Let us Now Praise Jeff Finlin

I have known Jeff Finlin for many years. I represented his band, the Fur Trade (our first meeting was worthy of Spinal Tap). That band morphed into The Thieves, who had a major label deal on the short lived Bug/Capitol label.  Jeff was the drummer and Gwil Owen was the principal songwriter in that band.  When the Thieves broke up, Jeff began showcasing his own song around town.  And what songs they were, Jeff had a voice and direction from his first record. It was a pleasant shock.

Jeff’s done a lot. From his first release on Pete Anderson’s Little Dog label, to releases on major British labels (like all great American artists his work is probably more popular overseas than in his own country) to a song in Cameron Crowe’s Elizabethtown. The impressive thing about Jeff is that he just keeps on doing it-putting out great record after great record. With little fanfare, he’s creating his own universe.

To my mind, his new album My Moby Dick may be his best. He’s working with producer /guitarist Joe McMahan, who has helped Jeff create a musical setting that perfectly suits the songs. It’s probably a cheap comparison but it reminds me of the kind of atmosphere that Daniel Lanois has brought to records by Dylan, Neil Young and Emmylou Harris. In a neat full circle moment, Gwil Owen designed the extraordinary collage cover art.  Jeff has also just published his first book of poetry (with some prose) called Time Less Travel. I believe the works are currently available as a set.

Jeff will be doing an in store at Gwil’s Howlin’ Books http://tripaldredgelaw.blogspot.com/2013/02/howlin-books-and-grimeys-too.htmlthis Saturday May 11 at 4:00 p.m.  To me, at least, this is special because it’s one of his first gigs after moving back to Nashville after an extended stay in Colorado. We’re lucky to have him back. Go see him. Buy a record; buy a book.

Guest Blogger Jenni Lee Merritt: Music Industry Myths: Copyright Edition

For the past 14 or 15 years I have taught Copyright Law and Music Industry Law in the Music Business program at Trevecca Nazarene University. The class is a lot of fun and I always have a great bunch of students. Occasionally, a student will turn in a paper that I find interesting, either because he or she has covered a topic that I don’t know much about or in the case of the paper below, because the student has taken a really novel approach to an issue. Everyone has heard about some of the myths of copyright law but I think that my student Jenni Lee Merritt has done an exceptional job of creating a compendium of these myths. With Ms. Merritt’s permission, I am reprinting her paper:

Music Industry Myths: Copyright Edition

        Many myths surround the music industry today.  From the ever so popular “You’ll never make it,” to “It’s easy to get a record deal,” people will repeat whatever they have been told, especially concerning the music industry.  It’s one of, if not the most publicized and talked about industries today so of course there are going to be misconceptions about what actually takes place on the inside.  People love to act like they know what they are talking about when in reality they haven’t the slightest idea what they are talking about.  In particular people who comment on the on-goings of the music industry today who are not even remotely connected to it. One topic in particular that seems to have developed quite a resume of  fictional facts is that of copyright law as it pertains to the music industry.  Everyone wants to be considered an expert so they pass along false information and pretty soon you have a well developed list of myths.  From the “poor man’s copyright” to the truth behind Fair Use this paper will address some of the major miscommunications concerning copyright and how it works with the modern music industry.

            The poor man’s copyright is not a proper way for an artist to prove they are the owner of any copyrighted material.  This method of copyright states that a person takes a copy of the work they wish to have a copyright on, mail it to their self, and keep the sealed envelope with the postmark date on it as evidence.  Or in more recent times just copy it to themselves via email or another method of file sharing. This method of proving they are the sole creator of a work is not going to hold up.  It is too easy to find ways around this, such as mailing an unsealed envelope, getting the date on it and then simply sticking whatever they want into it at a later date. Plus in today’s world of technology there are more and more ways of faking dates on documents.  If an artist is truly concerned about their work being stolen then they should go ahead and register it for fool-proof evidence to use in a case, if there ever comes a time they need to.  This way they will be able to avoid a possible profit loss due to someone else stealing their work and getting away with it because they will have the precise evidence they need.

            In addition to the poor man’s copyright myth is another one that says you have to register your work to have it copyrighted.  This is false.  Copyright is an actual right, or better described a group of rights. These rights include being able to make copies of the work, make derivative works, distribute copies of the work to the public by sale, rental, lease, or lending, perform the work publicly, display the work publicly, perform the work by means of a digital audio transmission in the case of sound recordings. These rights belong to the author of the work unless and until the decided they want to sign those rights away to someone else.  Which it is common to see artists do in publishing, and other kinds of agreements with various branches of the music industry.  These rights come into play as soon as the author has made a tangible copy of their work.  Registering the copyrighted work will only grant the author of the work additional rights such as, being able to collect the compulsory license royalties, being able to file an infringement case for any losses the infringement may have caused you, including attorney’s fees (if you win the case) and putting the burden of proof on the party who has infringed upon your work.  These are all very useful tools if you are planning on actively using the work in question. 

            Another myth is the idea that a name or title can be copyrighted.  This is not true.  However, there are other pieces of legislation that encompass what you can and cannot do with a name or title of a work. A name or title can be trademarked in place of a copyright.  Also if a name or title is used in a mis leading way, this is considered “passing off.”  This term deals with the public’s perception of a name or title.  An example of “passing off” would be if an upcoming artist or band were to use a name or title in order to make people think they were associated with a different successful artist or company.   Titles and names cannot be copyrighted because in reality there are many titles that don’t and will not interfere with each other.  One example being country artist Jake Owen and pop artist Katy Perry both releasing singles called “The One That Got Away.”  In this case both songs were very different and upon listening to them it is easy to conclude they are about two completely different circumstances so questioning whether one was a derivative work is out of the question. Also pertaining to these two works they were written in two entirely different genres and attract two different fan bases so one did not interfere with how successful the other was.

            Going along with the idea that a name cannot be copyrighted is the idea that a band’s name belongs to whoever started using it first.  This is only true for names that are not registered trademarks if considerable goodwill and reputation in the market have been built in respect of the brand itself.  Simply but if your band is a house hold name and for some reason still does not have a trademark then no one can say they are use because this would be mis-leading the public. If another group is using a particular band’s name, that band will have to prove two things. The first being that the copy-cat band is indeed misguiding the public by “passing off” as their group.  The second being that their group is suffering losses because of the emergence of this new band of the same name.

            “If there’s no profit, it doesn’t violate the copyright.” This is another false statement that is commonly said about copyrighted material.  Just because an individual doesn’t make a profit off of the material they are copyrighting doesn’t make it legal.  In most cases this usually makes things worse for the copyright owner.  Since someone can get the copyrighted material out of a video posted on YouTube, or from a link someone posted on their web page then they most certainly are not going to pay for the same work.  This in turn hurts the owner of the copyright and others involved in marketing the copyrighted material.  People have tried to become smart and have started to post along with their video and links that they did not intend to infringe upon a copyright and some will also offer a link to the source of where they obtained the work. Unfortunately intention is not something you have to have in order to be guilty of copyright infringement.

            One of the more ridiculous claims is that if a work is available on the internet then it is public domain.  This misconception probably originates from a false understanding of what public domain really is.  This does not mean that the work is displayed where it is readily available to the public, such as on the internet.  Likewise the public domain isn’t a physical place.  It is more a statement. A statement, that when applied to a work in question, holds true then makes the work available for public usage without payment to the author.  The requirements for something to be in the public domain are that, first of all, the work is no longer under copyright. The second statement being that it failed to meet the requirements to be copyrighted in the first place.  This then makes the work available to the public without payment to a copyright owner. 

            Fair Use is not a myth. However with the way people perceive it as a way to legally get away with copyright infringement is.  Fair use is a tricky line to walk. The U.S. fair use exemption was created to allow things such as commentary, parody, news reporting, research and education about copyrighted works without the permission of the author.  No more of the copyrighted work then is absolutely necessary to achieve an individual’s goal under one of these topics is allowed.  Even if the individual does need a certain portion of a certain work for their purpose which falls under one allowed by the fair use exemption, if the portion of the work they use lessens the commercial value of the work then it is still deemed copyright infringement.

            “It was my idea so I have the copyright.”  Ideas are not able to be copyrighted.  If an artist tells another artist his idea for a song and the other artist writes the song first then the other artist is the one who has a claim over that copyright.  The only time an artist could possibly argue that their work has been infringed upon when it comes to an idea is if a “derivative work” is made.  Works that are derived from another work are the sole property of the author of the original work.  In the music industry though this would be hard to prove.  The artist would have to have substantial evidence that the work in question was created as a direct derivative from their original work. 

            “Copyright infringement isn’t an actual crime.”  Most copyright cases are civil cases and involve lawsuits instead of prosecution.  However in the nineties a violation of copyright involving more than ten copies and a value of over twenty-five hundred dollars was made a felony.  This is a fairly new and untested statue of the law.  Since it is out there though it is possible for people to see copyright cases take on a whole new shape.  It is highly unlikely a lot of these cases will come through though because the courts have much more important business to take care of then copyright infringement. 

            The myths that surround the idea of copy right are far more then listed here.  Hopefully though this dispels the most common ones. It is easy to get caught up in whatever is posted or whatever someone states as fact.  Finding credible resources is always key when discovering the truth behind the inter-workings of the music industry and even more specifically the rules and regulations regarding copyrights and how they apply to and aid artists today.

           

Two Recent Cases Copyright Cases Examine the First Sale Doctrine

Two recent decisions have helped clarify U.S. copyright law and provided some common sense guidance.  In March the U.S. Supreme Court handed down its decision in Wiley v. Kirtsaeng applying the First Sale Doctrine to copyrighted works lawfully manufactured and sold abroad and later resold in the United States.

            The case involved a foreign graduate student (Kirtsaeng) who realized that he could purchase nearly identical copies of the textbooks he used in his U.S. classes in his native Thailand for much less.  Being entrepreneurial, he began having his family purchase numerous textbooks which he later resold for a profit.  Before Wiley sued him he had allegedly made over one million dollars.  Wiley sued Kirtsaeng for copyright infringement and both lower courts sided with the publisher.  However, the Supreme Court  realized that by definition the First Sale Doctrine has to apply to these facts.  The doctrine, codified in 17 U.S.C.A. § 109(a) states "The owner of a particular copy or phonorecord lawfully made under this title or any person authorized by such owner is entitled without the authority of the copyright owner to dispose of the possession of that copy or phonorecord."

            The court realized that despite the kneejerk fear that the publishers and perhaps all intellectual property owners would be damaged by its decision, to hold otherwise would lead to a fundamental restriction on people's rights to sell their own property (i.e. the backbone of many businesses large and small). It might seem like a controversial decision but it's the right one.

            As if to underscore the rationality of the Supreme Court's decision the Second Circuit just issued its opinion in Capitol Records v. Redigi.  In this case, Capitol sued a company whose stated purpose was to allow consumers to re‑sell lawfully purchased digital music files.  On the surface such a sale would seem to be authorized by the Kirtsaeng's court's reliance on the First Sale Doctrine.  However the subtle but important distinction here is  that Redigi was infringing on the exclusive right of reproduction.  One cannot distribute digital music files without reproducing them - it's not a physical object, like a textbook or a used record album.  Their reliance on the First Sale Doctrine failed in this case. They also had a bizarre defesne based upon Fair Use but it’s not worth rehashing here.  I don't know if Redigi will appeal the decision. 

            Both these cases illustrate how certain circumstances can inspire paranoia and fear of worse-case scenarios.  They also illustrate how copyright law is  flexible enough to handle the most complicated cases.

New Live Performance Income for Songwiters

Here’s some potentially good news for independent touring artists.  After operating somewhat under the radar, both BMI and ASCAP have made a big push in allowing songwriter artists to collect income from live performance of their work.  While income from live public performance is of course implicit in the rights that BMI, ASCAP and SESAC collect, as a practical matter the organizations historically only have only paid  this income to major artists performing at major venues.  According to an article in the Tennessean a week or so ago, technological innovations now allow the performing rights organizations to direct some of this income to smaller acts who report their performances correctly.  

            The BMI system is called BMI Live, ASCAP’s is called Onstage and SESAC has a program called Live Performance Notification System. 

            I don’t think there is any data  on how much a small or mid-range artist could generate from these programs, but it would be foolish not to investigate them.  One doesn’t want to leave money on the table.  It is great to see technology being used to assist songwriters and performers for once.