Tuesday, April 05, 2011

Rebecca Black's "Friday": Both Aurally and Legally Challenging

Many readers will probably be familiar with Rebecca Black at this point. If you are one of the lucky few who have not seen or heard "Friday", you are in the distinct minority: 82 million hits on Youtube and counting makes Ms. Black's video the most viral in history, and that is before one considers the dubstep remix, the death metal cover version, and all of the other variations on the existing theme. "Friday" has gone from being an internet joke to a valued intellectual property in the space of about a month.

Which, of course, means that its copyright has become a source of legal conflict. It appears that Ark Music Factory, which produced the song for Ms. Black, and Ms. Black herself (represented through her mother) don't agree as to who actually owns the copyright in the song. Ms. Black claims that her agreement with Ark gives her 100% ownership of the song; Ark claims that the agreement gives her ownership of the master recording only, but not the song or composition, and that copyright for the song should reside with them as they wrote the lyrics and arranged the music for Ms. Black.

The Black situation contrasts with work-for-hire copyright squabbles, such as the current legal battle being fought between Marvel Comics and the estate of Jack Kirby, who co-created many of Marvel's top properties (such as the Fantastic Four, Thor and the Silver Surfer, among many others). In that situation, the Kirby estate is characterizing Kirby's work for Marvel as work-for-hire on the basis that he had worked on the characters prior to pitching them to Marvel, which would make it not a work-for-hire since a work-for-hire must be created specifically as a result of being ordered or commissioned by the employer.

However, Kirby's work for Marvel is also one of the enumerated categories where work-for-hire is possible in American copyright law (specifically "a contribution to a collective work") and his contract with Marvel was expressly stated to be a work-for-hire contract. Whether Ms. Black's song can be considered a "collective work" is debatable: traditionally musical compositions are not considered to be collective works, but certainly an argument can be made that a modern pop production is collective. But no party seems to be taking the attitude that Ms. Black's contract with Ark Music Factory was work-for-hire (whether Ms. Black would have been working for hire or whether Ark would have been), so the lack of a work-for-hire agreement makes the "Friday" battle one of authorship.

Determining authorship is more difficult than determining the existence of work-for-hire, particularly in this instance. Is Ms. Black the primary author for singing and performing the song? Or is Ark the primary author for having written and arranged it? The legal ground here is, at best, unsteady.

An interesting precedent exists, however, in Janky v. Lake County Convention and Visitors Bureau. In 2009, an Indiana doo-wop group named Stormy Weather performed a song called "Lake County, Indiana" which was used by a local tourism agency for promotional purposes. One of the members of the group, Cheryl Janky, who wrote the song, sued them for using the song without her permission. The agency's defense was that another member of the band, who had contributed to the writing of the song, had issued them a nonexclusive license for its use. The U.S. Seventh Circuit Court of Appeal found that this second bandmember was a "joint author" and therefore had the right to issue the license.

Janky is relevant to the Black situation because many of the Black family's complaints lie with the profit Ark Music has been making from the work - ringtones, for example - which the Black family has apparently not received a share thereof. If Black and Ark were found to be co-authors of the song, they would co-own it. This is likely why Ark's representatives have been stating that Black "didn't even write a lyric."
- Christopher Bird, Toronto
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