Shepard Fairey recruits Fisher, Palfrey and Stewart

Sorry I’ve been away. With a law journal article in the works and exams coming up I expect things will be quiet here for a while.

I wanted to break my silence to let you all know that Shepard Fairey – plaintiff and cross-claim defendant in the highly-public Fairey v. Associated Press (the Obama “Hope” poster case) – has just found new attorneys and a new firm to replace the departing Durie Tangri LLP and Stanford Center for Internet and Society. The details of the events leading to their departure are rather depressing for those of us who wanted a clean fair use case; I’ll leave it to Wired and BoingBoing if you aren’t familiar.

After losing one of the best cyberlaw thinktanks and an excellent boutique law firm to Fairey’s totally inexcusable shenanigans, a lot of us out here  (“us” being those hoping that this case comes down on the side of fair use or non-infringement) were worried that he wouldn’t find reputation of the caliber that Durie Tangri and Stanford provided in this all important fair use case. Lucky for us, he found the two professors that wrote the book on modern copyright policy.

Specifically, the books Promises to Keep and Born Digital. Professors Terry Fisher and John Palfrey, along with litigation giant Geoffrey Stewart from the firm Jones Day, have been identified in a court filing last week as the counsel selected to replace the departing attorneys.  From Fairey’s perspective he could not have found brighter minds to take on this case. Here’s hoping they can keep this case away from this past month’s distractions and back on to the all-important issues.

Their arrival on the case is pending Judge Hellerstein’s approval of Fairey’s motion. For more, check out Justia.

Update (12 Nov): The New York Times reports that Judge Hellerstein approved the motion.

A Performer’s Tribute to Teddy Kennedy

Hello again.  I’ve been writing a lot since my last post, but no draft has quite percolated up to postworthy.  One or two of them will soon.  For now, I want to quickly re-post Universal Hub’s video of a man paying tribute to Senator Kennedy as his motorcade passed the Roxbury Crossing station on Mission Hill:

Thanks to UHub for posting this and Steve McCarthy for capturing this moment.  A Boston historian could spill gallons of ink on the imagery and subtext here, but I’d rather let the video speak for itself.

Rest in peace, Teddy.

Back in DC

Sorry for the unannounced hibernation here over the past few weeks.  I was finishing my work, taking a vacation, and moving my life back down to DC for my 2L year.  I don’t have much time to write, but I wanted to post this sign up a little memento from my summer in Cambridge:

“Violators will be towed perfunctorily.”  Only in Cambridge would you see an SAT word on a parking sign.  I’m going to miss the place.

A conversation with Beck and Tom Waits

Big thanks to the Anti- Records Blog 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.

Sen. Specter’s comments at Sotomayor hearing

I watched the opening rounds of Judge Sotomayor’s hearing before the Senate Judiciary Committee this morning with my fellow Berkterns. Most of it was the usual Congressional grandstanding (which always reminds me of the classic Simpsons line when Kang and Kodos pose as Presidential candidates: “As a young boy I too dreamed of becoming a baseball…”), but in the middle of all of that sound and fury was an impressive, issue-based speech by Senator Specter. I’ve yet to find a good video to embed here, but in the meantime here’s the transcript from his website. Some highlights include his comments on the drop in cert.-granted cases over the years:

Most of the questions which will be asked of you in the course of these hearings will involve decided cases. I intend to ask about decided cases, but also about cases that the Supreme Court decided not
to decide. And on the rejection of cases for decisions, it’s a big problem.

The court, I would suggest, has time for more cases. Chief Justice Roberts noted, in his confirmation hearing, that the decision of more cases would be very helpful.  If you contrast the docket of the Supreme Court in 1886 with currently, in 1886 there were 1,396 cases on the docket, 451 were decided. A century later, there were only 161 signed opinions. In 2007, there were only 67 signed opinions.

I start on the cases which are not decided, although I could start in many, many areas. I could start with the Circuit splits, where one Court of Appeals in one section of the country goes one way and another Court of Appeals goes the other way. The rest of the courts don’t know which way the precedents are, and the Supreme Court decides not to decide.

But take the case of the terrorist surveillance program, which was President Bush’s secret, warrant-less wiretaps and contrast it with congressional authority exercised under Article I on the Foreign Intelligence Surveillance Act, providing the exclusive way to have wiretaps, perhaps the sharpest conflict in the history of this great country on the Article I powers of Congress and the Article II powers of the president as Commander-In-Chief.

The Federal District Court in Detroit said the terrorist surveillance program was unconstitutional. The Sixth Circuit decided two-to-one that the plaintiffs did not have standing. I thought the dissenting opinion was much stronger than the majority opinion. And standing, as we all know, is a very flexible doctrine and, candidly, at least as I see it, used frequently by the court to avoid deciding a case.

Then, the Supreme Court of the United States denied certiorari, decided not to hear the case, didn’t even decide whether the lack of standing of standing was a justifiable basis. This has led to great confusion in the law, and it’s as current as this morning’s newspapers reporting about other secret programs which, apparently, the president had in operation.

Had the Supreme Court of the United States taken up the terrorist surveillance program, the court could have ruled on whether it was appropriate for the president not to notify the chairman of the Judiciary Committee about the program. We now have a law which says all members of the Intelligence Committees are to be notified. Well, the president didn’t follow that law. Did he have the right to do so under Article II powers? Well, we don’t know.

Or within the past two weeks, the Supreme Court denied hearing a case involving claims by families of victims of 9/11 against Saudi Arabia, of Saudi Arabian Commissions and four princes in Saudi Arabia. The Congress decided what sovereign immunity was in legislation in 1976 and had exclusions for torts. But the Supreme Court denied an opportunity for those families who had suffered grievously from having their day in court.

One of the questions, when my opportunity arises, will be to ask you what would be the standards that you would employ in deciding what cases the Supreme Court would hear.

And, in a question of, shall we say, supreme relevance to some of my colleagues,  he primed some arguments on cameras in the courtroom:

With the few seconds I have left, I’d like to preview some questions on televising the court.

I don’t know why there is so much interest here today. I haven’t counted this many cameras since just Alito was sitting where you’re sitting.

You’ve had experience in the district court with television. You’re replacing Justice Souter, who said that if TV cameras were to come to the court, they’d have to roll over his dead body.

If you’re confirmed, they won’t have to roll over his dead body.

But the court decides all the cutting-edge questions of the day. The Senate is televised, the House is televised. A lot of people are fascinated by this hearing.

I’d like to see the court televised. You can guess that.

Once someone graciously posts his remarks in entirety on YouTube I’ll embed them here. In the meantime, I encourage you to visit his site and read the transcript. The thought of there being substantive issues to pepper the absurd wise-Latina-judicial-activism-Ricci-Gate-dog-and-pony-show tomorrow might just keep me tuned in.

Thrill-arsis

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.

So how about that Beatles catalogue?

(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.

RIP Sky Saxon of The Seeds

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:

So long, Sky.

Sir Christopher Lee

I want to say a heartfelt congrats to one of my all-time favorite actors, newly knighted today by the Queen:

(CC licensed from Flickr user lucijan_blagonic)

Congrats, Sir Christopher. (Thanks to Wired for the scoop.)

Sotomayor on Copyright Law

As a followup to Monday’s post, head over to the blog Ex(c)lusive Rights to see an impressive list of all of the copyright/soft-IP decisions Judge Sotomayor did while working the Second Circuit and the S.D.N.Y. As Gizmodo puts it, Sotomayor knows stuff about computers. Many thanks attorney Shourin Sen for putting this list together (and promising to update it as more are found).

This might have been my weekend reading material, if my weekend wasn’t already so busy reuniting with my old production/promotion company to help produce one more festival. See you all when I come back.