Grateful Dead Publisher Prevents Novelist From Quoting Lyrics
from the jerry-garcia-is-rolling-in-his-grave dept
The decades-long success of the Grateful Dead is a perfect example of how a band can make music without relying on the copyright crutch (by encouraging free sharing of the music, while making most of their money on concert tickets and merchandise). In the years since Jerry Garcia passed away, however, the band's name seems to keep coming up in copyright disputes. The band itself sued Wolfgang's Vault for offering videos and concert posters of the band (Wolfgang's Vault is based on the "archives" of famed concert promoter Bill Graham, and each side claims ownership to the rights of promotional materials from the concerts). And, of course, Wolfgang's Vault is hardly an innocent player here, having sued the publisher of a book about the Grateful Dead for using thumbnail images of concert posters. Luckily, the book publisher won that case, but both of these cases show how a system that works (i.e., the Grateful Dead's business model) gets all screwed up when people start asserting ownership rights to content.The latest example is much more ridiculous and much more damaging to creativity. Last week we wrote about how copyright is often used to hold back creativity, and this is a perfect example. Boing Boing points us to this story about how Ice 9 Publishing, the in-house publishing arm of the Grateful Dead has stopped a young adult novelist from using lyrics from their songs in his novel. It sounded like a rather creative use of Grateful Dead lyrics in such a way that would likely help attract a new generation of fans to the Dead's music. In fact, the title of the book was originally supposed to be a Grateful Dead song title, but Ice 9 objected to that, too. Even though it couldn't stop the book from using a song title as the book title, it threatened to not allow the use of other quotes in the book if the title wasn't changed.
This makes very little sense, as it's difficult to see what legal ground Ice 9 and the Dead have to stand on here. The use of these lyrics hardly harms the commercial potential of the Grateful Dead -- and, almost certainly increases it. But, just the threat of potential copyright infringement lawsuits means that this book is not the book the author, J.T. Dutton, intended, and everyone is worse off for it. And, that's yet another unfortunate example of copyright holding back creativity, rather than encouraging it.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, freaked, grateful dead, j.t. dutton, lyrics
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
I'd pull an Apple job here.
Apple promptly complied and changed the code name to "BHA", an acronym for "Butt-Head Astronomer".
Since the work in question is a work of fiction, the author is free to make up his own lyrics and I would like to suggest a fictional central theme right now for these substitute lyrics:
Greasy copyright lawyers and their unnatural fondness for torturing helpless, caged puppies and kittens with caustic chemicals and electric cattle prods.
Perfect young adult reading fare, in my humble opinion.
[ link to this | view in chronology ]
Re: I'd pull an Apple job here.
In other words, blame the true source of the problem.
[ link to this | view in chronology ]
Re: Re: I'd pull an Apple job here.
[ link to this | view in chronology ]
Re: Re: Re: I'd pull an Apple job here.
Oooops. Gotta throw it back.
[ link to this | view in chronology ]
Re: Re: I'd pull an Apple job here.
However, I could be wrong, Is anyone out there friends of friends & able to fwd this to someone in the band?
It's only 6 degrees people...
[ link to this | view in chronology ]
Re: Re: I'd pull an Apple job here.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
You must be a lawyer.
[ link to this | view in chronology ]
Re: Re:
You make it sound like that's a bad thing.
[ link to this | view in chronology ]
Re: Fair Use
[ link to this | view in chronology ]
Ever since Jerry passed
the circulation of taped shows propagated their growth, this is one thing that Jerry understood. They were the largest grossing tour band for quite a number of years all do to fans handing out free tapes of show and spreading the word. Seems like they have forgotten what made them so rich in the first place. (You may remember another suit brought to court regarding Hi quality bootlegs that remove anyting but MP3's from the net)
The Origination has gone down hill since his widow and the Bob Weir decided to move the remaining music/shows/art out of the hands of fans and take control over what they perceive to be theirs (without Jerry there never would have been a Grateful Dead) have degraded this once great staple of American music
I was a tour rat 20 + years and ever since the passing of Jerry the free spirited group has turned into money hungry bitches whining about anything that they didn't like, with one exception and that would be the Phil Phactor
Since this has started I have refused to partake in any form of support for the remaining members, with the exception of seeing Phil
[ link to this | view in chronology ]
Re: Ever since Jerry passed
I will admit that there are times when the GD organization seems to be a little on the greedy side these days.
[ link to this | view in chronology ]
Re: Re: Ever since Jerry passed
[ link to this | view in chronology ]
Re: Re: Re: Ever since Jerry passed
[ link to this | view in chronology ]
Re: Re: Re: Re: Ever since Jerry passed
As for Phil he's stayed on course with the origional intent which is evident by the Archive.org section for Phil and Phriends
http://www.archive.org/search.php?query=collection%3Aetree%20AND%20creator%3A%22Phil%20Les h%20And%20Friends%22
(Sorry couldn't help myself)
[ link to this | view in chronology ]
pot calling kettle black?
[ link to this | view in chronology ]
Re: pot calling kettle black?
[ link to this | view in chronology ]
Re: Re: pot calling kettle black?
[ link to this | view in chronology ]
Re: pot calling kettle black?
[ link to this | view in chronology ]
More to the story?
As for copyright, poems and lyrics have always been held to a tighter standard of "fair use" than works of prose or journalism. And I disagree that this is necessarily stifling creativity: the author wanted to use lyrics to Dead songs as epigraphs, which have also been held to a tighter fair use standard. Briefly quoting lyrics in the course of the narrative is tougher for the copyright holder to fight, but epigraphs are a different story.
I have know a number of people who have worked with Ice9 and have generally only heard positive experiences. Which is why I suspect there may be more to the story here.
[ link to this | view in chronology ]
Re: More to the story?
As an example, I searched out a recording of Twilight Time by The Platters after reading Stephen King's "Hearts in Atlantis." I wanted to know what it sounded like since it was so significant in a book I really enjoyed.
[ link to this | view in chronology ]
Re: Re: More to the story?
It may or may not be stupid of them, your mileage may vary. But as noted above, fair use for lyrics or poems has generally been more restricted, so they are within their rights to challenge. Their call. There's no telling whether the Grateful Dead can benefit by this author's use of the lyrics. I have no idea whether Robert Hunter or John Perry Barlow objected or whether Garcia's estate (controlled by Deborah Koons, who has been rather aggressive about protecting and marketing Garcia's copyrights and recordings) objected, or whether the issue was strictly handled by Ice9.
Like I said, there's quite likely more to the story.
[ link to this | view in chronology ]
Oh, the irony
[ link to this | view in chronology ]
Re: Oh, the irony
Unfortunately, short phrases like "ice 9" cannot be copyrighted. So even though the Dead's use of Ice 9 might seem hypocritical, being a hypocrite isn't against the law.
[ link to this | view in chronology ]
Watch out! Its the Grateful Dead Copyright Monster!
If your creativity is dependant on another person... News flash- You lack creativity.
The Dead never did mind if fans recorded music to listen to and keep. In this case, this author is out to make money by using the Grateful Dead's name. Come on.. In the age of "Whats mine is mine and whats yours is mine". The Grateful Dead have always been generous. I guess some people just wont be happy till they can do whatever they want to do.
Imagine Picasso saying, "Looks like I cant paint till someone else paints dots on the canvass so I have something to go by". YEEESHHH
[ link to this | view in chronology ]
Re: Watch out! Its the Grateful Dead Copyright Monster!
[ link to this | view in chronology ]
Re: Re: Watch out! Its the Grateful Dead Copyright Monster!
STOP! Collaborate and listen... Ice is back with a brand new invention. dum dum dum da da dum dum
Well thats all I have to say. I am gonna go work on my new Stephen King book. I am going to take all of his book titles and put them right at the beginning of each chapter.
I am also going to include the first couple pages of various King works in my... uh his... err ... my book.
[ link to this | view in chronology ]
Re: Watch out! Its the Grateful Dead Copyright Monster!
Um. I didn't "single out" the Dead. I pointed to a story that involved them because it was a unique case that makes the point.
The Dead have always played music for all the right reasons and now they are getting criticized because people expect them to just shrug off some hack writer?
No, because their publishing house is trying to stifle the creativity of someone else. That's different than "shrugging off some hack writer."
If your creativity is dependant on another person... News flash- You lack creativity.
Yes, obviously the Beatles lacked creativity, since their works were built on singers before them.
And since most Shakespearean plays were actually built off the works of others, he lacked creativity.
Do you know how ridiculous that sounds? Nearly every creative work is built off the influences of someone before them.
Saying that it lacks creativity to do something different with someone else's content is simply incorrect.
In this case, this author is out to make money by using the Grateful Dead's name.
No, the author is trying to create a compelling story. The fact that it uses the Grateful Dead shouldn't stop that. Nor should the fact that the author intends to make money.
[ link to this | view in chronology ]
Re: Re: Watch out! Its the Grateful Dead Copyright Monster!
Not quite true. Ice9 objected to the extensive use of verbatim song lyrics in epigraphs, not the use of quoted lyrics in narrative.
There is a qualitative difference here. Using someone else's work verbatim without any specific narrative "comment" is not really creative.
Nearly every creative work is built off the influences of someone before them. Saying that it lacks creativity to do something different with someone else's content is simply incorrect.
Except this case is not about using the Dead's lyrics or music as inspiration or influences, but copying their lyrics for a separate, stand-alone presentation.
No, the author is trying to create a compelling story. The fact that it uses the Grateful Dead shouldn't stop that. Nor should the fact that the author intends to make money.
And Ice9 did nothing to prevent the author from creating or publishing a compelling story (actually, whether it's compelling or not is a different issue). A compelling story can be created without directly copying someone else's words.
The fact that the author intends to make money definitely has a bearing on the issue. The Creative Commons license recognizes this by allowing restrictions on copying for commercial use.
The Dead at least have been consistent on this score: they allow audience taping of their concerts and trading of the tapes without interference based on the understanding that the music (tapes) would be traded, not sold. The taping community was actually quite good at enforcing that.
[ link to this | view in chronology ]
Re: Re: Watch out! Its the Grateful Dead Copyright Monster!
And since most Shakespearean plays were actually built off the works of others, he lacked creativity.
Being influenced by other artists is entirely different then ripping something off or directly copying other works. Many artists are influenced by others. The beatles where influenced by Buck Owens but they didnt take any of Buck's songs and call them their own. This person is using the name of the Dead, Copying lyrics, etc.. You take the Grateful Dead out of the equation this person has no story, no book, etc.. If the author is truly trying to create a complelling story they should be able to do that without the mass incorporation of Grateful Dead material.
Some artists will actually allow people to use their own work and let other call it theirs. Look at Ashlee Simpson. She was such a studio hybrid she was unable to even perform live. Everything in that conjured application of phony was brought to the front burner when Ashlee's cd skipped on her when she was supposed to be playing live on SNL (LOL remember that awful little dance she did)
Okay I am done. People on these posts are unable to recognize reason so it defies any inclination to continue. My parting words, Its better to burn out then fade away lol. Sorry Neil Young..
[ link to this | view in chronology ]
Re: Re: Re: Watch out! Its the Grateful Dead Copyright Monster!
Actually... Paul McCartney "ripped off" Chuck Berry's bass line for "I Saw Her Standing There." But, you know, no creativity of his own, huh?
This person is using the name of the Dead, Copying lyrics, etc.. You take the Grateful Dead out of the equation this person has no story, no book, etc.. If the author is truly trying to create a complelling story they should be able to do that without the mass incorporation of Grateful Dead material.
Really? You think that because this book weaves The Grateful Dead into the story that it's not creative at all?
That's a stunning statement.
Pretty much all of human creative history disagrees with you.
[ link to this | view in chronology ]
Creativity is not being held back
Regardless of whether the copyright cops get involved, there will always be creativity, and there is nothing they can do to keep artists from creating. The only bad part is that unfortunately, we may never get to see the creativity in action.
Just wanted to clarify.
[ link to this | view in chronology ]
Re: Creativity is not being held back
[ link to this | view in chronology ]
Re: Re: Creativity is not being held back
If I'm going to make money off of the "creative" re-use of the creative efforts of another, why shouldn't I be expected to pay something?
[ link to this | view in chronology ]
Re: Creativity is not being held back
Well, I'd say that holds back the creativity, because a part of that creativity is in how audiences respond to it (and whether or not they create more themselves).
[ link to this | view in chronology ]
Re: Re: Creativity is not being held back
How an audience responds to a creative work may be of interest to the creator, but it doesn't hold back the creative process of that particular work. Especially in fiction, where the reader's response can have absolutely no effect on the writer's creativity, since the writer's work has already been completed.
The writer can write whatever they want, and can copy lyrics with abandon if they so desire. That's the creative process. Getting it published and distributed to readers is an important thing, but that's business, not the author's original creativity. Technically, it's not the "re-use" of the lyrics, it's the re-publishing of the lyrics.
[ link to this | view in chronology ]
Plenty more to the story
But first, contrary to some of the postings here, there is no GD organization any more, and neither Weir nor any other former member of the band has anything at all to do with the administration of Ice 9 publishing.
More to the point, as one of the commenters above correctly noted, there are more serious issues when poems or song lyrics are quoted as part of epigraphs, which is exactly what is at issue here. The author of the novel herself posted a comment to one of the blogs linked above, and very clearly notes that not a word of her story was changed, and that includes all of the snippets from the GD songbook. However, when she spoke to Ice 9 about the getting all the necessary permissions, they expressed concern with her use of so many GD lyrics as epigraphs to head each chapter. They felt that some readers or prospective readers may imply from that some endorsement from the band.
The author's comment is quite understanding. She does not appear to view her experience with Ice 9 as having been any sort of terrible ordeal, nor even an adversarial situation.
[ link to this | view in chronology ]
Re: Plenty more to the story
But why? If it does no harm to the work (it doesn't compete in any way) and, if anything, is likely to attract new interest to the work, can you give a single compelling reason why that shouldn't be considered fair use?
The author of the novel herself posted a comment to one of the blogs linked above, and very clearly notes that not a word of her story was changed, and that includes all of the snippets from the GD songbook. However, when she spoke to Ice 9 about the getting all the necessary permissions, they expressed concern with her use of so many GD lyrics as epigraphs to head each chapter.
Well, I would think that the epigraphs count as part of the story, and stifling that (and the title) is in fact changing words from the story.
The author's comment is quite understanding. She does not appear to view her experience with Ice 9 as having been any sort of terrible ordeal, nor even an adversarial situation.
That's a good point, but it doesn't change how the original idea of the book was forced to change.
That, to me, is unfortunate.
[ link to this | view in chronology ]
Re: Re: Plenty more to the story
Well you can try to make that argument in court, but the fact is that lyrics and poetry have nearly always been accorded much more limited fair use. And the context of the use has always been a significant factor. You could quote a Ginsberg poem in the context of a critical analysis of his poetry without permission (depending on how much you quoted), but using that same quote as an epigraph generally would require permission.
Whether it competes or not, or whether it might conceivably "attract new interest" to the work are largely irrelevant, and in the latter case highly speculative (and not the copier's decision to make).
Epigraphs have generally been given tighter rules because of their nature: they appear separate from the body of text or narrative and are in many way ornamental in nature. Because they stand alone, absent direct commentary or reference, it has been considered less "fair" use.
Well, I would think that the epigraphs count as part of the story, and stifling that (and the title) is in fact changing words from the story.
Epigraphs and titles are not considered part of the "story" in a meaningful sense. Actually, titles per se can't be copyrighted anyway.
That's a good point, but it doesn't change how the original idea of the book was forced to change.
The "idea" of the book didn't change, just some of the more minor details. This happens all the time for reasons other than copyright. From the original story cited in the post, the publisher nixed the idea of the Dead song title for marketing reasons. It may be unfortunate, but life's not perfect.
[ link to this | view in chronology ]
Re: Re: Re: Plenty more to the story
[ link to this | view in chronology ]
Do your research, people!
[ link to this | view in chronology ]
Re: Do your research, people!
FROM STORY: And, that's yet another unfortunate example of copyright holding back creativity, rather than encouraging it.
Thats the claim of the story from above (Incase you missed it the first time). Yeah, Some people will grab onto a name, catchy song, etc and sell it as their own. But dont call it creative!!! I call it hack writing (maybe thats harsh) Hmmm whats politically correct here? Riding the coat tails of someone elses work? Nah, People will still get upset. Plagiarism? UH OH! NOT THAT ONE!!
I got it... One-sided Collaborative writing of Opportunity. That might work Still dont like it? (INSERT POLITICALLY CORRECT NAME HERE)
[ link to this | view in chronology ]
Re: Re: Do your research, people!
The author wasn't claiming it as his own. It was clearly credited to the Grateful Dead.
[ link to this | view in chronology ]
This dispute should not exist because the work in question should be in the public domain by now.
[ link to this | view in chronology ]
the author responds
Hi,
I am the author of Freaked and here is my perspective on this story. I had no legal battles or even conflict with Ice 9. I contacted them for permissions and they offered me some, but not all of what I wanted. Usually money changes hands when writers ask for permissions. In my case, Ice 9 gave me the use of what lyrics I did use for free.
Their hesitation about giving the full amount had to do with the feeling that allowing me to use too much would seem to be an endorsement of my work. Getting their endorsement would be huge--as one commenter put it, a money vein. Of course they have to be careful about what they lend. I wrote about the Dead because I happen to love their music, and using their lyrics was part of telling this story.
Yours,
J. T. Dutton
[ link to this | view in chronology ]
A reader would have to assume a lot before having an opinion about the suit. The only thing we can be sure of is that the article's writer could use a remedial course in who/what/where/when/why.
[ link to this | view in chronology ]
quoting lyrics ...
This is, I feel, a sad reflection of a warped industry, trying its best to shoot the innocent when unable to lock up the real criminals who steal entire songs and often profit from doing so - online, downloads, sharing...etc, etc. It reminds me of inept police who go after soft targets only.
What I find mindblowing is that I can arrive at my local pub each Friday night and be PAID to sing an endless arrangement of Beatles'songs or Van Morrison numbers, thereby earning a living, and not have to pay anyone a cent.
How does quoting a few lines in a novel disadvantage the songwriter in any way? In fact it could be seen as a form of free advertising.
This alongside the reality that lawyers from the music business will pounce on anyone who even quote one line from a song in any publised book, simply defies logic.
The novel I have written is probably going to inspire people to listen to the Leonard Cohen songs and others I have quoted as an introduction to each chapter. I think the music industry should be challenged on this. Winston Churchill wrote for pleasure and for profit also - if I quote him all that is needed is recognition at the end of the quote (as long as it is a small fraction of the total word count of my writing.
What gives the music business the right to demand money when their writers are quoted and given credit?
Surely there are others who would like to challenge this? If so please email me: vonjazzvideo@gmail.com
[ link to this | view in chronology ]