Category: Music

Rockin’ in the Free(booting) World: Neil Young v. Trump for America

Recent reports that Neil Young is no longer asking or insisting that the Trump campaign stop using his music, but is instead suing Trump for America for copyright infringement, highlights the extent to which this longstanding controversy between artists and politicians has heated up in recent years. It is a subject that overlapped recently in the Senate IP Subcommittee hearing on the DMCA and fair use.

It is too early to say whether Young’s infringement complaints against the Trump campaign have legal merit because this will depend on facts we do not yet know for certain. For instance, when a candidate (or anyone) publicly performs recorded music, this is typically covered by performance rights licenses that are either paid by the venue(s), the party(ies) using the music, or both. These licenses are compulsory, meaning the copyright owners cannot refuse them as long as the users are in compliance.

But if a political campaign uses music in a commercial, or even uploads video to the web that was captured at a live event (e.g. the candidate waving at the crowd while a specific song plays), that requires a whole other license, and one that is not compulsory. Further, if a candidate uses a song in such a manner that it begins to acquire the feel of campaign theme music (e.g. “Don’t Stop” and Clinton), the creator(s), if they do not wish to endorse the campaign, can sue under the Lanham Act for infringement of their right of publicity. As yet, Young has not asserted his publicity right, and it remains to be seen what will be discovered vis-à-vis his copyright claims against Trump’s use of the songs “Rockin’ in the Free World” and “Devil’s Sidewalk.”

Of course, none of the legal technicalities quite get to the heart of the matter for musical artists. After the Trump rally (flame-out?) in Tulsa, the Rolling Stones and the Estate of Tom Petty also demanded the campaign stop using their music, with the Stones at least threatening to file suit. And even though the performance rights licenses technically cover campaigns in most cases, there is something to be said for the fact that the original purpose of those licenses was primarily to cover entertainment music as a medley of tracks played at a public event or at a restaurant or bar—or a venue like an open mic where guest musicians might perform a variety of cover songs.

All those uses are clearly different from a scripted moment at a campaign event, when a political operative intentionally plays a song on cue, with the purpose of galvanizing the crowd or emphasizing a particular theme or attitude—and usually based entirely on the chorus. On that note, it is germane to this topic that the only way to harmonize Trump’s idea of American exceptionalism with Neil Young’s verses about junkies and children suffering in the streets is if those dark images represent a kind of mission accomplished statement by Trump and his acolytes.

More likely, Trumps use of “Rockin’” is a classic case of political figures (or corporate users) playing a song solely for its chorus while ignoring the verses. Only in this instance, it happens to be profoundly Trumpian to completely miss the fact that Young is being sardonic, saying that the free world ain’t exactly rockin’. More bizarrely, Young takes direct aim at the “kinder gentler” rhetoric of George H. W. Bush in 1989, which was, in reality, both kinder and gentler than the raw mean-spiritedness and blatant ignorance of the Trump administration. Of course Neil Young doesn’t want his song prominently associated with Trump’s message. And, it turns out, neither do a lot of popular musical artists.

As discussed in this post about Mike Huckabee being sued for using the song “Eye of the Tiger” (which his campaign settled for $25,000), when orchestrated political theater appropriates a musical expression to incorporate into a given message, this does bridge the artist with the politician. In copyright terms (although there is no such license), one can almost think of these moments as “live synch” events. And invariably, these moments are now all captured on video and uploaded by a campaign to their social pages, where they become literal “synch” events that require the aforementioned non-compulsory license.

Given the fact that the compulsory performing rights license was the result of the DOJ finding both ASCAP and the NAB guilty of anti-trust practices back when radio was new, it is little wonder many music creators want to reform or abolish the compulsory license regime. And if there were ever a serious conversation about such reform, it should naturally influence the evolving dialogue about the use of works by political speakers in the digital age. Copyright is not exclusively about compensation; it can also about preserving the integrity of expression and proscribing the misuse of an expression to make statements anathema to the artist’s vision.

That should not be confused with a fair use that an artist may despise, either because the use is critical, parodic, or transformative in some way that the original creator finds personally offensive. Political uses of works, like those at issue for Young, do not generally fall into these types of fair use considerations.

In my post about the fourth DMCA hearing before the Senate IP Subcommittee, I mentioned that attorney Matthew Sanderson called political use of works “paradigmatic fair uses.” But notwithstanding the limitations of congressional testimony, I would argue that was too broad a statement by some margin. Just because political speech is paradigmatically protected speech under the First Amendment, that principle does not make political use more amenable to a finding of fair use. Under factor one of the fair use test, the purpose and character of the use, a political campaign should not (and very likely would not) be afforded any more deference than a news commentator, a critic, or a creator adding new expression to the original work.

In fact, I would go a step further and say that political campaigns have less in common with exemplary fair uses and are more comparable to ordinary marketing and advertising of goods and services. That is, after all, what a political campaign is:  marketing a candidate. And advertising is almost wholly incompatible with fair use, as it is arguably the paradigmatic forum requiring licenses to use creative works. Add to this the fact that there are rules prohibiting misrepresentation in advertising a can of paint and no rules requiring a politician to tell the truth, and of course copyright owners are going to bristle at unlicensed uses of their expressions in political messaging.

So, if it turns out that Trump for America lacks the relevant licensing at issue in Young’s lawsuit, the campaign would (and should) have a hell of a time trying to present a fair use defense. Huckabee attempted to do so in the above-mentioned example by claiming that his playing  “Eye of the Tiger” at a rally for Kim Davis* was for a purely religious rally (for which there is a statutory exemption) that was not part of his campaign. But the fact that Huckabee for America settled for twenty-five grand suggests that his legal counsel did not see a viable path forward in Huckabee’s sudden appetite for the separation of church and state.  

If I interpret the nature of Young’s complaint correctly, it is similar to the Huckabee example—that “Rockin’” in particular was not just played as background music but was prominently and repeatedly performed such that Young’s voice has been too-often used to speak for Trump. In the end, copyright litigation may or may not offer the remedy the singer/songwriter seeks, but it should be clear that the use of creative works in political messaging can very easily cross the line to become coerced speech. So, whatever the best remedy might be, any defender of the speech right and authors’ rights should agree that a remedy is needed. 

*Davis was the Carter County, KY clerk who was jailed for refusing, in contravention of the law, to provide a marriage license to a same-sex couple. Huckabee staged a support rally for her outside the Grayson, KY detention center on the day of her release.

Class Action © Suit Against YouTube is a BIG Friggin’ Deal

When Viacom et al, in 2014, settled their copyright infringement suit against YouTube, that outcome had significant consequences for millions of independent creators. For one thing, the settlement left YouTube and other major platforms to over-emphasize the district court’s summary judgment that the DMCA had fully shielded the video platform against any liability in that case—this despite the appellate court having found that holding to be premature because there remained triable issues of both law and fact. Thanks to the settlement, however, those questions were never adjudicated. (See post here noting Viacom is unfinished business.) But now, some of those same questions of law, and very similar questions of fact, have been reprised in a class action suit, filed against YouTube on July 2nd, by Grammy winning composer Maria Schneider. And this case is going to be a doozy.

For one thing, the class of creators represented by Schneider has little motive to settle before the courts thoroughly weigh every aspect of the complaint. Further, the plaintiffs have about a decade’s worth of evidence, and experience with the DMCA, that Viacom et al did not have when they filed against YouTube in 2009. Further, the Schneider complaint reminds us that YouTube was built on mass copyright infringement that it still thrives on mass copyright infringement.

In this case, as in Viacom, plaintiffs cite evidence that YouTube’s founders clearly recognized that their platform was as existentially dependent on hosting infringing material as any pirate site on the web. “[A YouTube] founder argued against the company removing obviously infringing videos, claiming that site traffic would drop by 80% if it did so,” the Schneider complaint avers. At that time, the Google Video platform, which did monitor and remove infringing material, could not compete with what Google then called the “rogue” YouTube.

So, naturally, when Google purchased the “rogue” YouTube in 2006 for $1.65 billion, “[They] chose to continue YouTube’s aggressive policy of allowing obviously infringing videos to be uploaded with zero ‘friction’ and no screening, thus allowing infringing and illegally posted videos to be played and monetized by YouTube unless and until a takedown notice was received from the copyright owner,” the complaint continues.

Then, under pressure from the major, corporate rights holders, YouTube created Content ID, the platform’s automated system, which identifies protected material, alerts rights holders when their works are uploaded, and gives them options as to what to do with those uploaded files. But this system is not available to the vast number of independent creators like Maria Schneider. The complaint states, “Only approximately five percent or less of all applicants who attempt to sign up for Content ID are approved for its use.”

Keep in mind that when I say “independent” creators, I am not referring to some singer/songwriter you haven’t heard of and has a hundred views on the platform. “Independent” comprises, for instance, thousands of musical artists with substantial fan bases and multiple albums (songs you hear on the radio), but whose rights are not managed by some large label or publisher YouTube wants to try to placate. This is not to suggest that the larger rights holders are satisfied by the state of enforcement. To the contrary, they’ve made it quite clear that the volume of infringement, even with Content ID, is unacceptable. I merely mean to emphasize that the class referred to here as “independent” is very valuable when monetized.

Left out of the Content ID program, countless independent rights holders have been trying for years to fend for themselves—manually sending one notice per infringement via the DMCA notice-and-takedown provision. And what enables YouTube to exploit this class of creators is the presumption of immunity under the “safe harbor” provisions of the DMCA. See post here for more detail, but the basic premise was that, as long as a platform meets certain conditions, taking certain actions to remove infringing material, it cannot be held liable for infringing uploads by its users.  

But now, the Schneider complaint makes a compelling argument that YouTube had voided its safe harbor immunity vis-à-vis the plaintiff class in this litigation. Among other interesting aspects of this case, it is the first time, in a long time, that anyone will ask the court to articulate the law on some critical DMCA matters that have otherwise been left to the anecdotal and editorial buzz of the blogosphere.

As just one example (and a bit of unfinished business in Viacom), anyone who follows these issues will be eager, or perhaps anxious, to know whether the court ultimately agrees with Schneider that YouTube has both “actual” and “constructive” knowledge that it hosts infringing material. What constitutes “knowing” when material is infringing is a hotly contested topic, and one that will be of particular interest to the Senate Judiciary Committee in its ongoing review of the DMCA’s efficacy since its passage in 1998.

There will be plenty more to write about this case, perhaps digging into some of the legal nitty-gritty. YouTube’s response will almost certainly be a motion to dismiss, arguing that the platform is unequivocally shielded by the DMCA safe harbor. Consequently, the district court will have to weigh the full scope of Schneider’s multiple arguments that the platform has vitiated that liability shield, and whether any of those allegations implicate triable issues of law and fact. And, as mentioned above, that’s exactly what the Second Circuit Court of Appeals decided in 2014. So, this should be quite a show.

Coronavirus Exposes Big Tech’s Big Bad Ideas for Artists

Emergencies have a way of shining a bright light on flawed thinking and dumb ideas. The COVID-19 pandemic has exposed latent and embarrassing American weaknesses, from the highest levels of government right down to the grocery stores, where Karen and Ken refuse to follow basic public safety rules. All in, it’s been a rather stunning demonstration of national incompetence laid bare for the world to watch, shake its collective head, and put up border signs saying: NO AMERICANS PLEASE. Happy 4th of July.

In the creative world, the pandemic has illuminated one of the first lies Big Tech started pitching more than twenty years ago—namely that wiping out the market for music sales was an opportunity that musical artists were failing to understand.  Tell that to one of the industry’s latest casualties—singer/songwriter Nadine Shah, creator of four albums to date, who, according to an article published on June 25, was forced to move back in with her parents after all her scheduled gigs were canceled due to coronavirus.  Nick Levine writes …

“Shah admits she feels ‘humiliated’ by what has happened and initially ‘didn’t want my peers to know I’m skint’. But then she had a change of heart. “’It’s so important for musicians like me to talk about this, because my bread and butter comes from playing live. Once that’s gone, I’ve really got nothing,’ she says. ‘That’s
why we have to encourage people to buy records and make the streaming system fairer. What artists are paid by streaming services for their music, it’s disgusting.’”

By now, it has been widely reported (or easily assumed) that everyone who works in the venue-based creative arts is suffering financially due to the pandemic. With theaters of every size shuttered, musicians cannot perform, plays and musicals are on indefinite hiatus, and all the associated economic activity—from backstage crew to nearby restaurants and bars—has come to a deafening halt. On June 29, it was announced that Cirque du Soleil will be filing for bankruptcy.

For the most part (notwithstanding America’s general mismanagement), there is no one to blame for these effects of COVID-19. At the same time, many of us who have, so far, mostly been inconvenienced by the pandemic, rather than unemployed by it, are spending more time than ever streaming music, movies, TV, etc. And not surprisingly, that increase includes outright piracy. In a letter to the Senate Judiciary Committee commenting on DMCA review, CreativeFuture cites analytics firm MUSO finds an increase of 31 percent in U.S. visits to pirate sties between February and March, as stay-at-home orders went into effect.

But one class of creators, who should at least be sustained by legal streaming, instead watch their “spin” numbers rise on platforms like Spotify, while pennies trickle into their bank accounts. Songwriters and recording artists were, of course, the first casualties in Big Tech’s assault on copyrights. In the late 1990s, when P2P file sharing (i.e. Napster) nurtured a whole generation’s worth of opposition to the idea of paying for recorded music, individual creators not only watched helplessly as their works were pirated in the tens of millions, but they were also forced to endure a litany of absurd rationales and explanations that amounted to victim blaming. “Quit whining about music sales,” the imperative resounded. “Sales will never return. Adapt! Develop new business models. Sell merchandise. And, above all, get off your lazy butts and tour.” 

These and other helpful tips naturally came from people who neither participated in, nor knew anything about, being a professional songwriter or musical performer. As countless members of the music community tried repeatedly to explain, those other revenue streams are all fine, but they are not even close to a substitute for sales of sound recordings.

As for touring, anyone speaking so blithely about it, fails to understand how costly, labor-intensive, and unglamorous that job really is for any artist(s) smaller than mega-stars. And, of course, music creators who are exclusively songwriters and composers do not tour at all. Nevertheless, the rhetoric became so shrill over the years, that some consumers seemed to convince themselves that paying for recorded music was tantamount to subsidizing artists who were too lazy to work for a living. Not that I want to give that cynical and ignorant opinion any deference, but what happens now?

Now that piracy and the predation of “legal” platforms have devastated music sales—and there is no foreseeable date when live performance will return—to what new model should the music creators “adapt” next? Sadly, Nadine Shah has answered that one for herself—the move-back-in-with-her-parents-and-still-try-to-make-music model. And, let’s not regurgitate the “nobody promised you a career” meme. No artist is that naïve. If the market does not want a creator’s work, that’s fair. It’s a risk every artist takes. But if the market wants the work (and it appears that a sizeable market wants Shah’s music), but multi-billion-dollar corporations have managed to redirect the creator’s earned income into their pockets, that’s not creative destruction, it’s theft.

Old (dumb) Ideas Still Wreaking Havoc

In 2009, Mike Masnick appeared in a video in which he techsplained the “The Economics of Abundance,” an idea so facially preposterous, it makes trickle-down look like a sensible theory. Without a hint of irony or self-consciousness, Masnick parroted the concept that the natural price for recorded music is zero (because digital distribution obliterates scarcity). But this is good news because, as he said at the time, “…additional scarcities are created. For example, the more abundant music is, the more demand there may be for live shows or merchandise….”

Anyone with far less education than Masnick can easily figure out that just because the market has access to unlicensed (free) recorded music, this does not create a new demand for live shows or merchandise. There is no question that the destruction of sales aggressively forced musicians to rely more on those other revenue streams, but calling that an opportunity is as economically bogus as it is personally offensive. Just ask the 50+ year-old singer/songwriter with the family and a few incipient health issues how eager she is to get back on the road, while her fans are happily listening to her sound recordings, but only making money for Spotify et al.

Further, to demonstrate the big “idea,” in that video, Masnick casually circled two icons on a white board, each representing live shows and merch, as if it were just that easy. As if those revenue generators do not have their own costs and barriers, which were in no way lowered by the “abundance” of zero-price sound recordings. And let’s not forget that the internet also opened up new opportunities for swindlers to sell counterfeit merchandise, thus providing indie musicians with the opportunity to chase infringements of their musical works and their tee shirts at the same time. Because that’s how more music gets made. 

Why bother highlighting the gibberish in an 11-year-old video? Because it so neatly sums up the thinking that has persisted from the late 1990s into the age of Spotify and beyond, and which still results in an artist unable to pay her bills, despite the popularity of her music. No, it is not Big Tech’s fault that a global health crisis canceled Nadine Shah’s gigs and countless live events for so many creators. But in light of the fact that most of us enjoy music most of the time as sound recordings, there is no valid economic theory to explain why songwriters and musical artists should be providing all that abundance for the artificially manufactured price of zero.