petebrunelli

…and the Zappa Family Trust appears to be at the center of a galactic stupidity-aggregation-nexus.

They want Gail Zappa, Dweezil Zappa, and Joe Travers to be the sole custodians of the legacy of Frank Zappa?  Really?  The “Three Stooges” are getting their way lately thanks to some witless co-conspirators.

There are real questions about what is and is not appropriate when it comes to performance rights.  We have seen the ZFT attempt to treat the FZ catalog as theater, so performing any piece would be like playing an excerpt from CATS.  They have also claimed to be unaffiliated with any of the performance-royalty agencies like BMI or ASCAP.  But missing is the fact that BMI and ASCAP are private enterprises and separate from actual copyright law.  They aren’t like the IRS, a government agency created to manage tax law enforcement.  Meaning: even if you are not under agreement with ASCAp or BMI you still have to play by the rules.  As I have said before, this means that you cannot say “no” to a performance.  Compulsory licensing and fair-use issues don’t evaporate because you claim to be self-published.  By the same token the ZFT can send cease-desist orders just like anyone else.  The band RUSH recently sent a letter asking walking-human-excrement Rush Limbaugh to cease using their music on his show.  That specific complaint involves the use of a RUSH recording, an actual published piece of recorded music.  If it was the use of a cover-version, or thematic material, they would be on shakier ground because there would be issues of substantiality, but if the version was clearly based on the original it would be a simple process to continue the C&D beyond the original injunction. The ZFT wants a level of control that goes beyond fair use, and into “no use”, which is monopolistic and not supported by US Copyright law.  They also will not engage in actual legal action because they don’t have the desire to lose in court again.  I’ll leave the details to the actual copyright lawyers, but I feel very strongly that the legal onus has to be on the ZFT at some point.  They have made many claims on a personal/subjective basis.  That is definitely not supported by the law.

I write this as I listen to Dutch guitarist Corrie van Binsbergen, who has never made any bones about being a student of Zappa.  Her music is strikingly original, but she also works within the Zappa oeuvre.  When she plays an homage like Zoot Suite, is it “good”? Is it “sincere”? Is it “disrespectful”? Is it legal?  …and the list of what it is or is not goes on to the horizon. When Terry Bozzio gets paid handsomely to perform a 45 minute drum clinic at a festival, and performs The Black Page as a *solo*, just as he did with Zappa Plays Zappa, is he breaking the law?  Was he breaking the law when he played it with ZPZ?  Is the ZFT breaking the law by allowing Dweezil to perform Zappa music for free, while preventing others from playing his music *at all*?

Most artists avoid this quagmire by just acknowledging that their music was performed and broadcast to a huge number of humans over a period of decades, and other people learned to play those songs and might play them in live performance.  Nobody is out there claiming to have written Zappa’s music… claiming his compositions as their own.  Similarly, Zappa did not claim to have written Whipping Post, or Stairway to Heaven, etc… which he performed with his band in 1988. Subjective as well is the possible decision by an artist that the world is better off with the music in the public eye, and if the cover version is horrible then it just makes the original that much more valuable/desirable.

YouTube presents a very interesting case in “fair use”, because they don’t stop anyone from posting anything up front.  You want to put up a video of a still image of a goat with a rip of an album cut playing in the background?  Go for it.  Prove that it isn’t a post modern artistic commentary on the vapid nature of popular music and the media. Unless someone complains… which is kinda weird, really.  YouTube bears no burden in this process?  Where they facilitating the infraction?  That would require a legal decision, and legal costs.  As it stands they operate in a gray area.  What makes them any different than thepiratebay?

Notice here that we aren’t talking about using original recordings as backgrounds in a beer commercial.  Rarely does a corporation appropriate content without the consent of the owner.  That may seem like an issue of scale, but it really is an issue of intent and fair-use.  Mos of the ZFT issue revolves around musicians who have performed music which is based on a Zappa composition, or purports to be derived from a Zappa recording.  Since nobody can replicate the recording exactly, it is an artistic interpretation.  Is it substantially derived from the original?  Again, that is for lawyers to decide.  And to date the ZFT has received zero legal judgements in their favor on this issue.

If I am on stage in mid performance and quote a Lennon/McCartney composition, was I supposed to corral the instinct, even though it was rooted in a memory of hearing it in 1968?

This could go on ad-infinitum, but I believe that the overarching issue is not purely legal, or purely objective.  The issue at hand is one of an emotional turf-war.  After a career that began over 45 years ago, involving about 80 official audio releases, many video releases, public speaking appearances, collaborations with other artists, and thousands upon thousands of live performances, is the public supposed to sit on its collective hands and let one person decide how they will be influenced by that legacy?  Is one person allowed to dictate the actions of others to that degree?  As I stated in the previous post, this is the kind of control that was attempted under some of the most oppressive political regimes the world has ever known.  These regimes hoped to exact a level of social control so absolute that only their words were allowed to be considered “truth”.  All those who disagreed were punished, silenced, and worse.  Right now we are seeing a silencing of those with the audacity to perform this forbidden music.  Look ahead, if you can, into a future where this approach has been completely successful, and think about that landscape.