Weird Al and Parody: Why It's Better To Ask Permission Than Beg Forgiveness

There’s a saying that’s become popular in recent years: "it’s better to beg forgiveness than ask permission.” There’s a lot of appeal there for the Type-A, take-charge types and I completely understand it... if you want results, just do it since apologizing after the fact will be easier than fighting through red tape beforehand. Grace Murray Hopper, a former Navy admiral coined the term and you can see why. She was a career military woman and computer scientist and likely spent a great deal of time fighting through bureaucracy and institutional misogyny to get anything done.

In that context, the phrase has a lot of cache. As a lawyer who advises artists, however, I think it's a one-way ticket to bankruptcy. I've said as much before, but I bring it up again because Weird Al Yankovic is back with his latest album Mandatory Fun, and as always happens when Weird Al resurfaces, people are amazed to discover that he asks permission from other artists to parody their songs. Here's a snippet from a recent NPR interview with him:

NPR: Is it true that you don't need permission to do a parody of a song?

Weird Al: Legally, I say it's a gray area. I could get away with not getting permission, but I've never wanted to get away with that. I think it's more taking the high road to make sure that the artist feels like they're in on the joke. I want them to know that it is in fact an homage, it's a tribute. Like I say, it's more a poke in the ribs than a kick in the butt.

Not only is that an ethically sound practice, but it’s also correct from a legal standpoint. It’s generally understood in the entertainment world that parody - the art form Weird Al trades in - is considered fair use (i.e. it's not considered infringement under U.S. copyright laws). That's because a parody is designed to poke fun of a work of art rather than directly profit from it.

HOWEVER! That’s not the whole story. There are gray areas when dealing with fair use, and Weird Al gets that. He knows that parody alone doesn't give him unlimited permission to use someone else's copyright without permission. There are other factors weighed by the courts in determining if something is fair use, such as the commercial nature of the parody (i.e. is it financially profitable?), and the effect it has on the market for the work that's being parodied (i.e. does the mere existence of the parody cause consumers to stop buying the original work?). Depending on these and other factors, Weird Al knows that his work could, in some situations, be considered copyright infringement.

So he doesn't leave it up to chance and say "Whoops my bad" whenever he gets caught. He asks permission up front and if an artist refuses, he doesn't parody the work (here's a list of artists who refused to let Weird Al parody them). What Weird Al knows - and other artists out there would do well to remember - is that when your livelihood depends on using the copyrighted works of others, sometimes it's truly better to ask permission than to beg forgiveness. With money on the line, they may not be so inclined to forgive you.

Watching Out For Satisfaction Clauses In Freelancer Contracts

Happy Friday friends! I wanted to drop in with a quick tip for enforcing your right to get paid. If you're a regular reader of this blog (thank you!), or you've attended one of my seminars (double thank you!), or you've hired me to represent you (hooray!), then you know my stance on getting paid for your work: It's a right. Not a privilege, not a luxury, a RIGHT. As crucial and necessary as breathable air and potable water.

The best way to enforce that right - the first line of defense, really - is to get the terms of any job you're hired for in writing. Every time. Without fail. In fact, I say this so much my wife cringes every time the phrase comes out of my mouth, but it's probably the most important thing you can do to protect yourself. But even when you get it in writing, that's not the end of the story; you can still get screwed out of your rightful payment. If you sign a contract that contains a satisfaction clause, you are basically telling the client that they can have your work for free. This is so common and so easy to overlook that I'm betting each of you reading this has signed at least one contract with this type of clause.

A satisfaction clause is a contract provision that allows the client to refuse payment if he or she is not subjectively satisfied with your work. In the law, we call this an "illusory promise" because the client actually has no legal burden to pay you. Now generally speaking, the courts don't like these types of clauses and permit them only in limited scenarios. In most cases, they'll try to ensure that the client acts in good faith and is genuinely unhappy with the work in order to enforce the validity of the satisfaction clause. But that's damn hard to do in reality because you're dealing with a subjective test of quality. After all, how can you really tell if the client dislikes your work or is just saying he does so doesn't have to pay you? See what I mean? That's why I hate these provisions with the fiery heat of 1000 suns.

If your contract contains a satisfaction clause, DO NOT UNDER ANY CIRCUMSTANCES SIGN IT. Period.

There are many other strategies you can adopt to ensure that you get paid for your work. In that light, I wanted to share this article I found a few months ago on Fast Company. It lists ten tips on ensuring that you won't get stiffed by a client. I don't agree with all of these (specifically, number 6: avoid working for friends and family seems unreasonable if you have a generally good relationship with them), and some of these may not be applicable, but I think these are generally pretty sound strategies.

Good luck and have a happy weekend!

The Supreme Court Kills Aereo Because It Found a Loophole

In the aftermath of Wednesday's 6-3 Supreme Court decision stating that Aereo was in violation of the U.S. Copyright Act, there arose in the tech world an amount of hand-wringing that would make Helen Lovejoy green with envy.

When the decision came down, most media outlets proclaimed the demise of the innovative tech start-up. Others lamented the decision and lashed out at the bipartisan group of justices that wrote for the majority. Still others rushed to argue that no, the decision didn't mean the end of Aereo. A friend of mine, a subscriber to Aereo's service, is in the midst of the traditional five stages of grief. In a single day, he's cycled through denial, anger, depression, and now he's onto the bargaining stage, devising solutions to save the company so convoluted you'd need to divert physicists from the Large Hadron Collider to fully comprehend them.

The dust still hasn't settled and it will be a while before we know if Aereo can survive, but here's what we do know: Aereo used a series of antennaes to pull live broadcast signals out of the air and stream them to its subscribers. It did this without paying licensing fees to the networks who own the shows, unlike other broadcasters. Aereo argued that it was merely an equipment provider and not a broadcaster and therefore didn't need to pay licensing fees (hence why their rates are $8 a month as opposed to Comcast's $99). Six of the SCOTUS justices didn't buy it. Roberts, Ginsberg, Kennedy, Breyer, Kagan, and Sotomayor found that despite the technological back-end that made Aereo so unique, Aereo still functioned largely as a broadcaster of copyrighted material as defined by the 1976 amendment to the Copyright Act. They also said that Aereo was a "public performer" of the copyrighted materials. Taken together, these issues meant that Aereo has been violating copyright law since its inception two years ago.

Clearly, a lot of people don't agree with the decision, and this TechDirt article explains why. In essence, they claim that the SCOTUS used a "looks like something that infringes test" to get to their desired result. They looked at the surface and, without really understanding how the technology works, decided that it must be a broadcaster. Critics of this approach cite this as another example of the anti-technology, intellectual laziness that's hung over this particular line-up of justices for some time.

The critics are right in one regard: in determining a case, the justices should always try their best to understand how a particular technology works. Simply relying on a "looks like" approach is not the way the highest court in the land should operate.

But I'm not convinced that's what happened here. I've read this decision cover to cover (unlike other SCOTUS decisions which can be punishingly long, this one clocks in at a reasonable 35 pages). I wanted to hate the outcome. But to my eyes the justices did in fact understand Aereo's technology. They simply weren't convinced that the technology stood far enough apart from those of more traditional broadcasters to exempt Aereo from having to comply with the Copyright Act. This decision doesn't read like a "if it looks like a broadcaster then it must be" approach. It seems much more logical and considered than that.

However well considered the intentions though, bad law can still come out of it. Whether the Court intended it or not, the decision effectively gives cable companies and broadcasters - powerhouses that already lord over us - even more authority to run the board however they want. As I write this, Fox is using the three-day old Aereo decision as leverage in its legal battle against Dish Network.

It also raises a question of legitimacy, as do most of the recent decisions from this heavily partisan Court. In the decision, the justices state that the decision is narrowly tailored towards rectifying Aereo's specific actions rather than attacking technological advances by other start-ups in general. In other words, it looks like the Court is singling out Aereo for punishment, rather than deciding the law. And it does raise the question as to whether this case was really about technology, or whether it was a facade for something more sinister: loopholes (Scalia says as much in his dissent). Aereo thought it found a technological loophole so that it wouldn't have to pay licensing fees to the networks like Comcast, Time Warner, and AT&T have to. Was this a case of revenge? Were the broadcasters expecting the Supreme Court to act as a bludgeon for their interests? If so, that's the bigger concern.