I went to the University of Texas at Austin for my undergraduate degree. My freshman year I became friends with the Resident Assistant (R.A.) on my dorm floor, Brian Pargac. Pargac was (and still is) proud to have grown up in La Grange, Texas. A huge smile would run from cheek to cheek whenever he would tell a story about his boyhood home. "You've never had a steak as big as the ones we serve back home," he boasted to me one night while we dined in the Andrews' cafeteria.
I still remember the day I witnessed another resident deriding Brian and his hometown. Dan, who lived across the hall from me, had apparently heard enough about La Grange. "Why do you brag so much about your hometown?" he complained. "Most people only know La Grange from the ZZ Top song!" Brian grew quiet, and began to blush.
Being from out-of-state, I was very confused about what had just happened. I asked them both why anyone would be embarrassed by the song "La Grange". "In my opinion," I insisted (without internet abbreviation), "it's ZZ Top's best song!" Before Brian could respond, Dan all-too-eagerly explained to me that the song was about... a whorehouse.
I was shocked. I'd never really paid much attention to the lyrics of "La Grange" while growing up in the Washington Metro Area. I was too busy hanging out by the pool and eating grilled meats whenever that guitar riff started blaring from a boombox sitting on the back porch railing.
For Brian, however, the song clearly had a different meaning. When he regained his composure, Brian assured me that this brothel was a figment of ZZ Top's imagination (Wikipedia tells a different story). Real or imaginary, the subject of this song was now ruined for me-- "they got a lot of nice girls" no longer meant what I had naively believed when I had first arrived on Texas' campus.
A decade later, the song "La Grange" would break my heart again. This time, I was living back in the DC area. When I first began to help local artists on copyright matters, I discovered that "La Grange" had been at the center of controversy in an (in)famous court case, La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir. 1995). Although ZZ Top won the court battle, ultimately the public interest lost the war. Congress responded swiftly to supersede the court's ruling, thanks to the lobbying efforts of the major music labels. At the end of the day, the public domain was impoverished, and the profit margins of of major record labels and music publishers were preserved (at least, until the advent of Napster and the digital download).
Let me now tell the courtroom story of "La Grange." The next section gets fairly technical, so I won't get mad if you skim the legalese and jump to the following section, which gets right to the ironic twist: instead of abiding by the federal courts' ruling on a song about a whorehouse, Congress let the largest record companies pay to take control of American copyright policy. As it stands, our current copyright laws have gone far astray from its original purpose "[t]o promote the progress of... the useful arts."
La Cienega Music Co. v. ZZ Top
In 1948, Bernard Besman co-wrote the song "Boogie Chillen" with blues legend John Lee Hooker. In the early 1990s, Besman's publishing company filed a copyright infringement lawsuit against ZZ Top, claiming in part that "La Grange" unlawfully plagiarized Hooker's famous tune. The federal district court for Central California dismissed Besman's suit, ruling that "Boogie Chillen" was in the public domain.
Besman's company appealed, claiming to hold a valid copyright in the song, even though it had failed to renew its copyright in accordance with the 1909 Copyright Act. Prior to the 1976 Copyright Act, copyrights in musical works had to be formally renewed within 28 years of being published. The music industry only considered a musical work to be "published" when sheet music was released. If a song was released as a recording only, the recording industry considered such songs "unpublished."
Besman was hoping that the Ninth Circuit would accept this established practice within the music industry, just as the Second Circuit had in 1976. In Rosette v. Rainbo Record Mfg. Corp., 546 F.2d 461 (2nd Cir. 1976), the Second Circuit ruled that the 1909 Copyright Act's strict requirement that published works be formally renewed (lest they fall into the public domain) did not apply to songs that had only been released on a record. ZZ Top, on the other hand, argued that releasing a record ought to be considered a publication of the underlying work (how novel!). If releasing a record results in the publication of the musical works therein, then "Boogie Chillens" lapsed into the public domain in 1976, 28 years after its first release, during which time Besman failed to renew its copyright.
In deciding the "La Grange" controversy, the Ninth Circuit sided with ZZ Top, and thereby repudiated the conventional understanding of "publication" within the music industry. In La Cienega Music Co. v. ZZ Top, the majority of the Court affirmed the lower court's opinion: "Boogie Chillen" was deemed to have fallen into the public domain when Besman failed to renew the song's registry. The U.S. Supreme Court declined to hear any further appeals.
ZZ Top and the nice girls of La Grange could now celebrate their victory. The honeymoon would be cut short, however, when Congress decided to intervene on behalf of the major music labels. The lawmakers who demanded a "fix" for La Cienega did not have the best interest of the American people in mind, but rather the special interests of a wealthy class of corporate donors who controlled the music publishing and record industries of the 20th century.
The Music Industry Goes To Washington
In the aftermath of La Cienega, the music industry went into panic mode. Major music publishers and record labels were not about to let a few Left Coast federal judges move a truckload of their copyrighted works into the public domain. The captains of the music industry pooled their special interest money together and went to Washington to lobby for a "La Cienega fix." How could Congress allow one circuit court to destroy such a massive source of revenue for a multi-billion dollar industry?
Congress acted quickly to address the concerns of the music industry's biggest players. As a result, 17 U.S.C. s. 303 was amended to contain the peculiar provision that "[t]he distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute the publication of any musical work..." It is worth mentioning that leading copyright scholar Melville Nimmer approved of this Congressional "fix" for the La Cienega decision. Even though Professor Nimmer believed the Ninth Circuit had correctly decided La Cienega (after all, the court did reference his authoritative treatise to support its ruling), he wanted to live in a world where American copyright law was less formalistic, and more protective of the rights belonging to artists and their assigns.
I, on the other hand, would like to use the rest of this space to complain about the punch in the gut that 17 U.S.C. 303(b) has been for one subset of songwriters: sampling artists. I truly believe that presently-active major label acts would have to worry far less about unauthorized samples of their music if the La Cienega decision had enriched the public domain with a wealth of songs released. If the goal of the American copyright system is to promote the arts, then our policy should be oriented to the future, rather than preserving the rights of the past. While I share Professor Nimmer's view that the United States should embrace the international approach more fully and protect artists' rights for two generations after their death, I do not want Congress to augment the rights of copyright owners for works published before 1978. The harsh, formality-laden system that used to exist should not be remedied retroactively, lest we do further harm to the next generation of our own artists.
Hiphop would be an unbelievably different genre if La Cienega had become the ruling standard for the music industry. There would a much larger pool of public domain recordings if Congress had let the Ninth Circuit rule endure. Instead of facilitating the growth of sampling artists, Congress chose to "fix" La Cienega for the sake of the major music companies (and their shareholders). And that, my friends, is the story of how Capitol Hill outdid a lotta nice girls in La Grange.
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Sorry about that last joke, Brian. I gotta take any laugh I can get from a property law blog.
Later this year, we are going to come back and talk more about the relationship of sound recordings and sheet music to copyright law. The major reforms of federal copyright law in 1972 and 1978 have created an immense headache for the entire record industry, from indie artists to the biggest record labels and radio stations on the planet (or in orbit around it...).
One final note:, I ought to reconcile what has been said here with what I said in an earlier post about the CTEA. I see that pre-1978 copyright owners have a sound argument for extending the length of their copyrights: it is unfair to give their works much shorter duration than what works published since 1978 enjoy. That being said, their fairness argument has nothing to do with promoting the future health of the arts. Preserving the effect of the formalistic pre-1978 system on older works does not impact works created since U.S. copyright laws were reformed. Ironically, retroactive attempts to help make things "equal" between older and more recent copyrights only works to undermine the future opportunity of American artists.
Further Reading: Here's another law blog about La Cienega v. ZZ Top: https://www.americanbluesscene.com/2012/11/blues-law-john-lee-hooker-v-zz-top/
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