When do Homages Turn into Copyright Infringement?

Image is in the Public Domain.
Image is in the Public Domain.

The Robin Thicke song “Blurred Lines” is the subject of some fairly heated copyright litigation that won’t go away. If you haven’t heard, Marvin Gaye’s estate is suing Robin Thicke, Pharrell Williams, and T.I. for allegedly infringing the copyright on Gaye’s song, “Got to Give it Up.” It’s fairly easy to find compilations of the two songs on YouTube or SoundCloud, and the songs are definitely similar.  You can’t hear “Blurred Lines” without envisioning a 1970s Oldsmobile festooned with a bunch of young people in polyester hanging on and out of it, bouncing through a hazy orange, brown, and yellow New York City and a lot of singing, dancing and clapping.  Maybe a burst fire hydrant is spewing all over the place. And that evocation is by design. Both are those kinds of songs. (And seriously, someone surely had to have made the pun that Blurred Lines has blurred the lines between the two songs, right? I know I can’t be the first.)

Resurrecting Popular Culture

Where this case gets interesting to me is that pop music is all about the homage right now. When I took Psychology 301 as an undergrad at the University of Texas, the professor spent a day talking about how we tend to have a 25- to 30-year nostalgia cycle. In other words, popular culture was dredging things up from 25 or 30 years prior, and adapting them for the contemporary era. The discussion at that time, since it was the late ’90s, was in reference to the reintroduction of the VW Beetle, the popularity of bands like Oasis, and fashion that incorporated bell-bottom jeans, bead necklaces, round sunglasses, tie-dye, and long stringy hair, all tropes from the late ’60s, early ’70s. This wasn’t to say that such era-checks were the sole popular trend at the time (this was also the era of Britney Spears, midriff-baring t-shirts, and cannon-leg jeans), but that it was an interesting phenomenon to make note of.

Feeling the Era

Pharrell recently finished testifying in the lawsuit brought by Marvin Gaye’s family, and he testified that he didn’t “copy” “Give it Up”; rather, when asked whether he felt that “Blurred Lines” captured the feel of the era, he acknowledged that it was indeed the feel that he was aiming for, but it wasn’t infringement. And right now, pop music is feeling the ’70s and ’80s. Bruno Mars’s “Uptown Funk,” which sounds like PFunk, is currently doing quite well; Taylor Swift’s 1989 is full of ’80s references (“Welcome to New York” basically sounds like leg warmers, leotards, head bands, neon, and that weird kaleidoscopic effect seen in Chemical Brother’s “Let Forever Be” video); Drake’s “Hold On, We’re Going Home,” sounds like late-night AM radio; Daft Punk had their most commercial success by collaborating with Pharrell and Nile Rodgers (and others) for “Get Lucky.” Maroon 5 is doing some ’80s-sounding stuff right now, and I swear one of the lines in a currently popular song is directly lifted from a song from the ’80s, but I just can’t place it.  In any event, the list goes on.

Bands have definitely been tagged with copyright infringement when they infringe and are found not to have negotiated a license or haven’t paid the mechanical license available for a cover. The most famous example is probably the Verve’s “Bitter Sweet Symphony,” whose opening strains were found to infringe on an orchestral version of the Rolling Stones’ “The Last Time.” A license was negotiated, but a claim was made that the Verve went too far. Very complicated, and there was a settlement.

I definitely look forward to seeing what happens with the Marvin Gaye lawsuit. One thing is almost certain, though: whatever the judgment, someone’s probably going to appeal.

Innovation Breeds Contempt

Except Viacom might have a little less contempt for you than it might originally be thought.  The General Counsel at Viacom (the entertainment behemoth responsible for Showtime, MTV, Comedy Central, BET, Paramount Pictures, and a slew of other holdings) recently addressed Yale law students, and he let them know that suing infringers felt like terrorism, and that he’s a big fan–really!–of fair use. What he’s most interested in, he says, is copying the entirety of a particular content.  (Source)  (He’s also a fan of DRM–though not in the way it’s been implemented, and of three-strikes laws, which is something’s I’m planning on taking up a little later.)

There’s a video of the talk on YouTube, and it might be worth taking a look-see.

Municipal Wi-Fi Actually (still) Exists?

I was under the impression that municipal Wi-Fi was a dead idea that municipalities had abandoned a couple of years ago.  Apparently, Coshocton, Ohio didn’t get the memo, because it’s municipal Wi-Fi network has been shut down by the MPAA.

Well, that’s what Gizmodo’s saying, based on a BoingBoing report.  Apparently, the town’s entire network was shut down due to a single user downloading something that was copyrighted.

But really?  How did this happen?  The way things are written, it sounds like the MPAA discovered the illegality and pulled the plug on the network.  Can things actually go that way?  Hmmm… even as powerful as private entities are, surely they don’t have the power to summarily wipe out a public service.  Right?  More digging is necessary!

Read more “Municipal Wi-Fi Actually (still) Exists?”

No Suit for You!

I mentioned a while ago that ASCAP was suing AT&T over ringtones, saying that royalties were owed every time someone’s phone rang.  Public performance and all that.  Well, in addition to suing AT&T, ASCAP sued Verizon for the same thing, and PC World (via Yahoo!) is reporting that District Judge Denise Cote of the Southern District of New York has tossed the suit against Verizon.

Judge Cote’s reasoning is refreshing:

“Despite the accusation that Verizon enjoys revenue from publicly played ringtones, Verizon makes no revenue from the playing of ringtones, in public or elsewhere,” Cote wrote. “It makes revenue from selling ringtones, and it already pays a mechanical licensing fee in connection with those sales.”

The Center for Democracy and Technology, which is hosting a copy of the Order, also notes that the Court relied partly on common sense in making its ruling.  It always seemed somewhat strained to argue that Verizon should be liable for a public performance (even to the extent that a ringtone could constitute a public performance) when it had no control over when or how that public performance would occur.

France’s Copyright Legislation

France can be a strange country.  (And in other news, cats can be aloof.)  Well, perhaps it isn’t so fair to single France out; all countries have their peculiarities.  But France occupies a special place in the imagination, a land where the country is brought to a halt at the drop of the hat, where work-shortened weeks lead to hours lazing at cafes discussing politics and eating brioche, and where everyone is–generally speaking–trop <<cool>> pour l’école.

But then the country proposes what some are calling some of the most Draconian copyright laws in the world, and that leads to a bit of headscratching.  For the uninitiated, France passed a law in April that threatened to ban an individual from the internet if that person is thrice detected of downloading infringing material.  (The Register has the details.)

The law, however, was declared to violate the 1789 Human Rights Declaration on the freedom of expression.  (Bloomberg.)  Donc, the French tried again, and the lower chamber will be voting today on a revised bill.  The largest change is that some form of due process has found its way into the legislation, with the “Surveillance Authority” losing the ability to summarily disconnect the user (the case must first be submitted to a judge) and with authorities having to prove the unlawfulness of the behavior.

Even More on the Google Books Settlement

Settlement agreements rarely get the amount of scrutiny as the proposed agreement in the Google Books controversy, and now the Register of Copyrights, Marybeth Peters, has testified to Congress about the settlement.

While there are parts of the settlement that meet Ms. Peters approval (“some of the settlement terms have merit and should be encouraged under separate circumstances” such as the potential for the registry to “offer the copyright community, the technology sector and the public a framework for licensing works in digital form and collecting micro-payments in an efficient and cost-effective manner”), by and large her remarks were critical, noting that “none” of the potential positive “possibilities should require Google to have immediate, unfettered, and risk-free access to the copyrighted works of other people. They are not a reason to throw out fundamental copyright principles; they are a pretext to do so.”

Read more “Even More on the Google Books Settlement”

Google Books Settlement and Privacy Concerns

Google has always been a problematic company for me.  On one hand, its search engine has become the de facto starting point for the vast majority of internet users, so much so that when Google goes down (as it will from time to time), people say that the internet is broken.  (See this Ars Technica article.)  Its clean, uncluttered search interface revolutionized searching, and its results were usually spot-on, with its “I’m Feeling Lucky” feature almost always taking you where you wanted to go.  In recent years, however, my experience with Google’s ability to find what I’m looking for has dwindled as SEO services have cluttered up search results, which is why I often use Bing or Yahoo! in addition to or instead of Google.

I’ve complained before of Google’s data-mining and -tracking, as well as its emphasis on “Cloud” computing. And now, there’s a new bug in my craw: Google Books.
Read more “Google Books Settlement and Privacy Concerns”

No surprises here…. Studios Don’t Like RealDVD

My last post (three weeks ago, natch) suggested that the studios would find some way to sue RealNetworks for its software, RealDVD, even if Real wasn’t hacking the encryption.  Looks like I was right, and for the same reason:

Six major movie studios sued RealNetworks, the Seattle-based digital media company, on Tuesday over its new $30 software program that allows people to make digital copies of their DVDs.

For their part, the studios argued in legal filings that the software violates the 1998 Digital Millennium Copyright Act because it bypasses the anticopying mechanism built into DVDs.

(From the NY Times, emphasis added.)