Q: I’m a documentarian. If I were to record a live show as part of a documentary — audio and visual — am I free to use it even if there’s live music being played in the background?

A: Look, I’m no math magician, but one of the things I always liked about math is that it’s a world of definitive answers. In my simplistic view, the world to a mathematician is one big black and white cookie. It may be a complicated black and white cookie, but it’s black and white nonetheless.

I, for some reason, chose to be a lawyer. In the world of law, nothing is black and white. It’s all grey. And if we’ve learned anything from grey gooMay Grey, people who spell grey “gray,” and Grey’s Anatomy, it’s that grey sucks.

Unfortunately for us lawyers, most people assume that the law is black and white… that there are simple yes and no answers to legal questions. But there rarely are. Lawyers are paid big bucks to always find a counterpoint to every point raised by their opponent — and counterpoints usually exist. To make matters worse, sometimes legality and reality diverge. Even if you find yourself on the right side of one of those rare black and white legal situations, it may not matter unless you’re willing to pay a lawyer to enforce your rights, or defend you, in court. Proving you’re right, even when it’s painfully obvious that the law is on your side, can be an expensive endeavor, especially if the party on the other side has money and a bad attitude.
Continue Reading Q&A: What Copyright Rules Apply if I Record a Live Show for My Film?

It’s Friday, Friday
Gotta get down on Friday
Everybody’s lookin’ forward to the weekend, weekend

Yesterday was Thursday, Thursday
Today i-is Friday, Friday (Partyin’)
We-we-we so excited
We so excited
We gonna have a ball today

Some people think that Rebecca Black’s “Friday” may just be the worst song in recorded history (a campaign no doubt spearheaded by Right Said Fred and the Baha Men). It also has the tendency to burrow in one’s ear like those little worms from Star Trek II: The Wrath of Khan, which means that once you hear it, you’re only going to be able to get it out of your head by replacing it with a few choruses of MMMBop. And so, in the age of Google, YouTube and Twitter, this horrible yet horribly catchy song and its accompanying music video — both of which probably should have been confined to Black’s family and a close circle of forgiving friends — have now been seen and heard by over 80 million people.

But wait, there’s more: “Friday” now appears to be at the center of a legal showdown over who owns the copyright. Some of you may be thinking: who would admit to liking this song, let alone owning it? But, as they say, 50 million Elvis fans can’t be wrong. And when you have a song that people are paying for just so they can talk about how bad it is, well, my friends, now you’ve got something worth fighting over.
Continue Reading Copyright Battles on “Friday” Are Not Fun, Fun, Fun, Fun

One of the joys of living in the DVD/Blu-ray age is that TV fans can easily relive their most joyous television experiences, with series that range from the iconic to the obscure. Megahits like The Simpsons andSeinfeld are obviously readily available, as are cult favorites likeFreaks and Geeks and Arrested Development. Even less iconic one-season-wonders are available for home viewing consumption, like Greg the BunnyStudio 60 on the Sunset Strip, and my personal favorite,Square Pegs, complete with New Wave soundtrack and a pre-Sex and the City Sarah Jessica Parker as nerdy high schooler Patty Greene.

But given the hundreds of shows to choose from, do you ever wonder why some of the most popular series, like The Wonder Years are AWOL on home video?

As with most questions I’m asked (and this can be problematic when my wife wants to know where I’d like to go to dinner), the answer is copyright law.
Continue Reading If You Want to Know Why Your Favorite TV Show Isn’t on DVD, Blame It on the Music

You may not know it to look at me, but I have a very macabre sense of humor. I adore the books of Edward Gorey and, in particular, The Gashlycrumb Tinies, a spot-on and (for those who are into tragic juvenile demise) hilarious parody of children’s ABC books in which each of the rhyming couplets recounts various unusual ways in which children have met ghastly fates: “A is for Amy who fell down the stairs. B is for Basil assaulted by bears. C is for Clara who wasted away. D is for Desmond thrown out of a sleigh…” (Not that I’m ever bored at work, but I’ve had a photocopy of “N” posted on my computer for years: “M is for Maud who was swept out to sea. N is for Neville who died of ennui.”)

I’m also a huge fan of Shockheaded Peter, a nightmarish and (again, for those who love young children meeting ironic fates…should my own daughter be concerned by this?) hilarious spectacle/stage production based on a 19th Century German book of children’s cautionary tales by Heinrich Hoffman, in which rude and naughty children all meet gruesome, yet well-deserved ends. Take, for example, “Fidgety Phil,” the tale of a boy who refuses to sit still at the dinner table and is impaled by cutlery when he pulls off the tablecloth at dinnertime. Or “Snip Snip,” in which an incessantly thumb-sucking boy bleeds to death after an evil tailor cuts off his thumbs (his mother reacts simply by saying toldya so!). The last line of virtually every song concludes with the matter-of fact sentiment: “And he was DEAD.” “And she DIED.” The end. You can imagine what happens in “The Dreadful Story of Harriet and the Matches”…

Well, remember the Troubling Tale of the Two-Steppin’ Toddler? No, it isn’t in the Second Act of Shockheaded Peter, but it certainly qualifies as a Litigation Cautionary Tale in my book.

This Dreadful Story — or, as it is more commonly known in legal circles, the Lenz v .Universal case — began with a dancing baby. We’ve covered this ground before, but let’s review the highlights:
Continue Reading Who’s Afraid of the Big Bad Privilege?

As the mother of a 5th grader, I am well-versed in Justin Bieber.

I’ve been to his concert, and I enjoyed it. I know his songs, and maybe I’ve been caught letting out a “baby, baby, baby” or two. I even know that his mother’s name is Pattie and his favorite color is purple (somewhere Prince has to be saying to himself, “find your own color!”). And, of course, I shared a moment of outrage with my daughter when Justin was robbed of his Grammy by Esperanza Who? I often feel like I know Justin Bieber like I used to know Duran Duran. (For the record,Nick Rhodes was way cuter than Simon Le Bon. Quite a scary thought now, though…yikes!) The swanky hair, the smile, the dance moves, whatever “it” is, he’s got it. Even my four-year-old twins giggled with excitement as they watched Justin perform at the Grammys with “The Karate Kid” (and I don’t mean Ralph Macchio, which would have been about equally entertaining but ten times creepier).

Last week, in particular, was huge in Bieber Land. He performed at the Grammys (daughter was there, check), his inexplicably 3D biopic Never Say Never premiered nationwide, complete with a “purple carpet” Los Angeles premiere (daughter attended private advanced screening, check), and Glee aired its Justin Bieber Experience episode (come on, it’s Glee, mandatory check). Darth Vader covered his biggest hit in spoken word. Over the weekend, he won the MVP award at the NBA’s annual celebrity game (beating out NBA Hall of Famer Scottie Pippen). A few days ago, I even saw a 50-something-year-old man at a bar scrawl “(Baby x 3) + Oh” on his cocktail napkin, then hand it to a friend who, with a few flicks of his pen, made it “(Baby x 3) + Oh No.” And Bieber boasts the best nickname for his obsessive fan-base — Beliebers — of any pop act since Clay Aiken (anyone else rememberClaymates?). What could be wrong with any of that?

More than a certain group of crazed Beliebers who attended the recent the Orlando VIP premiere of Never Say Never could have ever imagined.
Continue Reading Could a Bunch of Crazed Teenage Justin Bieber Fans Actually Be Felons? Never Say Never

Over the past several months, my husband and I have been listening, along with our eight-year-old daughter, to the Harry Potter books on audiotape. (By the way, even if you’ve read the books, you owe it to yourselves to buy/download/rent the audiobooks — Jim Dale totally rocks). We are currently in the final stretch and are more than half way through Book 7; we also have a family pact that none of us will cheat and continue ahead unless the whole family is in the car together, collectively slogging through L.A. traffic and ready to listen.

Of course, I’m bouncing off the walls, dying to know how the story ends — who wins, who loses, who lives, who dies. (Okay, stop jeering…yes, I am the only person on the planet who doesn’t know what happened at the end of the series. And thestatute of limitations on spoilers has long since passed. I get it. But pretty please, find it in your hearts not to ruin the ending for me by posting it in our comments section.) [Ed. Note: Instead, please enjoy this collection of unrelated outdated spoilers: Bruce Willis was dead the whole time. Vader is Luke’s father. Dil is actually a dude. It was earth all along. Soylent Green is people. Norman’s mother is dead.] Of course, if I was a cold-hearted mother and wife, I could keep listening or even just fast forward to the end, just to find out what happens. Don’t worry, I won’t — because I promised (and because my commute is less than 5 minutes).

Serendipitously, the recent internet chatter surrounding Pink Floyd’s dispute with EMI coincided with the timing of my Potter predicament, and it got me wondering: are my familial contract and my motherly moral compass the only obstacles precluding me from jumping ahead and listening to the last track of the CD? Could J.K. Rowling herself somehow dictate the order in which I read/listen to the details of her story? Pink Floyd apparently thinks so.
Continue Reading All in All It’s Just Another Band Selling Out

She’s got a number one, chart-topping single. She’s currently selling out stadium concerts, and has an increasingly popular Facebook page. She gives Justin Bieber a run for his money in terms of screaming, adoring fans. Her name is Hatsune Miku, and she’s taken the Japanese music scene by storm. She’s even beginning to develop an international following, and has now set her sights on the U.S. (parents, watch your preteens). She’s a record company’s dream: she never whines or complains about underreported royalties, and she never cancels her tours to check into rehab.

Oh, and one more thing — she isn’t real.

I don’t mean fictional like Hannah Montana. Or a poseur, like, well, Hannah Montana (err, that’s Miley Cyrus, of course). I mean she really, truly isn’t human.
Continue Reading Danger, Will Robinson: Here Comes Miku

There’s been a new development in the Troubling Tale of the Two-Steppin’ Toddler — or, as it is more commonly known in legal circles, the Lenz v .Universal case. Our regular readers are familiar with the facts: back in 2007, loving mom Stephanie Lenz posted a 29-second YouTube clip of her adorable tot dancing, with Prince’s “Let’s Go Crazy” blaring in the background (I actually think he’s just running around the kitchen pushing a Fisher Price walker, but I’m no Carrie Ann Inaba). A few months later, Universal Music had the video removed, claiming copyright infringement. Lenz fought back (Hell hath no fury like a mother scorned), claiming fair use of the copyright, and filed suit in the U.S. District Court for the Northern District of California for misrepresentation of a DMCA claim. Since then, Mega-Mom has scored several victories, surviving a motion to dismiss in 2008 and knocking out certain of Universal’s affirmative defenses earlier this year.
Continue Reading The Doctrine Formerly Known as Fair Use

They say the first step to recovery from addiction is to admit that you have a problem. Well…my name is Rachel Valadez, and…I’m a Gleek.

The hideousness of that term aside, the show has been a favorite of mine since it debuted in May 2009, enjoying a hallowed status as the one show a week for which I regularly give my DVR a rest and (gasp!) watch live (simultaneously reintroducing me to the exhilaration of trying to get a glass of wine and a snack during a single commercial break). But this post isn’t about trying to convince you that Glee is so much more than re-imagined karaoke music videos (it is), or that a show where the characters spontaneously burst into song is capable of actual character development and witty, self-aware humor (check and check). Instead, I thought I’d use my first of twelve steps to see what practical, entertainment law related lessons I could Glee-n (sorry, I get one) from this pop-culture juggernaut. [Ed. note: groan.]
Continue Reading Glee-ful Evolutions in Copyright and Distribution

Q: I shot a spec pilot in order to showcase my writing/directing talents. In it I use popular and current hip-hop, rock, and pop music. I am not showing this pilot for money — I’m distributing DVDs to production companies and studios, and screening it to generate buzz about my TV series and get a deal (so this project is not to generate revenue directly). Can I use this music without getting clearance or paying ASCAP fees?

A: No. These songs are protected by copyright. Copying them without a license is copyright infringement. Just about any original work is protected by copyright, and in most cases you can’t use it without a license.
Continue Reading Q&A: I Shot a Spec Pilot Using Current Music…It’s Not for Profit, Do I Need to Get Clearance?