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:

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”?


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 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 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.


(Photo: NASA Wallops/Patrick Black)



Vote for “Gone Too Far” on

I have entered “Gone Too Far,” one of my techno-industrial songs from the mid 1990s, into the Electronica 2012 contest on After listening to it in the Soundcloud player below, please feel free to vote for “Gone Too Far” at 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!


As mentioned previously on this blog, one of my songs — “Vortex (2009)” — is up for Best Piano/Keyboard Performance on, 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 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 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 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).”

“Vortex” is up for Best Piano/Keyboard Performance on!

Click to visit
Click to visit

As I posted yesterday, I recently learned of an online talent community called, which holds a series of talent contests among its members. The site just finished accepting submissions for Best Piano/Keyboard Performance and I managed to submit a reworked techno song from my past called “Vortex.” It’s not really what I am into these days, but of all the songs I have written and recorded over the years, “Vortex” seemed to best capture the spirit of this particular contest.

Anyway, I am happy to report that “Vortex” is indeed one of four nominees for Best Piano/Keyboard Performance on – Best Piano/Keyboard Performance Voting

I would love for my friends to support me in this endeavor, especially since the prize is $100. However, in order to vote, you need to be a member of, so there is a level of commitment involved.

But since so many of my friends are talented artists who could probably benefit from the tools provided by, such as media uploads and social networking features, I think you might wind up enjoying the site.

In any case, I really hope you enjoy the song. If you go the extra step to vote for me, I want you to know your efforts will be greatly appreciated.

And thank you to for this opportunity!

Oh, if you want to take a listen to “Vortex,” just use the embedded player below or visit the song’s page on my profile.

“Vortex (2009)” – Brian Kelley

Source: Tandem with the Random

New web site…old song (made new)

So I recently became aware of a great online community called, which I kind of think of as “Star Search 2.0.” Basically, it is one big talent search site featuring all the social networking tools you know and love (friends, messaging, forums, and — most recently — blogs).

What sets it apart from other social networking sites is that puts an emphasis on getting talented artists — spanning several disciplines (which I’ll get to later) — discovered by the rest of the community, as well as external audiences. This creates a network of friends all supporting each other’s creative endeavors. Through the daily “Stage of the Day” profile (profiles are referred to as “stages”…or a person’s “MyStage”) and the editor’s picks featured on the home page, the site promotes the talents of its own members to both the community and to external visitors.

In addition, there is Radio and TalentTrove Radio provides streaming audio of programs and music featuring the audio-based talent found on the site., meanwhile, provides channel-based navigation of the user-generated videos found on

The site also has regular contests, such as Best Comedian, Best Cover Band, Best Singer, Best Guitar Solo, Best Drum Solo, etc., which are voted on by other members of the community (more on these later).

And getting back to what kind of talent is on…well, it’s probably easier to talk about what talents are NOT featured on, because almost any kind of talent imaginable is showcased on the site. Of course, you have your musicians, bands and singers. But you also have actors, comedians, writers, dancers, culinary artists, craftspeople…just go to and click on “categories” to see for yourself.

The site can also be used by people seeking an online portfolio, as accepts uploads in the form of audio, video, photos and text (and the upload process is pretty easy). Another great feature is that it allows you to copy videos you may have already uploaded to YouTube so you don’t have to go through the trouble of uploading the same video to your profile (or stage).

While is a relatively young company, it has received some pretty strong press and it appears to be gaining a devoted following.

OK, back to the talent contests. was recently seeking submissions for a Best Piano/Keyboard Peformance contest. Now, I know I’m not that great of a keyboard player, but there was this techno thing called “Vortex” I recorded back in the early 1990s that I thought would be my best option for the contest. Even though techno really isn’t my thing anymore, I felt it best represented a full keyboard peformance. Even though all of my songs are keyboard-based, I cover a lot of the crappy playing with fake strings and stuff that take the emphasis off the actual keyboard playing.

However, the only recorded version of “Vortex” I have was done on an old 4-track cassette recorder and the song is poorly mixed with a couple of audio glitches thrown in, as well.

So I decided to try to record the song entirely from scratch using GarageBand on my MacBook. I didn’t have much time to do this either, but I managed to remember how most of it went. I didn’t necessarily need it to be an exact copy of the original. I just wanted to capture the spirit and feel of the original song while updating it a bit. Unfortunately, a lot of the sounds on the original recording came from an old Roland Jupiter synthesizer I had for a few years. However, I sold it to Christian Beach’s former keyboard player in Slave of Id and Artists That Kill. That meant I was going to have to settle for the weak sounds included with GarageBand instead of the fat, warm Jupiter sounds featured on the original. But I still think it came out pretty well, considering I was trying to reconstruct a 17-year-old song while working under a tight deadline with little time to spare.

Anyway, I submitted “Vortex” to the contest. The finalists will be revealed tomorrow (Friday, May 29) at 10 a.m., but even if it’s not among the candidates, I am glad the contest inspired me to bring another old song of mine back to life.

You can listen to the new version of “Vortex” by going to its media page on my stage, or by using the embedded player below.

Like I said, this isn’t really my kind of music anymore, but let me know what you think.

“Vortex (2009)” – Brian Kelley

Source: Tandem with the Random

What is up with Facebook?

As most people on the Interwebs know by now, social networking giant Facebook made a slight change to its terms of service (TOS) recently that had a big impact on what the site could do with your content.

As the original post on The Consumerist blog reported, the TOS states this:

You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.

The original TOS, however, included this passage at the end of the section quoted above:

You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.

Basically, Facebook’s tweaking of the TOS meant that it had rights to your content forever — even if you cancel your Facebook account!

The uproar caused by The Consumerist post eventually led Facebook to revert back to its old TOS early Wednesday morning — a temporary move by Facebook as it reviews language to create revised TOS that will address the fears and concerns of the site’s users.

However, during all this, I discovered something a bit odd while using FriendFeed, a link-sharing service that has the ability to feed content into my Facebook profile’s “wall.” During the Facebook firestorm over the past few days, I posted two articles about Facebook to my FriendFeed account.

Neither made it onto my Facebook wall.

Every other article and link I shared with FriendFeed made it onto my Facebook wall…but not the two stories I shared that were about Facebook itself. If you happen to be a friend of mine on Facebook, go to my profile and click on the FriendFeed tab. You will see all the links I shared with FriendFeed are there, including the two Facebook-related items.

But go back to my wall…and the two stories are not there. And I did not delete them, that’s for sure.

So this blog post will be another test to see if there is some kind of filtering going on over at Facebook. This blog feeds into my FriendFeed account so it should technically wind up on my Facebook wall.

If it doesn’t, I think Facebook needs to answer why this is happening…because it would look a lot like censorship to me.

And, just to be fair, I will update this post to let any readers down the road know what happened.

Stay tuned!

UPDATE…OK, so this post appeared on my Facebook wall, but there is still something troubling me about why the Facebook news links I shared via FriendFeed did not make it there.