Blogger contends posting silly leaked law firm song is fair use

Blogger contends posting silly leaked law firm song is fair use

Summary: News reporting is one of the classic examples of fair use, and blogger David Lat contends the doctrine covers his posting a groaningly bad "motivational" song leaked from a large law firm. The law firm disagrees, setting the stage for a DMCA takedown-putback tussle.


Over at Above The Law, David Lat provides irreverent coverage of the insular world of law firms and the judiciary. Today he posted a song produced by the Nixon Peabody law firm, forwarded by an unidentified tipster, that belongs in the bad business music hall of fame. The song was never intended for external consumption, and it's not hard to see why:

Instead of laughing this off and embracing its inner freak as Microsoft embraces Steve Ballmer's antics, the firm has been making saber-rattling, copyright-invoking phone calls to Mr. Lat, requesting among other things that he remove the audio he posted to YouTube. He has declined to do so:

They asserted copyright over the song and asked us to take it down, from our site and from YouTube. We stated our view that posting and commenting on the song constitutes fair use. It also falls within our newsgathering mission as a media organization.

We explained that our site is all about law firms and the legal profession. They said: "We know what you're about."

Nixon Peabody's next logical step, given its difference of opinion with Mr. Lat on the copyright front, would be a DMCA takedown notice to Google/YouTube. This provides a good reason to revisit Wendy Seltzer's go-round with the NFL, and the DMCA ping pong that ensued when she stuck to her fair use guns. Though the fair use analysis is different here, the same process could potentially follow, warranting another link to Chilling Effects' Counter-Notification Generator.

Best of luck David, and thanks for the chuckles. (Note to musically aspiring firms and businesses everywhere: there is no such thing as "internal use only." If you must go down this ill-advised road, think Eagles.)

[Update, 8/24/07:] Seems Nixon Peabody has fired its initial DMCA salvo at YouTube, though Above The Law is still making the "Everyone's A Winner" audio available here.

[Update, 8/25/07:] Round III: the Internet, or more accurately a clever YouTuber named ChurchHatesTucker, stokes the fire (via Ed.):

Topic: Social Enterprise

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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  • Dixon Peabody lawyers are being lame and stupid, but...

    ...I really don't see how the republishing/broadcasting/whatever of this song in full could be possibly be considered fair use. That'd be like broadcasting a full-length (really embarrassingly bad) movie in MST3K fashion and claiming fair use. Ain't gonna fly. Fair use -- at least as I understand it -- revolves around reasonable excerpts in the context of criticism, parody, education, etc. A full song isn't a reasonable length, no matter how you slice it. In this particular case, for example, one could have easily ridiculed/criticized it by taking a 15 second snippet.

    Should companies be embarrassed to create this tripe? Yes. Are they insanely stupid and lame when they try to suppress it? Absolutely. Is David Lat in the right, legally? Most likely not, IMNSHO.

    • depends on the commentary

      You can via fair use put a whole movie on display with you comments continual through out it. It would be fair use if you comment the first 15 seconds and let the rest play out though.
  • "Silly"? "Tripe"? - this reader thinks not ...

    (this response is purely to the musical merits of the song, not the legality of its posting)

    what's the uproar?
    this song has a solid foundation (its "groove"), an above-average musical accompaniment, some good singing and a pro level arrangement

    the lyrics are somewhat difficult to discern, with the notable exception of that catchy "everyone's a winner" refrain, and perhaps that was the firm's objection: the song's failure to get a message across about the quility of their workplace

    the tune has a solid funk throughout it, too, something that afficionados would agree has no time period, no lifespan, no expiration date: funk will always be with us, unless of course, you're incapable of understanding the "funk" (in which case, get thee hence to some Parliament/George Clinton recordings, sit back and enjoy)

    perhaps the only legal concern the firm might have is that they could be hearing from Tina Turner's lawyers concerning the outright theft of her vocal style

    "I am not a crook." - Nichard Rixon
  • Yay Corporate America!

    Heard (part of) the audio. What I love about it is that some small consulting firm managed to get them to think that crap is worth a good deal of money. It's obvious from the overall quality of the song, the audio mix, etc., that it was professionally produced, not just a few folks at the firm who sang a song at an office party.

    (And, yeah, I'm a lawyer.)