Friday, March 13, 2015

Thicke shoud appeal, but yeah--he asked for trouble.

...Thicke sued the Gaye estate first.

I didn't comment on the recent judgment against Thicke, but not co-writer Williams, when it was fresh news because I didn't think that was the end of that story.  As I've said in a much earlier post, "look and feel" isn't a copyright argument, it's a trademark argument, and besides, copyright law provides coverage for derivative works.

But Thicke & Co. messed up by a pre-emptive lawsuit , which wasn't smart.

The link I provided goes to an NBC report/commentary on the subject because it has come to my attention, via Twitter, that MSNBC host Chris Hayes, has been in the process of taking this up as a sort of pet cause, and from what I've seen thusfar, he's making a case similar to what I would have, in Thicke's defense AND based on precedent rulings.

What causes copyright infringement is exact copying--not, as someone on NPR put it, imitation of a vibe.  So far I have yet to hear a media person cite derivative work copyrights, though, and a parody exemption (yeah, Blurred Lines wasn't a spoof of Got to Give It Up, but it was a spoof, period).

The jury got wrong instructions from the judge if they were told that "look and feel" was a proper copyright argument, and if Thicke appeals, that would be sufficient grounds for an appeal right there. But what's curious is that Williams appears to be getting off the hook even though they were supposed to be co-writers.  Improper application of penalty would be another good reason for an appeal, but only if "guilt" were admitted to.  But there's no guilt here, actually.

A better case of outright plagiarism occurred when the Columbia label and Morey Amsterdam got sued over "Rum and Coca Cola". Morey wrote the lyrics, alright, but he stole the music from central America.  And lost.  Columbia was ordered to destroy the master recording (Abe Lyman was the performer, and I used to have a copy of that performance, as it happens; it got lost in the shuffle in Arizona, though).  Couldn't sell that tune anymore.  That didn't keep the Andrews Sisters from reviving it on a different label, on which Morey Amsterdam STILL got sole credit for writing it.

Word to the wise, Marvin Gaye Estate: a tune that's catchy enough will survive your efforts to squash it.  It's just a matter of time.

mini-UPDATE: whilst tuning in to All In with Chris Hayes, interviewing the percussionist from Got To Give It Up, Jack Ashford--claiming an original sound with a ...what did he call it? a hotel board? ... which isn't original in Australia, where it's called a "wobble board".  It was first heard in the States in the 1960s via Australia, via Rolf Harris, in the tune "Tie Me Kangaroo Down, Sport".  Seems to me this bloke could be sued now, for using it in the second part of Got To Give It Up.

By golly--YouTube yanked Jimmy Fallon's version that I embedded in an earlier post, too. Good thing I have a home copy of that. It'll be back.

Pi Day Pushbacks: I've been listening to the pro-Gaye arguments and find, quite frankly,  a lot of legal shortcomings in those, like how Gaye died almost penniless as if he's the only denizen of the recording plantation industry to do so. Writers and performers exist only to enrich the big boys because that's been the tradition and Gaye's no different. I watched CSPAN's replay of the Senate hearing on music streaming/copyright "reform" and found the big boys claiming that they actually protect such interests when they don't really.

Playing the cowbell constitutes a copyright infringement? Then so does playing the wobbleboard and Gaye's just as guilty.  And he's guilty of robbing the Isley Brothers, too.

Late May UPDATE, Richard Prince Edition: ...similar to the UPDATE I posted in the Auntie Beeb post...I don't know that it's such a "landmark case" as it's been billed, but it's certainly a big deal and it's certainly a Fair Use argument I thought was more of a Derivative Work argument rather than Fair Use.  I got into a somewhat heated debate with some lawyer type on Twitter about it and he was trying to say I was wrong when in fact we agreed--that the instance shouldn't have made a Fair Use claim in the first place, and that we were both astonished as all get-out that the argument actually persuaded a judge.
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