New Infringement Defense? 'We Don't Roll That Way'
from the well,-there's-that... dept
A bunch of folks have been sending in the story of how some of the major record labels are suing the Ellen DeGeneres show for not paying for clips of music that the show uses during something called the "dance over" portion of the show. Not having ever watched the show, I don't know, but it sounds like a brief clip of music used as an interlude between parts of the show. As plenty of people are pointing out along with their submissions, this seems pretty silly. It's not like hearing these brief musical interludes is likely to harm the market for this music. If anything, it sounds like it would only increase interest in that music from the fans watching the show. Also, it does seem a bit odd that the show would be sued just as DeGeneres is named as a judge for American Idol (though, it's important to note that it's the producers of the show being sued, not DeGeneres herself).However, I have to admit that the most fascinating part of the lawsuit to me is the piece pointed out by Whitney McNamara discussing how those producers first responded when the labels first asked the show why they hadn't licensed the music:
According to the suit filed Wednesday in U.S. District Court in Nashville, when representatives of the recording companies asked defendants why they hadn't obtained licenses to use the songs, defendants said they didn't "roll that way."That won't get you very far in court, but is pretty damn funny. The response from the record labels wasn't too bad either:
"As sophisticated consumers of music, Defendants knew full well that, regardless of the way they rolled, under the Copyright Act, and under state law for the pre-1972 recordings, they needed a license to use the sound recordings lawfully."Even though it makes little sense to me, the labels are almost certainly right here, and will almost certainly win. If, somehow, the show producers could convince a judge that this use of the music was fair use, that would be a huge victory for fair use -- but seems (unfortunately) quite unlikely. Either way, the "we don't roll that way" defense is quite amusing -- especially coming from TV producers who you would think normally fall on the "stronger copyright law" side of the fence. Imagine if a file sharer used that response?
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Filed Under: ellen degeneres, fair use, infringement, music
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Fair Use
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Re: Fair Use
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Re: Re: Fair Use
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Re: Re: Fair Use
I'm sure it was, and it's probably a safe rule of thumb, but that's not the law.
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Welcome To The Tollbooth Lane
This is normal thinking to those in content:
If you're using it professionally, or for promotional use, you get a free pass.
If you're using it otherwise, stop for the tollbooth.
However, something happened here, and I can't quite put my finger on it, but someone's mad at her new found success and they decided to pull out, and tell her she's in the wrong lane and use the tollbooths. Crazy.
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I can see it now
Heavily In Debt College Student: "Because I don't roll that way"
Jury Response: "We need to teach this kid a lesson and defend the poor little recording industry. Let's fine him for $2 Million"
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ladjflkajsfd
Cop: "Why did you kill that family in the house?"
Perp: "Cuz they was home"
Hey, but at least they had an answer.
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Solution for future segments
I suspect that the recording societies would require payment even if DeGeneris played music from indie labels and artists that asked the show to please use their music. I would love to see DeGeneris tell the big labels in the future they will only promote music from indie artists. Then as the music is being played, display the url for the little, indie bands whose music is being used. I am guessing that the big labels would wet their pants if those bands started getting popular, and they would have the collection societies back off from charging for this type of promotion.
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Re: Solution for future segments
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discrimination
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They should...
The problem would probably get solved pretty quickly.
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Not if they're just short clips. I think it's well established that you ran run 30 seconds without paying a royalty. Though some pay anyways, just to be on the safe side - that's why the "we don't roll that way" is actually a credible and meaningful response. And clever, too.
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Fair use?
Unfortunately, the purpose of the use is heavily emphasized in fair use analysis (elevating form or substance,) and is the reason that parody may be fair use but pastiche may not. On the other hand, the Constitutional purpose of copyright is largely ignored in discussions about whether to expand or contract the monopoly it provides.
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Uh, just a second here...
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Late?
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Not Fair Use
Another thing that gums this up, is that a DJ is playing the songs. Don't DJ's pay ASCAP fees as part of being an ASCAP member? I believe so... But I've also heard that those fees don't cover broadcast venues, which is probably going to be the stickler here.
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Re: Not Fair Use
Likewise, ASCAP takes its pound of flesh from a performance whether you like it or not.
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And the idea that the use would "increase the market" for the music is just bogus--things like incidental music for TV shows *ARE* the market for many composers.
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Re:
It was a small fraction of the content in question, and would have most likely had a positive, rather than negative, impact on the value of that song.
Seems like a pretty clear case of fair use.
And the idea that the use would "increase the market" for the music is just bogus--things like incidental music for TV shows *ARE* the market for many composers.
These were pop songs. So, no, you're wrong. Again.
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probably not fair use
is it 10 seconds long,
do the characters appear to hear the music (or is it backing track)
etc
and different license (price) levels apply, but thats in Aus
(I only know how much I get if my music is featured - its not much btw, the actual license fees are collected and shared out by collection societies to all those who have put in all the paperwork etc to claim their works were used).
also its unlikely to be fair use as its not really going to pass the four factor test but IANAL.
as a composer I stand to benefit from tv shows using my works from the exposure, but in theory the license fees helps the creators to survive and work long and hard enough to reap some of the potential benfits from that exposure.
Its a compelling argument that paints a neat picture of artist fairly making a living, but its not very close to reality for most artists as they generally don't have the business admin side of things covered and so are easy prey to record companies.
Its pretty simple for Ellen's producers - they either break the system of copyrights or they pay their fees. Frankly it would be hell interesting if they fought it all the way - but it would come down to the law of the land in the end.
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