David Lat runs a legal tabloid blog called Above the Law, which provides "news and gossip about the profession's most colorful personalities and powerful institutions, as well as original commentary on breaking legal developments." No stranger to notoriety in the past, he's recently become the center of attention in a humorous episode involving a leaked "celebratory anthem" created by the law firm, Nixon Peabody, when the firm made Fortune magazine's 2007 list of the best companies to work for. The song is embarrassingly bad -- As Frank Pasquale of Concurring Opinions puts it, "think 'Up With People' meets Sheena Easton meets B of A's version of U2's One." Lat himself writes:
On the musical merits, the song itself is just as horrific as the idea of a law firm theme song. Yes, we miss the eighties, but not this much. The lyrics include such gems as "Everyone's a winner at Nixon Peabody" (the chorus) and "It's all about the team, it's all about respect, it all revolves around integri-tee yeah." . . . Check it out for yourself below. But we're warning you: even though the Nixon Peabody anthem is dreadful, it's as catchy as HPV. If that "everyone's a winner" chorus gets stuck in your head for the rest of today, don't blame us.
According to the New York Times, Lat received the song from unidentified sources on Wednesday night and posted the song on YouTube Thursday morning. On his website, Lat linked to the YouTube video, mocked the song (see above), and contacted Nixon Peabody via email for comment.
Well,comment they did. Two firm spokespersons contacted Lat, asking him to identify his sources and demanding that he take the song down. The firm claimed that Lat's use infringed its copyright in the song, that the song was meant for internal use only, and (oddly) that the song was not a "theme" song. (Apparently, it is against New Jersey rules of professional conduct for lawyers to advertise themselves with music.) Lat refused to remove the posting, arguing that it was fair use.
Nixon Peabody then sent a DMCA takedown notice to YouTube, which blocked access to the song. Never fear -- Lat had already posted the song to his website in MP3 format. Now the song (and Lat's story) is circulating the blogosphere. Apparently, Lat has not received a cease-and-desist letter yet.
One clever video editor, someone going by the moniker "ChurchHatesTucker," created an ingenious clip using the about a minute of the song to further mock the law firm for messing with Lat. As Blawg Review writes in regard to the clip, "It"s Not Just Fair Use -- It's parody now, baby!"
Now, fair use is a notoriously hard determination to make ahead of time (i.e, before a court rules on it). Lat's posting of the entire song puts his fair use argument on somewhat shaky ground -- courts pay a lot of attention to whether you use only that amount of copyrighted material necessary to make your commentary, criticism, parody (or whatever) work. (This same point puts ChurchHatesTucker's clip on sounder footing.)
That said, David Lat's no dummy. I worked with him at Wachtell, Lipton, Rosen & Katz, and he was an Assistant United States Attorney, AND he worked at Wonkette. I can't say that he's wrong that you simply have to hear the whole song in order to fully appreciate his commentary and criticism. And, even if if Lat's use might not be fair in many circumstances, he might be able to argue that he's providing the raw material for other patently fair uses, like ChurchHatesTucker's. Without someone to post the whole thing, a host of potential fair users would be denied access to this "internal use only" song. Granted, courts don't usually like these communitarian-flavored kinds of arguments, but maybe if the court could just hear how ridiculous that
theme song really is . . .