Thank you for sharing!

Your article was successfully shared with the contacts you provided.
As a boy in the early 1960s, Frederic Silber tagged along when his father, then editor of a leading folk magazine, emceed Manhattan hootenannies or scouted music festivals for new songwriters. A few years later, Fred returned the favor; when he had an extra ticket to see Jimi Hendrix, he took his old man to the concert. Now 48, Silber is helping to introduce Hendrix and the rock ‘n’ roll pantheon to a new generation. It’s his dream job; he’s the in-house intellectual property counsel for the Experience Music Project (EMP) — the new museum of popular American music that Paul Allen built in Seattle. To get the $240 million museum ready for its grand opening in June, Silber spent two years vetting thousands of artifacts and multimedia elements. “There’s an enormous amount of content here and an enormous amount of copyrightable material here,” Silber enthuses. The debut made headlines nationwide. The museum’s high-profile backer (Allen cofounded Microsoft Corporation), extensive collection, cutting-edge technology, and outrageous architecture attracted the kind of music industry attention that Seattle hasn’t seen since the explosion of grunge in the mid-nineties. Soon after the opening, Corporate Counsel visited with Silber, EMP’s sole staff lawyer, and went on a behind-the-scenes tour of the museum’s intellectual property circuitry. Along the way, we spoke about such matters as how much deference the museum is willing to pay to the building’s superstar architect, how far a nonprofit can push “fair use,” how EMP is negotiating with the Hendrix estate over use of the late musician’s recordings and performance footage, and how the museum investigates who really has, or doesn’t have, the copyright to coveted artifacts. “This job has engaged me again not only intellectually,” says Silber, “but also as a noble cause and mission that I could embrace.” Fred Silber was born and raised on the Lower East Side of New York City in a household that often hosted music legends. Among them: Pete Seeger, who hired Silber’s father to run the folk activist organization People’s Songs and its magazine, Sing Out. A college-aged Silber coedited “The Folksinger’s Workbook” with his dad. “It was the first contract I entered into, and had I known what I know now, I wouldn’t have signed,” says Silber. After college, he worked in the copyright department of Chappell Music, a major international music publisher that represented acts from Rodgers & Hart to The Police. “The more immersed I got in copyright, the more interested I got in all the legalities,” Silber says. The company subsidized his education at Fordham Law School. After Chappell merged with Warner Music in 1988, he went with his boss to EMI Music Publishing. By 1996 Silber was ready to leave the profit-driven music industry, and his wife was eager to return to her native Seattle. So he took the job of business development manager for The Microsoft Network, the online project that soon floundered and was reorganized. A friend at the Experience Music Project told him about an opening for an intellectual property manager, and by the spring of 1998 he had the job. These days Broadway posters and postcards of Johnny Rotten and Che Guevera decorate Silber’s quarters at EMP’s offices. “I’ve had bigger titles; I’ve certainly had bigger salaries,” he says. “But I would not want to work for a company where I felt I had to take advantage of people either financially or for their music.” THE BUILDING Silber strolls the few blocks from his office to the museum. The curves of Frank Gehry’s latest masterpiece edge out from behind the Space Needle — suddenly making the futuristic landmark look tame. The museum’s shell is a jarring mix of steel shingles in silver, purple, and gold, plus smooth aluminum painted in the red and blue hues of electric guitar enamel. Wavy metal strips plated with colored glass sprout from the center like unruly guitar strings. Allen had requested the design for his museum be “swoopy” and handed Gehry a history of the guitar. Today the building’s 140,000 square feet of swollen ripples definitely evoke the outsize rhythms and theatrics of rock ‘n’ roll. One recent twenty-something visitor from Vancouver remarked that it is “just shy of an eyesore,” but gave Gehry points for originality. “Just like the music, it’s provocative and can generate controversy,” says Beth Clark of Seattle’s Foster Pepper & Shefelman, primary outside counsel for EMP and Allen’s numerous local ventures. Clark, who shepherded Gehry’s outlandish design through this mellow city’s review process, credits the architect with integrating his structure into its environs at Seattle Center, a sprawling cultural complex on the grounds of the 1962 World’s Fair. The new building belongs to EMP, which is free to use photos and images of it for promotional purposes, says Silber. Unlike most commissioned parties, architects retain the rights to their designs, the blueprints. But the final structures are open to alteration, destruction, and unauthorized pictorial representation. “Often out of courtesy to [Gehry], we would show [promotional materials] to him and get his approval,” says Silber. A gentleman’s agreement sufficed until the museum opened, and so far, architectural rights have not been a source of contention. But in July, Silber was still talking with Gehry over appropriate uses of the building’s likeness. EMP would like Gehry to develop a line of products (which Silber declined to describe) that could be sold in the gift shop. Silber promises, “We have no intention to use [Gehry's] art in a way that would be demeaning or trivial. It would be like buying a Picasso and painting a mustache on it.” SKY CHURCH Inside, the building reaches its apex at the 85-foot-high hall called Sky Church. This cavernous room is otherworldly; disco balls dangle from upside-down, gauzy parasols that billow and bob to the rock beat blasting from the rafters. One wall is covered by what EMP claims is the world’s largest indoor LED (light emitting diode) screen. On the 40-foot-high, 70-foot-wide screen, shape-shifting projections reminiscent of laser light shows and lava lamps alternate with performance footage. Above the screen, photographs of music stars nearly touch the ceiling. For these decorations, Silber negotiated bulk licensing deals with photographic agencies such as Michael Ochs Archives, Ltd., Bill Gates’ Corbis Corporation, and Getty Images, Inc.’s Archive Photos. Most of the film and video licensing work was farmed out to Diamond Time Limited, an international copyright clearance company based in New York (which provided similar services for Cleveland’s Rock and Roll Hall of Fame and Museum). “I have always felt that copyrights were commodities, and what’s important is knowing the value of a copyright in today’s marketplace,” says Diamond Time vice president Cathy Carapella, who is not an attorney but coordinated clearances with approximately 100 different vendors for the footage rolling on screens throughout the museum. As fast as Carapella and Silber worked, though, they still had stacks of film reels and videotapes to vet as the opening date loomed, and were, says Carapella, “putting deals in place right up to the eleventh hour.” While the museum’s use of film clips and recorded music had to be individually negotiated, licensing of its live renditions was more streamlined. Silber secured the rights for almost any composition to be performed under the auspices of EMP through largely annual, renewable, blanket agreements with the three major performing rights societies: American Society of Composers, Authors and Publishers (ASCAP); Broadcast Music, Inc. (BMI); and SESAC, Inc. “You never know from one minute to the next what will be performed” in the many concerts the museum hosts, explains Silber; having to get individual song licenses “would be a real burden.” Venues include the museum’s Sky Church, Liquid Lounge (a bar on-site), and JBL Theater (a 200-seat venue sponsored by JBL Professional, Harman International Industries, Incorporated’s high-end audio equipment brand). Concerts celebrating the museum’s opening were held on the Seattle Center grounds. The blockbuster lineup included Sheryl Crow, Metallica, and Patti Smith. These performers granted varying degrees of rights in separate negotiations with Silber. But Tenth Planet Productions and its staff, the company hired to package the shows for broadcast, signed away “all [their] rights in all media in perpetuity,” says Lawrence Shire of New York’s Grubman Indursky & Schindler, called in to handle the broadcast deals. “MTV and VH1 wanted to take part in [the opening concerts] as part of music history,” says Sean Johnson, vice president of law and business affairs for MTV. “There’s no way that we weren’t going to be involved.” While the VH1 portion ran unedited, MTV customized its broadcast, bracketing the performances with veejay reportage. EMP had the right to clear all content, so rough cuts were shipped east and west during six frenzied days between the performances and the networks’ premieres. “The MTV show was being edited up to the time it aired, so there wasn’t enough time to send them the final edits,” says Johnson. “That showed a certain level of trust and goodwill that both parties had.” The program will be broadcast on MTV affiliates in Europe, Latin America, Australia, and Asia, so the agreements took into account the different standards and practices of each jurisdiction. (International considerations also raised to 188 the number of trademark filings submitted in Canada, the European Union, Japan, and the United States by Lynne Graybeal — then with Foster Pepper, now with Seattle’s Perkins Coie — to protect EMP’s marks, type stylizations, and logo designs in anticipation of future traveling exhibits or foreign advertising campaigns.) THE MEG GUIDE It’s not surprising that a software pioneer would create a new way to experience one of the most static elements of the museum format: display text. EMP’s steep entrance fee ($19.95 for adults) includes the loan of a Museum Exhibit Guide, or MEG. This contraption is a hard-plastic box with a shoulder strap, headphones, and a handheld control panel that has a palm-sized screen, keypad, and sensor. Point the sensor at numbered guitar picks on the walls, and a brief narration plays in the headphones as a list of artifacts is downloaded onto the screen. Users type in the artifacts’ codes to hear music trivia, snippets of songs, or oral histories that EMP has gathered from the likes of Bo Diddley and Les Paul. While MEG segments typically run only 30�40 seconds, there are more than 1,200 of them. Silber has been plowing through this mass of material for months to ensure that each clip qualifies for “fair use.” He estimates that 99 percent of them do. The handbook Silber gives to EMP employees states, “There is little case law on fair use in museums. As a nonprofit, educational institution, EMP will … assume an aggressive posture as to fair use in a museum setting.” The five-year-old Rock and Roll Hall of Fame and Museum takes a more conservative stance. “We don’t run into a lot of fair use judgment calls,” says vice president and general counsel Carmen Adams. “It’s just been our policy to get the license.” But Adams notes that, unlike Allen’s pricey collection, the items displayed at the Cleveland nonprofit are generally loaned or donated with caveats restricting reproduction. While EMP owns most of its artifacts, it does not have the copyrights to audio or video materials it showcases. Silber defends the museum’s widespread excerpting with the argument that EMP doesn’t compete with the commercial interests of copyright holders. Rather, “we are like a walking advertisement for anyone who owns music.” He notes that visitors can “bookmark” intriguing items on their MEGs to pick up additional information from the Virtual Library on-site (or the Digital Collection online at http://www.emplive.com/). They also can buy music in the gift shop on their way out. “The museum starts off as an educational experience,” says Silber, “but then it can be expounded and transformed to really benefit the artists.” And EMP, of course. ARTIST’S JOURNEY Silber takes advantage of a lunchtime lull in the usually long lines for the Artist’s Journey. “We call it a ride, but it’s a whole insight into the creative process,” he says of the exhibit. Visitors walk through two rooms, each with large screens that tell the story of the artistic experience from inspiration to creation. In a third, darker chamber, they take seats on a platform that then jerks in different directions and angles, timed to the movement onscreen. The overall effect is to give passengers the sensation that they are falling through a liquid-metal rabbit hole into a latter-day Wonderland, where James Brown reunites with former collaborators such as Bootsy Collins, George Clinton, and Maceo Parker. “Because [Artist's Journey] is so entertainment-oriented, it’s harder to make a fair use argument,” says Silber. While mildly informative, this “journey,” a film produced by EMP and entitled Funk Blast, capitalizes on the stage personae of the funk music pioneers. These celebrities have authority over the commercial use of their names, voices, or images, so Silber licensed their rights of publicity. Outside counsel James Dugan worked on one of the more unusual contracts; EMP wanted to digitally manipulate James Brown’s face and pair it with the body of a more supple stand-in so that Funk Blast could re-create the musical star as a young man. ROOTS & BRANCHES At the center of the main exhibit hall, a metallic tree rises two stories high. It is covered with more than 500 used guitars, banjos, and other instruments. Forty of these continuously self-strum tinny refrains from a composition called “If VI was IV.” EMP commissioned Seattle artist Trimpin (he only uses one name) to create this sculpture, entitled “Roots & Branches.” Trimpin also composed the music. The museum owns the piece’s title and copyright. But Trimpin has certain protections under the Visual Artists Rights Act of 1990. “If someone inserted a guitar pick in between the strings, that would probably be okay,” explains Silber. “But if all of a sudden we decided to spray-paint the entire sculpture blue, that would raise serious concerns.” JIMI HENDRIX GALLERY To the right of Trimpin’s guitar tree is a gallery that houses the Jimi Hendrix memorabilia upon which the Experience Music Project was built. Allen initially planned to showcase these artifacts by devoting an entire museum to the rock icon and Seattle native. In 1992 Foster Pepper helped Allen form a nonprofit corporation. But as Allen’s collection grew — it now contains 80,000 artifacts of popular music — so did his ambitions for the project. (There are approximately 1,200 artifacts on display now, about 20 percent of which will be changed every year.) Allen had discussed his original idea with Hendrix’s father, Al Hendrix, and even helped fund the father’s multimillion-dollar suit against his former lawyer to regain control of his son’s legacy. But the Seattle attorney hired to pursue this goal, O. Yale Lewis, Jr., recalls that during that litigation the Hendrix family had a falling-out with Allen’s representatives. “There was disagreement about a lot of things, including whether it could or would be named the Jimi Hendrix Museum,” Lewis says. Allen stopped lending money to Al Hendrix (whose company is still paying it back). Allen and his sister, Jody Allen Patton, altered their plans for the museum. (Patton is now EMP’s executive director.) In 1995 Lewis reached a settlement in which Jimi Hendrix’s intellectual property reverted to his father, who established Experience Hendrix LLC to manage it. Linda Acosta, business affairs manager and attorney at Experience Hendrix, has visited EMP’s Hendrix gallery twice. “We’re really trying to basically cooperate because we admire the extent of the collection,” Acosta says. “And we wouldn’t be able to match Paul Allen’s finances to do anything of that nature.” The gallery traces Hendrix’s development through gigs with R&B greats such as Little Richard to showstopping performances at the Monterey Pop and Woodstock festivals to his sudden death at 27 years old. Long lines snake into the dark rooms where video screens illuminate Hendrix’s handwritten lyrics, his flamboyant garb, and shards of the hand-painted guitars he smashed onstage. As material items lawfully purchased, the artifacts raise few legal questions, Silber says. But the films can pose licensing dilemmas because presenters must secure synchronization rights to use both the visual footage and the music. Silber hand-delivered EMP’s documentaries to Experience Hendrix shortly before the museum opened. The family and their counsel suggested a few changes, but gave blanket permission gratis while negotiations proceeded; they are still under way. Acosta says that she and her colleagues are peeling away layers of the “very dense, MTV-ish, hectic multimedia presentations” to decide whether copyrighted material is improperly used. “They have taken a number of clips and kind of woven them together, so that creates an entirely new product,” Acosta says. “Whether the music was intended to be presented that way to begin with is a potential issue.” Even if the integrity of Hendrix’s work has been violated, however, only visual artists have been granted outright protection of their “moral rights” under U.S. law. Nevertheless, Acosta is skeptical about some of Silber’s fair use arguments. It may be excessive, she says, to use as much as 30 seconds of Hendrix’s famous “Star-Spangled Banner” for the MEGs and the documentaries. But both Silber and Acosta say that licensing of publicity rights would be required for any commercial use of Hendrix’s likeness. Silber, who gave Al Hendrix a three-hour tour on opening day, reports, “I don’t think he had any sense that his son was being exploited.” NORTHWEST PASSAGE Hendrix also gets a mention in a nearby exhibit that enshrines the region’s musical past. This tale begins with the jazz scene that developed in the late 1920s around the neighborhood now known as Pioneer Square (with Allen’s help, fast becoming Seattle’s Silicon Alley). Ray Charles’s 1949 platter “Rockin’ Chair Blues” pays tribute to the Seattle nightclub where he was discovered. Elaborate leather costumes worn by the band members of Heart and Queensr�che show the Northwest getting harder-edged in the seventies. But today’s young museum-goers gravitate toward relics from grunge groups such as Nirvana, Pearl Jam, and Soundgarden. A blowup of Time magazine’s Pearl Jam cover and Vogue magazine’s grunge-inspired fashion spread document the media frenzy. Silber considers EMP’s reproduction of the Time cover a fair use because it’s an “historical remnant of the time,” just like the enlarged Life magazine from World War II that he remembers seeing at the United States Holocaust Memorial Museum in Washington, D.C. The Vogue magazine, propped open to pictures of designer grunge, falls under a specific exemption for lawfully purchased publications. While the magazine itself provides context here, it represents a handy trick that Silber has shared with EMP curators: by displaying the actual periodical rather than a reproduction, they do not need permission from its publisher or photographer. SOUND LAB Upstairs, musicians aspiring to become the next Nirvana can jam or get some pointers in the “Sound Lab.” Individual stations and roomier “Sound Pods” feature the latest in high-tech instruction. Computer programs break down riffs and send lights pulsing along guitar frets or ivory keys to guide neophytes through the notes. On one screen, Heart’s Ann and Nancy Wilson teach harmonizing. At another exhibit, the disembodied voice of a DJ schools visitors in how to scratch records on a mounted turntable. At the gallery’s center, a large Jam-O-Drum pulsates as crowds pound on its smooth surface. The sound lab may be troublesome for its attendants, forced to reboot software that keeps crashing from overuse. But it hasn’t placed a lot of demands on Silber. Most of the exercises use only short bits of songs and so are covered by fair use, he says. Yet, a music studio masquerading as a concert hall did present a licensing dilemma that few museums are likely to confront. Enter the “On Stage” area and experience the sensory overload that rock stars experience: EMP gives visitors hot lights, smoke, and even a wall of videotaped screaming fans. This sound stage is more forgiving than the real thing, though. If the novices who are brave enough to play along on the studio’s guitar, bass, or drums flub a few chords, their instruments’ volume rises to cover their mistakes. Lyrics to the sole number, The Troggs’ “Wild Thing,” roll across a teleprompter. “How do we license that?” asked the Sound Lab technology director, Reek Havok (his stage name). “Fred came up with the idea that it would fall under a karaoke-type license.” Like other contracts that have cropped up to meet the demands of new technology, Silber says, this “special animal” is designed to cover the reprinting of lyrics as well as the song’s publishing and performance rights. Milestones MTV’s ancestor — a 1940s jukebox that shows film clips — stands just inside the entrance to the historical exhibit called “Milestones.” EMP has licensed the short films originally played on these jukeboxes from Mark Cantor’s film archive in Los Angeles. While most of this footage is in the public domain, says Silber, the company possesses hundreds of masters and thus controls access to them. “The dirty little secret of the entertainment industry is that more songs and books from the thirties until the late fifties are in the public domain than companies would like to admit,” Silber says. “Failure to renew [copyrights] in a timely manner was enough to put something in the public domain.” IP counsel James Dugan, who just left Foster Pepper for Perkins Coie, did “some good old detective work” to investigate whether dealers really had the IP rights to the items that they were offering to sell EMP. “It’s tricky because in the fifties and sixties, artists’ estates were mismanaged. Stuff would disappear from recording studios and management offices, and show up years later on the market,” says Dugan. “There’s probably some great, cool things we passed up on because it was clear that the chain of rights was unclear, so it wasn’t worth the risk.” Even though the museum is bankrolled by a billionaire, Silber has to work within a budget — although he declined to say how much that is. And so, he passes up materials that he deems too costly — or overpriced. “There were some photographers who wanted more than we were willing to spend,” says Silber. EMP commissioned a reprint of rock photographer Jim Marshall’s famous 1968 portrait of a grinning Janis Joplin lounging backstage with a bottle of Southern Comfort. Milestones’ section on rap gives a nod to the law; there’s a copy of the landmark 1991 decision finding that rap star Biz Markie had infringed when he “sampled” Gilbert O’Sullivan’s “Alone Again (Naturally).” Peering into a display case at a page from the court record, Silber reveals, “I was an expert on the losing side.” Now musical acts must pay for sampling rights. The Markie case isn’t the only reminder of Silber’s past in the Milestones gallery. Below the guitar and harmonica Bob Dylan played during his early years on the folk circuit is a 1962 issue of his father’s magazine, Sing Out. Looking at Dylan’s boyish face on the cover, Silber recalls meeting the singer after a hootenanny his dad hosted at Carnegie Hall. Silber’s personal collection of more than 20,000 albums occasionally yields a gem for curators at the Experience Music Project. But he isn’t worried about being slapped with a copyright infringement suit for reproducing a record cover. Like any good lawyer, he has found a loophole — an exemption for useful articles. Silber’s premise: an album cover serves a utilitarian purpose, to physically protect the record. “If I can’t find a [fair] use under one theory, I keep looking until I can develop my own theory,” says Silber. “The point at which you run out of theories, that’s when you begin licensing.” “That’s a silly argument,” says Ross Charap, the former vice president of legal affairs for ASCAP who now practices at New York’s Darby & Darby. “The cardboard is not copyrightable, but the art on top of it is 100 percent copyrightable. No question. … He’s stretching there,” really going out on a limb, says Charap, adding, in mock despair, “Come back to us, Fred!”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.