Comments

VOGuy wrote on 3/29/2005, 2:00 PM
A good friend just had a case dismissed against him. He wrote a jingle for a large corporation's ad campaign. A few months later he gets sued by the lawyer who represents one of the famous rock groups from the 70s. It appears that the bass track (Just the bass, not the melody) is similar to one of their ancient hits.... Get this -- not the notes, not the progression, but the "feel" is reminescent of the original song.

My frend and his clients go through three lawyers, who supposedly specialize in this area of law... First one wants to settle, second one has some sort of other problems, the third, finally, asks to have the case thrown out of court --turns out there was a great deal of "prior art, with the same bass tracks.

However, the whole thing cost my friend's client, who does have "deep pockets", somewhere close to a million dollars in legal costs. They're still figuring out if they're going to counter sue.

I heard the jingle, compared with the "original" piece. It wasn't even close!

Man! - you CAN sue anybody for anything.
Rednroll wrote on 3/29/2005, 2:57 PM
VOguy,
You make an interesting point. I don't know all the legal laws behind it, and the problem is that there is a big grey area, thus why these things are brought to court in the first place and decided in court. My original post, which DSE so promptly disagrees with was just trying to warn the same thing. DSE might be right and he is not in any violation, but then again DSE isn't paying the court costs to defend against those allogations once they're brought upon him, so he can feel pretty comfortable in saying, to go ahead my IPattorney who specializes in this area says it's ok. My advice is, if you're having to ask because, it's questionable to you if it's legal or not, then don't risk doing it without getting proper clearance with the people who own that original material first. Sometimes, it won't even cost you anything. The problem is it will cost you a lot more if you don't.

I worked at a recording studio where George Clinton did the majority of his recordings. At the time when hip hop music was at a young budding stage, the engineers took George's original multitrack recordings and made sample loop libraries, where the loops/samples could be freely used once you got clearance before hand as outlined in the CD liner notes. George endorced this activity, because he liked to assist new aspiring artists. Often at times George would drop in the studio and pop in on a hip hop recording session and lay some vocal parts down. Anyways, sometimes the owner of the studio who mixed most of George's work would hear new music being played on the radio and he would recognize samples from some of George's music. If those samples weren't cleared the owner was rounding up the engineers at the studio in attempting to replicate the sound they used in their recording that was suspect. Once, the engineers got enough convincing evidence, it was off to court. George didn't have a problem if you used his stuff with clearance before hand, but if he felt you where stealing from him, then that was a problem.

So just a little personal experience on the subject matter. If you want to take a gamble and use part of someone elses music, that's your risk. Just realize what you might be going up against when someone who has direct ownership of the original work might hear it one day and decide you're stealing from them. Chances are their pockets run deeper than yours. I know I wouldn't be coming to this forum for legal advice, because I highly doubt anyone of us are going to be your character witness once the sh*t hits the fan.

Think back to my Vanilla Ice example that I previously mentioned. Remember his argument against the allogations? He said, my bass line goes "Dum Dum da da Dum Dum Da^." The David Bowie "under pressure" bass line goes "Dum Dum da da Dum Dum da." You see the difference, it's not the same thing?
Spot|DSE wrote on 3/29/2005, 3:37 PM
I'll agree with your point, Red, in that anyone can sue anyone for anything.
Listen to my last album's last cut, "We're Still Here" and note for note, almost tempo mapped, same key.....listen to the "new" theme from SWAT. I could sue them. (it ain't worth my time)
I can also sue someone for breaking wind in line at the movie theatre. With only 12 notes in the scale, and the majority of musical works today being 4/4 or 3/4, everything has been done already.
The other side of the story you don't know, is it's MY ass if Yoyodyne's work is a copyright violation, so it's not "that easy for DSE to sit back and talk to his IP attorney while someone else takes the risk." The song is on MY website, and I asked our attorney about it prior to allowing it to be uploaded. So indeed, I'm exposed. And willing to take the risk.
I'm an idiot about a lot of things; copyright ain't one of them. And if I don't know the answer, I've got a very good backup set of IP attorneys in a variety of places who have always been kind about giving me a little time to answer questions in what is often a quagmire of confusion in the video biz.
Rednroll wrote on 3/29/2005, 5:10 PM
Well let's go back to the original question:
"Is it legal to quote the first few bars of a song?"

Since you're the expert here, then let me give you an example question. First off to "Quote" to me means to "Copy" someone elses words/musical phrase verbatim. So let's say, I take a piece of a well known music so everyone has a reference to what we're talking about, let's say Led Zepplin's "Stairway to Heaven". This starts off with a solo guitar part. Let's say that I copy the beginning of that note for note but I play the guitar part and record it myself. From your explaination as I'm understanding that, I could use that in my own recordings or commercial use without any concerns of copywright infringements? Is that correct?

I'm not trying to debate you, but I want to be clear on the question and the answer as I understand it. I worked in the advertising business for quite awhile. Sometimes, the ad adjency would pay some high dollars to use a piece of well known music. One example is that we used part of The Who's "Can't explain". They purchased the rights of that for a mere $250K for a years worth of air time in one specific spot. They actually wanted to get "My Generation" but the price tag on that was $500K. In another instance, the client didn't have that kind of money to use the rights to the original recording, which was the use of Marc Almonds "Tainted Love." Myself and other musicians in that studio, reperformed the song, where I did all the keyboard sequencing, and the other musicians did the vocals, bass, and guitar.. Before we did that, the ad agency again got clearance before it aired. Now the price tag wasn't as high as the original WHO recording but, the ad agency still had to get clearance. These are just all some of my points of reference examples that I have experience with. So if what you're saying is true, then the ad adjency could have hired a good cover band for "Can't Explain" and saved a good $200K+. In the other instance we didn't have to pay anything because we "quoted" the song through our own performance, so nothing was needed to be paid. So in my reference example, I can use the guitar intro to Stairway to Heaven as long as I record it myself and use it however I want? This is how the question read out to me. I didn't have access to the music to compare the two to see how similar they where, thus why I'm using the Led Zep tune so we all have a frame of reference. I'm willing to listen and learn here, so when Jimmy Page comes after me with a lawsuit, I know I'm operating within the confines of the law and have no worries.
Spot|DSE wrote on 3/29/2005, 5:52 PM
"I'm not trying to debate you, but I want to be clear on the question and the answer as I understand it.

I didn't say you DON'T need clearance; if it's a visual broadcast, it's a whole different issue. If it's only replicated to audio disk, it's a whole different issue. If it's a single use, single format stream it's a whole different issue. No where did I say you can do anything you want to do with a reproduction of the song. If you want to record "Stairway to Heaven" note for note, go for it. Release it. As long as you pay compulsories, you can do whatever you want to do with it, as long as you don't sync it to video for broadcast (unless it's a parody) If you want to sync it to vid for broadcast, you need a performance and sync clearance for the piece from the publisher of the song.
I'd also recommend you talk to a lawyer. I'm not a lawyer.
Rednroll wrote on 3/29/2005, 6:21 PM
Ok, thanks for the clarification. Go back and reread my initial reply. What you described is the same thing I was saying, yet here was your response, "I would so love to debate this, because that's not accurate if you record it yourself". I guess it's only accurate when you say it. I'm glad we can agree to disagree and still end up agreeing in saying the same thing...or something like that.
Spot|DSE wrote on 3/29/2005, 7:21 PM
It's in violation if you take part or the entire arrangement. If it's a recognizeable musical "phrase" then you are in violation, and

Sorry, I'm not agreeing with this statement at all. The "and" is a conjuntive, and not a qualifier. I'm not describing anything at all relevant to what you posted earlier.
He is not in violation, and he has comped the performance of the original artist. Therefore, your above statement can't be agreed with. Your second half of the statement is potentially accurate, but you tied it to the first statement, where the two are potentially and often mutually exclusive.
As an example of a more blatant "coulda got away with it" is if Ray Parker Jr. had credited Huey Lewis for "I Want a New Drug" in his song "Ghostbusters." Parker could have kept his royalties for the song, and only paid Lewis the mechanical for the CD's, and negotiated a sync license deal for the movie, and kept his credibility instead of losing everything. Michael Bolton also would have walked for "Love is a Wonderful Thing" if he'd only credited the Isley Brothers.
In the case of Yoyodyne's post, a legal argument *could* be made that even though he recorded the work himself, compulsories could be due because hard drives are mechanical devices, and any mechanical device that contains the copyrighted work should embue a royalty. The question is no longer one of copyright, but of royalties due. So, the original writer of the copyrighted work would need to demonstrate financial damage because the recording may be found on multiple hard drives, depriving the artist of XXX revenue.
If I were an attorney trying to bust Yoyodyne or myself for copyright issues, I'd go down that road. And I'd argue right back that it's a DeMinimis issue.

Finally, and interestingly enough, Mervyns is in court right now, thus far winning a case where they sell a quilt that is a pattern identical to one created and featured in a magazine 4 years ago, made by a woman in Illinois. She claims Mervyn's reps saw the quilt and copied her pattern. She's likely going to lose, but who knows....whatever the outcome, it's quite relevant to this topic.
farss wrote on 3/29/2005, 7:40 PM
Can I please ask a simple question as it affects a project I'm working on.
According to our local APRA I can't get a mechanical icence to release parodies of someone else work without a letter clearing it's use from the original copyright owners. From how I'm reading what DSE is saying this differs from the situation in the USA?
Bob.
Spot|DSE wrote on 3/29/2005, 7:46 PM
In the US, you can release a parody without significant worry over whether the original artist will prevail. Campbell vs Acuff Rose is the original defining case, which basically says not only does parody not have to be good, but it only has to have the implication of parody. In other words, people merely need to know you're poking fun with/at the original work.
This is the premise on which the now-famous Jib-Jab "This Land is Your Land" would have won on, except after they were sued, the lawyers who filed the original suit found out that the song was PD anyway. (public domain)
I don't know the laws down in Oz too well, although I do subscribe to the APRA journo's. But overall, parody here is fairly well protected under the Fair Use doctrines.
Paul Rapp has a great book on the subject, but it won't help you much down there, I guess.
Just wanted to add here, in the US, if you'd like to take any movie, television show, whatever...and make a parody of it, even if it's word for word, you can. An example; Take the script for a Chris Rock movie and instead of shooting it to be funny, shoot it to be macabre or super serious. Maybe a movie where the challenge is that no one laughs. OK, it would be a stupid movie. But it's legal here, nonetheless. From the APRA newsletters, I gather that the Australian laws are based in part around 19th Century French droit moral laws, which in turn are based on 18th Century concepts of individualism springing from the French Revolution and the writings of the German philosophers Hegel and Kant. The law is founded in the special nature of art and the unique place the artist occupies in social importance. The US passed laws relevant to this in order to stay kosher with international laws. It's called "VACA" and the only reason I'm familiar with it is that it prevented Leona Helmsley from destroying works of art in an old building she wanted to turn into a hotel.
farss wrote on 3/29/2005, 8:10 PM
Interesting situation, I guess this stuff isn't strictly parody, in the sense that a parody is normally when you take a stab at something, in this case the new lyrics pay homage to the composer and/or use them in a more up to date context. So of the total effort probably 70% is my guys work and he needs to clear copyright, if none of it was his work (apart from playing the thing) no copyright issues, only mechanicals. Of course this could be some restriction that the ACMA/APRA are placing on their issuing the licence rather than something enshrined in law, perhaps they're just worried as perhaps there's no test cases down here to set a precedent like there is in the USA.
From the way the conversation was going I got the impression that we didn't have to pay the copyright owners anything extra, just get clearance.
Which now that I think about it does lead into another issue, copyright law is not the only thing you can run fowl of, there are other legal avenues that you need to be careful of and this can affect both music and vision.
We could perform. record and market a CD containing Stairway to Heaven so long as we paid the mechanicals. However if in fact we'd turned Stairway to Heaven into Stairway to Hell but failed to mention that small detail on the CD cover we'd be in trouble for reasons apart from copyright, under 'Passing Off'.
Bob.
Sr_C wrote on 3/29/2005, 8:26 PM
The part of this debate that bothers me the most is this quote:

"Just ask Vanilla ICE who used 8 bars of a base line from David Bowie from his biggest hit ever."

!!!???!!! Queen Dammit....not David Bowie!! It was Queen's "Under Pressure" that Vanilla Ice sampled!

boom boom boom ba ba bum boom .....boom boom boom ba ba bum boom ....

Sad it is... I casually play bass guitar and I learned this riff...unfortunatly when I play it most people recognize it as "Ice Ice Baby"......Gits!

Sorry Rednroll...nothing against you...just had to get that off my chest!
filmy wrote on 3/29/2005, 9:05 PM
Wow - this thread could be sued for being a almost note for note copy of other threads. Or no..wait..this is just a parody of those earlier threads right?

:)

Sorry but just reading the exchange between Spot and Red I got MAJOR deja-vu.

So, ok. Here is a question for Bob - when Hole played Big Day out and they went into the cover of G-N-R...as this was a televised show how was that handled? Not that I expect you to have the answer but just the fact that it was not only a cover but also aired how is that handled there? Not to mention how did Aussies handle Courtney's topless act?
farss wrote on 3/29/2005, 9:30 PM
Courtney TOPLESS? Man I gotta watch more TV!

As to how us Australians would handle a topless Courtney, well I guess we'd handle that quite nicely thank you :) But seriously as there's no shortage of topless ladies taking in the sun on our beaches I think unless we could actually handle the items in question it's all a bit ho hum, we even get topless ladies in our news coverage / weather reports.
As to the other question, well performance isn't an issue, so long as the venue holds an APRA licence the performer can play what he pleases. Broadcasting I'm not so certain about but I'd think much the same goes. It's when we get to the selling of the recording part and getting the mechanical licence that the problem arises. If it's a straight cover no problemo, it's when the work is significantly changed, I guess to the extent that you'd be giving credit to more than just the original composer for the work, e.g. 'Special lyrics by...' or 'Additional chorus by...' that's when the problem sets in.
Bob.
Rednroll wrote on 3/30/2005, 1:19 AM
"Queen Dammit"

Lol Sr C. I actually put "Queen" in my first post, when I first mentioned it, then when I was thinking about it later, Bowie came to mind as being the correct artist because I have that version on CD, so I went back and changed it.
JL wrote on 3/31/2005, 4:37 PM
“…With only 12 notes in the scale, and the majority of musical works today being 4/4 or 3/4, everything has been done already.”

I’m pretty sure that Spot did not mean this literally, but the statement aroused my curiosity; and reminded me of a story that Isaac Asimov told in one of his books on mathematics.

Isaac’s story (paraphrased, and from memory): Isaac was in the Navy and to pass the time while out to sea he and three of his shipmates played cards (bridge I think) all day long, every day. After weeks and weeks of daily card playing one of his buddies threw down his cards in bored frustration and exclaimed that they were playing so much that they were “starting to play the same games over again.” To which, after a quick calculation, Isaac replied: “but you could play a million games a second for a billion years and still not play the same game twice!” His shipmate looked at him sympathetically and said: “but friend, there are only 52 cards.” Of course by the laws of mathematics and probabilities, I trust Isaac’s calculation was right.

Ok, so in the spirit of Isaac Asimov, I tried to do a quick and dirty, back of the envelope calculation to estimate how many different melodies could be created based on our western music structure. It soon became apparent that this was no small task. So in taking some liberties to simplify the problem, I came up with the following, admittedly oversimplified, analysis.

Let’s take a simple musical phrase that consists of say 12 notes played one at a time in sequence. To keep it real simple, let’s confine our notes to one octave. Let’s also say that the notes can be of any one of four durations; half, quarter, eighth or sixteenth note. Further, let’s say that any “note” of the phrase could be replaced by any one of four rests: half, quarter, eighth, or sixteenth. So in calculating the number possibilities for the first note in the melody, there are 12 chromatic notes (remember, only one octave) times 4 durations (quarter, eighth, etc.) or 48 possible first notes. If we add the four rests as possibilities then the total becomes 52. In other words we could start the first note of our melody in any one of 52 different ways. (Hey, just like a deck of cards!) Now I realize that there are also whole notes, whole rests, 32nds, 8 octaves, etc. as well as harmonic intervals and chords, but let’s just keep it simple for now and acknowledge that we are being very conservative in our calculations.

So, just as there are 52 different choices for the first note, likewise there are 52 possible choices for the second note, third note, fourth, and so on. You might say at this point that not all notes played next to each other will necessarily be musical. This may be true (and will be accounted for later) but let’s ignore it for now as we are concerned with how many different combinations are possible given the above parameters, not whether the ensuing melody will be good or bad.

So carrying out the math for our very basic 12-note melody, we get 52 raised to the 12th power, or 390,000,000,000,000,000,000 different possible note combinations. This is an astronomical number. Of course not all of them would be considered ‘good’ or ‘musical’. To sidestep this rather large hurdle, one might apply an old expression and say that a ‘good’ melody is “one in a million”. And so as a rough approximation we might then say that there could be one good melody out of every million, or say, 390,000,000,000,000 “good” melodies in our basic example.

To put this number in perspective in a similar way as Asimov did, one could say that if a million new melodies were created each year for the next million years, it still would not have exhausted all the ‘good’ ones.

Sorry for the rather long-winded post but I find the subject (music) to be quite fascinating. Also please don’t anyone take this exercise to be any kind of formal mathematical analysis of musical permutations, just some food for thought.

JL