Current and Future Issues in Music Law Donald R. Simon, J.D./LL.M.

Current and FutureCurrent and FutureIssues in Music LawIssues in Music Law

Donald R. Simon, Donald R. Simon, J.D./LL.M.J.D./LL.M.

Issues in Music LawIssues in Music Law

Unit 2Unit 2

OutcomesOutcomes

• What are the content standards for What are the content standards for music, video games, TV and films.music, video games, TV and films.

• What are some of the complexities What are some of the complexities in creating/adhering to standards.in creating/adhering to standards.

• What are the tradeoffs for artists in What are the tradeoffs for artists in dealing with content standards.dealing with content standards.

Content StandardsContent Standards


• Whether for moral or political Whether for moral or political reasons somebody always seems reasons somebody always seems to see it fit to dabble in someone to see it fit to dabble in someone else’s art.else’s art.

• The ages have produced a great The ages have produced a great many examples of this, in many many examples of this, in many forms.forms.


• Unfortunately, art is often Unfortunately, art is often misunderstood and can be misunderstood and can be controversial.controversial.

• And when a controversial artist And when a controversial artist suddenly has the ability to suddenly has the ability to speak to millions of people, speak to millions of people, someone is bound to step in.someone is bound to step in.


• In the 1960s, some In the 1960s, some stations in TX refused stations in TX refused to play songs by Bob to play songs by Bob Dylan b/c many of his Dylan b/c many of his lyrics could not be lyrics could not be understood.understood.

• B/c they could not be B/c they could not be understood, they did understood, they did not play any Dylan.not play any Dylan.


• As music moved from radio to As music moved from radio to television, various instances of television, various instances of censored broadcasts due to censored broadcasts due to political and artistic statements political and artistic statements from the likes of the Rolling from the likes of the Rolling Stones, The Doors, and The Who Stones, The Doors, and The Who were rampant.were rampant.


• When John Lennon said that the When John Lennon said that the Beatles were bigger than Jesus, Beatles were bigger than Jesus, the most popular band in the the most popular band in the world became the biggest target world became the biggest target in the world for censors.in the world for censors.


• Religious groups organized Religious groups organized bonfires in 1980 to express their bonfires in 1980 to express their displeasure with popular music, displeasure with popular music, burning thousands of records by burning thousands of records by not only Lennon and the not only Lennon and the Beatles, but even the Beatles, but even the Carpenters and Perry Como.Carpenters and Perry Como.


• As rap music evolved As rap music evolved during the 80s and during the 80s and shock rock came into shock rock came into its own with Marilyn its own with Marilyn Manson in the 90s, Manson in the 90s, the compulsion of the compulsion of some to censor the some to censor the musical art of others musical art of others met a fevered pitch. met a fevered pitch.


• As concern for music lyrics rose, As concern for music lyrics rose, the RIAA stepped in to provide the RIAA stepped in to provide labels and artists the tools that labels and artists the tools that alert parents to explicit content.alert parents to explicit content.

• In 1985, the RIAA worked with the In 1985, the RIAA worked with the National PTA and the Parents National PTA and the Parents Music Resource Center (PMRC) to Music Resource Center (PMRC) to address their concerns regarding address their concerns regarding explicit content.explicit content.


• Senate hearings, Senate hearings, led by Tipper Gore, led by Tipper Gore, featured opposing featured opposing testimony from the testimony from the likes of Frank likes of Frank Zappa, John Zappa, John Denver, and Dee Denver, and Dee Snider (of Twisted Snider (of Twisted Sister).Sister). Tipper GoreTipper Gore


• The organizations reached an The organizations reached an agreement that certain music agreement that certain music containing explicit lyrics, containing explicit lyrics, including explicit depictions of including explicit depictions of violence and sex, would be violence and sex, would be identified with labels so parents identified with labels so parents could make listening choices for could make listening choices for their children.their children.


• Record labels and artists decide Record labels and artists decide which of their releases should which of their releases should receive a PAL Notice indicating receive a PAL Notice indicating that the release contains explicit that the release contains explicit content.content.


• In making such a determination, In making such a determination, labels and artists should labels and artists should consider:consider:

1.1. Contemporary cultural morals and Contemporary cultural morals and standards;standards;

2.2. Context in which the material is Context in which the material is used, as some words, phrases, used, as some words, phrases, sounds, or descriptions might be sounds, or descriptions might be offensive to parents;offensive to parents;



3.3. Context of the artist performing the Context of the artist performing the material;material;

4.4. Words can have different meanings Words can have different meanings and should not be viewed in and should not be viewed in isolation from the music that isolation from the music that accompanies them;accompanies them;



5.5. Determination requires sensitivity Determination requires sensitivity and common sense, and that and common sense, and that context, frequency, and emphasis context, frequency, and emphasis are obviously important;are obviously important;


• In making such a determination, In making such a determination, labels and artists should consider:labels and artists should consider:

6.6. Standards apply to the case of a single Standards apply to the case of a single track commercially released as well as track commercially released as well as to full albums; andto full albums; and

7.7. A sound recording may contain strong A sound recording may contain strong language or depictions of violence, sex, language or depictions of violence, sex, or substance abuse, yet due to other or substance abuse, yet due to other factors may not merit a PAL Notice.factors may not merit a PAL Notice.


• RIAA recommends, but does not RIAA recommends, but does not require, that a label or artist create require, that a label or artist create an edited version that does not an edited version that does not include all of the same content include all of the same content contained in the original.contained in the original.

• Edited version need not remove all Edited version need not remove all potentially objectionable content potentially objectionable content from the sound recording.from the sound recording.


• Broadcasters operate Broadcasters operate are under strict are under strict indecency standards.indecency standards.

• Material that might be Material that might be acceptable on the acceptable on the Internet or in Internet or in newspapers, may be newspapers, may be banned on the public banned on the public airwaves.airwaves.


• In order for their In order for their music to be played music to be played on radio, an artist on radio, an artist may have to go may have to go back and make a back and make a modified version if modified version if there is something there is something that can’t be played that can’t be played on the radio.on the radio.


• This is a fairly common. This is a fairly common.

• Many artists, while in the studio, Many artists, while in the studio, will make two versions of the will make two versions of the same song – a “clean” version and same song – a “clean” version and a “dirty” one. a “dirty” one.

• This means that artists sometimes This means that artists sometimes have to compromise their content have to compromise their content to get wider distribution.to get wider distribution.


• In addition to modifying images In addition to modifying images of fetuses in the album art, of fetuses in the album art, Nirvana agreed to change the Nirvana agreed to change the title of the song “Rape Me” to title of the song “Rape Me” to “Waif Me” for Wal-Mart versions.“Waif Me” for Wal-Mart versions.

• Ironically, it’s an anti-rape song.Ironically, it’s an anti-rape song.


• Up to that point, Nirvana had Up to that point, Nirvana had famously said it would not famously said it would not compromise with the retailer. compromise with the retailer.


• Cee Lo Green recorded three Cee Lo Green recorded three versions of his recent hit song:versions of his recent hit song:

• ““F**k You”F**k You”

• ““FU”FU”

• ““Forget You” Forget You”


• Because the rating system is Because the rating system is voluntary and applied by the voluntary and applied by the labels themselves, there is no labels themselves, there is no uniformity in their application.uniformity in their application.

• The ratings system was The ratings system was developed prior to digital media developed prior to digital media which led to the application of which led to the application of stickers on albums as opposed to stickers on albums as opposed to specific songs.specific songs.


• There have been attempts at the There have been attempts at the local and state government level local and state government level to criminalizing those that to criminalizing those that “break” the standards rules.“break” the standards rules.

• Court challenges have usually Court challenges have usually resulted in the laws being ruled resulted in the laws being ruled unconstitutional on 1unconstitutional on 1stst Amendment grounds. Amendment grounds.


• MoviesMovies

• Well known system of G, PG, PG-13, Well known system of G, PG, PG-13, R and NR administered by the MPAA.R and NR administered by the MPAA.

• Anything but uniform.Anything but uniform.

• Nothing in the rating system tells a Nothing in the rating system tells a parent how subject matter is dealt parent how subject matter is dealt with, just that it exists. with, just that it exists.

• Watch “This Film is Not Yet Rated.”Watch “This Film is Not Yet Rated.”


• Video GamesVideo Games

• The Entertainment The Entertainment Software Rating Board Software Rating Board (ESRB) ratings are (ESRB) ratings are designed to provide designed to provide concise and impartial concise and impartial information about the information about the content in video content in video games and mobile games and mobile apps.apps.


• Video GamesVideo Games

• ESRB ratings have two equal parts: ESRB ratings have two equal parts:

• Rating symbols suggest age Rating symbols suggest age appropriateness; andappropriateness; and

• Content descriptors indicate elements Content descriptors indicate elements that may have triggered a particular that may have triggered a particular rating and/or may be of interest or rating and/or may be of interest or concern.concern.


• InternetInternet

• No general content standards.No general content standards.

• Laws like the Children’s Online Laws like the Children’s Online Privacy Protection Act that ask sites Privacy Protection Act that ask sites to ensure that they get parent’s to ensure that they get parent’s permission to let younger audiences permission to let younger audiences visit their sites.visit their sites.


• InternetInternet

• The lack of general The lack of general online standards is online standards is becoming a larger becoming a larger concern, and while concern, and while there are technical there are technical content filters like Net content filters like Net Nanny, there are no Nanny, there are no standards.standards.


RemixRemix

• Chap. 3Chap. 3::

• Lessig says that digital technology Lessig says that digital technology has changed the “nature” of RO has changed the “nature” of RO culture.culture.

• These technologies have allowed These technologies have allowed people to remove the constraints people to remove the constraints that had bound culture a certain that had bound culture a certain way.way.

RemixRemix


• When the content industry realized When the content industry realized this, they were terrified.this, they were terrified.

• The “copyright wars” began as did The “copyright wars” began as did calls for a massive government calls for a massive government effort to regulate the use and spread effort to regulate the use and spread of these technologies.of these technologies.

RemixRemix


• Steve Jobs and iTunes changed their Steve Jobs and iTunes changed their way of thinking.way of thinking.

RemixRemix


• Lessig advocates that a policy Lessig advocates that a policy driven by the view that the only driven by the view that the only way to protect RO culture is to way to protect RO culture is to render RW culture illegal is a render RW culture illegal is a huge mistake.huge mistake.



• In The NewsIn The News

In the NewsIn the News

• Velvet Underground Lose Andy Velvet Underground Lose Andy Warhol Copyright ClaimWarhol Copyright Claim

• Band does not have a valid CR claim Band does not have a valid CR claim on the Andy Warhol artwork on the on the Andy Warhol artwork on the cover of the band’s 1967 debut.cover of the band’s 1967 debut.


• Band Loses CR ClaimBand Loses CR Claim

• Federal judge dismissed part of the Federal judge dismissed part of the band’s trademark infringement band’s trademark infringement lawsuit against the Andy Warhol lawsuit against the Andy Warhol Foundation.Foundation.

• The dispute began in 2009 when the The dispute began in 2009 when the Warhol Foundation claimed the Warhol Foundation claimed the band’s use of the image infringed on band’s use of the image infringed on the foundation’s CR.the foundation’s CR.



• The group rejected The group rejected the copyright claim, the copyright claim, countering that the countering that the banana print on the banana print on the cover of cover of The Velvet The Velvet Underground & NicoUnderground & Nico was, in fact, a band was, in fact, a band trademark.trademark.



• The Velvet Underground filed suit in The Velvet Underground filed suit in January after learning that the January after learning that the Warhol Foundation had licensed the Warhol Foundation had licensed the image for a line of iPhone cases.image for a line of iPhone cases.

• The band demanded the Warhol The band demanded the Warhol Foundation stop licensing the Foundation stop licensing the banana image, and pay the band for banana image, and pay the band for past licensing.past licensing.



• J. Nathan didn’t rule on who owns J. Nathan didn’t rule on who owns the rights to the image.the rights to the image.

• The band says the banana print is The band says the banana print is so closely identified with them so closely identified with them that any use of it by the Warhol that any use of it by the Warhol Foundation would confuse the Foundation would confuse the public.public.



• The foundation notes that the The foundation notes that the Velvet Underground broke up in Velvet Underground broke up in 1972.1972.

AssignmentsAssignments


• Look at each Unit’s To-Do Lists to Look at each Unit’s To-Do Lists to help keep yourself organized.help keep yourself organized.

• Due by the end of Unit 2:Due by the end of Unit 2:

• ““Ratings System” AssignmentRatings System” Assignment

• ““Different Ratings Systems” DTDifferent Ratings Systems” DT

• ““The Music Rating System” DTThe Music Rating System” DT


• Due by the end of Unit 2:Due by the end of Unit 2:

• Read Chap. 3 in Read Chap. 3 in RemixRemix..

• Look for copyright-related news Look for copyright-related news stories to discuss in class and on stories to discuss in class and on the DTs.the DTs.


• ““Ratings System” AssignmentRatings System” Assignment::

• Come up with your own new ratings Come up with your own new ratings system that balances limits between system that balances limits between sales and parental protection.sales and parental protection.

• This can be for any media.This can be for any media.

• You can devise a new system to You can devise a new system to replace an old one or develop a whole replace an old one or develop a whole new system for a medium that does new system for a medium that does not yet have a rating system.not yet have a rating system.



• Examples of media that don’t have Examples of media that don’t have ratings include museum exhibits, ratings include museum exhibits, plays, etc.plays, etc.

• Your system should include actual Your system should include actual ratings and how those ratings would ratings and how those ratings would be applied and who would do it. be applied and who would do it.



• Write an essay that includes Write an essay that includes specific examples, and also specific examples, and also includes references to sources.includes references to sources.

• Viewpoint and purpose should be Viewpoint and purpose should be clearly established and sustained.clearly established and sustained.

• Assignment should have correct Assignment should have correct grammar, punctuation, etc. grammar, punctuation, etc.



• Writing should be well ordered, Writing should be well ordered, logical and unified, as well as logical and unified, as well as original.original.

• Your work should display superior Your work should display superior content, organization, style, and content, organization, style, and mechanics.mechanics.



• Appropriate APA citation style should Appropriate APA citation style should be followed.be followed.

• Your essay should be 2-4 pages long Your essay should be 2-4 pages long (excluding cover and reference (excluding cover and reference pages), in 12 point font (Arial, pages), in 12 point font (Arial, Courier, or Times New Roman). Courier, or Times New Roman).

• Submit your outline to the Dropbox by Submit your outline to the Dropbox by the end of Unit 2 (Tuesday night).the end of Unit 2 (Tuesday night).


• ““Different Rating Systems” DTDifferent Rating Systems” DT::

• What is special about each medium What is special about each medium that requires different rating that requires different rating systems?systems?

• Why isn’t there one overall rating Why isn’t there one overall rating system? system?


• ““The Music Rating System” DTThe Music Rating System” DT::

• What holes exist in the music rating What holes exist in the music rating system?system?

• How would you suggest modifying How would you suggest modifying the system to make it better? the system to make it better?

OutcomesOutcomes

• What are the content standards for What are the content standards for music, video games, TV and films.music, video games, TV and films.

• What are some of the complexities What are some of the complexities in creating/adhering to standards.in creating/adhering to standards.

• What are the tradeoffs for artists in What are the tradeoffs for artists in dealing with content standards.dealing with content standards.

OutcomesOutcomes

Questions?Questions?

Have aHave aGreat Great Week! Week!

Current and Future Issues in Music Law Donald R. Simon, J.D./LL.M.

Documents

explicit content

content standardsas

content standardsunfortunately

content standardsrecord

content standardsas

content standardsas

music lyrics

popular music