COPYFIGHT
How the player piano saved a Hollywood band from Disney lawyers
By Will Swaim
You hear the Faded, and you think power pop – lead singer Gene Blalock says his influences include the Smiths and the Cure, but I’d say Styx. Then you hear the Hollywood band’s cover of the song “Breaking Free,” which you might recognize from Disney’s High School Musical if you were a 10-year-old girl, and you can’t help but wonder if the band worries about the notoriety that attends such an odd artistic choice.
Not really, it turns out. A year ago, Blalock says, Skunk-Ape Records, an Orange County label, asked the Faded to contribute to a compilation album coinciding with last October’s release of High School Musical 3.
“I was like, ‘Never heard of it,’” Blalock says. “I couldn’t name one song.”
In case you can’t either, Disney’s made-for-TV original is something like a Jane Austen novel set in a typical American high school. Two teenagers are brought together by love, and then torn asunder by all the centrifugal forces of Teen America (Freudian sexuality, pop-cult bitchiness, family-of-origin expectations, status-anxiety, the intense need to belong to something bigger than the petty Self) and then rejoined again (this time by something more than fleeting attraction: fate, maybe). All of this unfolds against a soundtrack of upbeat pop music, including “Breaking Free,” a song that expresses, you know, the immediate post-pubescent anxiety of self-actualization in the face of the three P’s (parents/pedagogy/peer authority). It’s classic, really, but exceptional in a few ways – not the least of which was that High School Musical was a massive hit that made the film’s young stars (including Zac Efron and Vanessa Anne Hudgens as the lovers, Ashley Tisdale as the soft-core spoiler) far more starry. Not to mention the ancillaries – soundtracks, karaoke versions, DVDs, actual high school reproductions of High School Musical, and two sequels.
When the Faded looked into it, they agreed that maybe joining the HSM parade could be a good thing. Pissing off fans wasn’t a concern. “Some of our fans do tend to be younger,” Blalock says, “and we figured this would appeal to them. So we said, ‘Let’s see if we can do something not campy or cheesy – something that would really seem our own, as if we’d written it.’”
Thus the band began the trudge down two roads, the creative and the legal. The former would prove easier. They played the song – originally a kind of piano duet sung by swooning Efron and Hudgens – played it over and over until what came out was something tougher. Well, as tough as you can get when you start with such Hallmarkian lyrics as:
We’re soarin’, flyin’
There’s not a star in heaven
That we can’t reach.
But soon Skunk-Ape ran into legal challenges. In April, press releases promised that the label’s High School Musical Goes Punk would capitalize on the “ultra-successful” Disney franchise. Scheduled release date: June 2008. But in October there was still no deal, even as High School Musical 3: Senior Year was packing movie theaters with gummi bear-smelling kids.
“The goal was the movie comes out, the music’s hot,” Blalock says. “That’s exactly what Disney didn’t want.”
Neither Skunk-Ape nor Disney responded to interview requests, but Blalock says Disney was concerned about linking its moneymaker to a band whose two album covers (Scream and Three Lost Days) feature near-naked goth chicks.
“Disney’s lawyers told us that if they didn’t have to license it, they wouldn’t,” Blalock says.
But it turns out that Disney can’t stop the Faded – or anyone – from recording its music. And that discovery – that you don’t own what you create, or at least not completely – is what transforms our story about a band that promotes itself as “the New Darlings of the Sunset Strip” into a legal-history lesson.
“It’s called compulsory licensing,” says attorney A.J. Thomas, a copyright expert at Davis Wright Tremaine in L.A., and to understand it you have to go back 100 years to 1909. Back then our forefathers and -mothers, already wigging out about monopoly control of the economy (in banking, heavy industry, and railroads, for example) suddenly became obsessed with a monopoly in music. The Aeolian player piano company had locked up a big part of the entertainment business by signing exclusive deals with publishers of sheet music. Publishers bought music from composers, sold it to Aeolian, and Aeolian reproduced it on perforated paper that scrolled through player pianos in saloons and living rooms around the nation. “If you wanted to hear ‘Melancholy Baby,’ you had to buy Aeolian,” writes copyright expert William Patry.
This was almost 20 years after the Sherman Anti-Trust Act, so Americans turned naturally to the federal government for help in busting up the Aeolian music cartel. Congress responded with the Copyright Act of 1909, which, despite some modifications for newer technologies, still allows artists to reproduce music authored by someone else. According to the law, Faded and Skunk-Ape don’t need Disney’s permission at all, so long as they pay the standard rate under the Act: 9.1 cents per sale of its version of “Breaking Free.”
Does Disney have any rights under the law? Just a narrow one, says Thomas, “where the original copyright holder objects to the manner in which song is being used.”
Disney did object, not just to the way in which the song would be performed, but to the packaging: the original soundtrack art included the main characters leaping for joy in front of a theatrical-looking red velvet curtain; Skunk-Ape’s version would employ punk rock kids jumping for something like joy in front of a similar curtain. Disney dissented; the label relented on the matter of the packaging. “We didn’t want a battle with an army of lawyers,” Blalock says.
Disney is notoriously aggressive in its legal efforts to limit use of its characters – so aggressive that it has generated a backlash movement called “copyfight” in which one battle cry is “Free the Mouse!”
Despite that, Skunk-Ape may have won a legal battle with Disney. Thomas says they can thank 2 Live Crew – the artists behind “Throw the Dick,” “We Want Some Pussy,” “Me So Horny” and “The Fuck Shop.” In the 1994 case Campbell v. Acuff-Rose Music Inc., the Supreme Court accepted the Miami-based rappers’ claim that their version of Roy Orbison’s “Oh, Pretty Woman” was a parody and therefore covered by the Copyright Act’s fair-use provisions. The group was free to use the song without permission from the copyright owner. In what may be the weirdest praise ever rendered 2 Live Crew, Justice David Souter cited England’s Lord Ellenborough to defend the rappers’ right to monkey with Orbison’s work: “While I shall think myself bound to secure every man in the enjoyment of his copy-right, one must not put manacles upon science.”
But in re: “Breaking Free,” the Faded aren’t claiming parody – and certainly not science – just pure commerce with this hint of more noble purpose: “The original song is beautiful and sweet – there’s absolutely nothing wrong with it,” Blalock told his publicist for an April press release. “But I think the message of the song – being yourself and breaking free from others’ expectations and demands – gets lost on a wider audience who only hear this pretty duet. Reworking the song makes the message more accessible.”
The warring parties later settled on an undisclosed licensing arrangement, but the foundation of music copyright seems settled: if Skunk-Ape had claimed parodic intent, they might have been in stores last October, and stacking paper down in OC. Instead, Blalock says, talks dragged on, and the band missed the crucial movie release. Their single has since been relegated to sales online and in Hot Topic stores.
The Faded plays Sat. at House of Blues Sunset Strip, 8430 Sunset Blvd., West Hollywood. 8 p.m. $10. 18+. (323) 848-5100. hob.com.
Published: 01/28/2009
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