In this most recent copyright upset, the children of the late Frank Zappa are attempting to take legal action against one of their siblings, the unfortunate Dweezil Zappa, alleging that his attempt to tour under the name “Zappa Plays Zappa” is infringing on the rights of the Zappa estate.
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Guest Post by Mike Masnick on Techdirt
Another week, another story about the abuse of intellectual property. This one, like many, involve the “estate” of a famous, but deceased, creator. In this case, it’s the estate of Frank Zappa, which apparently is managed by two of his four children: Ahmet and Diva. The other two children are beneficiaries of the estate, but not trustees. The issue here is that one of the other siblings, Dweezil Zappa, wanted to go out on tour under the name “Zappa Plays Zappa” in which he plays songs by Frank Zappa. Sounds reasonable… and, in fact, he’s been playing under that moniker for a while. Except, this time, Ahmet has said that it’s not allowed and forced Dweezil to change the name to “Dweezil Zappa Plays Frank Zappa” which is not nearly as catchy.
The intellectual property claims made by Ahmet and the Zappa Family Trust are mostly not based in any actual US law. Here’s the way the NY Times describes it:
This month, the Zappa Family Trust, which owns the rights to Mr. Zappa’s music, informed Dweezil that he did not have permission to tour as Zappa Plays Zappa — the name is a trademark owned by the trust — and that he risked copyright infringement damages of $150,000 each time he played a song without proper permission.
The trademark claim makes at least some sense. The estate does, in fact, hold a trademark (78938430) on “Zappa Plays Zappa,” which was registered back in 2007 and covers live music concerts. Late last year, however, it appears that Ahmet and the Zappa Family Trust filed for two more trademarks on the phrase: one to cover various apparel and one for musical recordings. It appears this may be the root of the issue here. However, Dweezil claims that he’s already licensed the Zappa Plays Zappa brand for his concerts from his now deceased mother, claiming he paid her “an exorbitant fee.”
Apparently, some of the complaints here stem from disagreements over payments from merchandise sales on this tour and who gets the money.
But the really nutty part of all this is the copyright part. The claim that he risked $150k each time he played a song is just nuts. First of all, even if it was infringing (and it’s not, as we’ll explain in a minute), the law actually provides only a maximum of $150k “per work infringed” not “per act of infringement.” It’s a fine line distinction, obviously, but it’s worth noting. But, either way, it’s dumb because Dweezil isn’t infringing.
As we’ve discussed probably hundreds of times here at Techdirt, anyone can cover another artist’s song. If you’re doing a recording, you just need to pay compulsory mechanical licenses, but if you’re just performing it live, it’s covered via the venue’s blanket performance licenses with ASCAP or BMI (with Frank Zappa, it’s ASCAP). Except… the Zappa family wants the world to believe that the law there does not apply to them. Rather, they’re playing fast and loose with some tricky definitions. Section 115 of the Copyright Act is about how the compulsory licensing works, and it has an adjective that the Zappas are trying to turn into a loophole:
In the case of nondramatic musical works, the exclusive rights provided by clauses (1) and (3) of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section.
“Nondramatic.” Historically, this has been interpreted by many in the copyright space (perhaps reasonably) to say that compulsory licensing a la ASCAP or BMI can’t be used for putting on a musical. Instead, for a musical, you do need to negotiate directly with the composers/publishing rights holders. A somewhat murky area of copyright law has grown up around this which is sometimes referred to as “grand rights,” despite no such phrase appearing anywhere in the actual law, and that has resulted in some amount of confusion. If you really want a deep dive on grand rights, this article is a pretty good start.
But, again, grand rights (whatever they may actually be) only apply to “dramatic performances,” which generally means plays and musicals. That’s got absolutely nothing whatsoever to do with Dweezil Zappa going on tour as (basically) a cover band of his father’s work. But don’t tell that to Ahmet Zappa:
But the most contentious part of the dispute is over the minutiae of music licensing, an area in which the Zappa estate has long taken controversial stances. The family trust argues that for a show consisting largely of Frank Zappa’s music, performers cannot rely on the standard performing-rights licenses that music venues typically get from agencies like Ascap or BMI, but instead need special permission from the estate for “grand rights,” a term that usually applies to theatrical presentations.
Gail Zappa and Ascap pursued a number of bands under this theory, with mixed success. Project/Object, a well-known Zappa tribute group, had some of its shows canceled by clubs that had received legal letters, but Andre Cholmondeley, a member of the band, said that the group was advised by a lawyer that it did not need a special license, and so has never gotten one. “We simply adhered to U.S.A. law,” Mr. Cholmondeley said in an email.
The NY Times article, thankfully, quotes a copyright lawyer, Conrad Rippy, who explains why grand rights don’t apply here at all:
“Is it performed in a place where you generally would perform a theatrical work? Are people wearing costumes? Does it advance a narrative story line?” Mr. Rippy said. “The closer you get to answer those questions ‘Yes,’ the more it looks like that’s a grand right. A tribute band playing a Frank Zappa song in a club meets none of those tests.”
So, yeah, the whole “grand rights” claim is ridiculous — and as with so many intellectual property disputes involving the heirs of famous artists/creators, this seems to be yet another case where it’s just family members squabbling over how to divvy up the spoils, and using obscure intellectual property laws to try to advantage themselves over others. And, in the end, all it really seems to do is tarnish the legacy of those creators.