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Sticky Fingers
Raiding the Copyright Cookie Jar
Part I

© 2015 Mark Barinholtz

               After many years in the litigation trenches, and the last few really close up, I’ve decided to share a few thoughts about the doctrine of fair use – how it came to be, how it has changed over the years, what the law really says and how it’s being applied (or misapplied) by our courts. I’m saving some of the more in-depth historical and legal niceties for Part II of the Article which I’ll be posting right after the New Year. Although my practice centers primarily on visual and literary content issues, there’s been a steady run in recent years and particularly this past year, of music-related cases. Many involved the fair use defense. Part I examines some of those.


Introduction


              Since the advent of the Internet revolution, there has been a trend toward increased (and often unjustified) reliance on the fair use defense by unauthorized users of works created by others. The battle lines are drawn between those creators who want to protect the integrity and right to exploit their own works, versus those who believe that it’s okay to use whatever they can see or reach publicly, in nearly any manner they desire. The sides don’t line up neatly on the basis of their relative financial strengths. From non-commercial bloggers on one hand to the most powerful Internet forces on the other, ripping off original works seems to be the sport of the day. Through the efforts of organizations wielding substantial market power, e.g., Google and others, there’s been a constant push -- either overtly or subliminally -- to support the mistaken belief that “if it’s on the Internet, it’s free.” While creative authors may themselves choose to make their works available without restrictions, that’s their choice -- not the prerogative of others who are either too lazy or too cheap to do the right thing.


              This year’s been a cornucopia of music related cases involving such diverse copyright issues as infringement and term renewals. From the Blurred Lines dispute between the heirs of Marvin Gaye versus Robin Thicke and Pharrell Williams, to the recent decision in a Los Angeles federal court that divested Warner/Chappell Music of its claimed copyright in the lyrics to the Happy Birthday song, copyright rights in music have been at the forefront. This year also saw the guys known as Flo & Eddie (a/k/a The Turtles) win a significant victory in court battling for their pre-1972 performance rights royalties. (See, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1072&context=clrcircuit ) And most recently, in the complex world of termination rights in the context of global copyright exploitation of music, the Second Circuit handed the parties a mixed decision in Baldwin v. EMI Feist, on the issue of termination rights in the song Santa Claus is Coming to Town.


              In a development of some concern, this year saw the doctrine of fair use invade the domain of the Digital Millennium Copyright Act (the DMCA). The Ninth Circuit Court of Appeals in the case of Lenz v. Universal Music, analyzed whether a take-down notice under the DMCA’s safe- harbor provision was made in good faith where a presumptively plausible fair use defense could have been considered. The underlying case involved use of a recording of the song Let’s Go Crazy, by the artist once again known as Prince. The recording was used without authorization to provide an amusing soundtrack for a YouTube video showing a child dancing to the music in a family’s home kitchen. A court battle erupted over competing take-down and put-back notices between Ms. Lenz (the child’s mother) and Prince’s publisher Universal Music. Part II of this Article will discuss the Lenz case in more detail, but suffice to say the doctrine of fair use played a major role in the court’s decision.


              In fact, many of the music matters that make news, wind up in litigation that revolves around the fair use doctrine. Here are a few of those.


Politicians and the Silly Season:


              As I am writing this Article, we are just coming out of what is sometimes referred to as “the silly season.” An overabundance of political candidates in both parties vying for their party’s nomination for the 2016 presidential election, have brought out a significant round of musical mischief by those politicians who should know better. In this election cycle alone, two recent examples of crowd teasers are: Donald Trump and Senator Ted Cruz using R.E.M.’s Its the End of the World As We Know It, at a rally to criticize the Iran nuclear deal (See, http://www.rollingstone.com/music/news/r-e-m-to-trump-other-pols-go-f--k-yourselves-for-using-our-music-20160909 ), and Mike Huckabee using Survivor’s inspirational Rocky III theme Eye of the Tiger to celebrate the release from detention of a Kentucky County Clerk who refused to issue a marriage license to a same-sex couple. (See, http://www.rollingstone.com/music/news/survivor-condemn-mike-huckabee-kim-davis-for-eye-of-the-tiger-usage-20160909 ) In other not too distant election cycles it was Newt Gingrich, also using Eye of the Tiger, and John McCain using Jackson Browne’s Running on Empty, to rev up the rally attendees’ enthusiasm.


              The response by politicians who are caught using recorded, copyright-protected music for their rally events or advertisements is inevitably that the fair use doctrine immunizes them from claims of unauthorized use. Generally, there is also the claim that somehow the First Amendment plays a legal role in allowing such “borrowing” to go on. In most cases, neither excuse is meritorious. Although often these uses cease and desist when demanded, and otherwise settle quickly, the Gingrich and McCain disputes both wound up in costly litigation. Reportedly, the songwriters came out on top.


              Playing fast-and-loose with popular recorded music is not a wise approach for a politician. There are appropriate licenses which can be obtained from composers, publishers and record companies, as may be required. But, just playing someone else’s song to add sizzle to the candidate’s otherwise mundane political appearance or ad can end up in costly litigation. Or, it might just be plain embarrassing. An example -- Charlie Crist’s apology to David Byrne for the former Governor’s unauthorized campaign use of the Talking Heads’ song Road to Nowhere. (See, https://www.youtube.com/watch?v=s4k13LmlcUE ) Using a songwriter’s music to advance your own political ambitions, without the composer’s permission, is virtually never a fair use.


Parody: Another Misunderstood Area of Fair Use


              A 2012 decision in the Seventh Circuit dealt with an animated audio-visual parody of a music video that had gone “viral” on the Internet. The case of Brownmark v. Comedy Partners involved a parody of a real-world viral video which had been posted by a Wisconsin firm, Brownmark Films, on YouTube. The video, entitled What What (In The Butt) (WWITB) featured a real-life adult male, the openly gay entertainer known as Samwell, dancing to the music and lyrics of What What (In The Butt) -- a sexually suggestive romp. Various animated backgrounds were added in behind the male dancer, and keyed to the apparently original musical composition. The folks at Comedy Partners (the producers of TV’s South Park) decided to create a satiric episode in the TV series mocking the then current (2007-08) Writers’ Guild strike. They chose the story motif of the entire country of Canada going on strike to obtain a share of imaginary worldwide Internet viral video revenues. As part of the episode, the South Park folks decided WWITB -- having previously achieved Internet fame -- would make a good target to include in the joke. They created a spoof of Samwell’s video as part of the “Canada On Strike” episode of the TV series. In the episode, the foul-mouthed South Park kids, through the character Butters, perform a parodic send-up of Samwell’s WWITB YouTube post. Brownmark, as purported co-owner of the video, sued.


              The South Park producers’ parody of the WWITB video, used the same title and theme. And the district and appellate courts’ decisions conceded the South Park parody recreated “a large portion of the [Brownmark] version, using the same angles, framing, dance moves and visual elements.” ( See side-by-side comparison of original Samwell video versus South Park parody at, https://www.youtube.com/watch?v=napyhGiC00A ) Nevertheless, the federal district court dismissed the case on the face of the complaint and its exhibits, and on the bare assertion of a fair use defense. A fine how d’ya do! In affirming the district court’s dismissal, the Seventh Circuit spoke approvingly of the notion that a federal district judge could dispose of such a parody case by defendant simply raising the fair use defense, even without the benefit of thorough discovery. It seems unfair the court could assume it was proper to decide the matter on its own.


               Although parody is a context within which the fair use doctrine is often analyzed, its contours are legally very carefully drawn and do not automatically apply simply because the creative work is being lampooned. Adding to the problem, today’s courts are increasingly bold in deciding for themselves, without the benefit of a jury, what is or is not a fair use. That’s a significant departure from the days of old, when once the court determined there was an issue of fair use, the case would routinely be put before a jury to decide. But more about that in Part II of this Article.


               On a positive note, a good example of an artist who respects, or at least seriously considers, the rights in the underlying works which he parodies, is Weird Al Yankovic. Weird Al, it has been widely reported, generally seeks permissions from authors of musical works before he puts his offbeat humor to work creating new lyrics for familiar tunes. In addition, he often tailors his parodies to meet the concerns of the composers whose musical works he’s poking fun at. (See, https://en.wikipedia.org/wiki/%22Weird_Al%22_Yankovic#Refused_parodies ) With reference to Eye of the Tiger discussed above, Weird Al has created a parody entitled “The Rye or the Kaiser,” a comically imaginary vision of our hero Rocky’s post-boxing years as the less than heroic owner of the neighborhood deli. In the parody lyrics, we find post-boxing Rocky touting the daily sandwich specials to be enjoyed on “The Rye or the Kaiser,” sung to the tune of the music for Eye Of The Tiger. Although the lyrics are intended asparody, the music is essentially verbatim.


              An important takeaway is that even parody, particularly when significant copying will be employed, should be based on permission. It’s highly risky for unauthorized users to simply hope that their use is a fair one just because they believe that they are creating a parody. It’s too complicated for creatives, on their own, to assess what is or is not a true parody, or “how much is too much” of the original to take in order to make their point. The lesson from Weird Al is simple: it’s more productive to spend your time creating and performing than to ignore the rights of others and wind up spending your time and money defending the fair use doctrine in costly litigation.


Conclusion:


              The arc of history in relation to the rise and evolution of the fair use doctrine is beginning to bend in what I believe is the wrong direction. What was originally conceived as a reasonably narrow, carefully applied safety valve to allow sensible, tailored uses of the creative works of others, for certain laudable purposes, has become the knee-jerk, all-purpose excuse of choice for unauthorized users of all kinds and economic strengths. We all love the Internet and the miraculous worlds it opens up for us. But, the potential erosion of what the Framers intended as a significant means to foster the public benefit, i.e., the protection of authors’ works, is being threatened by an overreliance on, and misinterpretation of, the doctrine of fair use.


Postscript:

Mark Barenholtz and Jim Peterik

Among other factors which inspired me to write this article was a fortuitous encounter with Jim Peterik, co-writer with Frankie Sullivan of Survivors’ Eye of the Tiger. I attended a bar association entertainment law seminar in Chicago where Jim spoke on legal issues pertaining to songwriting. In addition to being incredibly knowledgable about copyright in music matters, Jim lit up the room full of lawyers with his live, acoustic rendition of Eye of the Tiger. Note, the selection of topics discussed and the opinions expressed in this Article are strictly my own. Jim has simply been kind enough to allow me to post this photo. (You can learn more about Jim at: http://jimpeterik.com )