Last week, WFMU’s ever-amazing “Beware of the Blog” announced that they would be holding the first-ever 24-hour fund-raising drive to cover their operating costs between their annual, excellent Marathons in the spring.
WFMU prides itself on holding only one on-air fundraiser per year: our annual Marathon, which is a 2-week-long frenzy of great prize giveaways, hilarious co-host banter, surprise guests, and more caffeine than a case of Sparks (RIP). The listener support we bring in during the Marathon is normally enough to fuel our fire for a full year. While WFMU came very close to making our goal during the Marathon this March, we still fell short (I smell recession).
Because it’s tough to operate with an empty bank account and there’s an entire winter to get through until our next Marathon, WFMU needs to break with tradition by holding a brief on-air fundraiser next week.
Truly independent free-form radio is crucially important for music, the arts, and culture, and WFMU is (in this author’s humble opinion) the cream of the crop. I know times are tough all over, but any money you can give to these guys will help tremendously.
In this age of institutional corruption where money buys programming on the overwhelming majority of commercial radio, this station remains one of the few detached from this corporate influence and wholly dedicated to taste. The station has launched thousands of bands and tastemakers (Jeff Magnum was a DJ at WFMU, for goodness sake!) and are tremendously important in shaping modern culture. It’s your social obligation – like PBS or NPR, but for young people.
The 24-hour marathon just started about half an hour ago, and runs through tomorrow. You can donate on the phone at 800-989-9368 or online here. And while you do so you can listen to the station online.
Digital Music News is reporting today that psychobilly legend Mojo Nixon is going to release his entire catalogue – over 150 songs – online for free download, alongside the debut of his latest album, Whiskey Rebellion (also free).
DMN:
“I’m just the kind of crazy person to do it,” Mojo told Digital Music News in a phone conversation. “What do I have to lose? I’ll make make more money off of this in the long run.” […] The Orchard is now preparing an official release on the matter, pending various executive approvals. “Getting all 150 tracks, that might be like having a bacon sandwich with sausage on it. It’s like chocolate ice cream with chocolate syrup,” Mojo shared. [Link added for reference.]
I don’t put this up here suggesting this is the way to go for everybody. Indeed, Mojo’s 1980s releases on Restless Records might cause The Orchard some trouble during those “executive approvals.” Restless would probably be more into getting their catalogue out there for free before they were bought out by WMG. Nevertheless, it’s a fascinating step, and something to talk about during the Future of Music Coalition Policy Summit over the next few days.
Whenever Coldplay releases an album these days it starts a small wave of copyright litigation. Last year’s Viva La Vida or Death and All His Friends was no exception. Last week, however, that docket got a little bit lighter, as the most prominent infringement case settled. Joe Satriani, famed rock guitarist and founder of the G3 tours, claimed in a lawsuit back in December that the title track off of Viva La Vida infringed Satriani’s copyright in his 2004 track if “If I Could Fly.” In essence, Satriani argues “Viva La Vida” copied his song without permission. Here are both for comparison:
Joe Satriani – If I Could Fly
Coldplay – Viva La Vida
For a really ill-informed discussion of this case, check out the comments on the Satriani YouTube post. For a more music-theory based discussion of their similarity, check out this excellent YouTube video from a guitar instructor in Canada.
On the music side of this (and largely care of the above posted video) here’s the rundown: Coldplay’s song is in a slightly swung rhythm at about 138 BPM, in the key of F minor doing a VI–VII–III–i (Dbmaj–Ebmaj–Abmaj–Fminor) progression. Satriani’s song is also at about 138 BPM, roughly the same rhythm, and the chorus goes through a iv–VII-III-i progression in B minor (Em7–Amaj-Dmaj7–Bm). At this most fundamental level, the only variants between the two are the key and the first chord of the progression – and the two different chords are actually quite similar. The VI chord in the Coldplay is the relative major of the iv chord in the Satriani (which is to say if they were in the same key they’d share 2 out of the three notes in the chord). In other words, the meter is the same, the chords are virtually identical, and where the chords vary they still are quite similar harmonically. Now, this progression is just a progression, and as an old song from my band notes there’s a lot of songs that share the same three or four chords. Nevertheless, it is a fairly unique progression, a fact which wouldn’t bode well for Coldplay. There are many other elements to consider, but it does certainly lay a musical foundation for substantial similarity.
As for the legal analysis, it’s important to remember that the substantial similarity between these two would have to be either admitted by Coldplay or found at trial (Coldplay demanded a jury trial in their answer, so it would have gone to a jury to decide unless the evidence was so overwhelming as to lead a judge to direct a verdict on that point). Absent such a finding or stipulation, I can’t say for sure whether the harmonic structure, meter, and rhythm alone would be legally sufficient. Satriani would also have to prove that Coldplay had access to the work, but given how broadly Satriani is distributed and how broad Coldplay’s musical arms reach I don’t imagine this would be difficult. Coldplay seems to have challenged this exact point in their Answer, however, arguing as an affirmative defense that these two songs were independent creations. In other words, Coldplay did their song without ever hearing the Satriani song. This was one of nine affirmative defenses in their Answer that Satriani would have had to get around, although some of the defenses look a little dubious. (Including “lack of originality” in the Satriani work, which either suggests that Satriani’s work does not have the requisite creativity, which is preposterous, or that Satriani forfeited copyright through 17 U.S.C. § 103(a) by using other copyrighted material without permission, which is highly unlikely.)
Whatever we think of Satriani, Coldplay, or the case in question, the answers to all these legal problems have left the realm of the courts. The parties asked to settle the case in front of an arbiter in July, and last Wednesday the parties filed a joint stipulation for dismissal of the lawsuit. Either Satriani was scared off or (more likely) the parties came to some form of settlement. The question of whether Satriani would have won at trial is now left to speculation by the copyright nerds of the world.
If you’re still interested in the details of the case and up for some legal digging, this case is captioned Satriani v. Martin et al, and all of the filings are up on Justia. In May, Cat Stevens (now Yusuf Islam) also claimed “Viva La Vida” infringed his original “Foreigner Suite” and threatened action, but about a month later he dropped the suit.
Update – 15 Sept, 8AM: Justia posted two more filings on the Satriani v. Martin docket yesterday, including an official order to dismiss the case with prejudice (meaning that Satriani may not file the case again). Not too much to see here; I suspect someone will have to get in touch with the parties to hear the details of the settlement.
I also want to take a second to say hello to the folks over at Techdirt for mentioning my blog yesterday while covering this story. Many thanks!
Update 2 – 23 Sept, 10AM: I realize in the comments I was playing it a little fast and loose with the degree to which expert testimony would be admissible with respect to the infringement, so I want to clarify:
Independent origin is a total defense to copyright infringement. If I were a monk in Nepal and I came up with a song identical to “Viva La Vida” without ever hearing Coldplay’s song to begin with, I could not be found to infringe Coldplay’s song. However, proving this degree of “copying” can be very difficult absent party or witness admission (“Yes, I saw Chris Martin at a Joe Satriani concert where he played ‘If I Could Fly.’ Chris had his tape recorder out.”). Accordingly, courts allow expert testimony to show how unique elements may be used as circumstantial evidence of direct copying (“Given these unique factors, it’s highly unlikely that Chris Martin would have come up with this on his own were it not for hearing Satriani’s song.” combined with “‘If I Could Fly’ was a #1 on Top of the Pops for two weeks and it’s extremely likely that Chris heard it.”). This is sometimes called the “access/striking similarity” inference of copying.
Proving “copying” is only half of the battle, however. Satriani would also have to prove that he copied the elements in such a way as to be unlawful appropriation. Not all copying is copyright infringement, after all, and his copying would have to go to the protectable elements of the expression, and not just the abstract ideas. The courts have employed variety of techniques in finding this, but at the heart they all recognize this as being the province of the jury, and not the experts. In other words, we play both and ask the jury to determine whether the copying done in the secondary work is “too much” of the original. The term most often tossed around here is “substantial similarity,” which helps to illustrate to a degree.
An example might help illustrate: I really love the guitar work of Marc Ribot in Tom Waits’ Rain Dogs. Were I to try and create that same over-driven Telecaster flamenco-infused soloing in my own song, I am “copying” Ribot but my copying is not so substantial as to be infringement (I think.). However, as I start to appropriate more – say the notes of the solo or the lyrics of the song or even the chord changes and tempo – this might start to feel more like infringement.
Were Ribot to sue me, he would first either have to prove that I copied his work (I think this blog post might be a good piece of evidence to start with) or prove through circumstantial evidence that I had access and through expert witnesses that the songs are so strikingly similar that I could not have come up with it without copying, and then persuade the jury that my copying was so substantial that it interferes with his monopoly conferred by copyright. Market harm or other data may be introduced as evidence here to help draw inferences, but ultimately it is for the jury, and not experts, to decide.
So, to artificially draw up some parameters here as a court might, the evidence above about chord structure and melody would go to the “access/striking similarity” inference of copying, and is best paired with some other evidence as to the popularity of “If I Could Fly.” (SoundScan has Is There Love in Space?, the album containing this song, as selling around 90,000 copies worldwide, for what it’s worth.) All of this goes to the question of “copying.” To take this copying into the realm of infringement, however, requires a juror (say, you) to listen to both and determine whether the copying is so substantial as to constitute infringement. Naturally, this is subject to dispute.
This is a slightly more whimsical (and short) approach to a topic I spilled a great deal of ink on last week. I saw this bumper sticker on a traffic pole yesterday:
Clearly, a sticker done in homage to:
Is this good? Bad? Acceptable? Infringement? Legally fine but artistically dubious? Artistically clever but legally questionable? An unfair use of Bad Brains’s design to imply support from Bad Brains or their fans? A strategically bad decision of iconography, considering how different Bad Rabbits and Bad Brains are? Totally fine and rather cute or amusing?
I’m torn. All I know for sure is I checked them out because I thought they may be similar to Bad Brains, but they turned out to be entirely different (and I see very little crossover between these fan bases). I also think I may know some people in Bad Rabbits – at least a few went to Northeastern – so I should be careful before I rip on them too much.
The blog Aritsts Paid posted up a video of Rolling Stone and Village Voice music critic Christopher R. Weingarten, speaking at a web/twitter conference in New York this past June. He argues that crowdsourcing and amateur music blogging has killed popular music:
(Not suitable for work, or for the kiddies.)
With the obvious grain-of-salt caution that this is a Rolling Stone writer complaining about how amateur reviewing has undercut his professional usefulness, Weingarten raises an interesting point. Before the Internet, music reviewers would dish out opinions from up on high. Their opinions were respected (if not agreed to). When the Internet first began to spread, music websites kept up this tradition of, as he puts it, separating wheat from the chaff. But with the advent of the amateur music blog (*ahem*) we switched from parting the waters in music to opening the firehoses. As Weingarten puts it, it was like a sprinkler, with opinions and MP3s flying everywhere.
On top of this, the one edge “professional” reviewers had for years was the coveted “advance” copy of records: even if consumers didn’t care what people like Weingarten were saying about bands, at least they could scoop us bloggers out here. Nowadays record labels seem to run their organizations about as watertight as a swiss-cheese submarine, and albums are leaked well in advance of promotional distribution.
At the meat of his speech – around the 7-minute mark – he argues “crowd sourcing killed music” because “people have terrible taste,” and, “if you let people decide what good music is, nothing different or adventurous gets out.” Weingarten says this trend lead to professional music critics being forced to review bands that are popular instead of bands that are “good,” and a close-minded online listening world (“I only listen to X music and thus I have no idea about Y”). His solution: spend less time saying online that “I like this music” and start saying why you like different music. In other words, don’t get so caught up in consensus. Advocate for the bands you love, and disagree about it. Practicing what he preaches, his uses his Twitter account to review albums at a breakneck rate, injecting a great deal of “why” into his reviews and keeping pace with the amateur reviewers.
He spends a while complaining that music is “rising to the middle” and popular interest leads to an overabundance of mediocre, mass-appeal bands (citing the current indie rock world as his major case study), which the music world is compelled to review to feed the “click-economy” and get the all-important hits. While I agree that there are far too many mediocre bands out there, I don’t think that’s the online music world is as dire as he claims. While Weingarten spends some time talking about the stratification of music consumption (people getting more narrow and closed-minded about listening), he neglects to mention is a duplet characteristic of online music writing: (1) there are a lot of music blogs/twitters/online sources that write about different music online, and (2) many people are diverse in reading blogs. It doesn’t follow that because music websites are narrow music listeners are too. Sure, there are blogs like Detailed Twang which focus heavily on a specific genre (to wit, bluesy garage rock and proto-punk), and I read that Detailed Twang for that purpose, but that’s just onemusicbloginapersonalarsenal that I use to keep up with music. Speaking from anecdotal evidence, people tend to diversify their niche sources.
Some people will be closed-minded about music, but that’s no different than listening to Top-40 radio for one’s entire life. (And I never subscribed to this axiomatic inquiry the because you don’t listen to weird music you are less of a music. I respect objective music fandom above any subjective taste.) While Weingarten is right about there being a lot of derivative, Pixies-meets-Death-Cab-at-a-party-for-Pinback bands out there, there are also troves of unique and interesting music blogs talking about quality artists. Save for maybe the late 1960s, I don’t think fringe music fans like us have ever been happy with what’s in the mainstream, be it on radio or in major music blogs.
There’s a certain degree of “physician, heal thyself” sentiment I feel towards Weingarten, but that’s likely misplaced. I know that he’s not the one that selects which bands to review in Rolling Stone, and I know that precious few places can afford a good music critic (and he is a good critic). The belt-tightening and corner-cutting of the industry forces most national music magazines to go for quantity of sales over quality of writing. What we have here is the cost of national distribution. If Rolling Stone plans to be a magazine with broad appeal, its writers can’t act surprised when they focus on music with broad appeal, “crowdsourced” from the Internet. While I wholeheartedly share in his dismay of writers being replaced by blogs, there’s an inherent circularity to Weingarten’s central argument about crowdsourcing. Crowdsourcing by definition seeks information mass of people; the bands that someone finds from such a search will almost by definition mass-appeal.
Critique aside, I do sympathize with Weingarten and other experienced, professional music reviewers. Were there a place (online or offline) where we congregated and compiled our Lester Bangs protégés I would certainly open my wallet to it. For now, I suppose the best we can do is promise to each other that we’ll argue viciously over bands and strive not for consensus, but diversity.
Big thanks to the Anti- RecordsBlog for posting up a pair of conversations Beck and Tom Waits shared on Beck’s website. A lot of it is inside jokes about LA, but you get a good discussion on the Oscar Mayer Wienermobile and Wienerwhistles, playing live shows, the lifespans and utility of songs, Japan, and yo-yos. Check it out.
For more Waits interviewing, check out this amazing AntiBlog post from May of last year (just before the PEHDTSCKJMBA tour). Quote of the post:
Q: What is a gentleman?
[Tom Waits]: A man who can play the accordion, but doesn’t.
There’s more to write about Michael Jackson – the will and its deep-in-the-music-industry executors, Internet music sales records set and broken this past week care of Jackson, how monoculture will change after his passing – but I’m done. I think this story has been blogged to death. I’ll end with the weirdest two stories on this topic: one, care of BoingBoing, that They Saved MJ’s Brain, and two, care of WFMU, on the worst eBay cash-in imaginable.
(All too perfect, and care of Flickr user motionblur)
The factoid is legend, known to anyone who watches VH1 or has a taste for music industry gossip: Michael Jackson in the 1980s bought out a large slice of the Beatles catalogue, beating out Mr. Paul McCartney himself for it. A lot of us are wondering, now that Jackson’s deceased, What’s going to happen with the Beatles’ songs? Where are they going to go? Who has the rights to them?
To answer that question, one must understand the how Jackson obtained the Beatles catalogue in the first place. And to understand that, a little British television and music history must be explained (and a major hat tip to Wikipedia for helping me thread this all together). We start with Associated Television, or ATV: a British television company which decided in the 1960s to create a publishing wing to handle the royalties of theme songs of ATV shows and wholly-owned subsidiary Pye Records. This was the early 1960s, and around the same time the Beatles, just beginning their world success, formed a publishing company called Northern Songs, owned by the group with Brian Epstein and Dick James. In 1963 virtually all Beatles songs were owned the publishing company, but by 1965 Ringo Starr and George Harrison each had formed their own publishing company to handle their songs, leaving only the catalog of Lennon and McCartney. Around 1965 the group decided to take Northern Songs public on the London Stock Exchange, with Lennon and McCartney each owning 15%, Epstein with 7.5%, Dick James with 37.5%, and Harrison and Starr with about 1.6%. The balance (a little under 25%) was traded publicly. Following the death of Epstein, attempts were made to renegotiate the split between Lennon, McCartney, and James, but to no avail. James sold his share to ATV Publishing, and ATV was able to take a majority share out of publicly traded stock and own Northern Songs. Despite a tough fight from the Beatles, they were unable to stop the sale, and lost control of their catalogue.
After a vibrant 1960s, publishing the likes of the Moody Blues, the Kinks, and Donovan, and managing the UK sales for Chess Records, ATV Publishing was expanding heartily, obtaining the impressive catalogue of Leiber and Stoller (highlights include “Jailhouse Rock,” “Kansas City,” “Hound Dog,” “Yakety Yak,” “On Broadway,” “Stand By Me” (shared with Ben E. King), “There Goes My Baby,” and “Charlie Brown”). However, bad business decisions and generally bad luck sank ATV, and by the mid 1980s they were looking to be bought out. After an Australian businessman flipped ATV Publishing and sold a great deal of the assets in the process, the ATV catalogue, Beatles songs and all, went for sale, precipitating the sordid storm between Yoko Ono, Paul McCartney and Michael Jackson we’ve all heard before, ending with Jackson owning the ATV catalog for $47 million. Most critical to this sale was the exclusive right to license Beatles songs, which Jackson did in a myriad of commercials. (These were covers of songs, typically, as Apple Corps still owned, and still owns today, the sound recordings themselves. Apple Corps is considerably more stringent about licensing the recordings.)
About a decade later, in 1995, tech megacorporation Sony decided it wanted to get into the music business, and offered Jackson $90 million for a 50% stake in ATV. Thus was formed Sony/ATV Music Publishing, a catalogue of publisher’s rights second to none, which later bought up publishing houses Acuff-Rose (with Roy Orbison, Hank Williams, and all of the Grand Ole Opry crowd. As Jeff Tweedy put it, “name me a song that everybody knows / and I’ll bet you it belongs to Acuff-Rose.”) and Famous Music (with soundtracks to a vast number of Paramount / Viacom movies). Today the catalogue has everyone from Bjork to the Beatles, and 50% of it was Michael Jackson’s.
…
And now what? What’s going to happen to that massive collection of songs? Shortly after Michael’s death Product Shop NYC and several other blogs reported that Michael had left his share in the Beatles catalogue to Paul McCartney, a decades-overdue olive branch for the once-close friends. What would be most interesting, should this be true, is whether his interest included the right (or even more exciting: the sole right) to license Beatles songs. After all, if the songwriter/publishing deal is anything close to a typical contract, royalties should have been split 50/50 over the past decade between the songwriter and the company. So, Paul and John (and later, Yoko) were still getting their 50% from royalties, but Michael was keeping the other 50%. This isn’t really about the money; this is more about the control. To own the catalogue now would mean that Paul has the power to decide where the Beatles are licensed commercially.
Shortly after the buzz was out that Michael’s will left the songs to Paul, an anonymous source inside Sony/ATV told Bloomberg that Sony/ATV will retain the Beatles catalogue. Strictly speaking, both Bloomberg and Product Shop NYC could be accurate: Michael had, at most, 50% of the corporation, so he could only give his 50% stake to McCartney, meaning that Sony/ATV would still maintain some degree of control. The specifics of who can do what with what songs will only be made clear with the scrutiny of the contracts, documents, and agreements (most likely with a trip to the courts in the process). Meanwhile, there are rumors that have been artfully explored by Bill Wyman (the writer, not the Rolling Stones member) that Jackson accepted a 50% buyout on his 50% ownership from Sony. Should this be true, then Jackson could only devise 25% interest in Sony/ATV to McCartney. And on top of all of this, there’s the massive levels of debt we’ve all heard about, over which no one seems to have an accurate handle. Creditors buying up Jackson’s debt are certainly going to try and get a piece of Sony/ATV in collateral, as Wyman details in the article above. It’s entirely possible that some large investment bank will wind up with Jackson’s interest in the Beatles catalogue, once all of the dust has settled. And furthermore, we still haven’t seen the will yet. It’s entirely possible this fact about the will isn’t true, or it’s from a will which has since been superseded, or there are conflicting wills.
Given the man at the center of all of this, I’m willing to bet we’ll see a lot more drama and show before we find out where those Beatles songs are going to land. As of this moment, we simply cannot say for sure.
“A system for allowing a shoe wearer to lean forwardly beyond his center of gravity by virtue of wearing a specially designed pair of shoes which will engage with a hitch member movably projectable through a stage surface. The shoes have a specially designed heel slot which can be detachably engaged with the hitch member by simply sliding the shoe wearer’s foot forward, thereby engaging the hitch member.”
Better known as the shoes that through this:
let you do this:
so Michael Jackson could do this:
as made famous in this music video (dance starts at 6:40, “the lean” is at 7:15):
In this current deluge of famous people dying I’m afraid people are going to miss this one: Sky Saxon, lead singer of seminal garage rock band The Seeds, died yesterday in Austin, Texas. There’s a fair number of Seeds videos out there, but my favorite is probably this random appearance on The Mothers In Law:
