Where Worlds Collide

Photo by Zack Sheppard

The feuds and legal shenanigans in the Zappa family is profoundly depressing. For a decade, Frank Zappa’s eldest son Dweezil has been touring as Zappa Plays Zappa, playing the late Frank Zappa’s music with a crack ensemble of younger musicians. Now it’s revealed that not only has he been forced to pay his own family exorbitant licence fees to do this, but he’s now been forced to drop the name “Zappa Plays Zappa” over copyright reasons by the Zappa Family Trust, the trustees of whom are his younger siblings Ahmet and Diva.

As this Techdirt article points out, there’s a dispute about so-called “grand rights”, and one suspects the reason Dweezil Zappa paid up was that he didn’t want to sue his own mother in court.

….anyone can cover another artist’s song. If you’re doing a recording, you just need to pay compulsory mechanical licenses, but if you’re just performing it live, it’s covered via the venue’s blanket performance licenses with ASCAP or BMI (with Frank Zappa, it’s ASCAP). Except… the Zappa family wants the world to believe that the law there does not apply to them. Rather, they’re playing fast and loose with some tricky definitions. Section 115 of the Copyright Act is about how the compulsory licensing works, and it has an adjective that the Zappas are trying to turn into a loophole:

In the case of nondramatic musical works, the exclusive rights provided by clauses (1) and (3) of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section.

“Nondramatic.” Historically, this has been interpreted by many in the copyright space (perhaps reasonably) to say that compulsory licensing a la ASCAP or BMI can’t be used for putting on a musical. Instead, for a musical, you do need to negotiate directly with the composers/publishing rights holders. A somewhat murky area of copyright law has grown up around this which is sometimes referred to as “grand rights,” despite no such phrase appearing anywhere in the actual law, and that has resulted in some amount of confusion.

The only sort of rock tribute acts I can conceivable imagine needing such “grand rights” would be someone wanting to reproduce something like Pink Floyd’s “The Wall” or Genesis’ “The Lamb” with a stage production approaching that of  the original performances.  Zappa Plays Zappa do not do this; all they do is perform the music, and they do so more in the spirit of the original than a reverential pastiche.

This is the sort of thing that leaves you thinking that the “Estates” of dead creators are little more than grubby rent-seeking parasites, and brings into question the validity of copyright terms lasting for decades after the deaths of the creators. The purpose of copyright is to reward the act of creation. A revenue stream serving as a pension for a living artist is one thing, but what exactly is the moral argument for giving the adult children and grandchildren a near-perpetual unearned income for something they had no part in creating? We all know that copyright terms are continually being extended because the Disney corporation keeps buying lawmakers in order to protect a handful of cash cows regardless of the collateral damage to wider culture. But that doesn’t make it right.

The irony is that it’s Dweezil Zappa who’s the one actively adding value to his father’s music by performing it live and keeping interest in it alive. And he’s the one being harassed by lawyers over it. But it’s the nature of rent-seekers to demand a piece of someone else’s labour.