Law

ASCAP Thinks That Video Game Providers Should Pay Music Performance Royalties

June 5, 2009 8:27 pm by Blaise Alleyne — —

This post originally appeared on Techdirt.

Despite claiming to represent the interests of songwriters and composers, ASCAP has consistently provided bad advice on how they should respond to digital technology and the internet. For ASCAP and many other collection societies, anything that doesn’t involve royalties seems automatically bad (despite all the success from artists who’ve been freeing up their content), and other questionable practices raise serious doubts over how royalty money is handled once collected. Now, ASCAP wants to increase the toll on video games and is encouraging video game music composers to reserve performance rights (via Michael Scott). Typically, game developers purchase rights (including performance rights) from music composers, but ASCAP’s Director of Legal Affairs, Christine Pepe, argues that the practice no longer makes sense. She suggests adopting the model that was developed for film and television, where composers and songwriters often negotiate contractual provisions for performance royalties.

Not surprisingly, there are some major problems with the article.

First of all, Pepe cites Rock Band, Guitar Hero, Dance Dance Revolution and Stubbs the Zombie to highlight the prominence of music in video games nowadays. These are all cases of popular songs being used in games, rather than music being written for games… yet she’s presumably addressing people who write music for video games. Early versions of Guitar Hero used covers to make licensing easier, so composers weren’t even part of the negotiation. This licensing is about synchronization or mechanical rights — not performance rights. Labels have complained that these games aren’t paying enough for the music, but it’s the games that increase the value (and sales) of the music, not the other way around. These games could simply choose other good music and still be popular. ASCAP clearly doesn’t understand that, while music can add value to games, games add value to music. Pepe says that older video game music is “probably difficult to imagine… in a context other than the games themselves.” She isn’t trying very hard to use her imagination, as there are plenty of examples of older video game music having a life outside of the games. Would anyone care about the Mario theme if it weren’t part of the game? The lesson from old video game music isn’t that performance royalties used to be negligible. It’s that success for a video game music composer isn’t just about writing good music, but about having that music associated with successful games.

Second, Pepe’s argument that there’s a public performance of music in video games seems like a real stretch:

Now, because video games are being delivered by entities other than developers and on transmission-based platforms such as the Internet, there is no reason that composers of music for video games should sign away their rights. Take for instance, X-Box — it is now fully integrated with the Internet and allows users to stream games (instead of just purchase the physical product in the store). Internet-based services that now offer streaming of video games are causing the music contained in such games to be publicly performed. The providers of these video game services typically have or should have a license from ASCAP (and possibly other public performance right organizations). [emphasis mine]

What does “streaming” a video game even mean? A video game is interactive; it’s not a one-way broadcast, but communication over a network. Is Pepe suggesting that there’s a public performance simply because software communicates over the internet? Email happens on the internet. Is that a public performance? There’s such a thing as private communication over a network. Games like Gears of War, for example, allow you to play in co-op mode with another player in the same room or online. I find it hard to believe that the location of player two would determine whether or not the music is being publicly performed. What about a multiplayer game on a local area network? Why would that be any different, in terms of a public performance of music, from a multi-player game with everyone in the same room? Simply playing a game over a network doesn’t make it a performance, nor does that make it public.

But maybe Pepe isn’t referring to having players in remote locations, but having games in remote locations. She uses the Xbox as an example, which seems odd because, as I understand it, the Xbox Live Arcade lets you download games, but that’s quite different from streaming. It’s the video game equivalent of the iTunes Music Store, not an internet radio station. Digital distribution doesn’t mean public performance — the game is still played locally, just off a hard drive instead of a plastic disk.

Okay, so maybe Pepe was trying to talk about a platform that actually hosts and runs games on a remote computer. Still, it’s pretty hard to believe that just because software is run remotely it’s a public performance of the music, when the act of hearing the music would be indistinguishable if the software were run locally. Is it a “public” if I check my email using the Gmail web interface instead of Thunderbird? I have a music server running at home which lets me login and listen to my library from anywhere — is using that a public performance? Do I need a license to listen to my own library because it’s on a different hard drive? How does playing music in a video game become a public performance simply because of the hard drive the game resides on or the CPU that runs the process?

Furthermore, let’s pretend there’s actually public performance taking place. Is it even in a composer’s best interest to demand these royalties? (This is not about a composers “right to get paid;” composers are getting paid — upfront.) Making it harder for people to hear your music is rarely a good idea. Like with theme music for WKRP in Cincinnati or House in the UK, game developers may just seek other music if the licensing requirements are too burdensome. Focusing on getting every penny for every use of the music ignores the value of being included in a game, film or television show. The lesson from video game music of the past and present is that having your music included in a great game is extremely valuable. Not only are you getting paid to be promoted, but the game developers are even doing the hard work of getting fans to connect with the music! Rather than demanding compensation for every use, composers and songwriters should look at other ways to take advantage of the opportunity to make more money from the increased fan base. If ASCAP were really representing their interests, it would be helping them do this instead of pretending that the internet and video games are like television and insisting on performance royalties which will only get in the way of new business models. Of course, don’t expect ASCAP to promote anything that isn’t about increasing royalties. If your only tool is a hammer, everything looks like a nail… [or rather, as Hulser puts it: "if the only tool you sell is a hammer, you need everyone to keep buying nails."]

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Canadian Copyright Expert On Levy Proposals: Today’s Quickie Legislative Solutions Are Tomorrow’s Absurdities

June 1, 2009 11:54 pm by Blaise Alleyne — —

This post originally appeared on Techdirt.

Howard Knopf, a well known Canadian copyright expert, recently took a look at some of the failed copyright levy proposals in Canada. The Canadian Private Copying Collective (CPCC) administers the tax levy on blank CDs, which now accounts for almost 90% of the price. In 2002, similar proposals to extend the levy to DVDs and digital audio players were shot down. It’s a good thing they were! Knopf notes that the $2.27 levy proposed in 2002 is now about 10 times the retail price of a blank DVD, and the $21/GB levy proposed for digital audio players would have left a 120 GB iPod (<$300 CAD) with a $2520 tax. You might think the CPCC would have decreased the levies over time, but the blank CD levy was just increased this past December (blank CDs cost more in Canada than blank DVDs). Even if the levies were lowered, it would be because they had already become unbearable. Imagine the bureaucracy and battles at the Copyright Board, and imagine the effect on Canadian consumers, tech companies in the meantime (what if the Blackberry was classified as a digital audio device?).

The point is that these quick solutions aren’t solutions at all. Setting up “you’re a criminal” taxes to collect money for companies that can’t figure out how to adjust their business models is bound to block innovative new technologies, and you can’t predict what technologies will drive new business models. As Knopf puts it, “all of this shows that today’s quickie proposed legislative solutions and oft inflated tariff proposals to deal with supposedly serious crises arising from copyright and new technology are potentially tomorrows’ absurdities or even nightmares.”

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Music Fans And ‘Amateur Musicologists’ May Impact Coldplay/Satriani Copyright Battle

May 18, 2009 10:44 pm by Blaise Alleyne — —

This article originally appeared on Techdirt.

In the April 2009 issue of Entertainment Law & Finance, three partners in the Intellectual Property Group at Kilpatrick Stockton LLP take a look at the role that “amateur musicologists” have played thus far in the copyright battle stemming from Satriani’s lawsuit against Coldplay for copyright infringement back in December. I’ll include relevant quotes from the article, since you need to register for a free account in order to read the PDF.

What makes this case unique is the lively debate that it has prompted, which will likely impact how this action and similar infringement cases will be prosecuted and defended going forward. Within days of the suit’s initiation, the popular Web site YouTube was inundated with postings in which fans freely offered their opinions concerning the merits of Satriani’s claims (or absence there-of). Some of these submissions were supported by surprisingly detailed analyses of the works.

We saw this in the comments on Techdirt, as there was a lively debate and people were quick to mention a variety of other songs with the same melody. The article also mentions a Canadian guitar teacher who uploaded some videos to YouTube with a detailed analysis.

The parties should take note of the prior art works that have surfaced as part of the public debate. Such works could prove to be helpful to Coldplay in defending against Satriani’s claims, as they could reflect that Satriani himself may have “unconsciously copied” from an earlier work.

This was written before Cat Stevens claimed that Coldplay was actually infringing his song, the “Foreigner Suite,” which was one of the similar sounding tunes people had noticed online. Anyone monitoring the online discussion about the copyright battle would have had this on their radar. Also, it was Cat Stevens’ son who brought the song to his attention, my guess would be as a result of discussion about the similarities online.

Or [prior art] may simply reflect these oft-quoted words from the Second Circuit: “It must be remembered that, while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of palgiarism.” Darrell v. Joe Morris Music Corp., 113 F.2d 80, 80 (2d Cir. 1940)

This quote reinforces the idea that there are only so many ways to combine chords.

What makes the Internet commentary regarding the two songs particularly interesting is that much of it replicates the type of expert analysis that both sides will likely use if the case goes forward. In music copyright infringement cases, it is rare for parties to rely solely on bare assertions of copying or independent creation. Instead, they frequently engage “musicology” experts to undertake detailed analyses of every element of alleged similarity between the two works and conclude whether all or portions of one work were copied from the other. The parties and their experts in [this case] should consider the analyses of the “amateur musicologists” that have weighed in via the Internet and other media, if for no other reason than they may be informative of how a jury might ultimately view the case…


While Satriani v. Martin may not go to trial for a variety of reasons, it is clear that user-generated content sites like YouTube have the potential to alter the way music cases — and other types of copyright case — are developed. Because advances in technology allow the public to participate in real-time infringement debate, future parties would do well to monitor this “chatter” as it could uncover evidence and theories that may be helpful to the case of the copyright owner, the alleged infringer or both.

The online discussion is largely what has made this case so unique. There have been successful copyright infringement lawsuits over melodies in the past (most notably Bright Tunes v. Harrisongs), but never has the public been able to participate so much in the debate. I think it’s likely that Cat Stevens’ son wouldn’t have known of the similarity between the melodies if not for all of the other people who noticed and highlighted it online. If the case does go to trial, the internet commentary may influence the strategy on both sides and serve as a preview of the arguments. If it doesn’t go to trial, the online discussion may influence any sort of negotiation as a means of assessing opinion on the merits of the infringement claim.

The melodies are undoubtedly similar, but the legal question is whether or not Coldplay copied from Satriani. It’s not just Coldplay’s word against Satriani’s, but music fans and “amateur musicologists” are gathering evidence and providing theories which are having a noticeable impact on the proceedings.

Read the comments on Techdirt.

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Girl Talk On Remix As An Art Form

May 16, 2009 1:21 am by Blaise Alleyne — —

This article originally appeared on Techdirt.

Greg Gillis (aka Girl Talk) recently participated in a live chat as part of a Download Decade series run by the Globe and Mail. Gillis makes music entirely from samples, combining existing songs in creative ways to make something new. His last album, which was offered as a pay-what-you-want download, used over 300 samples. Even though he’s been held up in Congress as an example of why traditional copyright laws might no longer make sense, it seems like a lawsuit is inevitable because Gillis doesn’t license any of the samples he uses. Yet, there has been no legal action to date (knock on wood!). Gillis argues that his sampling is fair use because it’s transformative, but that hasn’t been tested in court.

In the chat, he responded to a question I raised about why he uses a noncommercial license for his music (as he makes commercial use of others’ works), arguing that transformative fair use would still allow commercial use of his music and noting that his label suggested the noncommercial license as a “safe move.” Gillis was also asked whether he’s surprised that he still hasn’t faced a lawsuit, even though his profile has been much higher in the past few years.

Kind of. I believe in what I’m doing. I do not think it should be illegal. But at the same time, if you look at the history of sample-based music, it is somewhat surprising. Biz Markie, 2 Live Crew, Danger Mouse, Negativland, etc. Those are the people who laid the groundwork. They all had issues.

He notes that he was under the radar with his first couple albums, but since 2006, it’s been hard for him to ignore publications like the Rolling Stone and the New York Times talking about how he’s going to get sued. Yet, no lawsuits. He says times are changing.

The way the general public views intellectual property in 2009 is much different than in 1999. Look around the internet. So much content comes from pre-existing media. We’re used to it now. Christian Bale goes crazy on the set of T4. That turns into a techno song, which then turns into a cartoon on YouTube, which will then turn into a T-shirt. Everyone is constantly exchanging ideas and building upon previously existing material. So the idea of a remix being a real artform is being validated in our culture every day.

Certainly, artists like Girl Talk, as well as others ranging from DJ Kutiman to the creator of the “rap chop” video, have been debunking the myths about “original” content, showing people that remixing can be creative and original and that it contributes to culture. Still, there are plenty of people who believe otherwise. Hopefully, Gillis continues to avoid legal troubles, though I don’t think things have changed so much that this isn’t still a huge risk. But, insofar as the remix is increasingly validated as an art form, perhaps a lawsuit would end up highlighting the limits that copyright law places on artistic expression nowadays.

Read the comments on Techdirt.

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What is Cyberbullying Anyways?

May 11, 2009 5:40 pm by Blaise Alleyne — —

This post originally appeared on Techdirt.

We’ve been hearing a lot about “cyberbullying” lately. Cases like the Lori Drew incident have got politicians and teachers all over looking to pass vague new rules and laws (or twist existing ones) to punish behavior they feel is wrong. The problem is, no one really seems to be able to define the term, at least not in a way that really distinguishes it from simply being a jerk online, so it’s encouraging to see a paper from a vice president of Stetson University, Darby Dickerson, calling on educators to slow down and define cyberbullying before creating policies about it, though I’m not sure she gets to the heart of the issue. Dickerson observes that people have been using the term often and easily, without any real consensus on what it includes and what it doesn’t. In the absence of a generally accepted scholarly or legal definition, she calls on universities to take four steps before creating a cyberbullying policy:

  1. consider the types of activity that might be included within the term,
  2. consider the type of harm,
  3. consider the level of intent required by the offender,
  4. determine the extent that it will address off-campus conduct.

This is good advice and Dickerson does a pretty good job of outlining the concerns. She notes that conduct such as “cyberstalking” or “cyberthreats” might be included, while issues of fraud probably shouldn’t be, arguing that “not all misconduct that occurs online should be labelled as cyberbullying.” She cautions institutions to remember “free speech and related constitutional concerns.” She’s skeptical of extending the term to include simply being a jerk online, and he questions labeling students as cyberbullies who don’t display real malice or hostility. She also raises lots of important questions about what it means to be “off-campus” in cyberspace. Dickerson concludes by urging institutions to clearly define the term before enacting policies, highlighting many important questions that must be answered first.

Yet… Dickerson ignores one major consideration: why have a separate policy for cyberbullying anyway? It seems to me that in order to consider these issues sanely, we need to stop pretending they’re separate things simply because we apply a “cyber” prefix to them. What’s a “cyberthreat?” How is that different from a threat in general? Is a “cyberthreat” just a threat made online? What if it’s made with a cell phone instead? What about a plain old telephone? Yes, the medium must be considered (“you’re going to die” is different when shouted in a playground than written in letters cut out of a magazine…), but do we create separate terms or policies for each medium? We do often need to re-examine our laws and policies in the face of new technologies, but it rarely makes sense to have separate “cyberpolicies” instead of ensuring that existing policies are adapted to handle the new technologies. Why not ensure that existing harassment policies cover real harassment that occurs online instead of creating a new “cyberharassment” policy? Without a consideration of the difference between cyberbullying and bullying in general at the heart of this discussion, people run the risk of spending their energy blaming the technology and grandstanding, creating new policies with troubling unintended consequences rather than addressing the real issue, which often may well just be plain old bullying in a new context. The new context can certainly present new challenges that might warrant policy changes, but people should be careful not to get distracted from the issue of bullying just because it has “cyber” tacked onto the front.

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The Illusion That “Choice” Means That There’s Nothing To Fear From Code

May 10, 2009 8:00 am by Blaise Alleyne — —

Adam Thierer’s reaction essay appeared in the Cato Unbound debate on Friday, Code, Pessimism, and the Illusion of “Perfect Control.” He argues that the basis for Lessig’s pessimism in his book, Code, was his illusory belief that code provides a mechanism for “perfect control.” While he levies some strong criticisms of this position and argues that a regulatory alternative could be much worse, he seems to take an equally illusory position of optimism in the essay.

First, Thierer ignores all the bad stuff:

Not only are walled gardens dead, but just about every proprietary digital system is quickly cracked open and modified or challenged by open source and free-to-the-world Web 2.0 alternatives. How can this be the case if, as Lessig predicted, unregulated code creates a world of “perfect control”?

I’ve already agreed with Zittrain that “cracked open” isn’t good enough, but… did I miss the death of walled gardens? What about the iPhone app store, the Kindle approach and Facebook and the walled garden approach to social networking sites? I still believe there’s reason to be optimistic — open strategies tend to win out — but to ignore all of the latest walled gardens is to ignore several elephants in the room (that’s one crowded room…). This was disappointing as Thierer has provided a much more nuanced view at other times.

Second, Thierer has an awkward take on the difference between “open” and “closed” technologies:

Indeed, despite all this hand-wringing by the Lessigites, there exists a diverse spectrum of innovative digital alternatives from which to choose. Do you want wide-open, tinker-friendly devices, sites, or software? You got it. Do you want a more closed, simple, and safe online experience? You can have that, too. And there are plenty of choices in between. It sounds more like “perfect competition” than “perfect control” to me

This fallacy just grates on me. The spectrum of technologies Thierer presents has “tinker-friendly” and “safe and simpler” at opposite ends. Why don’t we demand both? WordPress defies this spectrum; a hosted blog at WordPress.com is safe and simple, but that code is available at WordPress.org for anyone to install and tinker with on their own servers. Few would disagree that Firefox is safe and simple, but it’s also “wide-open” free software with which anyone can tinker.

What bothers me about this spectrum is that Thierer implies — whether intentionally or not — that “tinker-friendly” means complicated and dangerous, while “closed” allows things to be safe and simple (because we all know how safe and simple Windows is…). There is no reason that technology needs to be “closed” in order for it be safe and simple. WordPress and Firefox are not compromises between freedom and ease-of use, but technologies that insist on both. Yes, it’s a challenge to coordinate freedom and simplicity, but these are not opposites, there is not an inverse relationship.

We should demand better from technologies which limit freedom. Demanding better isn’t simply choosing another product to avoid the chains yourself, but it also means helping your neighbour to do so as well. I’m not sure that this is the cyber-collectivism that Thierer ascribes to Lessig, as Zittrain’s argument for civic technologies takes a middle road between cyber-libertarianism and the “technocratic philosopher kings” Lessig is accused of suggesting, but it’s more than just saying that things are fine because we have some choice.

By making it seem like there’s nothing wrong and that closed systems go hand-in-hand with “safe and simple,” Thierer responds to Lessig’s illusions with an illusory picture of his own. He is right that code doesn’t provide “perfect control,” and that pessimism is unwarranted, but that doesn’t mean we shouldn’t recognize shortcomings and demand better from the makers of technologies on which we increasingly rely.

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Unlocking An iPhone Is Not Freedom; Zittrain Argues For Civic Technologies

May 7, 2009 12:01 am by Blaise Alleyne — —

Cato Unbound has an outstanding online debate going on right now about Lawrence Lessig’s book Code and Other Laws of Cyberspace as it hits 10 years. Declan McCullagh started things off with a post entitled, “What Larry Didn’t Get,” offering a libertarian critique of Lessig’s approach and accusing him of favouring “technocratic philosopher kings.” Jonathan Zittrain has the latest post, “How To Get What We All Want,” which focuses on the similarities between McCullagh and Lessig and takes a middle ground between libertarianism and government regulation, arguing for civic technologies. Adam Theier has a post going up on Friday, and Lessig himself will have the last word on Monday. I highly suggest you check it out, if you’re at all interested in these issues and haven’t seen it already.

Now, I haven’t yet read Zittrain’s book, The Future of the Internet — And How To Stop It, but from the sorts of things I’ve read about it, I don’t think I share his pessimism. However, one line in his contribution to the debate really resonated with me. After talking about the dangers and limitations of proprietary technologies controlled by vendors (e.g. iPhone, Kindle, Facebook), he remarks:

This is the future of the Internet that I want to stop, and it’s small solace that geeks can avoid it for themselves if they can’t easily bring everyone else with them. [emphasis mine]

I get so frustrated when people rationalize the locked down nature of the iPhone by saying that they can just unlock it. Unlocking an iPhone is not freedom. (1) It still rewards Apple, the maker of the chains, through the purchase; (2) it’s a disservice to the vast majority of people who don’t have the skills to unlock their devices.

I strongly believe that if geeks want to do something useful to solve the problems that Lessig and Zittrain identify, it has to involve supporting free (libre) technologies that don’t have any chains, instead of just buying into proprietary technologies and removing their own chains.

The counterargument to Zittrain’s thesis isn’t a jailbroken iPhone; it’s an OpenMoko Freerunner.

This is why Zittrain holds up Wikipedia as an example of a civic technology; he notes the fact that Wikipedia is licensed freely. Free culture and free software are what produce civic technologies.

I don’t share his pessimism, but I sympathize with his argument for civic technologies.

Civic technologies seek to integrate a respect for individual freedom and action with the power of cooperation. Too often libertarians focus solely on personal freedoms rather than the serious responsibilities we can undertake together to help retain them, while others turn too soon to government regulation to preserve our values. I don’t think .gov and .com never work. I just think we too easily underestimate the possibilities of .org – the roles we can play as netizens rather than merely as voters or consumers.

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Cat Stevens Claims Coldplay’s “Viva La Vida” Was Copied From His Song, Not Satriani’s

May 5, 2009 1:09 pm by Blaise Alleyne — —

This post originally appeared on Techdirt.

When guitarist Joe Satriani sued Coldplay for copyright infringement last December, Techdirt readers were quick to point out lots of other songs that sound similar (a great example of the importance of the conversation). Keyz noted that both songs sound a lot like a 1973 Cat Stevens tune.

Guess who else noticed?

Cat Stevens (whose name is now Yusuf Islam) has accused Coldplay of copying his melody from the “Foreigner Suite” (feel free to compare). He told the U. K. Sun, “there’s been this argument about Coldplay stealing this melody from Joe Satriani, but, if you listen to it, it’s mine! It’s the Foreigner Suite, it is!” He claimed that his decision whether or not to pursue this legally will “depend on how well Satriani does” (this wouldn’t be the first such lawsuit from Islam).

The problem is, once you think about this for 6-8 seconds (the length of the melody in question)… it’s just insane. Is Islam threatening Satriani too? If Coldplay used his melody, isn’t Satriani also guilty? Does Satriani still feel that dagger through his heart if the melody wasn’t even “his” to begin with? What about the Creaky Boards, who also claimed the song as theirs a year ago? What about all the other songs that sound similar — Pounding (Doves), J’en Ai Marre (Alizee), Honesty (Billy Joel), Frances Limon (Enanitos Verdes), Hearts (Marty Balin)? At what point does it become obvious that it’s more likely that no copying took place than that everyone is guilty of plagiarism? If anything, this accusation strengthens Coldplay’s claim that this was just a coincidence.

A cynic might assume these are just blatant money grabs or publicity stunts; Satriani is demanding “any and all profits,” Islam is waiting to see how well Satriani does and the accusation comes the day before his latest album release. Also, a cynical approach would explain why Islam seems to be threatening Coldplay instead of Satriani (hint: which song has made more money?), unless Islam’s just letting Satriani do all the work and planning to lay claim on whatever he captures. Unfortunately, I think there may be a little honesty (no, not the Billy Joel song…) to Satriani’s “dagger to the heart” comment and Islam’s exclamation of “it’s mine!” (my precious…). The success of “Viva La Vida” has provided the incentive to actually make these accusations real, but they do seem to be rooted in some sense of actually feeling wronged; these artists really seem to believe some sort of injustice has occurred, that no one else would have come up with the same few notes over the same few chords except by “stealing” from them. Of all people, musicians ought to know there are only so many ways to combine chords. Worrying about who came up with the idea “first” is yet another case of favoring invention over innovation, of giving a rather meaningless importance to chronology when it’s really the way in which people connect with the art that’s most important.

There have been successful copyright infringement lawsuits over melodies in the past, but I’m not sure that there has been such a high profile case like this with multiple people claiming infringement. Hopefully, the overlapping accusations of plagiarism backfire and actually suggest there was no wrongdoing so that a silly and complex web-of-royalties scenario is avoided for what was most likely independent creation. Here’s to hoping that another two or three artists add to the chorus of accusations, further demonstrating how ridiculous this all is!

Read the comments on Techdirt.

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Coldplay Denies Copying Satriani In Federal Court Filing

April 16, 2009 3:41 pm by Blaise Alleyne — —

This post originally appeared on Techdirt.

Last December, guitarist Joe Satriani sued Coldplay for copyright infringement over a similar sounding melody. The story generated a lot of discussion here, as people dug up countless examples of other songs with similar melodies (some predating Satriani’s tune) to support the argument that it might just be a natural melody to sing over the chords. The lawsuit resurfaced in the news around the Grammys, with Coldplay calling it “ridiculous” and Satriani making an emotional case (“I felt like a dagger went right through my heart. It hurt so much…”). Techdirt reader GK points to the news that, last week, Coldplay’s lawyers submitted a federal court filing arguing that any similarities between the two songs were not significant enough to warrant damages. It looks like this may actually go to trial since Satriani is demanding “any and all profits” and Coldplay is standing its ground, but GK suspects that they’ll likely reach a settlement in the end, “offering Satriani a sense of vindication and Coldplay a quieter option for laying the thing to rest.” That seems to be what Satriani wants.

If this really is a case of independent creation, it’s troubling how difficult that would be to prove. In the comments of our original piece, several people noted the case of Bright Tunes v. Harrisongs in which a judge ruled that George Harrison had infringed another song through “unconscious copying” — not intentionally, but by accidentally using a melody he’d heard elsewhere and had stored in his unconscious memory. The problem with “unconscious copying” and unintentional copyright infringement of a melody is that it undermines the independent creation defense and creates a pretty broad scope for what could be construed as copyright infringement in songwriting. Basically, any melody that sounds significantly similar to another might be considered “copied,” even though that happens all the time in music. Plus, it’s not like a similar sounding melody in a completely different song is harmful to the “original;” it’s not like people are listening to Coldplay’s song instead of Satriani’s, or that one tune is impacting the commercial potential of the other. There is no functional equivalency in art.

The Harrison case is well-entrenched, but if Coldplay is intent on clearing its name, the case may offer the courts a chance to rethink the decision (or to re-affirm it…). Though, so far Coldplay’s lawyers seem to be using a de minimis copying defense, arguing that any similarities are insignificant, rather than focusing on independent creation. At any rate, this could be a precedent-setting case… but don’t hold your breath. In the end, it may well just be easier for Coldplay to pay up, settle and make it go away.

Read the comments on Techdirt.

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News Station Falls For April Fool’s Prank, Turns to DMCA As Remedy

April 15, 2009 3:38 pm by Blaise Alleyne — —

This post originally appeared on Techdirt.

Improv Everywhere, a comedic performance art group based in New York, has a history of pulling off hilarious and impressive “scenes of chaos and joy.” Running “missions” such as the annual “No Pants Subway Ride,” a food court musical, sending 80 people into Best Buy dressed as employees and getting 200 people to “freeze” during rush hour in Grand Central station, these guys are masters of the flash mob and the harmless prank. Last April, in a mission called “Best Game Ever,” they showed up at a little league baseball game with signs, peanut vendors, programs and even an NBC sponsored jumbotron with live commentary and player stats to turn an ordinary event into something extraordinary.

Building on that theme, Improv Everywhere’s latest mission was to create the “Best Funeral Ever,” to pick a random funeral from the obituaries and show up to make it “truly awesome.” It sounds terrible, and the video is pretty horrifying… until you realize it’s from April 1st. The next day, they confirmed it was an April Fool’s joke and that it wasn’t a real funeral — all of the “family members” were actors. Lots of people fell for it (I definitely did at first), but best of all was the local CW 11 news team that covered the YouTube video as if it were a real funeral. Charlie Todd, founder of Improv Everywhere, uploaded a video of the newscast with the following commentary:

So basically the extent of their reporting is watching a video on YouTube and then describing it as fact on air. They didn’t bother to email Improv Everywhere for comment, call the cemetery to verify, or try to get a quote from the”family.” They just watched the video and threw it on TV. Great journalism!

The story was on the news channel’s website too, but was later removed without any explanation or correction. Now, two weeks later, Todd has received a copyright notice from YouTube that his video of the newscast was removed due to a copyright claim from Tribune (the station’s parent company). First of all, it’s pretty silly to try to hide the mistake rather than owning up to it and posting a correction (Streisand Effect anyone?). But beyond that, it’s pretty ironic and hypocritical that the news organization, which used the Improv Eveywhere video without permission or even proper attribution, would send a take-down notice to the owner of the that video who was commenting on their commentary. Todd writes,

It’s OK for them to air content that we shot and own, but it’s not OK for me to upload their footage of the content they took from me? It’s “fair use” for the news to take a video off of YouTube and broadcast it, but it’s not “fair use” for a citizen to expose their poor reporting on his own content?

Fair use or not, Tribune just found a great way to draw more attention to the fact that their “journalists” fell for the prank and seem to be pretty embarrassed about it.

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This work by Blaise Alleyne is licensed under a Creative Commons Attribution-ShareAlike 2.5 Canada.