Paul B. Ungar, Esq.

Attorney At Law

 

 

 

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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 ThoSomeTimZ 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. Berlin upset? Because by the time he reached his 70s (he lived until he was 101) he was already outliving the copyrights on songs he wrote as a very young man and he was therefore being cut off from his source of income – his publishers no longer had to pay him royalties, since his songs were now in the public domain under the law at the time. He – and many others - basically argued why should he (and his family) be penalized from enjoying the fruits of his labor just because he happened to be a songwriter? Other people who made money in other businesses didn’t automatically lose their wealth after some arbitrary period of time set by Congress. And guess what, Congress eventually revised the term of copyright (which, under the current U.S. Copyright Act of 1976, United States Code Title 17 U.S.C. Section 101 et. seq., as extended by the Sonny Bono Copyright Term Extension Act of 1998, for most “regular” non-commissioned works, is now life of the author, plus 70 years, thus allowing “authors”, their children and [probably] their grandchildren to enjoy their wealth, before their work goes into the “public domain”). 

 

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 “themactually 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!).

 

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*  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”

-        Paul B. Ungar, Esq.

 


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