I’ve been writing about music clearance but the act of getting the legal permissions to use copyrighted content in your production applies not just to musical works but to art and literary works as well. Not taking the time to get the appropriate licensing can land you in legal trouble as ESPN has just found out.
Last year ESPN broadcast “The Bronx Is Burning”, a popular TV series created by their in-house production company ESPN Original Entertainment. The series portrayed the background events leading to the 1977 New York Yankees dramatic World Series run.
Included in the second episode, “Team In Turmoil“, was a full screen shot of Norman Rockwell’s painting “Bottom of the Sixth“. The painting depicts three umpires looking skyward as raindrops begin to fall. It is a classic Rockwell capturing a unique and wonderful baseball moment. The original painting hangs in the Baseball Hall of Fame in Cooperstown.
On May 3rd, the Associated Press reported that ESPN is being sued by Curtis Publishing Company, the owner of the Rockwell painting, for using the image without obtaining a license.
Curtis sent an e-mail to ESPN lawyers notifying them that ESPN did not have a license to use the painting and was committing willful copyright infringement, the lawsuit said.
The lawsuit seeks to bar ESPN from rebroadcasting the series until it withdraws use of the painting. In other words, until it removes any footage of the painting from the episode.
Compounding the problem for ESPN is that The Bronx Is Burning has been sold on DVD and VHS format. Recalling the unsold copies and destroying them and having to issue a new movie with the infringement removed will prove costly for the cable network.
The latest issue of UniqueTracks’ newsletter features an article I wrote that defines Music Clearance - the act of getting the permissions necessary to use music in your production. It also recommends some companies that will handle your music clearance problems when attempting to license a famous or even an obscure recording.
All Clear?
Music Clearance and Music Licensing
Every few weeks or so I’ll get a phone call with an inquiry that goes something like this…
I’d like to use Elvis Presley’s recording of ‘Don’t Be Cruel’ in my film. Can you help me do that?
Regretfully, beyond recommending some other companies to investigate, I am not much help in this regard. Though licensing music is our core business, UniqueTracks only licenses recordings that we have created in-house or that we control the publishing rights to.
What these folks are looking for is a firm that will do “music clearance” work for them. Yes, there are companies you can turn to when you are looking to obtain music licensing rights but have no idea where to turn. These companies will help you acquire the rights to use famous songs but they are even better at finding the rights for obscure songs. Music clearance companies are experts at finding the needle-in-the-haystack information that will eventually track down the song you’re interested in. They will then act as your advocate with the publisher and record company to try and get you the best pricing available.
Democratization of content
Democratization of information
Democratization of media
I’m noticing more and more use of the term “democratization” in articles about the media business.
The term is especially popular in discussions about social media. Social media, a relatively new term, has come to mean those Internet tools that facilitate the “wisdom of the crowd” model where meaning and value are derived through mass collaboration. Examples of social media sites would be such Web 2.0 stars as Wikipedia, Myspace, Facebook Digg, Flikr and Youtube.
Here’s an example from an article by Brian Solis, the owner of the Silicon Valley public relations firm FutureWorks PR.
Social Media is the democratization of content and the understanding of the role people play in the process of not only reading and disseminating information, but also how they share and create content for others to participate. It is the shift from a broadcast mechanism to a many-to-many model, rooted in a conversational format between authors and people.
Democratization, as I understood it, had to do with an authoritarian government moving towards a less oppressive, more open society. When applied to media or content, democratization has come to mean a move away from a perceived old and authoritarian media - the major TV networks, film studios, record companies and newspapers - towards a seemingly less oppressive, personally created environment provided by web technology where content is readily available, is free, and can be delivered based on ones likes and dislikes or even the likes and dislikes of one’s network of friends.
We are naturally attracted to words like democracy or democratization in the United States. It’s in our blood. We learn early on that democracy represents freedom. So when democracy is applied to terms like media and information, it’s easy to believe that this must be a good and positive thing.
My own feeling is that democratization can’t realistically be applied to information at all. By casting the media as authoritarian, the term can be used politically by those technologists who are trying to wrest power away from the established media towards their new Web 2.0 innovations.
Content is evaluated on quality, on how well it informs, entertains, teaches or illuminates truths. Using “popularity” as its measure is to greatly misrepresent it.
I enjoyed this blog post by Andrew Keen, author of last year’s controversial book The Cult of the Amateur. He points out in his blog post The end of the middle that democratization of media is in fact a falsehood and that, in reality, wealth and power are just being reallocated to new companies like Google, YouTube, Facebook etc.
Target Corporation has been using the Beatles classic Hello Goodbye in its recent TV advertising. One spot aired during last Sunday’s Grammy Awards broadcast. They have changed the word Goodbye to Good Buy morphing the song’s refrain into an ad slogan “Hello Good Buy, Hello Good Buy, Hello Good Buy….” The campaign is “Say Hello to Good Buys at Target”.
Hello Goodbye is a song from the Beatles Magical Mystery Tour album and was a number 1 hit for the Beatles in both the US and UK in 1967.
Licensing classic songs is attractive to advertisers (those with deep enough pockets) because they can then begin to trade on the cultural significance of the song. Hello Goodbye is part of the soundtrack for a whole generation (or more). By licensing the song, advertisers leverage this collective, accumulated experience channelling it to sell merchandise. But does our culture (do we) pay a price for this?
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There are several spots using Hello Goodbye. Each has a different musical style or arrangement. Here is one version taken from YouTube.
The article, written by Randy Kennedy, is about the working methods of the artist Richard Prince. Mr. Prince’s art is currently being celebrated in a 30-year retrospective at the Guggenheim Museum in New York City.
One of the methods Mr. Prince uses to create his art is to take photographs of other existing photographs that he finds published as advertisements in magazines.
The strength of the art is that the images he photographs, once removed from their function as advertisements, comment on our culture showing us archetypical images of our society - images that Madison Avenue ad execs have learned have great power. One of Prince’s favorite co-opted images is the Marlboro Man.
But it seems some of Mr. Prince’s photographs are nothing more than enlargements of existing photos. Mr. Prince has done little more than make the decision that the image matches his artistic sensibility. He then calls his enlargement of the existing photo his work and sells that work for increasingly high dollar values. In fact, one of his Marlboro Man pictures set an auction record for a photograph selling for 1.2 million.
The NY Times article centers around Jim Krantz, a successful commercial photographer who took several of the Marlboro Man ad photos “appropriated” by Mr. Prince. One Prince photograph, which sold at Christie’s for $332,300, is an exact duplicate of Mr. Krantz’s original except that it has been blown up to a huge size. Mr. Krantz says, “there’s not a pixel, there’s not a grain that’s different.”
Jim Krantz was paid by the Philip Morris Company for the original photos but has received nothing from Richard Prince. To date, Krantz has asked for no monetary compensation. He is asking for some type of acknowledgement or credit as the original photographer. After all, it’s not just the photo itself, it’s the composition - the conception, the pose, the exact moment to capture - these things were decided by Krantz and re-used by Richard Prince.
The matter provides a stunning look at the challenges facing interpretations of the Fair Use statue within US copyright law. The NY Times article says…
Mr. Krantz, who has shot ads for the United States Marine Corps and a long list of Fortune 500 companies including McDonald’s, Boeing and Federal Express, said he had no intention of seeking money from or suing Mr. Prince, whose borrowings seem to be protected by fair use exceptions to copyright law.
My interest concerns whether Mr. Prince’s use of other people’s photographs truly qualifies as fair use. Here is the law….
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In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
—————
(1) clearly Richard Prince’s art is of a commercial nature.
(2) a photograph is a copyrightable work.
(3) in some cases, it appears that Prince has used 100% of the copyrighted work.
(4) this is the main issue - the effect upon the potential market for or value of the copyrighted work - when an ad campaign is over, do the elements of the campaign, the photo, the copy, do they have any further value? Has the use by Prince harmed the further value of the photograph? This would be the crux of any fair use challenge.
Mr. Krantz said it best, “If I italicized ‘Moby Dick’, then would it be my book? I don’t know. But I don’t think so.”
Though Jim Krantz owns the copyright to most of his photographs, he no longer owns the copyright to the Marlboro Man photos. The Philip Morris Company, the maker of Marlboro cigarettes, owns the copyright. Any fair use challenge to Richard Prince’s art would have to initiate from Philip Morris.
I keep thinking about an op-ed article I read in the NY Times while flying to Chicago this Thanksgiving. The article entitled Pay Me For My Content, written by Jaron Lanier, urges Internet developers to move away from the “content must be free” mantra and points towards designing systems that fairly compensate creators for use of their work on the web.
The impetus for the article is the ongoing strike by television writers which, among other things, is challenging the studios for a better portion of residual payments from use of movies and shows on the Internet.
“Like so many in Silicon Valley in the 1990s, I thought the Web would increase business opportunities for writers and artists”, Lanier writes. “Instead they have decreased. Most of the big names in the industry — Google, Facebook, MySpace and increasingly even Apple and Microsoft — are now in the business of assembling content from unpaid Internet users to sell advertising to other Internet users.”
“There’s an almost religious belief in the Valley that charging for content is bad.” says Lanier. In fact, Lanier once felt this way himself. Back when the Internet was new, he wrote an article titled “Piracy Is Your Friend”. Now he says he was wrong.
Should information be free on the web? Lanier says, “Information is free on the Internet because we created the system to be that way. We could design information systems so that people can pay for content - so that anyone has the chance of becoming a widely read author and yet can also be paid. Information could be universally accessible but on an affordable instead of an absolutely free basis.”
It’s an important turn. A web pioneer, once firmly behind the idea (the ideal) that information on the web should be free, now says “We need to grow up. Affordable turns out to be much harder than free when it comes to information technology, but we are smart enough to figure it out. We owe it to ourselves and to our creative friends to acknowledge the negative results of our old idealism.”
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An early Internet pioneer, Jaron Lanier is most known as the creator of the term “virtual reality” and for pioneering several early VR products. He is also an accomplished musician and composer.
“What’s to stop an online mass of anonymous but connected people from suddenly turning into a mean mob, just like masses of people have time and time again in the history of every human culture? It’s amazing that details in the design of online software can bring out such varied potentials in human behavior. It’s time to think about that power on a moral basis.”
It’s a very inciteful statement. The damage done by music piracy comes to mind.
Originally written as guides to USENET usage and forum posting, 10 Big Myths About Copyright Explained and A Brief Introduction to Copyright serve as great reference articles for anyone needing basic information about copyright issues. Each article contains a good description of the complex and often misleading aspect of copyright law known as “fair use”.
The articles were written by Internet pioneer Brad Templeton, founder of ClariNet Communications, one of the first businesses to be solely based on the web.
Devo re-records their biggest hit “Whip it good” as “Swiff it good” in a TV ad for the floor cleaner Swiffer.
The Beatles song “All you need is love” is licensed by Luvs who use it for their campaign, “All You Need is Luvs”
“Blister In the Sun ” by the Violent Femmes, a seminal punk bank, is used in an ad campaign for Wendy’s hamburgers.
This summer Wilco licenses 6 songs from their new album Blue Sky Blue to Volkswagen who use all 6 songs in ad spots for their latest campaign marking the first time a multitude of songs by one artist/band is used in a single campaign.
Where is today’s cash cow for the music business? It’s the placing of famous or upcoming pop songs in TV commercials. We’ve all heard and seen these ads. Led Zepplin’s “Rock’n Roll” has become the main branding vehicle (no pun) for Cadillac. The ad speaks to those 40-year-olds that can now afford Cadillacs by co-opting an anthem from their youth.
There’s no doubt the trend will continue. Commercial jingles are a thing of the past. Today’s ad strategy is about branding. You put a product, no matter how bland, next to a song that has some “coolness” factor to it, or, in the case of the Beatles “All You Need is Love”, acknowledged cultural value, and voila, the product achieves instant significance or even hipness.
But by glorifying a product, no matter how banal, the song is immediately devalued. If today’s protest song can be tomorrow’s theme for toilet tissue, then the power of a song to effect culture becomes weakened. The power of the song becomes about how much money it commands when it is licensed for commercial use.
The Culture Is the Commercial
Jay Babcock, the publisher of the art and music magazine Arthur makes this point…
“What kind of culture sets up a system where the only way to hear good music is through TV commercials for products you don’t need?” Babcock said. “What little art is out there has to sneak in wherever it can, being stand-ins for jingles. It’s the sign of an unhealthy culture. The culture is eating itself.”
A recent New York Post article reports that the recording artist Fergie recently inked a $4-million deal to sing about Candie’s teen apparel on her next album. “The 32-year-old Black Eyed Peas singer is the first global star to consent to product placement in her songs - agreeing to include the provocative clothing line Candie’s in her lyrics.”
I don’t know that this matters to some bands, they are living in a music business that is sinking into chaos by the day and they are looking for cash, a reward for their work. When Wilco, a major act, licenses 6 songs to Volkswagen saying they are doing it as a way to get their music out there, you know the music business has drastically changed and these artists are looking for the type of payday that used to be available to successful bands through albums/radio play/touring. That old model of success is, apparently, broken.
According to Greg Lane, senior vice president of ad agency GSD&M in Austin, Texas, ad pop it is a mutually beneficial relationship. “It’s a marriage of two brands. It’s the client’s brand, be it AT&T or iPod, as well as the brand of the band itself,” Lane said.
“Part of the deal is, you’re never going to make everyone happy. And there’s no such thing as bad press. Even if fans are upset, it might not affect sales of what’s being advertised — it might increase sales.”
As the respected musician Tom Waits says “By turning a great song into a jingle, advertisers have achieved the ultimate: a meaningless product has now been injected with your meaningful memory of a song,” he said. “The songs and the artists who have created them have power and cultural value, that’s why advertisers pay out millions for them. Once you have taken the cash, you, your song and your audience are forever married to the product.”
Wilco song in Volkswagen commercial
Of Montreal song “Wraith Pinned To The Mist And Other Games” re-recorded with the words changed to “Let’s go Outback tonight” for Outback Steakhouse
While reading Geetesh Bajaj’s Powerpoint blog on his excellent Indezine website, I came across a Powerpoint presentation that I think would be useful to all media producers who struggle with copyright and licensing issues.
The powerpoint presentation deals exclusively with copyright infringement as it pertains to photography and is the work of PACA (the Picture Archive Council of America ). It lays out the basic copyright law but it is the case studies that are included that really make this document worth your time. You get to see actual infringement cases, what the infringement charges were, and you can see side-by-side, the actual photograph and the infringement photograph. Other points…there is no fixed % an image can be changed to avoid infringement. That is a common myth that circulates within design studios.
The presentation deals with Fair Use, the DMCA (Digital Millenium Copyright Act), ISP Safe Harbor and the public domain. All in all, it’s a really good document to know about if you are ever unsure about your usage of a photo or any other work which you want to use but don’t own the rights to.
A good take-away from this presentation that I would emphasize is that often permission and licensing is easily obtainable directly from the source. In other words, instead of going into competition against a photographer, by recreating a photo (the composition), it is cheaper in the long run to contact the creator and obtain permission to create a derivitive work.
The ruling against the ISP Scarlet (formerly Tiscali) was aimed mostly at P2P networks. The judge said that ISPs have the technical means at their disposal to either block or filter copyright-infringing material on P2P networks.
IFPI Chairman and CEO John Kennedy said: “This is an extremely significant ruling which bears out exactly what we have been saying for the last two years - that the internet’s gatekeepers, the ISPs, have a responsibility to help control copyright-infringing traffic on their networks. The court has confirmed that the ISPs have both a legal responsibility and the technical means to tackle piracy. This is a decision that we hope will set the mould for government policy and for courts in other countries in Europe and around the world.
The ruling may be bad news for YouTube, faced as it is with several copyright-infringement lawsuits. This case says that ISPs definitely have some responsibility or obligation for the content that is displayed across their networks. YouTube has argued that it can’t know everything on its site, that it removes content once a DMCA takedown notice is served. However if a notice is never served, then infringing material stays. The Belgian ruling says that, in its purview, YouTube does bear responsibilty for the content it serves.
As so many have now said, the copyright infringement cases against YouTube are going to come down to this - Is YouTube protected by the DMCA?.
Here are excerpts of her reasoning and decision… I find it fascinating to see this play out, for a quick synopsis, read her final paragraph.
—————————————-
United States Disctrict Court
Central District of California
Robert Tur d/b/a Los Angeles News Service (Plaintiff)
vs
YouTube, Inc. (Defendant)
YouTube’s Motion
YouTube’s ultimate eligibility for “safe harbor” protection depends upon whether YouTube can prove that it satisfies certain threshold elements common to all of the safe harbor provisions.
YouTube must prove that:
1. it has adopted and reasonably implemented a termination policy for subscribers and account holders who are repeat infringers,
2. accommodates and does not interfere with “standard technical measures” that copyright owners use to protect their works,
3. its infringement is “by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider”,
4. it lacked actual knowledge of the infringing material or was not aware of facts or circumstances from which infringing activity was apparent on its system or network and/or acted expeditiously to remove or disable access to the material upon obtaining such knowledge or awareness,
5. it did “not receive a financial benefit directly attributable to the infringing activity,” if it had “the right and ability to control such activity”,
6. it responded expeditiously to remove or disable access to infringing material upon notification from the copyright owner, and
7. it has properly designated an agent to receive such notification.
YouTube maintains it does not receive a financial benefit directly attributable to the allegedly infringing activity and that it does not have the right or ability to control said activity. As the statute makes clear, a provider’s receipt of a financial benefit is only implicated where the provider also “has the right and ability to control the infringing activity”.
As such, if YouTube does not have the right and ability to control the alleged infringing activity, the Court need not engage in the “financial benefit analysis.”
The “right and ability to control” infringing activity, as the concept is used in the DMCA, has been held to mean “something more” than just the ability of a service provider to remove or block access to materials posted on its website or stored in its system. Rather, the requirement presupposes some antecedent ability to limit or filter copyrighted material.
There is insufficient evidence regarding YouTube’s knowledge and ability to exercise control over the infringing activity on its site. There is clearly a significant amount of maintenance and management that YouTube exerts over its website, but the nature and extent of that management is unclear. YouTube also asserts that while it is able to remove clips once they have been uploaded and flagged as infringing, its system does not have the technical capabilities needed to detect and prescreen allegedly infringing videotapes. However, there is insufficient evidence before the Court concerning the process undertaken by YouTube from the time a user submits a video clip to the point of display on the YouTube website. Thus, there is insufficient evidence from which the Court can determine YouTube’s right and ability to control the infringing activity.
Conclusion
Accordingly, the Court DENIES YouTube’s motion
June 20, 2007
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Thus, the great debate is layed out. What makes it difficult is that clearly YouTube is in compliance with some safe harbor aspects of DMCA. If you look at the 7 provisions, as stated by Judge Cooper, I think YouTube is in compliance with 1,2,3,7 and maybe 6 (though that can be argued). Where YouTube is not in compliance, to me, and this is the main infringment argument, is provision 4 and 5.
4) YouTube lacked knowledge of the infringing material and
5) YouTube did not receive financial benefit from the infringing material.
That part of the DMCA case will be hard for YouTube to make.
I’ve been listening to a fairly new podcast created by Chris Matthieu, the founder of Numly and Jonathan Bailey, writer of the blog Plagiarism Today. In their podcast, titled, the Copyright 2.0 show, they discuss many copyright and intellectual property issues that have made recent headlines. What’s more, links to all news stories they discuss are made available through a del.icio.us page.
The podcast is fairly low-key and conversational. Both Chris and Jonathan stress that they are not lawyers and are not offering advice on copyright law, they are examining copyright in this era of Web 2.0 and digital information.
You can hear the podcast by clicking on the “Play” button on the player below. There are several shows to choose from.
copyright, copyright+infringement, curtis publishing company, espn, infringement cases, infringement lawsuit, intellectual+property, intellectual property issues, television production, the bronx is burning 
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