I think in my next case I will take a page from the Ellen DeGeneres show.
Judge: Is there a reason your client did not provide this crucial document during discovery?
Me: Yes, your honor. We don't roll that way.
Judge: Oh, okay. Motion for Sanctions dismissed.
On second thought, maybe not.
I just can't get my head around this. There's got to be more to the story.
For those of you who don't watch daytime television, Ellen DeGeneres is host of an eponymous television show. In my opinion she's actually quite talented and funny, though I don't watch the show except when I'm on vacation. After delivering a monologue each day, Ellen dances from her monologue stage to the interview seating area, accompanied by some hit pop song of the day.
Recording industry people realized that the Ellen DeGeneres Show was playing recordings of those songs, but had not actually paid for a license to play the songs.
So, someone from the recording industry called up the show inquiring why they hadn't bought a license and were told "We don't roll that way."
I'm having a hard time envisioning that conversation. Here's how it plays in my mind:
RI person: Hi, is this the producer of Ellen?
EDS person: yes it is.
RI person: Well we just realized you did not buy the inexpensive and easily obtainable license to play recorded performances of the songs you use each day. We own the copyrights and wonder why you didn't pay for permission to use them.
EDS person: We don't roll that way.
RI person: but . . . it's required. It's the law.
EDS person: that's whack! *click*
No, doesn't sound right, does it. All we get from The Complaint is the infamous "we don't roll that way" line.
There's another little puzzler. The Show bought licenses for the compositions, but not for the sound recordings. You see, here's a very rough idea of how it works. A composer writes a song. He or she gets someone to record it, either by contacting a musician (it's very common in country music for someone to write a song and mail it to their favorite performer) or if he/she is a musician, by renting studio time.
When that happens there's now a new work: the sound recording (or phonorecord).
The Show paid for the composition. That means they can perform the piece, just like how a Kiss cover band can play their own version of "Calling Dr. Love" but if they want to play the tape of Kiss performing it, they need a different license.
So they clearly knew they needed a license. It's a really hard thing to think someone as sophisticated as Warner Brothers, who owns the production company behind the Ellen DeGeneres Show - and who also spawned the now independent Warner Records* - would not know they needed a license. It will be fun to see how this one plays out.
*That's right, Warner Records is suing Warner Brothers Entertainment, it's momma.