Category: Music

With Super Bowl Complaint, Graham Misunderstands Exploitation

Because I defend the principles of copyright, I write a lot about the value of creative expression and the author’s right to choose how that expression is used.  In this context, then, I think it is within the editorial nature of this blog to respond to Franklin Graham’s public complaints about last week’s Super Bowl halftime performances by Jennifer Lopez and Shakira, to wit:

“I don’t expect the world to act like the church, but our country has had a sense of moral decency on prime time television in order to protect children. We see that disappearing before our eyes. It was demonstrated tonight in the Pepsi Super Bowl Halftime Show—with millions of children watching. This exhibition was Pepsi showing young girls that sexual exploitation of women is okay. With the exploitation of women on the rise worldwide, instead of lowering the standard, we as a society should be raising it. I’m disappointed in Pepsi and the NFL.” [Emphasis added]

I get that being a sanctimonious prig is part of the Graham brand, but he is dead wrong to conflate his prim sensitivities with the concept of exploitation.  This is an insult to Lopez and Shakira as well as actual victims of exploitation, many who have only recently begun to come forward en masse to talk about those experiences.  In fact, the trend generally called the #MeToo movement, much of which is centered in the entertainment industry, is exactly why the correct word to describe the performances by two middle-aged moms (who can still move like that!) is empowerment.

Perhaps because the religious right suffers from a fundamental disconnect on the subject of human agency in free societies, Graham fails to understand that consent is generally the dividing line between expression and exploitation.  For a simple object lesson in this distinction, think back to 2014, when nude images of several female stars were hacked, leaked online, and then hosted for far too long on platforms like Reddit. One of those stars, Jennifer Lawrence, posed for a series of artfully done nudes for Vanity Fair in order to reclaim her right to consent.  “The line between objectification and empowerment is a notoriously thin one, particularly for women,” wrote Megan Garber for The Atlantic about the Lawrence photo shoot.

Likewise, with regard to last week’s halftime show, unless some story emerges to the contrary, we can assume that mega-stars JLo and Shakira are not about to do anything they do not want to do.  Graham, therefore, has no business associating his prissy response with the broader narrative of exploitation.  What he really means is that he and his flock found the choreography too sexual for the American church that is football—and one could unpack that psychology for quite some time—but here’s a news flash:  dance is sexual.  And it’s almost quaint that Graham is blushing in 2020.  Eleven years ago, Pepsi produced a Super Bowl spot featuring Republican Senator Bob Dole (age 86) and his dog implicitly getting a bit randy while watching Britney Spears (age 28) shake her thing.  I mean…c’mon.

In a post or two, I have opined that one of the coolest things about America (a true claim to greatness, if you will) is that the twin forces of the First Amendment and copyright law empower artists to express themselves without requiring permission by the State.  At the founding period, the constitutional protection of IP law was both a function of economic reality and ideological principle.  The new nation did not have the resources to establish any kind of national endowment for the development of art and culture; and at the same time, the Framers clearly expressed a wariness of nobility, nationalized religion, and patronage.  Moreover, the ancient mechanisms of pre-modern copyright law in England were codified as tools of religious censorship and royal prerogative; and by contrast, modern American copyright bore fruit the Framers could not even imagine.  Not only are we the beneficiaries of a diverse mosaic of creative expression, but copyright has given many artists the power to do exactly what they want on their own terms.  

So, if Graham et al are offended by what they see on television, they can choose not to watch, just as many will choose not to watch Graham because we find him offensive.  Hell, they can even complain (as Graham did) to the sponsors and the league that they consider the performance tasteless, if that’s how they really feel.  But let us not conflate personal taste in creative expression with exploitation.  Artists work very hard to avoid unwanted exploitation at every phase of their careers, and that goes double for women.  Jennifer Lopez and Shakira are prime examples of what it means to own their power—expressive, commercial, sexual, etc.—and only they have the right to say otherwise.  

Statue of Liberty photo by Andrea_Izzotti

Don’t Start Copyright Battles You Don’t Understand

gavel smashing lightbulb

Every once in a while, a copyright litigation story makes a fine cautionary tale for users of social platforms, and this is true partly because the conflict tends to spawn misleading headlines or comments that add fuel to an outrage already borne of ignorance.  In this case, I am referring to Prince’s estate easily prevailing on summary judgment in a copyright dispute with a YouTuber named Kian Habib. 

For instance, in 2017, The Blast posted the headline Prince Sues Random Guy for Posting Concert Videos on YouTube, and the very short article that followed naturally made references to Prince’s famously litigious nature still presiding over the management of his estate since his untimely passing in April of 2016.  In a post several years ago, I commented on the nature of Prince’s desire to control the use of his music, opining that it was a natural extension of the passion he put into everything he did, noting that he tolerated neither corporate labels nor web platforms nor even fans making decisions about what he thought best for his music.  Nevertheless, the most famous litigation that bears his name Lenz v. UMG (a.k.a. “The Dancing Baby Case”) still lives in the zeitgeist as an archetype of Prince’s assumed belligerence, despite the fact that Lenz is a boondoggle initiated by the Electronic Frontier Foundation, and not by Prince or the label.

And that brings us to the facts in the matter of Comerica v. Habib, in which Habib, while operating his channel PersianCeltic, uploaded five videos featuring substantial amounts of six songs performed by Prince during one of two concerts Habib had attended.  I know people upload smartphone camera clips from live concerts all the time; and in most cases, when short clips are uploaded to, say, a Facebook page, it will not be the target of a takedown by the artist(s) or their agents.  This does not mean said uploads are necessarily non-infringing, only that the rightsholders do not see them as problematic.

In Habib’s case, however, there are two major distinctions that make him someone other than a “random guy,” as The Blast described him.  First, a YouTube channel seeking subscribers will be seen as legally distinct (i.e. as a commercial enterprise) from a personal Facebook page; and second, Habib took the very unwise step in this case of filing a counter-notice in response to Comerica’s valid takedown request directed at the five videos.  

Do Not File Counter Notices Unless You Know What You Are Doing

As explained in detail in an older post, the DMCA was designed as a mechanism for rightsholders to remove infringing content from platforms without suing anybody.  The premise was that innocent users will inevitably upload material that isn’t theirs; the rightsholders will send a takedown requests; the platform will comply and remove the infringing material; and that would be the end of the matter in most cases.  BUT, if a user files a counter-notice asserting that the takedown was made in error, the user is well-advised to know what he’s talking about because the only option left to the rightsholder at that point is to take legal action against the allegedly infringing user.  

As discussed in the past, when the rightsholder is a small creator with limited resources, the counter-notice procedure can serve as a disadvantage because litigation is very costly and not all counter-notices are valid.  But when the rightsholder has resources—and especially if that rightsholder happens to representing the Estate of Prince!!—a lawsuit will be forthcoming unless the counter-notice is truly on solid ground.  Habib’s ground was not merely squishy but was a swampy marsh filled with half-baked notions about copyright law—a classic example in the Don’t Column for YouTubers and other users of creative works.  

Your Opinion About What Copyright Law Should Be Won’t Help

I don’t know if Habib was represented by counsel, be he ought to have advised to shut up and apologize.  Still, the reason I thought this case worth mentioning is that the defenses argued do resemble the kind of assumptions about copyright that one sees in the digital ether all the time.  For instance, Habib apparently noted that Prince’s copyrights do not cover the live performances at the concerts, which is true, except that his capturing and uploading said performances is called bootlegging. He likewise offered his own legal theory that he is the only copyright owner of the videos—as if that ownership somehow extends to Prince’s music and performances as captured in his recordings.  

Little surprise of course that Habib also attempted a fair use defense without a net, positing that his videos are “transformative in nature because [he] specifically chose the vantage point to record from and alternated between shots of the performance and reactions from the crowd.”  He also argued that capturing banter from the crowd and adding commentary on his channel like “AMAZING” rendered his use “transformative.”  Both crazy and far from the mark on fair use, these amateur theories are typical of the kind of post-Lessig “remix culture” confusion that still gets users into unnecessary trouble.  

I think my favorite among Habib’s fair use defenses (under the third factor considering amount of the work used) is described in the Court opinion thus:  “Habib argues that the third factor weighs in his favor because his videos, in aggregate, add up to ‘approximately 17 minutes” of run-time, which he contrasts with the “approximately 6 hours’ total of the two Prince concerts he attended.”  By that logic, why stop with a mere 6 hours of concert time?  Why not contrast those 17 minutes against Prince’s entire career until Habib’s videos represent some fraction of a percent of Prince’s oeuvre?

Because that’s not how copyright law works, and it is certainly not how the third fair use factor works.  This prong of the defense looks at the amount and substantiality of the use of a single work and weighs that use in context to the purpose of the use assessed under the first factor. How large the author’s catalog, how long his career, or how much money he has earned to date has no bearing on these considerations.  Habib should have been restrained for his own good from making such an off-the-mark defense; nevertheless, his meanderings are typical of the general assumption that copyright enforcement is somehow not implicated (or is automatically mitigated) by the fact that the infringer is apparently “small potatoes” in the scheme of things.

Don’t be like Habib.  Do not invent legal theories based on a smattering of blogs (not even this one), and do not file DMCA counter-notices without a very solid argument that your right to use the work is covered by the exceptions in copyright.  And those cautions go double if the claimant happens to be the Estate of Prince!

Music Modernization Act Passes Senate by Unanimous Consent

Well, at least bipartisanship still exists when it comes to protecting America’s music creators.  Late yesterday, the omnibus bill known as the Music Modernization Act passed the Senate by unanimous consent.  On Monday, the chamber initiated a hotline process, which may be implemented when a bill is presumed to be uncontroversial.  Once triggered, Senators have 24 hours to raise any objections—one objection will kick the bill back into the normal debate/vote process—after which the bill will pass unanimously.  The MMA, to be renamed the Orrin G. Hatch Music Modernization Act in honor of the Senator’s retirement and the fact that he is a songwriter, ultimately earned 81 sponsors.

The soul of the MMA is a new royalty system designed to fairly compensate songwriters and composers in the digital marketplace.  This aspect of the bill has been hailed by multiple stakeholders in both the music and digital services market as a landmark achievement in private-sector and legislative compromise.

For too long, this class of creators was subject to a royalty system initially designed in the age of player pianos, so it has hardly reflected the market realities of the digital age.  The MMA establishes a new digital licensing collective, overseen by both songwriters and digital platform owners; it creates a new blanket mechanical license to enable easier and more complete licensing; and it reshapes the manner in which rates are set in order to better conform to fair-market prices.

ASCAP Chairman of the Board, songwriter Paul Williams stated, “”Today, we made history by joining together and working for Senate passage of the Music Modernization Act, bringing us one step closer to a music licensing framework that reflects how people listen to music today.”

This digital-royalty spine of the MMA met with relatively little debate among nearly stakeholders and passed the Senate in the same form* in which it passed the House in April with a vote of 415-0.  Likewise, the AMP Act segment of the MMA, which compensates engineers, producers, and sound mixers passed without objection or modification.  The only part of the omnibus bill that did invite debate—not to mention some outlandish claims by the anti-copyright crowd—was the CLASSICS Act, which is designed to compensate owners of sound-recordings for public performance via non-interactive streaming services like Sirius XM.

Amended CLASSICS Passes and Returns to the House

It was no surprise of course that Sirius XM opposed the CLASSICS Act.  They didn’t want to pay royalties to pre-1972 artists if they could avoid it.  But some of the usual suspects in the anti-copyright crowd also sought to oppose the bill on ideological grounds, calling it a massive term extension, a land-grab by the labels, and even a “reversal of copyright doctrine.”  As usual, the librarians and archivists jumped on this bandwagon (I still don’t get these folks), claiming that, if passed, CLASSICS would create new uncertainty for their institutions.

While most of these objections were a bit overwrought—and some were just plain made up—in response to so narrowly-written a bill, CLASSICS does unquestionably highlight the hodgepodge body of law (i.e. common law and federal statute) theoretically governing sound recordings made before 1972.  Nobody disputes that it’s a mess, but some of the opponents to CLASSICS argued that the law should be overhauled entirely (a monumental task) rather than ameliorate one small aspect of the law in order to get these musical artists paid by Sirius et al right now (a far more moderate task).  Nevertheless, in response to some of the concerns about duration of terms and the interests of libraries, the Senate made a few key modifications to CLASSICS that are expected to be adopted by the House for final congressional passage of the law.

The Senate version of CLASSICS creates a specific regime for use of these sound recordings by non-commercial entities, and it establishes a “rolling basis” duration of protection of 95 years after publication.  The House version had left the status quo intact, whereby all pre-1972 sound recordings are protected by state law until 2067.  These amendments look like reasonable concessions in keeping with the spirit and intent of CLASSICS; and it seems unlikely that any objections will be raised to alter the course of the MMA toward full passage. (This does not mean, of course, that the anti-copyright crowd won’t complain. Some already have.)

Not only should the many stakeholders who worked for years on this legislation be proud of what they have accomplished—let alone in such a schismatic political climate—but the MMA is entirely consistent with the history of copyright amendment in the United States.  While anti-copyright academics and tech-industry pundits continue to insist that copyright law must be weakened in order to foster innovation and serve the public interest, the historical narrative has been quite different.  Rather than bluntly weakening the law, it has always been the case that copyright is rewritten to fit the contours of new markets—responding to but not at all stifling new technologies.

UPDATE:  Having seen the latest language of the bill, there are a few small changes, including a five-year moratorium on rate increases.  Perhaps a more detailed in a future post.