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"Happy BIrthday To You" ownership/royalty lawsuit


BigKahune

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We've had a couple of threads on BMI and ASCAP. Welp, this is kind of like when ASCAP went after the Girl Scouts for royalties.

 

Here's the basics on this one: "The filmmaker, Jennifer Nelson, was producing a documentary movie, tentatively titled “Happy Birthday,” about the song, the lawsuit said. In one proposed scene, the song was to be performed. But to use it in the film, she was told she would have to pay $1,500 and enter into a licensing agreement with Warner/Chappell, the publishing arm of the Warner Music ..." A lawsuit was filed on Thursday by the filmmaker in New York "seeking to have the court declare the popular ditty to be in the public domain." How big is this? An estimate says that "Warner/Chappell collected approximately $2 million per year in licensing fees for the song."

 

Here's the NYT article - http://www.nytimes.com/2013/06/14/nyregion/lawsuit-aims-to-strip-happy-birthday-to-you-of-its-copyright.html?_r=0

 

And an article in Money - http://money.cnn.com/2013/06/14/news/companies/happy-birthday-lawsuit/index.html

 

 

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Never would have guessed that song had been copyrighted.

But I don't think anyone owns that song, and that it should be included in the public domain.

Heck, I was at a restaurant the other night and heard the staff sing that song three times to three different tables in one night.

Perhaps I should report them.... :-k :)

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Guest Farnsbarns

Those who know a bit about me will know I am very close to this. I can not say anything specific but I can express my wider opinion on it. Happy Birthday is an intellectual work like any other, why shouldn't it be copyright? It goes public domain very soon but until it does, it is someone's work and it's rights are owned by someone, if you want to use it you have to pay. Singing it to your friends in public is no different to singing along to Bohemian Rhapsody in the pub, no one is going to present you with a bill, but use it in a film and they are.

 

 

The contents of this post represent my own, independently formed opinion, based on nothing but publicly available facts and general knowledge.

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Those who know a bit about me will know I am very close to this. I can not say anything specific but I can express my wider opinion on it. Happy Birthday is an intellectual work like any other, why shouldn't it be copyright? It goes public domain very soon but until it does, it is someone's work and it's rights are owned by someone, if you want to use it you have to pay. Singing it to your friends in public is no different to singing along to Bohemian Rhapsody in the pub, no one is going to present you with a bill, but use it in a film and they are.

 

 

The contents of this post represent my own, independently formed opinion, based on nothing but publicly available facts and general knowledge.

 

Is the person who created this melody receiving any of this money?

This is about greedy old men milking everything they can out of legal technicalities.

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Is the person who created this melody receiving any of this money?

This is about greedy old men milking everything they can out of legal technicalities.

 

If you write a song and publish it you'll have a publishing company dealing with that for you. When you die the work will remain copyrighted until 70 years later and your estate will continue dealing with a publishing company of their choice.

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I don't mind the song being coyrighten at all. I sing Las Mananitas and make up my own rock b-day songs which I sing to friends.

 

"Its your b-day, you're gonna die sooner now. Its your b-day, lets make you a paper crown." Any lyrics that come to your head, to the stylings of old punk will do; off key is best.

 

FK the boring happy b-day song, but if you wanna sing it in a film, pay for it damn you.

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If you write a song and publish it you'll have a publishing company dealing with that for you. When you die the work will remain copyrighted until 70 years later and your estate will continue dealing with a publishing company of their choice.

Irrelevant to the matter at hand. Patty Hill's estate makes no revenue from this song. This song is a testament to why the system is broken. Happy Birthday is a pop culturally relevant song, a hundred and nineteen years old, and used daily. This is why Warner bought the rights in 1988, to basically trick people into having to pay royalties once a cease and desist order is mailed to them after they've used it. They have a lawyer dedicated to ensure they make their two million a year from this song, much of that cash coming from out of court settlements.

 

And this situation is being exploited to the point where copyright trolling is big business in it's self, without creation or artist compensation.

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1.) "Bought the rights". Whoever owned it, going back to the original owner, was compensated. You can be compensated once when you sell the rights, or you can be compensated as many times as you'd care to demand payment for your work, provided...

 

2.) the user is profiting from the use of the song. Contrary to popular belief, especially here it seems, there are no old men in suits running around squeezing nickels out of teenagers singing happy birthday at their unicorn party. If you aren't making money beyond a certain point, you aren't paying money after a certain point.

 

3.) You pay for the rights for a limited number of sold performances. For you and me, 1500 is a pretty good deal for say, 2, 3000 copies. If you and I can sell 3000 copies of a cover, we should then have to re-negotiate our right to sell covers of someone elses material. I'm only assuming 2 thousand copies, that's about the usual for folks like us. I'd imagine a filmmaker is going to have to go by the number of people in the room that paid to hear the song, so it could get pricey for them, but,

 

4.) They are making money using someone elses work.

 

I've said it zillions of times in guitar places in 20 odd years. I am always amazed at musicians that want to up the man, when the man is seeing to it that musicians are getting what they should. The only people that are put off by copyright costs are people that have never copyrighted something, which means they've never created something and tried to protect their own compensation for use of that something when someone is using it to make money.

 

It's like yer job, that nobody here would go to if the pay checks stopped, right?

 

rct

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Guest Farnsbarns

Irrelevant to the matter at hand. Patty Hill's estate makes no revenue from this song. This song is a testament to why the system is broken. Happy Birthday is a pop culturally relevant song, a hundred and nineteen years old, and used daily. This is why Warner bought the rights in 1988, to basically trick people into having to pay royalties once a cease and desist order is mailed to them after they've used it. They have a lawyer dedicated to ensure they make their two million a year from this song, much of that cash coming from out of court settlements.

 

And this situation is being exploited to the point where copyright trolling is big business in it's self, without creation or artist compensation.

 

BS. IMHO

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Cupla points...

 

As one who has made his living for nearly 50 years creating various sorts of copyrighted "intellectual property" or "art," however you wish to define it...

 

Sorry, but I think the copyright system along these lines is totally broken at this point.

 

My understanding in the US, at least, that "Greensleeves" is copyrighted and "owned" by a "licensing agency." And that song goes back how many centuries? It that either right or moral, regardless that it may be legal? Ditto other "folk" tunes and lyrics, btw, as well as, I've been given to understand, some baroque and classical bits.

 

The US "licensing" agencies also have no way, nor inclination, to document how many times a given piece is played in live performances, so the bottom line is that there is "sampling" in ways secret even from the artists, of various broadcast media. Unless you've a "big hit," the potential for seeing a nickle is pretty low.

 

Also, as several venues in my area were told when they responded that they were hiring singer-songwriters who did their own material, "You have no proof they're not doing our licensed material, so pay up or we'll bring you into court for everything that might have been done." Since legal fees alone would destroy a small coffee shop/saloon... the music died.

 

Where does the money go, then, if not to the author?

 

m

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Guest Farnsbarns

If the author, or their estate, sells the rights to their publisher, they get an agreed lump sum and the ownership of the rights transfers to the publisher for the life of copyright. In some cases the details become vague, such as if the work is words, put to an existing melody, then the end of the life of copyright becomes arguable.

 

It doesn't matter how popular or well known a piece of music becomes, if someone owns the rights, they own them, end of story.

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It doesn't matter how popular or well known a piece of music becomes, if someone owns the rights, they own them, end of story.

 

So why do you suppose it is so hard to explain this idea to musicians?

 

rct

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So why do you suppose it is so hard to explain this idea to musicians?

 

rct

 

 

Because there are 2 types of musicians.

 

1. The creative types who actually create/write/compose....

 

2. The other types with little or no creative ability who can only regurgitate what others have created.

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RCT...

 

It's hard to explain to "musicians" precisely because of the way the system works for the licensing organizations and a few individuals and corporations.

 

Again, the laws allowing this in the U.S. date back to the early days of sheet music, player piano rolls and sound recording. Additional court decisions in that old time period pretty well set the stage so that one could not reprint sheet music or copy a sound recording. When the new "sound radio" and "talking movies" arose, they fell under the blanket of such law - and precedents set in litigation.

 

The problem arose as radio, especially, began to bring a perceived "competition" with records and, to a lesser extent, sheet music. So ASCAP got hit by BMI around the time of WWII and the musicians union also was pushing for their organization.

 

Bottom line? Like it or not, when the dust began to settle the big organizations have the money and decisions how they may or may not pass any on to whomever created it. I know that's not following the party line, but there's just far, far too much evidence from the 30s through the '60s (remember something called "payola?") that money was the game, not the artist or the music.

 

Don't believe me. Try to find out how artists are paid. And which artists. And how there's no songlists taken in average music venues, but the intimidation factor forces a site license or shutdown of music. Where does that cash go if not to whomever may have created it? It ain't the artist, it's who comes up on a secret listing that supposedly reflects "airplay."

 

If you think that benefits musicians and songwriters, be my guest.

 

Assume a 1965 folkie-rock sorta piece I performed for maybe 12 years off and on, on live radio and in saloons, had been picked up by enough other musicians to get played weekly in 30 regional venues. Even if I'd done a written copyright and "joined" ASCAP or BMI, there's no way I'd see a nickel. In fact, in theory if it got no air play, just live in saloons, I'd not see a nickel.

 

Who gains? The same who gained in 1910, 20, 30, 40, 50, 60, 70, 80, etc. The corporations and the Colonel Parkers of the biz. Yeah, the big names make more than enough money to be comfortable - and if they're good business people, to invest well. But I've known too many who weren't, regardless how their post-fame failure is often sugar coated.

 

What I think is literally so funny it's laughable is that when someone says that sorta thing, folks will assume, "gee, it's a radical anti-business left-winger lying about it." But no, I'm just a country boy who figures there's some unfortunate truth involved, and it ain't the "honest business handshake" involved anywhere much above the honest band and honest venue operator.

 

m

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RCT...

 

It's hard to explain to "musicians" precisely because of the way the system works for the licensing organizations and a few individuals and corporations.

 

The system works for everyone. It is not the systems fault that in the 80's people started giving away the rights to their music for the big up front payment, because that's what they did, and for a very long time it was the standard contract that you actually had to read and contest with your own lawyers to avoid. It isn't the systems fault that most people that own the rights to material don't have the resources and capital to enforce payment for their work, because the system doesn't just mail out big fat checks. It protects the owner of the material in the event someone else profits from the material, but it is up to the owner to pursue remedy.

 

Again, the laws allowing this in the U.S. date back to the early days of sheet music, player piano rolls and sound recording. Additional court decisions in that old time period pretty well set the stage so that one could not reprint sheet music or copy a sound recording. When the new "sound radio" and "talking movies" arose, they fell under the blanket of such law - and precedents set in litigation.

 

The problem arose as radio, especially, began to bring a perceived "competition" with records and, to a lesser extent, sheet music. So ASCAP got hit by BMI around the time of WWII and the musicians union also was pushing for their organization.

 

Bottom line? Like it or not, when the dust began to settle the big organizations have the money and decisions how they may or may not pass any on to whomever created it. I know that's not following the party line, but there's just far, far too much evidence from the 30s through the '60s (remember something called "payola?") that money was the game, not the artist or the music.

 

Money is the game. They aren't record companies, they don't do artist development, they don't hook up Diddy with Zeppelin to re-do Kashmir. They are organizations that pursue claims to payment for other entities that profit from the works of song writers and publishers. Money is the game. I don't know if either one told you they are all about artists and music, but if they did, they lied.

 

Don't believe me. Try to find out how artists are paid. And which artists.

 

Both organizations will happily tell you this. I think I've seen you write this repeatedly in this place. If you don't feel like pursuing it, that's one thing. But to dismiss the really complex formulas used as either non existent or not available is just plain ignorant. It is all there, you can get it. You'll especially be interested in it if one or the other is managing your rights.

 

And how there's no songlists taken in average music venues,

 

No, they gave up the songlist thing a long time ago, it is a very complicated method of figuring out where it all goes. Prolly far too much statistics for me, but somebody knows how to do it, that's why the are performing rights organizations and I'm not. You either.

 

but the intimidation factor forces a site license or shutdown of music.

 

It's the cost of doing business. When you open a venue and you make money on people playing music you pony up your share to the giant pool that someone then goes through some very complicated hoops to figure out how to distribute. What? Guys with violin cases that have machine guns in them? Horses heads in beds? What intimidation? If you don't pay your liability insurance your building will close and you won't have your business. If your business is making money from the peformance of music that has the rights to it managed by a performance rights organization, you have to pay them too.

 

Where does that cash go if not to whomever may have created it? It ain't the artist, it's who comes up on a secret listing that supposedly reflects "airplay."

 

I don't know. I suppose you would have to ask the artists that have their rights managed by one or the other how much they think they are not getting and where is it going. To ask such things of the air is really dumb and does nothing for musicians and writers.

 

If you think that benefits musicians and songwriters, be my guest.

 

I think anything that at least tries to pursue the rights of artists to collect their pay when someone else is making money is a benefit, because the alternative is to not have anyone to do that and leave it up to the artist to go out and rustle up the money owed.

 

Assume a 1965 folkie-rock sorta piece I performed for maybe 12 years off and on, on live radio and in saloons, had been picked up by enough other musicians to get played weekly in 30 regional venues. Even if I'd done a written copyright and "joined" ASCAP or BMI, there's no way I'd see a nickel. In fact, in theory if it got no air play, just live in saloons, I'd not see a nickel.

 

So let me guess, the guy that has never copyrighted anything or had anyone pursue his rights to payment for music written that made others money....what? You never did it because you know it doesn't work but somehow gazillions of musicians are somehow paid gigantic amounts of playuh cash via their performance rights that are managed by one or the other?

 

Who gains? The same who gained in 1910, 20, 30, 40, 50, 60, 70, 80, etc. The corporations and the Colonel Parkers of the biz. Yeah, the big names make more than enough money to be comfortable - and if they're good business people, to invest well. But I've known too many who weren't, regardless how their post-fame failure is often sugar coated.

 

Who gains? The one that owns the rights. Period. As rock and roll grew and they started having no toothed south jersey rednecks like me in the business they saw ample opportunity to try and secure as much of the rights to the material as they could. That's what Colonel Parkers and coroprations do, in case you haven't noticed, none of them give you anything. As artists started realizing that the single biggest aspect of their success was the rights to their material they started not selling out right away. Concurrently, media exploded into forms not even considered when ASCAP started in early 1900s. There has always been a need to pursue the rights to payment, but not nearly been so many avenues to go down to secure it, leaving artists that don't do this full time with the inability to be their own police because all of the potential venues for their material are just too much for one small timer to police. So they sell the rights. If you don't want to sell yer rights, don't. If you sell your rights and the big shots you sold it are making a load of money for years to come and you have one big payment to make last the rest of your days, deal with it.

 

Or don't copyright anything and sputter on about how bad it all is, help yerself.

 

What I think is literally so funny it's laughable is that when someone says that sorta thing, folks will assume, "gee, it's a radical anti-business left-winger lying about it." But no, I'm just a country boy who figures there's some unfortunate truth involved, and it ain't the "honest business handshake" involved anywhere much above the honest band and honest venue operator.

 

I don't giveas hit about yer politics or your philosophy. You are talking about very very very verifiable facts about the music business, in a room full of people with varying degrees of involvement in the music business. And when called on it, you continue to pull back to some position of well I've never done that but I know it sucks and it's all fat cats and governments and politicians and corportations but I've never done that. So sure, it is all those things. And if you write a good one, take care of the very simple steps to have your rights secured, and then sell those rights to someone that wants that song, you'll be way better off than you were if you didn't have that system.

 

Party on.

 

rct

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1. "gazillion musicians" making "gazillions?" Yeah, right.

 

2. One's material is, and has been in the relatively modern era (dating back at minimum to the mid 1800s), copyrighted at the moment of "publishing." Registration is something of a different issue in law.

 

3. Rights to Greensleeves and batches of folk tunes and lyric was sold to a licensing agency by whom? And what is a copyright-able 3-minute tune or blues lyric? The law is sufficiently hazy that it tends to come down to litigation, but only after bundles of cash are involved - or threats of lawsuits.

 

4. Protection of one's copyrighted material, music, "art," written material and even "choreography" (to my knowledge I'm the first to register a copyright for martial arts forms in the US, and that was an interesting bit to figure how to document it as choreography for copyright purposes,) is and always has been the responsibility of the owner of the copyright.

 

5. Neither organization really will tell you the precise mode in which sampling is done of air play. Again, a "big hit" artist will obviously be more likely for that sampling. And again, there's no taking of songlists in small venues, just a blanket "license" that goes where? To the license enforcement agency that pays artists on a basis of what?

 

Again, we're arguing the same arguments that brought significant changes in the biz in the era of WWII and immediately thereafter - and the winners weren't musicians and composers as a whole.

 

6. Intimidation doesn't require submachine guns. A credible threat of a lawsuit by a corporate giant with the means and history of litigation until their target is forced out of business or into bankruptcy is more than sufficient, whether in this case or other areas of litigation. The difference is that much, if not most other business litigation offers an option other than "pay or else" as in various "protection" rackets.

 

7. My points are precisely the ones raised that brought BMI into existence and brought the musicians union into its downward spiral during and after "the war." It has as much to do with all copyright issues as those specifically dealing with music.

 

It's incomprehensible how Greensleeves can be "owned" by a copyright licensing agency. Your recording of it, perhaps. Therein lies the rub, and what I and a law firm in D.C. had to wrestle with in terms of a specific type of "choreography."

 

You and I might appear to argue until I croak - I assume I'd go first given my age - but these same arguments are involved in litigation literally every day in terms of copyright and other intellectual property law.

 

But dating back to the formation of ASCAP - and its predecessors of the pre-recording era in music, believe it or not - the purpose never was to "protect" the artist, but rather the "publisher."

 

m

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1. "gazillion musicians" making "gazillions?" Yeah, right.

 

There are lots of musicians making super great piles of money. You and me are arguing about the relative merits of the system that pursues their rights to make that money. Two of us are on the wrong side of this. If you'd like to get caught up in "gazillion" you can, but you do know that there are a whole lot more doing very well than you and I are, in this context.

 

2. One's material is, and has been in the relatively modern era (dating back at minimum to the mid 1800s), copyrighted at the moment of "publishing." Registration is something of a different issue in law.

3. Rights to Greensleeves and batches of folk tunes and lyric was sold to a licensing agency by whom?

 

I don't know. You don't know. You could probably find out if you wanted. I don't care. Somebody owns the rights, that's all we need to know.

 

And what is a copyright-able 3-minute tune or blues lyric? The law is sufficiently hazy that it tends to come down to litigation, but only after bundles of cash are involved - or threats of lawsuits.

 

Write a three minute song and copyright it. You'll know. You won't need bundles of cash, you won't need any lawsuit. Just write one and do the paperwork. If someone makes money off of your copyrighted three minute song, you'll have recourse.

 

4. Protection of one's copyrighted material, music, "art," written material and even "choreography" (to my knowledge I'm the first to register a copyright for martial arts forms in the US, and that was an interesting bit to figure how to document it as choreography for copyright purposes,) is and always has been the responsibility of the owner of the copyright.

5. Neither organization really will tell you the precise mode in which sampling is done of air play. Again, a "big hit" artist will obviously be more likely for that sampling.

 

A digital tracking system(I don't know how it works so it must be awful), station logs provided by major markets or anyone else they'd care to ask, and allegedly random unannounced recording of radio. They'll even tell you this if you ask.

 

And again, there's no taking of songlists in small venues, just a blanket "license" that goes where? To the license enforcement agency that pays artists on a basis of what?

 

The flat rate money is distributed based on the airplay distribution and even more complex television and film factoring. Flat rate is bars, nightclubs, parades, restaurants, hotel lobbies, elevators, supermarkets, all those places that could play anything at any time. The rough first whack at airplay:

 

CREDIT = (Use Weight X Licensee Weight X "Follow The Dollar Factor" X Time Of Day Weight X General Licensing Allocation + (Radio Feature Premium Credits + (Television Premium Credits)))

 

Again, we're arguing the same arguments that brought significant changes in the biz in the era of WWII and immediately thereafter - and the winners weren't musicians and composers as a whole.

6. Intimidation doesn't require submachine guns. A credible threat of a lawsuit by a corporate giant with the means and history of litigation until their target is forced out of business or into bankruptcy is more than sufficient, whether in this case or other areas of litigation. The difference is that much, if not most other business litigation offers an option other than "pay or else" as in various "protection" rackets.

 

Milo, seriously? If you make pizzas for a living and you don't pay your suppliers, they'll take you to court to get their money and quite possibly put you out of business. If you open a nightclub and you make money by having bands in and you don't pay your suppliers you'll be taken to court and quite possibly put out of business. Is that really that hard a concept to grasp, no matter who owns the rights to your supply of songs to be played in your bar so you can make money?

 

7. My points are precisely the ones raised that brought BMI into existence and brought the musicians union into its downward spiral during and after "the war." It has as much to do with all copyright issues as those specifically dealing with music.

It's incomprehensible how Greensleeves can be "owned" by a copyright licensing agency. Your recording of it, perhaps. Therein lies the rub, and what I and a law firm in D.C. had to wrestle with in terms of a specific type of "choreography."

 

I think Greensleeves is too old for copyright protection. The performance of it is copyright protected. Many many many times many people assume that because the material is in the public use then the recording is, and that's how they come up against some giant company, because they bought the rights to that performance, and you and I could amass the capital and do the same.

 

You and I might appear to argue until I croak - I assume I'd go first given my age - but these same arguments are involved in litigation literally every day in terms of copyright and other intellectual property law.

 

But dating back to the formation of ASCAP - and its predecessors of the pre-recording era in music, believe it or not - the purpose never was to "protect" the artist, but rather the "publisher."

 

They protect the owner of the rights. If yer hung on the word "artist" that's too bad.

 

rct

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Hmmmm....

 

Let's see... who gave them the rights to "Greensleeves?"

 

Or to suggest that if a singer-songwriter venue isn't paying protection money that it's guilty until proven innocent in a civil lawsuit for copyright "infringement" regardless that only original material is being played?

 

I'm not hung up on "artist," especially as one who has done many "works for hire" over the years. I just find the system if "legal," not at all what I'd consider ethical by any stretch of logic or imagination.

 

m

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Guest Farnsbarns

M, where do you get this idea that Greensleeves is copyright protected. I've just checked and there is no registration for it (with collection societies), that I can find, world wide, excepting some specific recordings. I might have missed something but I wonder if you may have been misinformed somewhere along the line.

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Last I read, BMI had it on their list. That's roughly three years ago or so.

 

Yes, it may be a "specific recording," but the difficulty there would and could be the degree to which it might be "illegally copied."

 

m

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Guest Farnsbarns

I'm left wondering where you read this. Some journalists have a habit of repeating the erroneous ramblings of the previous journalist, who, in turn, will cite the one that came before. Now, there are several specific recordings of it that are protected and registered but that's a different beast all together.

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Farns...

 

Not necessarily true if there's a recording copyrighted... a civil suit on the degree of "copying" an arrangement is as valid as the tune and lyric. In short, guilty until proven innocent.

 

We've seen photos ditto, btw, as well as various periodical articles and bits of books.

 

And again, it ain't a matter of statute "legal," even case law; it's a matter of the threat of a civil lawsuit.

 

m

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Hmmmm....

 

Let's see... who gave them the rights to "Greensleeves?"

 

Dude. Seriously. Put down the pall mall a minute here. Nobody GAVE anyone the right to Greensleeves. It was written down, as far as I know, prior to the copyright system, so it is what is called public domain, right? You do know that, right? So any issues with that song are issues that fall from some entity, a film, teevee show, grocery store, or country fair, using a performance of that song without compensating the owner of the rights to that particular performance of that song. If you use Eddie Arnolds version of it, Metallica pretty much won't care because it isn't theres. But Eddie and his handlers and his rights managers will care, they will prolly care very much. Why doesn't that seem to make sense to you? Seriously, forget all the half questions and 24% complete statements, why doesn't that seem to make sense to you?

 

Or to suggest that if a singer-songwriter venue isn't paying protection money that it's guilty until proven innocent in a civil lawsuit for copyright "infringement" regardless that only original material is being played?

 

What are you talking about? There is no lawsuit for a venue "infringing", there is lawsuit for a venue failing to pay flat rate for the music that is performed in their venue. What are you talking about, please?

 

I'm not hung up on "artist," especially as one who has done many "works for hire" over the years. I just find the system if "legal," not at all what I'd consider ethical by any stretch of logic or imagination.

 

Try not using logic or imagination. Try actually trying to use the system, or at least pay attention to folks that do use the system and put aside your own disbelief, as we are all required to do from time to time.

 

rct

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