Any time a song is popular, you’ll find people debating it. And at some point during that debate, someone is going to Google the lyrics.
There are roughly 5 million searches for lyrics per day on Google, according to LyricFind. Those searches often lead to websites that post lyrics to lots of songs — and, in many cases, sites that post ads alongside those lyrics.
David Lowery, frontman and songwriter for Cracker and Camper van Beethoven, is waging war on the sites he believes make money off song lyrics but don’t pay the songwriter. Once he took a closer look at where his music was making money on the Internet, he realized: There were more people searching to find lyrics to his songs than searching to illegally download mp3s of his music. And he wasn’t making money off those searches. Last November, after months of exhaustive and systematic Googling, he released something called The Undesirable Lyric Website List.
The National Music Publishers Association seized upon this list, and announced that it would be sending take-down notices to every single name. At the top of that list was the very popular Rap Genius.
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Just this week, Rap Genius announced that, despite its opinion that the site falls under the criteria for fair use, it’s going to pay songwriters for posting their lyrics. It’s just easier than fighting with music publishers, who’ve been very successful at going after other lyric sites in the past few years.
Link to the rest at NPR and thanks to Joshua for the tip.
As an author said to me last night, “This self-publishing is a lot of work, it’s hard.”
Hey, at least she has good advice and people to call on. It’s the other people I worry about, the ones who don’t know when they are poised to step right in something unpleasant, something that might require some real effort to get rid of.
Yes, it’s the Self-Publishing #Fails.
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1. Formatting for beginners.
In the last couple of weeks I’ve been handed 2 books by their authors that really made my heart sink. Why? In each case the author was a professional, highly educated, well-informed and determined to create a book worthy of commercial publication.
Problem? They had each found a “semi-pro” book formatter to create their nonfiction book interiors. How do I know they were “semi-pro”? Immediately I saw things like blank right-hand pages, running heads on blank pages, an entire book typeset with hyphenation set to “off,” inappropriate visual spacing, all the usual suspects.
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3. Is That Cover Yours or Mine?
An author in the popular paranormal romance genre was just getting started in her career. She studied all the blogs that other writers in her peer group wrote, and learned how to put together a book for print on demand publishing.
She wanted a distinctive cover treatment, especially because she was launching a series, with the intent to publish a whole line of books with the same characters appearing in different settings and combinations.
So the whole representation of the story on the front cover of the first books was of a lot of concern.
She found an artist who specialized in illustrations for book covers, and the two had a great working relationship.
Together, they came up with a beautiful cover, attractive typography, and a custom illustration that truly represented the whole work.
Everyone was happy.
But then a funny thing happened. The book, and it’s sequel, started to get really popular, selling tens of thousands of copies.
When the author got back in touch with the illustrator for a new cover for the next book, she also got a shock.
The illustrator let the author know that she now owed more money for the first illustrations, and that the new illustrations were going to cost a lot more, like triple the original cost.
As Hector Tobar of The Los Angeles Timesput it, “Readers of the world, unite! To fight over Karl Marx’s copyright.”
The issue is this: A small independent British publisher (one with historic ties to the “radical British left,” is in the midst of a struggle with a multilingual website, the Marxists Internet Archive at Marxists.org. What’s at stake? The right to use the 50-volume “Marx Engels Collected Works.”
The London-based publisher, Lawrence & Wishart, has requested that Marxist.org remove the copyrighted material from its website. But, the Marxists at Marxists.org have responded “with a flurry of angry anticapitalist rhetoric.”
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Lawrence & Wishart, who were once the publishing house of the Communist Party of Great Britain (speaking of ironic), says on its website that the company has been “subject to a campaign of online abuse…survives on a shoestring…[and]…makes no profit other than those required to pay a small wage to its overstretched staff.” The statement goes on to add that revenue from the “Collected Works,” which the company first published in 1975, goes to “numerous radical publishing projects.”
The Times cited blogger Scott McLemee, who wrote that Marxists.org was asked to remove the material from its website by April 30th (just before International Worker’s Day).
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“If Lawrence & Wishart still considers itself a socialist institution, its treatment of the archive is un-comradely at best, and arguably much worse; while if the press is now purely a capitalist enterprise, its behavior is merely stupid,” McLemee wrote on the Crooked Timber blog.
With almost a half-century under his belt since starting in private practice, music and entertainment attorney Lee Phillips has seen it all, but even he is amazed at the transformation in the record industry over the past decade and a half.
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“There are always changes in the record industry,” he continues. “Piracy has been around since the cassette, but when labels didn’t embrace digital right away, it was too late. I was there at the beginning, representing Real Audio, who hired me to acquire content from the labels, and the negotiations dragged on for almost a year. But music has always been important and will continue to be.”
As for record labels, Phillips isn’t anywhere near as sanguine. “Suddenly, the bonanza of selling 3 million to 5 million copies of an album is gone. As a result, companies have cut their overheads and are trying to find out what their place is.”
Phillips claims his practice is flourishing despite the labels’ difficulties, because, among other things, well-known artists are choosing not to sign with record companies, but set up their own deals to release new product. “The labels will pay anything to keep prestige acts,” he says, pointing to his recent handling of negotiations on behalf of Barbra Streisand to re-sign with Columbia Records. “But there are only a handful of artists in that category. In signing new acts, it’s not only about talent, but what kind of following you bring to the table. That’s why labels have started signing these 360 deals. Since they’re not making money from albums sales, they want a piece of touring, publishing, merchandising and endorsements.”
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Perhaps the next challenge to the music industry is the concept of “termination,” which involves the reversion of copyrights, meaning, for example, publishing rights for compositions written in 1958 are now coming up for renewal, giving writers yet another chance to regain their songs.
“Every two weeks, I’m terminating more copyrights,” says Phillips, who also points to “work for hire,” where record companies claim ownership of masters, as another possible area for litigation, depending on “which artist dares to step forward.”
The Authors Guild is appealing Google’s November fair use win in its Google Book scanning case. The Guild says that Google is “yanking readers out of online bookstores” and stifling online bookstore competition with its digitized books.
“Google emptied the shelves of libraries and delivered truckloads of printed books to scanning centers, where the books were converted into digital format,” the Guild’s lawyers said.
They wrote that the library project was designed to lure potential book purchasers away from online retailers like Amazon.com and drive them to Google.
Wait, what?
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Second, this is the same Authors Guild that blamed lax antitrust enforcement for Amazon’s domination of the online book sales market, called Amazon “anticompetitive,” and insisted that the DoJ antitrust suit against the publishers was only going to help Amazon.
Now they’re suddenly all concerned over Google’s impact on Amazon’s wellbeing? Seriously?
I was pleased to discover recently that, from the 1st of June, format-shifting will be legal in the UK. The change has generally been reported in terms of music – it’s now legal to rip a CD so that you can listen to it on your MP3 player. People have been doing this for as long as MP3 players have been available, of course. Before the advent of MP3 players, it was common practice to copy CDs and albums onto tape to listen to them on personal stereos or in the car. What is more relevant to this blog, however, is that the changes also apply to ebooks.
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Under the present law, all these cases, as well as converting an ebook from one format to another, are illegal in the UK. The law is set to change on the 1st of June, at which time converting an ebook from one format to another (from ePub to Mobi, for example, to read it on a Kindle) will become legal.
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Not surprisingly, the new law will only allow copies to be made for personal use. It won’t be legal to make copies for friends and family. There is another important caveat: all of the above applies to ebooks that don’t have DRM, but many do. The UK Intellectual Property Office website states that, where DRM is used to prevent copying, the copyright owner “may have the right to take action against a person who gets round” the DRM.
The government has published a series of changes to the Copyright, Designs and Patents Act 1988, including giving people the right to use a work for parody, pastiche and caricature, and the right to copy work for text and data analysis for non-commercial research.
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They follow the Hargreaves Review of 2010, which was set up to look at “barriers to growth” within the intellectual property system, and will affect how consumers “can use content like books, music, films and photographs” and “will also introduce greater freedoms in copyright law to allow third parties to use copyright works for a variety of economically and/or socially valuable purposes without the need to seek permission from copyright owners”.
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The Intellectual Property Office said: “The changes make small but important reforms to UK copyright law and aim to end the current situation where minor and reasonable acts of copying which benefit consumers, society and the economy are unlawful.”
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However Sam Edenborough, president of the Association of Authors Agents, said the group was “particularly concerned with the new exception created for parody, pastiche and caricature”.
He said: “Our view is that an exception for pastiche is a very broad gap through which one could sail a large boat. Parody is relatively easy to define but pastiche is very hard to define – musical pastiche is different to literary pastiche and so on. It always involves copying or mimicry. In theory someone could take large chunks of several works, stitch them together and claim the result is pastiche. It is unlikely to happen with any regularity but we feel this new exception is a further chipping away of an author’s rights.
“This isn’t the end of the world but it’s another blow to authors’ ability to earn a living from their writing.”
If you’re looking to read a best-selling book from 1922 or earlier on your Kindle, you’re in luck. Just about all popular books published between 1913 and 1922 (94 percent, to be exact) are available today as ebooks, often for free.
But for books published 1923 and later, the picture is dramatically different. Just 27 percent of 167 bestsellers published between 1923 and 1932 are available in authorized digital formats.
Why? Because 1923 is the magical dateline that divides America’s intellectual property into two: the era before 1923, from which all work is now in the public domain (with a few exceptions), and everything after, most of which is protected by copyright. Those books that are in the public domain are much, much more likely to be available as ebooks.
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But here’s the thing: A new study by the University of Illinois’ Paul J. Heald finds that copyright protections didn’t have the same effect on music. In fact, songs after 1923 seem to be more common online than those in the public domain.
Using a database of popular songs from 1913 to 1932 with unique names (to keep the data neat), Heald found that the vast majority of songs were available on iTunes, regardless which year they were from, “most of them with recordings from multiple artists.” For the public-domain years, 1913 to 1922, Heald found that 72 percent of the hits were on iTunes. For the years 1923-1932, 96 percent were.
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So why is it that copyright seems to have so little impact on the availability of early-20th-century music and yet has dramatically shaped the market for books from that time?
Heald offers a couple of theories.
For one, there’s the fact that it’s just much easier (and therefore cheaper) to digitize music than it is to digitize printed text. As Heald explains:
a vinyl album or audio master tape can be converted directly to a consumable digital form and be made available almost immediately. A book, on the other hand, can be scanned quite easily, but in order to be marketed as a professional-looking eBook (as opposed to a low quality, camera-like image of the original book), the scanned text needs to be manipulated with word processing software to reset the fonts and improve the appearance of the text. And given that the best optical scanning software can leave glitches in the text, an ebook intended for mass market distribution should also be proofread for typographical errors.
Another reason: Music, especially old music, is easier to consume, relative to books. A song requires just an investment of a few minutes, and services like Pandora may help to surface obscure, older compositions. An old book, by contrast, can be an undertaking, and consumers may not be all that interested, absent a compelling reason, such as an assignment for a class or a recommendation from a friend. “The comparative attractiveness and efficiencies present in the music marketplace may provide more of an incentive for music publishers to digitize, as opposed to book publishers,” Heald writes.
Until recently, Innocence of Muslims was known as the movie trailer that sparked outcries throughout the world and was blamed at one point for the attack on the U.S. diplomatic mission in Benghazi, Libya, that left four Americans dead, including Ambassador Chris Stevens. But after a federal appeals court ruling last month that determined that actress Cindy Lee Garcia could assert a copyright interest in her performance in the film and that Google had to remove the controversial anti-Islamic film from YouTube, Innocence of Muslims has evolved into something more.
Soon after the ruling by 9th Circuit Chief Judge Alex Kozinski, Google filed an emergency motion to stay the order pending a rehearing en banc. Judge Kozinski denied the motion, but in a rare move that illustrates the tensions this decision has wrought, another 9th Circuit judge made a sua sponte request to have the circuit reconsider the stay.
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Now, both sides have filed briefing on that issue with Google revealing the latest: The U.S. Copyright Office has refused Garcia’s attempt to register a copyright. And if that’s not enough, on Wednesday, Facebook, Twitter, IAC and Pinterest requested permission to file an amicus brief supporting Google’s position. UPDATE: Media groups and publishers including The New York Times, Washington Post, Los Angeles Times are also weighing in support of Google.
Giving an actor a copyright in his or her performance possibly opens a can of worms when it comes to works of authorship like movies and television shows that contain contributions from many individuals. Some in Hollywood shrug off the doomsayers because of the practice of studios getting signed release forms from actors — which Garcia didn’t have when she was cast in what she believed to be an innocent adventure film titled Desert Warrior. And then there are those like SAG-AFTRA pleased that an appeals court has recognized actors’ rights.
But for Google, Facebook, Twitter, Pinterest and other ISPs often needing to make snap judgments about copyright validity, the Muslims ruling represented a threat. “Under the majority’s rule, everyone from extras to backup dancers could control how (and whether) films get distributed,” says Google in its latest briefing to the 9th Circuit. “And platforms like YouTube would be caught in the middle, forced to adjudicate endless takedown requests that would turn on hard-to-resolve disputes of fact.”
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On March 6, the director of registration policy and practices took the notable step of writing a letter to Garcia’s lawyer firmly refusing registration and noting how the Copyright Office’s “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.”
The 9th Circuit Court opinion in Garcia v. Google begins as follows:
While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title “Desert Warrior.”
The film’s writer and producer, Mark Basseley Youssef—who also goes by the names Nakoula Basseley Nakoula and Sam Bacile—cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”
These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.
Most copyright case opinions don’t begin in such a compelling manner. Passive Guy could provide numerous examples, but you’ll have to trust him on that contention for now.
PG includes the full opinion below, but will summarize some of the major points here. For copyright nuances, read the opinion.
Ms. Garcia’s contention was that her performance in the film was a copyrightable work and that she never granted the producer any rights to her performance, particularly the right to make a derivative work in which she appeared to be speaking different words.
Mr. Nakoula was guilty of a number of errors of judgement with respect to this film, one of which was not following the standard Hollywood practice of having everybody sign a work made for hire agreement.
Under copyright law, a work made for hire means that the creator of a book, song, movie or acting performance has transferred all of his/her/its interest to whatever copyrightable work he/she/it creates under the agreement to the producer. Under a proper work made for hire agreement, Mr. Nakoula would have owned all of Ms. Garcia’s copyright to her performance. Since he owned the copyright, he would be permitted to make derivative works, like putting new words into her character’s mouth.
As an illustration of the layers of copyright involved in this decision, let’s start with a simple example that was mentioned in the case opinion.
1. The artist known as Prince writes a song called Nothing Compares 2 U.
2. The singer known as Sinéad O’Connor performs the song with a proper performance rights license from Prince for the song music and lyrics.
Prince owns the copyright to the music and lyrics of the song. You need a license from him to do anything with the music and lyrics. Sinéad owns a copyright to her performance of the song. You need a license from her to do anything with that performance.
Even though Prince is the author of the song, he can’t do anything with an audio or video recording of Sinéad performing the song without Sinéad’s consent.
For copyright purposes, there are several levels of derivative works in the Garcia case, each of which is copyrightable:
1. The copyright to the screenplay is owned by the screenplay’s author (unless they signed a work made for hire agreement).
2. The film made from the screenplay is a separate derivative work of the screenplay and the film’s creator owns the copyright to the film. The filmmaker needs rights to the screenplay to do anything with the film, but the author of the screenplay does not own the film because the film is a separate creative work.
3. The court held that Ms. Garcia’s acting performance, while derivative of the screenplay and incorporated in the larger film, was a separate work as well and she owned the copyright to her performance (absent a work made for hire agreement). Like the filmmaker, Ms. Garcia was the author of her performance. She would need rights to the film (and, through the film, the screenplay) to do anything with her performance, but she owned the copyright to her performance.
Because she owns a copyright in part of a video YouTube is streaming, she has the right to pursue a DMCA take-down enforcement action against YouTube for her copyrighted performance in the film. If the filmmaker didn’t have rights to her performance, neither does YouTube.
This is a long prologue to a few thoughts that are more directly related to authors and the kinds of contracts they’re asked to sign.
1. As a general proposition, authors should not sign work made for hire agreements. In doing so, they are transferring all their interest in their books written under such agreements, including their copyright, to someone else. Advertising copyrighters, screenwriters hired by a producer, etc., should expect to sign work made for hire agreements, but fiction authors (and, most of the time, non-fiction authors as well) should not.
Instead, the author gives a license under his/her copyright for others to do things with the author’s book – put it up for sale online in ebook form, publish it, translate it, turn it into a movie, etc.
2. Generally speaking, PG doesn’t like publishing contracts by which an author gives up all rights to his/her books to a publisher. Draw the line at licensing the publisher to publish ebooks, printed books and, perhaps, audiobooks.
Unless the publisher owns a movie studio, the author should keep film, TV, etc., rights. The only way the publisher will monetize those rights is to license a producer or studio to use them. The author can do exactly the same thing her/himself with no need to give a big chunk of film revenues to a publisher.
3. PG has been seeing some publishing contracts that include a grant of rights to publicly perform the author’s work in addition to the right to print, publish and sell hardcovers, paperbacks and ebooks.
The idea behind the publicly perform language is that licensing and distributing ebook files for people to read on digital devices is pretty much the same thing as licensing and distributing video files for people to watch on digital devices.
Motion picture studios earn most of their money by licensing others to publicly perform their movies, whether the license is to a movie theater for paying customers to watch sitting in a big dark place or to Netflix for subscribers to watch in a small dark place.
PG’s problem with the publicly perform language is that it can cause big problems for authors who retain movie, TV, etc., rights. The author can license the studio to create a screenplay and movie from his/her book, but, with the broad language in the publishing agreement, the author can’t license the studio to publicly perform the movie because the publisher holds that right.
Producers and studios aren’t interested in only giving private performances of their films to friends and family at home.
Such public performance language can constitute a back-door rights-grab.
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