The last time we mentioned the Wu-Tang Clan here at Techdirt, we were discussing the group's bizarre yet inventive attempt to curtail digital music's infinite goods problem by releasing a single copy of an entire album for $1 million. It was a creative approach, though one that likely isn't a model that transfers well to the music industry as a whole. But it seems that the copyright arena isn't the only intellectual property venue in which Wu-Tang wants to play, as RZA, a member of the group, has filed a trademark opposition to a dog-walking company calling itself Woof-Tang Clan.
In a lawsuit filed November 15th, RZA (real name Robert Diggs) touted the long history of the Wu-Tang Clan mark and how its appearance on various goods and services "has come to represent enormous goodwill." The suit also claimed the Wu-Tang mark is "unmistakably associated with [RZA] such that it constitutes part of his identity."
Woof-Tang Clan's owner, Marty Cuatchon, filed a trademark application for his company on June 8th. As the New York Daily News noted, the company also briefly sold T-shirts on its website that made explicit reference to late Wu-Tang rapper Ol' Dirty Bastard's debut album, Return to the 36 Chambers: The Dirty Version. The shirt tweaked the album's famous cover – a snapshot of ODB's ID card for food stamps – to feature a dog named Bali in the rapper's place. Another shirt parodied the cover of De La Soul's 3 Feet High and Rising. Both have been removed from the company's website.
Now, the t-shirt aspect of this will muddy the waters as to just how valid an opposition this is. It's almost certain that RZA has a trademark for all things "Wu-Tang Clan" for apparel, after all. Still, the shirts are obvious parody, in line with Woof-Tang Clan's obvious homage as a parody in its business' name to begin with. Commercial in nature or not, this sort of parody is generally regarded as protected fair use.
Particularly, it should go without saying, when that use in no way deceives the consuming public about the source or affiliations of the supposedly offending company. That confusion is the controlling factor for trademark concerns and any claim that the public is going to think this small dog-walking company is run by or is affiliated with a world-renowned rap group is a hell of a logic-hurdle over which to leap. Rolling Stone's reporting suggests that RZA's filing claims that Woof-Tang Clan is suggesting a connection to the group, but all it actually suggests is that the folks behind Woof-Tang Clan are likely fans of the RZA and his cohorts. Marty Cuatchon, the man behind the company, confirmed as much.
Speaking with the Daily News Saturday, Cuatchon said he was unaware of RZA's trademark challenge and declined to comment until speaking with a lawyer. However, he did say, "I am a fan. We walk dogs. I thought it was a good idea."
A much better idea than this needless trademark opposition, I would say.
This week, in two different countries, we got two very good rulings concerning copyright on "sampling" of music into other songs. As you may know, the law on sampling, especially in the US, has been a bit of a mess. There was a great documentary on this a few years ago called Copyright Criminals that I highly recommend watching if you can find it. Here's the trailer:
A big part of the problem was a horrible ruling in the 6th Circuit in one of the (many) Bridgeport cases (a company that is alleged to have forged records to get control over heavily sampled works, and then sued lots of artists over their samples). In Bridgeport v. Dimension Films, a confused 6th Circuit appeals court made a bunch of nutty comments in a ruling, including "Get a license or do not sample. We do not see this as stifling creativity in any significant way." That case, which didn't even look at the fair use issue, effectively wiped out another legal defense against accusations of copyright infringement, known as "de minimis use." The court's bizarre ruling contradicted plenty of others in basically saying there's no such thing as de minimis use because each sampled note has value or it wouldn't have been sampled. This tautological reasoning is directly in that awful ruling:
Why is there no de minimis taking...? ... [E]ven when a small part of a sound recording is sampled, the part taken is something of value.(11) No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.
And while this ruling has been troubling copyright and music sampling folks for ages, no one seemed willing to challenge it. But, a few years back, we wrote about VMG Salsoul suing Madonna over her hit song "Vogue," claiming it used a sample from the VMG Salsoul song "Chicago Bus Stop." You can listen to both tracks and I assure you that you will not see any similarities, because they're totally different. In fact, VMG claimed that part of the reason it took 20 years to sue over this was because Madonna "hid" the sample -- which (to us, at least) raised serious questions about how it could be copyright infringement at all. In our article, we noted the mess in the 6th Circuit and the fear of others testing that ruling, but the Madonna case went forward (in the 9th Circuit, rather than the 6th) and Madonna won, and has now won again on appeal, with the court flat out rejecting the Bridgeport ruling in the 6th Circuit, and saying that de minimis use exists in sampling:
We reject that interpretation of § 114(b). Bridgeport
ignored the statutory structure and § 114(b)’s express
limitation on the rights of a copyright holder. Bridgeport also
declined to consider legislative history on the ground that
“digital sampling wasn’t being done in 1971.” ... But the state of technology is irrelevant to interpreting
Congress’ intent as to statutory structure. Moreover, as
Nimmer points out, Bridgeport’s reasoning fails on its own
terms because contemporary technology plainly allowed the
copying of small portions of a protected sound recording....
Close examination of Bridgeport’s interpretive method
further exposes its illogic. In effect, Bridgeport inferred from
the fact that “exclusive rights . . . do not extend to the making
or duplication of another sound recording that consists
entirely of an independent fixation of other sounds,”
... the conclusion that
exclusive rights do extend to the making of another sound
recording that does not consist entirely of an independent
fixation of other sounds. As pointed out by Nimmer,
Bridgeport’s interpretive method “rests on a logical fallacy.” ...
A statement that rights do not extend to a particular circumstance does not automatically mean that the
rights extend to all other circumstances. In logical terms, it
is a fallacy to infer the inverse of a conditional from the
conditional.
The ruling also rejects that weird "physical taking" line quoted above as a reason to ignore de minimis use as a defense against infringement:
We disagree for three reasons. First, the possibility of a
“physical taking” exists with respect to other kinds of artistic
works as well, such as photographs, as to which the usual de
minimis rule applies.... A
computer program can, for instance, “sample” a piece of one
photograph and insert it into another photograph or work of
art. We are aware of no copyright case carving out an
exception to the de minimis requirement in that context, and
we can think of no principled reason to differentiate one kind
of “physical taking” from another. Second, even accepting
the premise that sound recordings differ qualitatively from
other copyrighted works and therefore could warrant a
different infringement rule, that theoretical difference does
not mean that Congress actually adopted a different rule.
Third, the distinction between a “physical taking” and an
“intellectual one,” premised in part on “sav[ing] costs” by not
having to hire musicians, does not advance the Sixth Circuit’s
view. The Supreme Court has held unequivocally that the
Copyright Act protects only the expressive aspects of a
copyrighted work, and not the “fruit of the [author’s] labor.”
... Indeed, the Supreme Court in Feist explained at
length why, though that result may seem unfair, protecting
only the expressive aspects of a copyrighted work is actually
a key part of the design of the copyright laws....
Accordingly, all that remains of
Bridgeport’s argument is that the second artist has taken
some expressive content from the original artist. But that is
always true, regardless of the nature of the work, and the de
minimis test nevertheless applies.
And thus, the 9th Circuit directly admits that it's creating a circuit split, which makes it much more likely that the Supreme Court may take up the issue:
Because we conclude that Congress intended to maintain
the “de minimis” exception for copyrights to sound
recordings, we take the unusual step of creating a circuit split
by disagreeing with the Sixth Circuit’s contrary holding in
Bridgeport. We do so only after careful reflection because,
as we noted in Seven Arts Filmed Entertainment Ltd. v.
Content Media Corp.,..
“the creation of a circuit split would be particularly
troublesome in the realm of copyright. Creating inconsistent
rules among the circuits would lead to different levels of
protection in different areas of the country, even if the same
alleged infringement is occurring nationwide.” ... We
acknowledge that our decision has consequences. But the
goal of avoiding a circuit split cannot override our
independent duty to determine congressional intent.
Otherwise, we would have no choice but to blindly follow the
rule announced by whichever circuit court decided an issue
first, even if we were convinced, as we are here, that our
sister circuit erred.
It also notes, as we did, that no one would ever be able to tell that the Madonna song sampled Bus Stop:
After listening to the recordings, we conclude that a
reasonable jury could not conclude that an average audience
would recognize the appropriation of the composition.
Furthermore, the fact that the sample was modified helps Madonna's case:
The horn hit itself was not copied precisely. According
to Plaintiff’s expert, the chord “was modified by transposing
it upward, cleaning up the attack slightly in order to make it
punchier [by truncating the horn hit] and overlaying it with
other sounds and effects. One such effect mimicked the
reverse cymbal crash. . . . The reverb/delay ‘tail’ . . . was
prolonged and heightened.” Moreover, as with the
composition, the horn hits are not isolated sounds. Many
other instruments are playing at the same time in both Love
Break and Vogue.
The ruling even notes that VMG Salsoul's own expert "misidentified" the source of the sampled note, showing that even their own expert couldn't correctly understand what was sampled here (oops). And in the end, the court supports de minimis use:
We hold that the “de minimis” exception applies to
actions alleging infringement of a copyright to sound
recordings.
Separately, the court did overturn the district court awarding attorneys' fees in the case, saying that the lawsuit was not "objectively unreasonable" in light of Bridgeport, even if that case was disputed by many.
There is also a really confused dissent by Barry Silverman that goes along the "copyright is a property right and any infringement on that right is bad" line of thinking:
The plaintiff is the owner of a copyright in a fixed sound
recording. This is a valuable property right, the stock-intrade
of artists who make their living recording music and
selling records.... It is no
defense to theft that the thief made off with only a “de
minimis” part of the victim’s property.
And then there's this:
True, Get a license or do not sample doesn’t
carry the same divine force as Thou Shalt Not Steal, but it’s
the same basic idea. I would hold that the de minimis
exception does not apply to the sampling, copying, stealing,
pirating, misappropriation – call it what you will – of
copyrighted fixed sound recordings. Once the sound is fixed,
it is tangible property belonging to the copyright holder, and
no one else has the right to take even a little of it without
permission.
It's kind of horrifying when an appeals court judge doesn't know the difference between theft and infringement. Thankfully, he's in the minority.
Either way, this circuit split increases the chances of the Supreme Court weighing in. That could be good in finally getting the 6th Circuit precedent destroyed. Or... it could be bad in that this particular Supreme Court seems to almost always get copyright cases wrong, meaning it could affirm the 6th Circuit interpretation and dump the 9th's, once again doing serious harm to sampling as an art form.
Meanwhile, however, over in Germany, they've taken a much more enlightened view on all of this in a similar case involving Kraftwerk whining about a hip hop song sampling some of its music. The German Bundesverfassungsgericht (German federal constitutional court) has given a big okay to samples by noting that their artistic merit outweighs the copyright issue:
If the artist’s freedom of creative expression is measured against an interference with the right of phonogram producers that only slightly limits the possibilities of exploitation, the exploitation interests of the phonogram producer may have to cede in favour of artistic dialogue.
The ruling basically tries to balance the right to "artistic freedom" with copyright law, and basically argues that in cases where those doing sampling aren't doing any real harm to the original copyright holder, the artistic freedom should win out. The court rejects the idea that using a short sample interferes with the copyrights of the original:
The presumption by the Federal Court of Justice that even the inclusion of very brief sound sequences constitutes an interference with the plaintiffs’ right to protection as phonogram producers if the used sequence can be reproduced so as to sound like the original, does not take sufficient account of the right to artistic freedom. Where a musical artist who intends to use samples to create a new work does not want to refrain from including a sample in his new piece of music, the strict interpretation of free use by the Federal Court of Justice puts him in the position of having to decide whether to obtain a sample license from the phonogram producer or to reproduce the sample himself. In both cases, however, the freedom of artistic activity and hence also the further cultural development would be restricted.
Just because you can license some samples doesn't fix the situation:
Emphasising the possibility to obtain a license does not provide an equivalent degree of protection of the freedom of artistic activity: A right to be granted a license to use the sample does not exist; due to his right of disposal, the phonogram producer may deny a licensing without having to give reasons and irrespective of the readiness to pay for the use of the sample. The phonogram producer is entitled to demand the payment of a license fee for the use of the sample, the amount of which he is free to determine. The process of granting rights is extremely difficult in case of works which assemble many different samples in a collage-like manner. These problems are only solved insufficiently by existing sample databases and service agencies that assist musical artists in the process of sample clearing.
In other words, the German approach here is a big, big deal, recognizing that sampling is a form of artistic expression, and requiring licenses for it stifles creativity and musical expression. This is a much bigger deal than the US situation, where we're still arguing over de minimis use (and not even fair use!). Meanwhile, over in Germany they're directly looking to enable more artistic freedom.
Last month, we were actually the first publication to report that Homeland Security had very quietly "returned" two domains that it had "seized" five years ago based entirely on totally bullshit claims from the RIAA. We focused our story on the search engine torrent-finder, but also mentioned that it appeared that DHS had returned OnSmash.com as well. As we had noted, back when the domain was first seized, OnSmash was a popular hip hop blog that many in the industry purposely sent their music to, because it was great for marketing and publicity. In fact, Kanye West had been known to promote OnSmash himself. That doesn't sound like a site "dedicated to infringement" as Homeland Security's ICE division claimed in the affidavit used to seize the website.
Four years ago, we were wondering whatever happened to OnSmash, as other sites that had gone to court over the seizures had had their domains returned -- and it was admitted that this was because the RIAA (which had told ICE about these websites) failed to provide any actual evidence. It appears the same thing happened with OnSmash, though it just took an extra four years to get the domain back, as OnSmash's operator, Kevin Hofman, chose not to take the riskier path that Dajaz1 took in going to court. But, the NY Times story about the return of OnSmash gets a quote from ICE admitting that they never had enough evidence:
When asked about the return of OnSmash and another site, Torrent-Finder.com, which was seized in the 2010 raid and also returned to its operator this fall, Matthew Bourke, a spokesman for the National Intellectual Property Rights Coordination Center of Immigration and Customs Enforcement, said that after working with the Justice Department, “it was determined there was not enough evidence to seize the websites.”
Think about that for a second. The US government shut down a blog for more than five years and only after giving it back now admits that it never had enough evidence to seize the website.
I'm gong to repeat that:
The US government shut down a blog for more than five years and only after giving it back now admits that it never had enough evidence to seize the website.
Meanwhile, the RIAA, which told the agent in charge of the investigation that these sites were nothing more than dens of infringement, is so obnoxious as to now celebrate them being returned with some bullshit line about how they now "wish to be legitimate operators":
Jonathan Lamy, a spokesman for the recording industry association, said he welcomed the return of the sites, as long as they played by the rules. “If the managers of some of these sites now seek to have the domain name returned because they wish to become legitimate operators, that’s a success,” he said.
What a load of horseshit, Lamy. These sites didn't "now seek to have the domain name returned." They asked for it back almost immediately after they were seized on false pretenses based on false information provided by the RIAA. Perhaps, instead of some bullshit about these sites suddenly wanting to play by the rules, Lamy should walk down the hall to see his colleague Carlos Linares (who is still employed by the RIAA) and ask him what was up when he lied to federal investigators, helping to shut down a popular blog, violating the site's First Amendment rights?
This is from the affidavit used to seize OnSmash:
Now, Hofman is trying to rebuild the blog, having basically lost years of momentum due to the RIAA's lies.
Mr. Hofman, whose day job is managing digital accounts for musicians, has already restarted OnSmash, but he said he was aware of the challenges he would face. The site has lost most of its momentum, and blogs — once at the forefront of online music promotion — have largely been superseded by social media. He noted one advantage: By embedding links from sites like SoundCloud and YouTube, where artists and labels post songs directly, there is no more gray area concerning the source of the music.
“The plan now,” Mr. Hofman said, “is to do my best to pick up the pieces.”
Oh yeah, insult to injury: Homeland Security made him pay $7 to get the domain back.
I'm still amazed that these stories haven't gotten more attention. Again, if the federal government seized and shut down a print magazine people would be up in arms. But they do that for a bunch of online magazines and nobody seems to care? Again, they seized the domain based on false information and kept it for five years knowing that they didn't have enough evidence to have made the seizure in the first place.
And the guy who helped at the RIAA is still employed. Has anything happened to the ICE agent, Andrew Reynolds, who wrote the affidavit? How about the magistrate judge, Margaret Nagle, who apparently had no problem signing off on the seizures of internet blogs based on faulty evidence? Apparently, she recently retired and is now acting as a mediator. You know what might have been helpful? If someone had actually been able to mediate things back in 2010 before the RIAA, Homeland Security and Judge Nagle worked together to shut down an internet news website with no justification.
I've issued some FOIA requests to Homeland Security about both OnSmash and Torrent-Finder, and so far they've said that it would be "too burdensome" to search for any emails mentioning either site. I'm hopeful that more information will be exposed on what a colossal screwup this was.
Michael Scott points us to an interesting paper by a law professor, Tonya Evans, talking about how poorly copyright law is designed to handle a concept like hip hop. Of course, this is an issue that we (and plenty of others) have covered for years -- noting how copyright law has drastically hindered certain aspects of hip hop music, once the lawyers started accusing samplers of infringement, and some courts suggested that using just a tiny snippet of a song, and even changing it so the original was unrecognizable, still constituted copyright infringement. From the abstract:
For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin' and scratchin', digital sampling, looping and (most recently) mashing are all methods of creating music and are all integral parts of the hip hop music aesthetic. Collectively these creative processes are the hallmark of the type of innovation and creativity born out of the hip hop music tradition. And hip hop artists and producers from Chuck D, Queen Latifah, A Tribe Called Quest and M.C. Lyte to The RZA, Missy Elliott, Dangermouse and Jay Z have employed the sampler more as a musical instrument or palette than a tool of expediency or theft. But when done without the permission of the borrowed works copyright holder, sampling is at odds with copyright law. Unfortunately, copyright fails to acknowledge the historical role, informal norms and value of borrowing, cumulative creation and citation in music.
Additionally, different copyright infringement standards are applied to the two types of music copyright (the musical composition and sound recording). Further, and arguably more troubling, different infringement standards are being applied by the circuits to sound recording infringement cases resulting in a split in the circuits.
Evans concludes that "intellectual property should be most narrowly tailored when innovation in the field tends to be highly cumulative" such as the case in music. But what really caught my eye was the claim that "copyright law must be remixed." While I think Evans, like many copyright reform advocates, makes the mistake of focusing on balance, rather than looking to optimize the best results for everyone, there's just something amusing about using the term "remix," which is usually used when discussing the content itself, to discuss how copyright law might be reformed.
For a while now, we've been pointing out that people in both the advertising and content businesses need to recognize that they're both in the same business. All advertising is content, and all content is advertising -- whether intentional or not. The latest example of this is pointed out by reader lavi d, who points us to a clip from NPR's All Things Considered about how Procter & Gamble has teamed up with Def Jam records to create a new record label: Tag Records, which is connected to the P&G product Tag Body Spray.
Rather than bringing on a big name star to "endorse" its product, Tag Records has signed a relative unknown, and is basically promoting both this new musician, Q, and the body spray at the same time. The music doesn't necessarily directly promote the body spray, but the promotions go hand in hand, and there is no real border between the content and the advertising. If the content itself is good content, it doesn't much matter. And, it appears that other brands are following suit. The radio clip notes that the energy drink Red Bull is apparently building its own studio to do the same thing. To some extent, it's no surprise that Def Jam would recognize this as a direction to go in: we pointed out in the past how a bunch of hip hop music execs were way ahead of the curve in recognizing new business models where the music itself is part of the promotion for something else.
And here, once again, we're seeing a totally new business model for the music business. Suddenly the success of the musicians on these labels isn't as much about selling music as it is in getting the music out there to promote other products as well. This doesn't mean (as I'm sure some angry commenters will imply) that all music will soon have some sort of consumer packaged goods connection -- but it shows, once again, that new business models emerge, and those business models will ensure that plenty of good content continues to show up. Because, if the music put out by these record labels suck, then it won't do much good for anyone: the consumer goods they're connected to, the musicians or the labels.
It's funny every time we hear someone say that the music industry is in trouble. There's very little evidence that's true. More music is being produced today than ever before -- and plenty of people are still making a ton of money in the music business. What's actually in trouble is the traditional recording industry, which is quite different than the music industry. When we point out business models for musicians, we seem to get a lot of pushback, but there's more and more evidence that artists are successfully embracing the model we've put forth -- and they're raking in the cash doing so. Forbes just came out with a report about how much money the top hip hop artists are making, and they're doing quite well. However, it's not because of just the music, but how they've used the music to sell all sorts of other things.
It's exactly the model we described (though, many could probably do even better if they further embraced freeing their music). The music itself is an infinite good and can be used to the musician's advantage to make scarce goods much more valuable. As Lea Goldman, the associate editor at Forbes who put together the story notes: "they are smart enough to know that it's not just about selling albums. That'll keep you going for maybe two, three years tops. It's about building an empire and plowing those earnings into lasting businesses that will generate income long after the music stops selling." For some artists, that means branching out into totally different businesses. When people attack the business model we've described, they snicker at "selling t-shirts." However, the article notes that hip hop artists are creating full lines of clothing that sell well and sell for a premium because of their association with the artist. Also, the successful hiphop stars all seem to recognize one of the key "scarce" resources they can sell: an association with themselves. Many of these musicians took in millions by doing sponsorships, by producing other musicians albums or simply by appearing on other musicians' recordings. So, can we now set aside the myth that the music industry is in trouble? It's only in trouble if you're solely in the business of selling plastic discs -- and that's because those discs are increasingly obsolete.
