Monday, January 14, 2008

The Dead Hand of widows, including Zappa's

In arguing for meaningful fair use of unpublished works, Second Circuit Judge Pierre Leval expressed worry about what he called the dead hand of widows (not as many men get to claim widower status): widows of authors who suppress biographies they don't like (and they only ones they ar elikely to like are the ones that they pre-approve and get license fees for). The blight extends to children and especially grandchildren, who under the guise of protecting the artistic vision of a dead relative they may have only slightly known, also seek to suppress performances they don't like; the dust-up with James Joyce's relatives being a recent one on the English-speaking world, and Victor Hugo's being one in France.
Now we have an example of the dead widow syndrome that takes the cake, one involving Frank Zappa, whose band "The Mothers of Invention," gives the story a very ironic twist. The item comes from my favorite UK website, IPKat:

The IPKat's friend Ben Challis of Music Law Updates has sent him this item, which he describes as "disturbing", about the current state -- or is it fate -- of Frank Zappa tribute bands. According to the Herald & Review
" ... Frank Zappa died 14 years ago, just short of his 54th birthday. While it might be hard to believe for those who know Zappa for "Valley Girl" and "Don't Eat the Yellow Snow," his 60-plus albums represent a valuable canon to a pocket of fans ...

That music has also launched about a dozen tribute bands that play both here [ie the US, or "there" as it is known to us Europeans] and in Europe. In addition, Zappa Plays Zappa, a group headed by Frank's son Dweezil, has conducted a pair of tours of the United States, recently toured Australia and is planning shows in Japan this month.

The problem is, Zappa Plays Zappa is the only group authorized by the Zappa Family Trust, the group that controls Frank Zappa's estate. And the trust spent much of December sending out cease-and-desist letters to blogs, to tribute bands and to a European memorial concert that's been going on since 1990 (one that Frank Zappa endorsed during his life).

The trust's cease-and-desist case - which has altered but not shut down any blogs, and which failed to stop at least two tribute band performances it was designed to halt - seems to rest on the interesting yet dubious assertion that, quoting the letter from trust lawyers posted on the Web site of tribute band Bogus Pomp:

" ¦ (ASCAP) licenses ¦ limit the grant of rights to nondramatic performances ¦ Many works by Frank Zappa are inherently dramatic in nature."

Carried to a logical extreme, any band that performs a tribute to another band in some "dramatic" form is performing against the law. Isn't any performance on a stage "dramatic" by definition?

...

The law certainly has its place in the entertainment industry. Unreliable acts and unscrupulous promoters and venue owners need to have their feet held to the fire.

But lawyers are out of place when they begin to affect the art, and the audience's enjoyment of same.

Frank Zappa said it best during his lifetime:

"If you're a musician, play my music. If you're not a musician, play my music."
The IPKat would like to know what's going on here. If a licence to perform has been obtained and the performer is neither infringing any Zappa trade mark nor passing itself off as the long-dead hero, and no representation or suggestion is made that the tribute band has been officially endorsed, isn't that enough? Merpel says, one should not forget the extent to which the deceased promoted the image of the furry feline through such oeuvres as Yo Cats and Alley Cat.

As those playful kittens might have noted, limitation of the term of protection to life of the author (for copyright, right of publicity, and all rights) would take care of these problems. I note too this entry from wikipedia:

Situated in New York, and only interrupted by the band’s first European tour, the Mothers of Invention recorded the album widely regarded as the peak of the group's late Sixties work, We're Only in It for the Money (released 1968).

4 comments:

Rob G. said...

Can't say I'm too shocked. Gail Zappa has a reputation for, umm...shrewdness. As I understand the law (IANAL, you are) as long as they're paying proper ASCAP/BMI fees, I can't understand how Gail has a leg to stand on.

Man, this would set a really bad president if it stands.

Anonymous said...

Arguably if the tribute band does more than play music on a stage and gussies up the performances with visual references to Mothers or Zappa then it is dramatic performance. This is a problem, definitionally and in terms of licensing, that applies to many Las Vegas shows such as "Celine" in which the staging is so extensive and the story-telling sufficient that it's hard to maintain that it's a non-dramatic use. But the point of the argument is figure out the pay scale. Don't rag on Gail too badly, Yoko has pulled this stuff on Lenon and so did all the Beatles.

Joseph Gratz said...

The "inherently dramatic" argument is clearly pretty silly -- if ASCAP doesn't have the right to license the singing of showtunes in a piano bar, a lot of people around here are going to be pretty upset.

But it raises an interesting question: I've never come across a decision in which a court lays out what the standard is that separates "dramatic" from "nondramatic" musical works. The way it's discussed in the Copyright Act, dramatic versus nondramatic seems to be regarded as a property of the work itself. But in practice, it seems the analysis focuses on the circumstances of the allegedly infringing public performance (i.e., performing "Send in the Clowns" isn't a dramatic musical work when performed at a cabaret, but it is a dramatic musical work when it's performed as part of A Little Night Music).

Do you know of any authorities on this question? It's one I've been curious about for some time.

Eric said...

You guys are on the right track. I found this link to a very enlightening article from an entertainment law review on another blog. The crux of the biscuit appears to be that because of the way ASCAP allocates royalty payments for standard musical performances in clubs, Gail is receiving nothing or next to nothing from ASCAP. Her dubious (IMHO) legal strategy appears to be to getting Project/Object's et al. standard musical performances recharacterized as "dramatic works," which would give her complete control over granting permission and setting prices to perform any Zappa music. All in all, a pretty transparently self-serving move now that Dweezil is on the road with the ZPZ tour. Here's a link to the very illuminating law review article.

http://www.cardozoaelj.net/issues/07/Davis.pdf

Eric