Re: Re: Re: This is a victory for the Beastie Boys and genuine fair use whether you like it or not
...it sounds like Queen is going to sue them for using "We are The Champions" but I'm sure they'll find a way to convince you that's fair use too, right?
Nope. I viewed that ad and it looks like copyright infringement to me. Completely different situation there, but you already knew that didn't you.
It doesn't even make it fair to the musicians at all, especially one who clearly stated he doesn't want his music used for commercials before he passed away.
Ummm. Fair Use isn't about being "fair" to the creator at all. It's a mechanism built into copyright to keep it from running afoul of the First Amendment protections on Free Speech. It's how the courts allow copyright to exist in the first place. Without Fair Use no one could write a negative review or parody without asking permission first. That would severely curtail Free Speech and as a result copyright would eventually be declared unconstitutional and therefore not permitted.
And lifting an entire song whole sale to sell a product is NOT the same as transforming an iconic photo into comedy.
The Naked Gun picture "lifted" (your word) the entire composition, focus, setting and subject matter of the original photo. Those are the creative elements of a photograph that copyright protects. But there were enough changes (ie: Nelson's head) to change it so it parodies the original.
Goldieblox "lifted" (once again, your word) the melody and beat of the song, but changed it enough (ie: basically reversing the message of the lyrics) to make it a parody of the original.
How are these different again?
Bottom line is this: Copyright law allows Fair Use of works for the purpose of parodying the original. In order for a parody to work in the first place it MUST be recognizable as a spoof of the original. How would you accomplish parody at all if you can't copy enough of the original to make it recognizable?
I think Mike's article is wrong because if the courts rule for GoldieBlox that using music is 'fair use' then it would be open season for any business, retailer, advertiser, movie studio or television studio to use copyrighted music without having to license it.
That's silly. Fair Use can only be determined by a court. It's determined on a case-by-case basis. There will be no "open season" on anything if this individual case happens to be declared Fair Use or not. The next infringement/Fair Use case will be determined on it's own merits.
In other words, if we allow advertisers to simply mock popular songs in their ads, without paying for the rights to the songs, the lucrative licensing of songs for advertisements will eventually dry up. Why pay for the song you want when you can simply mock the song you want for free?
Well even Justice Kennedy brought this up in the concurring opinion of Campbell v. Acuff-Rose Music, Inc. with this statement:
As future courts apply our fair use analysis, they must take care to ensure that not just any commercial takeoff is rationalized post hoc as a parody.
I think the court will need to determine Goldieblox intentions going into this one. Were they just looking to rip off someone's song for an ad or were they trying to create a discussion about gender bias that would create an interest in their products? Those are two very different motivations.
That's a really big wall of text. I'm only going to respond to a few things here.
Musicians are disappearing but there are more HOBBYISTS than ever before.
I disagree with that assessment. Whether you label them musicians or hobbyists, more people are earning income from music. You seem more upset that your exclusive club has more members now, than anything else.
The more people there are making their shitty hobby music, the harder time we have wading thru it to find the good stuff. But the good stuff is there! it's out there somewhere.
I also disagree with this statement. Your "shitty hobby music" is another man's 5th Symphony. It's all subjective and I'd rather make up my own mind as opposed to some A&R man doing it for me. Also, with today's technology, there are filters to find the good stuff and those will only get better as time goes on.
here's some numbers for you:
For clarification, what are referring to with "units sold"? If you are talking about CD sales, then yes, that is declining drastically. Why would people want physical CD's in this always connected internet age? That's kind of like pointing to the decline in sales of player piano rolls and saying the the music industry is dying.
You can tell from the phrasing of that Wikipedia quote that it was not written by someone with legal training in this area, and the only source it cites is another Wikipedia article. I am a copyright lawyer with plenty of experience in this area. I don't have time to dig up citations, so, sure, you can take it on faith or you can choose not to believe me, but this is what the weight of authority, murky as it may be, currently says.
I cited Wikipedia (and I know it's not a real great legal source) because I don't have the time or resources to dig up citations either.
The only point I was making is that when the courts have determined that the work is to be considered a parody or a negative review, the forth prong automatically becomes less important. Which makes sense. A parody or a negative review is specifically designed to impair the market of the original. That's part of the intent of such things and the First Amendment protects that kind of speech.
I have no clue if any musician actually said that or not. But if you take a deep down, honest look inside where your creativity resides, you can see that it's true.
I believe you mentioned you were a songwriter. Do you really think that all those melodies and lyrics you put together come solely from within you, without influence from the world around you? Those are the culmination of all the music you've ever heard and all the words you've ever read throughout your life. It's all built on what others have done before you. Nothingness is what gets created from a vacuum and you don't live in a vacuum.
Music scene is bad! Saying that music is doing great because there's more dollars is exactly like when we are told the economy is great because Wall Street is at an all time high.
I disagree. More people are making a decent living from music these days than ever before. That's a huge improvement over the heydays of the major labels where only about 2% of musicians ever recouped their advances. And most lost control of their copyrights to the labels either way.
Yes, the golden days of superstardom are waning, but the wealth is being spread amongst many more musicians now and as a result we have much more music to choose from.
And the myth of superstardom was really just that - a myth perpetrated by the labels in order to exploit more people. Even Mick Jagger admits that in the last 100 years or so, there was only a small period that musicians actually made decent money selling music, and that was only if you were one of the chosen few that the labels actually choose to promote.
Although my 'speculative' works offers no initial payment, there is the POTENTIAL for escaping the wage slave existence of 'work for hire'. IF the work finds an audience , only then am I rewarded with the means to continue. THIS is the model that benefits me and society. As far as I can see, this is only possible with a royalty system infrastructure.
Do you realize that these things can and are accomplished without relying on copyright?
Mike has spent the last fifteen years discussing these things right here on Techdirt.
always looking for the pot o gold at the end of the 'fair use' rainbow.
Fair Use is not a "rainbow". It's an integral part of copyright law that allows copyright to exist in the United States in the first place. Without Fair Use, copyright most likely would be declared unconstitutional, because it would run in conflict with the First Amendment's guarantee of Free Speech.
Except that as others have pointed out and I didn't think of before, there is no market for licensing this song for a commercial, whether the original or a derivative, because the Beastie Boys would be unwilling to grant any such license. So there can't be any effect on the market.
Not only that, but the courts have concluded that market harm from parodies or negative reviews are pretty much immaterial anyways. Wikipedia sums it up with this sentence:
Courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism. Source
This isn't about copyright or fair use. MCA explicitly in his will stated that none of his work after death may be used in advertisement.
But it IS about copyright and fair use. What MCA specified in his will is immaterial to the legal issues in play here.
The only thing that matters is that it's an advertisement.
Not in the eyes of the law.
If a company wants to use the work of an artist they have to get permission.
That's not a completely true statement. It may how you wish it to be, but that's not what the current laws say.
The artist in question, before his death, said no to all the requests regarding the use of his work in advertisement, and I believe his wishes should be respected.
Once again, you are projecting things onto copyright that just do not exist. Fair use has nothing to do with the creators wishes alive or dead. That is not how it works.
This isn't a political issue, but rather it is a legal one.
Right.
Advertising isn't fair use
But that's not true if you are actually looking at this as a legal issue. Commercial use of a work can absolutely be fair use according existing statutes and case law.
Here's another interesting tidbit. More dollars lost to employee theft than customers shoplifting:
The national study, based on information obtained from 106 retail chains that responded to a questionnaire, said employees were responsible for 43 percent of the stores’ unexplained losses, versus 36 percent for shoplifting. Source
Re: Framing COMPLETELY IGNORES "Who's Screwing You Worse: iTunes Radio, or Pandora..."!!!
"(6) Likelihood of Actually Getting Paid:
Pandora: Moderate chance.
iTunes Radio: Also ‘Moderate’."
As opposed to a "traditional" recording contract from the majors where the likelihood of getting paid after having to recoup expenses was in the range of "None".
On the post: GoldieBlox Pulls Beastie Boys Video, Promises To Drop Legal Dispute
Re: Re: Re: This is a victory for the Beastie Boys and genuine fair use whether you like it or not
Nope. I viewed that ad and it looks like copyright infringement to me. Completely different situation there, but you already knew that didn't you.
On the post: GoldieBlox Pulls Beastie Boys Video, Promises To Drop Legal Dispute
Re: This is a victory for the Beastie Boys and genuine fair use whether you like it or not
And now you are shoveling the shit.
Not fighting this does not prove they would have lost, dumbass.
I believe Goldiblox would have won this fight and no (half-assed) argument that you put forth changed my mind on that.
On the post: Myth Busting: Yes, An Advertisement Can Be Fair Use Parody
Re: issues of "what is parody"?
Ummm. Fair Use isn't about being "fair" to the creator at all. It's a mechanism built into copyright to keep it from running afoul of the First Amendment protections on Free Speech. It's how the courts allow copyright to exist in the first place. Without Fair Use no one could write a negative review or parody without asking permission first. That would severely curtail Free Speech and as a result copyright would eventually be declared unconstitutional and therefore not permitted.
On the post: Myth Busting: Yes, An Advertisement Can Be Fair Use Parody
Re: You're kinda missing the point
The Naked Gun picture "lifted" (your word) the entire composition, focus, setting and subject matter of the original photo. Those are the creative elements of a photograph that copyright protects. But there were enough changes (ie: Nelson's head) to change it so it parodies the original.
Goldieblox "lifted" (once again, your word) the melody and beat of the song, but changed it enough (ie: basically reversing the message of the lyrics) to make it a parody of the original.
How are these different again?
Bottom line is this: Copyright law allows Fair Use of works for the purpose of parodying the original. In order for a parody to work in the first place it MUST be recognizable as a spoof of the original. How would you accomplish parody at all if you can't copy enough of the original to make it recognizable?
On the post: Beastie Boys Say They Don't Want Music In Ads, But Fair Use Doesn't Care
Re:
That's silly. Fair Use can only be determined by a court. It's determined on a case-by-case basis. There will be no "open season" on anything if this individual case happens to be declared Fair Use or not. The next infringement/Fair Use case will be determined on it's own merits.
On the post: Myth Busting: Yes, An Advertisement Can Be Fair Use Parody
Re:
Well even Justice Kennedy brought this up in the concurring opinion of Campbell v. Acuff-Rose Music, Inc. with this statement:
I think the court will need to determine Goldieblox intentions going into this one. Were they just looking to rip off someone's song for an ad or were they trying to create a discussion about gender bias that would create an interest in their products? Those are two very different motivations.
On the post: Beastie Boys Say They Don't Want Music In Ads, But Fair Use Doesn't Care
Re: Re: Re: Re: Re: Re: Re: Re: damn shame
Musicians are disappearing but there are more HOBBYISTS than ever before.
I disagree with that assessment. Whether you label them musicians or hobbyists, more people are earning income from music. You seem more upset that your exclusive club has more members now, than anything else.
The more people there are making their shitty hobby music, the harder time we have wading thru it to find the good stuff. But the good stuff is there! it's out there somewhere.
I also disagree with this statement. Your "shitty hobby music" is another man's 5th Symphony. It's all subjective and I'd rather make up my own mind as opposed to some A&R man doing it for me. Also, with today's technology, there are filters to find the good stuff and those will only get better as time goes on.
here's some numbers for you:
For clarification, what are referring to with "units sold"? If you are talking about CD sales, then yes, that is declining drastically. Why would people want physical CD's in this always connected internet age? That's kind of like pointing to the decline in sales of player piano rolls and saying the the music industry is dying.
On the post: Missed Opportunity: Beastie Boys Should Have Supported Viral Parody 'Girls' Song, Rather Than Claiming Infringement
Re: Re: Re: Re: Re: Re: Re: Re: it's an Advertisement!
I cited Wikipedia (and I know it's not a real great legal source) because I don't have the time or resources to dig up citations either.
The only point I was making is that when the courts have determined that the work is to be considered a parody or a negative review, the forth prong automatically becomes less important. Which makes sense. A parody or a negative review is specifically designed to impair the market of the original. That's part of the intent of such things and the First Amendment protects that kind of speech.
On the post: Beastie Boys Say They Don't Want Music In Ads, But Fair Use Doesn't Care
Re: Re: Re: Re: Re: Huh. Did not know that
said no musician ever!
I have no clue if any musician actually said that or not. But if you take a deep down, honest look inside where your creativity resides, you can see that it's true.
I believe you mentioned you were a songwriter. Do you really think that all those melodies and lyrics you put together come solely from within you, without influence from the world around you? Those are the culmination of all the music you've ever heard and all the words you've ever read throughout your life. It's all built on what others have done before you. Nothingness is what gets created from a vacuum and you don't live in a vacuum.
On the post: Beastie Boys Say They Don't Want Music In Ads, But Fair Use Doesn't Care
Re: Re: Re: Re: Re: Re: damn shame
I disagree. More people are making a decent living from music these days than ever before. That's a huge improvement over the heydays of the major labels where only about 2% of musicians ever recouped their advances. And most lost control of their copyrights to the labels either way.
Yes, the golden days of superstardom are waning, but the wealth is being spread amongst many more musicians now and as a result we have much more music to choose from.
And the myth of superstardom was really just that - a myth perpetrated by the labels in order to exploit more people. Even Mick Jagger admits that in the last 100 years or so, there was only a small period that musicians actually made decent money selling music, and that was only if you were one of the chosen few that the labels actually choose to promote.
http://www.techdirt.com/articles/20100620/2311049880.shtml
On the post: Beastie Boys Say They Don't Want Music In Ads, But Fair Use Doesn't Care
Re: Re: Re: Re: damn shame
Actually, that is incorrect. The Sky is Rising, not falling.
Although my 'speculative' works offers no initial payment, there is the POTENTIAL for escaping the wage slave existence of 'work for hire'. IF the work finds an audience , only then am I rewarded with the means to continue. THIS is the model that benefits me and society. As far as I can see, this is only possible with a royalty system infrastructure.
Do you realize that these things can and are accomplished without relying on copyright?
Mike has spent the last fifteen years discussing these things right here on Techdirt.
Here's a good place to start:
http://www.techdirt.com/blog/casestudies/
On the post: Missed Opportunity: Beastie Boys Should Have Supported Viral Parody 'Girls' Song, Rather Than Claiming Infringement
Re: 'fair use' rainbow
Yes, ad-homs really help your argument.....not.
always looking for the pot o gold at the end of the 'fair use' rainbow.
Fair Use is not a "rainbow". It's an integral part of copyright law that allows copyright to exist in the United States in the first place. Without Fair Use, copyright most likely would be declared unconstitutional, because it would run in conflict with the First Amendment's guarantee of Free Speech.
On the post: Missed Opportunity: Beastie Boys Should Have Supported Viral Parody 'Girls' Song, Rather Than Claiming Infringement
Re: Re: Re: Re: Re: Re: it's an Advertisement!
Not only that, but the courts have concluded that market harm from parodies or negative reviews are pretty much immaterial anyways. Wikipedia sums it up with this sentence:
On the post: Missed Opportunity: Beastie Boys Should Have Supported Viral Parody 'Girls' Song, Rather Than Claiming Infringement
Re: wishes of a dead man
But it IS about copyright and fair use. What MCA specified in his will is immaterial to the legal issues in play here.
The only thing that matters is that it's an advertisement.
Not in the eyes of the law.
If a company wants to use the work of an artist they have to get permission.
That's not a completely true statement. It may how you wish it to be, but that's not what the current laws say.
The artist in question, before his death, said no to all the requests regarding the use of his work in advertisement, and I believe his wishes should be respected.
Once again, you are projecting things onto copyright that just do not exist. Fair use has nothing to do with the creators wishes alive or dead. That is not how it works.
On the post: Missed Opportunity: Beastie Boys Should Have Supported Viral Parody 'Girls' Song, Rather Than Claiming Infringement
Re:
No. People here are taking the side of the law. I don't necessarily agree that this situation is "right", but it is the state of copyright these days.
Perhaps you should join the people here looking to fix copyright laws as opposed to name calling. Just sayin'
On the post: Missed Opportunity: Beastie Boys Should Have Supported Viral Parody 'Girls' Song, Rather Than Claiming Infringement
Re:
simple really.. even TD can work that one out !!!!
Apparently a bit too complex for you, because commercial use of works can most definitely be considered fair use according to the courts.
On the post: Missed Opportunity: Beastie Boys Should Have Supported Viral Parody 'Girls' Song, Rather Than Claiming Infringement
Re: Law
Right.
Advertising isn't fair use
But that's not true if you are actually looking at this as a legal issue. Commercial use of a work can absolutely be fair use according existing statutes and case law.
On the post: Copyright Lobbyists And The $1 Trillion Fallacy
Re: Re: Re:
http://money.cnn.com/2006/07/13/news/companies/walmart_shoplifters/
Here's another interesting tidbit. More dollars lost to employee theft than customers shoplifting:
On the post: Digital Music News Explains To Apple What Fair Use Is, Reposts Contract That Apple Tried To DMCA Away
Re: Framing COMPLETELY IGNORES "Who's Screwing You Worse: iTunes Radio, or Pandora..."!!!
Pandora: Moderate chance.
iTunes Radio: Also ‘Moderate’."
As opposed to a "traditional" recording contract from the majors where the likelihood of getting paid after having to recoup expenses was in the range of "None".
On the post: Moby Not Just Giving Away His New Album For Free On BitTorrent, He's Okay With You Profiting From It
Re:
I'm not really sure what that term means, but could that be what you are asking for?
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