Wednesday, June 18, 2014

LESSONS LEARNED: Recent Copyright Suits Involving Led Zeppelin and The Beastie Boys


  

Led Zeppelin is used to lawyers. The recent flap over “Stairway to Heaven” with the estate of Randy California is not the first allegation of copyright infringement against the legendary band. Years ago, I heard an attorney speak who had been part of Zeppelin’s defense team in a suit brought by John Lee Hooker. The lawyer recounted how his hands were essentially tied, thanks to years of interviews where Robert Plant and Jimmy Page openly talked about borrowing from old blues songs.

Still, I could not shake the question, “Why now?” The answer probably lies in a recent United States Supreme Court decision involving the movie “Raging Bull,” Petrella v. Metro-Goldwyn-Mayer, decided on May 19, 2014. The Court held that each infringing act starts a new limitations period, although each infringement is only actionable within three years of its occurrence. The Court allowed a suit to continue that was filed in 2009, although the movie was originally released in 1980, and the claimant’s copyright was renewed in 1991. If successful on the merits, the claimant’s recovery would not include exploitation of the film before 2006.

As a result, even before reaching the musical question of infringement, the current suit against Led Zeppelin will no doubt be challenged based on the time delay. Recent authority suggests, however, that the delay will prohibit recovery for use of the song before 2011, but will not act as a complete bar to the litigation.  

Earlier this Spring, The Beastie Boys settled a suit against toy maker GoldieBlox for use of the song ”Girls” in a commercial. One of the interesting things here is that once dispute  arose, it was GlodieBlox who went on the offensive, filing litigation in hopes of having its use declared to be a permissible parody of the original song. The band counter-sued, alleging infringement.

The concept of claiming parody as a “fair use” defense traces back to Campbell v. Acuff-Rose Music, an action based on 2 Live Crew’s version of the Roy Orbison classic, “Pretty Woman.” According to the Supreme Court’s opinion, 2 Live Crew originally intended to license the song from the publisher, Acuff-Rose, and to properly credit the original songwriters. When the music publisher refused to license the song, 2 Live Crew released it anyways. Approximately 250,000 unit sales later, Acuff-Rose filed suit. (The Court never mentions the compulsory license process.)

Once sued, 2 Live Crew changed tactics, and rather than offer to license the song (and pay the statutory mechanical license rate), the band argued that its version was a parody, constituting a “fair use” and making it unnecessary to obtain the typical mechanical license. The United States Supreme Court agreed, and held that the track could qualify as a protected parody, despite the commercial nature of the 2 Live Crew release.

At first blush, the Goldieblox song seems to be a likely candidate for fair use protection. Company representatives claimed that its version of “Girls” made fun of the original Beastie Boys track, and its sexist lyrics, by instead urging gender equality, especially in the fields of technology, math, and science.

 Because the case was settled, we will never have a definitive judicial interpretation of the facts and law. We do know, however, that the settlement required an apology from GoldieBlox, and payment by Goldieblox to one or more charities (selected by The Beastie Boys). Without more details, it’s impossible to know whether Goldiebox’s settlement indicated a lack of confidence in its legal position; or, if it was a simple recognition that it had made a colossal mistake in forging ahead with the ad campaign without first securing a synchronization license from the music publisher. With that much money at stake, assuming that you will qualify as a parody strikes me as a pretty gutsy move.

The lessons learned? If someone has infringed your intellectual property rights, and it’s been more than three years, your cause of action may be limited, but not completely lost. But, if an infringing use qualifies as a parody, it may be exempt from the licensing process. And, sue Led Zeppelin if you have to, but you should probably leave The Beastie Boys alone.