Cry Baby Cry

The project to crowdsource a Tighter White Album (hereinafter TWA) is done, and we’ve come up with a list of 15 songs that might have made a better end product than the original. Today I want to discuss whether I've done something wrong, legally or morally. 

I am no expert on European law, or its protection of the moral rights of the author, but I was reminded by Howard Knopf that my hypothetical exercise could generate litigation, as the author has rights against the distortion or mutilation of the work, separate from copyright protection.  The current copyright act in the UK bars derogatory "treatments" of the work. A treatment can include "deletion from" the original, and the TWA is just that -- 15 songs were trimmed from the trimmed White Album, ostensibly to make something "better than" the original. To the extent the remaining Beatles and their heirs can agree on anything, it might be the sanctity of the existing discography in its extant form, at least as it encapsulates the end product stemming from the individual proclivities of the Beatles at the time. But see Free as a Bird. Fans and critics reacted strongly to Danger Mouse's recent splice of Jay-Z's Black Album and the Beatles' White Album, with one critic describing it as "an insult to the legacy of the Beatles (though ironically, probably intended as a tribute)". Could the TWA implicate the moral rights of the Beatles?

 

On one level, I and my (perhaps unwitting) co-conspirators are doing nothing more than music fans have done for generations: debating which songs of an artist's body of work merit approval and which merit approbrium. Coffee houses and bars are often filled with these discussions. Rolling Stones has made a cottage industry of ranking and reranking the top songs and albums of the recent past and in recent memory. This project is no different.

On the other hand, I am suggesting, by having the audacity to conduct this survey and publish the results, that the lads from Liverpool did it wrong, were too indulgent, etc., in releasing the White Album in its official form. That's different from saying "Revolution #9" is "not as good" as "Back in the U.S.S.R." (or vice versa). But to my eyes, it falls short of distortion.

Moral rights in sound recordings and musical compositions are not explicitly protected under the Copyright Act. In one case predating the effective date of the current Act, the Monty Python troupe was granted an injunction against the broadcast of its skits in heavily edited form on U.S. television, but that case was grounded more in contract law (ABC having exceded the scope of its license) and a right not to have the hack job attributed to the Pythons under the Lanham Act.*  The TWA doesn't edit individual songs, and whilte the Monty Python case protected 30 minute Python episodes as a cohesive whole, it is difficult to argue that the copyright owners of the White Album are necessarily committed to the same cohesive view of the White Album, to the extent they sell individual songs online. One can buy individual Beatles songs, even from the White Album. Once you can buy individual tracks, can there really be moral rights implications in posting my preferred version of the album in a format that allows you to go and buy it?

On to the standard rights protected under U.S. copyright law. Yesterday, I talked about the possibility that the list itself might be a compilation, with protectable creativity in the selection. Might the TWA also be an unauthorized derivative work, exposing me to copyright liability? A derivative work is one "based on" a preexisting work, in which the original is "recast, transformed or adapted." That's similar to the language used to describe a treatment under UK law. Owners of sound recordings often release new versions, with songs added, outtakes included, and bonus art, ostensibly to sell copies to consumers who already purchased them. I certainly didn't ask the Beatles (or more precisely, the copyright owner of the White Album) for permission to propose a shortened album, but what I have done looks like an abridgement of the sort that might fall into traditional notions of fair use.

Once upon a time, I might have made a mixtape and distributed it to my dearest friends (although when I was young, the 45 minute tape was optimal, so I might have been forced to cut another song or two). Committing my findings to vinyl, compact disc, or mp3, using the original recordings, technically violate 17 USC 106(1)'s prohibition on unauthorized reproduction. If I give an unauthorized copy to someone else, I violate the exclusive right to distribute under section 106(3). Unlike the public performance and display rights, there is no express carve out for "private" copying and/or distribution, although it was historically hard to detect. The mixtape in its analog form seems like the type of private use that should be permitted under any reasonable interpretation of fair use, if not insulated by statute.

If I send my digital mixtape to all of my Facebook friends, that seems a bridge too far. However, Megan Carpenter has suggested that by failing to make room for the mix tape in the digital environment, copyright law "breeds contempt." 11 Nev. L.J. 44, 79-80 (2010).  Jessica Litman, Joseph Liu, Glynn Lunney and Rebecca Tushnet, among others, have argued that space for personal consumption is as important in the digital realm as it was in the good old days when everything was analog.

If I instead use social networking tools like Spotify Social** to share my playlist, I probably don't infringe the 106(4, 6) public performance right. Because I use authorized channels, any streaming you do to preview my playlist is likely authorized. And if I post the playlist on iTunes, you can go and buy it as constituted. That seems somewhat closer to an unauthorized copy, but it's not actually unauthorized. The Beatles sell individual singles through iTunes, so it seems problematic to conclude that consumers are not authorized to buy only those songs they prefer.

So all in all, given that I'm not running a CD burner in my office, I think I'm in the clear. What do you think?

*A recent Supreme Court decision puts in doubt the Lanham Act portion of the Monty Python holding. 

**The Spotify Social example is complicated by the fact that the Beatles aren't included, although I have found reasonable covers of all the songs included on the TWA. The copyright act explicitly provides for a compulsory license to make cover tunes, so long as the cover doesn't deviate too drastically from the original. 17 USC § 115(a). If the license was paid, and the copyright owner notified, those songs are authorized. My repackaging of them in a virtual mixtape, however, is not. 17 U.S.C. § 114(b).