Mark Zuckerberg Senate Testimony: My Review



Mark Zuckerberg Senate Testimony: My Review
by Susan Basko, Esq.

April 11, 2018.  Yesterday, I watched a good portion of Mark Zuckerberg, CEO of Facebook, testifying before the U.S. Senate.  The hearing lasted about 5 hours.  Each Senator was given a few timed minutes to speak and ask questions.  I missed the first part, so I  could not tell in what order the Senators were being called.  It did seem to be alphabetical or in order of seniority in the Senate.  Many of the Senators stated they are Facebook users.  Most of them did not seem to understand how things work, such as Facebook privacy settings, third party apps, Terms of Service.  The basic information that I hoped to get from the hearing was never addressed. These would have been my questions:

1. The app in question was a personality quiz.  Were the quiz answers that people gave included with the basic account information that was sold to Cambridge Analytica?

2. Do other quizzes and similar apps retain the answers given by those who take the quizzes, and are those retained alongside basic user information?

3. Are app/ quiz makers free to retain the answers and basic user info, if they do not sell it? Are they free to sell it?  Have other quizzes and apps sold the information?

4. Has gathering of information of third party information gathering stopped, as Mr. Zuckerberg stated?  When did this stop?  The Facebook privacy settings showed this as still happening just about a week ago. By this, I mean, that when a Facebook friend uses an app, it gathers the information of unsuspecting friends, unless they opt out on privacy settings from allowing third party app collection of information.  Has this really stopped?

4a. Is it fair for Facebook to change users' privacy settings? For example, a few years back, I made the settings to not allow any third party app to access my information.  Then, I went recently and saw that the privacy settings had been changed and all my information was being made available, without my input or knowledge.  Why is Facebook changing the settings without my input or knowledge?

5. If a Facebook user has things set to private, such as their Friends list and their birthdate, is that information still harvested by apps and quizzes?

6. Regarding the personality quiz app designed by Aleksandr Kogan, did it harvest the user information of the friends of those who took the quiz?  Did it harvest the information of the "friends of friends" of those who took the personality quiz?

7. What was the name of the personality quiz?

8. It seems suspicious/convenient to me that Facebook automatically changed user's third party privacy settings to make all data available to third parties, even when we had previously opted out of third party sharing, and then there was this app harvesting and selling third party info.  Can you explain why the privacy settings regarding third party harvesting were changed automatically?

In my viewing of the Senate hearing, none of these questions were answered.  Instead, Senators fussed about the difficulty of reading the long Terms of Service or of not understanding they can delete any post at any time or of not understanding that Facebook has lots of privacy settings.  The questions of the interface between apps/ quizzes and user info, and the use of that information by the app owners were not ever made clear in the hearing.

Review of Mark Zuckerberg's performance during the hearing:  I thought he did incredibly well.  He was placed at a desk on the floor, all by himself -- a genuine hotseat.  Funny pictures online showed he was sitting on a thick cushion, a "booster seat," according to one meme.

Mr. Zuckerberg addressed each Senators as "Senator," rather than as "Sir" or "Madam," or by name. This was a very good move.  It showed sexual equality of the men and women Senators, and he did not need to worry about getting tripped up on any names.  Everyone was "Senator."

One Senator tried to strong arm Mr. Zuckerberg into backing a piece of legislation to extend the online child privacy act upwards to age 16.  This particular Senator seemed like he was trying to garner Mr. Zuckerberg's endorsement, right there in the hearing, of a piece of legislation he had not seen and that had not even been written.  Mr. Zuckerberg wisely and astutely did not agree to this, while remaining polite to the Senator.

A funny few moments came when Senator Dick Durbin of Illinois asked Mr. Zuckerberg if he would mind sharing what hotel he stayed at the night before.  Mr. Zuckerberg pondered, looked embarrassed, and then replied that yes, he would mind sharing that.  The question was a little set-up by Senator Durbin to show that there are some things we all want to keep private.

Mr. Zuckerberg wisely and honestly referred a lot of the questions over to his team, saying they would work with the Senators to provide answers and find solutions.  All told, Mr. Zuckerberg came across as a smart person, honest, and genuinely concerned with connecting people worldwide with their friends and families.  He also showed a concern for not providing a platform for such things as terrorism, violence, or bullying.  He referred to Facebook users as a "community."  Mr. Zuckerberg's wide-eyed enthusiasm of creating a worldwide community seemed to finally be informed with the stark fact that there are many bad actors with nefarious intent out there in the world.  A platform may be neutral, and while the vast majority of people will use such a platform to do good things, there are also plenty of people waiting to rush in and use it for bad purposes. 

 One surprising moment came when Mr. Zuckerberg genuinely seemed to not know what Section 230 of the Communications Decency Act entails, and how being a "pipe," as he referred to ISPs, rather than a "platform," as he referred to Facebook, could change immunity under Section 230.  He repeatedly stated that Facebook is responsible for the content.  He also mentioned several times that Facebook is planning to implement AI (artificial intelligence) to root out bad actors or bad content, such as terrorism.  He also stated that Facebook plans to have 20,000 humans screening content in native languages.  He stated that much terrorism is language-specific and would take a human to understand the nuance of it.

When break times were called during the hearing, many Senators left, making the room less crowded each time.  After the meeting closed, Mr. Zuckerbeg went around shaking hands with several of the Senators, and then was escorted out.  Mr. Zuckerberg may have left his notebook behind on the desk, because an AP photographer took a photo of the notes and posted it online.  The notes were very basic and showed that he planned to keep his answers light, not technical, and to refer tricky questions over to his team.

All in all, I would give Mark Zuckerberg an "A" on his performance before the Senate.  It would have been an A+ if he had understood the questions about Section 230 of the CDA, or the legal differences between being an ISP and a content provider.  His lack of knowledge on this topic seemed genuine and perhaps his response does signal trouble with how Section 230 has been interpreted to mean that an ISP can have tort immunity if its users fill the site with defamation and invasions of privacy.  To me, it sounded like Mark Zuckerberg was saying that was not good enough for him, that he wants to provide a good platform that creates Community.  And maybe that should be the goal of all social media platforms, rather than hiding behind the legal immunity protections.

Copyright: How to Protect Your Visual Art


Copyright: How to Protect Your Visual Art
by Susan Basko, Esq.

Visual art is often copyright infringed these days, in large part because of online printing companies that allow art created by anyone, without properly vetting the source. There are several things you can do to help protect your visual art.

Examples of visual art protected by U.S. Copyright include (but are not limited to):

Advertisements
(visual / photography)
Architectural Works
Artwork (2D, 3D)
Blueprints
Board Games (visual aspects)
Buildings
Carpeting
Cartography
(maps / globes)
Cartoons, Comic Strips, Comic Books
Catalogs (visual aspects)
Craft Kits Drawings
Fabric Designs
Flooring Designs
Geologic Charts
Graphic Designs
Greeting Cards
Illustrations
Jewelry Designs
Labels (visual aspects)
Logos
Maps
Masks
Models
Paintings
Photographs
Posters
Prints / Reproductions
Product Packaging
Puppets
Scientific Drawings
Sculptures
Stationary
Stencils
Technical Drawings
Textile Designs
Toys
Vessel Hulls
Wallpaper
Websites
Wrapping Paper

HOW TO BEST PROTECT YOUR VISUAL ART:

1. Register Copyright with the U.S. Copyright office on each visual art work.  In some instances, registering a group of works as a collection is more affordable.  Registering each work separately and carefully providing a name that actually describes the content of the work, and giving solid contact information, goes a very long way in protecting copyright.  While copyright theoretically exists on any work that is creative and original and set into tangible form, the only way to make use of Copyright protections is to register the work with the U.S. Copyright Office.  Registration before the work is infringed or shortly after it is created is the only method that brings the possibility of statutory damages and attorney fees in case of an infringement lawsuit.  There is no substitute for Copyright registration. There is virtually no copyright protection on any work unless it is registered.

2. Put the Copyright sign onto the work.  That's the copyright symbol ©, followed by the first year of publication, followed by the name of the copyright owner. © 2018 Susan Basko   Having the copyright notice on your work gives notice and also removes any defense that the infringement was inadvertent.

3. Watermark the copyright symbol and name of the owner using a watermarking or tagging app, or by including it into the design itself.

4. License Information you provide must be crystal clear.  "The work must not be altered.  The artist's name must not be removed. No derivative works allowed without permission." Etc.

5. Periodically Check to see if your work is being infringed online, on social media, by online sellers, in stores, by art or photo licensing companies, by print-on-demand companies, elsewhere.

6. Send take down and removal notices. Learn how to do this.  The most potent way to tell someone to take down your art work is by providing the registered copyright information.  To be able to provide that, you need to first register copyright on the work.

7. Work closely with a lawyer who will help protect your copyrights.


Jason Lee Van Dyke Applies for "Proud Boys" Trademark

Specimen from Proud Boys Trademark Application
Jason Lee Van Dyke Applies for "Proud Boys" Trademark
by Susan Basko, esq.

BIG Update!  April 8, 2018.  Jason Lee Van Dyke has sent in changes he would like published -- so I am going to put them below each paragraph, labeled "From JLVD," and highlight those in a soft blue tint.  That way, you can compare what I wrote and what he is saying, which seem to be clarifications.

April 8, 2018.
  Jason Lee Van Dyke, a Texas lawyer who calls himself the Sgt. at Arms of the Proud Boys, is soon to get the registered trademark on the words "Proud Boys" under International Class 35, described on the application as "Association services, namely, organizing chapters of a fraternity and promoting the interests of the members thereof."  The application, filed August 9, 2017, was published for opposition on February 20, 2018. There is a 30 day opportunity to object.  The USPTO application page shows no oppositions, thus the mark is most likely going to be entered onto the principal register under the ownership of JLVD Holdings, LLC, of Crossroads, Texas.

From JLVD: This is false.  I am the Sergeant-at-Arms of the Dallas/Fort Worth chapter of the Proud Boys.  There is no Sergeant-at-Arms for the fraternity as a whole.

The Proud Boys is basically a group of white men that might be called KKK-Lite.  The Southern Poverty Law Center (SPLC) has labeled the Proud Boys a hate group, and you can read about that in detail at this LINK.  The last few paragraphs of the long SPLC write-up covers Mr. Van Dyke.

From JLVD: This is false.  The Proud Boys is a multi-racial organization with two criteria for membership:  (1)  The person must be biologically male; and (2) The person must believe that the West is the Best.  By this, the “West” refers to western culture generally while recognizing the contributions of a multitude of races to the West.  In fact, our bylaws explicitly prohibit membership by persons associated with white nationalism, white supremacy, or the alt-right.  This would naturally include the KKK. 

Note: Mr. Van Dyke has also applied for a trademark on "West is the Best." As of this date, that trademark application is on its Final Notice of rejection, based on technicality involving the specimen.

Jason Lee Van Dyke is notorious for several years ago posting shocking racist tweets on Twitter.  The tweets use the word "nigger," and show a photo of a noose, and make death threats.  Mr. Van Dyke says he was responding to harassment.  The tweets will not be shown here to avoid repeating that hate, but they can be easily found on the internet if anyone has a need to see them.

From JLVD: This is accurate except that I was not responding to harassment.  I was responding to an individual that had posted my social security number, and those of both my elderly parents, on Twitter while encouraging other users to rob us.  I have said repeatedly that I regret by choice of words, but I absolutely do not regret threatening that individual and I would do it again using different words. 

Tom Retzlaff, a notable pro se litigant from Arizona and Texas, filed a bar complaint against Jason Lee Van Dyke.   The Texas State Bar dismissed the complaint, and Mr. Retzlaff appealed that decision.  The appeal result found that complaint showed violations of several ethical rules and the matter was sent back to the State Bar for findings.

From JLVD: This is false.  The bar initially dismissed the complaint as an inquiry, which means that the complaint failed on its face to allege professional misconduct.  Mr. Retzlaff appealed to the Board of Disciplinary Appeals which found that, when considering the complaint and nothing else, it alleged a violation of the rules on its face.  The only effect of this ruling was to return he complaint to the State Bar for investigation.  The investigation is ongoing and no findings have been made one way or the other.

Meanwhile, Mr. Van Dyke had been offered and accepted a position with the Victoria County, Texas, Criminal District Attorney's Office on March 1, 2018, and the offer was rescinded on March 21, 2018.   Jason Lee Van Dyke believed that Mr. Retzlaff was behind the rescission of the offer. Jason Lee Van Dyke then sued Tom Retzlaff for defamation, asking for $10 million.  Mr. Retzlaff then filed with the court a settlement offer, demanding $75,000 from Mr. Van Dyke to settle the lawsuit, or stating he would take much more in an anti-SLAPP motion.  

From JLVD: This is false.  Mr. Retzlaff admitted in his bar complaint, dated December 20, 2017, that he was the person responsible for the rescission of the job offer.  This is how I obtained the legal basis to sue him over the rescission of that offer.  On or around March 27, 2018, he was also responsible for my termination from a different company due to his own postings online about the company.  He is being sued for that as well.  I didn’t sue him for $10 million: I sued for $100 million.  Mr. Retzlaff’s settlement offer has been received, and it has been rejected. 

An anti-SLAPP is a motion allowed in some states, including Texas, aimed to end a lawsuit quickly when it has been brought for the purpose of silencing speech on a public topic. SLAPP stands for "Strategic Lawsuit Against Public Participation." An anti-SLAPP motion that is won requires the Court to award sanctions to the defendant/ motion plaintiff.   In that settlement offer, Mr. Retzlaff goes into a full-fledged rant about the inappropriateness of someone who belongs to the Proud Boys and who makes racist posts on Twitter thinking he can work for a District Attorney's Office.  If you have always wanted to read a court filing that includes the word "shithead," you might want to look this one up. I'd post it here, but I do not want to get too far off-track from the topic of this trademark application.

So, that is the lowdown on who JLVD and the Proud Boys are -- now back to this trademark application.  Below, you can see the category of the goods or service is International Class 35, described as "Association services, namely, organizing chapters of a fraternity and promoting the interests of the members thereof."

Okay, so Proud Boys is a fraternity.   


Proud Boys Trademark Application showing description of the service

Proud Boys Trademark application stating JLVD  Holdings as owner.

Jason Lee Van Dyke lists himself as the attorney of record as well as the correspondent on the file.


Proud Boys trademark application, showing Jason Lee Van Dyke as both the attorney and correspondent.

When applying for a trademark, one must include a "specimen," which is an example of the mark being used in commerce.  In this application, Mr. Van Dyke provided 3 specimens, shown below.



The first specimen is shown above.  It shows the words "Proud Boys," a clenched fist, and the word "Uhuru."  As far as I know, "Uhuru" means "Freedom" in an African language, and is a symbol of the African Nationalist movement.  Okay, whatever.
 This second specimen looks like a picture of a rooster wind vane.


This last specimen shows a t-shirt with the words "Proud Boys," with an American flag in the background.  By the way, this appears to be a "fake specimen," meaning a stock photo from a t-shirt printing company, not a photo of an actual real, existing t-shirt. However, since it is one of three specimens, its inauthenticity would probably not kill the application.

The big question is whether the USPTO will allow a group that is said to be a racist hate group to have a trademark on the name of the group.  There are two legal factors in this.  First, is that the Trademark Manual of Examining and Procedure, Section 1203.01, as well as Section 2(a) of the Trademark Act, 15 U.S.C. §1052(a), prohibits trademarks that are "scandalous or immoral." The second factor is that the goods or services themselves must be legal.  For example, marijuana is federally illegal, and so trademarks cannot be registered where the good, or product, is marijuana.  

The mark "Proud Boys" is not in itself "scandalous or immoral," for example, as a pornographic picture  or words would be.  But the connotations might be scandalous or immoral.  A 2005 application for a trademark on the "Southern White Knights of the Ku Klux Klan" was rejected by the trademark examiner on the Section 2a basis, as follows:

"Section 2(a) Refusal
Registration is refused because the proposed mark consists of or comprises immoral or scandalous matter.  Trademark Act Section 2(a), 15 U.S.C. §1052(a); TMEP §1203.01.  According to the attached evidence from the Internet, the proposed mark includes the wording KU KLUX KLAN and is thus scandalous because a majority of the public finds references to the KU KLUX KLAN offensive in light of their beliefs and historical behavior.

 To be considered “scandalous,” a mark must be “shocking to the sense of truth, decency or propriety; disgraceful; offensive; disreputable; … giving offense to the conscience or moral feelings; … [or] calling out for condemnation,” in the context of the marketplace as applied to goods or services described in the application.  In re Mavety Media Group Ltd., 33 F.3d 1367, 1371 , 31 USPQ2d 1923, 1925 (Fed. Cir. 1994); In re Wilcher Corp., 40 USPQ2d 1929, 1930 (TTAB 1996).  Scandalousness is determined from the standpoint of “not necessarily a majority, but a substantial composite of the general public, … and in the context of contemporary attitudes.  Id.

 A mark that is deemed scandalous under Section 2(a) is not registrable on either the Principal or Supplemental Register.  TMEP §1203.01."

However, since then, the U.S. Supreme Court ruled in a case involving a rock group called the Slants that its name could be registered as a trademark, although the name was considered "disparaging" to Asian Americans.  However, that ruling was made under a different part of the Lanham Act, which forbids a trademark that brings disparagement upon any person, living or dead.  You can read about that case at this LINK, which includes the document of the ruling made the U.S. Supreme Court.  To me, it looks like this ruling does not affect the law that refuses trademarks that are scandalous or immoral.

"Proud Boys" does not have the history or notoriety of the Ku Klux Klan, so most likely the name itself would not be considered "scandalous or immoral."  A case could be made for that, however, based on information of the Southern Poverty Law Center site listings on both the Proud Boys and one of its subgroups called FOAK

Let's look at a few other groups that some might consider "scandalous," that have or are seeking to register trademarks on their names:

The OATH KEEPERS has a pending trademark application on these categories:

“Association services, namely, promoting the interests of current and formerly serving military, peace officers and first responders by advocating its members disobey any order that violates the Constitution of the United States; charitable services, namely, organizing volunteers to undertake charitable projects in the field of disaster response,” in class 35;

 “Training services in the field of disaster preparedness, civil defense operations and physical security,” in class 41.

The Southern Poverty Law Center also lists Oath Keepers as an extremist group, although the site gives no examples of any "hate" activities.  The Oath Keepers application was published for opposition on February 20, 2018, the same date as the publication on the Proud Boys application.

The BLACK PANTHER PARTY: Since 2012, the Dr. Huey P. Newton Foundation, Inc. has had a registered trademark on "The Black Panther Party" in these categories:

Educational services, namely, organizing and conducting educational youth conferences; museum curator services, namely, exhibiting to the public historical archives; developing tutorial and mentorship programs, namely, training youth in black history, conflict resolution and reading and writing; producing documentary films.

Books in the field of history, politics, art, philosophy, psychology, science and social commentary; Calendars; Graphic art reproductions; Newsletters in the field of history, politics, philosophy, psychology, science and social commentary; Newspapers; Pamphlets in the field of history, politics, philosophy, psychology, science and social commentary; Paper bags; Photographs; Posters; Stationery.

 NATION OF ISLAM: In 2010, Muhammad's Holy Temple of Islam on Stony Island Avenue in Chicago, Illinois, applied for a trademark on the words "Nation of Islam" as "religious instruction services."  The Trademark Examiner refused the application as being "merely descriptive," meaning the words "nation" is equivalent to "group of people" and "Islam" is a religion, so the trademark is merely describing the service being provided and does not have any secondary meaning.

However, the Trademark Examiner also found that the trademark "Nation of Islam" (NOI) had "acquired distinctiveness" over 5 years in continuous use, and offered that the trademark could be registered by the group if they responded within 6 months stating their acceptance and acknowledging that the trademark had been in use for 5 years.  The Attorney of Record never replied to the USPTO, and the application was considered Abandoned and Dead.   It seems odd to me that the trademark was not accepted by the NOI group on the basis of acquired distinctiveness. That Maryam Mosque on Stony Island Avenue is now considered the headquarters of the Nation of Islam and could rightly lay claim to the trademark.  The failure to respond within 6 months could have been an oversight or misunderstanding of trademark process.

The Southern Poverty Law Center considers Nation of Islam  an "extremist group." Despite the group's history associated with anti-White racism, the Trademark Examiner did not raise an objection of the trademark being "scandalous or immoral."

WHAT WILL HAPPEN TO THE PROUD BOYS TRADEMARK APPLICATION?  So far, it looks like it will be granted. The Trademark Examiner has not made a finding of the trademark being "scandalous or immoral," nor has there been an investigation as to whether the activities of the group are considered illegal.  

However, as they say, it's not over till the fat lady sings, so let's keep an eye out to see what happens.


This could happen.  
Note: If you are going to "borrow" my work, at least give me credit.

Co-Songwriters: Basic Music Law


Co-Songwriters: Basic Music Law
by Susan Basko, Esq.

"Beautiful - The Carole King Musical" is a wonderful stage play about Carole King, one of most successful and beloved songwriters in the United States.  The show traces her songwriting partnership with Gerry Goffin.  In their partnership, Gerry Goffin often wrote the lyrics, while Carole King wrote the melody, composing on piano. 

Songs are a very important factor in U.S. musical history and form the basis of much of music law and music copyright law.  Music Copyright law in the U.S. is largely based on the concept of songs. 

What is a song?  A song is a short piece of music, with lyrics and melody.  Lyrics (the words) and melody (the tune) are the two components of a song that are recognized in U.S. Copyright law.  Music and lyrics are what traditional American songwriting are all about.  

Today, there is a lot of nontraditional songwriting, largely due to the use of electronics and computer music editing being used to create "songs."  Many rap or hip hop songs are created by making a beat, which is a short piece of sound, which may then be repeated over and over, with words spoken or sung to it.  Often, the beat is created by a beatmaker, who sells it or licenses it to a producer or music artist.  Many times, such songs are created without anyone playing any musical instrument, and there might not be a discernible melody, as such.  Often times, such a "song" is a product of creation on music editing equipment, rather than being lyrics that are written and a melody that is composed, which is then recorded.  

Music law and music copyright law were created to meet the needs of traditional songwriting, in an era before electronic music creation existed.  This blog post is about how music law and business treat the traditional song.

As stated, U.S. copyright law considers a song to be two elements: lyrics and a melody.  What does copyright law do with pieces of music that are drums or other sounds, with words spoken over them?  Copyright law gets confused by that.

Traditional songwriting in the U.S. has often involved co-songwriters.  Traditionally, this was two people -- one who was good at writing lyrics, and the other who was talented at composing, usually on a piano or sometimes on a guitar.  It has been traditional practice in the U.S. songwriting industry that co-songwriters are each given an equal share of Copyright ownership over a song.  This is particularly true if they are a songwriting team.  

Another basic element of music Copyright law is that a recorded work of music has 2 Copyrights: one is for the songwriting (lyrics and melody) and the other is for the Sound Recording.  Traditionally, the songwriting copyright is owned by the songwriters and assigned to a publishing company for a period of time.  Traditionally, the sound recording is owned by a record label.  One song might be recorded over and over by many different recording artists, so the Owner of the Copyright on the Sound Recording will be different on each one, while the owners of the Copyright on the Songwriting will remain the same.  

U.S. Copyright law gives the songwriters the right of first recording.  This means that the songwriters get to choose who will be allowed to first record the song.  This is a factor featured in "Beautiful: The Carole King Musical." In the show, Don Kirschner, the music publisher and producer, buys or licenses the rights to songs written by Carole King and Gerry Goffin and then places those songs for first recording with different music artists that he thinks can turn them into hit songs.

One special nugget in U.S. Music Copyright law is called Compulsory Licensing.  This law says that when any song subject to U.S. Copyright law is first recorded and released, then afterwards, anyone else may make a recording of that song.  It is called Compulsory Licensing because the songwriter or publisher must allow anyone to record a cover version of the song, if that person sends them notice and pays the royalties that are due.  One need not wait for permission or approval from the songwriter or publisher, and none may be sent. After notice is given and the royalties paid, the person can record their own version of the song, as long as they do not substantially change the lyrics or melody.  This is called a "cover song" or "cover version."  The person wishing to record a cover version can send this notice on their own -- if they can locate the publishers and find the required wording, which is contained in the U.S. Copyright law  -- or they can pay a fee to a music lawyer or music cover song licensing company.  It can be very difficult to accurately locate all the publishers that might share control on one song, so it can be well worth it to pay for a licensing service.  The statutory royalties are, at this time, about 9.1 cents per copy to be made of a song under 5 minutes.  Royalties are higher on a song 5 minutes or over, which is why most American popular songs are under 5 minutes. The law, the royalties, and the industry are geared toward songs being under 5 minutes. That's something to keep in mind if you are writing songs and want to make your own path easier. 

The licensing required to make a cover recording of a song is called Mechanical Licensing.  Mechanical licensing is obtained directly by giving notice to the songwriters' publishers, or by paying a licensing company to do that for you.  PROs (performing rights organizations), such as ASCAP, BMI, and SESAC, are not involved in mechanical licensing. 

Record companies that will be making and selling many copies of a record will negotiate with the publishing company to give them a lower rate per copy.  Most publishing companies take 50% of the songwriting royalty -- which is why some songwriters today run their own publishing company.  Let's say you buy a digital copy of a cover version of a song.  If full royalties have been paid, the songwriter who has signed to a publishing company will get half of 9.1 cents of your purchase -- or about 4 and a half cents.  If the song has been co-written by two people, they each get 2 and a quarter cents.  Thus, you can see that it is very hard to make a living writing songs.  "Beautiful: The Carole King Musical" accurately portrays this, as Carole and Gerry have hit songs playing on the radio, but still live with Carole's mother in her New York apartment and cannot afford to get their own place.  Later in the play, after they have many hit songs, they are finally able to get their own place in the suburbs of New Jersey.  

The Compulsory Licensing law came about to benefit songwriters as well as the public.  Songwriters wanted their songs to be recorded by multiple artists.  Sometimes publishers were putting a stranglehold on recordings by holding the songs ransom for the highest bid.  Having an equal royalty amount for each copy leveled the playing field while guaranteeing the songwriters some income if their songs were recorded.  This system allowed the traditional songwriting practice to flourish.  If a song was attractive, with good lyrics and a catchy melody, many music acts would want to record it.  Until the rock band era of the late 1960s, when a good song was written, it would be recorded by many popular artists of that time. When the rock band era came in, the idea was often that a song "belonged" to a certain group and could not plausibly be replicated by another group.  Legally, anyone could make a cover version of, for example, a Led Zeppelin song, but this was rarely done.

Compulsory licensing requires the same amount of royalty per copy, regardless of who the songwriter is.  You can record a song by the famous Beatles writing team of John Lennon and Paul McCartney for the same price as you can make a cover version of an obscure song written by some schmoe who plays only at the local open mic night.  

Sometimes in a rock band, there is an egalitarian approach to songwriting, where all members of a band are given Copyright on the songwriting.  This would be the subject of a band contract where this is spelled out.  If they are all actually participating in creating the song, this might be fair.  It can certainly be a headache for anyone trying to give notice to make a cover version, since each songwriter might be represented by one or more publishers!  If there are 4 or 5 songwriters to the song, there can be many publishers to identify and track down.  To make matters more complicated, may songwriters change publishers numerous times through their career, and they may have different publishers handling the song in different parts of the world.  

Many of the most famous parts of songs are actually created by studio musicians in the process of recording a song.  Usually, they do not share songwriting credit or copyright.  Louie Shelton is a guitarist who has created many famous riffs on rock songs.  Carol Kaye is a studio bassist who created many of the most famous bass riffs in rock music.  Studio musicians are usually paid very well, but are rarely given songwriting credit or copyright, unless that was something they had negotiated for in advance.  Studio musician work is generally Work for Hire -- meaning, they are paid, they perform, and the ownership of the recording belongs to the record label that hired them for the session.  This fits with the way songwriting is viewed in the traditional American sense -- that a song is the lyrics and melody, not the clever bass riff.  

A song that is created using parts of an old song is called a Derivative Work.  To make a derivative work, you have to get permission for the Copyright holders on the original work.  I covered this topic in this blog post on Derivative Works.  The fun part about derivative works, if you can get permission to create one, is that you can share songwriting credit with the original songwriter.  

Another means to being a sort of Co-writer is to create an arrangement of a song.  If the song is still under copyright, that would be a derivative work.  If the song has passed into the public domain, meaning the song is over 80 years old, then you can create your own arrangement of it without getting permission.  This is pretty special because you can register Copyright with yourself as Arranger on a piece of music by Johann Sebastian Bach  -- or any other musical composer who wrote long ago.  There are reputable websites online that list songs that are in the public domain -- older classical music and many traditional folk songs.  Basically, any song written before 1938 will now be in the public domain -- but do your research on each song before assuming it is in the public domain.  

Also - be aware that a more recent arrangement of a song in the public domain will not  itself be in the public domain.  You may be familiar with an arrangement of an old song, but the arrangement may have been created much more recently by someone who still holds copyright on that arrangement.  For example, the traditional folk song "Greensleeves" is in the public domain. But, there have been many arrangements of it.  The version you know and love may have been created by someone who registered the Copyright on their arrangement.  While you would not need a mechanical license to record Greensleeves, you might need one to record a particular arrangement of it.  The same is true of such classical favorites as Pachelbel's Canon.

A few years ago, CD Baby put together a list of Christmas Carols that are in the public domain and a list of Carols that are not in the public domain.  To make a cover version of the songs that are on the "not in the public domain" list, you need to get mechanical licensing, which is done by giving notice and paying royalties -- or paying a licensing service to do this for you.  These lists can be surprising, since songs we might think of as "belonging to everyone" actually are owned by the people who wrote them.  

If people are co-songwriters, each one has the right to be listed on the Copyright registration.  If one of them registers the song, but fails to list the other songwriters, those who are left out can petition the Copyright Office to amend the registration to include them.  

The best way to start off a Co-Songwriting partnership is with a CONTRACT that is in writing and signed by both people.  The contract should spell out that each is an equal partner, that each will equally own the Copyright, that each will be listed on the Copyright registration.  The contract should also state who will have the right to administer the song -- meaning, who will have the right to assign the song to a publisher or licensing company or to a record label or music artist.  There are many other simple provisions for such a contract, particularly, what happens if and when the relationship goes sour or dies out or one of the parties wants to write on their own or with a different partner.   Co-songwriting is much like a love relationship, and it often is tied in with one, too.  Spelling it all out in a contract in advance can protect everyone's interests down the line.  


Disney "Let it Go" Lawsuit: Think Again



Disney "Let it Go" Lawsuit: Think Again
by Susan Basko, Esq.

Disney's movie "Frozen" made famous the song, "Let it Go."  The song was written by husband and wife songwriting team, Kristen Anderson-Lopez and Robert Lopez.  This duo has written many of the famous Disney songs.  A man named Jaime Ciero has filed a lawsuit claiming the Lopez songwriting duo copied a song he wrote in Spanish called "Volar," which was released in 2008.

Some people think the Lopez song does have similarities to the Ciero song.  But, hold on a second! A while back, I was mildly swamped with people saying that "Let it Go" was stolen from their song!  That got me to looking up other songs that sound very similar to "Let it Go," -- and there are quite a few.  I won't post any of the songs from the different people that contacted me, but I will post some of the many that I found that also sound like "Let it Go."

My conclusion is that "Let it Go" is not a very original song, and that it became famous because it was in a terrifically famous and beloved Disney movie.

Listen to some of the songs below and see what I mean. (Remember you might have to get past the commercials on some of these.  Please do!)

You can listen to the Disney "Let it Go" above and to Jaime Ciero's "Volar" just below:



From 1974, we have Eric Clapton's "Let it Grow." Pretty similar, huh?

"Let it Go," written by James Bay, covered here beautifully by Austin Precario:

Dave Mason, from 1978, "Let it Go, Let it Flow":


From 1995, "Let it Flow," by Spiritualized:


"Let it Go," Ziggy Marley:

"Let it Go," John Kee:

"Let it Flow," Gates Praise:

"Let it Flow," Toni Braxton:

A Korean song, "Let it Flow," 2006 video:

From 1976, "Let it Flow," Tamiko Jones:

en Vogue, "Let it Flow":


In fact, the Harry Fox songfile has about 100 songs titled, "Let it Go."  The ones I have located tend to have lots of similarities to the Frozen song.  Below are the songwriter names and file numbers for the listed songs titled "Let it Go."

Who copied whom? Or did no one copy anyone?  I think a lilting chorus of "Let it go," or "Let it flow," or "Let it grow," or "Let it show" is going to sound similar in any context. In copyright, this might be known as "stock" or possibly as noncopyrightable material.  In the world of music or art, this might be known as building upon a genre or tradition.

The Lopez/ Disney song is famous and financially successful, not because it has similar words or music to many of these other songs, but because it is in a super famous Disney movie.

"Let it Go" songs from Harry Fox Songfile, with songwriter names:


L24848
S. HOFF, D. PETERSON, V. PETERSON, M. STEELE
L16365
STEVE TURRE
L24859
JOSEPH ELLIOTT, RICHARD SAVAGE, RICHARD JOHN CYRIL ALLEN, PETER ANDREW WILLIS, STEPHEN MAYNARD CLARK
L22269
TOM RUSSELL
L1906O
IAN STANLEY, ROLAND ORZABAL, KIRK FRANKLIN
L11742
JOHN P. KEE
L09527
ANGELA STONE, G. DEVEAUX, C. MOLE
L2011X
NICOLE ALBINO, NATALIE ALBINO, ELIJAH WELLS, LIONEL BERMINGHAM
L01879
KYLE, RAMBEAUX, BLOOM
L24855
LUBA KOWALCHYK
L24854
DON COOK, RAFE VANHOY
L16644
DAVID BURRILL
1001RE
DAWN TALLMAN
L16449
JERRY DOUGLAS, RONNIE BOWMAN
L2318X
M. RAE, S. CHRISTIAN, D. BENOIT, E. WILCOX, R. ROBINSON
L2445P
SCOTT BLASEY, GREG JOSEPH, DAVID MINARIK, ROBERT HERTWECK
L24857
JOHN ROSS LANG, STEVEN P. GEORGE, RICHARD JAMES PAGE
L24860
AKIRA TAKASAKI, MINORU NIIHARA, MASAYOSHI YAMASHITA, MUNETAKA HIGUCHI
L08445
B. FLOYD, I. NEVILLE, C. DRAYTON
L21699
K. MANTRONIK, J. FRANK
L01739
GERALD DASH TUSO, CHRISTIAN FUHRER
L2432P
LASHAWN AMEEN DANIELS, RODNEY JERKINS, KENNY PRATT, FREDDIE JERKINS
L01537
TENDER FURY
L1973M
JUSTIN SMITH, STEPHEN FISHER, DANIEL MURILLO, KRIS COMEAUX
L2281M
GORDIE SAMPSON, BLAIR DALY, ALAN THOMAS DOYLE
L24853
RICHARD RAYMOND FINCH, HARRY WAYNE CASEY
L2456G
DAVE BASSETT, DANIEL CHRISMAN, GRAHAM PATRICK COLTON
L24847
BILLY SMILEY, TOMMY SIMS, MARK GERSMEHL, RICK FLORIAN, GORDON KENNEDY
L16398
M. MARTINEZ, SCOTT STORCH, TRACEY MOORE
L01007
MIDGE URE
L01842
GARY RAMON GIPPS, GARY RAMON
L14744
T. FARAGHER, D. FARAGHER, B. HOWARD
L2114K
GLENN HUGHES
L1914D
ALONZO WANG, ROB WELLS, RUPERT GAYLE
L23972
DURRELL BABBS, S. ANDERSON
L2017N
S. MENDES, D. AMARO, S. NETO, R. POUNDS, N. WATTS, M. WATERS, B. AMARO, C. RODGES
L00004
FULL FORCE
L2276U
NICK BOLD
L19624
D. LILES, R. ALTIZER
L23088
JASON SELLERS, STEPHONY SMITH
L18725
ZIGGY MARLEY
L2221J
BEAN DOZIER, HOWIE DOROUGH, DAVID RYAN HARRIS
L2301W
DANIEL ALEXANDER HAVERS, CHRIS PAGE
L17447
PRIEST BROOKS, RICARDO BROWN
L2337Y
TODD RONNING, MARKUS WOLFE
L11169
BRAD, ANDY
L2395L
GABRIEL RIOS
L24850
M. SHARP
L1923X
RUSSELL TAN, KIMBERLY DEL FIERRO-HUFFMAN
L23431
EDWARD GREENEBAUM
L11513
DOUG HAVERTY, ADRYAN RUSS
L1962C
KENNETH NAVARRO
L2268G
ALEXANDRA DENNY
L24856
MICKEY NEWBURY
L24865
BENNY DANCY, DAVE GUSSOM
L24851
GREG SAGE
L24849
KROKUS STORACE, VON ARB, KOHLER, VON ROHR, GRIVELLI
L1921X
CHRISTIAN MOLLER NIELSEN
L2134F
ANDY ANDERSON, JEFF ADAMS, RENEE JACKSON
L2467D
FRED WILHELM, KEVIN FISHER
L1964I
PATRICK M. LANDREVILLE
L24846
AUSTIN CUNNINGHAM, THOM MCHUGH
L24852
JERRY FOSTER, BILL RICE
L2367Z
RICKY HANLEY, KURT RUSSELL
L2395X
GEORGE TEREN III, JASON BLUME
L24858
JERRY REED HUBBARD
L00919
CHIP KINMAN, TONY KINMAN
L2231C
DONNIE YALE, GYMMY THUNDERBIRD, FRANK BACKGAMMON, MURPHY UPSHAW
L10991
KARON PENNING
L2249S
MARK BENT, INGO NYAKAIRU, BOBBY ANDERSON, ANDY LOWE, ALAN AKEHURST
L25190
JIMMY CLIFF
L1927D
KAREN ASHE, GORDON DUKES
L2108E
KEVIN VONDERHOFFEN, CHRIS GRAFFAGNINO, RONNIE FREEMAN
L2231H
DAVID BALL, INGO VAUK, CHRIS BRAIDE
L2418L
STEVE DIAMOND, REBEKAH RYAN
L24861
JEFFREY DRESHER, DEIRDRE STEINSCHNEIDER
L2546W
ARISU SATO, TAKASHI SHOUJI
L1671I
GREG MATHIESON, RICK WHITFIELD
L1999Q
ROBBI ROBB, RICHARD STUVERUD
L2097H
LISA SIMMONS, CARSTEN SCHACK, KENNETH KARLIN, EDWIN SERRANO
L2122C
MATTIAS HALLBOM, JAKOB LARSSON, EMIL STENSTROM, DAVID LOFQVIST, JOHANNES HALLBOM
L2246S
SOLA ABDUL, GRAHAM KEARNS, MAGNUS HUBERT TWISLETON WYKEHA FIENNES
L2247V
PAUL TAYLOR, JOCELYN GUERIDON
L2260X
SANDRA NORDSTROEM, RICHARD ANDERSON
L2296T
WARREN HUART, MIKE FLYNN, NIKKI FLORES
L2334R
NICKOLAS G. CARTER, BRIDGET LOUISE BENENATE, MATTHEW GERRARD
L23430
EDWARD GREENBAUM
L2356R
DWAYNE NESMITH, PIERRE MEDOR, RICHARD PRESTON BUTLER
L2389F
TANYA LEAH, BRIAN NASH, KEVIN PAIGE
L2427O
SANDRO RUSSO, CECE ROGERS
L24770
BRENDA RUSSELL
L2516K
JUERGEN KRESCHEL, ROBERT MICHAEL NEUMANN