copyright assistance

We have gotten to the point that the US Government and federal courts are unable to properly police our copyright system. Further, certain aspects of our copyright laws are antiquated, some going back to the 1860's, and do not properly address changes in technology and technology culture. In short, our copyright laws were made for a different time.

This is important for musicians, people in the music-related industries.

Still, because there is so much money and commerce involved, what we are seeing is private companies stepping in to filling the void normally occupied by the government and the federal courts. An example of such a private actor is Jeff Price, and his various companies Audiam.com and previously, tunecore.com. There are many other examples, including YouTube.

BACKGROUND\CONTEXT

To best explain this issue, its useful to look backwards into how YouTube came into existence, and how a large private company (Google) more or less forced a very large change in copyright enforcement, with the US Government welcoming the assistance.

Long ago, before YouTube was acquired by Google, it was predicted that YouTube could not remain a viable business entity because. A key principle that made (early) YouTube attractive to users was its skirting of copyright laws. People could and did post copyrighted content on YouTube, and often suffered nary a penalty. These people, and YouTube, often “piggybacked” on and profited from someone else’s creative efforts.

An early example of this was illustrated when Viacom sued Google over alleged copyright violations. This lawsuit was filed in 2007, but not settled until 2014. At one point Viacom, had been seeking $1 billion in damages from Google. However, no money traded hands in the settlement. 

In 2007, the copyright lawsuit looked like it would have major implications for the way the Web worked. As a patent/copyright/trademark attorney, I remember thinking this myself! “OK, that’s the end of that fun”, etc. But by 2014 the core issues have been settled by both the Federal Courts, and the marketplace, specifically YouTube’s skillful innovation of a ContentID tag.

Like many other media companies, Viacom had originally objected to the fact that lots of its content appeared on YouTube without permission. But Google, which acquired YouTube in 2006, has more or less made peace with most big content companies, in part using a “ContentID” system that allows copyright owners to track their stuff on the world’s largest video site. 

The system also gives content owners the ability to demand “takedowns” of their stuff — or the option to run ads against it. That is, when a content owner discovers a violation, they can reach the party who posted the material, ask them to run an ad, and both parties can benefit. No “Takedown” occurs, and the situation does not need to be adversarial.

In fact, many providers of e.g. background music, beat tracks, or other support material, now hope that someone is using their material and violating their copyright. With an easy negotiation semi-brokered by Google, each copyright violation can (eventually) mean more money in the pocket! Without using the federal courts. Without using an attorney (which we love)!

In this sense, in a lot of important ways, Google is acting as a de-facto Court system, but hugely more efficient and more marketplace-centric. Amazon is also doing something like this for Trademarks, doing important work that the Federal Courts simply cannot get to. This will be the subject of a separate article, too difficult to briefly explain here.

This is an amicable solution in which all parties profit, and people stay out of the Federal Courts. As an attorney who does not like other attorneys, I prefer this system. This arrangement has also enabled companies to step in to help Google "police the Internet" of copyright violations, and protect content providers, musicians, and other parties in the music-related industries. As stated, examples include are companies like Audiam.com and tunecore.com

These companies take YouTube’s ContentID system referred to above, and add to it. They also protect people against false Takedown notices by YouTube. Unfortunately, YouTube sometimes notifies (apparent) violators they are posting copyrighted materials which are in breach of YouTube's user agreements, even when they are the creators and owners of that material.

This is an example of harnessing Google’s creativity and inspiration to build the regulatory systems of the digital age, rewarding for-profit and nonprofit innovators who can come up with better regulatory tools.

PERSONAL OPINION\EDITORIAL

It is my position, as a patent/trademark/copyright attorney, that the present solution is better for users, viewers, content providers, and even large media companies. Although there are still abuses, leaving the federal Courts to resolve this alone, by themselves would not have worked. Further, while YouTube’s beginnings may have been built on copyright violations, YouTube is now the #1 music destination site on the planet for music discovery and search. Further, YouTube also enables and facilitates the end-customer not just listening to music, but also “using” that music in various contexts that in some ways benefit the original artist.

This editorial is coming from someone who worked as an attorney in the Department of Commerce, and saw what happens when the Federal Government and Courts are the sole parties responsible for resolving complex intellectual property disputes, including small businesses with limited budgets. The result was often a big mess. 

There are things the federal government and courts are good at, and things it shouldn’t be doing, and can’t do.

CONCLUSION

Digital services like YouTube, and everyone else that distributes lots of content uploaded by its users are not responsible for copyright violations if they don’t explicitly encourage them, and if they let copyright holders take down stuff they don’t want up there. These services are not "publishers" in the traditional sense of the word, and cannot be expected to self-police all the content that is posted. Its hard to clearly define what they are, and they certainly bear a resemblance to publishers. But what we want to avoid is putting them in a position of having to police content (using the word “police” as a verb). These mechanism are not like a newspaper or magazine, where there is a finite set of writers and photographers, a finite amount of space, and a completed, finished document that can be reviewed prior to publication.

Again, if someone has worked with Jeff Price, or one of his companies, we encourage you to contact us here.

SUMMARY OF THIS ARTICLE

1) Have any of you ever filed for copyright yourself? It’s a considerable hassle.

2) Even if you have someone else performing this service on your behalf, you should still be aware of how it works.

3) If you are relying on mere “common law” copyright protection, not filing for Federal Registration at all, you may regret that. The U.S. Federal copyright system is accessible to a lay-person, an attorney is not always needed. The filing fee may be as low as $35.

4) In the event you have actual copyrights Registered, it’s important to make it very clear who owns them. Neglecting this can harm you.

This article will illustrate the above points.

First, for anyone who wants to file their own copyright, they need to visit copyright.gov. Even if they hire an attorney or other service provider, everyone files at the same place: copyright.gov. Why hire an attorney to do what you can do yourselves?

Next, it’s important to understand the difference between a common law copyright and a Federally Registered copyright. These are different, with different legal implications. A “common law” copyright comes into existence at the moment an artist or creator renders their creation into a fixed, tangible medium of expression. No Federal Registration is required to say “I have a copyright”. For example, I saved this article (more like a blog-post) on my computer, and when I hit “save”, a “common law” copyright came into existence.

A Federal Registration of a copyright is different, and requires more work. The starting point for everybody is copyright.gov, shown below.

The copyright.gov site offers at least 3 options, “Register”, “Record”, and “Research”. This article will discuss only “Register” and “Record”.

To Register, one hits the “Register” button. That will bring up a confusing GUI, with choices where artists and creators can make all kinds of interesting mistakes.

It can be very difficult to decide which category your specific artistic work falls into. Because this blog is music-related, an important choice for you readers might be whether a song is an example “Performing Arts”, or whether it is “Digital Content”. Another potential area of overlap is whether something is a “Photographs”, or other form of “Visual Arts”. It could be both.

Suffice to say, when in doubt, try filing across multiple categories.

Finally, lets say you already have copyrights Federally Registered, in whatever category. But now let’s say these copyrights are worth money and you are trying to sell them. In that position you should be familiar with the below, specifically the “Record a Document” option.

This “Record a Document” section is similar to Recording of Property Deeds. For anyone selling their house (a “tangible” property), they know that they buyer wants to make sure that the seller actually owns the house in question. One way to check this is to check a local Registrar of Deeds. Copyrights are similar, except they are “intellectual” (not tangible) property. Either way, the buyer wants to be assured that when they give their money, in return they are given authentic rights in a property. Recording documents related to your copyrights are one way to achieve this. The buyer can look up your copyrights and have some assurance you really have rights to sell or license these properties.

TAKE-AWAYS FROM THIS ARTICLE

Don’t ignore the US copyright system, be aware of at last some aspects of how it works. Its in your self-interest to do so. Further, all copyrights flow through exactly and only one place, and that is copyright.gov.

TRIBUTE BANDS: A PRO-TRIBUTE EDITORIAL (HOW THE LAW WORKS)

INTRODUCTION

Tribute bands make an lot of business sense, although they certainly skirt the boundaries of copyright and trademark law. These two legal areas overlap, but still have a lot of differences. In either case, imitation is the sincerest form of flattery, but is it infringement?  One would think that tribute bands would have to seek approval directly from the original artists and pay for the use of their songs. This is not the case.

The current music licensing system is designed more for cover bands, which generally tend to perform on a much lesser scale than tribute bands and vary the songs they perform. As such, tribute bands kind of “fall through the cracks” in copyright law (of which there are plenty). But is anyone really harmed? How much of that revenue truly belongs to the original creator?

COVER BANDS v. TRIBUTE BANDS v. REVERENCE BANDS

Tribute bands do not perform original songs. Instead, they exclusively perform songs by the band they pay tribute to, usually mimicking the band’s appearance, style, and name, often at a fraction of the price. Many tribute acts are merely overzealous fans badly imitating their heroes, but some can actually make a living. A surprising number sell out major venues in cities like San Francisco and Los Angeles, and hire an agent.

There has been an increase in both tribute and cover bands that perform copyrighted music popularized by other bands. These bands exclusively perform copyrighted works of other artists, often paying little or nothing directly to the copyright holders. “Cover bands” perform a variety of popular artists’ songs, while “tribute bands” focus solely on one artist or creator. Tribute bands tend to perform on a larger scale than cover bands, some having both national and international success.

There exists another even more strange type of band, a “reverence band”. These nut-cases adopt the persona of the original artists through the use of costumes, make-up, stage dress and effects, and/or between-song patter that quotes the original artist.

REACTION OF ORIGINAL ARTISTS

The original artists vary in terms of their reactions to tribute bands, ranging from supportive to litigious. Some legal scholars suggest that tribute bands can and should negotiate directly with original artists for the use of their works. I disagree, and many prominent artists also disagree, among them Mick Jagger. However, Bon Jovi’s lawyer once sent a group called “Blonde Jovi” a cease and desist letter. Gail Zappa alleges that bands cannot play her late husband’s music up to par, and therefore they tarnish his image. She has been using legal threats in an attempt to discourage unauthorized performances of Frank Zappa’s music, accusing tribute bands of “identity theft”. 

On the other side, many bands enjoy tributes, such as Elton John. Several of the remaining living members of Queen put together their own tribute band, the Queen Extravaganza. They are producers of the show, so they profit from this venture. Similarly, several other artists have blessed one tribute band as their official tribute band. For some famous artists, the motivation is to make sure a band playing their act keeps up the quality. 

In other cases, the members of a tribute band are often more committed to getting the song right than the original artists. For example, the Rolling Stones are now so aged and decrepit that in their 2018 concerts, it is very apparent that they no can longer effectively play significant portions their music, and have become somewhat of a parody of themselves, a type of “karaoke band” that sounds, frankly, quite awful at times. They often slop their way through their most famous hits, merely approximating certain songs and often very clearly not even making an effort to get the song right, giving their tour the nickname “Steel Wheelchairs”. Meanwhile Rolling Stones tribute bands are often significantly more committed to getting the songs right and accurate.

TRIBUTE BANDS AS A WAY OF DEVELOPING ONE’S MUSICIANSHIP AND PROFESSIONALISM

Tribute bands vary widely in their rates of success. Some tribute bands are strictly local in nature, playing few performances for small crowds making little money. However, other tribute bands achieve both national and international success. As the name suggests, some tribute musicians love the original band. Others join because tribute bands represents dependable income in a difficult industry. 

A good tribute band, however, has the potential to land in front of large audiences very quickly, which is a difficult threshold. Many musicians never reach this. After all, everyone already knows the music. They don’t need to create a fan base; they just need to prove they can satisfy the expectations of the huge, hungry fan base that already exists. 

As will be discussed in more detail below, BMI and ASCAP provide what are known as “blanket” licenses, meaning that they automatically grant licenses to anyone willing to pay a standardized fee. This means there’s almost no barrier to starting a tribute band. Some tribute bands play bars that fit 200-1000 people as typical venues, also with corporate conferences and parties as staple tribute band business.

ASCAP/BMI/COMMERCE

Tribute bands are covered under the same licensing agreements as cover bands and other live musical performers. These performances do not infringe upon the rights of the copyright owner when done with permission. The three major performing rights organizations ASCAP, BMI, and SESAC, negotiate licenses for the use of copyrighted works and collect fees for the public performance of those works. 

A common method used by these organizations are blanket licenses, which involve pooling and licensing of copyrighted items in a single package which allows the licensee to use any and all of the items in the package as often as they wish. Blanket licenses permit tribute bands to exploit an artist’s entire repertoire without having to directly compensate or seek permission from the original artists.  Owners of venues where tribute bands perform are required only to purchase blanket licenses. Blanket licenses serve to limit the expense and difficulty of negotiating licenses with various copyright owners. ASCAP provides over one hundred different types of blanket licenses that vary in price, depending on the type of business seeking the license.

TRADEMARKS AND COPYRIGHTS

Tribute bands are often named after the original artist to whom they are “paying tribute”. Tribute band names are often a play on the original artist’s name, which are valuable federally Registered trademarks, using similar names such as “Blonde Jovi” and “Lez Zeppelin”. Most tribute band names are followed by the phrase “a tribute to [insert name of original artist here],” so that trademark confusion is reduced.

Interestingly “Fair Use” doctrine exists for both copyright and for trademark. However, the thresholds are very different. A question exists whether tribute bands are protected by fair use. The answer is “no, not really”, but also, “who cares”, and “almost no one ever attempts to litigate this, as it’s not worth it”. Trademark infringement is a federal case, which means expensive litigation. An original band would spend $150,000 or more for an injunction, the potential damages may not be that high, and stopping each tribute band requires a separate lawsuit. Threatening legal action is much cheaper. Occasionally such threats make tribute bands cease playing entirely. More often, they change their name or stop using the logo and keep playing.

STIGMA OF TRIBUTE BANDS

We shouldn’t look down on tribute bands. Performers like Sinatra almost exclusively sang songs written by others. Even symphony orchestras are tribute bands, they do Beethoven and Tchaikovsky covers. There is at least one website dedicated strictly to tribute bands, tributecity.com. There are numerous Justin Bieber tribute bands. 

The lines between tribute band and original band can also blur. In 1995, singer Tim Owens went from lead singer of a Judas Priest tribute band to the lead singer of Judas Priest as he replaced its departed frontman. Mark Wahlberg starred in an awful movie about this strange event, called “Rock Star” (2001). Unfortunately, Marky Mark’s attempt at authentic singing in this movie was not much different from his fake bad singing in either “Boogie Nights” (1997) or “Ted” (2012).

Performers in tribute bands often straddle the border between professional musician and struggling artist. Musicians in popular tribute bands may hire an agent or producer (if they don’t already have one), they can expect fans to sing along at every concert, and they can tour full-time. On the other hand, they don’t get the full rock star treatment. The money can be good, although often not. Very elite tribute bands (of which there are few) might reach low six figures.

Tribute bands make economic sense. Most profits in the music industry are concentrated in the hands of a few lucky individuals. But they still can only perform in one venue at a time. Until bands start playing multiple locations at once (e.g. by cloning themselves), tribute bands are an obvious solution.

Further, tribute bands still allow plenty of room for creativity and entertainment musical expression and development. Additionally, no tribute band has ever refused to play its hit song, pissing off their audience. Meanwhile, many performers are very tired of playing their hits, and often refuse to play them or perform them poorly. For example, Kurt Cobain was famous for this with Nirvana, refusing to play “Smells like Teen Spirit”, and when the request was screamed enough times, spitting on his audience.