Tuesday, January 26, 2016

Random Thoughts on David Bowie

Like so many people I know, I was deeply saddened but not surprised by the announcement of David Bowie's death on January 11.  The rumors of ill-health had been circulating for years and the clues he left on his latest album Blackstar (which I just purchased two  days earlier) and its accompanying videos are too strong to ignore.  It was stunning to see the reaction that so many people had.  We all felt a profound personal connection to Bowie.  Rather than writing some fanish nonsense about my favorite David Bowie records (and there are many) I wanted to try to figure out something to post which is relevant to this music and law blog. It’s kind of disjointed, but there’s a point.

            I could write about Bowie as a highly creative business person – a theme Billboard picked up in its tribute this week.  The article written by Robert Levine and Ed Christman focused on many of Bowie's savvy moves – from maintaining ownership of his masters from the time he signed with his RCA deal (he was also able to acquire the two Mercury albums if I remember correctly) to the massive worldwide deal he signed with EMI,  to his groundbreaking arrangement with Rykodisc which set the standard for catalog reissues.

            One could write a textbook on the concept of Bowie Bonds, the venture through which Bowie and David Pullman figured out a way to securitize his future royalties.  Although definitely risky and not for the financially faint of heart, the deal was obviously successful and now seems pioneering. And although  Bowie was not the first contemporary artist to start his own label, if you read his interviews from around 2002, it is clear that he was one of the first artists to see the eventual decline of the major label system and the deterioration of copyright.

            Finally, I loved the fact that David Bowie created his own internet company in 1998 which allowed fans to obtain their own email address at "bowie.net". He saw the possibilities of using the internet to connect with fans and did so in an entertaining way.  Of course all of this would be mildly interesting if the music was not so compelling.

            On a different spectrum,  I have been oddly moved by the widely disseminated "thank you" letter  to  Bowie written by British palliative care physician Dr. Mark Taubert, who was obviously a fan.   Taubert uses Bowie's death and life as a way to talk about the necessity of making end of life decisions in advance. It is clear that Bowie planned his final moves very carefully and very thoughtfully.  It’s really kind of brilliant.  In one section of his letter Dt. Taubert writes:

Thank you for Lazarus and Blackstar. I am a palliative care doctor, and what you have done in the time surrounding your death has had a profound effect on me and many people I work with. Your album is strewn with references, hints and allusions. As always, you don’t make interpretation all that easy, but perhaps that isn’t the point. I have often heard how meticulous you were in your life. For me, the fact that your gentle death at home coincided so closely with the release of your album, with its good-bye message, in my mind is unlikely to be coincidence. All of this was carefully planned, to become a work of death art. The video of Lazarus is very deep and many of the scenes will mean different things to us all; for me it is about dealing with the past when you are faced with inevitable death.


            In my estate planning work, I often have a hard time convincing people of the need to have durable powers of attorney for healthcare as well as living wills or advance directives.  Some people won’t even sign simple wills. Who wants to think about this unpleasant stuff?  The  way Bowie set out his end-of-life plan as carefully as any other piece of work gives me a new perspective and may make it easier to discuss this with my clients.  I highly recommend reading this letter.

            Finally, when I think of David Bowie’s career,  I am often drawn to a great book called David Bowie:  Any Day Now:  The London Years 1947-1974 by Kevin Cann.  This book, is essentially an obsessively researched chronology of Bowie's climb to fame through his succession of ill‑starred bands, questionable record deals, crummy gigs, name changes  and silly detours.  Casual fans may not be aware of the fact that Bowie had a number of non-hits on several labels before hitting with “Space Oddity” in 1969. However the end result of the book is that one realizes that this guy worked his ass off.  The real key to David Bowie's success was that he worked unrelentingly on his career.  When he began to really break through with Hunky Dory and The Rise and Fall of Ziggy Stardust, he put his foot on the gas and did not let up You also see this when you look at the early years of bands like the Beatles and the Rolling Stones – besides raw talent and creativity they all worked hard to achieve and maintain success . This   is abundantly clear in Bowie's case and its  why he released something like 27 new albums (not including live albums) during the course  of his career while doing significant touring and appearing in countless films, on Broadway, etc.  We even learned in recent weeks that he planned compilation albums to be released in the future. This should be a lesson for all contemporary artists. Hell, it should be a lesson for all of us.

            Ok. I’m going to go listen to Station to Station.

Monday, January 18, 2016

The Velvet Underdog: The Joys of Transformative Fair Use

One of the perks  of living in Nashville is getting to know people who are not only talented musicians but also highly creative visual artists and I can think of no better example than my friend Brad Talbott.  Brad is a massively-talented designer and illustrator. He has done all kinds of high tech things I don’t understand but has also  designed some of my favorite album covers, among his many achievements. 

            His latest creative venture may be my favorite.  Over the past couple of years Brad has put together mashups where he brings together disparate elements of popular culture (see below).  I can't tell you how much I enjoy these images.  His most recent show back in December was called Rock Toons Mashup Art Show. 

            While I was enjoying the show, chatting with friends and drinking wine out of a box, someone asked me if what Brad was doing constituted copyright infringement.  I rattled off my stock answer "No it's protected fair use" but it occurs to me that lawyers often say this without giving any explanation for this opinion. 

            The fair use section of the Copyright Act embodied in 17 USC § 107 states:

     Notwithstanding the provisions of section 106 (i.e. the exclusive            
rights of the copyright holder) the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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 in 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 marked 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.

            It is important to note that this section of the Act was added to the massive 1976 revision of the law but before that it had existed as a judge-made exception to the otherwise strict liability provisions of the Act.  In other words judges realize that there were some times when it was necessary to use portions of other people's copyrighted works in order to comment upon, report upon or criticize said works. 

            Any good fair-use analysis has to take all of the elements of the statute into account, i.e. what is the purpose of the use, what is the nature of the underlying work – how much was used and is the potential market for or value of the copyrighted work affected (it seems that over the last few years the fourth consideration has decreased in significance). 

            Around the time that the U.S. Supreme Court ruled in Luther Campbell's favor over Acuff Rose (the "Pretty Woman" case – a case with significant Nashville connections) courts began to fashion a new interpretation of Section 107 and that is to ask the question – is the new work "transformative"?  As the court said in Campbell v. Acuff- Rose, "The inquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is controversially  'transformative', altering the original with new expressive meaning,  or message.  The more transformative the new work, the less will be the significance of the other factors, like commercialism that may weigh against a finding of fair use". 

            Admittedly, it took me years to truly understand the concept of transformative use and I didn't really get it until I started looking at the work of Richard Prince, the well-known "appropriation" artist who is a highly-controversial figure in the art world but who has made important contributions to our understanding of transformative fair use.  Famously, Prince was sued by a photographer named Patrick Cariou, after Prince appropriated numerous photographs from Cariou's book Yes Rasta into his own work in a show called Canal Zone.  The lower court ruled against Prince, failing to find sufficient commentary in his work to constitute fair use.  The Court of Appeals rejected this requirement and pointed out that in order to qualify as fair use, the observer must only find the work transformative – a "new expression" employing "new esthetics". 

            It is hard for casual students to understand that Section 107 is a defense to copyright infringement and is not a handy shield for artists.  In other words you might still get sued for copyright infringement but you have a chance to win the lawsuit – not exactly comforting.  However, there have been some recent cases involving the Digital Millennium Copyright Act, which underscore the copyright’ owner’s duty to perform a food faith fair use analysis prior to bringing suit. This string of cases might bring a bit more clarity to the situation.

Having said all that,  I go back to saying that Brad Talbott's work is joyously transformative and I can't wait to see what he comes up with next

Friday, January 8, 2016

The Soft Kitty Consternation

A couple of months ago, I tried to write a blog post concerning a lawsuit over the  theme song for the television show The Big Bang Theory.  (Trivia answer:  the theme song is apparently called "The History of Everything").  I gave up on this task because the blog  was just kind of boring and I thought to myself, "who cares about a lawsuit involving a song used on The Big Bang Theory"? 

            Okay, I was wrong.  On December 28 two sisters, Ellen Newlin Chase and Margaret Chase Perry sued the producers and broadcasters of the show for copyright infringement for using their late mother's copyrighted composition "Soft Kitty" without a license.  Fans of the show (my wife and I are near- obsessive fans) know the thematic importance of this song.  It has been used on the show numerous times and apparently is used in all types of merchandise associated with the show.

            “Warm Kitty" , written in 1937 by Edith Newlin was first published by a company called Willis Music in a book entitled "Songs for the Nursery School".  Apparently Warner Brothers Television licensed the work from Willis Music even though it appeared that Ms. Newlin never assigned the copyright to the composition to Willis. As late as last summer, Willis Music was proudly touting its association with the song  and the show on its website.

            Much like the "Happy Birthday" case, the resolution of this case may depend on a review of old documents (for example, is there a contract somewhere giving Willis Music the right to issue synchronization licenses for television shows?)  This kind of situation must be a nightmare for people who work in music licensing- trying to ascertain who has the rights to a particular musical work.

            If the case goes forward, it might also be of interest to those of us who worry about indemnity clauses all day.  Certainly somebody warranted to Warner Brothers Television that they own the rights to license this composition and I am sure they backed up this warranty with an indemnity clause.  This will be an interesting case to watch.

            However, until this is resolved I am more concerned with how Sheldon will get to sleep.