8 ms·

I’ve read the complaint, and I doubt Disney’s legal department is concerned by this lawsuit. I’m going to predict that Disney has a blanket license for most of

I’ve read the complaint, and I doubt Disney’s legal department is concerned by this lawsuit. I’m going to predict that Disney has a blanket license for most of the music recordings through ASCAP or whatever other organization would normally handle those licenses. The bulk of the complaint lists terrible things Disney’s legal department has done, but it’s not clear how those actions are legally relevant. “Hypocrisy” is not one of the factors in whether something is fair use. The statement that other documentaries get licenses from the estate doesn’t say whether those documentaries are actually legally required to get those licenses. And it certainly doesn’t say whether Disney needs a license for its project. I’m going to predict that the music recording claims will be dropped when Disney shows it has a blanket license, and the other claims do look like fair use to me. But maybe Disney will settle before trial.

pavel_lishin 8y ago
> I’m going to predict that Disney has a blanket license for most of the music recordings through ASCAP or whatever other organization would normally handle those licenses. If that's the case, why would Disney's attorneys bother trying to cite Fair Use as an excuse? > Disney’s attorney used fair use as a defense. The company argued that it could legally use Jackson’s copyrighted material since the broadcast was labeled as a documentary.
- maxlybbert 8y ago
  I’m no expert, but I doubt attorneys generally do a lot of research when answering phone calls. It wouldn’t surprise me if the attorney answering the call didn’t check with anyone involved in making the show before opening their mouth. Besides, we have the estate’s claim that Disney’s attorney said “fair use,” but no information on whether that’s all the attorney said.
  - pavel_lishin 8y ago
    I would wager attorneys are very careful when opening their mouth over the telephone. But you're right, it's second-hand at this point.
    - maxlybbert 8y ago
      It looks like I was wrong about the ASCAP license (e.g., https://www.ascap.com/help/career-development/a-checklist-for-using-music-in-film https://www.ascap.com/help/career-development/a-checklist-fo... ). As for lawyerly risk aversion: lawyers certainly don’t want to create a liability unnecessarily, and lawyers don’t want to lock themselves in to a strategy without giving it some thought, but lawyers are also human and, I assume, sometimes ask “what is the fastest way to end this phone call without creating liability for my employer and without locking me into a legal strategy?”
baldfat 8y ago
Michael Jackson Estate owns everything he has done. They use to own the Beatles catalog in entirety and just sold what was left for $750,000,000. I think Disney Lawyers have their hands full.
- deleted 8y ago
  [deleted]
aczerepinski 8y ago
I don’t think there’s such a thing as a blanket license. There is for public performance (like playing music over the speakers in a restaurant) but a sync license needs to be negotiated. I’m not an expert on the legal/business side but I used to write music for tv shows when they couldn’t secure licenses and needed replacements.
- maxlybbert 8y ago
  Thank you. I notice ASCAP’s website has information on licenses for TV stations, but not for, say, TV shows.
CPLX 8y ago
There's no such thing as a "blanket license" that term is nonsensical. Rights to footage, or sync rights to audio, are always case by case. Presumably you've gotten yourself confused with what are called mechanical licenses, which only cover songs, and only the music and lyrics (not original recordings) and have basically nothing to do with this at all.
- TimTheTinker 8y ago
  Blanket use licenses do exist. For example, CCLI licenses allow churches and certain non-profits to use a large body of copyrighted works (many of them under ASCAP) in several different ways (but definitely not the equivalents of mechanical and sync licenses — those are always case-by-case).
  - CPLX 8y ago
    There's no such thing as a blanket license, in the sense that you get to use any and all copyrighted footage you'd like for a TV broadcast. There's nothing kind of like that either. A CCLI would allow you to use footage from rightsholders that have chosen to allow such usage. The confusion here appears to be with what are called compulsory licenses for music[0]. In those circumstances, people are allowed to pay songs on radio stations and in live music venues, etc, without having to negotiate with each individual rightsholder. A person who wrote a song has no choice about who is allowed to play one of their songs in a stadium, or on a radio broadcast, once they've publicly released the work. [0] There is an exception for live broadcasts, which don't apply here either.
    - TimTheTinker 8y ago
      > There's no such thing as a blanket license, in the sense that you get to use any and all copyrighted footage you'd like for a TV broadcast. No argument with you there. My point was that there do exist some types of blanket licenses (for specific purposes, of a limited body of works).
- maxlybbert 8y ago
  You’re right: https://www.ascap.com/help/career-development/a-checklist-for-using-music-in-film https://www.ascap.com/help/career-development/a-checklist-fo... suggests that the kind of license I would expect a producer to need wouldn’t come from ASCAP. So all four claims are relevant, but Disney’s alleged hypocrisy doesn’t seem to me to serve any purpose in the complaint (other than to get the thing noticed by the media).
dizzystar 8y ago
ASCAP only deals with performance. The rules for dealing with TV (and film) rights is very different and doesn't involve ASCAP or BMI.
mmt 8y ago
> “Hypocrisy” is not one of the factors in whether something is fair use. There is, however, the legal concept of estoppel, which is, essentially, a prohibition on legal-argument hypocrisy. As I understand it (IANAL), it applies to much narrower situations than what we would, in general, consider to be hypocrisy, but it can still provide an advantage, especially here.

pavel_lishin 8y ago

> I’m going to predict that Disney has a blanket license for most of the music recordings through ASCAP or whatever other organization would normally handle those licenses. If that's the case, why would Disney's attorneys bother trying to cite Fair Use as an excuse? > Disney’s attorney used fair use as a defense. The company argued that it could legally use Jackson’s copyrighted material since the broadcast was labeled as a documentary.

maxlybbert 8y ago
I’m no expert, but I doubt attorneys generally do a lot of research when answering phone calls. It wouldn’t surprise me if the attorney answering the call didn’t check with anyone involved in making the show before opening their mouth. Besides, we have the estate’s claim that Disney’s attorney said “fair use,” but no information on whether that’s all the attorney said.
- pavel_lishin 8y ago
  I would wager attorneys are very careful when opening their mouth over the telephone. But you're right, it's second-hand at this point.
  - maxlybbert 8y ago
    It looks like I was wrong about the ASCAP license (e.g., https://www.ascap.com/help/career-development/a-checklist-for-using-music-in-film https://www.ascap.com/help/career-development/a-checklist-fo... ). As for lawyerly risk aversion: lawyers certainly don’t want to create a liability unnecessarily, and lawyers don’t want to lock themselves in to a strategy without giving it some thought, but lawyers are also human and, I assume, sometimes ask “what is the fastest way to end this phone call without creating liability for my employer and without locking me into a legal strategy?”

baldfat 8y ago

Michael Jackson Estate owns everything he has done. They use to own the Beatles catalog in entirety and just sold what was left for $750,000,000. I think Disney Lawyers have their hands full.

deleted 8y ago
[deleted]

aczerepinski 8y ago

I don’t think there’s such a thing as a blanket license. There is for public performance (like playing music over the speakers in a restaurant) but a sync license needs to be negotiated. I’m not an expert on the legal/business side but I used to write music for tv shows when they couldn’t secure licenses and needed replacements.

maxlybbert 8y ago
Thank you. I notice ASCAP’s website has information on licenses for TV stations, but not for, say, TV shows.

CPLX 8y ago

There's no such thing as a "blanket license" that term is nonsensical. Rights to footage, or sync rights to audio, are always case by case. Presumably you've gotten yourself confused with what are called mechanical licenses, which only cover songs, and only the music and lyrics (not original recordings) and have basically nothing to do with this at all.

TimTheTinker 8y ago
Blanket use licenses do exist. For example, CCLI licenses allow churches and certain non-profits to use a large body of copyrighted works (many of them under ASCAP) in several different ways (but definitely not the equivalents of mechanical and sync licenses — those are always case-by-case).
- CPLX 8y ago
  There's no such thing as a blanket license, in the sense that you get to use any and all copyrighted footage you'd like for a TV broadcast. There's nothing kind of like that either. A CCLI would allow you to use footage from rightsholders that have chosen to allow such usage. The confusion here appears to be with what are called compulsory licenses for music[0]. In those circumstances, people are allowed to pay songs on radio stations and in live music venues, etc, without having to negotiate with each individual rightsholder. A person who wrote a song has no choice about who is allowed to play one of their songs in a stadium, or on a radio broadcast, once they've publicly released the work. [0] There is an exception for live broadcasts, which don't apply here either.
  - TimTheTinker 8y ago
    > There's no such thing as a blanket license, in the sense that you get to use any and all copyrighted footage you'd like for a TV broadcast. No argument with you there. My point was that there do exist some types of blanket licenses (for specific purposes, of a limited body of works).
maxlybbert 8y ago
You’re right: https://www.ascap.com/help/career-development/a-checklist-for-using-music-in-film https://www.ascap.com/help/career-development/a-checklist-fo... suggests that the kind of license I would expect a producer to need wouldn’t come from ASCAP. So all four claims are relevant, but Disney’s alleged hypocrisy doesn’t seem to me to serve any purpose in the complaint (other than to get the thing noticed by the media).

dizzystar 8y ago

ASCAP only deals with performance. The rules for dealing with TV (and film) rights is very different and doesn't involve ASCAP or BMI.

mmt 8y ago

> “Hypocrisy” is not one of the factors in whether something is fair use. There is, however, the legal concept of estoppel, which is, essentially, a prohibition on legal-argument hypocrisy. As I understand it (IANAL), it applies to much narrower situations than what we would, in general, consider to be hypocrisy, but it can still provide an advantage, especially here.