OA529: The Weird Al Deep-Dive We Didn't Know We Desperately Needed

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello, and welcome to Opening Arguments. This is episode 529. Sorry, it's Opening Blarguments. It's a parody of Opening Argument.

0:01:28 Thomas: Slightly different than the thing it normally is, which is really funny. I'm Thomas, that's Andrew.

0:01:32 Andrew: Thomas, on this episode, Thomas, I promise you, I will dare to be stupid.

0:01:42 Thomas: Finally, at long last, it is the Weird Al Deep Dive that we didn't know we needed, but we definitely need. The response. We need need answers, Andrew, to very important questions. I think we should get to it. I think I have a statement from my lawyer that I need to read. So any announcements? Are we getting to it?

0:02:04 Andrew: No, let's, uh, please read your disclaimer.

0:02:07 Thomas: Okay. I, Thomas Smith, being of sound mind and body, did express an opinion that isn't a threat to your opinion. And I'm not saying you're stupid or wrong for having your opinion. I merely express an opinion I have and don't take it as anything other than me expressing my opinion that I have. I didn't finish writing the statement. I got too mad and so I quit. That's the best I got. Look, all right, here's the thing. I gotta intro this with what's happened thus far. Here's two separate questions. I expressed an opinion when we were talking about parody, um, because I believe, and and you can, uh, jump in, correct me if I'm wrong, it sounded like, based on the the breakdown you were giving us, that Two Live Crew technically speaking owed nothing to anyone one for Pretty Woman, or whatever, because it falls under parody. Do it Did I understand that correctly?

0:03:01 Andrew: You understood my explanation of that lawsuit correctly. Yes.

0:03:06 Thomas: Okay, and again, later on we'll find out, Andrew's done a deeper dive, we'll get more clear, but but for now, for our purposes right now, it was under that understanding that I expressed two things, two quick things that are separate and importantly separate. First one, I'm not a big fan of parody songs, that's just a personal opinion, I don't find them funny, it's the weirdest thing, and I don't, I, I also think I'm weird in this. There are a couple other people who chimed in on the Facebook and were like, finally, somebody said that Weird Al songs aren't funny. And that's why I do this. I'm not trying to be mean with my opinions. I'm just like, hey, is anyone else like me? And that, you know, you think X thing. And, you know, there are some definitely some people are like, yeah, I don't get it. And it's it's interesting because I think one component of it, you know, people people are complicated, who knows? But one component of it seems to be how much you listen to lyrics in music.

0:03:55 Thomas: Like somebody chimed in with a comment that I thought was really interesting where they're like, hey, I tend to be the exact opposite of Thomas in that I don't really care about music, but I love, you know, I listen to lyrics and I enjoy the parody songs. And I was like, yeah, that's pretty much true. I really care About the music going on in a song like that's what I tend To focus on. Do.

I do eventually listen to Lyrics like after I've heard a song a bunch of times, you Know, like I I start hearing the lyrics, but I wonder if it comes down to that. And so when somebody does a song, that's a copy of a song, but they change the lyrics slightly to be clever for, for my brain, again, this is just personal preference. It doesn't matter, but like, that is all like, for some reason I do not find it enjoyable at all.

Like I kind of do not like it. Like, I just would, I just want to listen to a song really. And what is funny is I know that I am the weirdo in this. I have

0:04:40 Thomas: Even written parody songs in my life because I know other people enjoy them. And they've done well. I've written, I've done a couple of times in different things, college and different things. I'll take this song and I'll change the lyrics. Essentially do something like what Weird Al does for different things talent shows, whatever. And I've done very well at it. Honestly, I don't think it's as hard as people think it is. But anyway, whatever I know.

0:04:45 Andrew: Huh? Yeah, yeah. Oh, God. I'm gonna, we're gonna have to do another

0:05:08 Thomas: It's fine. Direct all emails as long as they're emails that are focused on things that that are actually pertinent, I don't mind, which we'll get to. But anyway, it's funny because I do those things recognizing, like, I don't like this. Like, I'm doing a thing that I don'T think is good, but I recognize that, like people tend to like in the audience. So I'll do it. It's kind of funny. Anyway, all that aside.

0:05:08 Andrew: Episode. We're getting a hundred for you that well That's funny. Well, you know, I just want to say as a sidebar, like, the the the you not listening to lyrics really explains, um, like some of the musical interactions that we had, right? Like, so, for example, we were together uh

0:05:29 Thomas: Oh, go ahead.

0:05:39 Thomas: Yeah. Want to clarify. I listen to them, but they're just not a focus.

0:05:41 Andrew: No no, no I don't mean it that right Right. Yeah. That's not the first thing you hear. That is the first thing I, as a non-musician, hear from songs. And so, for example, like one of the things to take some of the heat off of you, right? I have announced my utter disdain for Nirvana and somebody like thinking they've caught me in like an OK Boomer moment was like, oh, well, you know, if you hate the like incomprehensible whiny voice of Kurt Cobain, I'm sure, you know, you also can't stand listening to, oh, hate Bob Dylan, to be fair, right?

0:05:43 Thomas: Yeah. Yeah. Okay. Mm-hmm. Oh, yeah. Yeah.

0:06:17 Andrew: And I was like, yeah, I do hate Bob Dillon, right, like, I, like I'm 100% consent, like it is, and, and like, and I get that, yes, it, and I know his lyrics, his, as a lyricist, he is a poet, but yeah, like what I listened to as a, again, and I'm an idiot on this, right? Like I fully recognize.

0:06:20 Thomas: So for you, it's more the tone of someone's voice. Cause Bob Dylan, great lyrically. That's not, yeah. Yeah. Okay. No, I think I, you know, people hear different things. I totally, I know a lot of people that it's, it is that singing quality of the, you Know what the lead singer like is maker makes it a break it for them. Yeah, but there you're just playing wrong. I know we're like open opinions or whatever.

0:06:37 Andrew: Yeah. Right. Yeah, that's why, that's what I hate the cranberries. We had an argument on that. I know, I know. Oh God.

0:06:52 Thomas: Her voice is delightful. I love Dolores rest in peace. By by the way, I can't believe she died a few years back. Tragic. Uh, but yeah, she, she is fantastic.

0:06:58 Andrew: I didn't even know why I feel bad, but yeah, no, no. No, she was not. But anyway, uh, I,

0:07:04 Thomas: Oh, she was amazing. The harmonies, they sound so good. I love it. So on to page two of my, so now, okay. So that's an opinion I expressed, but just, and it's interesting to talk about that. I think that's a, actually a fascinating side conversation to talk about what different people hear in music. I think that's totally cool and valid. Things I did not say. I did not say that Weird Al is a bad person. I did not say his band isn't talented. I did not say a number of things. I also imagine that if I were to be like just taken to a Weird Al concert, I'd get into it. I'd like, okay, yeah, whatever, it's cool, in it's like for me it would be like a cover band, understand, because I, you know, again, the lyrics, I don't, I don't focus on them.

I'd be like, oh, cool, they're doing all these songs that I know. And then, you know, he's seeing different lyrics. I probably catch, you know, the main thrust of the jokes, and I'd find, you know, be okay, but I just don't, it's not really that pleasurable, but you know, it's, I bet you the concerts are great. He's a funny guy. I like Weird Al as a person. All that is not stuff that I expressed, separate to all those opinions, the question of what I said. I said, I believe I said in my America,

0:07:18 Andrew: Yeah. I.

0:08:11 Thomas: Weird Al, or, or anybody who does like a thing where they just slightly changed the words of a, of a piece of art that someone already, know, works to make, uh, they should owe, I think, I don't know, half the royalties or something. They should owe royalties to the thing. That was my, me expressing my non-lawyer opinion.

And we got 8 trillion emails saying, hey idiots, how did you not know that Weird Al gets permission to do his songs, which, I, where do we even begin, Andrew, it, because doesn't apply to anything we were talking about. Like, my whole contention, again, based on my understanding of the law that you told me, as the lawyer, which, which was that you don't have to pay anyone anything. You can just do, if it's, know, considered you parody, you owe no one anything, and you get to profit off it, off of it. I said in my America, again, me making the rules, that shouldn't be how it works. And then everybody in the world and their mothers all wrote in to say that Weird Al gets permission, something that is completely irrelevant to the question. It doesn't matter to me.

Like that, you know, like, if, if we lived in my world, which we may, we'll find out, the deep dive, where you have to, where you owe all those royalties, permission would also be another step to that. It would be like, did you do the parody with permission and pay them the royalties, or did you do it without permission and play them the royalty's? Like, those, that's, you know what I mean? It's a separate question that has nothing to do with anything episode. So why did we get 10 000 emails, Andrew, why? Ah, so weird.

0:09:37 Andrew: It, as it turns out, so remember, uh, by the way, I, I greatly appreciate a well-done Thomas Smith rant, and, uh, and that was a good one, this

0:09:44 Thomas: Sorry. I'm just so weird, it's the same email, carbon, copy, hey, idiots, didn't you know, yes we did know that's it, oh, hmm,

0:09:49 Andrew: Was this was this was an off, off the cuff remark, as we were talking about parody, as it applied, largely, uh, in, in the context of our discussion, for written works, right? This was the discussion of OnlyFans, right, and we were talking about the law of parody generally. As it turns out, and, you know, you riff, and I knew generally about the Two Live Crew case, and so we talked about that a little bit. As it turned out, the lawof copyright, when it comes to parody of songs, songs is substantially more complicated for reasons that are immediately obvious, uh, but did not occur to me at the time. Right. And, and did not, you know, we weren't, we were analyzing that,

0:10:05 Thomas: Yep. All, Right.

0:10:39 Thomas: Give Andrew a

0:10:41 Andrew: Okay,

0:10:41 Thomas: Break. Sometimes Andrew plans to say two minutes of something about something, and then we get going, and he has to answer a bunch of questions off the cuff, and so, you know, like, yep, Yep, give, give the guy a break, that's why we do the follow-ups and make sure we get everything right for you guys, so the lesson is, if Andrew's wrong about something, keep listening and we'll correct it.

0:10:51 Andrew: It's fun. So when we're talking about Weird Al, we're talking about contemporary parody music, which means we're Talking about Weird now. Are talking about three different types of copyright law. There is the copyright in the music, right, which is the sound recording. There was the copyright, in the written lyrics. And then there's the audio visual derivative medium of the video, right? And again, for Weird Al, No.

0:11:06 Thomas: Yeah, Can I, sorry, I already want to to make sure I understand, so we don't get, when you said the, you said the copyright in the music, isn't there both the music as written on the page and also the actual recorded sound, isn't that two different? The

0:11:40 Andrew: You are exactly correct. Within the music itself, there is the deposit copy, which is the script, right? I'm saying script, but the written, whatever that is, and what is called the sound recording, right, and the sound record, if you're sitting there thinking, boy, this sounds like a law that was written in the 1930s that totally isn't appropriate for today's, of course, right, so it means the fixed tangible copy, right, of the sound recording, so think they're thinking about you making a record, right? For

0:11:49 Thomas: Yeah, The Notation, the Yeah, okay. Yeah, Yeah, Well, or it kind of makes sense if it's like, hey, this is the recording of Jimmy Hendrix live at whatever, you know, know, Woodstock, that's a slightly different thing than like, I'm going to record the same song on a record. Like those are, you know, is it that kind of thing? Like, and someone might want, like, I want to hear specifically Jimi Hendrix playing at Woodstock. Not someone doing the other, like a cover of it.

0:12:30 Andrew: Yeah, That, and That is one of the rights. So, but the important thing to know is that that, even though all three of those give rise to the same protection under the Copyright Act, the way in which that protection is applied can differ, right? Because sound is different than words, it's different than video. So applying the laws of parody and fair use to a musical composition, such as Weird Al, need right? To distinguish between the types of copyrighted musical works, which may be subject to parody, and the rights that the Copyright Act bestows upon each of the copyright owners of each of their respective types of work, because those royalties can be and are very, very different, right.

So the principal distinction here is that the different rights that are granted by the act to owners of copyrights in sound recordings, right, as opposed to copyright owners of the musical composition, right? That is the lyrics, or of audiovisual works such as music videos. So we look to section 106 of the Copyright Act, that is 17 U.S.C. 106, and that grants authors of copyrightable works a bundle of rights, right. And those rights include include, one, to reproduce the copyrighted work in copies or phono records. I told

0:12:56 Thomas: Sure. Makes sense.

0:13:25 Thomas: Right. Yeah.

0:14:06 Andrew: You this is hundred years old. They're thinking about, you know, you make a record out of it. And so that's an exact duplicate of the work that you can then sell. Two, to prepare derivative works based upon the copyright work. And again, here's a great example of how the same right, that right right to derivative works is way more expansive when you're talking about like a book, right? Like I write, I write a book. That means I own the right to create the derivative screenplay from that book. Well, I ride a song. Well okay, that means I can do the ultra dance remix of the song, I guess.

You know what I mean? But like it's a, but it's very different application even though it's the exact same right. That's number two. Number three, to distribute copies of the the copyrighted work to the public by sale or the transfer of ownership by rental, lease, or lending, Number four, the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures, and other audiovisual works, yeah, well, no, you can copyright a pantomime, right? Because again, remember, this was right in the 1930s, and they were like, oh, yeah, man, people are going to be doing mime forever, right? Like, yeah.

0:14:12 Thomas: Yeah. Yeah. Yeah. Mm-hmm.

0:15:11 Thomas: Who has the right to pantomime the music? That's the one right I want to know who has. Wow. Yeah. Yeah, who has the punch-and-judy rights to the... Whatever.

0:15:30 Andrew: So in the case of all of those subsets of rights to perform the copyrighted work publicly. So that answers your sort of Jimi Hendrix question, right. When you're Jimi Henrix, you get to do Hey Joe in concert as well as right to sell records with Hey Joe on it. Number five, with the same disclaimer, literary music, dramatic choreographic works, pantomimes, and pictorial graphic or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly, okay? So that is, I can also show the movie. And in the case of sound recordings, to perform the copyright work publicly by means of digital audio transmission, right, to broadcast my songs over the radio. So those are the rights that you have in copyright under Section 106. And now I'm going to read to you a section that will seem incredibly weird and counterintuitive, And it is this.

0:15:40 Thomas: Yeah. Mm-hm.

0:16:33 Andrew: This is Section 114, which has exceptions. And it says, this is 114B, 17 U.S.C., 114 B. And it took me a long time to figure out how this worked. The exclusive right of the owner of copyright in a sound recording under Clause 1 of Section 106, right? So that is the music, right, in a limited to the right to duplicate the sound recording in the form of phono records or copies that directly or indirectly, I have no idea how you would indirectly recapture the actual sounds fixed in the recording.

0:17:13 Thomas: Know how, though. So that sounds like making an actual physical copy of a record versus like putting the mic up to the speaker and like recording, well,

0:17:14 Andrew: One, oh, Or Or, and maybe indirect also includes like digitally encoding coding it, right? Like the different, well, but it's been amended, right.

0:17:26 Thomas: I thought you said this was written 100 years ago, so I was going with. Oh, okay.

0:17:30 Andrew: The movie part, you know.

0:17:30 Thomas: Gotcha. Yeah, yeah, well, the digital copying would seem like it would be the direct thing, versus like playing, a you know, playing it out of the, the speaker, then like recording it again, with slightly different, because that would be like a slightly different sound, that's what occurred to me, but I don't know.

0:17:37 Andrew: Okay.

0:17:47 Andrew: Understood. So, so if you have a sound recording, your copyright is limited to directly or indirectly reproducing the actual sounds fixed in the recording, right, from your original record. The exclusive right of owner of copyright in a sound reporting under clause two, that's the derivative works of Section 106, is limited to the right to prepare derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality, right? So that is preparing the dance remix version.

0:17:56 Thomas: Right. Okay. Okay. Yeah. Or remasters, you know, they issue the 25th anniversary, whatever, yeah, okay,

0:18:20 Andrew: Yep, yep, perfect examples. This is the big part. The exclusive rights of the owner of copyright in in a sound recording under clauses one and two of section 106, do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording. This is, that's exactly right. That is exactly right, and it is that distinction that I had failed to appreciate before. But here's what that means, right? And this will explain, by the way, a lot of behavior. Now, YouTube, under the Digital Millennium Copyright Act, is far more censorious than just absolute copyright violations, right? And so

0:18:51 Thomas: However, this is just for the actual sound rights, what about the the music, the notes on the page rights, as we've talked about, okay, Yeah,

0:19:22 Andrew: Take, for example, YouTube content creators who produce—so, for instance, there's a guy named Rick Beato, who's a music teacher, who will do lists and his clickbaity titles, which I've clicked on. I'm not saying that as an insult, like, you know, yeah, I was baited, exactly, will be things like the 20 best guitar riffs of all time, right? And it's a compilation, it's a list of, right, in at number 19, you know, here's Smoke on the Water, and then, you know, it'll be an eight-second clip of Smoke on the Water. Right.

0:19:36 Thomas: You were baited, yeah, sure, and because we're, you know, being really precise here, you're talking actual, the recording, or him just playing it, okay, so, he's not playing playing guitar. He's, he's just pushing play.

0:19:58 Andrew: Actual recording, it will be, he will play Smoke, he He will mix in with an asterisk, right? And then four artists who are notoriously heavy with the censor button blockers on YouTube, right, of which my beloved Don Henley of the Eagles is probably the worst. He's probably the very worst offender there is, right. Right. Like he maintains a team of programmers to go out and search for any snippets of of Eagles material And then report it. And if you use if we accidentally had like if my cell phone went off in the background of this of a YouTube Q&A

0:20:07 Thomas: Okay. Sure. Yeah. Wow. Jeez. Hotel California. Yeah.

0:20:45 Andrew: And it was playing.

0:20:45 Thomas: In a New York minute. Yeah, I remember my dad had an Eagles tape.

0:20:47 Andrew: Yeah, exactly. Nice. That's that's a Don Henley solo. Solo. That's off of the Innocence. But but anyway, good, good. Good. Yeah. Good on you. And New York, but it's a fairly obscure song. So so nice one.

0:20:52 Thomas: Oh, okay. Yeah whatever must have been Don Henley tape then. Yeah yeah just yeah.

0:21:01 Andrew: So if that, if that were, if New York Minute were my ringtone, and I'm not saying it isn't and it and it and it were

0:21:04 Thomas: It's not a terrible ring ringtone actually answer the phone it's a New York minute it's gonna go fast we'd

0:21:11 Andrew: To play in the background and that were recorded during our live Q&A and that got uploaded to YouTube, I promise you within a day right, it would be taken down right because that's how, that's how big a blocker that Don Henley is

0:21:17 Thomas: Be assassinated by Don Henley a firing squad wow wait what about me just singing that just now

0:21:26 Andrew: No that's the point, so it and again you were singing the lyrics, but but what, what a YouTube creator will do is say, all right, I can't play the original of the uh solo from Hotel California here, but I can recreate it, and then rather like, like what you did with Stairway to Heaven, right? We didn't play Led Zeppelin. You played Led Zepplin. And you playing Led Zefflin on that episode of Opening Arguments, or Beato playing a bit from Hotel California on the list of best guitar riffs or best solos or whatever, is what is contemplated by this section 114.

0:21:31 Thomas: Ah right right it's still something that is protected, it's just a different, you're saying it's a different bundle of rights than than the just reproducing the sound, and that's the important thing, right

0:22:11 Andrew: Thinking, your right in the sound recording does not give you the right to exclude, to prevent somebody else from recreating those sounds, right? Now,

0:22:31 Thomas: Right but who owns the publishing does, because I can't just sit here and say hey, I'll play covers of Led Zeppelin, that's our show, right, I can't do that can I

0:22:39 Andrew: You actually could, could, but but but you would have to pay the statutes where, in fact, let's, let's jump to that right now, I had a little bit more on this but I but I think it flows well

0:22:41 Thomas: Oh okay no I don't want to don't wanna mess you up it's it's

0:22:51 Andrew: No no let's jump the very next section is section, section 115, right, so that was 17 USC 114, this is 17 USC 115, right, which talks about a compulsory license, right, and compulsory license means exactly what it sounds like. So one of the ways in which we could play Hotel California or Stairway to Heaven or whatever on this show is to voluntarily license it from the artist, right? From their music company, That would cost us a lot.

0:23:22 Andrew: And so the Copyright Act has a provision for compulsory licenses. Those are the license that you can get to reproduce the song without getting permission from the rights holder.

0:23:18 Thomas: Yeah huh interesting

0:23:37 Andrew: And compulsory license is what happens when you cover a song, okay? And when you hover a song... Here, I will read to you section 115.

0:23:37 Thomas: Okay oh I thought you were gonna do a cover, here here's Wonderwall today that would have been really good if you just went into the one Wonderwall that

0:23:49 Andrew: Okay. Oh, my God. In the case of non-dramatic musical work, so this does, this is not, this does not work for the soundtrack to a movie or a musical, or you know, something like that, the exclusive rights provided by clauses one and three of section 106, right, and we've talked about those, section one is the right to make copies, section three is to distribute those copies, right? So rights in your musical works, this is now beyond the sound recording, this includes the whole song itself, are subject to compulsory licensing under under the conditions specified under the section. So that's A1A. A person may, by complying with the provisions of the section, obtain a compulsory license to make and distribute phono records of a non-dramatic musical work, including by means of digital phono record delivery.

A person may obtain a compulsory license only if the primary purpose in making phono records of the musical work is to distribute them to the public for private use, including by mean of digital phonorecord delivery, delivery, and phono records of such musical work have previously been distributed to the public in the United States, or in the case of a digital music provider seeking to make and distribute digital phono record deliveries of a sound recording embodying a musical work under compulsory license, the first fixation was made under the authority of the musical work copyright owner, right? So in other words, the idea

0:24:07 Thomas: Huh okay very interesting very

0:25:19 Andrew: Is once somebody has recorded, fixed their copyright by making making a sound recording, and depositing a copy of the music with the U.S. Copyright Office. Then you can distribute that, but your distribution has to pay royalties back to the copyright owner. And the idea here, that

0:25:24 Thomas: Interesting and it sounds like, so you can't say no to someone covering your song if you've already published a copy of it, is that what we're getting, very Very interesting.

0:25:48 Andrew: Is correct. And in fact, what you then have to do, the royalty is set by an agency that is a subsidiary of the Office of Management and Budget, and it is the Copyright Royalty Tribunal. Um, I've just discovered a new thing that, you know, I'd like to sit on someday, the copyright loyalty tribunal, I'm going to wear a powdered wig.

0:26:06 Thomas: Yeah, me too. Yeah.

0:26:10 Andrew: Um. It's going to be fantastic. So the going rate right now is 9.1 cents per copy, right? Per airplay, right. Every single time, uh, you play a song on the radio, you have to pay the copyright right holder 9.1 cents. Every single time you perform a cover of said uh performance, you have to pay the copyright holder 9 point 1 cents, right it is

0:26:35 Thomas: Is that right? So I can play. So hold on, are you sure? So if I play a cover at a coffee shop to one person who's just waiting to get on the open mic next, is not even listening to me, that's the same, I just pay nine point one cents versus if I'm at Wembley and I play it. I to importantly, this is not being recorded and disseminated. Will say. This is just the people hearing. To, I don't know, 100,000 people or whatever, that's the same. You're telling me that's 9.1 cents.

0:26:38 Andrew: Yep it is every time that it is distributed, it is 9.1 cents. That is correct.

0:27:15 Thomas: Boy, I wonder if we're going to be doing an Andrews wrong because that can't be right. There's no way that could be right, sorry. 0.1 percent, 91.91 percent.

0:27:21 Andrew: I reasonably confident that that is the case.

0:27:31 Thomas: You wouldn't consider like each person in attendance being like a copy, like they're here, you know? Huh?

0:27:37 Andrew: Think so. That's not how I read the law. Now, I will say that. That when you were talking about the intersection of all of these laws, right, 114 subsection E says, notwithstanding any provision of the antitrust laws in negotiating statutory licenses in accordance with subsection F. Any right? Copyright owners of sound recordings and any entities performing sound recordings affected, affected by the section, may negotiate and agree upon the royalty rates and license terms and conditions for the performance of such sound recordings and the proportionate division of fees paid among the copyright owners, and may designate common agents on a non-exclusive basis to negotiate, agree to pay or receive payments. So in other words, one of the things, and this is really, really neat.

0:27:39 Thomas: Wow. Yeah.

0:28:27 Andrew: It is super intuitive, but I don't think I've seen this in in a great many other laws. The copyright laws basically say yeah, we get it, um, this could be really confusing and maybe people don't know who owns what, so uh, you guys are free to negotiate amongst yourselves how to divvy up all the royalties, uh, in connection with performances, in connection avec, even mandatory licenses. You can override that 9.1 cents thing, and you can say like, oh yeah, if, you know, if I know that, um, Pink is going to go out to Wembley Stadium and perform a version of my song, and so far, like, no one's ever heard about it, uh, and she'd like more than 9.1 cents. You know I right you know or whatever right like we can we can reach an agreement on that.

0:29:09 Thomas: You'd Like More Than me. Yeah, well. But but it sounds like it would be really easy to just game that, because in two ways you've said that you can't say no, essentially, it sounds like you, it's a mandatory thing, um, so my first question was going to be, if I understand it right, is it like, if you haven't set up some sort of know, you fee schedule, then the default is like this 9.1 cents.

0:29:36 Andrew: Yeah.

0:29:36 Thomas: That that like the government, but if you're Led Zeppelin, you could be like, um, f that, it's nine billion cents. But then wouldn't that be an easy way to game the system the other way, of like, yes, it's mandatory that you let people do covers, but if you say, yeah sure, just pay me all the money in the universe, then nobody can do a cover?

0:29:44 Andrew: Well, no, because if you fail to reach an agreement, that cover is then covered by the, yeah.

0:30:03 Thomas: But But Then you would game it the other way then. You just always, if you were the person trying to play the cover, you'd just be like, well, we can't reach an agreement, so 9.1 cents. I disagree with anything higher than 9.10 cents. Okay, we didn't reach any agreement, right?

0:30:16 Andrew: So, I can tell you that this provision was added to the Copyright Act in the late 1930s to encourage airplay on the radio, right. So that's how you want to be thinking about this, not as the like live performance cover model, which again, I know I get it. Andrew was wrong. If we have, you know, sick copyright lawyers who are listening, who've been doing this for their entire careers, you know this is, I'm doing my best here. Think I'm right. But the model you want to be thinking about is airtime, right, playing your song over the radio. And the idea, the public policy behind it was we want to encourage wide dissemination over this newfangled radio thing. And by the way, that's going to be good for you as the artist. So, you know, we will set up a statutory scheme that that

0:30:28 Thomas: Hmm. Yeah. So

0:31:11 Andrew: Immunizes them from copyright liability.

0:31:11 Thomas: Maybe we got off on the wrong foot. Maybe this never applied to playing a cover. Cause otherwise it doesn't make much sense. If you're saying it does apply to the sound and you're playing records over the radio, that's a totally different thing than what we were talking about.

0:31:17 Andrew: So it no, it absolutely applies to a cover as well. Right. That law is super duper clear on that, because the section 115 says that you, in compulsorily licensing the music, you do not have the right to change the basic melody or the fundamental character of the song. You do not Have the right To use any recording of the performance of the Song, right, such as the the master recording, um, you, you do not have the right, uh, to any audio visual derivative works associated with the song.

0:31:23 Thomas: Huh. Oh.

0:31:44 Thomas: That's interesting. Hmm.

0:31:56 Thomas: How is changing the lyrics slightly not changing the fundamental character of the song, or were we just talking about music notes?

0:32:02 Andrew: So, uh. And, and now we get back into the sort of that, that, that gray area, but, you know, Think about, like, a live cover where, you know, instead of, uh, Cleveland, you sing, like, whatever song, you Now, whatever city you're in or whatever, you know what I mean, like, it it, I would say, right, if you, you, when you would, if you were to sing, you know, Born in the USA, and you know, replace USA with, you know, Born in Croatia or whatever, when you're playing live in Croacia, like, that, that would probably not change the fundamental tenor of the song, uh, change the lyric.

0:32:02 Thomas: Okay. Yeah.

0:32:33 Thomas: But It's so fascinating because, like, the best, you know, people talk about covers, like, people, the some of the best, most famous covers are like, you know, they, they really changed the song and made it their own. But I guess not in a way that violated that, or maybe that the original artist didn't care. But my other thought was, so this is why you can, it sounds like you can stop, as we see all the time, Donald Trump from playing your song in a stupid effing rally over the P.A.

0:32:35 Andrew: That is Exactly right, yeah.

0:32:59 Thomas: But the Donald Trump cover band, whatever, you know, right wing asshole cover band sounds like they you couldn't stop them from playing Born in the USA as a cover during the rally. Wow interesting yeah This show is brought to you by ZipRecruiter. According to Forbes, gyms, nail salons, hotels, mom and pop stores, and more are set to go on an epic hiring spree in the coming months to meet the pent-up demand for all these services. I'm excited for things to open again. I'm excited for, you know, us to do maybe live shows. I am excited to go to the movie theater again. I think with proper vaccination and masking we can do all these things sooner rather than later, but who knows. Anyway, all of these businesses reopening means that millions of jobs will need to be filled. So where do these businesses turn to fill those roles fast? ZipRecruiter. And right now, you can try it for free at ziprecruiter dot com slash OA. When you post a job on Zip Recruiter, they send your job to over 100 top job sites, giving you access to their network of millions of job seekers.

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0:37:20 Andrew: Right. And now, I will touch very, very briefly because we're going along, I knew this segment was going to go long, on music videos, right? Because under Section 106, original creator of the music video also owns the performance, reproduction, production, distribution, derivative rights, and all other rights, um, of that video. Okay, so think about like almost all of these iconic Weird Al songs were also a company, because, you know, he hit his fame in the 80s, uh, and 90s, uh, were, were accompanied by videos that were also, also parodies of the original, uh, of the original artist. So, like, the you know, the Fat video is like the bad video, only, you know, I mean, scene for scene. Like, it's, it's, it's, you know, and, and you do not have the same right where I can, note for note, you can note for note recreate, uh, Stairway to Heaven and, uh, get away with it under 114. You cannot, scene for scene recreate casino.

0:38:13 Thomas: Interesting.

0:38:30 Thomas: So he did have to get the permission and like pay royalties for that, okay.

0:38:37 Andrew: There you go. So as far as I can tell, and I read a 1991 law review article, and by the way, sidebar to our law students who are listening, if you're thinking about writing an article for your law review, we are way overdue for a primer on copyright and parody in music. The last major article was written in 1991, and it interviewed Weird Al's lawyer, right?

0:38:38 Thomas: Huh. Yeah. Geez. How is that possible? Oh. Wow.

0:39:06 Andrew: And as far as I can tell, right, in fact, let me quote a little bit from it. Weird Alís parodies generally consist of independently recorded, painstakingly accurate, sound-alike instrumental tracks of entire hit recordings, over which he records parody lyrics lyrics of the underlying musical composition, often sung in a style mimicking the performer which appeared on the hit records. And then, noted above, Mr. Yankovic's sound-alike re-recordings of the original records do not run afoul of the copyright owner's rights in such original recordings pursuant to Section 114 of the Copyright Act. Likewise, there is no threat of confusion in the marketplace caused by his parodies.

Lampooned recording artists are unlikely likely to have a cause of action against Mr. Yankovic based on violation of the various unfair competition statutes. It is the rights of the copyright owners in the original underlying songs and the music videos satirized by Weird Al, however, whose rights stand to be infringed by the performance and sale of his parodies. Then it goes through, the law has changed somewhat since 1991, so I'm not going to read their analysis of this particular law, but it it says basically that in order to avoid the confusion over whether it's a fair parody of the video, Weird Al would then license all of the rights from the original recorder, from the original songwriter,

0:39:06 Thomas: Okay. Right.

0:39:58 Thomas: There. We go. Okay.

0:40:24 Thomas: Yeah.

0:40:26 Andrew: That would resolve out any of the legal issues. And the fact that he is so prominent, right? When he comes to you and says, hey, I'd like to do X, you're like, okay, well, great. This is going to sell a million copies and I'm going to make a fair chunk of change for doing nothing.

0:40:43 Thomas: So remind me, who, because again, there's all these different bundles of sticks and they're like rubber banded in different ways, you know, like several, some in common and some not on this bundle of nonsense. Who owned, God, there are so many different entities, you know, there is the recording rights of the actual sound, there is the music, written music rights, there is the lyric rights of all those people, and oftentimes they could be all the same person, and oftentimes all different people, who again owned the music video portion of that music

0:41:13 Andrew: It is almost always, this article mentions, it is almost always the music publisher, right, because they also are funding the recording of the video. They're the ones that put up the money to record it and they advance the funds to record the video,

0:41:19 Thomas: Publisher? Okay. Gotcha. But So I guess the question I'm getting at is, I still have the question in my mind of does Weird Al, forget all the music videos, does he have to pay the person who wrote the notes on the page, or does he not have to do that? I, because, because it sounded like earlier you said, well, that he licenses the full music video thing and that fixes everything. But, like, that could still, as we've discussed, be a different person than who wrote the notes on the page, and probably is.

0:41:53 Andrew: It could be, in practice it tends not to be, right? In practice, uh, artists will convey, uh, those rights over to the, that's what it means, like when you get signed to the record contract, right? It means that you are conveying your rights over to the publisher in exchange for their promise to promote a I

0:42:11 Thomas: Even the actual note for note writing rights? I thought that was the one that you like they usually were able to hang on to.

0:42:18 Andrew: I don't want to characterize what a standard form, you know, music contract is like. So I'm going to take a pass on that question.

0:42:20 Thomas: Okay. Because Isn't that the whole thing with Taylor Swift re-recording her albums? But, like, I thought that was her whole thing, she was locked in the contract, and so she, like, hates the old guy, and so she's re-recording her albums to

0:42:37 Andrew: I know who we have on staff that we could ask Taylor Swift related questions. So we Will table that. So my point on all of this is that the fact that Weird Al enters into these negotiations should not be taken as indicative, indicative of a, a, an agreement that, uh, he definitely did not have the right to parity. It is, I think, to resolve the potential ambiguities when you have the intersection of all three of those sets of rights coming together. I, I stand by our original analysis. I think that's very, very clear from the, the, the two live crew case, the, Campbell the versus Acuff-Rose music, which I will point out is from 1994 and postdates this article by three years, right? So the Supreme Court, this article really focuses on the law of parity up until about 1987. And the Supreme court changed the rules on that. In particular, what they did was prior to the two live crew decision, whether you were doing something for commercial purpose weighed in very, very heavily in their determination. And I'm actually going to explain the case that explains why quickly.

0:42:38 Thomas: Yeah Okay, well we'll table that matter for later. Hmm.

0:43:08 Thomas: Yeah.

0:43:51 Thomas: Hmm, well, you say quickly I just want to note, uh, because we changed our Hall of Fame patron chat outs, you've got a little bit more time, Andrew, isn't that great, so

0:43:52 Andrew: Nice. That is great. This is a case called Tin Pan Apple versus Miller Brewing Company. Okay. And this is Miller Lite, tried to hire, do you know who the Fat Boys are? Okay. So the Fat Boys were a short-lived rap group in the 1990s. They were known for, they partnered up with the Beach Boys and they did an incredibly weird drumless version of Wipeout, which is odd because, you know, Wipe Out is generally considered one of the best drum songs of all time. But, But, you know, so be it.

0:44:14 Thomas: Yeah.

0:44:33 Thomas: No. Way? That's True.

0:44:36 Andrew: They They had slightly notoriety in the early 80's, early 90's. There was a movie vehicle called Disorderlies. Anyway, the Fat Boys. They were briefly popular.

0:44:36 Thomas: But that's Fine. Weird.

0:44:46 Thomas: Oh.

0:44:47 Andrew: Miller Lite tried to engage the Fat Boys to do a Miller Lite commercial. And when the Fat Boys wouldn't do it, They hired, do you know who ex-SNL comedian Joe Piscopo is?

0:45:01 Thomas: I know that name, wasn't he a radio guy later on?

0:45:04 Andrew: Yeah, he was. Anyway, they hired Joe Piskopo to parody the Fat Boys and do the commercial. And then the Fat Boy sued Miller and said, come on, you can't try and hire us and then hire somebody who sounds just like us. And, you know, and is obviously parodying and mocking us and then not pay. Like, that's ridiculous. Right. And essentially, you second circuit like, look, this is not a valid parody. Like when we think about parody, we don't think about this situation. Right, which is I've tried tried to hire somebody, but instead gotten a lookalike.

0:45:50 Andrew: And for about a decade, right, this Tin Pan Apple case was used and cited for the proposition that commercial works generally do not qualify for consideration for fair use in copyright, right. The same thing happens. It was a year later, sorry, electronics distributor Crazy Eddie in New York, right? And, you know, our prices are so low, it's insane, right. Crazy Eddie had a Superman parody in the beginning. Look, up in the sky, it's a bird, it's plane.

0:46:24 Thomas: Yeah.

0:46:24 Andrew: It's Crazy Eddie. And the court said that was an unjustifiable reliable appropriation of copyrighted material for personal profit. And that ruled the day for about a decade. And then our Supreme Court was like, yeah, the fact that it is, yeah. Now that that is fine. Yeah.

0:46:25 Thomas: Oh.

0:46:40 Thomas: Now that's Find Oh. Okay. So We can do our It's a Bird, It's playing it's opening arguments uh, breakdown with Andrew Torrent, okay.

0:46:46 Andrew: We can, we can, and we should.

0:46:51 Thomas: What a great ad that would be. And then I can do a cover of Wonderwall apparently during it, I think, I don't know, or Or I can't, I don't, still don't, no, Andrew.

0:46:53 Andrew: There we go. So one area, and again, as we said, two live crew was typically, you know, I mean, their album was called as nasty as they want to be, right? That case, I think, also casts serious doubt on what I would call the nanny exceptions to parody that were before 1994. I'm going to give you a fantastic example. I'll give you two, in fact, because I love these old-timey pornographic graphic cases. So this is a case called Walt Disney Productions versus Mature Pictures Corporation.

0:47:44 Andrew: We Thomas, we are getting 1975's equivalent of mouse porn. I'm going to read the description. In that case, defendants had used the Mickey Mouse March. We all know what the Mickey mouse march is, right? The theme from the Mickey Mousel Club television program. As background music, the particular scene involved women performing sexual acts on a pool table with three men wearing nothing but Mouseketeer hats, while the background music under which consisted of continuous repetitive use of the entire mouse march.

0:47:41 Thomas: We go, are we getting mouse porn?

0:48:17 Thomas: Absolutely a non-zero segment of our audience that's really into this, I'm just saying. Yeah.

0:48:23 Andrew: And the court said, um, defendants may have been seeking in their display of bestiality, and, come on, wearing the mouth ears is not bestial, but anyway in their display of beastiality to parody life, they did not parody the Mickey Mouse March, but sought only to improperly use the copyrighted material, thus basically ruled that uh if you're If you're making a parody, like you have less latitude when it's kind of an element of an overall parody than when you are parodying the music itself. But I again, I read that as kind of the, this this dirty stuff is not a serious parody. Right, um, then have to the case of MCA Music Inc versus Wilson let Wilson, which is a 1981 case. And in Wilson, the plaintiffs were the owners of copyright to the song "Boogie Woogie Bugle Boy of Company B", right? Song made famous by the Andrews sisters in the 1940s and later covered by Bette Midler. They sued the defendants for their performance of a

0:48:33 Thomas: Come on, uh-huh.

0:48:43 Thomas: Yeah.

0:49:31 Andrew: Parody entitled The Cunnilinguist Champion of Company C as part of the show entitled Let My People Come.

0:49:40 Thomas: In this, when is this, like, the 40s or 50s? Or, oh.

0:49:44 Andrew: 1981, baby.

0:49:46 Thomas: Okay. So it's later, I was gonna say,

0:49:46 Andrew: Although the defendants insisted that they had taken very little from Plaintiff's Song and that they'd engaged in a parody of both the song and the contrast of the sexual mores between the 1940s and the 1980s, the district ruled that

0:49:57 Thomas: It's it's More about the coming, your honor, it's less about this song

0:50:03 Andrew: The use was infringing. So as far as I can tell, is where we stand on across all of these various dimensions for parody today. Okay. First, first what you do is you ask, is this a fair parity? And the fair parity has two kind of sub elements to it, right? The first is a validity or nexus to the source material, right? And that is, the defendant must have made some critical comment or statement reflecting an original perspective, giving the derivative work social value beyond its educational function.

0:50:52 Andrew: In other words, you have to be parodying a thing about the original, right? Second, although the parody need not be directed solely at the original underlying work, the original must at least in part be an object of the parody that is establishing a nexus, a connection between the parody and the work that you are drawing from, okay?

0:50:58 Thomas: Okay.

0:51:12 Thomas: That's Interesting.

0:51:13 Andrew: If it isn't, right, Right. Then it's not a valid parody and it just falls out. You're infringing copyright.

0:51:20 Thomas: So If you, I, but if you just take the tune of a song and change the lyrics to be something wholly unrelated to anything, that sounds like it's not a fair parody. Interesting. Okay.

0:51:29 Andrew: Yeah, that that that's right. Right. Yeah. You have to be you has to be some kind of connection.

0:51:33 Thomas: It's has to like relate to the thing, yeah, interesting.

0:51:35 Andrew: Yeah. And and then the second aspect is what what is called the verbatim copying threshold test. Right. And that is if you take and you sort of had mentioned this in the beginning. If it is basically the whole song and you've changed a couple of words, there are a great many. Again, these are not Supreme Court decisions. These are court and circuit court opinions. So you're sort of reasoning analogistically. But there are court decisions, particularly in the Second Circuit, that are like, yeah, come on, man. You've got to do better than that, right? Right. And so good a example, right, one of the earliest Weird Al parodies was of the Naxx by Sharona, which he sang as My Bologna, right? There's very little, I mean, you know, it is changing Sharona for BologNA. That might not fall within acceptable, that might might not be considered a parity because you've changed so little work.

0:52:17 Thomas: Yeah. Yeah.

0:52:28 Andrew: And again, right?

0:52:28 Thomas: But You got permission, so nobody's suing you for it, yeah.

0:52:31 Andrew: But he got permission, so nobody's suing anybody. If you pass, so those are the two kind of hurdles you've got to get over. If você passa e você é uma paridade presumptivamente válida, parity, then the question becomes, is this fair use of the source material, okay? And it means that we examine whether it then fairly used the material, And the most important inquiry there is the market usurpation test, right, so in other words, if I parity you, but am competing in the same market as you, and I am potentially undermining, you the, your ability to access that original market, um, then that, that could be an unfair

0:52:32 Thomas: Okay. Huh.

0:52:48 Thomas: So So a valid parody is not fair use per se? Interesting. Hmm.

0:53:17 Thomas: That's Interesting, yeah.

0:53:20 Andrew: Parody, right? This is also, I think, this is not something that Weird Al has ever said. Um, but if you notice Weird Al parodies tend to lag behind the original song by a couple of years, right. Um. And, and part of the reason for that That is that that helps make that market analysis very, very clear that like, you know, when you hear, you eat it right now, like even at the time, it was a couple of years after Beat It came out. Right. And so it makes it harder to argue, oh, the airplay that went to the Weird Al parody could have gone to my song instead.

And then finally, and I wish we could we could table this for or we could revisit this at another time, one of the interesting things in copyright that that that applies to lyrics. Well, it applies to the work taken as a whole is, you when I typically think about this from a literary perspective. Right. I think about I've often mentioned that fair use kind of follows the Siskel and Ebert model. Right. You play two minutes of a movie. You give a half hour of analysis

0:53:46 Thomas: That's Interesting, yeah.

0:54:22 Thomas: Oh.

0:54:23 Andrew: As to why the movie sucks or not. The Right, less of the work that you're taking and the more of your original work that you're putting in of first the level touchstone of, am I engaged in fair use, right? Again, don't take legal advice from podcasts. There are lots of ways to use only a small amount that are still not fair use. And the actual analysis is more complicated than that. But that's the first step you would use.

You'd be like, you know, I've mentioned the idea of like reposting an entire 900 page book and then, you setting it all off by carats and then having, you know, as if it's quoted and at the bottom putting LOL or, you Know, you dumb or something like that would very clearly not be fair use. You're quoting the entire book and you're adding very little. Parody is interesting because in order to parody an original work, you must conjure up. That's the language that the cases use, that work in the mind of the audience, right? So you have to take a lot of the work in order to remind them of the thing, your parody, yeah.

And so there's sort of more latitude to use more of the subject material, but it's got to stop at, have to conjure it up in the Mind of the Listener. And once you go beyond that, that right, could potentially be unfair and infringing, right? So the best example I could think of for something like that is, you consider a song that has in Black having an iconic guitar riff, right, well, You could play that guitar riff once in sort of the beginning on the harmonica, to be like, you now, all right, this is, we're doing a harmonica. I'm saying harmonica, I meant, uh, accordion.

0:55:19 Thomas: Absolutely. Yeah. Yeah. Yeah.

0:55:59 Thomas: On His accordion

0:56:00 Andrew: Is what, is what? I, Won't leave that in because it shows my lack of musical knowledge, um, but yeah, we're doing, you know, Back in Black on the accordion, um, you could do the riff once, you know, to summon up, uh, the song in the minds of the viewers, but then if you, you know, if you went on like an extended note for note accordion solo, solo, even though that would be protected under 114, it might run afoul of the, uh, of not being fair use of the material taken as a whole, because it's like, no, no, no, this is just like a cool riff that you're trying to you know, appropriate for yourself.

0:56:00 Thomas: Yeah. Huh.

0:56:33 Thomas: But, If Weird Al did that parody, he would definitely do the whole song note for note. In fact, you, he does do that, like, you read that he did, it's painstakingly reproduced note for note.

0:56:42 Andrew: Um, But, but not when, like, when I'm thinking about like songs that have multiple repeated uses of, like, of, of, like, a killer hook. Like, I think we're now tends to be shorter than that, right? Like, tends not to reproduce, uh, like tired of solos and, and things like that. Maybe I'm wrong.

0:57:01 Thomas: I, huh. That's it. Cause this is a weird, difficult distinction to grasp. Like, I don't know that it even makes sense if I'm being honest with you. Like if you're doing a parody of the song, they're always just the whole song note for node. As you said, when you're reading the law review article about weird out, it was like a painstaking reproduced thing. It's weird to be like, you do that, but also not do that. Cause it's not fair use.

0:57:05 Andrew: It is, it is that, that's, Here's the best I can do in, in, in terms of trying to, to, to make sense of that. Beat it by Michael Jackson is four minutes and 18 seconds long. Eat It by Weird Al has the same number of verses, but is three minutes and 19 seconds long. So in other words, like once it's summoned up and so it is a painstaking recreation of the bits that it's parodying, that it is appropriating to conjure up the song, but the repetitive guitar elements in the middle are omitted to shorten the Weird Al song.

0:58:00 Thomas: Huh.

0:58:00 Andrew: That also makes parodies better and kind of tighter, right? Right? So second.

0:58:02 Thomas: Yeah. But don't you think that's not going to apply to every parody? I know you can find examples, but I really feel like there are songs he's done that are basically going to be the exact same thing as the song.

0:58:12 Andrew: And again, may find that, right? What I would say is that illustrates the degree to which there is a substantial amount of uncertainty, and it kind of comes back to, right, what we said at the outset, which is, and by the way, like, yeah,

0:58:20 Thomas: Okay. Oh, and again, yeah, This is sidestepping the permission question. So like, yeah, if you were to do this without permission, perhaps you need to reduce your version of the the song, but because he's asking permission, which sidesteps the whole issue, uh, essentially, um, maybe he can do whatever he wants there, okay. Boy, so it is your opinion, it sounds like, based on your analysis, and god, we really may just have to get a music law person.

0:58:40 Andrew: Exactly exactly right. Right.

0:58:49 Thomas: On here, but I mean, unless unless uh we get no complaints and we solved it, I don't know. It sounds like you're saying Weird Al or Weird Schmal, anybody, could do a parody of a song, and as long as it's a fair parody and also fair use, which is that part is very hard to fathom, but maybe it's just a sort of unsettled question, then you don't have to ask permission and don't have to pay anybody any money.

0:59:15 Andrew: As so long as there is no associated music video. Yep. I think, I think that's right.

0:59:17 Thomas: Music video, yeah. No. Yep, that's your wow. Okay. So I will go back to, Thomas Smith's America, if you copy the music and just change the lyrics, in my America, you you owe the person who wrote the musical notes, you owe them money, that's my America. Andrew's saying we don't live in my American, although it also sounds like maybe with, you know, you could make negotiations and out of just, know, being you a good person, you could be like, here, I'll pay you some the royalties or whatever, um, it's the fact that like, because of the music video, which was a key part, I guess, of, I'm not a Weird Al expert clearly, but like that does seem to be a key part of the appeal, um.

0:59:56 Andrew: Yeah, absolutely.

0:59:57 Thomas: So it sounds like that's where he would make deals and just and kind of pay publishing rights to whoever and uh make peace.

0:59:58 Andrew: Yeah, and I don't, I don'T want to say in a world without music television vision that Weird Al would have never done so, right?

1:00:04 Thomas: Oh.

1:00:13 Thomas: Yeah, no.

1:00:13 Andrew: What I wanted to say is layering on that additional level of complexity made it a legally smart decision. And then, as all of our listeners have noted, Weird Al seems to be a good guy, right, and I will point out my love of Weird Al overlaps with my love of Transformers. They used the song Dare to Be Stupid in the Transformers movie because Scotty Brothers was a subsidiary of Brothers and so was DAG Entertainment, the De Laurentiis

1:00:14 Thomas: I don't, oh.

1:00:28 Thomas: Yeah. Of course. I don'T

1:00:47 Andrew: Entertainment Group that was producing the movie. No, I would say. So they just, they had it at hand and it was very, very easy to like cheaply use the song in Transformers the movie Right. That's the only connection between Transformers and Weird Al for 20 years. And yet like Weird Al would get bombarded at like appearances that he would make by like nutball Transformers fans like me to be like, hey, what you think of using your, you know, song? And so they actually approached him to be the voice of a of a character in Transformers Animated, which he dove into with delightful joy and aplomb. So so my point is, I don't know anybody who has a bad

1:00:47 Thomas: Know what any of this means, but okay. Yeah. Yeah.

1:01:31 Thomas: Oh.

1:01:31 Andrew: Word to say about Weird Al except you. And I'm

1:01:33 Thomas: Come on, shush, so I'm, still, there's one thing I'm still not clear on, then. He asked permission to do Just Eat It, or something, forget the music videos, was he paying, is he actually, again, I, your opinion is that as of a matter of law, he doesn't have to pay the person who who wrote the musical notes, essentially. But does he, as a part of that permission, or does he just do it and not pay them that?

1:02:01 Andrew: I think unter the modern rules that he could very clearly do so. I think at the time that he began the practice, it was far less clear, right? Because we had the presumption against commercial use like the the crazy eddies and the fat boys examples. And so I think, again, that was from a legal perspective out of an abundance of caution. Again, longstanding practice codified. He's not going to go to, you know, not negotiating the royalties. And it makes sense in connection with the videos. But I stand by the analysis, right, from the previous episode. Had Weird Al not done so in an alternative bizarro universe, which everything else is the same, but Weird Al does not license the songs, he would be able to make the parodies and sell the parities, gain commercial value from the parories without compensating the original copyright holder. That seems to me to be the plain holding of the Campbell versus Acuff Rose music.

1:02:10 Thomas: Huh. Huh. A not weird universe. Yeah.

1:03:00 Thomas: Wow. So long as he didn't do a music video? Okay. Weird. Totally Different.

1:03:03 Andrew: Yeah. Music video. Totally out. Right. Yeah.

1:03:06 Thomas: How Bizarre. Well, there's, oh my God, there's so much more to talk about about this, but, you know, we're way over time, so, uh, we'll leave it there for now and direct all your complaints to Andrew. And, and

1:03:07 Andrew: Yep. I love Weird Al.

1:03:20 Clip: And thank you, Let's go!

1:03:21 Thomas: Uh, now it's time to thank a third for this month, because again, we are dividing it by how many, uh, how many Hall of Fame thanks there are in the month. Our last, our final third for this month of the Hall of Fame patrons. Why don't you start us out?

1:03:33 Andrew: And thank you to Stop Calling Him Uncle Frank. Nate Drex has to call him Dad. Knock, knock. Who's there? HIPAA. HIPPA who? I can't tell you. To Definitely Not an MSNBC Spy. To My Fully Stocked Basement Bar is your fully stocked basement bar for a Philly Live Show Platinum event. You pick what's on tap. To Jeff Gelbach, civilpoliticsradio.com, Fridays at 7 p.m. Eastern on Valley Free Radio. Jennifer Kratch, PSA for sober people who like beer. Check out Athletic Brewing Company and Wellbeing Brewing company. Interesting. My stepdaughter is a fabulous lesbian, and all I got was this Patreon name. Not true. We also have a fabulous stepdaughter.

1:04:15 Andrew: John Bilderbeck, my friend's cousin mixed Coke with Coprox and he died. Stephen Balticate Sandoval. By the time you read this, our dog Lucy will have crossed the rainbow bridge. She was the goodest of dogs. I'm so sad now. Philip Kizer, Andrew the Arbitrarian Capricious, give to modestneeds.org, give to modesty.org. Then visit deepfakestop.com. Gere Sergith, we stopped serving breakfast at 11, so you'll have to order off the freedom menu. Not that, Chris Wallace. Absion, sorry for making you use the last one for so long. It was dumb anyway. Jonathan, Lord Kimbote, no, your honor, I'm not a cat, nor am I a potted plant, but I am a karaoke legend, if that helps. Dude. Edit Wikipedia. Yes, you too can contribute to the world's foremost source of free knowledge and maybe get sued by a quack. Milo Mead's song wishes all Stephen Breyers a happy retire now.

1:04:11 Thomas: True. Oh, Yeah,

1:05:09 Andrew: Join your labor union together. We bargain alone, we beg. Freedom menu. I'll order item 1A, extra speech, hold the religion. Sentient Roomba, Alfred Wallace, sorry, Aaron Sorkin frantically scribbling down everything Jen Psaki says to Fox White House correspondents. False. Yeah, that is really good. I love Jen Psaki. And WordOrigins.org, your source for word and phrase origins. Thomas, you have the cream of the crop, the very best of the very best.

1:05:35 Thomas: The Final The Final.

1:05:37 Andrew: Take it away.

1:05:37 Thomas: Anonymous. My Witty names aren't original and my original names aren't witty. Malcolm the Dragon, the the Precious Variant, R.I.P. Notorious RBG, they said I could be anything so I became two fabulous lesbians, Derrick, Reigning Champion of Yodel Mountain Fantasy Football League. Oh yeah, I'm the reigning loser and I'm about to repeat as a loser. I used the same rankings everybody else did. How did I come? I'm actually amazed. I'm impressed and you all should be impressed at how bad of a team I came up with using the same rankings available to the general public. I don't know what I did. Anyway, Big Easy Blasphemy. Maybe I'll turn it around. I don't please don't read this on the pod. We don't need the call out. Thanks for what you do. Sorry, sorry, I'm going to read that every time. A string of unpronounceable characters.

1:05:39 Andrew: Nice.

1:06:23 Thomas: RhondaTheDork.com. Do take medication advice from your veterinarian patron. Do not take ivermectin, you idiots. Unless you have river blindness, I think, is the part that Therese would have put in there, I am sure. Malaika Chandler, they said I could be anything, so I became two princes who adore you. Soggy Pants. I ordered public transit on the freedom menu, but got cars instead. I demand a refund. Adopt a homeless pet and oppose declawing and ear docking.

1:06:49 Andrew: And depose.

1:06:51 Thomas: Well, I'm a lawyer. You know, I got law on the brain. I Dejury belly at Patchy's at last, baby. Heather L. and recently betrothed.

1:06:51 Andrew: That would be excellent.

1:07:00 Thomas: Yeah, saw pictures On the old Facebook. Congrats, you two. Fantastic. Matthew Vernon, Jeremiah's Fancy Microwave Emporium, Ian and Ally, Danny Rosari, Eli Bosnick, Adam Costa, Sin Space Newbie, David and Brooklyn, Sam Denow, Mitchell, we all know Aaron has a spider tulpa, Michael Ropps, I agree with that 100%, Sam Buck, and Conrad Michaels, he who shall Never be Dethroned. Oh,

1:06:58 Andrew: Oh, congratulations. Heather L on your, uh, marriage Yeah, Conrad Michaels. I It's possible to dethrone Conrad Nichols.

1:07:29 Thomas: Yeah, it's like one of my favorite Groundhog Day lines. You know, it's possible to dethrone Conrad Michaels. It'd just take a lot of work.

1:07:29 Andrew: Yeah.

1:07:39 Andrew: Just 18 hours a day, just be that, I Am.

1:07:43 Thomas: And I'm looking ahead to the October calendar, and here's the thing. I have to use, so it's based, it has to be based on when we record, because otherwise that's when the patron update will be. Long story short, there are five Hall of Fame shoutouts in October. So I'm giving you fair warning. The first fifth will be that next Tuesday show. So, you know, that means the first fifth of Hall of Famers, be ready with your new names and so forth. So it's one of the five months. There's going to be some of those. So that's looking ahead to October.

1:08:15 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:08:21 Thomas: Now it's time for t3be let's see did I get the first one right of this new test or not Aren't I? Am I 0 for what? 4?

1:08:29 Andrew: Yep. So, Thomas, this was the local police department trying to solve a series of murders. Murders, they had reasonable suspicion that the perpetrator resided in a particular neighborhood. They decided to search through the garbage of all the residents. They discovered evidence in the taylor's garbage that was tied tightly and sealed well that would place him at the scene of many of the murders, so he was subsequently charged. They sought to introduce the evidence found in the garbage bag as evidence at trial, and the tailor moved to suppress the evidence, arguing that it violated his Fourth Amendment rights. Should the evidence be suppressed? And you went with D. No, this doesn't have, this is not a search that is implicated by the Fourth Amendment. And Thomas, you are absolutely 100% correct. Yeah, we

1:09:19 Thomas: God, I'm so glad I remembered that correctly, because we've been something very related to this, I think.

1:09:24 Andrew: Have. And just like what we just went through in terms of there being a threshold question, the first question you have to ask when there is a search is, is this the kind of search and seizure that the Fourth Amendment, right? And one of those questions is, did you have a reasonable expectation of privacy for the thing that they did? Now, I will tell you in a great many ways, right, modern technology has made a mess of that, right? So, for example, historically, it would be things like if the cops walked by on the street and, you know, you've got your curtains open, right?

1:09:47 Thomas: Yeah. Right. Mm-hmm. Yeah. Yep.

1:10:06 Andrew: And you're, you know, checking to see who's stolen like, you know, a fur coat and you're modeling the fur coat in front of a window with your mirror, you have no expectation of privacy when you have your window open, they observe you. That is not an illegal search because you had no expectation of privacy.

1:10:13 Thomas: Uh-huh. Yep. That's plain view exception, I guess.

1:10:25 Andrew: Has been, plain view is what happens when they execute a limited warrant but see something else.

1:10:29 Thomas: Oh, okay. Gotcha!

1:10:31 Andrew: But it's right. Again, it all stems out of the same kind of justification, which is, yeah, you can't be bothered to put the murder weapon away when the cops come to search your house. You've got no beef with them when they find it. Now, you know, that has been extended to the DEA flies over your house with infrared cameras.

1:10:52 Andrew: You know, there are lots of terrible laws. But one that I think is not terrible is the Supreme Court decision that says once you've thrown something in the trash, even if you, you know, really tied the bag tightly, once you throw something in the trash and take it out to your curb, um, you don't have an expectation of privacy in that anymore. Like people root through dumpsters. Like you're, you're literally throwing it away. It is outside your possession, custody and control. You don't Have a right to privacy. You got no beef. You got nothing. That's it too bad. Um, and case law is super duper clear on that. So you were not distracted by any of the rest of the answers.

1:10:51 Thomas: Yeah. Yeah, yeah, yeah.

1:11:29 Thomas: I think I remembered it all perfectly correctly. Did I nail this analysis?

1:11:33 Andrew: I think that's right. Yeah.

1:11:34 Thomas: Holy moly, it feels good.

1:11:35 Andrew: Yeah, you you you got it. Get on you. The coin got stuck with a yes, because the search does not fall into any of the exceptions of the warrant requirement. And, you know, it's it's tough to say whether that would be the case. Right. If the trash were inside the house, I think this would be a bad I think This would be a bad search.

1:11:41 Thomas: Silly coin. Oh, good point. Yeah. Hmm.

1:11:55 Andrew: But once you've thrown it out like you've thrown it up. So congratulations, Thomas.

1:12:01 Thomas: I probably made that easy question look hard, but I was trying to remember what we've talked about. All right. One for four on the new test. You know, we got to get a larger sample size, but it doesn't seem unreasonably porked yet. You know? Unreasonable pork And seizure. But uh, we'll see, um, okay, well, I nailed it, the coin silly coin blew it. Uh, let's see, which listener is our big winner this week? Good.

1:12:13 Andrew: All right.

1:12:24 Andrew: And Thomas will be announcing these winners for the foreseeable future.

1:12:28 Thomas: Alright, well, Past Andrew is corrected. It will be my turn to do this for a while. So who do I choose? Lots of people got this correct. I was overthinking it a little bit. I was worried there's some rule, but I will say a lot of people guessed A. A couple people at least thought the coin best me this time, but no, it was D, and I could choose from a lot of them, but here is Melly Batcherek, at Melly Batchrek, M-E-L-L, Y-B-A-C-H-O-R-EK, Melly Bacherek, this was my favorite, D, no because curtilage, cringy word up there with moist. In Greenwood, 4th, 86, U.S. 35, 1988, SCOTUS held the Fourth Amendment does not prohibit warrantless search and seizure of garbage left for collection outside the curtilage of a home.

1:13:22 Thomas: Here, while, yeah, I'm getting lambasted for terrible takes, here's some more, I'll throw some more terrible takes your way. Moist, nothing wrong with that word. Curtilage, great word, even better. I actually really like the word curtilige. It's cool. No, now I say it a few times, Mellie, you're right, that is kind of gross. It's got a of weird sound to it. It sounds like something wrong with it. You get curdled. Oh, God, see a doctor for that. In any case, Melly is the winner. Great job. And look forward to more of me picking these winners in the future. October. And that's our show. What a deep dive, Andrew. Wow. I feel like the controversy is going to continue. There will will still be, I think, there will still be arguments about this.

1:14:02 Thomas: But, but there you have it, that was fun, and see you next time, everybody.

1:14:01 Andrew: Sure there will be

1:14:07 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:14:40 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.