Sunday, January 17, 2010

Who Owns The Rights To "Pants On The Ground"?

[UPDATE (Jan 21, 2010): Apparently Larry Platt is asking some of the same questions raised below, and is looking for a lawyer to help him protect his rights to "Pants On The Ground"]

Well, anyone who has ever doubted Simon Cowell's music business acumen will certainly have to give him credit now. Perhaps at the very moment when Mr. Cowell was admitting his "horrible feeling" that "Pants On The Ground" might become a hit, armies of American Idol fans were transforming the TV show's broadcast of 62 year-old[1] 'General' Larry Platt's song into YouTube clips and mp3 files. The civil rights activist, who marched with Martin Luther King, Jr. and John Lewis, has become a viral hit.

Who actually owns "Pants On The Ground", though? I have no legal insight or training, and – even more critically – I have no idea just what legal rights American Idol contestants are required to sign away for the chance to appear before Simon, Randy, the new one, and whatever guest judge happens to be in town that week. There is, however, this official document from the American Idol site, the "Season 9 Registration and Audition Rules". Therein the hopeful singers are notified that their very presence at the auditions means they give "consent and agreement" to recording and using pretty much anything they perform or do at the audition as the producers see fit, "(including advertising, marketing, promotion, merchandising and the exploitation of any and all ancillary and subsidiary rights), as the same may be edited, in all media now known or hereafter created, throughout the universe".[2] Perhaps those "ancillary and subsidiary rights" include the copyright to this catchy tune.

That is certainly the belief of a few YouTubers who are seeking to protect themselves from legal action by noting that the uploaded video of Larry Platt's performance is "Copyright FreemantleMedia, American Idol" or somesuch. Others plaintively state "no infringement intended" (including this one which avoids the actual copyright at issue by stating that "Copyright remains to its original owners"[3]), thus making a bold claim to inattentive infringement. Of course, if THEY want to come after you, THEY will get you, protestations aside. But this doesn't get me closer to the answer of just who They might be in this case, the actual owner(s) of the copyright to "Pants On The Ground".

On the other hand, FOX could have made some serious cash by putting this clip on iTunes, but did not do so. While the spot-on Neil Young pastiche by Jimmy Kimmel[4] would naturally be protected as a parody, there are already several new versions and remixes in the EtherWeb already, which of course do infringe on the rights of the unknown owner(s). And then there are the ringtones, which though usually available for free are found on advertising-supported sites -- i.e., someone is making money on "Pants On The Ground". Will the RIAA step in to protect the rights of the copyright holder, whoever he or she or they may be?[5]

Besides the actual legal documents Mr. Platt may have signed, the question of who owns "Pants On The Ground" may hinge on whether or not 'General' Platt was ever recorded singing his song before he auditioned for American Idol. This is because -- according to my admittedly non-professional reading of the US Copyright Office guidelines -- copyright does not attain to a piece of mucic until it is "created", and in the interesting vocabulary of copyright "creation" occurs only when a work is "fixed" in a material object for the first time. If Larry Platt never wrote down his lyrics or was recorded singing "Pants On The Ground", then the act of "creation" occurred at the moment the American Idol cameras captured his star turn for the show. In which case, if the "ancillary and subsidiary rights" include rights to original work, FOX or Rupert Murdoch (or FreemantleMedia (or both, etc., etc....)) owns the newest song sensation.

One might argue that none of this matters, that Larry Platt will make out fine with his newfound publicity, whether or not he cashes royalty checks for "Pants On The Ground". And this is true, perhaps. One could also turn the tale into a narrative of how once more the White powers-that-be are cashing in on the music of the Blacks, à la the Rolling Stones. It would be all too easy to make the events prove this or that point (though I'm guessing Pat Robertson and Rachel Maddow would end up with different points), but my question remains, just because I actually do wonder:

Who owns the copyright for "Pants On The Ground"?

P.S. The story of "General" Larry Platt is much more interesting, by the way, than the quick and crazy impression I know that I got on first viewing American Idol last Wednesday. An impression that continued as I read the newspaper and online articles about his viral success. Check out this video, and read the "more info" text, to learn about an involved citizen who was honored for his public service with the city of Atlanta officially declaring September 4, 2001[6] "Larry Platt Day"

1On the TV show, Mr. Platt stated he was 62 years old. However, in an Associated Press article, the Atlantan was said to be 63.
2Seriously, that's what it says. This seems to be just boilerplate legalese, though I suppose that a rediscovered ancient form of media wouldn't be covered. Surprising to see the lawyers leave a loophole like that....
3Um... not to quibble, but surely no one thinks that without that reassurance, that copyright might somehow be lost? Or that some person posting a video grabbed from TV has any power whatsoever to take away rights from anyone?
4I link to the official NBC site so as to leave any copyright issues between NBC and FOX between just their inestimable legal teams. Sorry for the prefaced commercial....
5The RIAA at least has no trouble calling a spade a spade: "Music is protected by copyright. The unauthorized downloading or uploading of music is actionable as copyright infringement, even if not done for profit."
6Odd, isn't it, that he was honored just a week before 9/11. And now he becomes a sensation just under a week before MLK Day. Coincidence? Yes.


rev said...

thank you for the reference iamcchan

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