When you roll the dice, sometimes you come up snake eyes...

Someone got sentenced last week. He had a plea deal in place, but elected to plead straight thinking he could do better than the offer, and he had some great arguments for lenience. Well, he did worse than the offer on both the front AND back ends.

Some years ago, I remember the British nanny murder trial. Her attorneys made a tactical choice not to ask for a lesser included instruction- it was guilty of murder or not guilty at all. She lost. Snake eyes. However, the Court reduced the conviction to manslaughter and sentenced her to time served. In the ruling, the Judge said "A court... is not a casino." Snakes eyes to seven, albeit the hard way.

This is not the way the system ought to work. It really isn't a game, and yet everything we do is basically playing "Let's Make a Deal." Do you take the not entirely satisfying prize you already have, a set of luggage, perhaps, or do you opt for Door Number 3? It may be a car, it may be a goat.

It makes it virtually impossible to represent people in garden variety cases- the kind that always result in a guilty plea- with clients who have non- garden variety circumstances. The guy who simply gets drunk and starts brawling maybe doesn't deserve a break- but the guy whose wife just left him or who lost his job or who maybe learned his mother has cancer does. What of the guy who has mental health problems that do not rise to the level of a legal defense? What are these people to do?

There are two conflicting considerations here- the system tries to treat all defendants the same, while also trying to treat everyone as an individual. Try explaining that to a client, who may have serious cognitive disabilities, or who might simply be uneducated. "Well, the court will consider your background, your education, all sorts of things. But the guidelines still say you're supposed to do at least three months in jail."

So, Mr. Client, are you different enough to merit a three month reduction down to just probation? Or are you not different enough? Or, will your background instead give the judge a reason to go up, because you, Mr. Client, should have known better than to forge a check?

A court may not be a casino, but at least a casino is predictable- always split aces and eights, and double all elevens and tens.

When does it become parody?

You have all by now seen the Bank of America "One" video I should hope. It is painful to watch middle of the road bank managers mangle and ruin what is probably the best rock song of the last 20 years, (literally) singing the praises of a corporate merger. It is also earnestly sincere, and I will readily admit- the guy can sing.

However, sincerity alone is not enough for the lawyers. Universal Music began sending the cease and desist letters- and in one case, they posted the letter in the comment thread of a video sharing site (about 3/4 of the way down).

Dear Sir/Madam:

As a courtesy to you and, in order to put Sterorgum.com on notice, I am attaching the text of a cease and desist letter sent to Bank of America’s legal counsel. Universal is aware that you are contributing to the infringement of U2's Composition entitled "One" by, among other things, providing access to the unauthorized video on your website. Universal is also aware that you are the owner, registrant, administrative contact and technical contact of Stereogram.com.

Universal has a good-faith belief that the unauthorized uses of U2's Composition entitled "One" and the reproduction of any lyrics derived therefrom on your website are not authorized by the copyright owners or such owners’ agents. On behalf of Universal, I hereby swear under penalty of perjury that the foregoing statement is true and accurate and that the foregoing statement is made under authority of one or more of the owners of an exclusive right in the Composition.

Please be advised that, if the unauthorized video is not removed from your website immediately, Universal shall seek any and all available legal relief against the owner(s)/registrant(s) of Stereogum.com.

All rights are expressly reserved.

Raul R. Gonzalez
Attorney, Business Affairs
 Universal Music Publishing Group
2440 S. Sepulveda Blvd., Suite 100
Los Angeles, CA 90064-1712
310.235.4758
310.235.4906 fax
http://www.umpg.com/
raul.gonzalez@umusic.com

It is clear that the BoA/MBNA "One" is derivitave, but I am not so sure that it is infringing. I think it could constitute fair use considering that the song was not appropriated for profit, was intended to be performed in front of a very limited audience (BoA employees). Moreover, BoA could argue that it was a parody, which can constitute fair use under Campbell v. Acuff-Rose Music.

There is one problem with the parody defense- the BoA version was not (intentionally) funny, and parody is supposed to be funny. As Justice Souter wrote in Campbell:

"The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson's Court of Appeals dissent, as 'a song sung alongside another.' Modern dictionaries accordingly describe a parody as a 'literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,' or as a 'composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.'"

Since it was not their goal to make the audience laugh, they probably cannot claim that their version is a parody, other possible defenses aisde. This is where things get interesting, and since this is the Web2.0 universe, very, very meta.

Comedian David Cross and formers Smiths guitarist Johnny Marr recently opened for Modest Mouse doing a dead on, note for note, straight up cover of the Bank of America "One." Not a word was changed- they even performed it in dress shirts and ties, just like Ethan Chandler and Jim Debois. This performance was definitely intended to be funny, by simply playing the unintentional comedy of the BoA performance.

Which gets into a murky quagmire- BoA can't claim parody because the performance that Chandler and Debois staged at that meeting was not intended to be comic, despite the fact that I laughed my ass off. Cross and Marr, however, without changing a word, can probably claim parody, because their goal was to make you laugh- not at the song, but at the fatuous sincerity of the performance.

Which is a further complication, because a performance cannot be copyrighted- imagine Laurence Olivier copyrighting his take on Hamlet. The video of the performance, however, is copyrightable. They would be claiming, in effect, that the recording of their performance constitutes fair use, even though the song they are performing is an infringing derivative work.

Which only proves that copyright is completely inadequate for the new digital society. This meme moved from micro to macro to meta in a matter of days (sorry for the alliteration). Copyright just can't keep up with that.