Enter the Wormhole

Here’s how it descends into madness. I have a new book coming out, A Musical Education: Stories in the Key of All Right; it’s my second book and the first published by Black Sunshine Media. Aside from writing, editing, and all the creatively technical crap that goes along with producing the guts of a manuscript—which is 99% complete—there’s a whole nother laundry list of stuff that needs to be done; the majority of which are tedious tasks that make you regret having written a book in the first place. Some of you may have gone through the sausage-making process of querying agents and publishers, so I’m winking at you right now. Fortunately, and I say this with fingers crossed, by publishing under the Black Sunshine umbrella, several of those chores are no longer necessary. One of the benefits of being self-employed is not having to bother with a resume.

However, a completely different set of tasks come with being a publisher. This isn’t really about all that nonsense—it’s supposed to be a promo for the new book. In fact, that’s what I was working on when the wheels came off. But first, there is the subject of the book, which I’m hoping from the title you should be able to infer that it’s about experience and the splendor of music in life. More than half of the 10 stories that comprise A Musical Education have been previously published, either here on BSM or on my previous weblog, and each story is accompanied and augmented by relevant photos. Or at least, that’s what I was able to get away with on the website. Publishing a book is a different ball of wax.

My original thought was that while the inclusion of these photos was not essential, it would substantially improve the overall reader experience. For instance, the book’s opening story, “Fourteen Thousand Screaming Japanese Girls Can’t Be Wrong” is an extended meditation on my adolescent fascination with Kiss lunchboxes and Cheap Trick’s At Budokan. It seemed obvious to me that the narrative would benefit from, at the very least, a thumbnail of the album cover. Meanwhile, as long as we’re at it, why not throw in a few more photos, like one of the Kiss lunchbox? Since every story involves music in some way, we’re talking about somewhere between 50 and 100 potential images.

As I wrote in the previous post about Bob and Ron’s Record Club, I am inspired by the endless wonder of music. As a life-long student, I am grateful for an infinite amount of knowledge to study. This (unintentionally) blends into a thematic rainbow of the book. Music has taught me more than notes, names, and noises. Through music I have gained a singular and irreplaceable understanding of the world and my place in it. Meanwhile, I am insatiably curious about a wide and diverse range of subjects. When something piques my interest, I have been known to exhibit determination that borders on obsession. Sometimes that’s a curse; other times it’s a blessing.

Since ultimately I am responsible for the legal ramifications of publishing my work, it fell on me to learn everything I could about copyright law and fair use. Specifically, would I be able to use these images in my book without asking for permission from the copyright owners? [Remember this question.] Sounds easy enough, right? Conjure up the wizard of Google. Ask and ye shall receive. Kind of… Let me tell you what I know to be absolutely true. The Columbia University Library Copyright Quick Guide is by far the best and most useful authority for self-publishing blockheads like yours truly. Other than that, everything else is in that netherworld called a gray area.

One of the first things I did (as recommended by the Quick Guide) was try to track down the copyright owner of just a single image, the At Budokan album cover. The album is owned by Epic Records, which is now a division of Sony Music, which as you all know is one of the biggest corporations on the planet. At any rate, after slogging through their Terms & Conditions, I tracked down their legal department and fired off an email asking for information regarding the permissions process. After waiting a week and not receiving a reply, I went back to tracking down the copyright owners of other images.

OK, so I mentioned the Kiss lunchbox—I got mine in 1976—and knowing what I know about Gene Simmons, I figured the Kiss website would be the one-stop shop—except they don’t make the lunchbox any more. You can scoop one of those on eBay for a cool $250. Anyway, while I was at Kissonline.com I took a few minutes to peruse the site and marvel at the truly grotesque and blatantly crass display of merchandise. And that’s when I came across this.

You’re fucking kidding me. The action figures and the Kiss Army Platinum Visa® Rewards Card, yeah, I get it. Even the $3,000 Kiss funeral casket makes sense. Some people have no taste and if they want to be buried in their Spiderman pajamas, I don’t give a fuck. But wine…? Wine is my lifeblood. Now they’re messing with an object that means something to me. Means a lot to me, actually. More than most people can imagine. If you want to know what I think about Kiss and their music, you’ll have to read the book or accost me in the departure lounge of an airport terminal. But obviously, I was not at all amused or pleased.

Here’s where it starts heading in an irrational direction. The way my mind works, the next logical step is to find out who is bottling this shit and where they’re doing it. Easy enough. Two clicks later, I’m at Celebrity Cellars, where my agitation is quickly transformed into a sort of I-knew-it-all-along seething revulsion. And look who else has their own signature labels. The Stones are shameless, Madonna is a joke, and I’m not even going to type the other woman’s name.

It could stop here, but it doesn’t, and exactly how far off the rails I’m going to go is uncertain. Within minutes I’ve discovered The Rolling Stones Etched Spikey Tongue 2005 Miramonte Opulente Meritage (pictured here, on sale at $72.00) retails for $40.00, minus the tacky logo, from the winery’s online store. People are suckers, man. At any rate, it’s a decent bottle of California red—meritage means “blend of whatever grapes we could get our hands on and not from any particular vineyard.” Then I thought of Tool frontman Maynard James Keenan, who owns and operates Caduceus Cellars in Verde Valley, Arizona, and makes highly-rated wines. It wasn’t more than a minute before I was on Wikipedia, reading the List of celebrities who own wineries and vineyards, and I’m sure you’ll be surprised as I was to know that the following big shots are into the juice, too:

Journey keyboardist Jonathan Cain (DelaCain Vineyards, Sonoma County, California), Primus bassist Les Claypool (Claypool Cellars, Russian River Valley, California), Fleetwood Mac drummer Mick Fleetwood (Mick Fleetwood Private Cellar, Lake County, California), Simply Red vocalist Mick Hucknall (Il Cantante, Sicily, Italy), hip-hop superstar Lil Jon (Little Jonathan Winery, Central Coast, California), Dave Matthews (Blenheim Vineyards, Charlottesville, Virginia), Vince Neil (Vince Neil Vineyards, Sonoma County, California), Olivia Newton-John (Koala Blue Wines, South Australia), Cliff Richard (Adega do Cantor, Algarve, Portugal), Boz Scaggs (Scaggs Vineyard, California), Tommy Smothers (Remick Ridge Vineyards, Sonoma County, California), Sting (Tenuta il Palagio, Tuscany, Italy), and vocalist of Norwegian black metal legends Satyricon, Sigurd Wongraven (Luca Roagna, Piemonte, Italy).

Lil Jon owns a winery. Scratch that off the list of sentences I never thought I would write. So now I’m down this wormhole and I’m determined to see where it bottoms out, if it bottoms out. The previous paragraph was of course cobbled together from the main list, which includes a boatload of other celebrities like Gerard Depardieu but frankly, who gives a fuck about those people anyway. As I was cutting and pasting I came across a name so familiar it might as well been family. Mike Ditka, owner of Mike Ditka Wines in Mendocino. Wait a minute. I know Mike Ditka. I parked his car in 1988. It was a late-model Cadillac, I think. He tipped $5, which was big spender type-shit. Mike Ditka was of course the coach of the Super Bowl-champion 1985 Chicago Bears. However, he did not appear in the greatest rap video ever made, “The Super Bowl Shuffle.”

Mike Ditka also had a bowling alley in Willowbrook, IL, which is one of the suburbs where I grew up. Therefore, I used to bowl at Mike Ditka Lanes all the time. Meanwhile, Chicago is my hometown. Coach Ditka is like freaking Santa Claus in Chicago. He had steakhouses with his name on them. When the McCaskey’s fired him in 1992, I almost turned in my Bears jersey—that’s how pissed off I was. You don’t fire Ditka and bring in Dave Wannstedt, followed by Dick Jauron.

Even though I haven’t been back in almost 15 years now, Chicago is my favorite place in the world. I love that city. Every now and then I’ll browse over to the Wiki-page and do some reading. Plus, I’m totally into maps. That’s one of the 25 Things You Didn’t Know About Me which is actually still true today.

Google Earth and Maps are incredible. One of my favorite pastimes is cruising around the north side of town in Google Street View, just to see how my old neighborhoods have changed. I’m not kidding, I’ve spent the better part of entire days on Street View. Anyway, that’s where I was headed at the moment. As I was typing “Chicago” into the location window, I was thinking, “I wonder if there are any other places in the world using the name Chicago,” and a list of suggestions popped up. And that’s when I learned that there is a town named Chicago Park in north-central California.

Hmm, I wonder what downtown Chicago Park looks like…

Now I’ve completely forgotten the main reason I began this search—the copyright question. But it doesn’t matter because now something else has caught my eye on the map: Beale Air Force Base, which is approximately 30 miles west of Chicago Park in Marysville. California has a lot of AFBs—seven to be exact. Actually, the world has a lot of ‘em.

Did you know Thule Air Base is located in northwest Greenland? Greenland is a fascinating place. All that empty space. What do people do for fun in Greenland? Let’s find out. Back up a little bit. First of all, there are no roads between cities in Greenland, so anywhere you go is by boat, plane, or train. Second, there are only 57,000 people in the whole country, so you probably know everybody by name, so you gotta be careful. Don’t get stinky drunk and make out with the only transvestite in Nuuk, Greenland’s largest city.

Today Greenlandic culture is a blending of traditional Inuit (Kalaallit) and Scandinavian culture. Inuit, or Kalaallit, culture has a strong artistic tradition, dating back thousands of years. The Kalaallit are known for an art form of figures called tupilak or an “evil spirit object.” Traditional art-making practices thrive in the Ammassalik. Greenland also has a successful, albeit small, music culture. Some popular Greenlandic bands and artists include Chilly Friday (rock), Siissisoq (rock), Nuuk Posse (hip hop) and Rasmus Lyberth, who performed in the 1979 Eurovision Song Contest, performing in Greenlandic. The singer-songwriter Simon Lynge is the first musical artist from Greenland to have an album released across the United Kingdom, and to perform at the UK’s Glastonbury Festival. The music culture of Greenland also includes traditional Inuit music, largely based around singing and drums. – from Wikipedia

Then I found myself on a website called The Rumpus, reading the entire transcript of an interview with a Danish woman who grew up in Greenland (plus the woman’s boyfriend, who only spent two months there but still does a lot of the talking). Fascinating shit. Sounds pretty much like I expected it to:

Rumpus: I still feel like you guys are holding out on me, you’re not telling me what it’s really like there. The dark truths.

Martin: Well, there is the alcoholism problem. And it’s also definitely understood there that it’s okay to beat your wife or your kids, for example. Not all Greenlandics, sure, but the number people who do these things is pretty high. I was only up there for two months, as I told you, and there were two murders and, I think, seven or eight suicides, and this was a town where 1,800 people lived.

Rumpus: Alcoholism often creates an environment where that kind of stuff becomes . . . routine.

Martin: There aren’t more alcoholics there than there are in Denmark, but when they do drink, it’s to the extreme, and basically, part of that is they don’t have a gene that allows them to drink. One beer, and they go crazy. And I experienced this several times up there, there would be people screaming at each other in the streets, and it was generally accepted. I was also told that it was generally accepted that if you were drunk, you weren’t capable of making decisions, so you couldn’t be held responsible for what you did. You didn’t need to apologize the next day.

Wow. Greenland sounds like a fucking party. Meanwhile, I remembered having read an article about Greenland (or maybe it was Iceland) on VICE; the site is bookmarked on my toolbar, so it’s just a click away. Whether or not said article exists I cannot say, mainly because I didn’t get past the Do’s and Don’ts photo gallery, where I would spend the next 30 minutes. Along with Dangerous Minds, I would rate VICE as the penultimate website for wasting time. Total elapsed time: two hours.

It wasn’t until the next day that I found the answer to my question in a Case Summary found on the Columbia Quick Guide website.

Warren Publishing Co. v. Spurlock, 2009 WL 2412542 (E.D.Pa. 2009)

Spurlock published a book-form biography and illustrated retrospective of movie monster artist Basil Gogos. Spurlock’s book contained 160 reprints of Gogos’s work, including 24 reproductions of Gogos’s artwork taken from Warren’s copyrighted movie monster magazine covers. At summary judgment, the court ruled that Spurlock acted within fair use, based on its reasoning that the purpose and amount factors weighed strongly in Spurlock’s favor.

• Purpose: The court considered Spurlock’s presentation of the images within an artist’s biography and career retrospective to be a transformative use, because the artwork was used for an entirely different purpose than the original purpose of cover art helping to sell magazines. The commercial nature of Spurlock’s book did not overcome the transformative purpose of the use, nor did Spurlock evidence bad faith by publishing the reproductions after unsuccessfully seeking Warren’s permission.

• Nature: The nature factor weighed slightly in favor of Warren, because although the fact that the magazines were out-of-print implied a lack of demand and lack of market harm to Warren as a result of Spurlock’s use, the magazine covers were creative expressions and thus fell within the core of the Copyright Act’s protective purposes. Nevertheless, the court determined that this factor was of limited relevance given its prior finding of transformative purpose.

• Amount: In determining the amount of the work that Spurlock used, the court found that the “work” was the magazine issue as a whole and did not consider the magazine’s cover to be an individually copyrighted work. The court then accordingly found that Spurlock’s cover art reproductions used only a small portion of each magazine issue, weighing in favor of fair use.

• Effect: The court’s examination of effect focused on the market for derivative works of Warren’s magazines, specifically a proposed coffee table book of magazine covers. The court found that Warren’s failure to exploit its copyrights or any derivative market for more than 20 years substantially detracted from Warren’s argument of market harm. However, because summary judgment required the court to make all factual inferences in favor of Warren, it ultimately concluded that the effect factor weighed slightly against finding fair use.

Conclusion: Spurlock’s use of the magazine cover art was deemed to be fair use. Central to the court’s reasoning was the transformative nature of the use of the images in a biographical compilation. The court considered Spurlock’s purpose to weigh in favor of fair use even though the images were reproduced in a commercial product. Also significant was the court’s determination that the amount of the work used was based on an entire magazine issue rather than its cover image.

Problem solved, more or less. Will there be pictures in my book? Probably. If I get sued by someone, that’s life. I doubt it though. Please buy the book when it comes out. Thanks in advance.