Les Miserables en jazz Legal Fund
Mark Kramer Trio
We are very sorry that this title is not available for download or as a CD now. Mark Kramer (piano, arranger - BMI | Gary Mazzaroppi (bass) | John Mosemann (drums and percussion. )
The title "Les Miserables en Jazz" is displayed here to garner donations for our - "JAZZ is EXEMPT" litigation fund. The title of Les Mis en Jazz is currently under
We are very sorry that this title is not available for download or as a CD now. Mark Kramer (piano, arranger - BMI | Gary Mazzaroppi (bass) | John Mosemann (drums and percussion. )
The title "Les Miserables en Jazz" is displayed here to garner donations for our - "JAZZ is EXEMPT" litigation fund. The title of Les Mis en Jazz is currently under embargo by Warner-Chappell Music Publishing.
Our position is that - - as a matter of course for the entire field of creative improvised instrumental jazz - - melodies of pre-existing copyrighted works only function as the bookends (stated up front and at the end) that are required to set the central lengthy creative improvisations. The latter is the transformative purpose of the entire piece. The copyrighted melody simply constitutes the incidental setting (the bookends) for the core of the piece - the improvisation, new moods, new understandings. Taken together a recorded jazz selection almost always constitutes a transformative aesthetic that in the end just incidentally incorporates the bookends. For jazz to be practiced as a creative (transformative) art-form it must have unencumbered inarguable fair use access to pre-existing melody (copyrighted or not). The transformed selection (bookends and improvisation) in its entirety, except in extreme cases that can be easily defined, qualifies for copyright itself in terms of any subsequent presentation of the sound recording and/or sheet music transcriptions of the previously fixed performance. It is not a derivative work (an arrangement of the melody) as its primary purpose far exceeds the melody, and easily can be shown not to impact its value to the original copyright holders. The primary purpose is creation of a transformative aesthetic, and building the brand of the improviser. This principle also logically extends to copyrighted jazz melodies (e.g., Giant Steps) which serve as bookends for both new jazz recordings and live performances that contain by their very nature new improvisations that are aesthetically transformative, rarely profitable. This then also calls into question the practice of performance rights organizations that extort royalties from clubs and concert halls for anything other than playing the original recordings on their sound systems, or a performer at the venue playing note for note performance of transcriptions of an entire jazz piece (bookend melodies and integrated improvisation.)
Les Mis en Jazz had been the very first production of our Platinum Seven Studios. Recorded in the mid-90s it is included here as a historical footnote. In fact, there has had never been much demand for this title even when it had been briefly available at the www.jazzmall.com.
Yet there are some who are passionate about losing access to this title. Under threat of litigation by Warner/Chappell Publishing (presumably on behalf of producer Cameron Mackintosh and composers Messrs. Boubil and Schoenberg) we have been prevented from disseminating our jazz interpretation of 14 songs based on our alleged infringement of their copyrights on the original music.
For anyone who is interested in Title 17 copyright law, the mechanism by which it’s gray areas have adversely impacted the field of jazz, and the intimidation of small companies by large companies with legal muscle, the following is for you:
In late 2012 we noted that yet another large-scale movie version of Les Miserables would be shortly released. Our small company contacted London-based Cameron Macintosh (billed as "the most successful, and powerful theatrical producer in the world”) in hopes that he would share it with the creators Mssrs. Boubil and Schoenberg, like and respect our production enough to partner in co-distribution and promotion. Remarkably, this son-of-a-jazz-trumpet-player, instead, turned our proposal over to the legal team at Warner-Chappell publishing. The latter, headed by Nathan Osher, a son-of-a-once-prominent-entertainment-lawyer then threatened to sue us for copyright infringement. The threat was professional and informative. It laid out their position that our ~$6000 production of Les Miserables en Jazz had been a derivative work, not a cover version of 14 tunes, and that its release would require the permission (now denied) of the composers and their publisher.
There are still the outstanding legal questions under USA or international copyright law as to whether our jazz transformations of Les Misérables material are excluded from the rights of the copyright holders, require royalties to them, or can be entirely prohibited by them. The questions, which can only now be decided on a case by case basis - at huge and unreasonable expense - are whether our use of their melodies qualifies 1) for “Fair Use” 2) for compulsory licenses as cover versions, or 3) as derivative versions? If the courts found for #1 – then there would be no need to pay royalties or ask permissions of the copyright holders. If for #2 – compulsory licenses would need to be procured and royalties would need to be paid but permissions would not be necessary and could not be withheld. If for #3 – permissions and royalties would be required.
It can be seen from this simple case, that by default the public will generally be deprived to varying extents of jazz commentary or musical parody based on copyrighted standards*
Any legal precedents established for the issue at hand arguably could be generalized to a particularly common convention across the entire field of jazz: i.e., 1) creating an original introduction 2) stating an original copyrighted melody (often with liberties), followed by 3) a highly creative substituted harmonic structure for the original melodies with lengthy improvisations upon those substitutions, 4) followed by restatement of aspects of the original melody, and 5) often a closing which in itself may be an entirely new invention. In other words, the issue at hand impacts nearly the entire field of "standard song" jazz.
In terms of #1 - FAIR USE (no need to pay royalties or ask permissions) according to Title 17 definitions, arguably according to the four legal test factors, as well as the two of the international Berne Convention - Les Miserables en Jazz may qualify for “fair use.” Firstly, the work appropriates the original melodies only as a minor component of each track - and these serve only as recontextualization. This is different than producing a DERIVATIVE WORK based on the melodies. We believe that anyone truly listening to Les Misérables en jazz would conclude that it by orders of magnitude is far more transformative than derivative, or commercial. Actually, Les Mis en Jazz had already been established as commercially trivial – and this the plaintiff knew before they intimidated us into never sharing our work. Our original intent had been to demonstrate that the harmonies of a non-tin-pan-alley Broadway show could be used for transformative jazz improvisation. Of course, we would have relished that a large company like Warner would have picked up our work as a significant transformative statement for jazz by our trio. However, the meager chances of that happening could never justify our effort behind our project. Also, we think any judge/jury listening to Les Mis en jazz would immediately "get"that Les Mis en Jazz embodies and communicates something entirely different, expands the utility and entirely changes the aesthetics of Les Miserables compared with the plaintiff’s original works.
Secondly, the melodies used in the jazz version may indeed be considered by extraordinarily sophisticated listeners to be at the heart of the plaintiff’s work. However, upon quantitative analysis - the exact borrowings of melodies in terms of their syncopations, tempos, phrasings, and underlying reharmonizations – especially lacking lyrics – are trivial. When combined with the argument that - especially in instrumental jazz- the melodies are used merely to allow for contrasting commentaries of a completely unique aesthetic and of an improvised nature.
Thirdly, Les Miserables en jazz – lacking lyrics and containing a completely different aesthetic - could never significantly undermine authorized sales of say videos of the show, the movies, or cast soundtracks. We understood this so well, that we confidently approached Cameron Mackintosh with our project. In fact, we believed it would be to the benefit of all had the work been included in their bundle.
Additionally our work appears to exclude the rights of the copyright holders according to the International Berne Convention as it covers a special case . . . that does not conflict with the normal exploitation of the original work . . . and does not unreasonably prejudice the legitimate interests of the author(s).
However, the line between “fair use” and infringement has always been a thin one. We believe that most jazz producers, lacking deep legal defense funds, have to cave under legal intimidation. Even if they should believe that their procurement of compulsory mechanical licenses will protect them from litigation, Warner/Chapell advanced an argument that jazz transformations of selections from a show are derivative. We believe with all reason and all heart that their position is a miscarriage of copyright law.
The lawyers at Warner/ Chappell demanded our sales records, that we take down any streams or offerings of our work (for profit or not.) To settle the matter they even stipulated that gifting copies to friends or family had been prohibited.
The threatened litigation came at a time when 2 officers of our company (family members) had just learned of a medical catastrophe affecting one of them. Rather than perceiving the jazz "covers" of the 14 selections of Les Miserables as a creative opportunity to partner, Mackintosh-Boubil-Shoenberg and Warner-Chappell viewed our work as an intrusion on their property and a threat to their business. Their perspective persisted even after they were provided documentation that the original CD had never been formally released and that any existing interest in it by the public had been minimal at least without promotion. Had they listened carefully - as might a jury or judge - they would have understood that the musical material we took from Les Misérables had been completely transformed by adding new expression and meaning; value had been added to the original by creating new information, new aesthetics, new insights, and understandings. In fact, borrowing of melody had been minor, far from verbatim, and contained extensive improvisations and unique harmonizations that stood alone for their artistic and educational value/ merits. No lyrics were used.
Based on meager sales records from the few years it had languished on www.thejazzmall.com, the lawyers already knew our use (fair or not) would never deprive the copyright owners of income or undermine their new film market for cast recordings for the copyrighted work. That they thought so, was misguided, but also an off-handed compliment. Additionally. we had procured compulsory copyright licenses for the 14 songs we transformed, but documentation had been lost in a total office fire in 2005, and Harry Fox agency had no record of the transactions. In the end, it did not matter that we made that purchase.
If you are both a lawyer and jazz fan or musician reading this, please feel free to contact us.
- The intent in jazz is not to make fun of the original melody, but rather to use it as a reference point for the ensuing improvisations, in other words as musical parody (in the original meaning of the term, not burlesque) for the amusement and instruction of sensible and polished minds.” (see Parody." The Encyclopedia of Diderot & d'Alembert Collaborative Translation Project. Translated by Colt Brazill Segrest. Ann Arbor: Michigan Publishing, University of Michigan Library, 2007. Web. [10/29/17 accessed on the Web.) http://hdl.handle.net/2027/spo.did2222.0000.811.
Thanks for reading!
Expected release: October 31, 2021
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