The Volokh Conspiracy - Law Firms, the Blogosphere, and Unexpected Attention:

[Orin Kerr, August 23, 2007 at 11:31pm] Trackbacks

Law Firms, the Blogosphere, and Unexpected Attention:

So imagine you're a partner at a large law firm, and a high-profile blogger gets a copy of an incredibly cheesy song your marketing department put together to celebrate the firm at an internal law firm event. The blogger posts a copy of the song on YouTube and it becomes a hit immediately, drawing 10,000 listens in 12 hours.

How should you respond? Should you: (a) assert your legal rights and demand that the copies of the song be taken down, or, (b) laugh along with it and bask in the fact that thousands of lawyers and law students can't get the phrase "everyone's a winner at [your firm]" out of their minds?

Brooks Lyman (mail):

If a firm - law or whatever - would get upset that such a song or other bit of fun got loose, maybe it's not such a fun place to work after all.

Then there's the public schools with their zero-tolerance policies on any mention or representation of a weapon (never mind the real thing). I'd sure hate to be a kid today....

8.24.2007 12:49am

BeachBumBill (mail):

You know, I think that you should have two polls up; One to ask what they should do and another that asks what will they do.

BBB

8.24.2007 12:58am

The Divagator (mail) (www):

That probably cost the firm, oh I don't know, $50,000 to produce (and another 20K for some moron to tell them what should be in the song). I invite Volokheads with any musical talent to come up with Dylanesque and hiphop versions of this song. Come on, Eugene, give 'em a tee shirt!

8.24.2007 2:06am

JB:

We need a Volokh Conspiracy song.

8.24.2007 2:37am

Siona Sthrunch (mail):

Since the song appears to have been posted without permission, its publishing on the web is a clearcut violation of the copyright of the song's authors. By linking to the infringing website, Kerr is contributorily infringing the copyright.

I don't expect Volokh to delete Kerr's post, nor do I expect Kerr to redact voluntarily his post. I am curious though as to what their rationalizations are. Don't Volokh and Kerr understand that the rights of the song's authors are violated by its reposting? Why are they thus compounding the rights violation by inducing this blog's readers to replay the song?

(Of course, I know that lawyers can make an argument - I'm just curious what that argument actually will be.)

8.24.2007 3:02am

Kovarsky (mail):

Siona,

The argument is fair use.

I think that Orin's pretty safe on the fair use front. He's reporting on another story reporting on the song, and he put the link up to the report (not to the song). I am obviously aware that linking to the website that contains a link to the song can create secondary infringement liability, but not here. Above the Law is a little closer to the line, but still pretty safe. Nobody's downloading the song in lieu of purchasing it.

8.24.2007 3:19am

Kovarsky (mail):

Onion Headline:

Area Law Firm's Taste in Music Sucks.

8.24.2007 3:20am

OrinKerr:

Siona,

Does linking to a discussion of the issue but not the infringing material itself constitute "material contribution" to infringement? I wouldn't think so.

8.24.2007 3:28am

Cornellian (mail):

Since the song appears to have been posted without permission, its publishing on the web is a clearcut violation of the copyright of the song's authors.

Stop drinking the RIAA Kool-Aid, it's fair use.

And boy am I glad I don't work at Nixon Peabody. That song makes it seem like a place run by Dilbert's pointy haired boss.

8.24.2007 3:42am

Timon (mail):

The 7% who answered incorrectly may be unaccustomed to learning legal terms from non-lawyer commenters but the technical term for this is The Streisand Effect , named for a lawsuit on behalf of Barbra to take down an extremely obscure photo that included part of her house, vaulting it into internet immortality. (the herostratusphere?)

8.24.2007 4:25am

David4 (mail):

Since the song appears to have been posted without permission, its publishing on the web is a clearcut violation of the copyright of the song's authors.

I think the song is 99% probably authored as a work-for-hire, so it's really NP's copyright. It's hard to believe something so hilarious could have been commissioned with a straight face though.

8.24.2007 4:54am

David Chesler (mail) (www):

That was scary.

The ugliest tie I own has the corporate logo of my first employer, the immediately-pre-UNiSYS Sperry Corporation. (That's saying a lot, but the corporate color was excrement brown.) We actually had a company store, and I actually paid for it, but it was with a sense of irony, and I don't think I've ever worn the tie. I've never worked for an employer with a theme song. I want one.

8.24.2007 6:39am

rbj:

Once something's out on the internet it is there forever. At this point the firm should just swallow the copyright issue. Or grant youtube a copyright usage for free -- with a disclaimer that no one else can host the song.

8.24.2007 9:02am

Bill Sommerfeld (www):

I only listened to the first 30 seconds before I had to stop it, but I think we've got a candidate for the theme song for "Lawyers Gone Wild"

8.24.2007 9:50am

John (mail):

It's sounds like the same tune as the Pokemon theme song.

8.24.2007 9:52am

Strick:

A song written for the consulting/accounting firm I worked for was the darling of the internet back at the end of the 90s. Other than wonder how much someone paid for 4 minutes 37 seconds of the most insipid music ever conceived (and why that money didn't go to my bonus), it was a good laugh.

Clearly a case of where fighting the situation will only make things worse and increase the unwanted publicity. Accept the 15 minutes of fame graciously, it'll be over soon enough.

8.24.2007 10:08am

markm (mail):

It depends on whether you believe the old ad-man's adage that any publicity is free advertising - because by demanding that it be taken down, you ensure much, much wider publicity and that there will be more sites mirroring the video than one law firm could ever track down.

As I understand present copyright law, someone automatically has copyright in anything like this. If the law firm paid for writing the song, they own the copyright as a work for hire, otherwise it's the writer. I very much doubt that either of them authorized posting the song. However, that right is unenforceable in practice.

As for linking to the site, I see no difference between that and citing a copyrighted work in a footnote. And linking to a news report about the You-Tube video? I sincerely hope Siona isn't practicing copyright law in a state with a SLAPP statute...

8.24.2007 10:11am

Grant Gould (mail):

Remember, folks, copyright is necessary in our system to provide an incentive creators to continue to create more works. If we don't respect the copyright of this song, why, they might not make as many songs like that! A tragedy if I ever heard one.

8.24.2007 10:47am

Houston Lawyer:

Just try listening to that song and not thinking about the Star Wars bar scene. I have ensured that management of my firm was copied with a link to the song so that we can commission our own.

8.24.2007 12:20pm

fennel:

The gold standard in crappery is still "One Bank" by Bank of America. See here:

http://www.youtube.com/watch?v=0qAuqq1LFnU

8.24.2007 12:40pm

Antinome (www):

It seems to me that either the hypothetical partner is unaware of how cheesy the song is and is proud to have it his firm's song heard by others (which makes it really funny) or the partner was in on the joke/cheesiness from the outset and is laughing with everyone else.

8.24.2007 1:04pm

bellisaurius (mail):

Oh, god. I'd be embarrassed. It's like when you get caught jamming out to the tune of Karma Chameleon in the car.

I liked above the law's response to Peabody's request to find out who gave it to them: We'll only reveal our sources if you subpoena us, and even then, it might be good for <i>our</i> popularity to do some jail time for it.

8.24.2007 1:29pm

Smokey:

YouTube is changing everything. This is someone with nothing but a karaoke machine and a camera.

And this performance has heavenly music fit for a queen!

8.24.2007 1:48pm

Roger Sweeny (mail):

I like it (love the horns). But it's more fun to listen along with the words.

Everyone’s a winner at Nixon Peabody.
Oh
Whooo!
Aye
Yeah, yeah, yeaah
Oh
Hey
Ooh, ooh, yeah

It’s all about the team.
It’s all about respect.
It all revolves about integrity.
We strive for excellence.
We strive for satisfaction.
There’s no confusion, no uncertainty.

The best to work with.
The best to work for.
That’s all it ever, every want ‘o be.
We’re not just talkin’. (No)
There’s no disputin’.
The folks at Fortune magazine agree.

Everyone’s a winner at Nixon Peabody.
(Everyone’s a winner. Oh yeah. Hey hey.)
Workin’ together, we’re an awesome family.
(All right. All right.)
The word is out. We’re a happenin’ place to be.
(We’re a happenin’ place. Oooh yeah.)
Everyone’s a winner at Nixon Peabody.

We got the benefits.
We got the too.
We’re creative and we have a good time.
We work to keep it fun.
We work to keep it cool.
That’s how our whole team spirit thrives.

The best to work with.
The best to work for.
That’s all we ever, ever want to be.
We’re not just talkin’.
There’s no disputin’.
The folks at Fortune magazine agree.

Everyone’s a winner at Nixon Peabody.
(All right, all right, aye aye)
Pullin’ for each other and unity.
(Aw-aw right)
Everyone’s a winner at Nixon Peabody.
(Don’t you know? Everyone’s a winner.)
Everyone’s a winner at Nixon Peabody.

Oh!
Everyone’s a winner.
Workin’ together.
Hey. Here we go.

Everyone’s a winner at Nixon Peabody.
(You’re a winner now.)
Workin’ together, we’re an awesome family.
(Oh, yeah.
The word is out. We’re a happenin’ place to be.
(Whoa-ho whoa-ho whoa ho)
Everyone’s a winner at Nixon Peabody.
(We’re a winner.)
Everyone’s a winner at Nixon Peabody.
(Don’t you know?
Pullin’ for each other and our community.
Everyone’s a winner at Nixon Peabody.
(The best to work with.
The best to work for.
We’re all winners.)
Everyone’s a winner at Nixon Peabody.
(All right!)

8.24.2007 2:02pm

Roger Sweeny (mail):

It doesn't sound anything like the Pokemon theme, at least not the first (which I also like a lot). That's from 0:06 to 1:06 here.

http://youtube.com/watch?v=c9DKBbDsKvo&mode=related&search=

8.24.2007 2:12pm

Bruce:

This is one instance where legal rights don't translate into best strategy. If making videos was Nixon Peabody's bread and butter, I'd say absolutely sue away. But it's not, and so doesn't seem worth the candle, except to prevent possible embarrassment. But on that front, it would seem cheaper and far more effective to turn it into a recruiting plus by admitting a sense of humor ("Are you fellows musicians? No ma'am, we're lawyers.").

8.24.2007 2:27pm

Waldensian (mail):

My firm has just finished it's own promotional music video, publicizing our new slogan -- We're Outta Sight!

8.24.2007 2:37pm

abb3w:

Strick: Clearly a case of where fighting the situation will only make things worse and increase the unwanted publicity. Accept the 15 minutes of fame graciously, it'll be over soon enough.

...because the reaction of the Internet Permanent Floating Riot to any tactless legal action can be easily predicted: a sewage wave of songs insulting the ethics, humor, appearance, and competence of the law firm (and probably small domestic animals in their vicinity). These days, not only does the internet treat censorship as damage and attempt to route around it, but internet denizens tend to treat hostile censors as attackers — and counter-attack.

Fifteen minutes of fame with 10k people, versus making headlines (possibly nationally) for yet another demonstration of the Streisand effect. Hmm... so, is their a lawyer at the firm who understands people at least as well as the law?

8.24.2007 2:51pm

Waldensian (mail):

My firm has just finished it's own promotional music video, publicizing our new slogan -- We're Outta Sight!

Ohmygoodness I used "it's" for "its." Sorry.

8.24.2007 4:18pm

ATL:

And above the law has officially linked to you now too!

8.24.2007 5:34pm

DBarnett:

New poll: Imagine you need legal representation. Do you want a law firm that (a) rolls with the punches, or (b) crushes the opposition like a bug regardless of the merits?

Now that NP has thrown down the gauntlet, they'd better wipe ATL from the face of the Earth, if they want my business.

8.24.2007 5:52pm

Steve H (mail):

I'm just trying to imagine working for a law firm that has a marketing department ...

8.24.2007 7:32pm

Strick:

Actually, all this is a good argument for never letting this like this happen, ever again.
KPMG

8.24.2007 7:54pm

Church (www):

Damn, I had never even heard of Nixon Peabody until today. Now I have a very firm opinion of them. And it's not a flattering one.

Great places to work aren't always great places to hire. The song is one example of why not. Their reaction to its leak is another.

8.25.2007 2:38am

Magic City Harvard Lawyer (www):

I have a take on the Nixon Peabody incident on my blawg here

8.26.2007 5:37am