In Defense of Emily White

A month or so ago, Cracker front man (and music business school academic) David Lowery wrote "An Open Letter to Emily" which, as most people know by now was a response to a blog by Emily White, a not quite 21-year-old intern at NPR's "All Songs Considered".

            Lowery's piece is a well reasoned, measured and documented explanation of how stealing music has hurt musicians and songwriters. The  article went viral and was "shared" by everyone I know.

            I read Lowery's piece before I read Emily White's blog post so I decided that in all fairness I needed to see exactly what she had to say.  It turns out that as good as the “open letter” is, Lowery almost completely misses White's point.  White's blog "I Never Owned any Music to Begin With" reveals an honest portrait of a young person growing up in the internet world.  White is not championing stealing music (although she admits to having done so).  She is also refreshingly not one of those people who jump on the bandwagon of "the new paradigm" (e.g. give the music away for free so you can sell a ticket and/or a t-shirt).

            As an aside,  the part of White's blog that probably irks Lowery and others is the section where she describes "sitting on the floor of my college radio station ripping music onto my laptop" from the promotional album sent to the radio stations by record companies.  I submit that this has been done forever (through various forms of media) and that anybody who works in the music business at any level will admit that they love getting free stuff.  Also, I think that people like Emily White are  this generation's culture vultures – they love music, they absorb it and in some ways help illuminate what's good and bad for the rest of us.  That's what college radio did before colleges started shutting down these stations. But, I digress.

            White's major point is that while she has 11,000 songs in her iTunes library, she has only purchased 15 physical CDs in her lifetime.  Her point is that she doesn't care about owning the physical artifact.  For someone who grew up in the album era and still obsesses over his record collection, this is shocking.  However I have witnessed the same phenomenon in my teenage daughter, who is a huge music fan and whose tastes are as eclectic as they come.  She listens to music constantly, primarily through Pandora and songs purchased from iTunes.  I just counted and she has exactly 30 CDs in her collection.

            White is not arguing that music should be free and that David Lowery should not be paid.  She is asking for "one massive Spotify-like catalogue of music that will sync to my phone and various home entertainment devices".  I can remember fantasizing about the same thing as a kid – now it is very nearly a reality.

            To those who argue that Spotify's payment system is unfair – I am not sure that the issue has been fully and finally determined ,yet but I can think of two initial responses.  First at least someone is providing a mechanism that pays  for music and therefore combats piracy and second, as old line music publishers used to say, music is "a penny business".  For better or worse there are more sources of pennies now.  Also, Spotify is now second to iTunes in terms of generating revenue for record companies – so it's not going anywhere.  It has been said so many times before, we are witnessing a huge change in the way the music business is structured.  It is painful for a lot of people, from performers to studio owners to lawyers but I can't help thinking that the core components of the business – artists and their fans are in a healthy position.  The rest of us need to learn to adapt. I don’t like it any more than David Lowery but it is reality.

Mommy Porn and eBooks

I have some vague notion of what E.L. James novel “Fifty Shades of Grey” is about although I did not know until today that this was actually a trilogy (you know, like “Lord of the Rings”). I was not surprised to learn that the books have sold 19.4 million copies in the U.S.  and 31 million worldwide. What does surprise me is that in the U.S., the sales are evenly divided between traditional books and e-books.

As the child of book store owners, this distressed me. As a lawyer trying to watch the trends, I find this fascinating. The book industry has apparently now caught up with the music industry in its transformation into the digital realm. We many not like it but its happening.

The Wall Street Journal offered some anecdotal evidence as to why the digital sales of the so- called “mommy porn” might be so high but the fact that nearly ten million people willingly downloaded an ephemeral copy of this classic cannot be ignored. This has got to make retailers nervous. However at the same time these facts offer significant encouragement to both book publishers and those exploring self-publishing.

Digital Estate Planning

I just finished reading an interesting article by an attorney named Scott Zucker on “Digital Estate Planning” for clients.  Coincidentally, I had been thinking about similar issues lately as I considered  the implications of some of my deceased friends’ Facebook pages.  I know this sounds either morbid or just plain strange but think about it for a minute.  Do you want to have some control over what happens to your online presence after you pass away? 

                I am going to resist the urge to start discussing William Gibson novels and just point out that Mr. Zucker expands the discussion to an examination of what he terms “digital assets” which he defines as “any online account that requires a user name or password” or “any files stored in places including an individual’s computer, mobile phone, server…” or, I imagine the all-pervasive “cloud”. 

                We all probably have a larger online presence than we actually think we have; from websites to social media, iTunes accounts, bank accounts and bill paying.  Zucker suggests that the individual who is thinking about estate planning should prepare a list of each of these accounts with the password and his or her intentions regarding the account for his executor or estate administrator.

                Obviously this is going to involve gaining an understanding of each of the major sites’ terms of service and ultimately involving a lot of work and a lot of hassle, but I can understand the benefits.  For example, I am aware of a family who is not happy with the way people are conducting themselves on   their deceased relative orelative’s Facebook page.   They should have the right to handle this account as they see fit and with as little angst as possible. Really, there are a lot of issues to consider once you start thinking about this.

                All of these are issues that only a science fiction writer could have imagined ten years ago but I see the need to examine them as we go forward.

The Village People and Copyright Termination

You can't trust the regular media when it comes to copyright stories, they almost always get it wrong.  Case in point, the general reporting of the court's granting the Defendant's motion to dismiss in Scorpio Music S.A. v. Victor Willis (Willis was the motorcycle cop in the Village People and interestingly enough, the writer of the English language lyrics to most of the band's biggest hits including "YMCA").

Many of the stories I read reported that Willis somehow recaptured the recordings of these works.  This is not true.  As far as I know, none of the sound recording copyright termination cases have made it to court yet and presumably won't until after 2013.

However in distorting the court's holding, the media missed the case's most significant points.  The holding clarified two important aspects of the termination  provisions of the Copyright Act.  First, the Court deal with the provision "in the case of a grant executed by one author, termination of the grant may be effected by that author".  In other words, if an author executed the original copyright assignment individually then he or she does not need his co-author's approval to terminate the grant.  Reading the statute, the intent is clear but it has been confused with the law surrounding joint authorship – and this is a problem that will be encountered by group members who signed joint publishing agreements and assignments from 1978 on.  However for the individual who might have been a co-writer, the law is explicit and the holding in this case aids in the interpretation. You don’t need anyone’s permission to file your notice of termination.

Second, the case clarifies the point that upon termination, the author becomes an owner of an undivided interest in the copyright equal to the amount he originally transferred – irregardless of whatever royalty percentage he might have received pursuant to the contract.  Again this is explicit in the Statute but it is comforting to see it set out and explained by the court.

Admittedly, the facts of the Willis case are unique but then all cases have their own unique set of facts.  I think that the cases are going to begin to provide more and more guidance to the murky area of copyright terminations as we go along and they are each  fascinating in their own way.

Lawyers and Their Briefs

This makes no sense to me.  A group of lawyers have sued Westlaw and LexisNexis for reproducing their legal briefs as part of  the companies’  online database of court filings.  I have always assumed that anything filed in court is part of the public record and hence the public domain.  At least as far as federal court goes, briefs are readily accessible through the federal court system’s comprehensive  web site.  I suppose that anyone can slap a copyright notice on their brief, register their copyright with the Library of Congress and assert their statutory rights but on the other hand, stealing other lawyers' forms, pleadings and briefs has been a tradition in the legal profession, probably dating back to the Greeks and the Romans.   Seriously, all of our forms and pleadings come from somewhere and studying and reviewing  legal briefs and their theories filed in similar cases is simply good training and research.

                Apparently the federal judge in the Westlaw/LexisNexis case dismissed those lawyer plaintiffs  whose briefs had not been registered for copyright for the simple fact that registration is prerequisite to a copyright infringement suit but as to the number of lawyers who actually registered the copyright in their briefs, the lawsuit is still moving forward.  Might I suggest that we are going to see the fair-use defense soon?  We might also see a defense of lack of originality. Either way, it’s a strange case.

Tomorrow Never Knows: Don Draper Does the Math

I am a huge fan of "Mad Men".  I am also a huge Beatles fan and once I discovered that the show’s  trajectory was chronological,  I have been anticipating Don Draper's discovery of the Beatles.  While we have had nice little references in the past (Don buying his daughter Sally the latest Beatles’ record, Don trying unsuccessfully to meet the Rolling Stones to discuss a television commercial) nothing prepared me for the visceral excitement of watching and hearing Don drop the needle on "Tomorrow Never Knows".  Matthew Weiner got this exactly right.

                The next day we learned that the show paid approximately $250,000.00 for the synchronization license and master use license i.e. the right to use not just the song but the Beatles' original recording on the show.  Every music lawyer knows what a coup it was for the producers to get the master use rights as well as the synchronization rights to "Tomorrow Never Knows".  I thought it would be fun to guess what the various interested parties might have made on this deal.  Understand this is pure conjecture, based on traditional record company/publishing company economics.  The Beatles’ story is not traditional. The story of how Lennon and McCartney founded a publishing company, then lost it, only to see it end up in the hands of Michael Jackson and Sony has been reported many times (apparently most explicitly in a book called "Only a Northern Song" that I am still waiting to get my hands on).  Additionally,  everyone is aware of the fact that the years of litigation between the Beatles and EMI mean that the Beatles most assuredly do not have a traditional 50/50 split of license fee income with EMI…but assuming that they did –

                Then, one has to also assume that this deal involved the traditional split of 50/50 between master use license and synchronization license.  That is not always the case but it is a good rule of thumb.  Under this scenario the publisher of the song, Sony/ATV would receive $125,000 of which $62,500 would be paid in equal shares of $31,250 to Paul McCartney and the heirs of John Lennon (as an aside it looks as if Lennon's share of the copyright to the song was renewed in 1995 in the names of Yoko Ono, Sean Lennon and Julian Lennon).

                From the master use side, typically the label EMI (the parent company of Capitol) would split the master use fee 50/50 with the artist which means that it would pocket $62,500 and pay out approximately $15,625 to each of the Fabs or their heirs.

                Again, all this is mainly illustrative and is not meant to presume to know the intricacies of Apple's finances.  However if anyone knows more details about this deal please share.  In the interim, I  can wonder what Don Draper's reaction would have been had he heard the original "Anthology" version of "Tomorrow Never Knows" and what Don Draper, the ad man would have thought about paying $250,000 to use a song in a television show.

One Direction v. One Direction

Why do I know about the band "One Direction"?  Because I have a teenage daughter.  It's the same reason I am acquainted with the work of Justin Bieber.  I was surprised to learn that that the members of One Direction were English, but not surprised that they were put together by Simon Cowell in the classic boy-band tradition.

                However, I was actually shocked to discover that Mr. Cowell's incredibly successful organization apparently overlooked the fact that there was already an American band with the same name, with a federal trademark registration.  There is nothing to prohibit the  band from using the "One Direction" mark  in England but they appear to be infringing on the US band's federal trademark.  The US group has of course filed suit.  This trans-Atlantic state of confusion has gone on for decades.  For example, the English Beat had to adopt the "English” qualifier in response to a claim by the LA group, “The Beat.”  Likewise the British band Squeeze was briefly known in this country as "UK Squeeze".  Conversely the British band "The Birds" allegedly took legal action against the American "Byrds" when they made their famous first trip to the UK back in the '60s.

                What amazes me is that anyone could be unaware of a trademark registration in this day and age when  the US Patent and Trademark Office has an up-to-date online database of pending and registered marks and any band can be readily Googled.  It used to be much more complex.  In order to search up the availability of a record company name or band name, you had to undertake a costly and not always accurate media search.  You also had to contend (as you do now) with the fact that a party can generate common law rights in a mark even without a registration.  However to overlook a pending registration or an actual registration is just strange.

                As for One  Direction US v. One Direction UK – I predict a settlement before too long.