In Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity, Kembrew McLeod claims that current copyright law has been taken over by corporate types and instead of promoting the creation of new work, it stifles it.
Here is an excerpt from the section on The Verve:
The Verve, a popular British band that scored a major worldwide hit in 1997 with “Bittersweet Symphony.” The Verve negotiated a license to use a five-note sample from an orchestral version of one of the Rolling Stones’ lesser hits, “The Last Time,” and received clearance from Decca Records.
After “Bittersweet Symphony” became a hit single, the group was sued by former Stones manager Allen Klein (who owns the copyrights to the band’s pre-1970 songs because of aggressive business practices). He claimed the Verve broke the agreement when they supposedly used a larger portion than was covered in the license, something the group vehemently disputed.
The Verve layered nearly fifty tracks of instrumentation, including novel string arrangements, to create a distinctly new song. In fact, the song’s signature swirling orchestral melody was recorded and arranged by the Verve; the sample from the instrumental record is largely buried under other tracks in the chorus.
The band eventually settled out of court and handed over 100 percent of their songwriting royalties because it seemed cheaper than fighting for a legal ruling that might not end in their favor. As if things couldn’t have gotten worse, they were then sued by another old Rolling Stones manager, Andrew Loog Oldham. Klein went after the Verve for infringing on the songwriting copyright, which he owned, but
Oldham possessed the copyright on the sampled sound recording. They totally lost everything.
Not only couldn’t the Verve earn money from their biggest hit, they were stripped of control of their song. For instance, after the group refused Nike’s request to use “Bittersweet Symphony” in an ad, the shoe manufacturer aired the song after it purchased a license from Allen Klein.
“The last thing in the world I wanted was for one of my songs to be used in a commercial,” the despondent lead vocalist Richard Ashcroft said. “I’m still sick about it.” In one final kick in the groin, “Bittersweet Symphony” was nominated for a Grammy in the Best Song category, which honors songwriters. Because the unfavorable settlement transferred the Verve’s copyright and songwriting credit to Klein and the Rolling Stones, the Grammy nomination went to “Mick Jagger and Keith Richards.”
Ashcroft quipped that it was “the best song Jagger and Richards have written in twenty years.” He then suffered from a nervous breakdown and the group eventually broke up.
Nike Experience Bittersweet For Verve
Hollywood Records & More
Posted Feb 16, 1998; Rolling Stone online
Posted Feb 16, 1998; Rolling Stone online
If it were up to the Verve, Nike never would have received permission to use the band's "Bitter Sweet Symphony" as the cornerstone of the company's new multimillion-dollar ad campaign. But thanks to a tangled web of music-publishing rights, the Verve claim that the decision wasn't really theirs to make.
"The Verve are a rock band, and they don't think their music should be used to endorse things," says the group's manager, Jazz Summers.
Problems for the Verve arose, however, because the band does not control publishing rights to "Bitter Sweet Symphony." Since the song includes a sample of the Andrew Oldham Orchestra's version of the Rolling Stones song "The Last Time," ABKCO, which owns the copyrights to many early Stones tracks, took control of "Bitter Sweet Symphony" last year. That meant ABKCO could sell the song's rights to any advertiser willing to pay for it, and that the advertiser could then -- without the Verve's permission -- hire studio musicians to re-record a sound-alike.
Rather than allow that to happen, the band members decided to license their actual recording of "Bitter Sweet Symphony" to one major advertiser in the hopes that this would deter others from wanting to buy the publishing rights. In the end, Nike beat out Budweiser, Coca-Cola, General Motors and others for the sweeping hit single.
Nike's sixty-second spot -- a stylish, cinematic salute to athletic determination -- is just the latest in a cascade of commercials utilizing pop music to sell everything from shoes to cars to computers. Among others in heavy rotation: Sly and the Family Stone's "Everyday People" (Toyota), David Bowie's "Heroes" (Microsoft), the Who's "I Can't Explain" (Ford), Crosby, Stills, Nash and Young's "Our House" (Chase Bank) and Erykah Badu's "On and On" (Levi's).
And the price to license these songs isn't cheap; most hits go for $250,000 or more. Nike paid $700,000 for "Bitter Sweet Symphony," but the band received only $175,000, while ABKCO pocketed $350,000. (The Verve are donating their share to the Red Cross Land Mine Appeal; they're asking ABKCO to do the same.)
Not that the Verve haven't benefited from the ads. Two weeks after the Nike commercial debuted, during the NFL playoffs, the Verve's Urban Hymns jumped thirty-four spots on the Billboard 200, hitting Number Thirty-six, the album's highest point since its release last September. Summers concedes that the ad may help generate the Verve's
breakthrough: "If this music is being played during football games and 20 million people are listening to it for a minute, it's going to have an effect." U.S.
And a higher chart position is not all they got. "In our final negotiations with the band's manager, he was asking if [the Verve] could get tickets for the World Cup," says Nike's Mark Thomashow. So the band will be heading to
this summer for some soccer matches? "I said, 'Whatever it takes,' " says Thomashow. Paris