That “Xmas Jammies” video everyone loves? It’s obnoxious, exploitative and probably illegal

The Internet has fallen in love with the Holderness family’s “Xmas Jammies”—set to Will Smith’s “Miami” (a lot more on that in a bit)—family Christmas video that has gone viral. I’ve seen media reports telling me that the video puts my family’s Christmas card to shame or makes ours look lame. People think it’s absolutely adorable.

Well, you know what? My family’s plain ol’ Christmas card features my family…and I can honestly say that none of us are as lame as that uninspired, unoriginal video. Here’s the other thing…my family’s Christmas card was made to simply wish our friends and families a Merry Christmas—that’s it. The “Xmas Jammies” video was designed to go viral as a promotional tool for the communications business run by the husband and wife, Penn and Kim Holderness, called Greenroom Communications. In fact, the video is posted to the company’s YouTube channel and you will clearly see these words under the video:

Want a video like this for your family or company? Holla at us: info@visitthegreenroom.com

Which begs these questions:

Do I want my family to look completely obnoxious and better than everybody else in a video that goes viral around the world?

No thanks…I’ll pass.

Do I want a video that exploits my children and is more of a commercial for my business than an actual heartfelt family Christmas video?

Um…again, no. That seems slimy.

Finally, do I want a video that’s going to potentially get me sued by record labels, music publishers, Will Smith and The Whispers, whose 1980 hit “And the Beat Goes On” is the primary sample at the heart of “Miami”?

WHAT?! HELL, NO!

Let’s talk about this last part. Many people believe that if you simply put different lyrics to a popular song, it is considered a parody, which is traditionally considered fair use of copyrighted material. But guess what? That is not how the U.S. Supreme Court has described parody.

In a guest post for Forbes.com published in 2012, intellectual property lawyer Kenneth Liu of McLean, Va.-based Gammon & Grange discussed the legality of all the so-called parodies going around of Psy’s viral hit “Gangnam Style.” While many could be considered parody, many of the videos made in response to “Gangnam Style” were not, in fact, parodies and could have easily faced legal challenges if Psy and other rights-holders chose to go that route.

Liu cited one of the most famous cases involving a parody challenged by a copyright holder, Campbell v. Acuff-Rose Music, Inc. Back in the late 1980s, the rap group 2 Live Crew wanted to record a parody of the Roy Orbison classic, “Oh Pretty Woman.” 2 Live Crew had asked for permission to use elements of the original for the parody, but the rights-holder, Acuff-Rose Music, denied the request. However, feeling that it was protected from copyright infringement as a parody, 2 Live Crew recorded the song anyway and released it on their 1989 album, As Clean as They Wanna Be.

Acuff-Rose Music sued 2 Live Crew for copyright infringement and the legal battle went back and forth. After 2 Live Crew scored a victory in a district court decision, Acuff-Rose Music won a decision in the Court of Appeals. The case went to the U.S. Supreme Court in 1993. In early 1994, the Supreme Court reversed the Court of Appeals decision and remanded the case. However, the Court determined that 2 Live Crew’s “Pretty Woman” was a parody of “Oh Pretty Woman” and constituted fair use of copyrighted material.

In addition to determining that the 2 Live Crew song was targeted at a completely different market and that it would not substantially undermine sales of Orbison’s original, the Supreme Court said that 2 Live Crew’s version met the definition of parody. According to Liu, the “key to the Court’s decision was that 2 Live Crew transformed Orbison’s song into something new that ridiculed the original.”

More importantly, the Court pointed out the difference between parody and satire, which is generally not accepted as fair use. As Liu wrote in his 2012 Forbes.com guest post:

A parody is a work that imitates the characteristic style of another artist or his work for comic effect or ridicule…Many artists believe they are making parodies when they borrow someone else’s work to make fun of something, but they are actually only making satirical use of the other work. And it is this act of “borrowing” another work that is infringing. The Supreme Court essentially stated that borrowing another work for the purpose of satire is lazy — it avoids “the drudgery in working up something fresh.”

So let’s examine “Xmas Jammies” and see if it meets the criteria for a parody based on the words above. Well, right off the bat, the lyrics are not parodying Will Smith’s “Miami.” The Holderness family—those self-professed media experts who want to make you your own copyright-infringing viral video—simply wrote new lyrics to a copyright-protected song. Really, it’s not even satire. They simply—and lazily—”borrowed” a copyright-protected song and made it their own. And the song they “borrowed” is built upon a sample of The Whispers’ 1980 hit “And the Beat Goes On.” Will Smith received permission to use that sample for “Miami,” but someone else wanting to use that sample would have to obtain their own permission to do so. In essence, the Holderness family really needed to get all the appropriate licenses to use two different songs for “Xmas Jammies.”

Unless the Holderness family obtained the rights from Will Smith, The Whispers and—I believe—the publishing rights holders of both “Miami” and “And the Beat Goes On”—which I seriously doubt (the lack of attribution on the video’s YouTube page is telling)—the video that everyone is raving about is actually an obnoxious, far-reaching violation of copyright law. The fact that “Xmas Jammies” was published on Greenroom Communications’ YouTube channel means that this was produced simply to attract visitors to a commercial entity. There is no way that using copyrighted material in a promotional tool for business will pass a “fair use” test.

Nobody seems to have noticed any of this…yet. But I’m pretty sure as the YouTube hits keep climbing and Greenroom Communications starts profiting from the exposure, you’re going to see the rights-holders of “Miami” and “And the Beat Goes On” start filing lawsuits.

Sorry to be a grinch and I don’t mean to rain on the Holderness family’s parade, but “Xmas Jammies” shouldn’t be celebrated. In fact, it represents all that is wrong in this current climate of “affluenza” and an overinflated sense of entitlement. You can’t just steal the copyright-protected, creative work of others for what is essentially a commercial for a business and innocently play it off as your family’s video Christmas card…and then gain fame (or infamy) and have your company profit from it. You should have to play by the rules like everybody else. Just because you are able to do something with modern technology doesn’t mean you legally can.

Also, if you want to see the video, you can find it on YouTube. I’m not contributing to the insanity by linking to it.

Support 99% Invisible on Kickstarter

99% Invisible
99% Invisible

If you listen to the Technology and the Arts podcast I do with John LeMasney, then you will know that I’ve mentioned 99% Invisible, a fantastic podcast and public radio program about design and architecture hosted by Roman Mars, a few times this past season.

While season 4 of the 99% Invisible podcast has been successfully funded through Kickstarter, the fundraising effort is currently into its “stretch goal” phase. One such stretch goal comes from one of the podcast’s sponsors, MailChimp, which has put up a challenge grant of $20,000 should the podcast reach 10,000 backers on Kickstarter. As I type this, they are at 7,383 with 13 days to go.

If you are interested in stories about design and architecture told in fascinatingly interesting ways and are unfamiliar with 99% Invisible, go the podcast’s web site right now and listen to a few episodes. I am sure you will find it as entertaining and informative as I do…and if that should encourage you to help 99% Invisible reach this stretch goal, just go to the podcast’s Kickstarter page and pledge as little as $1. Just a buck and you will be counted as a backer toward the stretch goal of 10,000.

Remembering my Ensoniq ESQ-1 and early musical experiments

BK_c1990_keybdrig001It dawned on me recently that this year (most likely, back in February) marked the 25th anniversary of my first purchase of a professional synthesizer…an Ensoniq ESQ-1 workstation (the image accompanying this post was taken around 1989 and includes the ESQ-1 and some later purchases: an Ensoniq Mirage sampling keyboard, a Roland U-20 synth, a Kawai Q-80 sequencer and an Alesis HR-16 drum machine).

The track below is a very rough recording of a song that was one of the first things I created using the sounds and sequencing capability of the ESQ-1…so the sound quality is poor and the song is pretty terrible. It just represents a trip down memory lane…when I thought music would be my life and I wanted to be the next Howard Jones.

By the way, I still have the ESQ-1 and all the other equipment, too…PLUS, an Alesis QS6.1 synth that I bought about eight years ago and is my main keyboard these days. However, the ESQ-1 has been dormant since it needs a new lithium battery installed. I found a place in northern New Jersey that does this for about $90, but I haven’t gotten around to it yet. I would really love to see that thing come to life again, though.

Untitled Early ESQ-1 Song

Watch a rocket go from Virginia to the moon tonight*

The inaugural launch of a Minotaur V rocket is scheduled for tonight at 11:27 p.m. EDT. The rocket will lift off from the Mid-Atlantic Regional Spaceport at NASA’s Wallops Flight Facility on the Virginia coast and will carry the Lunar Atmosphere and Dust Environment Explorer (LADEE) mission to the moon.

The launch should be visible to many in the mid-Atlantic and northeast United States, including most of us here in New Jersey. Just look to the southeast 10-20 degrees above the horizon (central NJ should see it about 15 degrees above the horizon) one or two minutes after launch (obviously, there could be delays…or even a scrub for various reasons).

Detailed instructions on how to view the launch from your location

Follow @nasa_wallops on Twitter or follow the latest mission updates before you stake out your preferred viewing location.

*Hopefully

(Photo: NASA Wallops/Patrick Black)

 

 

Vote for “Gone Too Far” on Lafango.com

I have entered “Gone Too Far,” one of my techno-industrial songs from the mid 1990s, into the Electronica 2012 contest on Lafango.com. After listening to it in the Soundcloud player below, please feel free to vote for “Gone Too Far” at Lafango.com if you like what you hear…or if you just would like to help me out. Voting concludes at noon (ET) on Aug. 31, 2012.

This was written and originally recorded on a 4-track during my more angst-ridden days, but I have updated it for this contest by recording it with GarageBand on my MacBook.

Anyway, thanks for reading this and thank you for your support.

The things Twitter can do

A few days ago, I was looking at a recent issue of Sports Illustrated that featured photographs from a current exhibit at the Annenberg Space for Photography in Los Angeles called “SPORT: Iooss & Leifer,” looking at more than 40 years of sports photography from the two legendary SI photographers.

Now, I became familiar with Walter Iooss Jr. as a child because my dad grew up with him in East Orange, NJ, and played stickball with him. He also admitted to questioning Walter’s manliness at the time for walking around with a camera all the time. Well, that camera led to Iooss covering some of sport’s greatest icons — Michael Jordan, Joe Namath, Arnold Palmer, Jack Nicklaus — and photographing some of the world’s most beautiful women for SI’s annual swimsuit edition.

(Way to go, dad!)

Anyway, I checked out the exhibit’s web site and posted a link to it via Twitter, adding that my father played stickball with Walter in East Orange. The venue tweeted me back saying that it was “a great connection.” I then replied to ask if the video portions of the exhibit would be made available on DVD for people like me who can’t get out to L.A. for the show.

Well, today a David Scharff from the Annenberg Foundation tweeted me to say that a SPORT DVD is definitely in the works.

That’s all well and good, but when I get tweeted by somebody, I like to know more about him or her. So I usually check to see if they have a link to a web site on their Twitter profile. David didn’t, so I turned to Google.

As it turns out, David Scharff was once a songwriter and singer for a New York-based band known as The Student Teachers.

Never heard of them? Well, most people probably haven’t. But oddly enough, I have heard of them because one of their songs, “Looks” (listen below) has been covered and performed quite often by one of my favorite singer-songwriters, Mike Doughty.

And while I don’t have any personal connection to Mike Doughty (besides following him on Twitter and going to several of his shows)  or The Student Teachers, I feel a personal connection with Mike Doughty’s music. So it’s just kind of funny how my dad’s personal connection to Walter Iooss Jr. led to my having a Twitter conversation with somebody who wrote and performed an obscure song made somewhat less obscure by one of my favorite musicians.

“Looks” – The Student Teachers

Don’t want to be a pest…but I still need your vote!

BK
BK

As mentioned previously on this blog, one of my songs — “Vortex (2009)” — is up for Best Piano/Keyboard Performance on TalentTrove.com, an online talent community, with a $100 prize going to the winner of the contest.

You can help me win the contest by visiting the site to place your vote for “Vortex (2009)” (it’s the third song down from the top in the list of songs).

“Vortex (2009)” is a reworked version of a techno instrumental song I originally wrote in 1992 or so, featuring the sounds of a Roland Jupiter synthesizer I used to have. You can listen to it on the song’s TalentTrove.com media page, or you can listen to it using the embedded player below.

It is a tight race and “Vortex (2009)” is in second place as I write this. Voting ends this Sunday night (June 7), shortly before midnight.

Now, you do need to register on TalentTrove.com in order to vote, but I would greatly appreciate it if you went the extra step to support me — and my song — in this contest. Besides, you may have a talent you want to share with the world and TalentTrove.com may be the place for you to do that.

Again, if you can, please vote for “Vortex (2009)” by midnight this Sunday, June 7.

I would like to thank you in advance for your support.

And I especially would like to thank all of my family and friends, and the all of the readers of this blog who have already voted for “Vortex (2009).”