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ASCAP Starts To Act Like the RIAA
Scott Lockwood writes "Below Average Dave, a Dr. Demento style parody artist, has been shut down by the ASCAP. This collective, acting as badly as the RIAA, is now attempting to ignore the 2 Live Crew Supreme Court decision that parodies are new derivative works. Just like the RIAA, ASCAP seems intent on misrepresents the law. If you know anyone who can help BA Dave in his plight, please contact him." This artist doesn't have the resources to fight the ASCAP, even though the law is pretty clearly on his side. Anyone at the EFF or the ACLU interested?
BMI and ASCAP have been thugs for a long time, threatening bar and club owners for licensing agreements for offering live music. For this reason, AS220 in Providence no longer allows musicians to perform any cover songs!
-mkb
ASCAP has been in this much much longer than RIAA.
"2 Live Crew" "Supreme Court decision"
The guy needs to contact the EFF himself. They don't often just pick up cases because they get reported on Slashdot. They might take a look if he contacts them though. It doesn't take much effort to do so: http://www.eff.org/about/contact
Incidentally, the ASCAP has a long history of doing dumb stuff. Back in the mid 1990s they got a lot of public flack for trying to sue the Boy Scouts and Girl Scouts.http://www.law.umkc.edu/faculty/projects/ftrials/communications/ASCAP.html
If he'd cited it as Campbell v. Acuff-Rose Music, Inc., he might have done better in the letter.
Actually, I believe he asks permission out of courtesy, but if he were less polite he could just do a parody without asking.
One distinction I would like to point out is that ASCAP is *not* like the RIAA -- ASCAP actually pays the artists they represent when they force someone to pay up for licensing purposes.
I don't agree with their stance on this particular issue, or their attempts to charge people who are playing radio (stations that have already paid the ASCAP fees).
But it's an important distinction that they are actually defending the rights of artists, even if those rights are overblown. It's a far cry from the RIAA who will never be handing down a penny of the handful of successful lawsuits they've filed.
The reality of the situation is that there is basically no such thing as a Composers' Union in the US, so ASCAP/BMI association is the only way a composer or songwriter can get reimbursed for the use of their works on an international level.
have you been seen on slash?
Weird Al gets the permission of the people who he is parodying. I believe that this gets around ASCAP.
B.A.Dave uses backing tracks supplied by Karaoke-Version.com, who has given him permission to use said tracks. I have the same agreement with them, myself.
Yes, but that's just to be polite. He doesn't have to, which protected him from Coolio when he proceeded with 'Amish Paradise' even though Coolio claimed that he had not granted permission for the parody.
Or you could just use this.
http://www.riaaradar.com/
There is a war going on for your mind.
No, for several reasons.
1.) Having recorded for nearly 30 years, Al knows the ins and outs of what's legal, what he can easily fight, and what he can't.
2.) The original songwriter is credited on all parodies (and polka medleys) meaning Al pays royalties to the original songwriter on all songs recorded on CD or receiving airplay. ASCAP and the original artist are making money from Al.
3.) Al gets permission from the artist before recording a parody, even though it isn't legally necessary. In the case of parodying James Blunt's "You're Beautiful" (as "You're Pitiful") the label (not the artist) withheld permission after recording, so instead of releasing it on the "Straight out of Lynwood" CD, he put out an mp3 from his website. Other parodies for which he doesn't have artist permission, he will perform live in concert, but will not record.
More details at his Wikipedia page.
DMCA - Chilling free speech since 1998.
Actually parody only covers the words that you change. If you use the original music you must pay for that privilege. Weird Al has gotten permission from the artists to use their music and when he didn't he ceased and desisted from performing that song. This is a considerably more dicey challenge than simple pirating.
Why bother
There sure are, but that's not germain here.
I think you (and others) may have been tripped up by the "the law is pretty clearly on his side" text in the summary. The submitter apparently took what BA Dave wrote at face value.
What BA Dave apparently doesn't understand is that 2Live Crew ended up paying royalties.
Thankfully, you can create a parody without getting permission from the original author -- the law gives us this right, although court cases usually come down to what's defined as a parody.
However (and this is the crucial point that BA Dave and the submitter missed), if you use a melody written by somebody else, then you must pay a license. This is accomplished through what's known as a "blanket license" or a "mechanical license," which means that you need not get explicit permission from the particular songwriter.
Sitting in my day care, the art is decopainted.
In a case of this nature, the guy's best bet is, in my opinion, Volunteer Lawyers for the Arts or EFF.
Ray Beckerman +5 Insightful
I checked out the FAQ on that site. They write (emphasis mine):
Use in public events
We are happy to allow the use of our soundtracks in public places and during events, commercial or not. However, and for your information, we'd like to remind you that you must receive an official agreement from your national music rights management office (MCPS in UK for example) to be legally compliant.
If the event is private and non-commercial, use of soundtracks is, of course, allowed and not restricted.
Other use (Recording/Streaming/Broadcasting...)
Recording rights of our soundtracks (Whether it's on a specific media or not) is not included in the price.
Prior to any recording of one of our soundtracks, it is mandatory to file for a written authorisation. Any use of any of our available tracks, without prior agreement, is a violation in regards of French Law dated July 3-1985 and International Conventions. Be aware that Moral Copyright allows Songwriters/Composers to forbid any re-use of his work if he finds this use doesn't respect the original design.
I'm not sure about that "moral copyright" part (it may relate to jurisdictions outside the US) but the rest matches my understanding: karaoke-versions.com licenses for private, in-home use, but if you want to broadcast it or record it, you need to get additional authorization -- ie. ASCAP or BMI in the US.
This appears to contradict your statement. Do you have a more comprehensive contract with karaoke-versions.com which allows for recording and broadcast?
Sitting in my day care, the art is decopainted.
Actually, anyone is allowed to cover or parody any published song without any permission needed so long as they pay the songwritering royalties. In the case of a parody, those royalties are usually split between the original writer and the writer of the parody, in other words Weird Al himself gets a check from ASCAP or BMI (I'm not sure who he is registered with) for performance. As for his CD's those are covered by the mechanical royalty, which is also split in a very similar way by and handled by the Harry Fox Agency.
Knee-jerk reactions aside, the guy still has to pay the songwriter. ASCAP is not claiming that his parodies aren't legal, only that since he's using someone else's music, he has to pay for it. That's the way it works.
Weird Al pays the songwriter for the music in all of his parodies. And yes, he does have to pay. Provided he records a real parody ("Smells Like Nirvana" almost certainly is, "Like A Surgeon" not so much), fair use should protect him if he doesn't get permission to record it, but getting permission ahead of time avoids lawsuits, and that's a good thing. Either way, the songwriter is credited and gets paid.
Many posts here are confusing the issue of "parody is not a copyright violation" with the issue of "if you use someone else's music, you have to pay for it." You'll note that ASCAP never mentions copyright violation in its letters, and never asks that the songs be removed, only that the songwriters whose music is being used get paid.
If I were a lawyer, I would not take this case. He will almost certainly lose.
KV told me that additional payments only apply if I sell over 1000 copies (which is no problem...I'm lucky to sell 100). From my other sources in the parody/comedy music industry, ASCAP usually agrees to that as well. Dave hasn't yet sold a single copy. He gives away his parodies for free.
(1) Take down the website. This stops their claim of damages. They probably have no damages anyway.
(2) Study the law of copyright and federal civil procedure. This could take awhile. Find a lawyer to help explain the rough spots to you. Study up very carefully about Rule 11 sanctions, because the SOBs are going to accuse you of Rule 11 violations if they decide to fight you. You may also be able to claim some damages from them for abuse of copyright--research that too.
(3) File a declaratory judgment action in federal court asking that your rights be determined to be fair use, and seek any damages you are entitled to.
(4) The industry must then respond to your lawsuit. This is VERY expensive to them in relationship to the damages that they can recover (probably zero). It is a bad business decision for them to hunt you down. In THEIR best scenario, they'll have to pay at least a few thousand dollars to kick your ass in a situation where they can't get any money out of you. (If you're a mean, vindictive, son of a bitch, you can get your musician-friends to file their own declaratory judgments actions after your case is over).
(5) If they fight you, do your best. If you win, you're a demigod and you get a federal judge ruling that your use is a fair use. If you lose, what the hell--you fought and you made the corporation pay. If they don't fight you, you get your order saying that your use is a fair use. After you file your lawsuit, they may very well be willing to negotiate (a copyright lawyer is very useful here).
(6) You can keep your costs way down if you represent yourself. They have to pay a lawyer a few hundred dollars an hour. That's your edge.
You can torture those sons of bitches if you know the law and if you're in the right. They know that. They'll sing a different tune when faced with litigation costs.