Wednesday, February 25, 2009

Holy Illusions of Privilege!

"Not cool, France. Not cool."

While updating and educating myself on who is stealing what from whom these days, I found out that even national governments cannot even get away with misusing and violating us lowly common folk’s creative materia
l. Last week, Brooklyn-based indie rock band MGMT decided to take legal action against the French political party Union pour un Mouvement Populaire, or UMP, claiming copyright infringement.

Allegedly, the French equivalent to the U.S.’s Republican Party has been using the song “Kids,”a popular song off of MGMT’s most recent album, during their campaign without permission. The current president of France, Nicolas Sarkozy, represents the UMP party, and condoned the usage of the song during party meetings including its national congress in January, during a field trip by
the President himself, and in two official political videos on the UMP website. The UMP holds the majority of seats in the French government, not to mention the presidency as well. What is most ironic about this case is that the UMP is known for its strict views on filesharing and is at the forefront for prohibiting the infringement of creative copyright. Considering their stance on this public issue, it came as a shock to the MGMT camp that although the UMP’s public relations representative willingly admitted to using the song without permission, they stated that it was “unintentional” and offered the band nominal damages of one euro. MGMT’s camp rejected this ludicrous offer, and the band’s lawyer, Isabelle Wekstein, expressed their disgust to American Free Press: "This offer is disrespectful of the rights of artists and authors. It is insulting...we are dealing with acts of counterfeiting, an infringement of intellectual property."

Also, in the most unfortunate of timing, the UMP has planned to present an anti-filesharing bill to tighten the laws regarding the usage of peer-to-peer software, among other things, to the national assembly in early March. Wekstein addressed this irony to French newspaper Le Monde: "It seems that those who led the charge against internet users are not the most respectful of copyright." Interesting.

What does the center-right-winged party have to say for itself? The General Secretary of the UMP, Xavier Bertrand, has issued a response to MGMT’s charges, saying "The UMP is very respectful of copyright. Compensation has to be expected... and we are presently looking at whether the band was fairly compensated." What Bertrand is referring to is the review of the band’s relationship with SACEM, which is a French creative rights agency, its main purpose being "to collect payments of authors’ rights and redistribute them to the original authors and composers and the publishers." The notion is that the usage of the song was arranged with SACEM, and MGMT is to be awarded their royalties through the organization itself. Wekstein does recognize that the UMP paid the standard fee of 53 euros to the organization, however, she stated that the payment does not cover the continual use of the song in multiple situations and multiple channels following the initial use of the song. Ergo, the MGMT camp will continue pursuing the case.

Taking a step back and looking at this situation from a legal and ethical standpoint, whether the content is digital or not, MGMT’s material is not an invention nor is it a term or image that represents the band for
marketing purposes, but is an issue of creative expression. Therefore, MGMT’s songs could not be patented nor trademarked, but are copyrighted. Under copyright law established by the Copyright Act of 1976, sound recordings are considered a form of expression and therefore obtain protection of copyright legislation. Also, materials of creative expression do not necessarily have to be officially registered in order for them to be protected under copyright laws. Once the creative material is finished, the creators become the owners of the material, and therefore obtain the rights to reproduce, distribute, perform, and create derivate versions of the material. Other parties even have to receive permission from the owner of the creative material in order to “remix” (to take the essence of the material and alter it to create another product) the original work.

The defense that a party can utilize to justify the usage another’s creative material is fair use. If the case is settled out of court, the French government will have to prove that the use of MGMT’s song, “Kids,” was within the boundaries of fair use.
Fair use constitutes using creative materials for criticism, comment, news reporting, teaching, scholarship, and research. Also, there are many factors that considered when determining fair use defense; the purpose of use (whether it is for commercial gain or non-profit), the nature of the copyrighted work (whether it is factual or fiction), the amount of the copyrighted work that is used (whether it is partial or whole), and the effect on the owner’s market share (whether or not it has caused the owners to lose revenue).

The UMP party could make the weak argument in court that they didn’t technically use the song for commercial gain (although it is noted that the song is one of the most popular songs amongst the young adult population, which may give them a non-monetary gain of reputation amongst that particular market) and that it hasn’t been proven that it has caused MGMT to lose any revenue. However, the fact that they used the song for a purpose that can’t be categorized under the bases of fair use, let alone that they used the song in its entirety multiple times without paying the amount deserved to owners of the material, could be enough to make their argument moot. Regardless of the case’s outcome (which, in my opinion, seems like it will end in favor of the MGMT camp), the UMP is dug itself into an embarrassing public relations ditch, has done more harm than good in its efforts to attract the young adult’s favor, and has damaged the party’s reputation and whatever image of honor and legitimacy that they have.

Guess you’re not that cool with the “Kids,” Sarkozy.


Kristin said...

MY SOURCES: well as notes from Marketing on the Internet and Government and Media courses.

Gobbles said...

Kristin...your understanding of this issue is pretty impressive. Let us know what your post-college life might entail. you seem like a thinker the entertainment business needs.
D. Gottlieb
Death Or Glory, LLC

Kurt said...

Excellent analysis of this case Kristin. You've nicely summarized the copyright and fair use issues that apply here. I didn't realize that the party paid a fee to the French licensing body. That will help them. I think their main exposure to liability is using the music in their videos. Playing the music at a live event is not copyright infringement. Very well written with strong connections to key legal and ethical issues.

Grade - 5