that the FBI spent nearly two years investigating the damn song. It is just as ridiculous as it sounds, but the FBI has released the file on its investigation and it's a rather hilarious read. It turns out it wasn't just the FBI, but involved the FCC and the Post Office:
Apparently, the government was being inundated with claims from people (some of which you can see in the file) insisting that they had heard the indecipherable lyrics were actually "obscene." If you want to see the supposedly "obscene" interpretation of the lyrics, there's one set on page 14 [pdf] of the document, though I warn you, even the falsely heard "obscene" lyrics are not particularly obscene by today's standards (and I'm at a loss as to how they're that obscene by the standards of 1963, frankly). On page 22, there's another, mostly different set of falsely heard "obscene" lyrics that at least includes the word "fuck." On page 35, yet another version with both "fuck" and "bitch."
There are lots of documents about the FBI playing the record, repeatedly, at different speeds, and all coming to the conclusion that you and I and everyone else already knows: the lyrics are basically indecipherable.
There are a few more times this determination was made, in part because after the FBI had already gone through the whole investigation, J. Edgar Hoover reopened it after a concerned parent wrote him a letter -- complaining that whether or not the real lyrics are obscene, it doesn't matter because teens can hear the obscene lyrics and "every teenager in the country 'heard' the obscene not the copywritten lyric." There are also letters to Attorney General Robert Kennedy that include lines like "these morons have gone too far," and "This land of ours is headed for an extreme state of moral degradation what with this record, the biggest hit movies and the sex and violence exploited on T.V. How can we stamp out this menace? ? ? ?" Really.
But, in the end, as everyone knows, the song is simply indecipherable, rather than obscene.
And that's because the band was in a tiny studio with just three mics, played a single take of the song and Ely had to scream at a microphone on the ceiling trying to have his voice heard above the instruments (a task he basically failed at doing). But, the idea that there was a mystery to the lyrics is kind of ridiculous for a few reasons, the first one being that the song is a cover song, and the FBI could have easily listened to a few of the earlier versions of the song, such as the original by Richard Berry, or another popular one by Rockin Robin Roberts and The Fabulous Wailers (the one that inspired the Kingsmen to do the cover). You can hear both those and another one right here. Their lyrics are a lot more intelligible in all of those versions, and you can pretty quickly tell that the lyrics to the Kingsmen version is supposed to be the Rockin Robin Roberts version.
Also, as Marc Randazza notes, it took nearly two years for someone in the FBI to think, hey, isn't the song registered at the Copyright Office down the street? Maybe we should send someone over there to find out what it says? This was after the FBI had reached out to the record label (who gave them the accurate lyrics) along with the original author of the song, Richard Berry, who told them the lyrics. Oddly, apparently, the FBI never bothered to ask Ely himself what he sang, though I'm sure he would have said the same damn lyrics, which are below:
Still, what a bizarre story of moral panics, FBI and governmental overreach, the First Amendment... and a bit of copyright thrown in just for fun.
Oh, and as a general postscript, for all the hand wringing about possible obscenities in the song... there actually is one. Just not in the lyrics. At 54 seconds into the song, the drummer Lynn Easton actually fumbled his drumsticks banging them together and yells out "fuck." The FBI never caught on to that, but you can actually hear it if you listen...
A few months back, we discussed how the Supreme Court was going to hear the case of Anthony Elonis, who had been convicted for making "threats" on Facebook directed at his ex-wife. Elonis, who claims to be an aspiring rap artist, says they were just lyrics, and he wasn't making any actual threat. On Monday, the Supreme Court had the oral arguments, and it gave Chief Justice John Roberts a chance to demonstrate his rapping skills [pdf] by quoting Eminem. The government's lawyer, Michael Dreeben tried to play it off as different, because people would be entertained by Eminem, but that just raised more questions:
CHIEF JUSTICE ROBERTS: What about the language at pages 54 to 55 of the Petitioner's brief? You know, "Dada make a nice bed for mommy at the bottom of the lake," "tie a rope around a rock," this is during the context of a domestic dispute between a husband and wife. "There goes mama splashing in the water, no more fighting with dad," you know, all that stuff.
Now, under your test, could that be prosecuted.
MR. DREEBEN: No. Because if you look at the context of these statements
CHIEF JUSTICE ROBERTS: Because Eminem said it instead of somebody else?
MR. DREEBEN: Because Eminem said it at a
concert where people are going to be entertained. This
is a critical part of the context. It wasn't as if he
stated it to her in private or on a Facebook page after
having received a protection from abuse order. It
wasn't as if he appropriated a style of rap that wasn't
anything that he had been doing previously in the
marriage and all of a sudden tried to express violent
statements that way.
In the context, I think any reasonable
person would conclude at a minimum that there is
ambiguity about these statements being a serious
intention of an expression to do harm. And this is
critical here. We're talking about an area in which if
the jury finds that it's ambiguous, it has to acquit.
It has to conclude that this is how these statements
should be interpreted.
CHIEF JUSTICE ROBERTS: Well, yes, but you're dealing with some very inflammatory language. The question is whether or not the jury is going to be
swept away with the language as opposed to making the
subtle determinations you've been talking about.
Justice Samuel Alito seemed ready to toss the First Amendment right out the window because, apparently, anyone can use it:
Well, this sounds like a
roadmap for threatening a spouse and getting away with
it. So you put it in rhyme and you put some
stuff about the Internet on it and you say, I'm an
aspiring rap artist.
And so then you are free from prosecution.
This reminds me of the claims about how a "source protection" law for journalists wouldn't be any good because anyone can claim to be a journalist. The answer, again, should be so what? Beyond the fact it's crazy unlikely that everyone who is actually threatening their ex-wives are going to make it rhyme and claim it's just verse, the actual issue at law here makes this question totally irrelevant. The issue is whether or not there was a "true threat" at all, and if Elonis actually intended to do anything or if he was just mouthing off.
And, indeed, the court does wrestle with what the hell "true threats" mean, with Justice Kennedy, in particular, finding that concept (from the Supreme Court of the past) to be a particularly unhelpful phrasing. Right out of the gate at the beginning he noted:
I'm not sure that
the Court did either the law or the English language
much of a good service when it said "true threat." It
could mean so many things. It could mean that you
really intend to carry it out, A; you really intend to
intimidate the person; or that no one could possibly
Meanwhile, Justice Ruth Bader Ginsburg noted the problem of showing someone's mindset:
How does one prove what's
in somebody else's mind? This case, the standard was
would a reasonable person think that the words would put
someone in fear, and reasonable people can make that
judgment. But how would the government prove whether
this threat in the mind of the threatener was genuine?
Again, I don't think anyone can (or should) prove what's really going on in someone's mind, but it seems like it's perfectly reasonable to explore if there is any other evidence to support the idea that someone is out to do someone harm, that goes beyond just posting about it on Facebook (which, frankly, seems like a really dumb way to plan out how to harm someone, seeing as you've made it pretty clear you've done any such harm). But, even that doesn't fully cover the issue in the case, which focused more on whether or not Elonis wanted his wife to be afraid, rather than if he was actually intending to do her harm (and, yes, there's a fine line mixed in there somewhere).
No doubt, Elonis did an awful lot of things that were clearly designed to upset his ex-wife. But how much of that is protected online speech? As always, reading the tea leaves from oral arguments is not a wise move, so it's tough to say which way the Court will actually decide. But, as Sarah Jeong recently noted in a great writeup for The Verge, this case could have a widespread impact on issues related to online harassment and bullying online, no matter which way the ruling goes. That article compares some of Elonis' "lyrics" and actions with the threats often posted by internet trolls threatening to kill or rape people they disagree with -- and, further, notes that the increased discussion around these issues may play into how whatever test the Court settles on will be applied in practice. In other words, this case, no matter how it's decided, is likely to have a widespread impact.
WFIE 14 News is reporting that 31-year-old James Evans of Muhlenberg County, Kentucky was arrested on terroristic threatening charges after he posted lyrics from a song by the heavy metal band Exodus on Facebook. On August 24, Evans posted the following quote from the song “Class Dismissed (A Hate Primer)”, “Student bodies lying dead in the halls, a blood splattered treatise of hate. Class dismissed is my hypothesis, gun fire ends [the] debate.” Shortly thereafter, he was taken into custody by authorities under the rationale that his posting constituted a threat “to kill students and or staff at school,” according to his arrest warrant.
Evans ended up spending 8 days in jail for exercising his First Amendment rights. Terroristic threat charges haven't been dropped but his case has been deferred for six months. He's also been ordered to undergo a mandatory mental health evaluation -- all for posting lyrics written by someone else.
According to Evans, even some of the officers he spoke to felt there was no reason he should have been arrested. But the statement made by (why?) the county's school resource officer seems to indicate this response was perfectly justified. Resource officer Mike Drake said "multiple agencies" received calls about Evan's post. When you have multiple complainants babbling about school shootings, you really can't just sit around the precinct doing nothing. What you can do, however, is get a little context before booking someone on criminal charges. Turning someone into a criminal simply because they showed a little lack of judgement isn't the appropriate response. Beyond that, there's the First Amendment -- which doesn't cover actual threats but definitely protects stuff a bunch of people mistakenly viewed as a threat.
Honestly, if there's anything more stupid than the music industry and song-writers going after lyrics sites, I can't imagine what that thing might be. We've talked in the past about how short-sighted it is for the profiteers of interest in songs targeting websites that do little beyond promoting interest in those same songs. Even the most obviously single-purpose lyric site that does nothing but post song lyrics is likely innocuous at worst and beneficial to all involved at best. Yet they're constant targets. Blech.
But sometimes this goes beyond blinder-vision and moves into a complete mis-targeting. That seems to be the case with the inclusion of RapGenius.com on the National Music Publisher's Association hitlist of sites from their press conference on Monday. The NMPA insisted all sites immediately pull lyrics off the site. RapGenius, for those of you not in the know, is much more than a lyrics site. But, according to one guy that I think I've heard of before:
David Lowery, a veteran of the bands Camper Van Beethoven and Cracker who has tracked the sites in his research for the University of Georgia, says they are big business.
“Unlicensed lyric sites are largely ignored as copyright infringers, but in fact these sites generate huge web traffic and involve more money than one might think,” he said. “The lyric business is clearly more valuable in the Internet age.”
What?!? First, it's hard to square these sites being ignored with their constantly being targeted and sued. Second, to understand what a site like RapGenius is and does, you actually have to look at the site. A cursory glance shows that the entire point of the site is to foster a conversation and commentary around lyrics (and more), their meaning, and their interpretations. This is done through user annotations, fostering a back and forth that often times includes the songwriters themselves. As RapGenius founder Ilan Zechory notes:
“Rap Genius is so much more than a lyrics site! The lyrics sites the NMPA refers to simply display song lyrics, while Rap Genius has crowdsourced annotations that give context to all the lyrics line by line, and tens of thousands of verified annotations directly from writers and performers. These layers of context and meaning transform a static, flat lyric page into an interactive, vibrant art experience created by a community of volunteer scholars. Furthermore, music is only a small part of what we do. Rap Genius is an interactive encyclopedia for annotation of all texts — anyone can upload and annotate texts relating to music, news, literature, religion, science, their personal lives, or anything else they want,” he concluded.
So, the questions are pretty obvious. First, why is the NMPA going after a site that is clothed in several layers of Fair Use armor? And second, why is an association that is supposed to protect the rights of all their songwriting members going after a site that many of them appear to enjoy using. Finally, what the hell kind of good is supposed to come of any of this? I'm not sure what the end-game is supposed to be for the NMPA, but this looks like a massive swing-and-a-miss to me. Oh, and it should be noted that people appear to have posted Techdirt articles to RapGenius as well, and everyone at Techdirt thinks that's great. We'd actually be really pissed off if some misguided attempt to squeeze money out of the site meant that our own content was held back and less widely distributed.
from the 'terrorist'-gambit-fails;-adds-+20-to-Cammy-Dee's-street-cred dept
Cameron D'Ambrosio, the teen charged with "communicating terrorist threats" via some daft rap lyrics posted to his Facebook profile, is apparently no longer a threat to the people of Methuen, MA, and parts beyond. Facing a possible 20-year-sentence for his inclusion of such explosive terms as "White House," "murder charge" and "Boston bombinb" in his one-man online rap battle, D'Ambrosio has been held without bail since May 2nd. As of Thursday night, however, D'Ambrosio is free to killterrorize rhyme again. And, as an added bonus, he now has something in common with many of the rappers he clearly aspires to be: time served.
An Essex County grand jury declined Thursday to bring an indictment against Cameron D’Ambrosio, 18, so prosecutors will formally file a motion to drop the charge of making a bomb or hijack threat, said Carrie Kimball Monahan, a spokeswoman for the district attorney.
The D.A.'s office has declined to comment on the grand jury's decision, and D'Ambrosio and his lawyer are probably saving some choice words for a press conference. But that hasn't stopped the man behind this overreaction and the ensuing farcical approximation of criminal "justice." Here's what Police Chief Joe Solomon had to say in his press release (delivered via Facebook).
"I have just been advised of the Grand Jury decision from earlier today, where the grand jury did not issue an indictment on the high school threats case. Although we disagree with the Grand Jury's decision we respect it. Several judiciary levels have confirmed the probable cause in this case as it has worked it's way through the criminal justice system. We will continue to take all threats against our community seriously and will always utilize due diligence in our investigation."
Thank you Chief Solomon
A few things to note:
1. Suddenly it's only a "high school threats case," rather than the much more dangerous-sounding "communicating terroristic threats."
2. Shouldn't the "probable cause" have been determined before D'Ambrosio was even arrested?
Matthew Segal, the legal director at the ACLU of Massachusetts – who has worked on similar first amendment cases, though not this one – says it does not appear that D'Ambrosio's Facebook post rose to the level of a "true threat" warranting an investigation, which the grand jury has found as well. Segal notes that D'Ambrosio's words didn't target anybody or anything specifically, which the Methuen police have also acknowledged.
D'Ambrosio still has one more date hanging over his head -- June 27th -- during which prosecutors may decide to bring other charges. This seems unlikely considering the District Attorney's office has already announced it will not be pursuing this case further. Just in case, supporters of D'Ambrosio, led by the Center for Rights (whose Free Cameron petition gathered over 90,000 votes), will be on hand to show their support for Cameron -- and the First Amendment.
“I believe the behavior here has been escalating,” Judge Lynn Rooney said after reviewing a half dozen records of police and probation reports prosecutors submitted at the hearing. “And it’s very troubling.”
The reports included D’Ambrosio’s arrest in June after a fight over $20 with his older sister, who called police after locking herself in her room. During the argument, D’Ambrosio pushed her and, after she locked herself in her bedroom, threatened to stab her, according to the arrest report from June 21.
Police said D’Ambrosio admitted he said that, but said he was just upset. The case was continued on Oct. 17, and dismissed on April 17, exactly two weeks before he was arrested for the Facebook post.
Rooney said she also was troubled by a police report from November 2011, which said D’Ambrosio threatened to shoot two eighth-grade students. Police said he admitted to making that statement, but was only kidding.
D'Ambrosio's past is far from squeaky clean and he seems to have acquired a reputation for threatening others. (He also seems to let his better judgement take a backseat to mouth/keyboard -- the officer who arrested Cameron after his Facebook post knew him from a previous incident, one in which D'Ambrosio was hospitalized after being beaten so severely by another student that his spleen ruptured. This beating was apparently prompted by some Facebook comments D'Ambrosio directed towards the other student's girlfriend.)
So, D'Ambrosio clearly knows how to make specific threats directed towards specific individuals. But it took a vague "threat," delivered in the form of a horrible/horrific "rap" to finally get him locked up, threatened with a 20-year sentence and denied bail. Even Sheriff Joe Solomon, who went to great lengths to read between the lines of D'Ambrosio's Facebook post and attribute him with things he didn't actually say, admitted the post contained no specific threats.
I do want to make clear he did not make a specific threat against the school or any particular individuals but he did threaten to kill a bunch of people and specifically mentioned the Boston Marathon and the White House.
The first part of Solomon's sentence is true -- D'Ambrosio made no specific threats. The second part? Not so much. For clarification, here's the entire Facebook post currently being declared a "terroristic threat" by the state. This includes some additional verbiage (in bold) that wasn't contained in previous reporting.
All you haters keep my fuckin' name outcha mouths, got it? what the fuck I gotta do to get some props and shit huh? Ya'll wanme to fucking kill somebody? What the fuck do these fucking demons want from me? Fucking bastards I ain't no longer a person, I’m not in reality. So when u see me fucking go insane and make the news, the paper, and the fuckin federal house of horror known as the white house, Don’t fucking cry or be worried because all YOU people fucking caused this shit. Fuck a boston bominb wait till u see the shit I do, I’ma be famous rapping, and beat every murder charge that comes across me!
Rapper addresses haters, makes grandiose claims, plays up street cred with criminal references. Positively unremarkable, except that multiple students reported this status update to school administration. This doesn't necessarily mean these students felt threatened. It's equally believable that D'Ambrosio's mouth, attitude and behavior made him less than well-liked at his school.
Sheriff Solomon then took what little was offered and ran with it, leading us up to this point. But you have to wonder where state prosecutors will go with this as it heads through the judicial system. D'Ambrosio's lawyer points out there's not much here for the state to work with.
DuBosque argued in court that D’Ambrosio was not a danger because he was not threatening specific violence, and police found no explosives, weapons or other writing about violence when they searched his home. The post started out as lyrics, he said.
Because D’Ambrosio did not threaten to use a weapon in a specific place or against a specific person, the post did not meet the state statute’s requirements, DuBosque said.
The statute D'Ambrosio is charged with violating will need to be stretched to cover a "threat" that fails to meet most of the specifications. But once the word "terrorist" is introduced into the mix, specificities tend to suddenly become vague "guidelines" as the law is bent, beaten and painted to match.
On the plus side, D'Ambrosio has more than a few citizens working towards preventing both the First Amendment and the tactless rapper from going down the drain. A petition created by the Center for Rights and Fight For The Future asking for D'Ambrosio's release has gathered over 70,000 signatures. The local Center for Rights has also criticized the judge's decision to deny bail (as well as the charge itself), pointing out that D'Ambrosio is facing a stiffer sentence than if he had actually assaulted someone.
As I stated previously, I don't have a problem with something like this being investigated. But the end result should have been little more than "loudmouth teen says stupid shit," and perhaps some court-ordered counseling or supervised probation, considering his past behavior. Instead, we have a high school student facing a 20-year sentence for saying the wrong thing ("Boston bombinb" [sic]) at the wrong time (too soon).
from the i'd-say-everyone's-familiar-with-this-song,-but... dept
So, it's come to this: the heightened paranoia surrounding all things kid- and school-related, post-Newtown (but also post- other school shootings as well) has managed to turn nearly everything into a potential menace. It's one thing to be cautious and alert for warning signs or veiled threats. It's quite another to turn a recorded rendition of the "Fresh Prince of Bel-Air" theme into a police matter.
First, from the increasingly stupid United States of America, a story of how a teen’s life got flip-turned upside down. You see, he was just on the playground where he spent most of his days, minding his own business. You know, chilling out, maxing, relaxing all cool and sometimes with this friends he liked to be shooting some b-ball outside of the school.
WAIT. DID HE JUST SAY SHOOT AND SCHOOL IN THE SAME SENTENCE? ARREST HIM! Once you’re done laughing, know that that’s exactly what happened to 19-year old Travis Clawson because a doctor’s office called his voicemail to confirm an appointment, heard the above line, thought he was shooting people outside the school and called cops. Who arrested him first, then spent the 20 seconds it takes to realize it’s the theme song from Fresh Prince of Bel-Air. No word on whether Carlton showed up to dance and everyone laughed at him.
A few things to note:
1. This was the teen's voicemail greeting. It wasn't as if he was calling the school and making threats. It's highly doubtful that criminals (or aspiring criminals) are leaving records of their future exploits as voicemail greetings. Gideon doesn't seem convinced this is a thing.
Also: is this a thing now? People leave notes of their criminal intent as voicemail messages? "Hi, you've reached my cellphone. I'm unavailable right now because I'm robbing that Stop-n-Go on Orchard and Willard. Leave me a message and I'll get back to you when I get out in 5-20 years because I'm stupid enough to leave --- BEEP."
2. The police arrested the student for something that took likely less than a minute to explain. Couldn't this have been handled with a little in-person questioning, rather than escalating the situation immediately by arresting first, questioning second? I understand that the word "b-ball" could possibly be misheard as "people" and the receptionist probably did the right thing by notifying law enforcement, but it still seems as though this could all have been sorted out in a five minute discussion.
3. This isn't noted in Gideon's commentary, but the police had the teen's school (along with the rest of the district) go into lockdown mode while they searched for the Will Smith-quoting "gunman." From there, it gets even more ridiculous:
The call to 911 forced the entire district into lockdown for about 30 minutes and police said they detained the 19-year-old student for three hours while searching his locker, before determining that it was all one big misunderstanding.
Never mind what I said about point 2. I know it's often said that we should "err on the side of caution," but, seriously, three hours to "search a locker?" Obviously, no one bothered asking the teen anything about the message until they ran about 2:50 off the clock.
Officer Mike Natale says, "[The teen] was afraid and embarrassed." No kidding. I would imagine more of the first than the second. Three hours being detained by police while under lockdown and not being given any hint as to what started the whole debacle would make anyone, possibly even an actual criminal, "afraid."
In wxpi.com's story, the police officer states that the teen "had learned from his mistake" (towards the end of the video). Really? What mistake? There are plenty of mistakes in this story, but a teen recording one of the most well-known TV theme songs as an outgoing voicemail message isn't one of them.
For many years now, we've covered how music publishers have gone after all sorts of sites that post song lyrics, arguing infringement. As we've noted time and time again, this whole thing seems short sighted in the extreme. Lyrics sites don't take away from interest in a song, they only increase it. And, yes, publishers have different interests than the musicians or labels, but it still seems counterproductive to sue and take down sites that were increasing interest in the actual music, as lyrics sites do. Unfortunately, lots of lyrics sites have been forced offline because the rates the publishers want are insane. A few years ago, a bunch of publishers went after Brad Greenspan's LiveUniverse for its lyrics offerings. Greenspan -- who was associated with MySpace in the early days as its parent company Intermix's CEO -- has, well, a colorful history. He's spent many years stamping his feet about how Rupert Murdoch should have paid more for MySpace back in the day.
Unfortunately, colorful and extreme CEOs aren't necessarily what you want in a lawsuit that involves a number of important issues. From the look of it, Greenspan did a lot more harm to himself in this lawsuit with his actions, so it's little surprise that he lost and was told to pay $6.6 million a few weeks ago:
Greenspan went through three law firms. One withdrew, citing a "personality conflict." Another withdrew, citing nearly $85,000 in owed fees and a "breakdown in the attorney-client relationship." At times, he showed up in court, representing himself and failing to obey proper procedures in submitting motions. At other times, depositions were ignored upon "medical emergencies."
Later on, after the court ordered an injunction, Greenspan ignored it -- a big no-no. As a result, it's almost surprising that the final ruling was only $6.6 million. The judge, thankfully, more or less realized on his own that the $100,000 per song that the publishers were asking for was crazy talk. He specifically asked about what actual licensing rates would have been, "to avoid a ridiculously disproportionate damage award" -- even though statutory damages don't require any indication of "actual" damages. Of course, they still ended up with $12,500 per song for 528 songs, leading to the $6.6 million verdict embedded below.
The whole case, however, reminds us once again how shortsighted the legacy players in the industry are. They seek to get cash out of every single use, even if those uses make the overall work more valuable. The end result is fewer people engaging with lyrics. It's just too expensive, and that serves to generate less interest in the music as a whole. But, it gets some publishers a short term big check, and that seems to be the extent of strategic thinking in parts of the legacy industry these days: "how can we get them to pay us right now?" rather than "what actually makes the most sense?"
That may sound like an exaggeration, but it's not. Remember, when now-Sony Music (then Universal Music) boss Doug Morris basically made exactly that statement? When asked about increasing value to benefit down the road, Morris responded by telling a reporter that this just meant that:
"someone, somewhere is taking advantage of you."
The legacy music industry needs long term strategic thinking. And instead it just looks for who it can sue.
Peter Friedman alerts us to yet another ridiculous copyright claim (of which there have been a few) from a member of The Beach Boys. You may have heard that, last year, the Beach Boys' Smile album was finally released, despite being recorded in 1966. An artist, by the name of Erik den Breejen, found out about this, and he (a lifelong Beach Boys fan) set out to create a series of paintings inspired by the songs on the album. Sounds good, right? Art inspiring art. Not so much. After completing the works and getting set up with a gallery show to display the works, den Breejen reached out to Beach Boys lyricist Van Dyke Parks, who he figured would like to know about this. Turns out... that wasn't true. Instead, Parks shot back a cease-and-desist.
Instead of fighting back with lawyers, den Breejen and the gallery have approached Parks himself to try to negotiate some kind of out-of-court agreement. Parks was already credited in the exhibition’s press release and in a booklet den Breejen distributed at the gallery, but soon he could be considered a collaborator — entitling him to a percentage of the proceeds. (Van Dyke’s manager did not respond to a request for comment.)
Until the two sides settle their differences, the gallery has put on hold at least two sales inquiries
It's difficult to see how this is not fair use, but since we live in a world where fair use isn't determined until after an expensive court process, we'll never know in this case.
Update: Just some clarifications, as per the comments. Parks was a lyricist for the band, rather than a direct member. Separately the paintings do include lyrics from the songs, which should have been made clear. I don't see how either point really changes the overall analysis, however.
It's no secret that the James Joyce estate has been ridiculously overprotective when it comes to Joyce's copyright. Of course, a lot of Joyce's works are quickly approaching the public domain in various places (and some are already there), and so the estate may be losing its control. Still, it's nice to see that the estate finally "agreed" to one usage. Glyn Moody points us to the news that after an astounding 22 years of asking, singer Kate Bush has finally been allowed to use Molly Bloom’s famous soliloquy from Ulysses as lyrics for a song. She had first asked in 1989... and was denied. She wrote different lyrics instead, but kept asking the estate. Perhaps realizing that (in the UK) the work was going into the public domain next year, the estate finally relented.
Of course, the copyright defenders always claim that cases like this are someone being "uncreative" and "just copying" works. In fact, I wouldn't be surprised to see them argue that the world is better off because Bush was forced to come up with her own alternative lyrics. But if the song is really better off using Joyce's prose as lyrics here, doesn't that mean that the world was cut off from this cultural work for 22 years? Doesn't that seem like a problem from a cultural perspective? Especially for a law that's supposed to encourage more and better creative output? When, instead, it's used to censor that kind of creative output, shouldn't we all be concerned about what copyright is doing to culture?