According to Richard Esguerra from The Electronic Frontier Foundation (EFF), a group is “doing something about this “problem. The organization “Musopen” is raising money from “philanthropists” to create high quality digital recordings of works from masters such as Beethoven and Brahms so that they can “generously” donate these recordings to the public domain so that no one will have to worry about licensing recordings of them ever again.

Does this sound nice to you? If it does, you are forgetting one thing.You are forgetting that if these recordings have some commercial value it creates a market for them which not only employs musicians, it encourages better and better recordings and orchestrations that benefit all of society. Destroy their commercial value, and you destroy a lot more than you realize.

Is it that offensive to these people that musicians should get paid for mastering their chosen instruments and making the sacrifices necessary to become a professional? Or is it crazy if someone gets a return on an investment to undertake the enormous task of recording a 100 plus person orchestra? Carried to it’s logical conclusion, someday all classical recordings will be in the public domain so this faction of the recording industry can just shut down. Now you can tell your kids not to waste time learning the cello, because there’s no way to earn anything from the sacrifice, so don’t go to orchestra practice. It’s a waste of time.

Esguerra laments that everyone can’t freely do things like use classical music in films because it has to be licensed. So we should let people make films and sell them and keep all the money instead of giving some to the musicians and encouraging their pursuit of these arts? Esguerra writes, “It’s too bad such seminal, cultural works have been effectively buried by copyright interests — despite their age, ubiquity, and importance.”

Can you believe this? Why not hire sound alikes to record all the works of the Buena Vista Social Club so we can get around paying those suckers. We can avoid paying at least 1/2 of what we used to have to pay to license their works. They’re seminal, why not? Esguerra actually calls this a “creative solution” to the problem of having to pay for the rights these musicians have obtained by sweat and talent. Does he also agree that waiting until midnight with a brick in your hand is a “creative solution” to the problem of having to pay for a plasma TV as well?

When my late Uncle Frank used to hear stuff like this he used to blurt out, “That’s just plain old fashioned communism!” That may be naive but it’s all I can think of to explain the lunacy. My band played in communist East Germany once. I see a bland world of music coming if those ideas make a comeback. I still have nightmares about the “boiled wheat” they served us to celebrate our musical triumphs there.

And please don’t confuse this with the concept of “music should be free” because we’re in a “new era,” etc. It is nothing like that. My band The Vandals allow many unauthorized uploads on YouTube and other places as a measure of good will, we don’t run around and bust infringers routinely. We get it, they listen, they might come to a show or push some kind of demand for us. Musopen is not a part of that movement, make no mistake. They are extremists trying to deprive honest working people of what they already earned to spite them for having the audacity to charge for their services.

The EFF calls for “music lovers” to support them with their wallets. This isn’t for music lovers, it’s for music killers. I actually used to have respect for EFF. I thought they were an important part of the debate but this is off the deep end. They’ve officially lost me, and the Barely Legal Radio program. I’ll be talking more about this on Sunday’s KFWB show. I’d love to know what the Big Hollywood readers think about this.

The Hollywood trade publication, Daily Variety, is presently suing the Vandals and Kung Fu Records in Federal District Court in Delaware in what has to be one of the most frivolous and abusive lawsuits of all time. In 2004, The Vandals released a CD called Hollywood Potato Chip. Its cover design was a parody of the Hollywood “system” complete with a parody of the logo for the Daily Variety, who call themselves the “Bible of the Entertainment Industry.”

Warren Fitzgerald: Vandals Guitarist/Federal Court Litigator

Although this was an artistic expression fully protected by the Fair Use Doctrine of the U.S. Copyright Act, and the 1st Amendment of the U.S. Constitution’s guarantee of free speech, the Daily Variety and their parent company Reed Elsevier, Inc. hired the 950 attorneys at Fulbright & Jaworski to sue the Vandals in Federal Court in California over this artwork for several hundred thousand dollars in penalties and threatened litigation costs.

The Vandals were disgusted by this abuse of the legal system and disregard for the Constitution by a magazine that supposedly served the community of the arts, but did not have enough money to fight these monsters so they settled and changed their artwork with complete cooperation. In 2004, The Vandals signed a settlement agreement with Variety that promised not to use the logo again. However, if by fault of the Vandals, an inadvertent use of the logo appeared on the Internet somewhere, the Vandals had a 30 day “cure period” to take it down before they could be sued again. If the use could not be removed within 30 days, or if the Vandals refused, the Vandals would pay Variety liquidated damages in the  amount of $50,000 plus attorneys’ fees.

On February 5, 2010, J. Paul Williamson of Fulbright & Jaworski claims to have sent out a letter to the Vandals stating that there were a few “forbidden images” on two of the Vandals/Kung Fu Records’ sites. However, by the time the law firm got hold of the Vandals a few weeks later those images were “mysteriously” gone. When the Vandals explained to Mr. Williamson that, even if they were there at one point, they weren’t there “now” and so they were at the very least “taken down” within the allotted cure period. Mr. Williamson, really interested in getting this $50,000 and $25,000 in legal fees (for looking at our web site and sending a letter?) adamantly claimed that there was no such cure period.

It was a very weak argument, but that was his claim. “Pay us because we say we have proof that there was a forbidden image on the Internet somewhere, and there is no cure period, period.”

He also asked the Vandals to complete 7 other “cure steps” that he made up that would, among other things, include a promise to pay them “double” the penalty if it happened again. If what happened? Well, whatever they say happened, whenever they say it, and with no cure period. In other words, he was looking for an easy way to extort hundreds of thousands of dollars out of a punk band and a small record label whenever he felt like it. This is what he calls a career in the field of law.

He also warned that if the Vandals didn’t agree to his demands, he would sue the Vandals in Delaware, and that would be extremely expensive, so the Vandals might as well just pay him what he wants to prevent such a disaster. The dumb part is that this guy, and the Daily Variety, and Reed Elsevier, just went too far. Even if the Vandals had this kind of cash lying around (did J. Paul Williamson get the memo on the state of the music industry?), nobody would agree to sign this ridiculous promise to pay more “next time” when “next time” is decided arbitrarily by the beneficiaries of this scheme.

Since the Vandals did not agree to this, J. Paul Williamson, The Daily Variety, and Reed Elsevier sued the Vandals in Delaware Federal Court as punishment for not giving in to their demands. The best deal the Vandals could get on a Delaware attorney was Ashby & Geddes who offered to take the case if the Vandals would just place $20,000 in an escrow account and pay them $520.00 per hour with none of this being applied against the $20,000 escrow money.

So the Vandals decided to represent themselves, since they had no other options. Since Kung Fu Records is a Corp. it cannot represent itself so Vandals bassist Joe Escalante filed a motion with the Court to allow him, an attorney licensed to practice in California, to be accepted to practice in Delaware for the sole purpose of filing the motion to transfer venue back to California. Of course The Daily Variety has since filed papers to oppose this motion. Every time the Vandals file something with the Court, the Daily Variety files another motion to vex them into submission.

The biggest laugh is now that The Daily Variety has had to actually tell their story to the Court, they suddenly admit that the Vandals do have 30 days to cure any breach of the agreement. Even though they tried to squeeze the Vandals for tens of thousands of dollars by repeating this lie over and over about “no cure period” they couldn’t tell that to the judge, so they made up something even more ridiculous. This is their claim. They claim that although there is a cure period in the Settlement Agreement between the parties, the Vandals failed to cure the “breach” by not paying Variety the $75,000 they asked for and signing the promise to pay double next time.

Of course this is laughable for many reasons but the most blatant is that this would make the cure of the breach more expensive than just not curing the breach and giving them the $50,000 plus actual legal expenses that the original Settlement Agreement allowed. The Vandals believe that this is just a bald abuse of the legal system and that the Daily Variety and Reed Elsevier should wake up and realize that they are also being scammed here.

The argument was that if the Vandals are allowed to parody their precious logo, it would harm the Daily Variety brand. But what could harm the brand more is taking part in an illegal shake-down that is frivolous, abusive, and directed at members of their own artistic community.

Please visit Vandals.com to see how you can help fight this lawsuit abuse.

Please purchase tickets for the fundraiser Vandals’ concert at the Glasshouse in Pomona, CA on September 10, 2010.

Thank you,
The Vandals, 2010

I watched MTV’s “Jersey Shore” last weekend. My whole band was mesmerized by it in the bus as we drove to a gig in San Francisco. We felt better about ourselves because we found some people more vulgar and self-centered than we felt we were.

Of course it was hilarious to watch these “piles” conduct themselves like primates in front of the cameras. Then I looked in the corner and notice the MTV logo. I thought I had been watching a shock documentary on a curious lifestyle that would perhaps even propose some solutions to what what looked like a tortured existence. The MTV logo told me that this was not the case.

The “cast” were being showcased on an influential channel to impressionable teens. What should have been produced for IFC, or PBS, to warn people about a moral and social decline was being pushed as on going party for kids to join, emulate, and idolize. Just when you thought Heide and Spencer were the bottom. I know it’s tough to make a living in this business, but is all this really worth it for the folks at MTV?

In a suit for defamation you need damages. Provable damages in this case would center on the value of the airtime Swift was deprived of to speak about her recordings. Expert witnesses would testify as to the “bump” typically witnessed after an acceptance speech in such a valuable forum. Arguably, West deprived Swift of this sales bump.

West also defamed Swift when he announced to the world, in the most damaging forum possible, that Beyonce made “one of the best videos of all time,” so obviously Swift was on stage accepting an award that she didn’t deserve– more damages.

And what of Joe Wilson’s arguably barbaric shouting, also in the most damaging forum possible, that the President was lying as he spoke to Congress and the American people? If true, this was pure defamation and created quantifiable damages to a politician whose ability to govern and raise funds for re-election depend on his credibility.

Public figure exceptions (requiring “actual malice”) and governmental immunities aside, the interesting difference between these two cases is the ability to mount a viable defense. Truth is the best defense in any defamation case. If the defaming speech is true, it is protected by the 1st Amendment to the Constitution guaranteeing free speech.

Wilson, and many pundits, have probably already gone far enough to establish that a reasonable person could infer that the President was not telling the truth when he asserted that illegal aliens would not be covered under the government’s proposed health care plan. The fact that Wilson and his supporters tried to add language to the bills specifically prohibiting coverage for illegal aliens and it was removed by their opponents, and the fact that non-citizens have to be covered in some ways by the plan, at least in emergency rooms, is enough to establish a reasonable basis for Wilson’s belief that the President was indeed lying. So the apparent truth to Wilson’s beliefs is a good faith defense to being punished for stating them in public.

On the other hand, Kanye’s attempt to prove truth as a defense to his defamation troubles would be impossible. He would have to spend all his energy trying to argue for minimal damages.

What will actually happen? Wilson’s outburst has already put the spotlight on this issue for his supporters so it was an effective, albeit rude. Kanye will return to next year’s VMAs to a mindless standing ovation as a prodigal son, and security will be stepped up a bit on the side of the stage.

But let us consider the forum of a Presidential address to Congress. Every time the President says anything of significance, true or not, his supporters are allowed to go nuts and violate decorum. For Wilson and his colleagues to just sit there and not point out an opposing sentiment representing at least ½ the country, every time, may be too much to ask.

Is it too much to ask a hip-hop “musician” formed by the juvenile arrogance of a genre with almost zero positive contributions to popular culture to resist the easy prey of a humble and traditionally wholesome artist like Taylor Swift. Actually it is too much to ask, way too much.

We could debate for a while whether A&D is really a movie at all or just a series of scenes with silly dialogue propelling an action filled scavenger hunt through Vatican City. Instead I will try to be as informative as I can about whether the movie is offensive, blasphemous, inaccurate, or just a joke; or all of those things like “The Da Vinci Code.”

Unexpected:
“Angels and Demons” is about a thousand times better than the “Da Vinci Code” as a film. Tom Hanks looks better and says less of those ridiculous revelatory lines at the end of every scene that make you want to punch him right in the character. It has its problems but it is not boring, doesn’t drag, and is a skillful mix of Indiana Jones type action set against a beautiful sacred backdrop. 

Unexpected:
The Faithful depicted in the film were not ridiculed. The religion was not trivialized in the usual Hollywood manner. Howard used the visual and ritual majesty of the Catholic Church to its fullest. Vatican City is an awe-inspiring place and the film did little to damage the notion that membership in the faith is a serious privilege. It’s one of those films that after seeing, if I wasn’t a Catholic, I would be very jealous of all we have.

Expected:
Trite myths about the Church are perpetuated, of course. The blanket assertion that the Church has routinely suppressed science is nothing but myth. It’s laughable to people who know the truth. Even the case of Galileo, when fully studied, shows that the Church did more to advance the study of most sciences, especially astronomy, than any institution at the time. For some mind blowing elaboration on this fact, check out the summary of Dr. Thomas Wood Jr.’s “How The Catholic Church Built Western Civilization.”

Expected:
Hollywood would not make a big film like this without a liberal message but even I couldn’t imagine Howard and author Dan Brown would go so far out of their minds to create this one. It’s amazing. The film starts with a Papal funeral celebrating the life of a “beloved progressive Pope.” The film then goes on to make the point that to avoid seeing the Church modernize, more traditional forces within the Church would torture and murder four Cardinals, kill about one million of the faithful, and destroy Vatican City.

That is the point of the story. The progressive Pope and the Godless Academic Robert Langdon are the heroes. The traditionalists (the enemies of change) are not just stubborn; they are murderous terrorists. It’s so outrageous it probably rises to the level of breaking both the First and Second Commandments. I don’t have the authority of absolution, but if I did. Howard’s penance would be to make a similar film dealing with “progressives” vs. “traditionalists” in the Muslim faith, and see how their modernizing is coming along when that film hits the streets.

Conclusion:
In “Angels & Demons,” Hollywood has embraced a lot of the beauty and reverence of the Magisterium of the Catholic Church but not the Magisterium itself. It has decided a new direction for the Church. Hollywood would like to make the Church into something acceptable to Hollywood, which is not surprising considering what Hollywood thinks about its role in shaping culture.

They are the wise. They will show us the way. If we listen, we can be Catholic AND popular in Hollywood. It’s the best of both worlds, right? Wrong. The well catechized know we must choose one or the other.

Solution:
If more films were made about the lives of the saints, heroic stories could be shared and everyone inside and outside the Church would be exposed to truths and virtues that would make this progressive vs. traditionalist divide a non-topic.