The Beach Boys: Villains, just see what you’ve done.

One of the oddest points to get across to non-lawyers, lawyers-to-be, and even many lawyers is that what the law prescribes and what actually happens are 2 entirely different things and that it is as crucial to being a good lawyer to understand what actually happens and why  as it is to know the laws.

It starts out pretty simply with beginning law students. The first time someone says, “But you can’t do that because it’s against the law,” I ask him whether he’s ever driven faster than the speed limit. And then I look at him and say, “But you can’t! It’s against the law.”

The law does, of course, affect a lot of what happens. You’ll speed based on some unconscious calculation regarding the benefits of getting where you’re going faster against the risk of being ticketed and the cost if you are. You might also take into account other costs such as dangers posed by children in the neighborhood, the driving conditions, and the reactions of any passengers to your speed.

It might seem like a simplistic example, but that’s what you have to become conscious of when you’re a lawyer: the risks and costs associated with your behavior, including the risks and costs imposed by law. And if you only consider the risks and costs imposed by law, you’re probably not doing your clients a lot of good.

I am convinced, however, that the central problem with the contemporary U.S. legal system is the cost of actually using the law to get what the law prescribes. It’s insane how much it costs to sue or be sued, and the insanity of those costs skews so much in our society in favor of those with a lot of money regardless of the legal ramifications of that skewing. In copyright, a lot of people complain that digitized information and the internet have made it too expensive to stop people from stealing their property. But far more of an impact is felt by what is called “copyright overclaiming,” the assertion by wealthy (and typically corporate) copyright holders that their rights have been infringed by people who cannot afford to vindicate their legitimate rights to use the copyright material in a lawsuit.

As Richard Posner has written:

Here is a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher’s (or movie studio’s) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit.

The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn’t want to encourage such uses by permitting his own authors to copy from other publishers’ works. So you have a whole “law in action” law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.

Whether it’s the writer’s own publisher or the copyright holder, the instances of copyright overclaiming are endless and seem downright silly until you realize the person being sued by the copyright holder really has no choice. Money rules.

Now, from artnet, comes the latest example of a rich has-been using his a flimsy claim of copyright infringement to squeeze a few more dollars out of an up-and-coming artist:

Perhaps no one was more excited by the long-awaited release of the Beach Boys’ unfinished 1966 album Smile than Erik den Breejen. After Smile came out last year, the young painter (and lifelong Beach Boys fan) set to work on a series of paintings that transformed the lyrics into brightly colored text-blocks, assembled into shapes of ocean waves and smiling lips.

When the exhibition opened at Freight and Volume gallery in December (and was reviewed in these pages by Charlie Finch), den Breejen sent word of the show to Beach Boys lyricist Van Dyke Parks. Den Breejen had tracked down Parks’ manager, thinking that she might share his artworks with his idol. A few days later, Den Breejen was met with a less than enthusiastic reply: a cease-and-desist letter mailed to the gallery from Parks’ attorneys.

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California Gurls quotes California Girls. Can you imagine the nerve?

It’s sad when artists mistake the nature of their creations, when they somehow think they exist apart from culture as lone innovators. It’s especially pathetic when they believe their work is something like the real property they buy with whatever they’re lucky enough to earn from those works, something they can fence off from the rest of the world and keep trespassers off of. Techdirt points out an exceedingly outrageous instance of this:

[T]he Beach Boys are threatening to sue Katy Perry and/or her label if they’re not given songwriting credits for her song California Gurls. The Beach Boys, of course, did have a famous song back in 1965, called California Girls, with the classic line “I wish they all could be California Girls…” In the Katy Perry song, which is very different than the Beach Boys song, at the very, very, very end, Snoop Dogg says “I really wish you all could be California girls,” so the quote isn’t even a direct one.

I share techdirt’s hope that Katy Perry and her label stick to their guns. It’s tough to imagine a more obvious non-infringing use. Quite plainly, Perry was paying homage to the Beach Boys. Could you imagine requiring permission every time an artist riffs on an earlier work of art? We’d have no culture. Mike Love says, “I think [Perry's song] brings the Beach Boys’ 1965 classic to mind, that’s for sure.” You think? Would that mean the producers of the Dukes of Hazzard have their own claim?