Know Your (Copy) Rights
Who owns "New York, New York"? Lendway and Ghosts of Pasha disagree
By
Dan Bolles [09.23.09]
Earlier this month, local indie outfit
Lendway released a six-song EP,
Lights Disappear in Yellow Smoke. The disc was a follow-up to their highly regarded debut album,
The Low Red End,
and featured a song called “New York, New York,” arguably the EP’s
centerpiece. But unless you bought one of the first 500 copies printed,
you will probably never hear it.
On Monday, September 7 — five days after a
favorable review of
Yellow Lights appeared in these pages —
Seven Days received an email from local duo
Ghosts of Pasha
alleging Lendway had reproduced “New York, New York” without permission
or crediting the band in the EP’s minimal liner notes. The email also
asks
Seven Days to “set the record straight” regarding the matter — a task that has proved easier said than done. Buckle up for the story.
“New York, New York” originally appeared in 2004 on a Ghosts of Pasha EP entitled
G.O.P.
ASCAP publishing credits list current GOP members Milo Finch and Chris Partyka, as well as ex-drummer
Ezra Oklan, as the tune’s songwriters. There is no mention of Lendway or any of its individual members having publishing rights.
But should there be?
In 2002, Lendway front man Michael Clifford was briefly a member of
Ghosts of Pasha and participated in the initial writing session for
“New York, New York” with Oklan and Partyka. Finch also claims to have
been involved, though both Clifford and Oklan offer contrary
recollections, claiming the first session involved only the
aforementioned three members. That Finch was involved in later sessions
is not disputed.
Also undisputed is that the tune’s original concept was Oklan’s. The
drummer created the song’s skeleton, which would be fleshed out by the
group with lyrical contributions from Clifford, as well as a modulation
that appears in Lendway’s version but not GOP’s.
Shortly after that session, Clifford left the band. GOP went on to
record and release the song and eventually license it to Showtime. The
cable television network used it in an episode of
“This American Life,”
a television version of Ira Glass’ radio show of the same name,
produced by Chicago Public Radio. The episode featured Ghosts of Pasha.
According to Finch, Clifford’s contributions to the tune were
stripped entirely from the song prior to that recording. And comparing
the two versions side by side, that would appear to be the case.
However, Oklan offers a different take.
“Mike had a lot to do with that first session,” he says. Oklan notes
that there were several writing sessions for “New York, New York.”
While Finch claims that GOP ultimately did not use his specific lyrical
contributions or structural ideas, Oklan suggests it would be
impossible to quantify Clifford’s input, which would be key to
determining copyright co-ownership in court, should either side choose
to pursue the issue that far.
“I can’t say that [Clifford] had no influence on the song,” says Oklan.
According to Finch, Clifford actually performed the song with GOP on
a couple of occasions prior to leaving the band, including a
performance on Goddard College’s radio station, WGDR.
Dennis Wygmans, the one-time co-owner of Burlington nightclub Club
Toast, is now a Brattleboro-based entertainment lawyer who spent the
last several years practicing in New York City. He points out that
copyright for “New York, New York” likely existed long before anyone
registered the song.
“When people get together to create a work of any kind, that
creation is basically copywritten at the point that it is fixed in a
tangible medium,” he says. That could include anything from lyrics
written on a notepad during a rehearsal to a demo recording or album.
Or a live performance on a college radio station.
“Just registering something doesn’t necessarily create the
copyright,” Wygmans notes. “All it does is create a cause of action, so
if you need to sue someone in the future, you can … and recover
damages.”
Finch has hinted at the possibility of a lawsuit, both in an email and in a phone conversation with Seven Days,
citing frustration at the lack of swift resolution to the issue. But
legal action seems far-fetched, if only for the fact that the cost of
it would outweigh any potential gains on either side. Furthermore,
Lendway has since stated that they will destroy the remaining copies of
the EP and remove “New York, New York” from future pressings of Yellow Lights.
They are also removing a melodic theme written by Partyka from the song
“White Noise,” a version of which appeared on a GOP EP called Grand Army of the Republic Highway. GOP’s version does credit the tune’s primary songwriter, Michael Clifford.
“I just don’t care,” says Clifford, who claims to have lost eight
pounds and several nights’ sleep during the ordeal. “It’s just a song,”
he concludes, adding, “To me, ‘New York, New York’ is a cover now. They
[GOP] can have it.”
Wygmans points out that regardless of who really wrote the song,
technically, Lendway did not need permission to record their version of
“New York, New York” — Lendway did approach Oklan just prior to the
EP’s release, and Oklan consented to its inclusion, albeit without
consulting Finch or Partyka. However, as the registered copyright
exists now, Lendway should still have credited GOP as songwriters, as
well as paid a per-use fee, known as “mechanical royalties,” to the
tune’s publishers, in this case GOP.
Though it differs from case to case, the going rate for mechanical
royalties on a song under five minutes in length is generally around 8
cents per copy. In other words, to use “New York, New York” on 500 CDs,
Lendway should have paid GOP — wait for it — $40. Put another way, each
GOP member would have received $13.33 in royalties. Of course, had the
song become a commercial success, those numbers would have increased
exponentially.
Much ado about nothing? Perhaps, though the principle is important,
especially in a town where musicians swap partners like it’s Saturday
night at Plato’s Retreat. Copyrights exist for a reason, and not merely
to provide the grounds for frivolous legal action. They provide
documentation and an avenue through which to protect the only asset
most local musicians have: their music.
No Spin(s) Zone
Dept. of Corrections
Last week’s story,
“Know Your (Copy) Rights,” about the apparently ongoing
Ghosts of Pasha-
Lendway fracas,
also drew a surprising number of responses from you folks. Some sided
with Lendway. Others with GOP. However, most everyone sided with common
sense and called the whole thing pretty silly, including our old pal
CrowfeatheR who had this to offer … actually, I can’t print his
response. Ahem.
Sadly, the story did contain a factual error.
Ira Glass’ show
“This American Life”
is not, in fact, a National Public Radio show. Though it is heard on
NPR, the show is actually produced by Chicago Public Radio and
distributed by Public Radio International. CrowfeatheR was unavailable
for comment regarding this aspect of the story.
In all seriousness, sorry ’bout that, Ira.
Letters to the Editor
Listening Rights
The rights invoked by Ghosts of Pasha [
“Know Your (Copy) Rights,”
September 23] are those of the composer, not the publisher. The
composer has sole possession of the right of attribution and to pursue
payment of mechanical royalties on cover versions of their compositions
recorded by a third party under the compulsory mechanical licensing
scheme provided by the copyright law. That is, so long as they have not
assigned these and other rights to a record label or some other third
party. If so, it is the third party who may pursue enforcement of the
rights mentioned above. One does not have the right to bar another from
recording a cover version of a composition under his/her control, so
long as that cover remains somewhat true to the original composition.
Some changes in arrangement are permitted under the law. A publisher
has the right to collect hard copy publishing royalties, as well as
public performance royalties, among others. The publishers’ rights do
not encompass the ability to bar others from covering their
compositions in a public forum, so long as such use is not associated
with another usage beyond simple performance and the third party has a
license as provided by, in this case, ASCAP.
Dennis Wygmans
Brattleboro
A former Burlington nightclub owner, Wygmans is now a music and entertainment lawyer.