Parody in jeopardy

The members of Milwaukee's Beatallica had hoped legal action against their Beatles/Metallica parody band would never take form. They prepared for its possibility, but like the Metallica song goes, they wanted it to forever remain the thing that should not be.

Things changed Feb. 17 for the band when its Internet Service Provider, ThePlanet.com, received a cease-and-desist order from Sony/ATV Music Publishing.

In the order, Sony/ATV — which owns the rights to most Beatles songs — demanded the ISP remove much of www.beatallica.org and www.beatallica.com. The order accused the band's site of "willful copyright infringement" while claiming the site's content was causing "substantial and irreparable damage" to Sony/ATV and the Beatles.

Beatallica singer and guitarist Jaymz Lennfield said the order did not surprise the band, which performs songs with titles like "Leper Madonna" and "I Wanna Choke Your Band."

"We kind of thought this was going to come to pass sometime, somewhere because we tried to cover our bases (legally)," Lennfield said. "But just because you try to cover your bases doesn't mean you can't have legal action taken against you."

On Feb. 24, beatallica.org was removed in its entirety from ThePlanet.com. Beatallica.com, which linked to the content of beatallica.org, is not on ThePlanet.com's server.

ThePlanet.com has removed the site to comply with the Digital Millennium Copyright Act of 1998, said David Dixon, Beatallica's "Webmaster of Puppets" and former temporary professor of physics at Marquette. The act is meant to prevent the misuse of copyrighted material online. Beatallica has filed a claim with ThePlanet.com refuting the accusations made by Sony/ATV, Lennfield said, but beatallica.org remains down.

Right to parody?

Beatallica has made several calls to Sony/ATV in an effort to reach a compromise prior to further legal action, Lennfield said. However, the band has been unsuccessful and is preparing for a potential lawsuit from Sony/ATV.

If the issue were to go to trial, Beatallica could find itself embroiled in a difficult-to-predict battle.

Jim Scotton, chair of Marquette's journalism department who teaches a media law course, said copyright can not be legally used without permission. He also said the line between the right to the fair use of copyrighted material and copyright infringement is difficult to define, but the U.S. court system has typically sided with makers of humorous, non-offensive parodies in cases alleging copyright infringement.

"As long as it is funny, they're more likely to say, 'This isn't hurting anybody,'" Scotton said. "The courts have said if you're making fun of something in a non-insulting way, you are protected — but it just depends."

Beatallica's music is available for free download on the Internet. The band does profit from concerts and merchandise sales. Lennfield, while not speaking specifically to the band's earnings, said Beatallica does well enough financially that Sony/ATV could benefit from a partnership.

"We have shows that we are waiting to book and music to release, and we think this would be a good thing for them," Lennfield said.

The courts could also look for "social commentary or criticism that is embedded in the material," which, if found, would legitimize Beatallica's claim to parody, said Dave Allen, associate professor of journalism at the University of Wisconsin-Milwaukee.

But where is the fine line between the social commentary found in parody and copyright infringement?

"It's hard to know that," Allen said. "The problems that all artists are going to have is that since there are no hard and fast rules, then essentially what they have to do is take Sony to court. The problem for smaller artists in these types of cases is that Sony has very deep pockets, and most artists don't have very deep pockets."

The band is hesitant to fight Sony, partially due to economic concerns, Lennfield said.

"Is it possible that it will go to court? Yes, but we don't want to 'cause we want to get on with our lives and make some tunes," he said.

Metallica's support

Beatallica may be headed before a judge without riches at their disposal. Lennfield said he, the band and Dixon are investigating their next step and proceeding cautiously.

"We just need to have a good way to go about our business right now just because obviously this is the most crucial time in the life of the band," he said.

Beatallica will continue to play live and will appear next Friday, April 1 at Vnuk's Lounge, 5036 S. Packard Ave., Cudahy.

Meanwhile, Lennfield said he hopes the band's site will be operational soon. Fans can currently visit beatallica.com to find Beatallica's bulletin board and recent interviews. The site also contains a petition with over 9,000 virtual signatures asking for Sony/ATV to retract the cease-and-desist order.

Lennfield said the outpouring of fan support has been encouraging. He's also been in close contact with Metallica drummer Lars Ulrich. Metallica has long publicly supported the four-year old Beatallica, and Lennfield said Ulrich offered to do "whatever he can" to help the band stay alive.

"He said, 'I think what you guys are doing is great," Lennfield said. "'You're not a cover band, you're not a tribute band (and) you're taking this whole creative process on in a new way that hasn't been seen before."

Lennfield said he ultimately wants Beatallica's tunes to once again be easily accessible.

"We hope that (fans) can find us because obviously the whole premise behind Beatallica was showing that a band could be viable on the Internet," Lennfield said. "When you take that away it's like you're looking for a heart. Now it's like we're looking for a heart transplant."

For those interested in joining Beatallica's e-mail list, write to beatallica@spcglobal.net.

This article appeared in The Marquette Tribune on Mar. 10 2005.