Fair Use Basics: Tunes and Lyrics

Performing a play written by someone else is not a 'Fair Use' of the script.

Students often get a bad impression from their teachers about what comprises 'Fair Use' under the copyright laws.  Students are taught that if they correctly quote something, and include appropriate attribution to the correct source or author, that the use is academically fair. It's only when students try to pass off something somebody else wrote as their own work that they get in trouble. 

The reason those students get in trouble is the issue of plagiarism. This is a matter of academic ethics -- but not a matter of copyright law. Out in the non-scholastic real world, it doesn't matter whether you include correct attributions or not -- if you include a part of someone else's song, lyrics, novel, poem, advertising copy, or other copyrighted creative work in one of your copyrighted creative works without their permission, you've violated that person's copyright.  Yes, even if you put their name on it. 

But since it's the law, there are some exceptions. Of course. Section 107 of the U.S. Copyright statute provides an exception to a creator’s exclusive copyrights for ‘fair use.’  The fair use provision states that use of a copyrighted work or image  “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

The statutory factors used to determine whether any particular use of a work is ‘fair use’ include: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and(4) the effect of the use upon the potential market for or value of the copyrighted work.”

If you are a songwriter, or a band, it is nearly certain that you are not a duly organized and IRS approved non-profit educational institution.  You write and perform music most likely with the full intention of making money at it. Some people are otherwise gainfully employed or retired and play mostly for free--but this doesn't make them a non-profit educational institution. If you are performing, recording, selling CDs, getting paid for gigs, or playing for free at places like farmers markets where your role is to help other people make money, your music is what the copyright statute means by, 'of a commercial nature.'

Therefore, if you are inserting pieces of other people's tunes, lyrics, novels, poems, movie lines, or anything else under copyright into your music, you will not be able to successfully claim that you were protected by the fair use doctrine. You will be guilty of copyright violations--and you just might get sued. Those re-makes of classic 80s tunes you hear cut into modern hiphop or pop commercial tunes today? Those songwriters purchased a license to do that--or, more likely, the copyright was already owned by the same music industry corporation that did the re-make. 

Find the copyright owner, and get permission. License before you splice. But you've got your own sound anyway--why do you need someone else's?

Non-Standard Venues

I get a chuckle out of those online calendar entries we have to do eight different times now, since all the various social media sites calendars don't talk to each other. And of course, they all ask for different information in a different order (quick, Joe, what's the zip code for that gig we're doing in October...) which bogs it down even further. But somewhere in the template for each one, you're usually asked to check a box indicating whether this is a 'Standard' or 'Non-Standard' Venue.

Standard venues are concert halls, bars and restaurants that have live music events often enough to make it into the calendar's data base. Be warned, if you click 'Standard Venue' and your venue isn't in the database, you'll be asked if you want to add it, and if you do that, you'll be spending the next half hour answering questions about the venue's capacity, street address and zip code, name of the manager, genres of music, whether it's over 21 only, and on and on. If you want to help out the venue--or help yourself out because you play there often so it'll be faster to list your gig next time, by all means go ahead.Otherwise, click on 'Non-Standard Venue' or whatever your particular calendar's equivalent nomenclature may be.

Non-Standard Venues are all the other millions of places in the world most of us play on a regular basis, especially bands that are just starting out or bands that play things other than rock covers. Uncle Mike's barbecue, farmers markets, art exhibits, elementary school arts programs, summer camps, conference dinners, weddings, and the Burlington Vermont City Marathon, where our friends Longford Row just played yesterday and got fantastic t.v. news coverage in the process, are all 'Non-Standard Venues,' in online calendar parlance.

Don't let the arbitrary name fool you--non-standard venues can often wind up being as lucrative and worthwhile as standard venues, if not moreso. People at bars and restaurants are often spending their money on, well, drink and food, not CDs. Folks at a farmers market, coffeeshop or street fair are there to spend money but haven't made up their minds on what yet, and more importantly, they are happy to stop, linger, chat, pick up your business card, remember your name and look at your website or Facebook page later. Unless you're headlining at a music hall in a community renowned for its support of musicians, that community arts walk gig might just be the best one you've played all week.

What's the most surprisingly successful non-standard venue you've ever played at?

Tribes: Build Your Band Clan

A book review in a band blog? I promise this one won't bog you down. It's cheap, short, and it helped jell a lot of things that had been rumbling around in my brain about marketing a band. Author Seth Godin has published one hell of a lot of quick management and leadership books. This one puts leadership in the context of the new marketing environment that exists in the world of global instantaneous communications. Long and short of it: You need to build a tribe by defining commonalities of interest and then creating a forum for folks who share those commonalities to communicate with one another. It's an outgrowth of branding--or takes branding to a new level, one that focuses on the people who define themselves as those who share and partake in your product -- i.e., your fans -- just as strongly as it focuses on the product itself -- i.e., your music, CDs, videos etc.

Pick it up, read it on the beach, see if it resonates with you. Rock on, and lead your people!

Niche Marketing: Define Yourself

Jazz pianist.
Irish pub band.
Gypsy dance music.
Cajun. Zydeco.
Bagpipes--like the Catamount Pipe Band in the photo.
Cowboy ballad singer.
Love-song duets.
Classic rock covers.

Is marketing your music in a niche liberating and lucrative, or does it restrict your gig and development options? I tend to think that clearly defining your sound and consistently marketing to venues and audiences that connect with that sound is a more successful strategy than trying to be all musical things to all people, no matter how talented and diverse your musical skills may be.

My band partner and I both have long experience in rock bands, though mine were more garage party bands and he ran a serious bar band circuit in Connecticut some years ago. I came through a school district with a huge music program and have lifelong classical orchestral and concert piano training, as well as jazz band. I continue to love jazz and blues, and write copious quantities of jazz and country blues ballads.

We occasionally slink in a bluesy piece to close out the night, or if we see that there are people up slow dancing we might segue a few of those into the set spontaneously. But otherwise, we stick with being an Irish music band. 

We've even taken this one step further in defining who we are to distinguish ourselves from the slate of other Irish bar bands out there. We refer to our sound as The Music of Irish America, with an emphasis on the immigration experience. We also market specific historic music programs, playing authentic 19th century music at Civil War encampments and re-enactment events, and music of the early 20th century immigration era at history fairs and Irish cultural organizations. We have another specialty program of music based on Irish poetry and literature, which we perform at bookstores and writer's conferences.

Granted, these programs won't get us booked at the House of Blues, but there are thousands of bands who fit the House of Blues' performance niches--and most of them can't play where we do. Remember September rocks the legendary Toad's Place in New Haven, Connecticut, a venue which probably would not ever call us up, but, awesome as they are, they probably wouldn't work in the coffeehouse circuit that we play. An upscale resort or martini bar won't likely hire us unless there's an Irish-themed event, but they might well hire our friend Gena McGuire which is fine for us, and she probably doesn't get a lot of calls to play Half-St.-Pat's parties, either.  We all give up some options but gain others.

No matter your musical genre, it is important to both INCLUDE yourself in a clearly-defined category of music that potentially listeners and venues will understand and relate to -- rock, Celtic, klezmer, whatever--as well as to then DIFFERENTIATE yourself within that category to demonstrate which points you excel at, which is why folks should listen to you. If you are a Southern rock band, you don't want to waste your time marketing to folks who listen to nothing but opera, but you also want to tell Southern rock fans --and perhaps fringe cross-over folks like fans of classic rock, rockabilly and heavy country--why they should sit up and take notice of you.

Tell them who you are--and play your heart out.

When to Sue

You show up at a gig you booked 5 months before. You've spent about ten hours of time promoting this gig, posting it to all your social media pages, designing and printing out a  poster and mailing it to the venue and having your street team plaster paper around town, creating a Facebook event and inviting everyone on the planet whose name and page you could creep up. You practiced, you wrote up your setlist, you packed the truck, you drove over an hour to get there. 

But when you arrive you notice your posters aren't up. The hostess winkles her nose in confusion and says, No, we're not having a band tonight...  Finally the manager comes out and says, Oh, I thought I emailed you. We've got a private party here tonight, guys, sorry. Shoot me an email, we'll do it some other time. 

Or, in a move similar to what just happened to me, you show up and find out the venue went out of business the night before--after having booked you to play a once a month slot for a year.

Fact is, you could legally sue these venues, and in a perfect world, that would probably be the appropriate way to ensure a just solution. Assuming the dollar amounts involved were under several thousands of dollars, depending on your jurisdiction, you could even sue in small claims court, which is inexpensive and easy to do without a lawyer. 

You could probably sue, successfully, on two legal theories that go hand-in-hand. One is that you had a contract with the venue, that is, a meeting of the minds and agreement that you would play on a certain date for X amount of time, and the venue would provide... whatever the venue was going to provide. Space to play, listing in the paper, a paycheck, a tip jar, a free dish of ice cream. As long as whatever the venue was going to provide had value--even an uncertain value, like a tip jar--then this was an agreement to perform a service for a certain value, which means it was a contract. 

The other similar theory is that you reasonably acted in reliance on the venue's representations. You expended time and money, and declared yourself unavailable for other potentially lucrative engagements, because the venue promised you could play there that night. 

Either way, you've been wronged and it cost you time, money and opportunity, and it is legally appropriate for the venue, as the wrongdoer, to have to compensate you for that. 

So what's the downside? In the case of the venue that remains open, the downside is you'll never play there again if you sue them. But that might not be a bad thing. In the case of the closed venue, well, you weren't going to be playing there anyway. But in a community where restaurant and club owners know each other, socialize together, or where chains of bars are owned by the same management company, you may also find yourself locked out of a larger number of potential venues--blacklisted by the management. 

Ethically, this is just plain wrong. You got screwed over and, as a business, should be able, in a business-like manner, to place an honest claim for your compensation before the courts. And you might just want to do that. Just be aware that it runs a risk of retaliation or being shut out of other things, and that might make the tough life of booking gigs even tougher. You'll have to weigh the pros and cons and make that decision for yourself.  Talk to other bands, for starters -- if this venue has a bad rep for continually screwing bands over, you may just want to go ahead and file for compensation under the theory that someone needs to make them realize they can't keep getting away with it.

Rock on your rights--you don't necessarily have to let them walk all over you.

Visual Communications: Your Band Image

What's the first thing that springs to mind when you think of Kiss? Elvis Presley? Madonna? Boston Symphony Orchestra?

What your brain probably saw first, before it located an associated audio file on your neural CD shelf, was face makeup, a white sequined suit and sideburns, a pointy-cupped bustier, and black and white tuxedos. For my all-time favorite band in the world, Vermont's own bagpipe rock band Prydein, it's kilts with hiking boots and polo shirts -- and if that doesn't scream 'Vermont bagpipe rock band' then I don't know what would.

Point being, as I tell my public speaking and communication ethics students on day one of their classes, a huge portion of human communication is visual. That's the irony of our rapidly developing communication technology lines like email, texting and Twitter--it eliminates the visual component of the communication, vastly increasing the potential for misunderstanding and conflict. Only the advent of emoticons let you know that when I call you such a jerk :) that I'm just teasing you and won't really flatten your tires while you're at work so you miss your date with that other girl.

Most up and coming garage bands and gigging party-rock bands have a guitar player or two, a bass player, drummer, maybe a separate vocalist, and they all wear blue jeans and various t-shirts, often with dumb or cutesy logos on them. While this channels The Doors visual mojo, remember that the Doors weren't doing the same cover sets as everyone else, they were doing mind-shatteringly new original material and had Jim Morrison's voice and poetic vision. If you've got that level of creativity, originality and drive, so that your audience--including industry spotters--can't possibly confuse you with anyone else six months later when they are trying to remember which band in the night's showcase did that really pretty rendition of Georgia On My Mind, then by all means stick with the jeans and nondescript t-shirts.

If you want an instant mental association with you and your music, however, think about what you look like and choose something unique and consistent to create an outstanding, memorable visual image.  My current band, O'hAnleigh, plays in a niche genre of Irish-American music, with an emphasis on historical music of the Civil War and Immigration eras. We lean towards costuming with a variety of props that scream Irish and Folk -- lots of green, capes, caps, suspenders. For our first CD cover we shot on a windswept hill overlooking nearby Lake Champlain--and people always ask us where in Ireland the picture was taken. On our second CD cover we wore 19th century attire and shot on a set of railroad tracks. We usually wear quite similar clothes to perform.

It can feel silly to costume up to play a gig, but it is critically important. Our CD covers and the clothes we wear to gigs instantly convey to our audiences who we are and where we are from and what we stand for. A bunch of folks in jeans and tshirts against the ubiquitous brick wall favored by so many young rock bands conveys nothing to the observer about what they can expect to hear when they listen to the tracks. It does not convey visually what you stand for, where the heart of your music comes from.

You don't have to adopt a band uniform of powder blue tuxedos with ruffly shirts--though dang, that really would be memorable if you're ballsy enough to pull it off! But anything that creates an integrated image and conveys some of your substance through that image will set you far apart from the usual cover-band pack. When the eyes and brain are attracted by your unique visual image, your music will receive more attention and be remembered longer than if the eyes and brain glossed over you, already relegating you to the same old-same old pile before you even started playing. It can be simple--try blue button down dress shirts just for grins and jollies--and need not be expensive. But if you're ignoring your visual image, you're ignoring the vast majority of your potential to communicate.

Rock out, and look good.

Copyright -- Lessons from The Lion King

The tale has become legend in the music industry, particularly in the folk music community. In 1939, Solomon Linda recorded an improvisational song called Mbube at Gallo Records in South Africa. The song followed patterns of traditional folk music in the region, but was an original work, with Linda's choir The Evening Birds providing a deep compelling chant of low harmonies under Linda's high melodic tones.

The copyright for the song was transferred to Gallo Records, and the piece went on to be recorded by the Weavers, Pete Seeger, The Tokens and many others, evolving as it went, with changes in lyrics to make it more pronounceable by western performers, more understandable to western audiences, and more comfortable to listen to in western musical genre patterns. Along the way, many of these performers recorded their own copyrights of their versions and arrangements of the song.

Fast forward, and of course the song is now The Lion Sleep Tonight, the theme song of Disney's Lion King, playing on Broadway, in movie theaters and home DVDs all over the world, as well as in chips in kid's lunchboxes, toothbrushes, stuffed animals and greeting cards. This 1939 original folk music recording is now worth millions, if not billions, of dollars. It is the auditory trademark to Disney's Lion King empire.

Solomon Linda died in 1962, leaving not enough money for a gravestone. He had lived on virtually nothing, with two of his children dying in infancy due to lack of food and other deprivations of poverty, according to a New York Times interview with his daughter Elisabeth Nsele. Solomon's other daughter, Adelaide, also died of AIDS, unable to afford life preserving medical treatment.

Solomon Linda had been paid, 87 cents, by Gallo Records when he originally recorded Mbube. Years later, he did receive occasional payments from The Richmond Organization, the publishing house which published the Weaver's version of Wimoweh, as the song was called while it was being recorded by various U.S. folk artists. Disney did obtain a license from Abilene Music for the song The Lion Sleeps Tonight, but how the rights passed, if indeed they did, from Solomon Linda to Gallo to The Richmond Organization to Abilene is a bit obscure.

Eventually, Solomon Linda's remaining heirs sued Disney, claiming that under the law in effect at the time, the copyright Solomon Linda had signed over to Gallo Records reverted to him and his heirs after 25 years. The Linda heirs, Disney, and the various publishing houses claiming rights entered into settlement for an undisclosed sum. It is a somewhat happy ending, though it took a painful and difficult path to arrive at it.

Lessons learned:

--When you write a song, you have no idea where it is going. If your song is genuine, heartfelt, original, and in your own unique voice, expressing a culture and emotions and a vision that only you can create, it may well take on a life of its own and become larger than you could possibly imagine. Treat each song as an infant that might well grow up to be the most well-known and recognizable song in the world.

--Your song may well succeed long after your death. Ensure that your copyrights, publishing contracts, and your estate plan take into account any successful revenue and song placement after your death.  Don't forget to specifically devise your copyrights to your heirs, or they may get lost in or attributed to the residue of your estate rather than left to your children or other intended heirs.

--Don't sell the copyright to your song for 87 cents, even if you are starving. This is a tough one. When you need the cash, and cash is offered, it seems well worth it. Just be aware before you take the offered paltry sum for a composition or recording that you may well have to just walk away in the future while your song rakes in millions for someone else. It's a risk, a gamble, and only you can make that decision--but make it with your eyes wide open.

--Track and enforce your copyrights continuously. More on this in the next post....   in the meantime, Rock, Record, and Register your copyrights promptly.