Two years ago we wrote about the very odd release, by Sony, of just 100 copies of a set of previously unreleased Bob Dylan tracks. Why so few? Well, Sony sort of revealed the secret in the name of the title. See if you can spot it:
Yup. The release had absolutely nothing to do with actually getting the works out to fans, and absolutely everything to do with copyright. You see, back in 2011, despite having absolutely no economic rationale for doing so, the EU retroactively extended copyright on music from 50 years to 70 years. However, there was a tiny catch: there was a "use it or lose it" provision in the law, saying that the music had to have been "released" to qualify for that 20 year extension. Thus, Sony realized with Dylan that it had to "release" (and I use the term loosely) some of its old recordings that had never been officially released, or it would lose the copyright on them.
The other major labels have been doing the same. Last year, there was a series of releases of 1963 music, including more from Dylan, along with some previously unreleased Beatles tunes (at least those were somewhat more widely available). This year, we're getting a new crop of barely released 1964 songs including (yet again) more from Dylan, along with some from the Beach Boys as well (and some expect more Beatles tunes as well).
The Beach Boys released two copyright extension sets this week, both as downloads. The first, “Keep an Eye on Summer: The Beach Boys Sessions 1964,” is a collection of session outtakes, including working versions and remixes of “Fun Fun Fun,” “Don’t Worry Baby,” “I Get Around” and other hits, as well as live BBC recordings. The second, “The Beach Boys Live in Sacramento 1964,” includes two full concert performances.
A spokeswoman for Universal said that the label has “no current plans” for a Beatles release, but last year Universal and the Beatles’ label, Apple, kept plans under wraps until just before “The Beatles Bootleg Recordings 1963” turned up on iTunes. The group’s unreleased 1964 recordings include studio outtakes from the “Hard Day’s Night” and “Beatles for Sale” albums, as well as several BBC appearances and soundboard tapes of the band’s concerts in Paris, Melbourne, Adelaide, Vancouver, Philadelphia and several other cities.
At least when they're released on iTunes, people can get them, unlike the very limited CD releases some have chosen. But, either way, this music isn't being released for any legitimate reason. They're solely being "released" to keep them out of the public domain. It's difficult to see how that has anything to do with furthering the interests of the public and culture. And it certainly highlights how ridiculous the copyright extension effort from 2011 was in the first place. It doesn't serve the public in the slightest, but it has offered up a chance for record labels to keep works out of the public domain for as long as possible.
Peter Friedman alerts us to yet another ridiculous copyright claim (of which there have been a few) from a member of The Beach Boys. You may have heard that, last year, the Beach Boys' Smile album was finally released, despite being recorded in 1966. An artist, by the name of Erik den Breejen, found out about this, and he (a lifelong Beach Boys fan) set out to create a series of paintings inspired by the songs on the album. Sounds good, right? Art inspiring art. Not so much. After completing the works and getting set up with a gallery show to display the works, den Breejen reached out to Beach Boys lyricist Van Dyke Parks, who he figured would like to know about this. Turns out... that wasn't true. Instead, Parks shot back a cease-and-desist.
Instead of fighting back with lawyers, den Breejen and the gallery have approached Parks himself to try to negotiate some kind of out-of-court agreement. Parks was already credited in the exhibition’s press release and in a booklet den Breejen distributed at the gallery, but soon he could be considered a collaborator — entitling him to a percentage of the proceeds. (Van Dyke’s manager did not respond to a request for comment.)
Until the two sides settle their differences, the gallery has put on hold at least two sales inquiries
It's difficult to see how this is not fair use, but since we live in a world where fair use isn't determined until after an expensive court process, we'll never know in this case.
Update: Just some clarifications, as per the comments. Parks was a lyricist for the band, rather than a direct member. Separately the paintings do include lyrics from the songs, which should have been made clear. I don't see how either point really changes the overall analysis, however.
AdamR was the first of a bunch of you to send in the news that the Beach Boys are threatening to sue Katy Perry and/or her label if they're not given songwriting credits for her song California Gurls. The Beach Boys, of course, did have a famous song back in 1965, called California Girls, with the classic line "I wish they all could be California Girls..." In the Katy Perry song, which is very different than the Beach Boys song, at the very, very, very end, Snoop Dogg says "I really wish you all could be California girls," so the quote isn't even a direct one. I would have embedded the video here for you all to see, but Perry's label is EMI, and EMI is still doesn't understand why embedding videos is a good idea.
Either way, the demands for a songwriting credit are ridiculous. Hopefully EMI and Perry stand up to Mike Love and Brian Wilson over this (amusingly, we were just covering how Love and Wilson were involved in a totally frivolous lawsuit between each other), though I could see EMI giving in so as not to open up the copyright can of worms over lyrics quotations and fair use. The use of the (modified) line here seems like a clear, undeniable case of fair use. It's laughable to think that Love/Wilson deserve writing credits for a throwaway statement at the very end of a totally different song that, in some ways, is just an homage to their song.
Also complicating things? It looks like Love and Wilson have been quoted in the past saying they like the song and are flattered by the homage. Wilson wished her well on the track:
"The melody is infectious, and I'm flattered that Snoop Dogg used our lyric on the tag. I wish them well with this cut."
Love's quote, however, is a little different, and at least hints that he was thinking about this earlier (though, apparently, he now denies that this was his idea to threaten EMI/Perry):
"Initially the subject matter was so unique -- songs about surfing, great cars, being true to your school, California girls. And the subject matter is still in vogue -- just ask Katy Perry.... I think the part she did is pretty cool. There are a lot of writers on it, and I think it's probably a stroke of genius to have the king of canine cool, Mr. [Snoop] Dogg, do his thing. But I think her creative part, her musical part, is pretty hooky. I think it brings the Beach Boys' 1965 classic to mind, that's for sure."
And here we are, once again, discussing California publicity rights in a lawsuit that seems so ridiculous it just leaves you shaking your head. It involves Mike Love, of the Beach Boys, who apparently got quite upset that former Beach Boy Brian Wilson released an album in the UK a few years back. Wilson released the album in the UK, like others have, by doing a deal with the UK newspaper The Mail, which distributed copies of the album to all its subscribers in the UK and Ireland. Apparently 425 copies of the paper were distributed in the US... but none with the CD. 18 copies of the paper (again, without the CD) were distributed in California.
Mike Love (who I believe is Wilson's cousin) holds the trademark on The Beach Boys for use when touring, got upset when he saw that the album cover of Wilson's album distributed via the newspaper included some small photographs of the old Beach Boys, including some that had Love. And at this point, Love and his lawyers filed lawsuits against everyone for just about anything the could think of:
In
response to the English promotion, Love sued a variety of
parties for their involvement in the promotion campaign. He
sued Wilson; Associated Newspapers Limited ("ANL"), the
publisher of Mail on Sunday; BigTime.tv, a British company
that licensed and recorded the compact disc; Sanctuary
Records Group, Ltd., the entity that owned the rights to the
Brian Wilson recordings relevant to this case, as well as Sanctuary
Records Group NY, Sanctuary Music Management,
Inc., and Sanctuary Music Productions, Inc. ("the Sanctuary
defendants"); Jean Sievers, the Lippin Group, Inc., and SOOP
LCC, Wilson's managers and publicist; David Leaf, a writer
and producer for Wilson; and Melinda Wilson, Wilson's wife.
Through a variety of steps, most of these defendants and claims were dismissed, sometimes "with prejudice" which resulted in attorneys' fees being awarded as well -- after the district court determined that the copyright claims "bordered on frivolous and were not
objectively reasonable" and that they "contributed to the
bloat" of a "vastly overpled . . . case." On top of that, Love made some... um... mistakes (some might call them "lies"), such as first claiming he lived in Nevada, and then after realizing he was trying to use California publicity rights laws, changed the filing to claim that he had "a residence in California." In doing so, the court "strongly admonished" him for falsely claiming that he was a California resident when he had admitted he really was not.
Then there's my favorite bit, where he found a guy to swear that he bought the Wilson album on eBay after mistaking it for being a Beach Boys offering. The only problem? The guy who made that declaration was a friend of Love's lawyer, and the evidence suggested he wasn't actually confused:
Love responded to criticism by the district court that he had
failed to introduce any evidence that Good Vibrations had
ever entered the U.S. market by filing a declaration by Steven
Surrey that Surrey had bought a copy of Good Vibrations on
eBay because he thought it was an official Beach Boys product
("Surrey affidavit"). Because of uncontested evidence that
Surrey was a close associate of Love's attorney and had fabricated
his allegation that he was confused by the labeling of
Good Vibrations, the district court never considered the Surrey
affidavit to have any evidentiary value, and entered sanctions
against Love's counsel.
Rather than thinking that it made sense to perhaps give up this path of protest, Love appealed certain aspects of the district court's ruling, and an appeals court has now smacked Love down again. The key point: Love is bringing "publicity rights" charges based on California's publicity rights laws -- and yet, everything about the release of this album was in the UK, which has no corresponding publicity rights.
Although California recognizes both a statutory and
common law right of publicity, and England recognizes neither,
this is not a case of true conflict... California
has no interest in applying its law to the conduct in question.
None of the parties remaining in this suit is a citizen of
California. The misappropriation in this suit occurred almost
exclusively in the United Kingdom and Ireland, where millions of copies of the Mail on Sunday and Good Vibrations
were distributed.... At most, de minimus
conduct occurred in California when a handful of copies of
the paper were delivered without the CD, and a handful of
copies of Good Vibrations were sent to Wilson's attorney in
California.
The court points out that if this whole thing was legal in the UK, there's not much for Love to complain about:
Even if California has an interest in protecting the right
of an entertainer with economic ties to the state to exploit his
image overseas, that interest is not nearly as significant as
England's interest in (not) regulating the distribution of millions
of copies of a newspaper and millions of compact discs
by a British paper primarily in the United Kingdom
The court also similarly dismisses various trademark claims that Love makes, again pointing out that the UK is not the US. With the court pointing out that there doesn't appear to be any actual harm in the US, Love tried to claim that his US tour of the Beach Boys had lower than expected ticket sales. The court doesn't find this to be credible evidence of any harm, seeing as US tour results were unlikely to be impacted by a CD released solely in the UK:
Love' declaration--that
his ticket sales in the United States were lower after the distribution
of Good Vibrations, the release of Smile, and the U.S.
tour embarked upon by Wilson--is insufficient. Even if, as
Love argues, European purchasers of the Mail of Sunday
would mistakenly associate the promotional CD with Love,
Smile, and the official Beach Boys touring band, it is too great
of a stretch to ask us, or a jury, to believe that such confusion
overseas resulted in the decreased ticket sales in the United
States.
The appeals court also affirms the lower court's rulings awarding attorney's fees to some of the parties Love sued. Love, amusingly, tried to argue that even though California's publicity rights laws allows for attorney's fees to be awarded, since the court found that law inapplicable due to jurisdiction, that the attorney's fee provision didn't apply either. The court brushed that argument aside, pointing out that it was Love himself who brought the action under that law.
All in all, Love seems to have lost badly (now, multiple times) and has to pay attorneys' fees to some of the parties he sued. Reading the descriptions in the ruling suggest that this lawsuit was about as disastrous for Love as could be.
