Copyright

Achilles Last Stand

Led Zeppelin will be heading back to court for more Stairway to Heaven litigation! Rumor has it paid provocateurs dressed as 70s stoners have begun massing near elevators yelling How Many More Times? at unsuspecting judges. Undeterred, a federal appeals court ruled that a 2016 trial that found in favor of Zeppelin contained inappropriate jury instructions and also erred as it didn’t allow for the “stolen” song, Taurus, to be played during the proceedings. Michael Skidmore, who represents the estate of Taurus writer Randy California, is goin’ all YOUR TIME IS GONNA COME!:

“Skidmore argued that not playing the original Spirit recording worked in Zeppelin’s favour. He said that the jury should have been able to monitor Page’s demeanour while listening to the song that he allegedly ‘stole.'”

Attorney Francis Malofiy will once again be representing Skidmore and the estate and he’s a guy who doesn’t know the meaning of limits! He had his license suspended because of his courtroom antics during a previous trial involving Usher! He incurred more than a hundred sustained objections and multiple GTFOs from Judge R. Gary Klausner in the first Led Zeppelin trial! Who knows what he has up his sleeve this time? Guys who like loud, red ties are unpredictable!

Led Zeppelin has the obvious advantage in this fight. They’re wealthy, they have an army of high-powered lawyers, they have their stellar musical reputation and they have a legion of dedicated fans who are ready to go to war to support their favorite band. But how much will all of that help them in another trial is hard to call. They won’t enjoy some of the advantages that won the case for them the first time around. As we all know, with the legal landscape mood of the United States where it is now, anything is possible!

The Guitar Cave is trying to maintain neutrality because I totally believe in the jury trial system. As a matter of fact I’ve been in the jury system a few times myself. A few years ago I was juror #7 in a criminal trial and found the experience to be deeply moving, interesting, and engaging. I felt like a REAL AMERICAN when it was over! Naturally, in order to successfully mediate a disagreement between two parties in a civil trial, it is necessary to be completely unbiased and have as much information as possible. It would be easy for me to say, “I’ve been listening to Led Zeppelin since the 70s and they have given me many moments of rocking great pleasure, so screw all of these people trying to get money or credit out of the band.” But I’m not gonna do that because that would be presumptuous and not respectful of our judicial system. And…as you will see, this is shaping up to be a GREAT STORY! and who doesn’t love one of those?

There is much at stake: a 2008 deal between Plant, Page and Warner/Chappell Music gives the songwriters $60 million over 10 years for the company’s right to use “Stairway” and other songs from the band’s catalog. All of that cash and the legacy of one of the most famous rock songs of all time is nothing to sneeze at obviously. Prior to the first trial I had already mused on some possible outcomes and I was actually pretty close…not that the case was that hard to call. At least that is what I thought then. Some wildcards have entered the picture y’all! I said at the time, (2014) I thought the idea that the A-minor intro that is the basis for Stairway to Heaven/Taurus was not unique in music history because I was pretty sure something close had to have existed previously. I cited the great 18th century classical guitarist Fernando Sor as an off-the-cuff example. That was basically Led Zeppelin’s claim as well and without having to supply an accurate exact copy of that guitar part, the jury gave them the victory. But Malofiy successfully argued these issues with the first trial and that is why he is getting another crack! A new and better trial! So I think we need to take a look at this guy because that’s a pretty impressive thing he just did. I did some internet sleuthing and a picture emerges of the archetypal “scrappy underdog”. Consider that Malofiy

What a pair of balls! This is a guy who’ll do anything! He filed for trial setting in Philadelphia because Zeppelin played the Live Aid concert in 1985! LOL! He’s a musician who played gigs and got in a fight and KAPOWED! the other party and took the stand in his own defense to stay out of prison. And won! He used the Zeppelin font on his petition for a new trial! LOL! You can see it here. I think, given what we have learned from this very basic research, we can ascertain that Malofiy is a rock and roll, 2000s version of this guy:

WeWe wewe WeweWeweWewewewe (That’s the first couple bars of the Rockford Files Theme. Anyhow…Dude…I am sold. Seriously! This is gonna be a battle for the ages! Remember when Rockford would, like, print up a business card in his car and then go into some office and lie through his teeth about everything and then get in a fight, kick somebody’s ass and the go downtown and yell at Sgt. Becker? That’s totally what this guy does too, except when he prints out business cards he uses this font and they look like album covers. This case will pit newRockford against Jimmy Page, a guy who has been a bonafide wizard since the 1970s, or maybe even the 1400s! I. Don’t. Know. I’m literally shaking with excitement right now. Jimmy might turn newRockford and all of his friends into newts! Or maybe they have anti-newt repellent. They’d better get it if they don’t, I’m just sayin’! Hopefully, newRockford has a cast of friends besides lowrider-driving guy, you know, maybe some neo-pagan witches, or an Angel Martin or Beth Davenport type who owns or works at one of those stores where you can buy crystals and other paraphernalia to keep bad spells and hexes and junk at bay. He better wear garlic necklaces every day of the trial ’cause Zeppelin won’t be screwing around this time! Stairway to Heaven was voted the most popular song on the radio for 30 years running or something. I’m sure it has imbued Jimmy and the rest of Led Zeppelin with all kind of cosmic power, not to mention millions and millions of dollars, which, of course can also make one cosmically powerful.

As I related, I have some legal background myself and I watched Malofiy argue for the appeal in this video. You can watch or you can read this article in Techdirt that covers pretty much the same ground. There some issues at stake for the copyright folks and that topic comprises about the first 15 minutes of the video. A ruling from the early 1900s prevented the actual recording of Taurus from being played in the courtroom to the first jury. From what I think I understand, some musicians interpreted the sheet music and played what was there because it was the sheet music, not the recorded performance, that had the copyright. Malofiy, legal scholar that he is, convinced the appeal judges to let both recordings be played at this new trial in a comparison test, and for me, Jimmy Page’s reaction isn’t what is important. I thought that this comparison of both performances had already happened when the first jury had found in favor of Zeppelin.

The second step and I think I understand this also…I think I do. I’ve read; I’ve digested; I’ve mulled this over for a day or two now. Any musical piece will be made up of elements that “are” and “aren’t” covered by a copyright. The melody of a song is, the chord progression (usually) is not. There could be items like clusters of 3-4 notes that may or may not be, depending on how important or how original they are to the piece of music. Malofiy claims in his rebuttal argument that:

“…we were able to show 5 distinct elements: minor chromatic line and associated chords, duration of pitches in minor chromatic line, melody placed over descending chromatic line, rhythm of steady eight-note beats and a pitch collection. These 5 very distinct elements were never used in any prior art and defendants were not able to show that in any way, shape or form that these 5 elements…

I can’t exactly make out what he is saying at the end because he is rushing as he runs out of time, but if this whole thing about the five elements is true, then I WAS WRONG! About the Fernando Sor thing…but if it was checked obviously and if these 5 elements can be argued to be covered by copyright. That first element — the line with the chords thing? I’m not sure that everyone agrees something like that is necessarily covered by copyright, but this is part of the brilliant Malofiy strategy! Ironside would totally be jealous! He will first try to get people who know absolutely nothing about music on the jury, play both songs, and point to these 5 elements that people can “hear” in both songs. He will claim they are covered by copyright and if Zeppelin can’t counter with something that also has these 5 elements, or argue successfully that they shouldn’t be covered in copyright, Malofiy and the Estate will emerge victorious! Or…prior to a trial, Led Zeppelin will behold the awesomeness of this strategy, quietly settle out of court and give Randy California a writing credit. Or…I’m completely wrong about the whole “Rockford” angle and Malofiy is actually…New Vinnie! WHOA! Can you imagine? With a hot babe girlfriend who knows everything there is to know about pitch clusters and line clichés? If I was the Led Zeppelin legal team I would look through that Fernando Sor catalog…and watch My Cousin Vinnie a few times. If Malofiy shows up in a red tux, it’s all ova, you guys!

So this is shaping up to be a Battle of Evermore! I’m on the edge of my seat! I wish they would they televise it. Both parties think they’ll win! *Developing*

Brave New World?

Musicians, artists, writers, designers and other creative people are in a perpetual state of harried flux as they try to keep up with all of the technological advances that have enabled revolutionary methods for creating and communicating. This is also true of businesses who have long been the arbiters of content creation, distribution and world-wide entertainment. As the changes gather momentum and the multitudes that are interconnected in cyberspace share INFORMATION, everyone must hustle to stay ahead of the curve or they run the risk of obsolescence. The old modes and models are fading away and younger generations come of age with no frame of reference to how the business of creation and delivery to marketplace was done before technological advances enabled these new paradigms. Unless you live in a cave you know this has created a great degree of tension: lively discussions, court cases, large fines, threats, jail time, and even death.

What is at the center of many of these disagreements are the issues of ownership and control. Who controls information? Who owns the content? Who controls the means of content delivery between people? Do laws that were written before this technological explosion took place still apply and should they? Are they even relevant anymore? Who should decide? What role do individuals have in deciding the fates of their entertainment? How much does the sharing/interaction process now affect and relate to the creative process? Is it time for new business models? Is the idea of music as a business outdated, outmoded and irrelevant? These issues can be expanded out into the greater realm of topics that are at the forefront of national and international discussion: How big is TOO BIG? Should any company or organization be TOO BIG TO FAIL? Are corporations people? How does the immense wealth of certain individuals and corporations negatively effect the electoral process in what are supposed to be democracies or republics? Are large, heavily-centralized entities really sustainable? Do they serve producers and consumers better than a smaller, more decentralized businesses? CAN’T WE JUST GO BACK TO QUAD-STEREO 8-TRACKS?

Some of these issues have already been explored on this blog:
here, here, here, here, and here. Though technology has changed the landscape dramatically in the last 20 years, the business of music, content development, delivery to an audience and copyright has always been an ongoing evolution. Here are some opinions on the current state of the music and entertainment industry from people you may know and some you don’t.

Zoiks! Gene Simmons from KISS blames the fans for ruining the music industry and hints that music as we know it will disappear because there is no incentive to make it without the potential for some kind of profit. I don’t completely disagree with the second part of his point, but the first part is a real doozy. Gene’s mad as hell and not taking it anymore…BTW, have you seen KISS Visa Card? He’s looking a little bit like The Terminator in this clip and I’m not sure what all the talk about “Big Tits” is about. (Women play music too, amirite?) I don’t know why, but this interview and the credit card and the “business” reminds me of this Young Ones sketch from the early 80s. Maybe this interview is supposed to be comedy.

And now for something totally and completely different. Here’s a point of view RANT I saw on one of my social media connections. I was actually surprised when I read it because usually this connection is pretty guarded. Maybe jet lag or a hacker had something to do with it but the sentiment has never been retracted. I’m not going to say who it was because this wasn’t an official publicity release. What really matters is this is a pretty successful musical entity that obviously has the same concerns as any musician regarding copyrights, control, etc.

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You’re probably thinking that the above author must be a punk rocker, death metal player, or someone with a lot of steel embedded in his/her face(NO, NO, and NO). Nothing is said about rap music or breasts and there is a very low opinion of Hollywood and the people in the entertainment industry. How Un-American! The author must be French! (NO). They also don’t care they’ve been ripped off. What gives?? The quote references the documentary below on the notorious online entity known as The Pirate Bay. Founded in Sweden in 2003, the site helps facilitate peer-to-peer file sharing by providing links to various types of (torrent) files that are posted (and downloaded) by users all over the world. The documentary is worth a watch when you have a moment. Many of the main drivers to all of the controversies that surround this BRAVE NEW WORLD (?) issue are contained within.

Here’s a letter to the editor of The New York Times that came to me via ROCKRAP. This is a very official type of communiqué on another aspect of the music industry. The author of the letter is Rubén Blades, a Grammy Award-winning singer, actor and activist.

“…Tom Carson’s review of Clive Davis’s “Soundtrack of My Life” (March 17) states: “As the head of Columbia Records in the 1960s, he discovered, among others, Janis Joplin.” Record executives do not discover artists: they stumble upon them. Not even Christopher Columbus would have had the chutzpah to claim he “made” America. Undisputedly, Davis contributed to making such talents publicly known. But at whose expense? Joplin probably never received her fair share of royalty payments and may never have owned her masters; nor is it likely that her family inherited the full financial fruits of her work. These usually go to people who can’t sing, can’t write, can’t play and yet end up millionaires, while true artists, like Rodriguez, end up broke and ripped-off. That record executives step forward to usurp credit for artists’ success is not uncommon. More disconcerting is that their self-serving accounts are considered worthy of review in your pages.

RUBÉN BLADES, New York

I believe that maybe this was part of the letter. I can’t find the original. If you’re confused about how we go from Janis Joplin to Rodriguez, I think Rubén is talking about Sixto Rodriguez, another very interesting music story. While there are some who would think that Rubén is being unduly harsh, the entertainment industry is completely PACKED with people who share his sentiments. Genre-defining, instrument-reinventing artists like Jimi Hendrix and his Experience made a whole lot of money for people who didn’t even know what end of the guitar to hold. If the influence of The Blues and Blues songs on rock and roll music was measured in dollars almost all of the early blues artists would’ve been very wealthy. Most of them died with much less.

What about big rock bands, like The Rolling Stones…what about them? They certainly have been very successful over the years. Probably have a good outlook on how the business is run, etc, etc. Mick Jagger expressed his views on file sharing in an interview with the BBC during the anniversary celebration of the release of Exile on Main Street. Mick’s answers are in blue type:

Things have obviously changed a great deal since those sessions. What’s your feeling on technology and music?

Technology and music have been together since the beginning of recording.

I’m talking about the internet.

But that’s just one facet of the technology of music. Music has been aligned with technology for a long time. The model of records and record selling is a very complex subject and quite boring, to be honest.

But your view is valid because you have a huge catalogue, which is worth a lot of money, and you’ve been in the business a long time, so you have perspective.

Well, it’s all changed in the last couple of years. We’ve gone through a period where everyone downloaded everything for nothing and we’ve gone into a grey period it’s much easier to pay for things – assuming you’ve got any money.

Are you quite relaxed about it?

I am quite relaxed about it. But, you know, it is a massive change and it does alter the fact that people don’t make as much money out of records. But I have a take on that – people only made money out of records for a very, very small time. When The Rolling Stones started out, we didn’t make any money out of records because record companies wouldn’t pay you! They didn’t pay anyone! Then, there was a small period from 1970 to 1997, where people did get paid, and they got paid very handsomely and everyone made money. But now that period has gone. So if you look at the history of recorded music from 1900 to now, there was a 25 year period where artists did very well, but the rest of the time they didn’t.

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NOTE: There are many more opinions and thoughts from various artists at the ROCKRAP site, including Tom Petty, Chuck D, Ice T and Pete Townshend, who provides a very eye-opening perspective.

In the following clip Lawrence Lessig presents an interesting overview on the early evolution of the music business, including the “Bidness War” between ASCAP and BMI, as part of TED talk he gives titled “Laws that Choke Creativity.” A very good talk and the historical parallels he draws are important for those who believe the issues that surround entertainment creation and delivery today are something new.

Another enterprising fellow who has garnered media attention lately is ex-hacker/businessman Kim Dotcom, founder of Megaupload and it’s associated sites. He rolled out Megaupload’s successor, Mega, in January on the 1-year anniversary of his arrest from copyright infringement and the forced-closing of Megaupload. Dotcom has been accused of costing the entertainment industry hundreds of millions of dollars and is currently fighting extradition to the USA for trial. He is defiant, believes he will be acquitted, and has plans to encrypt half of the internet to protect users from spying eyes. If for no other reasons, The Pirate Bay movie and Dotcom’s interview videos are interesting to watch not only because the networking, sharing, and business models are exposed, but it’s also amazing to see how it all GROWS, most of it virally. Dotcom estimates that at it’s zenith, Megaupload had 800 file transfers per second, 24/7/365. Fascinating! It’s important to note that there were plenty of legitimate users on Megaupload so it’s not like all of those transfers were “infringement” on anything.

Finally, are you one of those people who thinks music today is totally worthless? Does it seem everything in mainstream entertainment is written for a 12 year-old girl? Does the tired, formula-driven aura that surrounds the entertainment business remind you of other too-big-to-fail entities out there ravaging the landscape in an ever-increasingly desperate attempt to suck money out of your wallet while giving you nothing in return? Well, YOU ARE NOT ALONE! As a matter of fact, there are some really successful music icons who feel the same way you do! This last link is an entertaining, sometimes educational documentary on the music business in the USA. As a “movie” or “documentary” Before the Music Dies certainly has its shortcomings. The “flow” of the film could’ve been better and certainly watching it in clipped bits on Youtube doesn’t help. The film highlights some of the authentic artists performing today with live music clips but some of the performances are too long and I was skipping through to get back to the thread of the movie. Many salient aspects of modern “music production” — The 1996 Telecommunications Act, ClearChannel, Auto-tune, butt implants, quarterly profit returns and much more are covered and in some cases demonstrated to very grim or hilarious results (depending on your point of view). The numerous interviews (Eric Clapton, Les Paul, Doyle Bramahll II, Dave Matthews, Bonnie Raitt, Erykah Badu, Questlove, North Mississippi All-Stars and Brandford Marsalis) are very illuminating to say the least. It warms my heart to watch performers who have reached this level of success deriding the superficial, profit-driven, multi-tentacled vampire squid that is the entertainment business today. Bonnie Raitt, Brandford Marsalis and Dave Matthews all have some great money quotes and Eryka Badu is awesomely funny in a biting, social-commentary kind of way. I recommend highly — enjoy the movie and figure out how it may or may not impact your career or musical journeys.