March 22, 2007

And still I am thwarted

Andrew Bird's "Weather Systems" album featured a great but short song called "I", which, I learned while at one of Mr. Bird's concerts, was a truncated version of a song called "Capital I", which he was apparently unable to release for legal reasons, although he did not elaborate at the time. The song didn't appear on "The Mysterious Production of Eggs" (although I suspect a studio version exists, based on the fact that every song on the album had artwork created for it by Jay Ryan, and this was one of the pieces, not included in the album package). I held out hope that the song would be released in some fashion eventually, and I was excited and then slightly disappointed in rapid succession as I learned that Andrew's new album would include "Imitosis", a reworked version of "I" -- but then I listened to a live recording and discovered that one of the key parts of "Capital I" (the chorus) wasn't included. So I did some Googling, and finally I know why:

"The chorus "We all live in a Capital I' is taken from a Sesame Street song. Even though the melody is totally different, Sony Music wanted tons of money for publishing, so I couldn't afford to put it on the record."

Uh...the hell? A seven-word reference to a lyric from another song that doesn't even use the same melody isn't fair use? Rose, your boyfriend works for the EFF, can't they get on top of this?

Ah well. At least there are still a zillion live recordings of "Capital I". You can get a bunch at the Internet archive, including one from this 2003 show (a bit quietly recorded, but a lovely rendition; my favorite of the ones I've linked here), an early version with a rather different instrumental arrangement from 2001, and a sparse but very clearly recorded version from a 2003 radio session. Then you can compare, if you wish, to the live version of "Imitosis" here.

Posted by Francis at 02:35 PM

I'm confused about the "tons of money" part. If it were a straight-up cover, it would be subject to the mechanical royalty rates set by statute. I'm not sure how far from the original a cover has to get before you can no longer just give credit to the original artist, send them their eight cents, and be legally safe.

I'm also not sure how famous you have to get before this kind of thing has any chance of being noticed. Dan Bejar quotes people right and left on Destroyer records, and he hasn't vanished into a secret RIAA prison yet.

Posted by: Aaron at March 22, 2007 04:04 PM

That's a good question. Perhaps the problem is that he asked them about it instead of just doing it? (Or I assume he did; how would they have found out otherwise?)

Posted by: Francis at March 22, 2007 04:21 PM

I am no copyright expert, but I have been told that 7 words, is in fact, (plagiarism? plagarism? plagerism?) stealing. 6 is not.

Posted by: Dianna at March 23, 2007 12:47 PM

I dunno. I was going to say that sounded more like an academic guideline than an actual part of copyright law, but I don't actually know. Oh, if only I knew someone who had friends who were copyright lawyers who could come weigh in on this!

While doing some especially hasty online research to see if I could find any reference to this, I found someone citing another example of similar stupidity involving Neil Gaiman here (see comments #17 and #18).

Posted by: Francis at March 23, 2007 01:03 PM

Hey, congrats on getting to the stage! :)

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