Grateful Dead Publisher Prevents Novelist From Quoting Lyrics
from the jerry-garcia-is-rolling-in-his-grave dept
The decades-long success of the Grateful Dead is a perfect example of how a band can make music without relying on the copyright crutch (by encouraging free sharing of the music, while making most of their money on concert tickets and merchandise). In the years since Jerry Garcia passed away, however, the band’s name seems to keep coming up in copyright disputes. The band itself sued Wolfgang’s Vault for offering videos and concert posters of the band (Wolfgang’s Vault is based on the “archives” of famed concert promoter Bill Graham, and each side claims ownership to the rights of promotional materials from the concerts). And, of course, Wolfgang’s Vault is hardly an innocent player here, having sued the publisher of a book about the Grateful Dead for using thumbnail images of concert posters. Luckily, the book publisher won that case, but both of these cases show how a system that works (i.e., the Grateful Dead’s business model) gets all screwed up when people start asserting ownership rights to content.
The latest example is much more ridiculous and much more damaging to creativity. Last week we wrote about how copyright is often used to hold back creativity, and this is a perfect example. Boing Boing points us to this story about how Ice 9 Publishing, the in-house publishing arm of the Grateful Dead has stopped a young adult novelist from using lyrics from their songs in his novel. It sounded like a rather creative use of Grateful Dead lyrics in such a way that would likely help attract a new generation of fans to the Dead’s music. In fact, the title of the book was originally supposed to be a Grateful Dead song title, but Ice 9 objected to that, too. Even though it couldn’t stop the book from using a song title as the book title, it threatened to not allow the use of other quotes in the book if the title wasn’t changed.
This makes very little sense, as it’s difficult to see what legal ground Ice 9 and the Dead have to stand on here. The use of these lyrics hardly harms the commercial potential of the Grateful Dead — and, almost certainly increases it. But, just the threat of potential copyright infringement lawsuits means that this book is not the book the author, J.T. Dutton, intended, and everyone is worse off for it. And, that’s yet another unfortunate example of copyright holding back creativity, rather than encouraging it.
Filed Under: copyright, freaked, grateful dead, j.t. dutton, lyrics
Comments on “Grateful Dead Publisher Prevents Novelist From Quoting Lyrics”
I lived through the Dead in the 60s, 70s, 80s and 90s. As far as I’m concerned, anything that helps to bury the band into oblivion is a good thing.
Re: Re:
Did the Dead wrong you in some way. Were you forced to listen to “Hell in a Bucket” to many times?
Re: Re: Re:
Hell in a Bucket!?!? How about something from the disco era?(though I love me some Shakedown Street)
Re: Re: Re:
no it was bobby’s cheesing it up to Corrina
I'd pull an Apple job here.
Years ago…as many of you may recall, Apple had given one of their products in development the internal code name of “Sagan” in honor of the famous “Billions and billions” effusing astronomer Carl Sagan. This code name leaked to the press and Sagan’s lawyers objected to use of the name.
Apple promptly complied and changed the code name to “BHA”, an acronym for “Butt-Head Astronomer”.
Since the work in question is a work of fiction, the author is free to make up his own lyrics and I would like to suggest a fictional central theme right now for these substitute lyrics:
Greasy copyright lawyers and their unnatural fondness for torturing helpless, caged puppies and kittens with caustic chemicals and electric cattle prods.
Perfect young adult reading fare, in my humble opinion.
Re: I'd pull an Apple job here.
You can blame the “Greasy copyright lawyers” but they only work on behalf of their clients, the remaining members of the band. If the band wanted to allow the use of the lyrics, the “Greasy copyright lawyers” would have to comply.
In other words, blame the true source of the problem.
Re: Re: I'd pull an Apple job here.
You can always tell the lawyers who respond to this type of post and they always respond the same exact way.
Re: Re: Re: I'd pull an Apple job here.
I went a fishin’ and I caught one!
Oooops. Gotta throw it back.
Re: Re: I'd pull an Apple job here.
You are assuming that the band members have knowledge of this, I’ll bet if they DID know about it the lawyers would get a serious slapping down
However, I could be wrong, Is anyone out there friends of friends & able to fwd this to someone in the band?
It’s only 6 degrees people…
Re: Re: I'd pull an Apple job here.
Im not sure the copywright holders and “remaining members” of the band are the same people here.
Three words: Fair Use Doctrine. The suit would never hold up in court, and they’re only getting away with it because Dutton declined to stand up for himself. Which frankly takes the edge off my sympathy for him; the general willingness to knuckle under at the mere suggestion of a lawsuit is probably part of the reason copyright law in most of the English-speaking world is in this mess.
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No, the problems are the laws that allow this sort of abuse in the first place. Depending on the author’s success, I can’t really blame him. A drawn-out legal battle would cost a lot of money and indefinitely delay his book. If he feels he can write around the problem without damaging the story, then he is probably better off personally, even if the rest of us are worse off for his submission to legal pressure.
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“The suit would never hold up in court, and they’re only getting away with it because Dutton declined to stand up for himself. Which frankly takes the edge off my sympathy for him; “
You must be a lawyer.
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You must be a lawyer.
You make it sound like that’s a bad thing.
Re: Fair Use
Jake, the fair use doctrine does not apply to works of fiction – or to any uses that are intended to have commercial value.
Ever since Jerry passed
At one time they understood what the fan base could do for them
the circulation of taped shows propagated their growth, this is one thing that Jerry understood. They were the largest grossing tour band for quite a number of years all do to fans handing out free tapes of show and spreading the word. Seems like they have forgotten what made them so rich in the first place. (You may remember another suit brought to court regarding Hi quality bootlegs that remove anyting but MP3’s from the net)
The Origination has gone down hill since his widow and the Bob Weir decided to move the remaining music/shows/art out of the hands of fans and take control over what they perceive to be theirs (without Jerry there never would have been a Grateful Dead) have degraded this once great staple of American music
I was a tour rat 20 + years and ever since the passing of Jerry the free spirited group has turned into money hungry bitches whining about anything that they didn’t like, with one exception and that would be the Phil Phactor
Since this has started I have refused to partake in any form of support for the remaining members, with the exception of seeing Phil
Re: Ever since Jerry passed
Actually the Dead just wanted the soundboard recordings removed and not the audience recordings. If the band allows taping of the shows then I feel its in every bands right to be able to sell the audience recordings. The big hoopla that you are talking about only pertained to site called Internet Archive. You can still find sbd recordings on the net its just the show are no longer on one site.
I will admit that there are times when the GD organization seems to be a little on the greedy side these days.
Re: Re: Ever since Jerry passed
if they didn’t want Sound boards out ther ethen how come I could hand my tape machine to Dan or any number of others and have them plug it in and make sure hte levels were good ?
Re: Re: Re: Ever since Jerry passed
You are correct. The Dead probably shouldn’t have let the sbds out at all. I know I’m glad they did cause I have a bunch of them. At least they didn’t pull all the recordings. Weir certainly handled the situation horribly! I remember a quote from Phil that he used archive.org a ton to stream sbds.
Re: Re: Re:2 Ever since Jerry passed
yea Agree with the they never should have but I’m also glad they did. I have some amazing tapes ( thats right you younger generations TAPES Maxell XLS2S’s).
As for Phil he’s stayed on course with the origional intent which is evident by the Archive.org section for Phil and Phriends
http://www.archive.org/search.php?query=collection%3Aetree%20AND%20creator%3A%22Phil%20Lesh%20And%20Friends%22
(Sorry couldn’t help myself)
pot calling kettle black?
Presumably Ice 9 publishing got its name from the Kurt Vonnegut’s story Cat’s Cradle. Did they get permission for that?
Re: pot calling kettle black?
Why would they need to?
Re: Re: pot calling kettle black?
Did you read the story at all?
Re: pot calling kettle black?
Yes, Ice Nine negotiated to get the rights to use that nugget. Funny how they play by the rules, but no one else is supposed to and they’re the bad guys.
More to the story?
Having been a fan of the Dead and having worked in publishing for over 20 years, I suspect there’s more to the story.
As for copyright, poems and lyrics have always been held to a tighter standard of “fair use” than works of prose or journalism. And I disagree that this is necessarily stifling creativity: the author wanted to use lyrics to Dead songs as epigraphs, which have also been held to a tighter fair use standard. Briefly quoting lyrics in the course of the narrative is tougher for the copyright holder to fight, but epigraphs are a different story.
I have know a number of people who have worked with Ice9 and have generally only heard positive experiences. Which is why I suspect there may be more to the story here.
Re: More to the story?
They may or may not have a legal right, but it is stupid of them, either way. No one is going to buy a novel in place of their album. No one is going to buy the novel simply because Grateful Dead lyrics appear here and there. However, readers may start listening to the Grateful Dead because of reading lyrics in the book. The Grateful Dead can only win in this situation, so asserting copyright for copyright’s sake is stupid.
As an example, I searched out a recording of Twilight Time by The Platters after reading Stephen King’s “Hearts in Atlantis.” I wanted to know what it sounded like since it was so significant in a book I really enjoyed.
Re: Re: More to the story?
They may or may not have a legal right, but it is stupid of them, either way.
It may or may not be stupid of them, your mileage may vary. But as noted above, fair use for lyrics or poems has generally been more restricted, so they are within their rights to challenge. Their call. There’s no telling whether the Grateful Dead can benefit by this author’s use of the lyrics. I have no idea whether Robert Hunter or John Perry Barlow objected or whether Garcia’s estate (controlled by Deborah Koons, who has been rather aggressive about protecting and marketing Garcia’s copyrights and recordings) objected, or whether the issue was strictly handled by Ice9.
Like I said, there’s quite likely more to the story.
Oh, the irony
Ice 9 is upset over (fair) use of thier copyright? Do they not realize that their own name is from a copyrighted work? (Cat’s Cradle – Kurt Vonnegut)
Re: Oh, the irony
Ice 9 is from Vonnegut’s Cat Cradle, first published 1963. Ice Nine Publishing wasn’t formed until 1970.
Unfortunately, short phrases like “ice 9” cannot be copyrighted. So even though the Dead’s use of Ice 9 might seem hypocritical, being a hypocrite isn’t against the law.
Watch out! Its the Grateful Dead Copyright Monster!
Of all bands to pick on, you single out the Dead? What gives? The Dead have always played music for all the right reasons and now they are getting criticized because people expect them to just shrug off some hack writer? If the author is so creative why not just come up with his own title?
If your creativity is dependant on another person… News flash- You lack creativity.
The Dead never did mind if fans recorded music to listen to and keep. In this case, this author is out to make money by using the Grateful Dead’s name. Come on.. In the age of “Whats mine is mine and whats yours is mine”. The Grateful Dead have always been generous. I guess some people just wont be happy till they can do whatever they want to do.
Imagine Picasso saying, “Looks like I cant paint till someone else paints dots on the canvass so I have something to go by”. YEEESHHH
Re: Watch out! Its the Grateful Dead Copyright Monster!
The author’s creativity isn’t dependent on another person. It’s just that he saw a creative use for someone else’s work. Not all creativity has to be original content. It just has to be an original creative use of said content.
Re: Re: Watch out! Its the Grateful Dead Copyright Monster!
Hey Bud, Thats exactly what Vanilla Ice sez to.. There is list thats much bigger then Vanilla Ice. I suppose you can defend that stuff if ya want.
STOP! Collaborate and listen… Ice is back with a brand new invention. dum dum dum da da dum dum
Well thats all I have to say. I am gonna go work on my new Stephen King book. I am going to take all of his book titles and put them right at the beginning of each chapter.
I am also going to include the first couple pages of various King works in my… uh his… err … my book.
Re: Watch out! Its the Grateful Dead Copyright Monster!
Of all bands to pick on, you single out the Dead?
Um. I didn’t “single out” the Dead. I pointed to a story that involved them because it was a unique case that makes the point.
The Dead have always played music for all the right reasons and now they are getting criticized because people expect them to just shrug off some hack writer?
No, because their publishing house is trying to stifle the creativity of someone else. That’s different than “shrugging off some hack writer.”
If your creativity is dependant on another person… News flash- You lack creativity.
Yes, obviously the Beatles lacked creativity, since their works were built on singers before them.
And since most Shakespearean plays were actually built off the works of others, he lacked creativity.
Do you know how ridiculous that sounds? Nearly every creative work is built off the influences of someone before them.
Saying that it lacks creativity to do something different with someone else’s content is simply incorrect.
In this case, this author is out to make money by using the Grateful Dead’s name.
No, the author is trying to create a compelling story. The fact that it uses the Grateful Dead shouldn’t stop that. Nor should the fact that the author intends to make money.
Re: Re: Watch out! Its the Grateful Dead Copyright Monster!
No, because their publishing house is trying to stifle the creativity of someone else.
Not quite true. Ice9 objected to the extensive use of verbatim song lyrics in epigraphs, not the use of quoted lyrics in narrative.
There is a qualitative difference here. Using someone else’s work verbatim without any specific narrative “comment” is not really creative.
Nearly every creative work is built off the influences of someone before them. Saying that it lacks creativity to do something different with someone else’s content is simply incorrect.
Except this case is not about using the Dead’s lyrics or music as inspiration or influences, but copying their lyrics for a separate, stand-alone presentation.
No, the author is trying to create a compelling story. The fact that it uses the Grateful Dead shouldn’t stop that. Nor should the fact that the author intends to make money.
And Ice9 did nothing to prevent the author from creating or publishing a compelling story (actually, whether it’s compelling or not is a different issue). A compelling story can be created without directly copying someone else’s words.
The fact that the author intends to make money definitely has a bearing on the issue. The Creative Commons license recognizes this by allowing restrictions on copying for commercial use.
The Dead at least have been consistent on this score: they allow audience taping of their concerts and trading of the tapes without interference based on the understanding that the music (tapes) would be traded, not sold. The taping community was actually quite good at enforcing that.
Re: Re: Watch out! Its the Grateful Dead Copyright Monster!
YOUR QUOTE: Yes, obviously the Beatles lacked creativity, since their works were built on singers before them.
And since most Shakespearean plays were actually built off the works of others, he lacked creativity.
Being influenced by other artists is entirely different then ripping something off or directly copying other works. Many artists are influenced by others. The beatles where influenced by Buck Owens but they didnt take any of Buck’s songs and call them their own. This person is using the name of the Dead, Copying lyrics, etc.. You take the Grateful Dead out of the equation this person has no story, no book, etc.. If the author is truly trying to create a complelling story they should be able to do that without the mass incorporation of Grateful Dead material.
Some artists will actually allow people to use their own work and let other call it theirs. Look at Ashlee Simpson. She was such a studio hybrid she was unable to even perform live. Everything in that conjured application of phony was brought to the front burner when Ashlee’s cd skipped on her when she was supposed to be playing live on SNL (LOL remember that awful little dance she did)
Okay I am done. People on these posts are unable to recognize reason so it defies any inclination to continue. My parting words, Its better to burn out then fade away lol. Sorry Neil Young..
Re: Re: Re: Watch out! Its the Grateful Dead Copyright Monster!
Being influenced by other artists is entirely different then ripping something off or directly copying other works. Many artists are influenced by others. The beatles where influenced by Buck Owens but they didnt take any of Buck’s songs and call them their own.
Actually… Paul McCartney “ripped off” Chuck Berry’s bass line for “I Saw Her Standing There.” But, you know, no creativity of his own, huh?
This person is using the name of the Dead, Copying lyrics, etc.. You take the Grateful Dead out of the equation this person has no story, no book, etc.. If the author is truly trying to create a complelling story they should be able to do that without the mass incorporation of Grateful Dead material.
Really? You think that because this book weaves The Grateful Dead into the story that it’s not creative at all?
That’s a stunning statement.
Pretty much all of human creative history disagrees with you.
Creativity is not being held back
Mike, I just wanted to point out a possible misnomer in your article. You mention that copyright is often used to “hold back creativity.” The fact that this author wrote what he did is proof that creativity is not being held back. Perhaps the publishing of said creativity is being held back, but not the creativity itself.
Regardless of whether the copyright cops get involved, there will always be creativity, and there is nothing they can do to keep artists from creating. The only bad part is that unfortunately, we may never get to see the creativity in action.
Just wanted to clarify.
Re: Creativity is not being held back
by restricting the creativity’s exposure the public, it restricts further creativity that would be inspired by the new work.
Re: Re: Creativity is not being held back
Well, there’s more than just “exposure to the public” at stake here. The author intends to make money off of the work as does the publisher. The creativity has not been suppressed, but the commercial use of someone else’s creative effort without permission or recompense was challenged.
If I’m going to make money off of the “creative” re-use of the creative efforts of another, why shouldn’t I be expected to pay something?
Re: Creativity is not being held back
Regardless of whether the copyright cops get involved, there will always be creativity, and there is nothing they can do to keep artists from creating. The only bad part is that unfortunately, we may never get to see the creativity in action.
Well, I’d say that holds back the creativity, because a part of that creativity is in how audiences respond to it (and whether or not they create more themselves).
Re: Re: Creativity is not being held back
Well, I’d say that holds back the creativity, because a part of that creativity is in how audiences respond to it…
How an audience responds to a creative work may be of interest to the creator, but it doesn’t hold back the creative process of that particular work. Especially in fiction, where the reader’s response can have absolutely no effect on the writer’s creativity, since the writer’s work has already been completed.
The writer can write whatever they want, and can copy lyrics with abandon if they so desire. That’s the creative process. Getting it published and distributed to readers is an important thing, but that’s business, not the author’s original creativity. Technically, it’s not the “re-use” of the lyrics, it’s the re-publishing of the lyrics.
Plenty more to the story
I guess nobody who posts here bothers to actually dig into the linked blogs and articles, because there is plenty more to this.
But first, contrary to some of the postings here, there is no GD organization any more, and neither Weir nor any other former member of the band has anything at all to do with the administration of Ice 9 publishing.
More to the point, as one of the commenters above correctly noted, there are more serious issues when poems or song lyrics are quoted as part of epigraphs, which is exactly what is at issue here. The author of the novel herself posted a comment to one of the blogs linked above, and very clearly notes that not a word of her story was changed, and that includes all of the snippets from the GD songbook. However, when she spoke to Ice 9 about the getting all the necessary permissions, they expressed concern with her use of so many GD lyrics as epigraphs to head each chapter. They felt that some readers or prospective readers may imply from that some endorsement from the band.
The author’s comment is quite understanding. She does not appear to view her experience with Ice 9 as having been any sort of terrible ordeal, nor even an adversarial situation.
Re: Plenty more to the story
More to the point, as one of the commenters above correctly noted, there are more serious issues when poems or song lyrics are quoted as part of epigraphs, which is exactly what is at issue here.
But why? If it does no harm to the work (it doesn’t compete in any way) and, if anything, is likely to attract new interest to the work, can you give a single compelling reason why that shouldn’t be considered fair use?
The author of the novel herself posted a comment to one of the blogs linked above, and very clearly notes that not a word of her story was changed, and that includes all of the snippets from the GD songbook. However, when she spoke to Ice 9 about the getting all the necessary permissions, they expressed concern with her use of so many GD lyrics as epigraphs to head each chapter.
Well, I would think that the epigraphs count as part of the story, and stifling that (and the title) is in fact changing words from the story.
The author’s comment is quite understanding. She does not appear to view her experience with Ice 9 as having been any sort of terrible ordeal, nor even an adversarial situation.
That’s a good point, but it doesn’t change how the original idea of the book was forced to change.
That, to me, is unfortunate.
Re: Re: Plenty more to the story
But why? If it does no harm to the work (it doesn’t compete in any way) and, if anything, is likely to attract new interest to the work, can you give a single compelling reason why that shouldn’t be considered fair use?
Well you can try to make that argument in court, but the fact is that lyrics and poetry have nearly always been accorded much more limited fair use. And the context of the use has always been a significant factor. You could quote a Ginsberg poem in the context of a critical analysis of his poetry without permission (depending on how much you quoted), but using that same quote as an epigraph generally would require permission.
Whether it competes or not, or whether it might conceivably “attract new interest” to the work are largely irrelevant, and in the latter case highly speculative (and not the copier’s decision to make).
Epigraphs have generally been given tighter rules because of their nature: they appear separate from the body of text or narrative and are in many way ornamental in nature. Because they stand alone, absent direct commentary or reference, it has been considered less “fair” use.
Well, I would think that the epigraphs count as part of the story, and stifling that (and the title) is in fact changing words from the story.
Epigraphs and titles are not considered part of the “story” in a meaningful sense. Actually, titles per se can’t be copyrighted anyway.
That’s a good point, but it doesn’t change how the original idea of the book was forced to change.
The “idea” of the book didn’t change, just some of the more minor details. This happens all the time for reasons other than copyright. From the original story cited in the post, the publisher nixed the idea of the Dead song title for marketing reasons. It may be unfortunate, but life’s not perfect.
Re: Re: Re: Plenty more to the story
Dead on, sailor man.
Do your research, people!
With the notable exception of Anon2’s “Plenty more to the story”, this thread seems to be full of opinions based solely on other comments rather than on investigation of the facts of the issue. Before one throws around terms like “Greasy copyright lawyers”, “hack writer”, or “money hungry bitches”, one should at least make sure his or her opinion is based on fact rather than on someone else’s misunderstanding of a situation. Going off half-cocked rarely results in a bulls-eye!
Re: Do your research, people!
Hmmmm. I guess I am going by the story I just read instead of what your agenda is. But this should shed some light on it for ya.
FROM STORY: And, that’s yet another unfortunate example of copyright holding back creativity, rather than encouraging it.
Thats the claim of the story from above (Incase you missed it the first time). Yeah, Some people will grab onto a name, catchy song, etc and sell it as their own. But dont call it creative!!! I call it hack writing (maybe thats harsh) Hmmm whats politically correct here? Riding the coat tails of someone elses work? Nah, People will still get upset. Plagiarism? UH OH! NOT THAT ONE!!
I got it… One-sided Collaborative writing of Opportunity. That might work Still dont like it? (INSERT POLITICALLY CORRECT NAME HERE)
Re: Re: Do your research, people!
Thats the claim of the story from above (Incase you missed it the first time). Yeah, Some people will grab onto a name, catchy song, etc and sell it as their own. But dont call it creative!!! I call it hack writing
The author wasn’t claiming it as his own. It was clearly credited to the Grateful Dead.
The copyrights on all of the Deads stuff should have expired years ago if the copyright laws had been held to their original intention.
This dispute should not exist because the work in question should be in the public domain by now.
the author responds
JT Dutton, the author of the book in question, responded to the post in the BoingBoing comments section:
Hi,
I am the author of Freaked and here is my perspective on this story. I had no legal battles or even conflict with Ice 9. I contacted them for permissions and they offered me some, but not all of what I wanted. Usually money changes hands when writers ask for permissions. In my case, Ice 9 gave me the use of what lyrics I did use for free.
Their hesitation about giving the full amount had to do with the feeling that allowing me to use too much would seem to be an endorsement of my work. Getting their endorsement would be huge–as one commenter put it, a money vein. Of course they have to be careful about what they lend. I wrote about the Dead because I happen to love their music, and using their lyrics was part of telling this story.
Yours,
J. T. Dutton
Since the article says nothing about who the author is, what lyrics are being protected, what the book is about, or why Ice Nine is objecting, I’d call this a prime example of non-news.
A reader would have to assume a lot before having an opinion about the suit. The only thing we can be sure of is that the article’s writer could use a remedial course in who/what/where/when/why.
quoting lyrics ...
Great article above: thanks.
This is, I feel, a sad reflection of a warped industry, trying its best to shoot the innocent when unable to lock up the real criminals who steal entire songs and often profit from doing so – online, downloads, sharing…etc, etc. It reminds me of inept police who go after soft targets only.
What I find mindblowing is that I can arrive at my local pub each Friday night and be PAID to sing an endless arrangement of Beatles’songs or Van Morrison numbers, thereby earning a living, and not have to pay anyone a cent.
How does quoting a few lines in a novel disadvantage the songwriter in any way? In fact it could be seen as a form of free advertising.
This alongside the reality that lawyers from the music business will pounce on anyone who even quote one line from a song in any publised book, simply defies logic.
The novel I have written is probably going to inspire people to listen to the Leonard Cohen songs and others I have quoted as an introduction to each chapter. I think the music industry should be challenged on this. Winston Churchill wrote for pleasure and for profit also – if I quote him all that is needed is recognition at the end of the quote (as long as it is a small fraction of the total word count of my writing.
What gives the music business the right to demand money when their writers are quoted and given credit?
Surely there are others who would like to challenge this? If so please email me: vonjazzvideo@gmail.com