On Trigger-Happy Copyright Lawyers (and keeping your day job)

November 20, 2006

Here's something you might have seen floating around the 'net: a video of some Bank of America employees celebrating the MBNA acquisition with a version of U2's song “One.” And, of course, there's now the obligatory cease-and-desist from the record label, according to the New York Times. (As of this writing, the text of the cease-and-desist was available in the comments section of Stereogum's post on the video). There are many, many things wrong with this situation, but I'm going to limit my analysis of the problems to the legal situation, and leave the aesthetic judgment to you.

Part of Universal's claim in the cease-and-desist is that the video was created and uploaded by B of A as part of a viral promotional campaign. I'm sure Universal wants that to be true, because if it were, it makes their case a lot less silly-looking. But right now the video looks like what it claims to be–a recording of a goofily earnest suit having some fun with a well-known tune at a private conference. If B of A had put this version of “One” on TV ads celebrating the merger, that would be a clear violation of copyright, and few would object to Universal suing over that. Universal, as the owner of the copyright in the U2 song, has the exclusive right to create (or let others create) so-called “derivative works” based on the original recording.

But what actually happened is a different story. The retooled song was performed for a private audience, and only happened to be recorded and uploaded onto YouTube later. But Universal is targeting B of A as though it were in complete control of the revised song and all its incarnations, including the original performance, any recordings of it made by other attendees, and copies made after the video was uploaded.

This ridiculous situation demonstrates the problems created by a copyright regime that treats infringement as a yes-or-no question. If there is infringement, you're liable for massive statutory damages. If not, you're free of any legal penalty. In either case, though, you're looking at a lot of money, whether forked over to the record label or to a lawyer defending you from them.

There are middle grounds in some areas, though. If the two bank employees had merely sung “One” at the conference, or even to an audience of thousands, they would have only paid a compulsory licensing fee. But by changing the lyrics, they have suddenly catapulted B of A into a much higher-stakes game, in which a lot of money will be spent by both sides to settle a dispute that has very, very little impact on U2's sales or even their image (no one is seriously going to hold off on buying “One” because of this, nor is anyone seriously going to think that Bono now endorses bank acquisitions).

Universal's cease and desist also shows a fundamental misunderstanding of how information moves in a digital age. Again, B of A let some of its employees sing a silly take-off at a corporate event. B of A didn't, apparently, record it and package it for distribution–other attendees did all that. Nor should B of A be under any obligation to ban cameras from meetings at which music will be present.

The assumption that a creator can or should have complete control over how a work is a false one. But it's one that the music industry seems to make constantly. Their view seems to be that any transaction touching a copyrighted work must be a toll transaction, and to do that, they need corral and surveil anything that can transfer music. What's even more absurd than that is that they expect others to be able to do that when they themselves can't.

Postscript: In an additional layer of delicious absurdity, there are now videos of comedian David Cross performing the bankerized version of “One” onstage, backed by Johnny Marr, the guitarist from Modest Mouse. No word on any cease-and-desists sent to Cross or Marr, or to the concertgoers who recorded the take-off of the take-off.