Thursday, July 22, 2010

Internet Porn, Fair Use and the Boogie Woogie Bugle Boy of Company B

Warner Bros. Records and its sister companies, together with Warner Chappell Music, filed suit last week against RK Netmedia and Realitykings.com, an internet porn site, alleging copyright infringement for using its masters and songs over 500 times "without license or consent."

According to a report in the Wall Street Journal, Realitykings will assert the Fair Use doctrine stating that the songs were used as "part of a commentary of popular night club culture."

I have not, err, umm, reviewed the evidence, but unless the clips are short live excerpts from “popular night clubs,” I doubt very seriously that Fair Use can stretch this far.

I thought about this case last night when Bette Midler’s version of “The Boogie Woogie Bugle Boy of Company B” turned up inexplicably on my i-Pod. That song was involved in a lawsuit in the late 1970’s between MCA Music Publishing and an off-Broadway musical called “Let My People Come – A Sexual Musical,” where the words were changed to describe something other than blowing reveille. The Defendants lost that case, the Court holding that whatever purpose the defendants were attempting “did not justify the unwarranted use and abuse of ‘Bugle Boy.’ ”

Although the cases are not similar, both do remind us of the outer limits of the Fair Use defense, which is, to paraphrase Samuel Johnson, “the last refuge of the scoundrel.”

No comments: