We'll Need Ten Grand if You Want to Air That Ringtone

On The Media, NPR's weekly radio show about ... the media, had a couple segments this morning about plagiarism and copyright.

Brooke Gladstone interviewed Amy Sewell, a filmmaker who had a terrible time getting her documentary Mad Hot Ballroom made because of all the bureaucracy with intellectual property. In one case, Sewell filmed a woman walking down the street. Her cell phone rang -- the Rocky theme --and Sewell had to clear it with Sprint and with EMI which owned the rights to the song that the rigntone played. It was six-seconds of a phone ringing. EMI wanted $10,000. Sewell talked them down to $2,500. Later in the show, legal experts laugh about that, saying it was "a classic fair use" case.

The nastiest example was how the rights holders of C+C Music Factory's "Everybody Dance Now" wanted $10,000 to let Sewell use a scene she filmed in which a child yells out "everybody dance now." (You may recall C+C Music Factory was shamed when the slim Zelma Davis appeared in a video lipsynching to the rotund Martha Wash's vocals. She had been told that she was too fat to be in the video.)

One of the legal experts Gladstone interviewed was Duke University law professor James Boyle, one of the founders of Duke's Center for the Study of the Public Domain. (The Center's website is great -- worth browsing.) Boyle said in nasty cases like the ones Sewell had to deal with, it's "not so much the law ... it's the culture around the law." Meaning zealous rights holders are intimidating people and overstepping their bounds.

Boyle talks about the "permissions culture," which he describes as "the assumption that you have to pay for every fragment of copyrighted material where ever it appears whether in a movie or any other context, that the rights holder gets to control every use, no matter how tiny, no matter how fleeting, no matter how accidental."

Fordham University's Hugh Hansen says it started with big movies clearing rights to things they didn't really have to get permission for. They did it "to make everyone happy." Hansen says everyone got used to this and began to expect it, even though it isn't legally necessary. Remember, we're talking about documentary films. This should fall under the heading journalism.

James Boyle and two others made a comic book called Bound By Law in which a crusading filmmaker, "trapped in a struggle she didn't understand" made documentaries by day and fought for fair use by night. Naturally, the comic book is free to download and distribute. The comic book poses all sorts of questions -- do you have to get permission from someone if a piece of art appears in a shot? What about a tv program in the background of a scene shot in a bar? And if someone sings "Happy Birthday"? It's scary stuff.

I found a link on the Public Domain Center's resource page to Columbia Law School's Music Plagiarism Project. I started looking at a case in which the band ZZ Top sued Chrysler for using the song "La Grange" in an ad for the Plymouth Prowler. The website includes full video of the commercial and an mp3 of the song. Clearly, Chrysler used ZZ Top's song. Why would you do that without permission? Aha! In the words of the judge, "[the] defendant has conceded that it copied La Grange , but challenges the originality and copyrightability of La Grange."

Why? Let's look at an earlier case. La Cienega Music Co. v. ZZ Top. John Lee Hooker's 1949 song "Boogie Chillun" (or "Chillen," it's spelled both ways here) had a guitar riff that sounds an awful lot like ZZ Top's "La Grange" riff. So in the 90s, Hooker sued for plagiarism. Problem was the song was in the public domain because only the sound recording was copyrighted, not the written music. Oops.

In the comments, a Columbia observer writes:

"The music in question is no more than a guitar riff, but ZZ Top also imitated the marginally coherent ramblings over this riff one hears in "Boogie Chillun." ZZ Top was mainly capitalizing on the earthly, "black" style of the plaintiff's song in producing a slick, pumped-up version of this sound (mass marketed to middle class white men but copyright does not offer protection from such capitalizations."

So the court didn't even hear the arguments for copying the song -- it was public domain. I would argue this: who cares? That's art. As I discussed in an earlier posting, this is how art develops and evolves. To say ZZ Top can't use a similar riff and vocal style is ridiculous.

Back to the Chrysler case. Chrylser argued that "La Grange" was close enough in sound to John Lee Hooker's song, and to Norman Greenbaum's 1969 song "Spirit in the Sky" that ZZ Top didn't have a case. [Funny they should mention Norman Greenbaum. I just bought an album by Goldfrapp that has a single (used in a Coke commercial) that has a very Greenbaum-esque guitar riff in it. Wikipedia claims she sampled "Spirit in the Sky," but that may or may not be true. If she didn't sample it, she's imitating it.]

But is that really an argument? You can't use a recording of my song in your commercial just because I imitated other songs. It's still my recording. So isn't that a separate issue? Unless Chrysler actually had another artist record the song. Which would be the height of sleaze. I can't figure out what happened. But the judge sided with ZZ Top, as he should have.

The Columbia website is fascinating. There's a case in which someone sued Britney Spears for the "Oops I Did it Again" song. Another, in which the Beastie Boys were sued.

When I read about all the music copyright cases, I have to say, the musicians are being total babies. There was another case where a band sued another because they used a phrase that sounded like one in their original song. Get over it. I have yet to see a music case where I side with the defendant.