Zappa Threatens Zappa Over Zappa Plays Zappa
from the stupid-family-ip-disputes dept
Another week, another story about the abuse of intellectual property. This one, like many, involve the "estate" of a famous, but deceased, creator. In this case, it's the estate of Frank Zappa, which apparently is managed by two of his four children: Ahmet and Diva. The other two children are beneficiaries of the estate, but not trustees. The issue here is that one of the other siblings, Dweezil Zappa, wanted to go out on tour under the name "Zappa Plays Zappa" in which he plays songs by Frank Zappa. Sounds reasonable... and, in fact, he's been playing under that moniker for a while. Except, this time, Ahmet has said that it's not allowed and forced Dweezil to change the name to "Dweezil Zappa Plays Frank Zappa" which is not nearly as catchy.The intellectual property claims made by Ahmet and the Zappa Family Trust are mostly not based in any actual US law. Here's the way the NY Times describes it:
This month, the Zappa Family Trust, which owns the rights to Mr. Zappa’s music, informed Dweezil that he did not have permission to tour as Zappa Plays Zappa — the name is a trademark owned by the trust — and that he risked copyright infringement damages of $150,000 each time he played a song without proper permission.The trademark claim makes at least some sense. The estate does, in fact, hold a trademark (78938430) on "Zappa Plays Zappa," which was registered back in 2007 and covers live music concerts. Late last year, however, it appears that Ahmet and the Zappa Family Trust filed for two more trademarks on the phrase: one to cover various apparel and one for musical recordings. It appears this may be the root of the issue here. However, Dweezil claims that he's already licensed the Zappa Plays Zappa brand for his concerts from his now deceased mother, claiming he paid her "an exorbitant fee."
Apparently, some of the complaints here stem from disagreements over payments from merchandise sales on this tour and who gets the money.
But the really nutty part of all this is the copyright part. The claim that he risked $150k each time he played a song is just nuts. First of all, even if it was infringing (and it's not, as we'll explain in a minute), the law actually provides only a maximum of $150k "per work infringed" not "per act of infringement." It's a fine line distinction, obviously, but it's worth noting. But, either way, it's dumb because Dweezil isn't infringing.
As we've discussed probably hundreds of times here at Techdirt, anyone can cover another artist's song. If you're doing a recording, you just need to pay compulsory mechanical licenses, but if you're just performing it live, it's covered via the venue's blanket performance licenses with ASCAP or BMI (with Frank Zappa, it's ASCAP). Except... the Zappa family wants the world to believe that the law there does not apply to them. Rather, they're playing fast and loose with some tricky definitions. Section 115 of the Copyright Act is about how the compulsory licensing works, and it has an adjective that the Zappas are trying to turn into a loophole:
In the case of nondramatic musical works, the exclusive rights provided by clauses (1) and (3) of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section."Nondramatic." Historically, this has been interpreted by many in the copyright space (perhaps reasonably) to say that compulsory licensing a la ASCAP or BMI can't be used for putting on a musical. Instead, for a musical, you do need to negotiate directly with the composers/publishing rights holders. A somewhat murky area of copyright law has grown up around this which is sometimes referred to as "grand rights," despite no such phrase appearing anywhere in the actual law, and that has resulted in some amount of confusion. If you really want a deep dive on grand rights, this article is a pretty good start.
But, again, grand rights (whatever they may actually be) only apply to "dramatic performances," which generally means plays and musicals. That's got absolutely nothing whatsoever to do with Dweezil Zappa going on tour as (basically) a cover band of his father's work. But don't tell that to Ahmet Zappa:
But the most contentious part of the dispute is over the minutiae of music licensing, an area in which the Zappa estate has long taken controversial stances. The family trust argues that for a show consisting largely of Frank Zappa’s music, performers cannot rely on the standard performing-rights licenses that music venues typically get from agencies like Ascap or BMI, but instead need special permission from the estate for “grand rights,” a term that usually applies to theatrical presentations.The NY Times article, thankfully, quotes a copyright lawyer, Conrad Rippy, who explains why grand rights don't apply here at all:
Gail Zappa and Ascap pursued a number of bands under this theory, with mixed success. Project/Object, a well-known Zappa tribute group, had some of its shows canceled by clubs that had received legal letters, but Andre Cholmondeley, a member of the band, said that the group was advised by a lawyer that it did not need a special license, and so has never gotten one. “We simply adhered to U.S.A. law,” Mr. Cholmondeley said in an email.
“Is it performed in a place where you generally would perform a theatrical work? Are people wearing costumes? Does it advance a narrative story line?” Mr. Rippy said. “The closer you get to answer those questions ‘Yes,’ the more it looks like that’s a grand right. A tribute band playing a Frank Zappa song in a club meets none of those tests.”So, yeah, the whole "grand rights" claim is ridiculous -- and as with so many intellectual property disputes involving the heirs of famous artists/creators, this seems to be yet another case where it's just family members squabbling over how to divvy up the spoils, and using obscure intellectual property laws to try to advantage themselves over others. And, in the end, all it really seems to do is tarnish the legacy of those creators.
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Filed Under: ahmet zappa, copyright, dweezil zappa, grand rights, trademark, zappa plays zappa
Companies: zappa family trust
Reader Comments
The First Word
“Likely fallout from the Zappa Kickstarter Documentary
I think this is related to blowback from Dweezil and Moon Unit getting upset with being associated with the Zappa Family Trust's Kickstarter for the upcoming "Who the F@#$ is Frank Zappa" (http://www.jambase.com/article/zappa-family-divided-alex-winters-kickstarter-campaign).Expect this to get uglier.
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"claiming he paid her "an exorbitant fee.""
Seems Copyright also causes family members to forget where they came from.
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It's been like this since humans recognized property as a thing.
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Working
But this case offers a neat contrast:
One descendant wants to actually WORK for his spoils, i.e. literally sing for his supper, while the others want to prevent him from actually performing art that the paying public will enjoy.
Ahmet: "No, Dweezil. Don't perform and create new value. Just get back here and pick through these ashes with us."
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Zappa Threatens Zappa Over Zappa Plays Zappa"
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"Zappa Threatens Zappa Over Zappa Plays Zappa"
I was really hoping this was Zappa performance art using the Intellectual Property legal system.
Disappointed, Zappas. Disappointed.
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Zappa plays Zappa...
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Sadly, I fear you'll never get the credit you deserve for this.
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What the Dickens?
Yes I know that:
1. I've got no legal connection to the estate of CHarles Dickens
2. Dickens' work is out of copyright
3. There is no copyright claim on vague similarities.
4. There is no copyright in titles.
But then the legal shortcomings of my claim aren't that much greater than those reported in the article and the legal problem with their case didn't bother them so...
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I like the idea of a literal death penalty - when the artist dies, all his work immediately enters the public domain. No assigning ownership to corps or kids either. You wrote it, you die, it is freed.
That would have stopped prince from hoarding all of those recordings in his vault.
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Likely fallout from the Zappa Kickstarter Documentary
Expect this to get uglier.
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That gets rid of most of the current problems associated with the current system (orphaned works, near-infinite corporate-owned copyright, feuds such as the above, retroactive robbing from the public domain), while retaining the copyright for the artist should he wish it and the ability for the family to get something if the artist dies before he can invest his income or before success hits.
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That's cool, many do though, and they'd probably say the same thing about someone whose music you are a fan of. What does that have to do with whether his son should get to play his fathers music to his fans?
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So after a couple of more decades of trying to wring a couple more bucks, Frank Zappa (and his family) will be nothing more than a couple of minor footnotes in history at best to most of the general world...
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history repeats
"..some stupid with a flare gun, burned the place to the ground......
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Once Mom is Gone
My Mom was the hub of our family. Seems like a whole lotta love died amongst my siblings when she went.
I saw your show, 'Zappa Plays Zappa' three times and just want to say,Thank You. You are truly carrying on your Father's Trust. Ahmet, Come On, Man..
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Re: "Zappa Threatens Zappa Over Zappa Plays Zappa"
Dweezil, you can just call your tour, 'Zappa Plays Himself' now, my friend! Your great performances are one thing your Dad is smiling about.
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The Dweez!
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I'd say this needs an update
https://www.facebook.com/notes/ahmet-zappa/an-open-letter-to-my-brother/10153667213097309
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There's no reasons why artists' unions can't offer such a service — that's what unions used to do.
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Grand Rights
https://paulcarr.org/2016/04/29/frank-zappa-and-grand-rights-again/
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Re: Yup....
I can only think that he is spinning in his grave at 78 rpm over the idiocy of his wife that is being perpetuated by Ahmet.
Sad. Very sad.
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Zappa Theater
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Re: I'd say this needs an update
http://www.inquisitr.com/3102101/ahmet-volleys-dweezil-rebuts-plot-thickens-in-zappa-family-feud/
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I wish the best for the current Zappa Family Trust . It just fell into the wrong hands when Gail Zappa took onto herself to run the Zappa empire. Bad medicine leads to further complications down the road. And Gail Zappa was not what the doctor ordered.
I played with the Grand Wazoo and the Mother’s of Invention (also referred to as the Petit Wazoo) during a great part of 1972. Frank recorded all the concerts and the ‘Zappa Family Trust’ released recordings from these two groups 34 years after, without informing me ( as well as other musicians I spoke to ) and without any payment whatsoever to me (nor to the other musicians whom I spoke to ). I had contacted Gail Zappa by mail at the time of the first release of the Mothers of Invention ‘ Petit Wazoo’ CD : "Imaginary Diseases " 2006 and she responded saying that the musicians would be paid “something” in time. They were just empty words. Zero cents for this recording and for the two other CD’s ( which I’m on) which followed : "Zappa Wazoo"2007 and “Zappa-one shot deal” 2008
Frank Zappa would be the last person to support such disrespectful dealings of this nature . So the ‘Zappa Family Trust’ can complain of how unfair the music business has been to them from the outside as well as from the inside, but they should wise up to how they themselves had dealt with others who have shared in the Zappa journey.
As far as other artists performing Zappa’s music, including the Zappa family, musicians have always been inspired to take artistic license in interpreting works and songs of composers and they should have the right to do so.
Let the the original compositions as they were written-orchestrated-performed and recorded by Zappa stand alone. If one wants to hear how Zappa performed his own music, then the listener should discover Zappa’s music by Frank Zappa : by listening to the voluminous sound recordings of his that exist. You cannot seperate his music from the man.
If interested, open the PDF link to get a close insight into the biz dealings I had with Gail Zappa in our e-mail conversations pertaining to the above blog comments I made .
http://bit.ly/27RosGT
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