Beat Diggin' Documentary

Interesting doc from 2001: Beat Diggin'.

Damien Hirst vs. Cartrain: An Adverture in Hypocrisy

Damien Hirst is one of the art world's biggest appropriators. Apparently he is also one of the art world's biggest hyporcites.

From the UK Telegraph:

Artists flout copyright law to attack Damien Hirst

Damien Hirst's work has been being 'ripped off' by a group of artists who want to make a point about the multimillionaire's stringent use of copyright law.

The artists include Jamie Reed, who designed the Sex Pistols' sleeve for the single God Save the Queen, former KLF band member Jimmy Cauty and Tracey Emin's former boyfriend Billy Childish.

They have created a series of works containing images of Hirst's £50 million diamond-encrusted skull, For the Love of God.

Their action follows Hirst's decision to threaten to sue a 16-year-old designer who used an image of the skull in a collage to sell on the internet.

Cartrain, as he calls himself, said he was "shocked" to receive a letter from the Design and Artists Copyright Society demanding that he removed the works from sale and "deliver up" the original designs.

He said at the time: 'I met Christian Zimmerman [from DACS] who told me Hirst had personally ordered action on this matter. I was wondering why he was coming after me."

He handed over the collages and agreed to pay Hirst the £200 profits he had made.

Now the artists have rallied to Cartrain's defence.

In a tongue in cheek pledge on the website www.redragtoabull.com they have promised to raise £20 million from the sale of their Hirst-inspired art to make an exact replica of his diamond skull.

The works include a version of Reid's famous Sex Pistols poster, with the diamond skull replacing the head of the Queen in the centre of the Union Jack, for sale for £113.13.

Another features an adaptation of Cartrain's poster, of a picture of a man superimposed with Hirst's diamond skull as a head, reading a book.

In Cartrain's original the man was reading a book called 'How to be a Detective' but Cauty replaced that with one titled 'Copyright and Intellectual Property Law'.

Cauty, who famously burnt one million pounds of earnings from the KLF in the name of art, wrote to The Independent: "Unlike Cartrain and his gallery we are not intimidated by lawyers and if an injunction is issued, we will simply ignore it on the grounds of free speech."

Copyright, he suggested, needed to be "abolished and replaced with something more flexible".

Hirst's company Science Ltd has so far declined to comment.

RiP on Hulu

The documentary "RiP! A Remix Manifesto" is now available in its entirety, for free, on Hulu. (My viewing was sponsored by State Farm Insurance and the U.S. Army. Tee hee.)

Understanding Publishing Through Michael Jackson & The Beatles

A Straight Dope classic easily explains how music publishing works.

Does Michael Jackson control the Beatles music library?
October 27, 1995

Cecil replies:

What Michael Jackson bought for $47.5 million in 1985 was the publishing rights to 159 or 251 Beatles songs, depending on who's counting. To maybe oversimplify a complicated business, publishing rights are basically the sheet music rights. When Paul McCartney wanted to print the lyrics to "Eleanor Rigby" and other Beatles classics in the program for his 1989 world tour, he discovered he'd have to pay a fee to Michael Jackson. The owner of the publishing rights (hereinafter the publisher) also gets a royalty when someone plays a Beatles song on a jukebox or the radio or does a cover version of a Fab Four tune. Particularly in the case of elevator music, to which, let's be frank, a lot of Beatles tunes are well suited, this can earn the publisher some serious cash.

But there are a couple things the publisher can't do. The first is to mess with, or license the use of, Beatles recordings. Michael Jackson agreed to license the words and music of "Revolution" to Nike for a 1987 shoe commercial, but he had to persuade Capitol Records, owner of the tune's North American recording rights, to allow use of the actual record. Most likely he'd have to do the same to overdub said record with his own voice, although he might get away with including a snippet in a musical collage, something even John Lennon did that has now become impossible to control.

Another thing the publisher can't do (in the U.S. at least) is prevent somebody from recording a cover version of a song the publisher owns. Usually the would-be cover artist and the publisher work out a deal on royalties. However, if negotiations fail, U.S. law allows the cover artist to make and market the recording anyway provided he pays a stipulated (and fairly stiff) royalty to the publisher.

The point is, being a publisher doesn't give you all that much control over the songs you own; mainly it gives you the right to the profits they earn. You don't even get to keep all of that; typically you have to give 50% to each song's composer(s), one reason not to feel too sorry for Paul McCartney and the estate of John Lennon. Another reason is that McCartney, despite having gotten skunked out of his own songs, contrived to buy the rights to 3,000 others, including the Buddy Holly catalog, and reportedly is worth $600 million. Not that he's happy, of course. Paul's mad at Michael Jackson not merely because he lost control of the Beatles library but also because Jackson won't discuss giving McCartney a higher composer's royalty for the old tunes.

The last reason not to feel sorry for Paul is that if he got skunked it's his own fault. In the 60s, to avoid confiscatory British taxes, he and Lennon turned their publishing rights over to newly-organized Northern Songs, a publicly-held company in which they owned sizable but apparently not controlling blocks of stock. In 1969 music mogul Lew Grade launched a takeover bid for Northern Songs in which he offered seven times the stock's original offering price. Lennon and McCartney, feuding as usual, were unable to organize an effective defense and the company was sold out from under them. This made them even more fabulously wealthy than they already were, since their stock was now worth seven times as much. However, they were still pissed on account of, you know, the principle of the thing. The Teeming Millions can surely sympathize.

— Cecil Adams

Music and The Brain

A few years ago I was interviewed about sampling by WNYC's Jad Abumrad for his amazing radio show Radiolab. (For those unfamiliar with Radiolab, do yourselves a huge favor and check it out immediately. It's sort of like Bill Nye the Science Guy for hep adults and always an incredible sonic experience.) Although the show about sampling never aired, Jad, a musician himself, devoted an hour to exploring "Musical Language". It's a fascinating examination of what music is and how it works. It had a profound affect on me as a musician. If you only listen to one episode of Radiolab, listen to that one.

It was through Radiolab that I discovered Oliver Sacks, a prolific writer and neuroscientist. His recent book "Musicophilia" is the subject of a new PBS documentary airing this week. NOVA Musical Minds looks to be as engaging and interesting as the book. I strongly urge you to check it out.

What's Up with Dark Night of the Soul?

The CD for Danger Mouse's new album, "Dark Night of the Soul" will come in a package labeled, "For legal reasons, enclosed CD-R contains no music. Use it as you will." According to NPR, it looks like the album may never come out at all due to an ongoing dispute with EMI. Some are speculating that EMI won't release the album because there are uncleared samples (even though the album is apparently very light on sampling). Nonetheless, you can stream the entire thing at NPR for free.

The Documentaries

There are some great documentaries about derivative culture, copyright, sampling and freedom of expression. Below is a guide to what I've been able to track down.

Copyright Criminals: This is the one we've been waiting for. From Benjamin Franzen and Kembrew McLeod. (You may remember McLeod as the professor who trademarked the term, "Freedom of Expression®".) It focuses only on sampling. Judging only from the trailer, it looks like it will be pretty comprehensive and entertaining (in the vein of Scratch.) Features interviews with Hank Shocklee, Clyde Stubblefield, DJ Qbert, Chuck D, George Clinton, El-P, De La Soul, Mix Master Mike, RJD2, Mr. Len, Matmos and many more. (You had me at Hank Shocklee.) There doesn't seem to be a release date yet (perhaps Fall 2009) but there are special sneak preview screenings listed on their website. [Be sure to steer clear of the merch section unless you want a Copyright Criminals thong. Ahem.]

Good Copy Bad Copy: This hour-long doc begins with U.S. Congressman Mike Doyle (my new hero) defending Girl Talk in a Congressional hearing. Need I say more? Includes interviews with Girl Talk, Danger Mouse, Jane Peterer, Lawrence Lessig, and many more interesting people. You can view it for free at www.goodcopybadcopy.net or download the .torrent for the XviD version at The Pirate Bay (with the filmmakers' permission, of course.) Directed by Andreas Johnsen, Ralf Christensen and Henrik Moltke. With music by RJD2, Santogold, Girl Talk, Danger Mouse, Gnarls Barkley, De La Soul, NWA and many more.

RiP!: A Remix Manifesto: is Canadian Brett Gaylor's 86-minute doc about "the changing concept of copyright". Created over a period of six years, the documentary film features the collaborative remix work of hundreds of people who have contributed to the Open Source Cinema website, helping to create the "world's first open source documentary" as Gaylor put it. Available for download (pay what you want) at www.ripremix.com and perhaps screening at a theater near you. View trailer here.

Steal This Film: A Swedish film series documenting the movement against intellectual property produced by The League of Noble Peers and released via the BitTorrent peer-to-peer protocol. Available for download in many formats at www.stealthisfilm.com.

Alternative Freedom: This 69-minute documentary by Twila Raftu and Shaun Croninis is about the invisible war on culture, focusing on copyright and DRM. Features interviews Lawrence Lessig, Danger Mouse and many more. Available to view on Google Video. An excerpt from the NY Times review of the film: "Credited to the single-named filmmakers Twila and Shaun, 'Alternative Freedom' raises critical issues about the control of digital media then drops them in a shapeless mess of archival clips and meandering interviews."

Freedom of Expression®: From the people who brought you the critically-acclaimed book of the same name. This provocative and amusing documentary explores the battles being waged in courts, classrooms, museums, film studios, and the Internet over control of our cultural commons. Based on McLeod's award-winning book of the same title, Freedom of Expression® charts the many successful attempts to push back this assault by overzealous copyright holders. You'll have to pay to view it however. More info www.freedomofexpression.us. View trailer here.

Willful Infringement: Mickey and Me: Greg Hittelman's 58-minute doc about Jed Horovitz and his legal dispute with the Disney Corporation regarding copyright infringement. From Boing Boing: "The movie features clowns talking about the legal threats they got for twisting balloon-animal Barneys, Negativland conspiracists discussing life after being crushed for making music out of samples, as well as lots of legal geniuses and iconoclasts talking about how we got here and where we're going." Sells for the hefty asking price of $50 at www.fiatlucre.com. Available for download here here, not sure if it's authorized.

Sonic Outlaws: This doc was made in 1995 by the very talented Craig Baldwin. The film focuses on the controversy surrounding Negativland's battles. Called "gleefully anarchic" by Janet Maslin of the New York Times. Download available at ubu.com and surprisingly available via Netflix. DVD (with extras) available at Amazon. View trailer here.

Other films of interest: Robert Rauschenberg: Man At Work (2008) by Chris Granlund; Scratch (2002) by Doug Pray; How to Draw a Bunny (2002) by John Walter; Jeff Koons: A Man of Trust (2008) by Judith Kele.

The ecstasy of influence: A plagiarism

All mankind is of one author, and is one volume; when one man dies, one chapter is not torn out of the book, but translated into a better language; and every chapter must be so translated. . . .

—John Donne

This epic article about derivative culture by Jonathan Lethem appeared in Harper's in February 2007.

Thanks so much to Will for hipping me to this piece.

WSJ: Copyright Critics Rationalize Theft

An interesting opposing view from Mark Helprin (left), author of "Digital Barbarism" from the Wall Street Journal:

Copyright Critics Rationalize Theft
Writers, composers, designers and other content creators need to fight back.

By MARK HELPRIN
Wall Street Journal
May 11, 2009

Imagine a city of many millions of people who support themselves and their families solely by arranging words, images and sounds, or in the industries that make this work available to others. They neither farm, fish, mine, manufacture, manage, heal, teach, build nor defend. But what they do influences most everything, shapes politics and governance, provides a conception of our time, forges the culture such as it is, and stamps the imprint of the present for history to judge. Though builders may build, in the main they follow the plans of architects. Teachers teach, but they must have a text. Politicians govern, but only upon the flow of commentary that raises them up or casts them down.

Dispersed throughout the United States, the millions of this hypothetical city do exist, in professions dependent upon the copyright protection of intellectual property. More than anywhere else, they are concentrated in New York, where you see them walking at 60 miles per hour, fully absorbed in their novels, plans, melodies, compositions, essays or designs.

Their work is peculiarly vulnerable in that it is easy to appropriate. If they were farmers, industrialists or surgeons, their problems would be different. It is not possible to copy instantaneously and in virtually unlimited quantities either potatoes, aluminum or gall bladder surgeries, as one might a song or a scanned book.

Were this vulnerability unaddressed, the producers of intellectual property would be put out of business unless they were independently wealthy or worked either as amateurs or drew salaries at the pleasure of, and beholden to, boards, committees and overseers of every type. Always at risk, the independent voice, the guarantor of political freedom and personal dignity, would be dangerously depressed along with the arts that sustain civilization. Amateurs alone are insufficient -- unless one believes that the work of Herman Melville, Thomas Eakins and Aaron Copeland does not merit full-time employment.

The vulnerability, however, has been addressed, by copyright systems evolving in tandem with the ever-increasing volume of works they protect. This has proceeded over centuries, as copyright adjusts to new means of replication while sheltering the works without which the new technologies would be meaningless.

But copyright, the rampart of the mythical city, is besieged by a widespread movement antagonistic to authorial right and the legitimacy of intellectual property. So-called public interest groups serve the new information super powers, the Standard Oils of our age, whose interests would be advanced if they did not have to bother with permissions and payments for what they call "content." The Creative Commons organization, for example, is richly financed by Google, Microsoft, Yahoo, Mozilla, Sun, the Hewlett Foundation, and others of type.

The opponents of copyright are no more disinterested than its defenders, although they do a good job of pretending, and their theories have become the window dressing for the piracy of software, music, movies -- and soon the written word. They may claim that they are not against copyright per se. But if, as they repeatedly assert, copyright is an unjustifiable tax, a monopoly, and a bar to creativity, why wouldn't they or anyone else be against it, as in fact they are?

Copyright is no more a tax than the price a merchant charges for an item in his shop or what a laborer receives for his labor. Nor is it a monopoly any more than you have a monopoly on the sale of a watermelon you might grow in your garden, or the monopoly a seamstress exercises over her work. The opponents of copyright disingenuously maintain that it locks up ideas, comment and debate. Title 17 of the United States Code resoundingly says otherwise, that "in no case does copyright protection . . . extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described." And as for debate, have you noticed a lack of it?

In previous eras, advances in the ease of replication were met by the consistent strengthening of copyright -- in lengthening the term, international standardization, increased enforcement. This did not discourage the production of works, which advanced by orders of magnitude. In Thomas Macaulay's England of 1825, 600 books were published. Economic growth, universal education, more efficient printing, and a strong system of copyright together saw 206,000 books published in England in 2005. One might attempt to argue the counterfactual, that even more books would have been published without copyright, but one would first have to establish that the incentive of being paid for one's work is a disincentive to producing it.

With the swelling powers of digitization come the antagonists of intellectual property, who address the issue without popular opposition. Corporations with intellectual-property interests now field lawyers and lobbyists, as do their adversaries. This will eventually result in a tie, which will be broken only by the public opinion that corporate moguls and magnates (often accused of dominating public opinion) have in this regard totally ignored.

So here we have a city -- the hypothetical city and New York itself -- deeply dependent upon what copyright protects but unaware of the threat it faces, even as, sector by sector, it begins to fall. Are you -- were you -- in publishing? Are you, or were you, a journalist? A screenwriter, composer, architect, designer, photographer, writer, or in a business that brings the work of these people to the public? What have you done to protect your life's blood and to guarantee the continued independence of your voice? As distressed as you may be now or not long from now, should copyright go the way of all flesh, some of you may soon be unable even to recognize your own profession, if indeed it continues to exist.

New technologies will always demand and deserve careful navigation and difficult readjustments. But the weakening or de facto abolition of copyright will not merely roil the seas, it will drain them dry. Those who would pirate what you produce have developed an elaborate sophistry to convince you that they are your victim. They aren't. Fight back.

Mr. Helprin is the author, most recently, of "Digital Barbarism," just published by HarperCollins.

Digital Barbarism: A View from the Opposition

Interesting review from the WSJ about "Digital Barbarism: A Writer's Manifesto," a new book about copyright by Mark Helprin in which he "laments what he calls the 'Legos' approach to creativity -- taking existing works, mixing them together and editing the result to form a 'new' work."

"There may be a few extremists out there who resent the whole idea of copyright for its attempt to fence off intellectual property. Mr. Helprin deftly shoots down the arguments they might make, which are often, he says, 'sufficiently careless and spurious to be a Disneyland of self-impeachment.'"

NPR Helps Legitimize Derivative Culture with Kutiman

NPR aired a great 6-minute piece this evening about Kutiman, an Israeli samplist who assembles intricate mash-ups from You Tube videos (with hardly any pitch or tempo-shifting, mind you.) Thank you NPR for giving a platform for artists like Kutiman and continuing to legitimize derivative culture.

Pierre Renoir Was "Sampling" in 1987

I was recently at the Norton Simon Gallery near Los Angeles and noticed something interesting. This is a good example of "sampling" in the art world. This 1897 painting, Pierre Renoir's "Yvonne and Christine Lerolle at the Piano", features a painting by Degas (the ballerinas) in the background. Henri Lerolle owned the Degas painting and apparently Renoir incorporated it into the background when painting the portrait of Lerolle's daughters. The double-standard between visual art and music continues.

Video: Lessig on Colbert

The Colbert ReportMon - Thurs 11:30pm / 10:30c

Lawrence Lessig

Colbert at Christmas
Colbert Christmas DVD

Green Screen
Bill O'Reilly Interview

I decided a few weeks back that Colbert's show is finally funnier than Jon Stewart's. This interview isn't particularly hilarious but it's spot on. I just ordered Lessig's "Remix" and I'm hoping it doesn't render my book (which is still in its infancy) irrelevant. Nonetheless, when it comes to a discussion about derivative culture, I've never seen an interview that is more focused on what we samplists are doing. Kudos to Lessig for attacking the issue and to Colbert for giving him the platform.

Vinyl Junkies on Film: #1 - Laurence 'Shrevie' Schreiber from Diner

In the first installment of this series, we present one of the greatest vinyl junkies of cinema history, Laurence 'Shrevie' Schreiber (Daniel Stern) from Barry Levinson's 1982 film "Diner". In this scene, Shrevie loses patience with his wife (Ellen Barkin) for having mis-categorized James Brown among his records. Later in the film, his friend Timothy Fenwick, Jr. (Kevin Bacon) quizzes him about B-sides, years of release and the color of record labels. Shrevie, congratulations, you've earned your place among the most crazed vinyl junkies in film history.

Videos: Records, Records, Records!

A couple of videos for you today. The first is a brief history of records that I grabbed from the PBS program The History Detectives. It's less than 2 minutes and jam-packed with cool facts. The second video is an amazing documentary by Sean Dunne about Paul Mawhinney, the owner of the world's largest record collection. This is absolutely amazing. Enjoy!




The Archive from Sean Dunne on Vimeo.

McDonald's Co-Opts Sampling: Hamburglar Immediately Sued by Bridgeport Music

I feel need to document any reference to sampling in pop culture. Large multi-national corporations don't really like derivative culture, particularly when it's their intellectual property being modified. But the IP lawyers at McDonald's don't generate the ideas for advertising campaigns (thankfully). And it seems that, in an attempt to bond with the youth, the idea of sampling is positively portrayed by one the very entities that hold the IP reins tightest.



A guy walks into some kind of loft space holding a McDonald's bag in one hand and a record in the other. He greets a DJ standing behind 4 turntables, spinning red and green-colored vinyl (bearing the McDonald's imprint, of course.) The DJ scratches snippets of dialog about burgers like "lettuce" and "bun", you get the idea.



Meanwhile, Dwayne Wade happens to be there... and he sits down and begins to eat someone else's Big Mac. "Hey, that's my Big Mac", the rightful owner says.



"I'm just sampling", Dwayne Wade responds.



Then the DJ retorts, "Sample this!"



... and the DJ immediately returns to scratching "pickle" or whatever.



Then there's a chyron to visit myspace.com/bigmacchant. Now, not only has McDonald's made sampling the subject and punchline of this commercial, but it has built a huge marketing campaign around it. Big Mac Chant is a contest to create the a mix using musical and audio elements supplied (in part) by McDonald's. It is unclear what, if anything, the winner receives. (At the time of this writing, when you click on the "Official Rules" on Myspace, you receive a "File not found" error. Great job!)

A remix contest is not an entirely new idea. The Japanese bellwether, Cornelius did it several years ago for one of his remix albums and it's been done a few times since. But McDonald's is the first major corporation to do it and who can blame them? Hundreds of homemade songs and videos making their viral way around the world is free content and free advertising for the 'golden arses'.

On one hand, this campaign legitimizes sampling by recognizing that it's an indelible part of our culture. It acknowledges that enough people are making music with samples that it has targeted us with an expensive ad campaign.

On the other hand, when McDonald's co-opts a slice of culture, it's usually the beginning of the end. And just when you think that McDonald's might be doing something cool and progressive, they pull back the reins on that IP.

The official instructions (as contained in the audio kit) state:

1. Use the sound files provided in the download kit to create your chant, or customize your mix by adding your own originally produced music or royalty-free loops available at sites like sonomic.com and acidplanet.com

2. Start mashing up your chant using one of these music-mixing programs: Apple Garageband, Digidesign, Protools, Sony ACID or Ableton Live.

3. All of the files in the download kit are at a tempo of 96 BPM. For the best results make sure to set your mixing software accordingly.

4. We're looking for the best track for our :30 commercial, so naturally, the most successful submissions will be :30 long.

All of the loops included in the download kit have been made available for individual use, strictly for the purpose of the Big Mac Chant-Off and may not be used in association with anything else or for any other purpose.

Which program will you use? Digidesign or Pro Tools? Who wrote that, my Mom? So, basically what McDonald's is saying is, "Aren't we cool? We know all about how you kids make music today. Okay, go and please make free content for us. And if you use any of our audio out of context, we'll sue your ass. Oh and if you win this contest, you are guaranteed nothing. Good luck."

I wish we lived in a world where McDonald's wasn't the only company condoning sampling, albeit via gimmickry. It would have been cool if McDonald's didn't include that warning about using the "loops" out of context and just donated some free material to the world. Why can't McDonald's team up with Creative Commons? Really, why not? I don't think this contest will create many more samplists in the world but at least it will shine the spotlight on some brilliant artists and their incredibly amazing art.

Sample Outing: Stop Snitching

I've said it before but I'll say it again -- "sample outing" is bad news. When people publicize a producer's unlicensed sample source it's bad for music and it's bad for sampling. It's worse than plain old snitching because it's diming on a colleague, motivated by money and/or personal gratification. ("Aren't I cool? I found that guy's sample and now I'm sharing it with the rest of you. Now do you respect me?")

When you out someone's samples, you expose them and their labels to potential lawsuits. And this will kill sampling. You will be responsible for the death of sample-based music if you continue to do this. Labels will be less likely to risk liability with sample-heavy compositions; artists will generally stop sampling out of fear of getting exposed. That's why I urge all of you who make these compilation to STOP. Yes, you're awesome - you have just as many obscure records as the producers you envy. But if you want to impress the rest of us, do something more creative with them.

And for the music lovers who eat this stuff up, it really falls on you to boycott labels that issue these compilations. They do nothing more than capitalize off of another artist's celebrity while exposing them to potential liability (I'm looking at you Pete's Treats.) Websites that amass data about unlicensed sample sources should be pressured to close down. Let's keep that stuff private... scratch the labels off of those records, if you catch my drift. Publications like Wax Poetics have always been tactful about those issues and I wish other people would follow their lead.

As I see it, there are 4 situations where I think it's okay to release compilations of sampled material to capitalize off the fact that they've been sampled: (1) When the producer himself/herself has consented to the sample source's publication (or if the producer has reach some kind of deal with the sample source owner for mutual exploitation); (2) When the the sample is in the public domain (Can you wait until 2067?); (3) When the compilation makes no references to the sampling artist, producer, song title, etc (no cutesy end-arounds like "Bob Dorough - Three is a Magic Number (as heard on the album 3 Feet High and Rising)"; or, lastly, (4) When the sample is licensed and such licensing is made public by the artist in the liner notes of the album. (Yeah right, when in the world does that happen?)

Well, did you know that DJ Shadow actually licensed some samples for Endtroducing? I recently broke out my vinyl copy of Endtroducing the other day and was surprised to see the following songs acknowledged as being licensed in the liner notes: Bjork "Possibly Maybe"; Pekka Pohjola "The Madness Subsides"; Motion "Voice of the Saxophone"; Jeremy Storch "I Feel a New Shadow"; Tangerine Dream "Invisible Limits"; and Nirvana (the UK not Seattle Nirvana) "Love Suite".

Now, I'm not outing Shadow here because he acknowledged it himself in the liner notes. And I'm happy he did because I find it very interesting that, of everything sampled on Endtroducing, those 6 samples were cleared. But the point is this: yes, the world is a better place because Shadow taught many people about David Axelrod, et al but I think it's our responsibility as producers, music lovers, historians, and lovers of sampling to maintain a pseudo attorney-client privilege deal when it comes to sample sources. Why shit where you eat? That's what it comes down to. Think about it -- it's necessary for our survival.

Yoko vs. Ben Stein?

Stephen Bergstein is a gifted civil rights attorney and a bona fide music devotee. I had the honor of working with him for several years and he taught me a lot about civil rights, crafting appeals and music history. He has written a very interesting analysis and commentary about Lennon v. Premise Media, a recent 2nd District decision in which fair use was successfully argued in a music copyright infringement action. Conservative commentator Ben Stein (Bueller, anyone?), used a portion of John Lennon's "Imagine" in a documentary about intelligent design. Yoko sued for copyright infringement and lost. The court found Stein's use transformative. Even though the context of Stein's use is lame, this is a huge victory for sampling and free expression.

RIP Robert Rauschenberg: 1925-2008

All artists, audio or visual, should take a moment to remember Rauschenberg today. Not only a visionary who showed artists how to make art out of detritus, but a legitimizer of derivative culture for the rest of us. He taught us that we could change an object simply by changing its context.

As he noted, "You begin with the possibilities of the material." There is very little conceptual difference between what samplists do in their compositions and what Rauschenberg did with his Combines. "I think a painting is more like the real world if it's made out of the real world", he once remarked.

Listen to NPR's piece: Rauschenberg Shifted Path of American Art and this PBS American Masters entry.

Sampling Law Bookshelf: Will Pop Eat Itself?

Over the next few months, I will feature several books that are informative and enlightening on the issues affecting sampling and derivative culture today. First up is Jeremy J. Beadle's "Will Pop Eat Itself? Pop Music in the Soundbite Era" from 1993. The book could certainly benefit from an update, as much has changed in the last 15 years (the book spans the Sugarhill Gang and stops abruptly at The KLF) but Beadle's theories about sampling are enjoyable, particularly in the context of the other arts he explores. His main theory is that music traditionally moves forward when it takes itself apart and builds itself back up.

Here's an excerpt:

When pop music reached the point where it needed to take itself apart, it was clear that pop was about more than just the 'music'. More, that is, than just the melody and harmonics of a song (or whatever) which could be represented on a page by traditional musical notation. Pop music was about recording, about the production of recorded sound, and when pop modernists wanted to take everything to pieces, it was recorded sound which they identified as the basic element to be reduced to fragments and cheerfully cannibalized. The arrival of sampling, which allowed previously made recordings to be subjected to this 'indignity', shifted the balance of artistic power from singers, songwriters and instrumentalists to producers. Every recording made has to be produced, and so musicians who want to record have to have a producer (or learn how to produce themselves). With the sampler, a producer could construct new artefacts from 'real' (i.e. non-synthesized) performances without having to endure the presence of musicians. Producers could emerge as artists in their own right.

Very prescient, Mr. Beadle.

And for those of you who remember PWEI, the band, they're still at it.

Record Store Day: LA Vinyl Directory for Your GPS

Let's not forget that April 19th is Record Store Day. In honor of the event and in homage to the vinyl merchant, I've created a directory of Los Angeles-area record shops that you can download to your Tom-Tom GPS. Just select "Point of Interest in City", select "Record Stores (LA), follow the yellow 7" insert and dig away. Click on the link below to download to your device.



Also, here's my list of LA area thrift shops, Goodwills, Salvation Armies and other potential digging holes.

History of Recorded Sound: Édouard-Léon Scott de Martinville's Phonautograph

It all begins here with the phonoautograph. We discovered this week that Thomas Edison wasn't the first person to record sound. If you're interested in the birth of recording, do yourself a favor and check out NPR's story about Édouard-Léon Scott de Martinville, whose recording of Clair de Lune pre-dates Edison's "Mary had a little lamb" by almost 20 years.

According to the NY Times:

The 10-second recording of a singer crooning the folk song “Au Clair de la Lune” was discovered earlier this month in an archive in Paris by a group of American audio historians. It was made, the researchers say, on April 9, 1860, on a phonautograph, a machine designed to record sounds visually, not to play them back. But the phonautograph recording, or phonautogram, was made playable — converted from squiggles on paper to sound — by scientists at the Lawrence Berkeley National Laboratory in Berkeley, Calif.

... Scott’s device had a barrel-shaped horn attached to a stylus, which etched sound waves onto sheets of paper blackened by smoke from an oil lamp. The recordings were not intended for listening; the idea of audio playback had not been conceived. Rather, Scott sought to create a paper record of human speech that could later be deciphered.

But the Lawrence Berkeley scientists used optical imaging and a “virtual stylus” on high-resolution scans of the phonautogram, deploying modern technology to extract sound from patterns inscribed on the soot-blackened paper almost a century and a half ago.

The Very First Sampling Lawsuit?!

Maybe they weren't joking when they said they had more suits than Jacoby and Meyers.

Prior to the legendary sampling plunderfest that would become "Paul's Boutique", before signing to Def Jam, and long before the historic court decision in Newton v. Diamond, the Beastie Boys were apparently embroiled in a copyright infringement lawsuit over sampling back in 1983... but as plaintiffs. Say what?

By many accounts the story goes like this. It's 1983 and the Beasties had just released their 2nd EP, "Cookie Puss" which marked their first venture into rap from the art-punk of their 1982 "Pollywog Stew" 7". The B-side on "Cookie Puss" was a tune called "Beastie Revolution", a roaming reggae catastrophe similar to some of the stuff Matisyahu is currently co-opting. The Beastie Boys soon discovered that "Beastie Revolution" had itself been sampled.

According to a Blender Magazine interview with Adam Yauch, "British Airways had hired someone to make music for [a] commercial — he sampled our music and chopped it up, so we sued."

According to reports, the Beastie Boys sued British Airways for copyright infringement, ultimately settling the case out of court for $40,000. (Beastie Boys biographers agree that this money gave the band the financial freedom to pursue making music full-time and funded the studio space where "License to Ill" was conceived.)

Jon Bains of Convulsion Magazine interviewed Mike D about how he reconciled suing BA for sampling when the band has done so much sampling themselves. Mike D explained:

"[T]he British Airways thing was a very different situation, it was like a big multi-national corporation using our music to sell their product. In the one sense I guess a soundtrack in a commercial where one person uses our music creatively to create another piece of music is cool but the problem I have with that is that music's being used to sell something. We have a very different attitude towards people who are just sampling our music, which is something we do and something we would like to continue as an art-form... it's definitely changed now in terms of there's so much greed surrounding the whole issue, it's kinda forcing people to look to other means of expression anyway.

Cynics might think this 25 year-old story is something of myth or legend as there are no accessible public records of the Beasties' lawsuit against BA and the allegedly infringing TV spot has yet to surface. But we'll take Mike D and MCA's word for it and acknowledge this event (for better or worse) in the time line of sampling history as the very first sampling lawsuit.

On a side note: do yourself a favor and check out Dan LeRoy's book about the making of Paul's Boutique. It's a truly fascinating read.

Copyright Comic Book: Fair Use Freedom Fighters!

I found this awesome comic book in my "holiday" stocking this year, courtesy of my future in-laws. "Bound By Law: Tales from the Public Domain" is an excellent graphic depiction about how the minimization of the public domain hurts creativity (specifically, documentary filmmaking.) Written by three law profs (Keith Aoki, James Boyle, and Jennifer Jenkins), it's an easily digestible examination and critique of the current state of copyright.

The extraordinarily cool thing about Bound By Law is that it's free... for you... and you can get it right now. You can download a hi-res PDF or visit the Bound By Law website for other options. Happy Holidays!

Yada Yada Yada: The $7 Sampler

You've come a long way, samplers. The first sampler was the Model 100 Rhythmate, invented by Harry Chamberlain in 1946. Then came the Mellotron (1966), the Fairlight CMI (1979), then the 80's brought us innovations from Akai, Emu, and Ensoniq. As time has marched on, we've seen the size and cost of samplers get smaller and smaller. Well, I think I've finally found the cheapest and smallest sampler around... and I found it in a Walgreens for $7 (marked down from $9.99).

The Yada Yada Yada is a toy like several other toys that record and playback audio. What sets this device apart is two very distinct features: (1) It has a warp wheel, which functions much like a pitch wheel, changing the speed and therefore the tone of the recording; and (2) You can loop playback by holding down the "play" button.

Combined, these 2 added features officially make this a bona fide sampler in my book. Sure, the sound quality sucks and you're limited to 6 seconds of recording time, but it's smaller than your cellphone and costs $7. I'm sure the developers didn't intend to make this the cheapest and smallest sampler ever made, but that's what they've done. The race is on... find them now before they become the PixelVision PXL-2000 of the future.

Kudos to Apatow: Sampling Plays a Role in "Walk Hard"

This is a pretty hilarious movie but the reason I'm writing about it here is that sampling actually plays a part in the narrative of the story. At the end of a long career in music, there is renewed interest in Dewey's music and a demand for him to return to the stage. The reason? A new generation of listeners has been introduced to Dewey's music through the magic of sampling.

The fictional rapper, Lil Nutsack (played by Kustoo), has sampled Dewey's hit, "Walk Hard" in his hip hop anthem, "(You Make Me So) Hard". (The "hard" phrase is lifted from Dewey's hit, similar to Diddy's nicking of Duran Duran's "Notorious", etc.) John C. Reilly's vocals are so similar to Roy Orbison's (particularly in the high range) that it immediately evokes 2 Live Crew's nick of "Pretty Woman" (which made it all the way to Supreme Court in Campbell v. Acuff-Rose.)

Sampling law enthusiasts might be interested to learn that Dewey's overeager manager has given permission to Lil Nutsack to sample the song. It is made very clear that even Lil Nutsack has someone clearing his samples. Although the Lil Nutsack video is played up for laughs (the utter vulgarity of the new song is a sharp contrast to the nostalgic innocence of Cox's original tune), big props go to Jake Kasdan and Judd Apatow for recognizing and promoting the idea that sampling reinvigorates waning careers and introduces new generations of listeners to the music of yore.

Below is a link to Lil Nutsack's video (not for the faint of heart).

Weblink: US Copyright Search

Captain Copyright says:

Curious about who will sue you when you sample a certain recording? Well, if that recording you sampled was made after January 1, 1978, you can easily search the United States Copyright Office Public Catalog for free. It's fun! However, if you're like most samplists, the recording you sampled was made before 1978, in which case, you're out of luck. Over and out.

Bloglink: Blanch v. Koons Analysis

I recently stumbled upon this thoughtful analysis of the decision in Blanch v. Koons, a landmark decision in which artist Jeff Koons successfully argued the fair use defense.

Reexamining Appropriation: The Copy, The Law, and Beyond

Here is a pretty interesting blog post (albeit from last year) about the NY College Art Association's lecture at the NY Bar Association on copyright, entitled, "Reexamining Appropriation: The Copy, The Law, and Beyond".

Article: Negativland Q&A with Wired

Wired recently conducted a great interview with my all-time favorite musical marauders, Negativland.


How can you go wrong with quotes like this:

WN: Do you think intelprop and copyright infringement have become huge cash cows since then?

Hosler: Intellectual property, obviously. It's one of our country's main exports! But infringement, no. I don't see much money being made over it, as all the cases are settled long before they go to court.

Maloney: Once again, both of you, stop saying "intellectual property." It's not a valid concept.

Keep Your Copyrights: A Website Explains Copyright Basics to Creators

A group of Columbia Law students created Keep Your Copyrights, a site specifically to explain the basics of copyright to creators. Although, on the surface, the whole concept (keeping your copyright) seems like it might be skewed to the more proprietary view of copyright, the explanations are nicely balanced. For example:

[I]f you do know what uses you want to permit, and want to allow those uses for free without people having to ask you, that's fine, too. If you want people to use your work for free and don't want to create a do-it-yourself list of uses, the Creative Commons licenses are one shorthand way of describing what uses you want to permit and forbid. If you don't want people to use your work for free, however, ready-made online licenses may not be a good idea.

Indeed.

Decision: Bridgeport Music v. Combs (2007)

The 6th Circuit has made available its decision in Bridgeport Music v. Combs, et al.

The case involved the Biggie song, "Ready to Die" from the 1994 album of the same name. Bridgeport, the publishers who own the rights to the Ohio Players tune, "Singin in the Morning", successfully sued Diddy, Bad Boy and Universal for sampling five seconds of brass.

Time Magazine Article on Sampling (1991)

"Anything audible is eligible."

Time Magazine has made many of its back issues available online, dating back to the late 1940s. If you picked up the unfortunately-titled, "Date Rape" issue of Time Magazine back in 1991, you would have been hipped to a comprehensive discussion of the then-burgeoning art of sampling courtesy of Guy Garcia. Garcia's bellwether article applied presageful terms like "cut-and-paste" and correctly predicted that sampling was here to stay. Props to Garcia for having the foresight to write about sampling back then and to be so supportive of it.

Monday, Jun. 03, 1991
Play It Again, Sampler
By Guy Garcia

When you hear new songs on the radio these days, do they have a familiar ring? Listen more closely to what's tickling your subconscious. In many cases you did hear that sound before, maybe long ago. It's the James Brown beat that's now in a rapper's groove, or the recycled '60s riff in a current dance- floor hit. It's the steam heat of the early '80s hit Under Pressure recycled in the vanilla-rap hit Ice Ice Baby, and the streak of the funk classic Super Freak revived for M.C. Hammer's U Can't Touch This.

That oldies echo in your ears is the result of a high-tech technique, digital sampling, that is turning pop music on its ear. Besides creating some unexpected new sounds, sampling is raising serious legal and ethical issues. "We're talking here about the ultimate instrument," says Mike Edwards, founder and lead singer of the British neopsychedelic group Jesus Jones. "I think that sampling's effect on music cannot be calculated."

The concept dates back to the late '70s, when some enterprising disco deejay played a disembodied bit of an old record over and over again to give it a funky new spin. That technique took a quantum leap when the first electronic samplers were introduced around 1980. Unlike synthesizers, which generate tones artificially, samplers record real sounds. Anything audible is eligible: prerecorded music, drumbeats, human voices, even ordinary noise like a slamming door. Samplers transform these sounds into digital codes, which in turn can be manipulated to produce melodies, rhythm tracks and complicated webs of sounds.

Sampling enthusiasts range from the funk-and-roll bands Faith No More and Fishbone to the avant-garde gurus David Byrne and Brian Eno. On Fishbone's acclaimed new album, The Reality of Our Surroundings, the band incorporates church bells and human screams. "We use sampling to enhance the integrity of our music," says drummer Phillip Fisher. "Butif you put a collage together, you should give credit to the places you got your pieces from."

Not everyone shares such scruples. Rap is rife with riffs sampled from other musicians without their consent, most notably James Brown. (The Godfather of Soul says he has counted 134 examples.) Producer-performer Lenny Kravitz borrowed a drum track from the rap group Public Enemy for the thrusting beat of Madonna's hit Justify My Love.

In Europe sampling has created some controversial musical stews. The techno- rockers EMF have stirred up a fuss with their single Lies, in which they sample the voice of Mark David Chapman, the John Lennon assassin, reciting lyrics from Lennon's last album. To create the disco hit Sadeness, Part I, Romanian-born producer Michael Cretu sampled Gregorian chants, juxtaposed them with whispered verses from the Marquis de Sade, and set them to a metronomic beat. Whether such sampling is artistry "depends on how you use it," says Cretu. "If you are a really creative person, you use it as an instrument, you participate. I'm sure if Richard Wagner were alive today he would have the biggest sampler in the world."

With millions of dollars in royalties at stake, sampling has become a legal quagmire. U.S. copyright law protects a composer from having his work duplicated by another musician. But what happens if the second party samples only a few seconds of a melody? Or just a fragment of drumbeat? "The latest copyright law went into effect on Jan. 1, 1978, and it was out of date pretty much the day it was passed," observes Jeffrey Light, a Beverly Hills-based entertainment lawyer. "Sampling is just another instance of the law not keeping up with technology."

Vanilla Ice ran into the problem when he was accused of lifting part of the 1981 song Under Pressure, written by David Bowie and Queen, for his No. 1 hit $ Ice Ice Baby. When Bowie and Queen threatened a lawsuit, the rapper eventually added them to the composer credits. Two years ago, the rap group De La Soul was slapped with a $1.7 million suit by the '60s group the Turtles for using an uncredited bite of their 1969 song You Showed Me. M.C. Hammer avoided such problems by sharing credit with Rick James, who wrote Super Freak, before sampling the song for his platinum single, U Can't Touch This.

Artists and music publishers are struggling to settle disputes out of court by devising elaborate formulas to divvy up royalties between samplers and samplees. "Everybody is going to go ahead doing it," predicts Light, "except now they're going to get their approvals before they make a record. If you go to somebody after you've got a hit and try to cut a deal, they're going to take you to the cleaners."

Not all unauthorized sampling ends in discord. Tom's Diner, an a cappella tune by Suzanne Vega, had been known only to fans who owned her 1987 album, Solitude Standing. Then late last year a couple of audacious remix artists who call themselves DNA sampled Vega's voice and grafted it onto a throbbing beat. Vega liked the new version so much that she asked her record company to release it. The resulting Top Five single was the surprise hit of 1990.

While that cut-and-paste approach to pop may not work for everyone, sampling may well be a permanent part of the musical landscape. And what's wrong with that? The arts have a long tradition of allusion and quotation, often with resonant effects. In pop music the only danger of sampling is that performers will use it as a crutch for the imagination, rather than a tool to help liberate it.

http://www.time.com/time/magazine/article/0,9171,973092,00.html

Video: De La Piece

"It's not actually stealing... it's making old songs new again, making people like it even more." - Maseo

I remember seeing this piece on De La Soul when I was a kid. I remember being blown away by the part when Prince Paul (who I thought was in a wheel chair) instantly accesses the beat on that Disney record (3:59). This video was really my first exposure to the world of sampling and that moment with Prince Paul has always stayed with me. Pos, Prince Paul and Maseo come out as strong advocates for "sampling anything", not just the typical James Brown, et al, and prove that you can create amazing beats from nearly anything audible. Enjoy.

Newsweek Article on Mash-ups & The Law

Politics and Hip-Hop Are Doing a Mash-Up
By Steven Levy
Newsweek

June 25, 2007 issue - Here's your chance, said Rep. Mike Doyle, a Democrat whose district includes Pittsburgh. "You always hear about big powerful interests coming to Washington and writing legislation behind the scenes. How would you design a bill?" The question was directed to the congressman's lunch companion—Gregg Gillis, who under the nom de laptop Girl Talk creates digital hip-hop tunes that mash up hundreds of songs. Gillis, 25, has been gaining fame for his feverishly inventive creations. But while his last CD made the best-of-year list in Rolling Stone and Pitchfork, he can't sell it on iTunes and lives in fear of a ruinous copyright lawsuit by a label representing one of the dozens of performers he's sampled without permission.

I had brought the two together (at a local hot-dog joint called the Franktuary) because Mike Doyle had taken the audacious step of wondering if his constituent, instead of being dismissed as a Pittsburgh pirate, should be recognized as an artist—and that Congress should explore ways that his work could be legally sanctioned. In a March hearing of the House Telecom Subcommittee, Doyle lauded Gillis and his work, in which snippets from disparate artists fade into and out of a witty collage powered by hip-hop rhythms and rap lyrics. "Mr. Chairman," said Doyle, "he blended Elton John, Notorious B.I.G. and Destiny's Child, all in the span of 30 seconds!" Doyle asked whether what Gillis does is any different from Paul McCartney's nicking a Chuck Berry bass line in a Beatles song. "Maybe mash-ups are a transformative new art," he said. In a Congress that reflexively goes overboard on granting rights to content owners, it was a rare recognition that there may be other ways of dealing with digitally enabled creativity besides outlawing it.

The shout-out brought attention to Gillis, not all of it welcome. Soon thereafter, iTunes pulled his songs (Apple says a record label complained about inadequate rights clearances). He also lost his access to eMusic and other services. Gillis, who does DJ performances to sold-out audiences, is now doing well enough to quit his day job as a biomedical engineer. But the legal shadow haunts him. "The existing system means [he] can't create," says cyberlaw expert Lawrence Lessig.

At our lunch, Doyle, 54 (whose own iPod is filled with the likes of Earth, Wind & Fire and Steely Dan), had a lot of questions for Gillis, 25. How many artists were sampled on his recent album "Night Ripper"? (Gillis: more than 167.) If he had to pay rights to every person he sampled, how costly would it be? (Gillis: who knows? But at the least, "we'd have to sell the album off the shelf for $100 a copy.")

He was especially interested when Gillis explained that part of his source material comes from acappella versions of hip-hop songs included on the flip side of the musical versions—making them easier to mash. He's also been commissioned to make custom remixes of songs by popular artists. In other words, record labels are happy to get the attention that comes from mixes and mash-ups, but won't stand up for their legal right to exist.

The lunch's climactic moment came when the congressman asked how one could write a law "that would somehow square up with the 167 artists you've used and allow you to get on store shelves." Gillis said that he'd try to find a middle ground where some samples were OK because of fair-use provisions in the law and others paid for by a reasonable fee. The congressman listened, but admitted the odds were long for a Mash-Up Relief bill. "Some members don't even want to understand it," he said. "They just get a call from the industry saying, 'Bad'." On the other hand, Mike Doyle said he might catch one of Gillis's Girl Talk shows soon.

URL: http://www.msnbc.msn.com/id/19263088/site/newsweek/

Video: Fair(y) Use Tale

Found this video from WFMU via Boing Boing. "A Fair(y) Use Tale", created by a Bucknell professor, edits together thousands of de minimis clips from Disney cartoons, to create an amazing lesson and commentary on American copyright law.

The Plunder from Down Under: An Australian Perspective on Sampling

Here is an interesting article from Damien O'Brien, a law student in Australia. The paper is entitled, "Digital Sampling and Culture Jamming in a Remix World: What Does the Law Allow?", published in the University of Melbourne Law School, Media and Arts Law Review. PDF file.

The abstract reads as follows:

This article looks at the way in which intellectual property law, in particular copyright and trademark law, deals with the “free culture” practices of digital sampling and culture jamming. It considers the recent US case on digital sampling, Bridgeport Music, Inc. v. Dimension Films Inc., and its relevance to Australian law, along with the critical issues of ‘substantial part’, moral rights and fair dealing. This analysis is applied to a short case study of MP3 Blogs. In relation to culture jamming the article considers the legality of using trademarks as part of social commentary under Australian, Canadian and US trademark law. The article explores the way in which Creative Commons licences and the current “Fair Use Review” by the Commonwealth Attorney General can solve some of the existing problems and enhance participation in our ever growing remix culture. The article concludes by calling for greater clarity in the law in relation to the “free culture” practices of sampling and culture jamming in order to sponsor social and creative innovation.

Oyez: Campbell v. Acuff-Rose Music (Audio)

Want to sample the arguments from the Supreme Court's landmark decision about sampling? For those unfamiliar with Oyez, it's a Creative Commons licensed archive of audio from Supreme Court arguments dating back to the 1950s. It's fascinating to say the least.

What does this have to do with sampling law? They've generously posted the audio and transcript of the oral arguments from the legendary sampling case, Campbell v. Acuff-Rose Music. Justice Souter (pictured) wrote the landmark decision for the majority and now you can hear the preceding oral arguments in all their mp3 glory. Enjoy! Thanks, Oyez. Oh yez!

Slate Article: Jay-Z Versus the Sample Troll

Here is a great article from Slate about "the shady one-man corporation that's destroying hip-hop", a.k.a. Bridgeport Music Inc., the entity behind many of the lawsuits soon to be featured on this blog.

Jay-Z Versus the Sample Troll
The shady one-man corporation that's destroying hip-hop.
By Tim Wu
Thursday, Nov. 16, 2006

Last week, a mysterious company, Bridgeport Music Inc., sued hip-hop mogul Jay-Z, accusing him of breaking the law when he recorded his 2003 single "Justify My Thug." The song is an obvious nod to Madonna's "Justify My Love," but she is not the plaintiff. Instead, Bridgeport is suing because Jay-Z did something that is normal in hip-hop: sampling. He took a few notes, looped them in the background, and produced the tune. Bridgeport claims to own those notes, and is demanding a fortune in damages and a permanent ban on the distribution of the song.

Bridgeport is an unwelcome addition to the music world: the "sample troll." Similar to its cousins the patent trolls, Bridgeport and companies like it hold portfolios of old rights (sometimes accumulated in dubious fashion) and use lawsuits to extort money from successful music artists for routine sampling, no matter how minimal or unnoticeable. The sample trolls have already leveraged their position into millions in settlements and court damages, but that's not the real problem. The trolls are turning copyright into the foe rather than the friend of musical innovation. They are bad for everyone in the industry—including the major labels. The sample trolls need to be stopped, either by Congress or by court rulings that establish sampling as a boon, not a burden, to creativity.

Bridgeport is a one-man corporation formed in 1969 and owned by a former music producer named Armen Boladian. It has no employees and no reported assets other than copyrights. Technically, Bridgeport is a "catalog company." Most catalog companies are in the relatively quiet business of licensing rights for television commercials, cover songs, and selling sheet music to interested fans. But Bridgeport has figured out a far more lucrative business model—trolling for sampling cash.

George Clinton is otherwise known as the King of Interplanetary Funk and, along with the late Rick James, the world's most famous funk musician. In the 1970s, Boladian and Bridgeport managed to seize most of the copyrights to Clinton's songs. How exactly they did so is highly disputed. However, in at least a few cases, Boladian assigned the copyrights to Bridgeport by writing a contract and then faking Clinton's signature (as described here). As Clinton put it in this interview, "he just stole 'em."

Bridgeport, if a thief, stole the winning ticket. The Clinton sounds it acquired went on to be among the most widely sampled in the rap music of the 1980s and 1990s. Sampling is as elemental to the genre as beats, beefs, or bragging, and Clinton's sonic creations were a major part of Public Enemy's debut, and were also used heavily by N.W.A., Dr. Dre, Biggie Smalls, and other rap pioneers. Often the sampling is virtually impossible to detect—listen to this sample in this N.W.A song.*

The rise of rap presented a golden opportunity for Bridgeport. After years of demanding fees, in 2001, Bridgeport launched nearly 500 counts of copyright infringement against more than 800 artists and labels. The company, suing in Nashville, Tenn., located every sample of Clinton or other owned copyrights it could find. It took the legal position that any sampling of a sound recording, no matter how minimal or unnoticeable, is still a violation of federal law. Imagine that the copyright owner of The Lord of the Rings had sued every fantasy book or magazine that dared used the words elf, orc, or troll. That gives you an idea of the magnitude of Bridgeport's campaign.

Since 2001, Bridgeport's shotgun approach has led to many dismissals and settlements, but also two major victories. First, in 2005, Bridgeport convinced Nashville's federal appellate court to buy into its copyright theory. In that case, Bridgeport Music v. Dimension Films, the defendants sampled a single chord from the George Clinton tune "Get Off Your Ass and Jam," changed the pitch, and looped the sound in the background. (The result is almost completely unrecognizable—you can listen to it here). The Sixth Circuit created a rule: that any sampling, no matter how minimal or undetectable, is a copyright infringement. Said the court in Bridgeport, "Get a license or do not sample. We do not see this as stifling creativity in any significant way."

Then, in March of this year, Bridgeport cashed in. It convinced a court to enjoin the sales of the best-selling Notorious B.I.G. album Ready to Die for illegal sampling. A jury awarded Bridgeport more than $4 million in damages.

These troll lawsuits may sound unattractive. But is Bridgeport perhaps serving the goals of copyright—fostering creativity—in some less obvious way? One idea is that Bridgeport is more Robin Hood than troll, stealing from lazy, rich rappers like Jay-Z to channel money back to deserving artists like George Clinton. That argument would make some sense if making rap music were easy, or if Clinton or other artists were in some way the beneficiary of the lawsuits. But neither is true. Bridgeport and other trolls do take from the rich. But they keep the money.

If the benefits are abstract, the costs imposed are obvious. Sample trolls have already changed the face of hip-hop. Early rap, like Public Enemy, combined and mixed thousands of sounds in a single album. That makes sense musically, but it doesn't make sense legally. Thousands or even hundreds of samples, under the Bridgeport theory, mean thousands of copyright clearances and licenses. Today, Public Enemy's breakout album, It Takes a Nation of Millions to Hold Us Back, would cost millions to produce or, more likely, would never have been made at all.*

The kicker is that while sample trolls are bad for artists, they're also bad for mainstream record labels. Record labels want to get out new music at minimum cost. But if clearing rights in the Bridgeport world costs a fortune, production becomes that much more expensive, and innovative music that much riskier a bet.

What, if anything, can be done? In the big picture, copyright must continually work to ensure that the basic building blocks of creativity are available to artists and creators, especially as new forms of art emerge. We already know what this means for novelists: freedom to use facts, borrow stock characters (like Falstaff) and standard plots (the murder mystery). For filmmakers, it means the freedom to copy standard shots (like The Magnificent Seven's "establishment shot"). For rap music, it means the freedom to sample. Rap's constant reinvention and remixing of old sounds makes it what it is; now is the time for the copyright system to get that. Vibrant cultures borrow, remix and recast. Static cultures die.

Legal solutions to the sample-troll problem are relatively easy—much easier than fixing the patent-troll problem. First, there's only one appellate court, the 6^th Circuit, that takes the ridiculous position that any sample, no matter how minimal, needs a license. Most copyright scholars think the decision is both activist and bogus—in the words of leading commentator William Patry, "Bridgeport is policy making wrapped up in a truncated view of law and economics." Other courts can easily counter Bridgeport. They just need to say that the infringement rules for sampling are the same rules that apply for the rest of copyright. Dumbledore may resemble Gandalf, but he's no infringement. Similarly, if you can't even recognize the original in a sample, it shouldn't violate federal law to use it.

Congress could also easily act against the sample trolls. All that is needed is a "sampling code": a single section of the law that declares the usage of some fixed amount of a sound recording, say, seven notes or less, to be no infringement of the copyright law. That would give artists a simple rule to live by, while still requiring licenses for big samples that would compete with the original. It's a win-win scenario. With a single line of code, Congress can make this problem go away.

In the end, it's probably wrong to suggest the sample trolls are evil or hate rap music. The trolls simply look for profit, like any business, and are rational and predictable, like the mold that grows on rotten meat. None of these problems would be quite so severe if artists actually controlled their own copyrights. George Clinton's copyrights end up blocking sampling, when he himself favors sampling. "When hip-hop came out," said Clinton in this interview with Rick Karr, "I was glad to hear it, especially when it was our songs—it was a way to get back on the radio."

Copyright is supposed to be the servant of artists, but today that is all too often just a pretense. The vast majority of the nation's valuable copyrights are owned not by creators, but by stockpilers of one kind or another, and Bridgeport is just a particularly pernicious example. We need better devices to keep the control of the most valuable of artist's rights with artists. For, to paraphrase Judge Learned Hand, copyright was born to protect and liberate musicians, but it all too often ends up enslaving them.

Click here to see the complaint in the Jay-Z case.

Correction, Nov. 16, 2006: The article originally and incorrectly stated that It Takes a Nation of Millions to Hold Us Back was Public Enemy's first album. In fact, it was the group's second. (Return to the corrected sentence.)

Correction, Nov. 17, 2006: The article also originally misidentified a sample as from a Public Enemy song—it was from an N.W.A. song. (Return to the corrected sentence.)

Tim Wu is a professor at Columbia Law School and co-author of Who Controls the Internet?

Video: "Amen" Break Documentary

"This fascinating, brilliant 20-minute video narrates the history of the "Amen Break," a six-second drum sample from the b-side of a chart-topping single from 1969. This sample was used extensively in early hiphop and sample-based music, and became the basis for drum-and-bass and jungle music -- a six-second clip that spawned several entire subcultures. Nate Harrison's 2004 video is a meditation on the ownership of culture, the nature of art and creativity, and the history of a remarkable music clip."

Tin Pan Apple, Inc. v. Miller Brewing Co. (1994)

Sampler: Miller Lite Beer Commercial
Sampled: Fat Boys "Stick 'Em"

Watch the commercial here.

TIN PAN APPLE, INC., SUTRA RECORDS, INC., FOOLS PRAYER MUSIC, INC. and MARK MORLES, DARREN ROBINSON and DAMON WIMBLEY (together p/k/a the "FAT BOYS"), Plaintiff, v. MILLER BREWING CO., INC., BACKER & SPIELVOGEL, INC. and JOE PISCOPO, Defendants.

88 Civ. 4085 (CSH), Decided: February 23, 1994

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

1994 U.S. Dist. LEXIS 2178; 30 U.S.P.Q.2D (BNA) 1791; Copy. L. Rep. (CCH) P27,238

Decision by: CHARLES S. HAIGHT, JR., DJ

In this action alleging copyright infringement, Lanham Act violations, and pendent state statutory and common law claims, defendants' motion to dismiss the first amended complaint under Rule 12(b)(6), Fed. R. Civ. P., was granted in part and denied in part in an opinion reported at 737 F. Supp. 826 (S.D.N.Y. 1990), familiarity with which is assumed. Following extensive discovery, defendants now move for summary judgment under Rule 56 dismissing the plaintiffs' surviving claims.

I

Standards for Granting or Denying Summary Judgment

Under Fed.R.Civ.P. 56(c), the moving party is entitled to summary judgment if the papers "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." On such a motion, "a court's responsibility is to assess whether there are any factual issues [*2] to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991) (citing Knight v. U.S. Fire Insurance, 804 F.2d 9 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987)) (citation omitted). The responding party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The non-movant cannot 'escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts,'. . . or defeat the motion through 'mere speculation or conjecture.'" Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (citations omitted). While the party resisting summary judgment must show a dispute of fact, it must also be a material fact in light of the substantive law. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." [*3] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

II

The Copyright Infringement Claims

The Copyright Act furnishes the governing law for plaintiffs' copyright infringement claims. Where proof of unauthorized copying of protectible material rises to the level where no reasonable juror could find otherwise, a copyright holder is entitled to summary judgment on the issue of infringement. Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.), cert. denied, 121 L. Ed. 2d 278, 113 S. Ct. 365 (1992). Conversely, and more pertinent to the present motion, where the similarity demonstrated pertains solely to noncopyrightable material, summary judgment for the accused infringer is appropriate. Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 915 (2d Cir. 1980).

Plaintiffs' second amended complaint, filed after this Court's opinion on defendants' motion to dismiss, alleges in its first claim that the Miller Beer television commercial produced and performed by defendants infringed plaintiffs' [*4] registered copyrights in a number of musical compositions listed in P 16 of the pleading. The second claim alleges that defendants infringed plaintiffs' copyrights in the sound recordings of those compositions.

Subsequent discovery sharpened the focus of plaintiffs' claims. In responses to defendants' interrogatories, plaintiffs now say that the musical composition defendants copied is called "Stick 'Em," and the sound recording defendants copied is that of the same composition. Plaintiffs identify the Particular "musical and lyrical phrases" defendants copied as including, "inter alia, the sounds designated as the 'Brrr' and 'Hugga Hugga' sounds." Plaintiffs' response to defendants' interrogatory no. 5 (second set). The composition "Stick 'Em" is one of several compositions appearing on a video tape made by the individual plaintiffs, professionally known as the "Fat Boys," which at the pertinent times was available for purchase at retail stores.

Plaintiffs obtained Composition Copyright Registration Number PA 229-080 for the composition "Stick 'Em" and Sound Recording Copyright Registration Number SR 59-448 for the same work. Specifically, Registration Number PA 229-080 is for [*5] the work titled "Stick 'Em"; the specified nature of the work is "words & music"; the authors are plaintiffs Morales and Robinson; and the copyright claimant is plaintiff Fools Prayer Music, Inc., "as per songwriters agreement." Registration Number SR 59-448 is on a form the Copyright Office apparently uses for sound recordings; the "nature of material recorded" is designated as "musical"; the title of the work is "Fat Boys SUS-1015 (album)", a reference to the album comprising "Stick 'Em" and a number of other works; and plaintiff Sutra Records, Inc. is identified as both the author of the work and copyright claimant.

The Copyright Act provides that a certificate of registration "shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate." 17 U.S.C. § 410(c). The certificate "establishes a presumption of originality in the work registered." Business Trends Analysts, Inc. v. The Freedonia Group, Inc., 700 F. Supp. 1213, 1231 (S.D.N.Y. 1988). The presumption of originality conferred by a certificate of registration is inherent in the statutory scheme, since only [*6] "original works of authorship" are entitled to copyright protection. 17 U.S.C. § 102(a). See also Rogers v. Koons, supra, at 307 ("Since the [Copyright Act] protects authors' exclusive rights to their works, the cornerstone of that law is that the work protected must be original."). In Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir. 1988), a case involving a musical composition, the Second Circuit said that "on the issue of originality, as compared to the issue of compliance with statutory formalities, it is even clearer that copyright registration created a presumption of validity under the 1909 [Copyright] Act." That presumption applies a fortiori to the case at bar, arising under the 1976 Copyright Act, since "unlike the 1976 Act, . . . the 1909 Act does not say that the certificate of registration shall constitute prima facie evidence 'of the facts stated therein.'" Id. at 1064.

In Koons v. Rogers the Second Circuit, while recognizing that the copyrighting of a whole work "does not mean that every element of it is copyrighted; copyright protection [*7] extends only to those components of the work that are original to the creator," went on to say: "But the quantity of the originality that need be shown is modest - only a dash of it will do." Id. at 307. In Gaste v. Kaiserman the Second Circuit, considering the originality of a musical work, noted that "the originality requirement for obtaining a copyright is an extremely low threshold, unlike the novelty requirement for securing a patent. . . . [A] showing of virtually any independent creativity will do." 863 F.2d at 1066.

The prima facie evidence of copyright validity resulting from the certificate shifts to the alleged infringer "the burden of proving to the contrary." Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 193 (2d Cir. 1985).

These principles are pertinent to the case at bar because defendants contend, at least with respect to plaintiff's composition copyright for "Stick 'Em," that the sounds "Brrr" and "Hugga-Hugga", standing alone, are not protectible. Defendants analogize the "Brrr" and "Hugga-Hugga" sounds "to a drumbeat, or to any other percussion effect." "As such," the argument continues, [*8] "while a particular pattern or sequence of these sounds may constitute original musical expression, a single Brrr or Hugga-Hugga sound, like a single drumbeat, does not." Main brief at 18. Defendants submit an affidavit of Earl V. Spielman, a musicologist, who expresses the opinions that the only "significant similarities" between the copyrighted work and the commercial are these two vocal percussion effects," and that only "a particular pattern or sequence of percussion sounds . . . can constitute original musical expression." Spielman's analysis of the two works causes him to conclude that "the rhythmic patterns created by the respective vocal effects are not similar"; and "because their rhythmic durations are distinctly different from one another there is no indication of copying." Affidavit at PP 8-10.

The threshold issue in copyright infringement cases is originality, not copying. Within the context of the composition copyright, plaintiffs stress that the Copyright Office issued Registration Number PA 229-080 for the "words & music" of "Stick 'Em". They criticize Spielman's analysis as focusing too narrowly on the Brrr and Hugga-Hugga sounds, while disregarding their copyrighted [*9] function as lyrics. Plaintiffs offer the declaration of John Leland, a writer and critic specializing in popular music, who states that plaintiff Robinson, who generates the Hugga-Hugga sound, "was one of the first rap artists to be known nationally for creating human beat box sounds," thereby earning the industry nickname "the Human Beat Box." Leland also says the Brrr and Hugga-Hugga sounds "were uniquely associated with the Fat Boys"; he adds that "I am unaware of any other rap act that used the lyric/sound 'Hugga-Hugga' or the trilling 'Brrr' lyric sound created by the Fat Boys." Declaration at P 16.

When the originality of a copyrighted work is at issue, it becomes a question of fact for the jury to resolve. See the jury charge appearing in 3 Devitt, Blackmar and Wolff, Federal Jury Practice and Instructions (4th ed. 1987) at § 99.04, p. 808 (advising the jury in copyright actions that "[the] first disputed issue is originality," and going on to define that concept). This fact question is withheld from the jury only if the accused infringer persuades the trial court that, as a matter of law, plaintiff's work which defendant allegedly copied was not original and hence [*10] not protectible. The defendant bears the burden of that persuasion in order to overcome the presumption of validity accorded the copyright registration: in this case, registration of the words and music of plaintiffs' work "Stick 'Em. " See Gaste v. Kaiserman at 1065-66. In Gaste Judge Conner submitted to the jury all disputed issues, including that of the validity of the copyright. Affirming a judgment in plaintiff's favor, the Second Circuit held that the trial judge was right to do so, saying of the song at issue: "On the evidence presented by both sides, we cannot say as a matter of law that Gaste's 'Pour Toi' was not original enough to be accorded copyright protection." In Levine v. McDonald's Corp., 735 F. Supp. 92, 99 (S.D.N.Y. 1990), Judge Patterson followed Gaste in denying the accused infringer's motion for summary judgment, holding that the jury could find plaintiff's composition "sufficiently creative to warrant copyright protection."

In the case at bar, I conclude that defendants are not entitled to summary judgment dismissing plaintiffs' composition copyright claim on the ground of copyright invalidity. I hold that a jury could [*11] find that the Hugga-Hugga and Brrr sounds, used as lyrics in the copyrighted work, are sufficiently creative to warrant copyright protection, quite apart from the rhythmic patterns or durations demonstrated by that work and the commercial. These sounds are more complex than the single drum beat hypothesized in Spielman's affidavit, and in that complexity lies, arguably at least, the fruit of creativity. The relatively few cases considering originality in musical compositions do not point clearly in either direction; they are too fact-specific to do so. While they may not prevail, plaintiffs are entitled to test their claim of originality at trial, where they will have the assistance of a jury instruction concerning the registration's presumption of validity. On this motion for summary judgment, having that presumption in mind and, as I must, resolving ambiguities and drawing reasonable inferences against the moving party, I hold that summary judgment on this issue is not appropriate.

The next issue is copying. In infringement cases copying may be proved by direct evidence, a "rare scenario," Rogers v. Koons at 307. "Because copiers are rarely caught red-handed, copying has traditionally [*12] been proved circumstantially by proof of access and substantial similarity." Gaste v. Kaiserman at 1066.

In the case at bar, there is direct evidence of copying that a jury would be entitled to consider. Deposition testimony indicates that defendant Miller wished to promote its beer to younger consumers. An employee of defendant Backer & Spielvogel, Inc., Miller's advertising agency, asked one of the Fat Boys' agents if the Boys would appear with defendant Piscopo in a humorous television commercial for Miller Lite Beer. Plaintiffs rejected that overture out of hand. A Backer employee then purchased a Fat Boys videotape that included the "Stick 'Em" work and made it available to the production team for the commercial. The videotape cover portrayed the Fat Boys in distinctive dress. The Backer employee in charge of production gave wardrobe instructions that Piscopo was to be dressed "as a fat rapper, loosely based on the Fat Boys, a popular black rap group." In casting the commercial for backup artists to appear with Piscopo, the casting agent was instructed to look for black actors "a la the Fat Boys and al la Run-DMC." Run-DMC was another prominent rap group. Its dress and style [*13] were significantly different from the Fat Boys, which the commercial closely resembles. The writer of the commercial acknowledged listening to the music on the Fat Boys videotape to get the "feel of the sound." Plaintiffs' expert John Mahoney, a musician and music producer, submits an affidavit expressing his opinion that the sound track of the commercial "contained material sampled from the Fat Boys, most probably from 'Stick Em.'" Affidavit at P 16. "Sampling" in this context means actually physically copying the sounds from one recording to another.

In addition to this evidence of direct copying, plaintiffs rely upon the similarities between "Stick 'Em" and the commercial in respect of the lyrics (Brrr and Hugga-Hugga) and the sound recording. When portions of "Stick 'Em" are juxtaposed with the commercial, as on an exhibit to the affidavit of plaintiff's counsel Jonathan Zavin, the similarities are striking.

Defendants disclaim any copying and put forward explanations for the evidence that would seem to suggest it. They stress that Mahoney was unable to specifically identify which portion of a Fat Boys sound recording defendants sampled (or copied). Mahoney explains that inability [*14] by the fact that the producers of the commercial discarded the unmixed master tape, which would have permitted a more precise electronic analysis; nevertheless, he adheres to his opinion that sampling of the "Stick 'Em" sound recording occurred. It is common ground that if defendants did sample plaintiffs' copyrighted sound recording, they infringed that copyright, whatever may be said of the composition copyright.

I need not recount the conflicting evidence and contentions at length. The contested issue of copying is not appropriate for summary disposition.

For the foregoing reasons, defendants' motion for summary judgment dismissing plaintiffs' copyright infringement claims is denied.

III

The Trademark Claims

Individual plaintiffs Morales, Wimbley and Robinson adopted the name "Fat Boys" to identify their musical performing group. On application by plaintiff Tin Pan Apple, the United States Patent and Trademark Office issued to the group Service Mark Registration Number 1,351054 on July 23, 1985. Plaintiffs allege that they have entered into license agreements for use of the name "Fat Boys" for numerous products, including clothing and toys; that the Fat Boys have become well-known [*15] for their unique musical and performing style; that the public associates Morales, Wimbley and Robinson specifically with the Fat Boys by reason of their physical size, style of performance and costuming; and that the Fat Boys, by reason of their "message" of abstinence and probity, have created goodwill in their name, performing style, singing style, and identification with an adolescent audience.

Plaintiffs further allege that by copying the Fat Boys style and appearance in the commercial, the acts of defendants

represent a deliberate attempt to misrepresent, mislead and confuse the public and customers of plaintiffs' products and services into falsely believing: 1) that defendants' Commercial for a Miller-brand beer is performed by Morales, Wimbley and Robinson as FAT BOYS; 2) that defendants' Commercial for a Miller-brand beer is performed by Morales, Wimbley and Robinson as FAT BOYS in conjunction with and as back-up musical vocals to defendant Piscopo; 3) that Morales, Wimbley and Robinson, as FAT BOYS, endorse the drinking of beer and, specifically, the Miller product.

Second amended complaint at P 51.

Plaintiffs charge defendants with false advertising, in violation [*16] of the Lanham Act, 15 U.S.C. §§ 1114 and 1125(a) (third claim); and with unfair competition, in violation of § 1125(a) (fourth claim).

Plaintiffs' theory of the case is that defendants, having asked the Fat Boys to do a beer commercial and been rebuffed, deliberately copied the Fat Boys' distinctive sounds and appearances, thereby accomplishing by deceit impressions to which plaintiffs had specifically refused to agree. They assert several claims based on that theory.

Plaintiffs seek an injunction against further broadcasting of the commercial or other imitation by defendants of plaintiffs' music or likeness. They pray that defendants be required to account for and pay over profits derived from the infringing commercial. They also pray for compensatory and punitive damages.

As in the copyright context, defendants deny that they copied the Fat Boys' performances or appearance. They say that the commercial reflects nothing more than generic rappers, and that there was no infringement.

Whether or not defendants deliberately copied services covered by the plaintiffs' registered trademark poses a genuine issue as to a fact that is material under trademark [*17] law. It follows that plaintiffs' trademark claims are not subject to summary disposition.

(a) Claim for an Injunction

Insofar as plaintiffs ask for injunctive relief, they seek protection against future consumer confusion. The "central issue in trade name infringement cases . . . is the same as it is in trademark cases, namely, whether there is a likelihood of confusion." Lang v. Retirement Living Publishing Co., Inc., 949 F.2d 576, 579 (2d Cir. 1991). "Whether a trademark owner receives judicial protection depends on 'whether there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question." Id. at 579-80 (citing and quoting McGregor-Doniger, Inc. v. Drizzle, Inc., 599 F.2d 1126, 1130 (2d Cir. 1979)). Consumer confusion as to source does not require that the consumer "believe that the owner of the mark actually produced the [infringing] item and placed it on the market." Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 204 (2d Cir. 1979). [*18] In that case, involving the unauthorized use in a pornographic movie of a distinctive uniform which "unquestionably brings to mind the Dallas Cowboy Cheerleaders," the Second Circuit said: "The public's belief that the mark's owner sponsored or otherwise approved the use of the trademark satisfies the confusion requirement." Id. at 205. Looking towards trial, the court of appeals added:

Plaintiff expects to establish on trial that the public may associate it with defendants' movie and be confused into believing that plaintiff sponsored the movie, provided some of the actors, licensed defendants to use the uniform or was in some other way connected with the production. The trademark laws are designed not only to prevent consumer confusion but also to protect "the synonymous right of a trademark owner to control his product's reputation." James Burrough Ltd. v. Sign of the Beefeater, Inc., 540 F.2d 266, 174 (7th Cir. 1976) (Markey, C.J.)

In Dallas the court of appeals affirmed the district court's conclusion that plaintiff had established a likelihood of confusion sufficient to justify a preliminary injunction [*19] under the Lanham Act.

In the case at bar Lynda West, an officer of plaintiff Tin Pan Apple, the Fat boys' manager, submits a declaration which, after reciting the refusal of the Fat Boys to appear in a commercial for Miller Lite Beer, goes on to say in P 12:

I was thus quite surprised when I began receiving telephone calls and comments from friends and colleagues several months later congratulating me on having gotten the Fat Boys in a Miller Lite Commercial. Soon thereafter, my office began receiving letters commenting on the Fat Boys' "appearance" in the commercial with Joe Piscopo. Most fan mail is not kept in the regular course of TPA's business and unfortunately these letters were not retained. The same confusion happened, however, while the group was on tour. Fans would often comment on what they thought to be the Fat Boys' appearance in the commercial. The comments ranged from the congratulatory to the derogatory.

Fans of the Fat Boys are members of the public and consumers of the group's musical and vocal services. Their declarations, as recounted by West, manifest a form of confusion closely analogous to that held sufficient in Dallas to justify equitable relief. [*20] n1

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n1 Defendants contend that the Second Circuit's subsequent decision in Pirone v. MacMillan, Inc., 894 F.2d 579 (2d Cir. 1990), defines and limits the holding in Dallas. I do not see that Pirone affects the Dallas rationale in any way. Pirone says of Dallas that the case involved:

a specific arbitrary symbol that had been used over time and had become associated in the public mind with the plaintiffs. The use of the Cheerleaders' uniform . . . might well have led consumers to believe that the owners of those symbols authorized the challenged use."

Id. at 585.

While defendants stress confusion linked to purchasing decisions, the Second Circuit did not say in Pirone that the Cheerleaders would have a viable Lanham Act claim for an injunction only if they could prove that consumers bought defendant's pornographic movie because of the mistaken impression that the Cheerleaders were in some way connected with its production. Dallas holds that a false impression of sponsorship is enough to satisfy the requirement of consumer confusion. Picone does not change that holding.

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Defendants dismiss West's evidence as "self-serving" and "hearsay." Main Brief at 31. Characterizing evidence as "self-serving" is a means of attacking its credibility, but credibility is for the jury. As for hearsay, a witness is entitled to describe an out-of-court declarant's statement of a "then existing state of mind. . ." Rule 803(3), Fed.R.Evid. To the extent that West (or other plaintiff's witnesses') had personal knowledge of what fans of the Fat Boys wrote or said, and to the extent those written or oral declarations show a then-existing confusion on a declarant's part, the testimony falls outside the hearsay rule.

Defendants rely upon this Court's opinion in Resource Developers, Inc. v. Statue of Liberty-Ellis Island Foundation, 1990 U.S. Dist. LEXIS 5877, *16 (S.D.N.Y. May 16, 1990) aff'd, 926 F.2d 134 2d Cir. 1991). But the declaration in that case said no more than "stores . . . were confused and believed that Dettra was officially affiliated with the restoration effort . . ." I held that "this is far too broad and non-specific a statement to qualify as admissible evidence under the hearsay rule." In the [*22] case at bar, the West declaration suggests at least the potential of more specific statements of fans' then existing states of mind which would qualify under Rule 803(3). It is not possible to resolve the admissibility of such evidence on the present record. Appropriate evidentiary rulings may be made at trial.

n determining whether consumer confusion is sufficiently likely to justify an injunction, actual confusion is only one of the recognized factors. The others include the strength of the prior owner's mark, the similarity between the two marks, the competitive proximity of the products, the likelihood that the prior user will bridge the gap, the defendant's good faith, the quality of defendant's product, and the sophistication of the buyers. Lang at 580. Without attempting an analysis of each of these factors on the present motion, I am prepared to say that plaintiffs could prove at trial a combination of actual confusion, defendants' bad faith, and lack of consumer sophistication sufficient to entitle them to a permanent injunction. Summary judgment is not appropriate on this aspect of the case. n2

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n2 Defendants say that the injunctive aspect of the case is moot because they do not intend to broadcast the commercial again. If plaintiffs sustain their claims of infringement, they are entitled to the assurance an injunction will give them.

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[*23]

(b) Claim for an Accounting

Plaintiffs will be entitled to an accounting of defendant Miller's commercial-generated profits if they prove that defendants' infringement was fraudulent. That is so, even if plaintiffs cannot prove lost sales because their services (musical performances) are different from Miller's product (beer). In George Basch Co., Inc. v. Blue Coral, Inc., 968 F.2d 1532 (2d Cir. 1992), a case upon which defendants place a misguided reliance, the Second Circuit, invoking the principle of "deterrence," held that "a court may award a defendant's profits solely upon a finding that the defendant fraudulently used the plaintiff's mark." Id. at 1539. The court's power to direct an accounting in a Lanham Act case derives from section 35(a) of the statute, 15 U.S.C. § 1117(a), which entitles a plaintiff, "subject to the principles of equity", to "recover (1) defendant's profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action." As the Second Circuit held in Basch, a Lanham Act plaintiff may recover defendant's damages even if plaintiff suffered [*24] no damages. The court of appeals explained:

The rationale underlying this holding is not compensatory in nature, but rather seeks to protect the public at large. By awarding the profits of a bad faith infringer to the rightful owner of a mark, we promote the secondary effect of deterring public fraud regarding the source and quality of consumer goods and services.

Id. at 1539.

At the risk of repeating the obvious, whether or not defendants at bar acted in bad faith is an issue of fact requiring trial. Defendants quote selectively from Basch in an effort to persuade the Court that the record negates bad faith as a matter of law. I do not agree. Basch reached the court of appeals after plenary trial in the district court. The district judge directed a verdict in defendant's favor on plaintiff's claim for damages on its trade dress infringement claim because plaintiff "had failed to produce any evidence regarding actual consumer confusion or that Blue Coral acted with intent to deceive the public." Id. at 1535. However, having concluded that plaintiff would be entitled to an accounting even in the absence of [*25] such proof (the point on which the Second Circuit reversed him), the district judge sent plaintiff's infringement claim to the jury under a special verdict. The jury found infringement, but stated that defendant's acts in violation of plaintiff's rights were not "done maliciously and in reckless disregard" of those rights. Id. at 1541.

In short, Basch involved an appeal following full trial in the district court, at the conclusion of which both judge and jury found that defendant had not acted in bad faith, the judge commenting that plaintiff had failed to produce "any evidence" that defendant acted to deceive the public. As noted supra, such evidence is available to the present plaintiffs. Basch furnishes no support for a summary disposition of the issue. Each case "depend[s] on the circumstances," as the Basch court noted at 1541. Plaintiffs' Lanham Act claim for an accounting must be resolved by trial.

(c) Claim for Damages

In addition to plaintiffs' claim for an accounting, Basch is instructive on the claim for compensatory damages. The Second Circuit said at 1537:

It is well settled that in order for a Lanham Act plaintiff [*26] to receive an award of damages the plaintiff must prove either "actual consumer confusion or deception resulting from the violation," Getty Petroleum Corp. v. Island Transportation Corp., 878 F.2d 650, 655 (2d Cir. 1989) (quoting PPX Enterprises, Inc. v. Audiofidelity Enterprises, Inc., 818 F.2d 266, 271 (2d Cir. 1987)), or that the defendant's actions were intentionally deceptive thus giving rise to a rebuttable presumption of consumer confusion. See Resource Developers, Inc. v. Statue of Liberty-Ellis Island Foundation, Inc. 926 F.2d 134, 140 (2d Cir. 1991); PPX Enterprises, 818 F.2d at 273.

In the context of compensatory damages, the element of "actual consumer confusion or deception" requires a plaintiff suing for either trademark infringement or unfair competition "to show that buyers, who wished to buy the plaintiff's goods, have been actually misled into buying the defendant's." G.H. Mumm Champagne v. Eastern Wine Corp., 142 F.2d 499, 501 (2d Cir.), cert. denied, 323 U.S. 715, 89 L. Ed. 575, 65 S. Ct. 41 (1944) [*27] (cited and quoted in Getty Petroleum Corp. v. Island Petroleum Corp., 878 F.2d 650, 655 (2d Cir. 1989), in turn cited and quoted in Basch)). There is no evidence in the present record that plaintiffs are in a position to make such a showing. None of the evidence plaintiffs proffered in response to defendants' interrogatories inquiring into actual confusion comes close to doing so.

Plaintiffs rely on Basch's alternative formulation that a defendant's intentionally deceptive conduct gives rise "to a rebuttable presumption of consumer confusion." Whether defendants engaged in intentionally deceptive conduct is a triable issue of fact. It is not clear, however, that the rebuttable presumption referred to in Basch and the cases it cites for the proposition is applicable to the case at bar. All these cases involve direct competition in the marketplace between similar products. In Basch both parties marketed cans of metal polish. In Resource Developers, Inc. v. Statue of Liberty-Ellis Island Foundation, Inc., 926 F.2d 134 (2d Cir. 1991), and PPX Enterprises, Inc. v. Audiofidelity Enterprises, Inc., 818 F.2d 266 (2d Cir. 1987), [*28] both cited in Basch, the parties marketed flags and record albums respectively. It is not clear how such cases apply to that at bar, where the plaintiffs' services are so different from defendant Miller's product.

It may be, therefore, that defendants are entitled to summary dismissal of plaintiffs' Lanham Act claim for compensatory damages. I make no ruling on the point at present because, for reasons stated elsewhere, defendants' motion for summary judgment dismissing the entire complaint will be denied. The viability of a claim for Lanham Act compensatory damages may be considered in limine prior to trial.

Defendants' motion for summary judgment dismissing plaintiffs' Lanham Act claims is denied.

IV

The State Law Claims

Plaintiffs assert claims for unfair competition under §§ 349 and 350 of the New York General Business Law, and for violation of their rights of privacy and publicity under §§ 50 and 51 of the New York Civil Rights Law. These claims depend for their viability in law upon the nature of defendants' conduct. For the reasons sufficiently stated supra, they turn upon material facts as to which genuine issues exist.

The same is true of plaintiffs' claim [*29] for punitive damages in connection with their state law unfair competition claim. See Getty Petroleum Corp., supra, at 657.

For the foregoing reasons, defendants' motion for summary judgment dismissing the complaint is denied.

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