Paul B. Ungar, Esq.
Attorney At Law
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Home My Work Clients My Articles Contact WARNING:
THIS ARTICLE IS RATED “R” , “PS” AND
“ITEAWASTLSOOY”
*See Below Support
Your Local Musician -or- Why You
Shouldn’t Bootleg Music, DVDs, Books And Other Stuff... No Matter
What.... (Even Tho’ SomeTimZ It’s Rilly EZ & You Might Even
Not Get Busted...) By Paul B. Ungar,
Esq. © 2009 WHEREFORE, AND WHENEVER people
find out I’m an Entertainment Attorney who’s been working in
“The Biz” with “Major People” since before some of
‘em were even born (Oi
Vey! Hey, I’m Not That Olde...Anyway...); and WHEREFORE, AND THEREFORE, I’m often asked to speak about Entertainment
Law before various groups of students...sometimes Junior High or High School
age kids, sometimes College age kids, sometimes law school and music graduate
school students, and sometimes even other professionals at Continuing
Professional Education Courses or other lectures I’ve given over the
years ... none
of whom usually have any concept whatsoever of what an
Entertainment Attorney actually does... (but, Hey That’s Cool - some of my Most Esteemed
Colleagues-At-Law don’t
either...). Anyway... (Again:) In my opening
introductory comments, I tell my students that what I mainly do every day is
negotiate and draft contracts that deal with Intellectual Property rights - which
means, by-the-bye, that I am still Basically Doomed in My Next Life as Killer
of Many Trees at the Copy Machine since, for example, some of my big record
label clients’ so-called “360° Agreements” are 75 pages
long, have to be signed in quadruplicate, in physical format, with real
original ink signatures - and sometimes even Blood (No, I’m Just Kidding! Altho’ some of my clients’ might dispute that..) - as required by Various
& Sundry Business Affairs Executives and their Minions – Hey,
In Fact– some companies also require everyone signing the contract to
mark their initials in ink on every page of every original signature copy
- and often for good reason -
because some judges in foreign jurisdictions can be really weird about this
stuff. ...Just ask any veteran transactional attorney who has dealt with
SONY, for instance, about WHAT HAPPENS IF YOU REMOVE A STAPLE!! (If you
don’t know, call me, I’ll tell you...). Anyway (once Again:) MY
POINT IS: All those Dead Trees are, Alas, Extremely Bad For My Karma which, However and Nevertheless, can still run over Your Dogma. WHEREFORE, AND THEREFORE, All Bad One-liners Aside, Anyway (Once Again:) So
the first thing I do is read my students (a slightly abridged version of) (SURPRISE!)
the one single line in the United States Constitution upon which basically
all of our Intellectual Property Law is based: Article 1, Section 8, Clause 8,
which goes like this: “Congress
shall have the power...to promote the progress of science and useful Arts, by
securing for limited Times, to Authors and Inventors, the exclusive Right to
their respective Writings and Discoveries.” Then
I ask them the following questions: 1) “How
many of you have ever downloaded music or bought a bootleg DVD of a movie at a
Flea Market, despite being clearly warned that such downloading or unauthorized
sale was
Expressly Prohibited
by The Owner?” 2) “How
many of you enjoy music, movies, literature and art made by real
professionals, and
would like to be able to continue do so in the future?” -
with a follow-up bonus 2-parter: 3) “How
many of you, having undoubtedly been subjected in 7th Grade U.S. History
class to the well-worn cliché
about “The Genius of the Founding Fathers”, has ever: (a) actually
thought about it; or (b)
realized that
IT ACTUALLY MATTERS TO YOUR TEENAGE LIFESTYLE – AND TO THE TEENAGE
LIFESTYLES OF ANY AND ALL OF YOUR FUTURE DESCENDANTS, HEIRS AND/OR LEGATEES, WHO
MAY HEREAFTER, IN FACT, BECOME TEENAGERS AND WHO MAY FURTHER HEREAFTER,
REQUEST AND DEMAND THAT ROCK ’N ROLL MUSIC BE MADE AVAILABLE IN THE
BACKSEAT OF THE CONVERTIBLE ON DATE NIGHT AT THE MOVIES, FOR THE PURPOSE OF
FINALLY GETTING TO SECOND BASE? Mainly,
they look at me kinda funnily... (is that a word?)... Undoubtedly Thinking to Themselves: “What
the F@#K does this have to do with ‘No Red M&Ms in the Dressing
Room At Radio City Under Penalty of Death and Other Fun & Cool Backstage
Rock ‘N Roll War Stories’...?” that they thought
they’d come to hear from me....
And,
then they answer: “Yup” to Question Numbers 1
& 2; and “Huh?”
to both Subparts – but particularly Subpart (b) – of Question
Number 3. Then,
I Get Serious: Look
at the language of Article 1, Section 8, Clause 8, very carefully...and it’s
actually pretty easy to actually see the aforementioned Genius of the
Founding Fathers: They wanted to
encourage inventors, scientists and “authors” (which most Constitutional scholars
interpret very broadly to mean and include not only writers, but also
musicians, songwriters, artists, sculptors, photographers, filmmakers and
many, many other creative types) to develop and promote the sciences and the
“useful Arts”. Useful
for who?
Why? Who Cares? Since
they were creating a Government, it was for the benefit of Society as a Whole
(which, by the way, includes You!)...but they also realized that probably the
best way to achieve that goal was to grant to inventors and
“authors” “exclusive
rights” for “limited
Times” to their works. In
other words, the law grants what are essentially limited monopolies to
“authors” and inventors – but these monopolies eventually
run out. So, our system of Intellectual Property Law provides an incentive
for creative people to create, since the creators can exclusively reap all of
the rewards of their creative efforts (READ: MONEY), for a limited period of
time. But the Founding Fathers also wanted to make sure that at some point,
the general public would have greater access, for society’s overall
improvement. Thus, for example our current patent system grants exclusive
rights to the patent owner for most patents for a period of 20 years after
which the patent expires. So this offers, say, a pharmaceutical company the
incentive to put in the tremendous amount of time and money for research and
development of its new “WonderDrug”,
because the company knows that the law will give it the opportunity to make
its money back (and then some!) for 20 years on an exclusive basis. But once
the company’s “monopoly” expires, then other companies can
legally provide their own generic versions of the “WonderDrug”,
which will then be subject to competitive forces of the marketplace –
and that competition almost always results in lower prices for the generics
than for the original, making the drug available to many, many more people
who maybe couldn’t afford (or more likely, whose health insurance
didn’t cover!) the cost of the more expensive original version. As we
lawyers sometimes say, it’s an example of Intellectual Property “inuring
to the benefit of the general public good”. The
Founding Fathers essentially performed a balancing act...balancing the
sometimes competing interests of society with those of private parties, all
for the purpose of encouraging growth and prosperity, both for the
individuals and companies involved in creating the Intellectual Property in
the first place - as well as
ultimately for the public in general. Is
the system perfect? No, but it is
organic and can change as circumstances and technology warrant. For
example, the famous songwriter Irving Berlin (and for all you Kiddies out
there who don’t know, he wrote, among other songs: “God Bless
America”, “White Christmas”, “Alexander’s
Ragtime Band” and my favorite, “There’s No Business Like
Show Business”) went to Congress and lobbied for an extension for the
duration of copyright protection
(which for most “regular” non-commissioned works, under the old
federal Copyright Act of 1909, used to be 28 years, with a 1-time additional
28-year renewal period available, for a possible grand total of 56 years).
Why was Mr. In
fact, many of my colleagues have remarked that it seems as if the on-going
debate in Congress about extending the “work-for-hire” term of
copyright protection under the current U.S. Copyright Act - which, for most
“works-for-hire”, is currently the lesser of either (a) 95 years
from first publication, or (b) 120 years from creation - is being fueled in substantial part
by, for instance, the Walt Disney group of companies, among others. (Quick,
when did Donald Duck come out? [I’ll wait for you look it up on
Google....Done?... Too Lazy to Google? OK, OK - it
was in the early 1930s]...So, now, do the math and you can see why the folks
at Disney might be getting a little bit worried...I hear their secret Latin
Corporate Motto translates into:
As Goeth Mickey Mouse, So Goeth The Nation. Hey, I’m just kidding (Again:)....
but hopefully you get my rather serious
point and you can well understand why such companies as Disney - along with
basically all of the other big Intellectual Property content owners [e.g.,
record companies, movie studios, publishers, etc.] –continually remain seriously very active in their
lobbying efforts before Congress in Washington, D.C. on this very serious issue. Seriously. What
does all this have to do with illegal downloading and bootlegging by YOU? Well,
Everything. If
you like to hear good music being made by professional musicians, or if you
like to see good movies made by professional actors and directors – all
of whom actually work very hard and get paid by real live entertainment
companies, so that they can actually spend all of their time at their real
full-time jobs (which is writing songs for YOUR listening and dancing
pleasure, etc., etc.), and if you want to continue to be able to enjoy good
music, good movies, good art, good literature, etc., etc., in the
future....Well, let me put it like this:
if these entertainment companies go out of business because of illegal
downloading and other forms of piracy, and the “authors” can’t
make a reasonable living at their craft, guess what: they’ll quit and
do something else (Think Tom Cruise Pumping Gas...) and then, on top of
that, you’ll be stuck with
a BILLION AMATEURS on YouTube...
which may be amusing for those
Famed Fifteen Seconds, but usually not much longer.... Yes,
I know the all the counter-arguments, including: “Whaddaya
mean ‘they can’t make a reasonable living’....Hey,
I bust my @$$ all day as a (Fill in the Blank) and they
make so much more money than me by singing their songs, playing their
instruments and doing other fun stuff for money instead of real work like me
.....Why should I care about their problems?” Well,
you should care, because... actually
in the first place.... most of “them” actually don’t necessarily make actually all that much money....(Any of
my band clients out there wanna show anybody their
latest royalty statements?). Sure, some of my superstar clients make more
money than Ms. Jehovah HerSelf, but what about your
favorite local struggling indie band promoting its first Album at the Club
Down the Block From Your Best Friend’s House that you absolutely love
with all of your teenage heart and soul because the RILLY, RILLY CUTE LEAD
SINGER SINGS RIGHT TO YOU, BABY, EVRY NITE AND HE SATISFIES EVRY
ONE OF YOUR RIGHTEOUSLY RAGING HORMONAL LUST-FILLED ANGST-RIDDEN TEENAGE
URGES? (God, I miss Frank Zappa!). What about THOSE GUYS? And
what if YOU are in a struggling band promoting your very first Album? And
what if YOU WANNA SATISFY SOME OF THEM-THERE RAGING TEENAGE URGES, TOO? WHAT
ABOUT YOU GUYS????? Sure,
it’s ridiculous for some big company to charge $20 for an Album that
was rushed to production to meet some quarterly projections made by some
Suits in Accounting on the 23rd Floor of some Big Building in L.A. - and
which (maybe) has 1 good song on it - but the industry has actually responded by readjusting many
of its price points and by concentrating on more palatable methods of sales
such as reducing retail prices and offering product through discount stores
(See: “Only $9.99 Exclusively at Wal-Mart...”, etc.), offering
99¢ downloads through iTunes and other websites of - EEGADS!!- Singles (by-the-bye, Singles,
or “45s”, were once
the staple of the Top 40 Pop Music Business for years and years in the
“Goode Olde DayZ” - once again illustrating the
cliché that “The more things change, the more they stay the
same” – and for a citation on that phrase, see my Billboard
Article about “Mediating the Greed Game”). It seems as if the
companies, the artists and many consumers are coming to feel that these
prices...e.g., 99¢ a download for one really good tune... are, in fact,
“reasonable”, especially given the risk of being punished for
intentional copyright infringement (which can be up to $150,000.00 per
violation, plus attorneys fees and court costs, under the statutory
damages provisions of the U.S. Copyright Act, U.S.C. Title 17 Section 504(c)
- which, in Plain English, can
add up to a Whole Lot of money - for example, just 7 illegally downloaded
tunes on your computer could result in you paying over $1 Million in fines,
etc., plus lawyers fees plus court costs, all of which can get real, real
pricey). Nevertheless,
many kids tell me that they’re not worried about getting caught:
it’s unlikely, they don’t do it that often, it’s not that
big deal, they’re just kids, they don’t own anything (other than maybe their Wii console), and anyway, their Internet account is in
their parents’ names. I then remind them that probably their house is
also in their parents’ names - and maybe, just maybe –
if they like their VERY OWN TEENAGE ROOM and want to KEEP IT – maybe,
just maybe they should think twice about breaking the law. I’m sure you all have heard the
horror stories of little old ladies and their grandchildren getting sued in
the early 2000s by such artists as Metallica and Dr. Dre,
as well as by the RIAA (which is the umbrella organization for the major
record labels) and many individual record companies and publishing companies,
in series of lawsuits involving Napster, the file-sharing service. The
Defendants included many universities and, of course, literally thousands of
individual users (in one of the Metallica/Napster lawsuits, it was reported
that the Exhibit listing the Defendants included about 17,000 names!).
Believe me: Receiving a Summons and Complaint for multiple multi-million
dollar federal copyright violations, with your name on it as “The
Defendant”, is definitely NOT the beginning of a fun day for you
– make that a very, very expensive year or so for you, hangin’ out in lawyers’ offices for months at
pre-trial depositions, at $500 an hour or so for litigators, and maybe $75 an
hour or more for the court reporter who takes down your answers for hours and
hours, verbatim (producing thousands of pages of transcripts which often cost
over $1 a page just to get a copy!), and you have to answer all the lawyers’
questions under penalty of perjury (which means you could go to jail if you
lie). And just so you don’t think
I’m picking on TEENAGERS: THIS
GOES FOR YOU SENIOR CITZNENS OUT
THERE WHO BUY BOOTLEG DVDS AT THE FLEA MARKET FOR FIVE BUCKS ON THE DAY
BEFORE THE FLICK COMES OUT IN THE MOVIE THEATERS... AND WHO ARE STUPID ENOUGH TO ACTUALLY TELL ME ABOUT IT, KNOWING
WHAT I DO FOR A LIVING....YOU KNOW WHO YOU ARE!! (AND SINCE YOU’RE REALLY OLDE, THESE CAPITAL LETTERS
MEANS I’M YELLING AT YOU IN COMPUTER TALK!!). You
know what the Corollary Converse Proposition is to the phrase: “If
You Build It, They Will Come”? How
about: “If You Rip
Them Off, They Will Go Away”. So,
even if you’re not scared of Getting Busted (which, you should be: See [Once Again]: the
statutory damages provisions of Title 17 U.S.C. Sec. 504(c) and the Napster
lawsuits, supra, to which I Heretofore Referred to Hereinabove,..ANYWAY:
even if you think you’re the one person won’t get
caught....IRREGARDLESS (as they say in New Joisey)
of all that: if you like the “good stuff” created and brought to
you by real professional “authors” - e.g., professional writers,
songwriters, musicians, artists, performers, actors, producers,
screenwriters, filmmakers, production companies, entertainment companies, etc.,etc., etc., ad naseum,
infinitum - and - if you want them to keep it coming.....then
BE A MENSCH (Look it up on Google.....I’ll Wait!) and Please
Don’t Steal From These Kind Folks! Now
you know: It’s
Actually For Your Own Good! (P.S.
For You Believers Out There: Being a Mensch May
Actually Save You From Burning in Hell: See: Exodus 20:15 which (for most
Judeo-Christians) is the Eighth
Commandment and which, as a reminder to all You Heathens Out There, says:
“Thou Shalt Not Steal” and which - by the way - was also the opening line
in a U.S. federal judge’s famous opinion in his multi-million dollar
copyright infringement verdict against Warner Bros., et. al.
for unauthorized sampling by Biz Markee in the
“Gilbert O’Sullivan Case” several years ago [See: Grand
Upright v. Warner, et. al., 780 F.Supp. 182
S.D.N.Y. 1991] which put the Fear of the Lord into Every Record Company on
the Planet...(Just try to submit an uncleared
sample these days to any record company and see what happens...). I’m Talkin’ ‘Bout the Eighth Commandment Talkin’
‘Bout the Eighth Clause of
the Eighth Section of
Article....One... of the Constitution... (Sorry about that, there is no Article “8”...the
Constitution stops at Article 7...Hey, wait, some in the Catholic Church
consider Exodus 20:15 to be the Seventh
Commandment....(Cue In Spooky Music). For a minute, I thought I had a real
good “8-on-the-8-on-the-8-on-the-8”
mojo-type thing going to lay
on Your head as My Finale Grande... Oh well, no more rimes & I definitely won’t quit my day
job.....So, I guess it’s back to Killing Trees for me and, ecologically
speaking, I hereby further guess
that, even tho’ I’m basically a Good
Guy and really try to help my clients, I am Doomed nevertheless!). (P.P.S.:
NOW,
THEREFORE, BY REASON OF THE FOREGOING, My Clients and I would like to Thank You in Advance, Very, Very Much, and with All Due and
Proper Respect in Every Regard, for taking the Aforementioned Aforesaid Matters
Referred to Hereinabove by Yrs Trly into Your Very, and Yea, Verily Very, Very,
Very Serious Consideration and,
Finally, and with ALL Further Due and Proper Respect to You, to Thank You, Yet Again in Advance, for Not Being A Total @$$hole In Said Regards - and God Bless
F%#KING America!). ---------------------------------------------------------------------------------------- * I hope you
know what “R” means; “PS” means “Partly
Silly”; and “ITEAWASTLSOOY” means: “Intended To
Educate, As Well As Scare the Living Sh%t Out of
You” -
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