Archive for October, 2009

Artists, Artists, Artists…Piracy, Piracy Piracy

October 29th, 2009

Ok, I wanted to follow up my last blog post concerning an interview with academy award winning director Milos Forman, by posting a link to another source, which has complied snippets of opinions of dozens of critically acclaimed musicians.

http://www.musicunited.org/3_artists.html

My own personal focus in this course revolves around deciphering someway, in which we as a community of consumers, and artists can come together to fairly create a business model that is friendly to both parties. I have found that the majority of the articles and information we have read–partially due to Fred’s own philosophy on the subject–have been stilted toward the consumer. So I have decided to post as many examples of the artists’ opinions as possible, so that we can examine the issue as objectively as possible.

It is impossible to deny that these artists are biased in their statements, but their words must be heard to come to some sort of a decision. Without their work this would not even be a discussion–at least in so far as music and film are concerned–so their voices should count for something.

It is clear that the business model of the past and present is failing, but how do we fix it? Sure there have been pay as you play, and other such strategies suggested for monetizing the system, but realistically these suggestions will not solve the problem. From all the articles, interviews, movies, documentaries, etc. Not one business model suggested has been able to bring both parties effected together, and until this is achieved we will remain in this state of semi-digital anarchy–and I don’t care what you all think, anarchy does not and never will work, human nature is too corrupt.

So please, think long and hard, and see what you can come up with, who knows you might just stumble upon the answer.

Greg

Pump Audio and FirstCom

October 29th, 2009

One thing I thought was particularly interesting about our discussion of Creative Commons was the 3rd party Pump Audio bit. If you don’t remember, Fred talked about CC+ and how if someone does want to license the commercial version of a work, Creative Commons will direct them to the third party server in order to obtain such a license….something like Pump Audio. In short, a producer/director/whoever will go to Pump Audio (directed from CC), find the song they want and license the song with few (if any) strings attached. Licensing a song through the label/publisher can be extremely time consuming and a burden on the wallet.

I worked at a small independent production company this summer. We would produce smaller promo videos and educational videos, mostly for web. And we didn’t have much of a budget for music. So we (actually I did most of this) went through this service called First Com, which is essentially the same thing as Pump Audio. It’s basically a HUGE music database, with easy to use browsing tools, designed to let you find the exact song/feel you want. With a few hundred bucks (not even) we obtained a blanket license and the rights to use the works however we pleased….and boom we had our music.

With that said, I also worked at an independent music promotion company, and we licensed one of our bands onto CSI NY. For an 11 second bit, the band made something like 8-10 grand…could have even been more. Now of course CSI NY is a huge production, but there is definitely some money in TV/FILM licensing for the little guy.

I have to say, these websites/services are really cool, and any aspiring filmmaker should keep them in mind when they are working on their next project. What I am curious about, though, is how these types of services are affecting the music industry? I’m not sure about Pump Audio, but I know FirstCom contains a lot of works by a bunch of random computer-geek types (no offense) with a good ear and a half/decent sound recording program. In other words, these guys aren’t your typical struggling artists from Brooklyn. But I feel like these sites are a pretty attractive resource. They supply great sounds/music for really cheap. My question is if they are detracting from “real” artists? In other words, do you think more and more productions like CSI NY will turn to Pump Audio/FirstCom rather than the Indie promo company? Of course these guys work hard to create the music they do, and I’m not saying they don’t deserve any financial reward. I’m just curious how much of a competition these services are? With tight budgets and a crummy economy, they sounds appealing…thoughts? Do you think that the music industry has any future in sites like these?

My computer woke up on the wrong side of the bed and won’t add these in hyperlink.

http://www.pumpaudio.com/
http://firstcom.com

The White House Opens its Doors

October 26th, 2009

whitehouseNot quite literally, but the White House’s website has switched to open source code under the Drupal Content Management System (CMS), which is under the GNU General Public License. The source code of the website can be downloaded and edited by programmers for their own specific purposes. The White House’s new media director Macon Phillips has said, “We now have a technology platform to get more and more voices on the site. This is state-of-the-art technology and the government is a participant of it.” This use of open source provided by Drupal allows for the use of blogs, comments, polls, and user profiles. This creates a forum for individuals to participate in the politics that shape their lives.

Interestingly enough, security which is a vital element to consider for the White House’s website is said to be even more secure under the open source CMS because programmers around the world can look at the source code and collaborate to find problems, according to Terri Molini of Open Source for America.

3213257378_e46465b839This change to open source is said to parallel the Obama administration’s stance on change and progress. According to Richard Stallman’s definition of free and open software, “In this freedom, it is the user’s purposes that matters, not the developer’s purpose.” With this said, the open participation established by the new Drupal-run website allows for the American community to become active participants in the online forum. This project also corresponds to the overall goal of the Free Culture Manifesto to promote the idea that “culture is a two-way street, about participation, not merely consumption.” Because of the users’ increased rights for participation, this website is a step closer to building a more open and free digital medium for communication.

The future of the Internet is still unknown, but it seems to me that that projects such as this one provide a step in the right direction. The overall impressions of the public seem to be positive to these new open source changes. For example on Tim O’Reilly’s blog Radar, people such as Daniel Hudson recognize that

This is a huge leap forward for the open source community and our Government. The talks about change makes me feel good. The proactive action of change is good!

This action should help more people realize the value of crowdsourcing. I hope more people and organizations see this action as an invitation to join this journey of a collaborative society on the path towards Government as a Platform (Gaap). These type of actions are filling the “Gaap”.

The question now remains on how to expand projects such as open source software to develop a proactive and participatory digital stage. The White House’s website allows the public to have a voice so that free speech (not free beer!) is represented in the online community. With the establishment of new organizations such as Creative Commons, the path is being paved to changes in the future. How can we as participants in online forums help promote these changes? Do we have a responsibility to do so, or does the power for change rest solely in the hands of big organizations to use open source software platforms?

NPR Goes After “Yes On One” Ads

October 21st, 2009

So I know we’re all probably sick of fair use stuff, but I found an interesting article about NPR and the campaign to overturn Maine’s same-sex marriage law.  The Yes on One/Stand for Marriage Maine campaign (which is against same sex marriage) uses 20 seconds from a 2004 NPR story entitled “Massachusetts Schools Grapple with Including Gay and Lesbian Relationships in Sex Education” for their TV spot.  NPR has issued cease and desist orders to the organization, as well as to Youtube and other websites that are streaming the video.  The article says that Youtube has complied, but I’ve embedded the ad spot form Youtube, so apparently not…

They haven’t yet approached TV stations to remove the ad, but they’re running out of time as the elections occur in two weeks.  NPR doesn’t want to be labeled as supporting or opposing this issue, especially as it is an incredibly volatile one.  A representative for the political campaign is claiming that this is covered under fair use.

This story bring up an issue that I grappled with when trying to decide if I agreed with the outcome of the case I used for my paper – one of the factors of fair use is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” but this says nothing about the amount and substantiality of the portion used in relation to the new work, which I think is an important factor to regard as well.  In this case, the NPR clip takes up 20 seconds of the 30-second ad, composing 2/3s of the entire spot.  In my opinion this is clearly not an example of fair use but I guess I was wondering what others think, especially about the amount of the portion used in relation to the original work vs. the amount used in relation to the new work.

Seizing University Photocopiers

October 20th, 2009

 

Photocopier Seized from a University of Toronto Copy Shop

Photocopier Seized from a University of Toronto Copy Shop

Course packets are commonly used in place of pricey textbooks by NYU professors looking to give their students’ wallets a small break. However, this practice may change in future semesters due to two recent wins for copyright holders who sued copy shops located on or near university campuses.

The Federal Court of Canada ordered the confiscation of photocopy machines, undoubtedly quite expensive, and course packs for over 75 courses from a shop located near the University of Toronto. The court mandate came after Access Copyright, a Canadian copyright licensing agency founded by creators and publishers, had repeatedly tried to stop the shop from making copies for professors and students at the university. 

Also last week, and more troubling for American students, the Eastern District Court of Michigan found a copy shop in Eastern Michigan directly liable (not secondarily, as precedent leads us to expect) for allowing professors to drop off and students to use their machines to copy packets of readings. On his blog “Exclusive Rights,” attorney Shourin Sen, hypothesizes that the Court found the shop primarily liable to avoid holding the students responsible; in order to find secondary liability, the Court must also have find another party primarily liable. In the opinion, the Court notes that the shop, Excel, owned all the supplies and elements used for reproduction, while the students merely pressed “Start” on the copy machine.

The decision provides a troubling extension of primary liability. Is the venue for infringement made available by a copy shop any different from the venue of an Internet service provider?  Similar application to the web would certainly be a stretch, as service providers do not have the same level of control over the infringement process as does a copy shop, who literally holds on to the master and retains profit from its copy; however, more direct parallels to other practices in academia are possible and could impact the way in which scholars conduct library research. If an entity can be held directly responsible for another’s use of its copy machine, libraries are no longer protected, as they also distribute the materials which students copy. Great harm would be done to intellectual progress at America’s higher education institutions if copy machines were removed from all university libraries, particularly since select rare or older books are not allowed to be checked out, or if a librarian or other official needed to approve copying in advance. As Lessig points out in Robert Boyntown’s “The Tyranny of Copyright,” this “‘Oliver-Twist-like position’” of asking “‘Please, sir, may I?” whenever using something under copyright revokes the American tradition of free engagement with information and advancement of the nation’s intellectual progress. 

Michael Carroll, in “Fixing Fair Use,” maintains that educators and students, because they use so many resources that fall under copyright, have a strong interest in clarification of the protection provided for copying for educational use, i.e the nature purpose of use provision of fair use. But this is not the type of clarification universities hoped for. This week’s decisions serve as a strong example of the discord between the harm to the market factor of fair use and even admirable uses of a copyrighted work. It will be interesting to watch for other cases regarding course packets and university copying in the near future, and for the time being, hope that there is no chilling effect on scholarship that results these decisions.

Ringtones ruled not subject to Public Performance Fee

October 19th, 2009

ASCAP, always looking for any possible way to increase payment, has been fighting to get wireless service providers to pay a public performance fee for the ringtones they offer for download. If Verizon allows you to download a ringtone that plays every time you get a call, then ASCAP feels they should be getting paid for the possibility of that call coming in in a public space and playing a song for an audience. Thankfully the courts have decided that this should not be the case, and ruled in favor of Verizon last week, verifying that ringtones do not in fact violate copyright in terms of qualifying as public performances. Verizon already pays 24 cents per ringtone it offers to subscribers. In addition to the violation ASCAP claimed was taking place when an incoming call played a song, it also argued that, though currently Verizon does not allow the ringtone to be played during download, it could potentially alter its technology to make such listening possible and become more directly involved. The court rejected this fanciful hypothetical, and also deemed ringtones legal as Verizon customers are using the songs for entertainment purposes only and not for an intended profit. This ruling seems significant to me in light of the discussions we have had in regards to what qualifies as public performance. This verdict clearly separates things like listening to the car radio with the windows down, singing in the shower, or other obviously harmless common practices from a restaurant playing music in order to enhance their atmosphere and increase profits. The whole case just makes ASCAP look absurd and incredibly greedy without real rationale, and in my opinion trivializes their other battles by establishing such a character for their organization.

The perspective of a great film artist on Piracy

October 19th, 2009

milosI was at work the other day, and an old copy of the director’s guild of america monthly magazine was lying around. Since I hardly do a damn thing at my office, I decided to leaf through the magazine. It just so happened that one of the articles documenting a recent speech made by DGA member and world renowned filmmaker Milos Forman (One Flew over the Cuckoo’s Nest, Amadeus) pertained heavily to our class. Mr. Forman, a man who has seen just about everything in the film industry today, and one of the most esteemed members of the DGA, discusses the effect stealing movies has on the industry he oversees. It is a quite compelling look into the mind of a real living filmmaker and how he sees the impact of piracy on his industry.

 

Here is the text from the DGA Article since it won’t link

“I want to thank Eric Bapiste for that generous introduction and CISAC for inviting me.

I am honored to be here representing the Directors Guild of America, a CISAC member.

I have been a member of the Directors Guild of America for 29 years. DGA was founded in 1936 by the top film directors of that day. Their purpose was to create a guild that would unite filmmakers and protect their rights and visions.

Since then, whether it was the fight for a Director’s Cut, for directors’ creative control of the film, for payment of residuals, for secondary use of their work, or to prevent unauthorized editing, colorization, or the most recent battle to insure remuneration in the world of new media. The importance of these wars has not changed even in the face of global media conglomerates and numerous technological changes. If anything, it increased.

Now, we all know the reasons why we are here today. The most important one sounds very romantic: piracy. In my childhood games I always wanted to be a pirate. Not his victim. I’d prefer to call it what it really is: a theft. Internet thievery. When you think about it, Internet today is functioning as a dreamlike supermarket where you can go, take anything your heart desired without paying for it.

I will now entertain you, briefly, with an example of my personal experience in these fights. And I have some experience with this sort of battle. The first half of my life I lived in two different societies that had one thing in common. They both, the Nazis and the Communists, were obsessed in their effort to exercise total control over creative people.

I will not bore you with the ghosts from the distant past, although it is with them in mind that I have never weakened in my resolve to fight any effort to stifle the voice of authors and creative artists. But let me give you one more recent example.

In the seventies I directed a film One Flew Over The Cuckoo’s Nest. This film was being bought for television by NBC. My contract for this film guaranteed me the right to approve any changes that the Network might want to impose on my work.

So I requested a list of everything that the NBC censors consider to be objectionable for viewing on television. One page came in the mail. No letterhead, no signature. Just 10 or 15 points of their demands for change. I didn’t have any problem with most of these points. Changing a few four letter words or cutting a few frames of nudity wouldn’t significantly alter the meaning of the film or its narrative.

But I had a huge problem with 3 points on the list. Those of you who saw the film, or read the book, will know what I am talking about. They asked me to cut out Billy Bibbitt’s suicide, they suggested that McMurphy should not choke the Big Nurse and that Chief Bromden must not perform the mercy killing of McMurphy. The reason? These scenes might be too depressing for the television audiences.

I panicked. This would be a terrible mutilation of the story. So I asked for a meeting. The censors, two very nice gentlemen, came and I expressed my objection to these three points. The censors looked at each other and then one of them said: “Okay.” And the meeting was over.

But imagine if I didn’t have the right to object. The film could have been bastardized, stripped of its meaning.

But how many filmmakers have the final cut of their films, be it for the release in the theaters, or on television, DVD or for any other form of exhibition. Not many.

And first time directors practically never have that right. And they are especially vulnerable, because on the result of their first work often depends their future.

Now. The “free Internet” folks are trying to convince the public that only a few rich celebrities and powerful companies are crying “foul” about piracy because they want to get richer.

The pirates like to see themselves as modern day Robin Hoods. “We are stealing from the rich and giving the loot to the poor.” They say.

Doesn’t it occur to them that they are in fact stealing from thousands and thousands of regular, many of them poor, people around the world, who are mostly not even seen on the screen, but who depend, directly or indirectly, on the creative industries for their livelihood? These people badly need their paychecks, the residual payments and their pension and health plans coverage. Stealing from these people is not at all a noble undertaking. It is the most despicable aspect of the situation we are in.

Now imagine that anybody could go to a department store and, without paying for it, take home a pair of pants, or a skirt, and after they are tired of them, he or she returns to the store to take another pair, again without paying for it. As a result the country’s garment industry would collapse very quickly and their employees would be on the street.

And that is what could happen easily to our entertainment industries. Why should anybody pay for a movie or music if they can get them for free on the Internet?

And here our Odyssey begins.

The movies we make are the result of our work. Work that requires of us our time, weeks, sometime months, even years to create. And time is expensive to us and it takes a long time to create a film for the public to enjoy.

But even during that long process of creation the moviemakers, musicians, and composers need, like everyone else, to eat and support their families.

And if they can’t rely on being paid for their work then they can’t weather these periods of creation—in fact they can’t have them at all.

The pirates are saying: “We are not stealing from you. We are stealing from our convenience store.” They make it sound like nobody real is hurt—like it’s a victimless crime.

Well, it is not. The authors and many of their collaborators are the victims, because they will not be paid for their work.

Then how can creativity take place —how can it grow and flourish? It cannot.

And this is serious. As a matter of fact it is very serious. Because, metaphorically speaking, creativity is the mother’s milk for our culture and, as such, should be very carefully protected.

Our opponents believe that our work, once it leaves our hand, belongs to them. That copyright and authorship disappear in the face of their collective enjoyment and free possession of our work. And let’s not fool ourselves.

Their ideas, their catch-words and concepts are appealing not just to the public but also to politicians.

It is sad. Movements and politicians come and go, but culture, culture stays. Culture is here forever. And according to the culture we leave behind we will be judged.

I don’t admire Germans because of Hitler, or Italians because of Mussolini. I admire them enormously because of Mozart, Beethoven, Goethe, Da Vinci, Michelangelo.

I think I can say that culture is vital for a human spirit. If we cripple our culture we are crippling the heart and the soul of our society. That is why copyright protection for those who create is so important.

Also, our opponents like us to believe piracy is a problem only in the developed world. In a rich society which can afford to be robbed.

Another nonsense. Piracy is just, if not more destructive to fledgling film communities in the developing world—robbing them of a chance to build and grow and for individual filmmakers to flourish.

There is no question that the wonders of this digital era and the opportunities the Internet affords us are to be embraced—and none do it more readily than filmmakers.

By the very nature of our work we have always been at the intersection of technology and art. But as filmmakers we must also recognize that we are at a moment of great peril. It is now so easy, with the click of a button, at any time and anywhere in the world, to upload or download an entire film, musical composition, television program, or book.

So here we are, facing not only the ease by which our work, our property, can be copied and played, but also how our work can “be played with.” On their computers anybody can electronically alter any film, or music beyond recognition, and then disseminate the sophomoric result of their “creations” to others.

The Internet has laid open a mindset for this logic: “If the Internet is free it means that everything seen on the Internet is free too.”

Well, it is the same logic as if you go to a supermarket and say: “Because I got the plastic bag for free, everything I now have in it must be free too.” And the Internet is an extraordinary free bag, in which a countless amount of products can be delivered to your home.

Some politicians are saying that we already have recourse to protect our work… we can sue…. we can use the courts. This too may sound reasonable but it does not reflect reality. The notoriously cumbersome and long legal process is no remedy at all for this international and instantaneous problem.

Finally, we must not allow the debate to focus on the Internet as though we were frozen in time. We certainly know that technology is not static. Over the next 10 years the Internet as we see it now will be very different. And, as the technology develops and broadband penetration grows, and it is faster and cheaper to get, the scope of this “communal creativity” as they like to call it, will increase.

I don’t like to deal in abstractions, but the act of individual creation is always somehow abstract, personal, fragile, even ephemeral. It is a process that draws deeply on the imagination of the artist. At first it lives only in the mind and then it takes a director’s individual vision and the collaboration of many talented people to become real. It can be years in the making and each time we begin it is always a large risk we, and those who finance our work, undertake. Each film is its own unique creation and the authorship must not end when our work is finished and presented to the public.

Those who oppose our concerns and interests have focused on the importance of protecting the Internet users. But the rights of an individual artist are as natural and important as the rights of the Internet user.

We know this is an uphill fight, running counter to a popular mindset and well-funded opposition, but we can take comfort in one clear reality. Just as the Internet knows no geographic boundaries so too this problem is international in scope and, despite cultural differences, our fight is the same around the world.

France, the country which gave us the “droit moral,” and where the Lumiere brothers began to make films, just recently approved the “Creation and Internet” law.

Theirs was a hard fought effort, against great opposition. The DGA—as we publicly stated—was united in its solidarity with our colleagues in France. We believe their model, that did not degrade the consumer but stood up against a demagogic campaign, and made clear what was truly at stake, should be considered by all of us.

In Sweden a court, just recently, ruled against the operators of “Pirate Bay.” That’s their name. It is one of the best known Internet ports enabling the stealing of copyrighted movies and music.

These are the first important steps in the effort to protect the artist’s work from this Internet thievery. We applaud our French and Swedish colleagues.

The pirates are also claiming that the “Free Internet” is inseparable from democracy. Well, they might be surprised to learn that what they are promoting is in fact not democracy, but a communist ideology.

Karl Marx’s definition of communism is very clear: “To everybody everything according to his needs.” And, we all need to be entertained from time to time. And now in a modern day Internet world we’ll get it for free. “For free” are the important words here.

But don’t misunderstand us. We embrace the digital age. We are all well aware of its great possibilities to make our work visible to billions of people around the world.

There is a great future for the interaction between the filmmakers and the public. All we are asking for is the protection of an artist from the theft of his rights to be compensated for his work.

And this struggle to protect the artistic and economic rights of creators will only be successful if we are joined together in urgent and united international action.

 

Thank you.”

After reading this piece, how would you, you movie stealing fiends, justify yourselves to Mr. Forman? His points are valid, and his perspective, though certainly biased, should not be discredited. I myself, as an aspiring filmmaker, have been struggling with many of the questions and issues Mr. Forman addresses, and I only ask, how can we come together on common grounds to find a solution? How can we keep this industry up and running and also satisfy our incredible need to share information?

Dewey Decimal Who?

October 19th, 2009

sony-prs505-imageThe new digital era is revolutionizing the way culture is perceived in society. Rather than go to the library to check out books, now people don’t even have to leave their own homes. Because of the first sale doctrine of the Copyright Act of 1976, libraries have been able to exist and check out books to the public. Now libraries are offering the public the option of downloading e-books for free simply using their own computers and library cards. After two or three weeks, the e-book is removed from a reader’s digital account. According to the New York Times’ article “Libraries and Readers Wade Into Digital Lending,” e-books provide a different and easier format for a technology-based society to read books. In order to even get copies for circulation, libraries are forced to pay higher fees than the price that e-books are sold on Amazon and similar sources. Circulation of these e-books is growing, although it currently accounts for a small percentage of book sales and library circulations. Despite the nascent development of e-books, evidence shows that hardcover book sales decreased 15.5% this year as compared to 2008. With this said, the publishing industry that represent authors fear that too much of intellectual property is offered for free.

The growing trend of creating e-books to be bought and downloaded onto Sony E-readers and Kindles is also producing a new type of piracy. Websites such as RapidShare allow e-books to be uploaded to the site for free without the copyright owner’s consent. It seems inevitable that this new digital industry would follow the piracy of music with sites such as Napster and Limewire. Even with the takedown notice of the Digital Millennium Copyright Act, pirated material is showing up days after being taken down on sites like RapidShare.

macbook_tablet1Apple is now in the works of producing a tablet that would be larger than the iPhone but would have similar touch-screen applications with a bigger screen. Steve Jobs in interviews has claimed that he doesn’t see e-book publishing as a major business model for Apple. However, the new Apple Tablet may incidentally become a new device that allows for the spread of downloading (both legally and illegally) e-books. The Apple Tablet is even potentially said to digitally hold newspapers and magazines. This tablet could facilitate even greater changes within the publishing world.

With all of this in mind, it is fascinating to see how the digital age is revolutionizing the way people read. With new mediums of information come new attempts to get this content for free. The increase of e-book sales and the constant improvement of the design of the Kindle and future Apple Tablet are also changing the way copyright is addressed. With colleges such as Princeton University attempting a trial period of e-reader participation, the way education is approached is in the midst of these changes. Our generation is a transformative one that is constantly in flux, and at the center of the debate is how to integrate copyright into these changes.

Free Culture models see the Internet as a medium that creates active participants who should have control over the production and spread of digital content. Is Creative Commons and the GNU General Public License the future of web-based copyright, or will the world of permission society or micropayments such as the current model of iTunes direct the path copyright will take? Can the copyright laws even keep up with the changing technology?

Itunes New Sharing Feature

October 18th, 2009

So it hasn’t been too long that the new Itunes home-sharing feature has came out and I’ve been waiting for weeks to see if there are any lawsuits against it.  For those of you who do not know, Itunes now lets you share music with those that use your router (sounds awesome right?).  I can’t help but wonder what makes this different from limewire services.  I can take my brother’s music for no charge making the initial dollar he spent stretch to several copies of music.  Unfortunately, this new feature also restricts the number of times a song can be copied (the limit is 5).  I may be way off base here but with all the problems file-sharing programs have encountered I’m curious how Itunes is getting around this (mac products rule the world, perhaps?). Does anyone know anything further about this?  I did some research on NYTimes but couldn’t find anything, I really feel like this is something we should keep an eye on.  I am very happy about Itunes push towards sharing though!

The Film Industry’s Loophole: Sound-alikes

October 18th, 2009

In my Film, History and Form Class (yes, the same class which told me “Happy Birthday,” which is actually owned by Warner Music Group, was owned by an 86 year old woman whose uncles wrote her the song for her birthday) we are learning about soundtracks to films. Obviously, to license a popular song for a film can cost hundreds of thousands of dollars. Therefore, one technique used in soundtrack-making is using “sound-alikes.” Sound-alikes, according to my class, are songs which are commissioned by a studio to be created by a composer which evoke the feeling of an original song. They obviously doesn’t cost as much to use in the film, and are meant to trick the audience into thinking they’re hearing the original song because the differences are so minute.

Bette Midler

Though we didn’t spend too much time on it in class, our professor did say there have been copyright claims filed against film and television commercial production companies for sound-alikes. In its sound-alike article, Wikipedia makes note of a case in the ‘80s in which Bette Midler sued a commercial agency for using what sounded identical to her voice in an ad for a Lincoln Mercury. According to the defendants, they (the ad agency Young and Rubicam, Inc.) tried to get the original singers for a series of songs used in the ads, and as Midler was asked and not available to re-sing her hit song “Do You Want to Dance,” her long-time backup singer Ula Hedwig was hired to recreate Midler’s song. In this case, Young and Rubicam DID hold a license from the copyright owners to use the song itself, but the issue was the mimicking of Midler’s actual voice. Never did the commercial make reference to Midler (by using her name or picture).  But, to the untrained, consumer ear, it might as well have been Midler singing.

The court ruled: “Mere imitation of a recorded performance would not constitute a copyright infringement even where one performer deliberately sets out to simulate another’s performance as exactly as possible.”

Though this example is a bit different than one which re-composes a song to sound nearly identical to a popular song (to avoid licensing fees), the question of mimicking almost to the point of copying is an interesting one. Does anyone know anything more about sound-alikes? Do you think this Hollywood convention is protected under copyright law? From my knowledge, it doesn’t seem like too many lawsuits have been filed against studios for sound-alikes, so perhaps it isn’t even a big deal to most music industry people. Though it does seem strange that music big-wigs would be upset about sampling 5 seconds of a song for use in a completely new song when the film industry is essentially ripping off the entire feel of a song (or voice) to trick the viewer into thinking they’re hearing the original. Thoughts?