Gene's next monthly chat is Tuesday, August 26 at noon. You may submit questions here.
Although this weekly edition provides an update between live chats, it is not and never will be a "blog," even though many persons keep making that mistake. One reason for the confusion is the Underpants Paradox: Blogs, like underpants, contain "threads," whereas this chat contains no "threads" but, like underpants, does sometimes get funky and inexcusable.
Today, we explain the creation of a single comic strip – Sunday’s Barney & Clyde – and the unusual history behind it. It’s an interesting lesson in the value of creative desperation.
The idea for the strip came from Horace LaBadie, our not-so-secret, more-than-occasional ghost collaborator. (How many of you have noticed Horace’s name has been added to the teeny scribbled copyright statement between panels? Anyone? Well see if you can find it here. )
Anyway, Horace sent us a script, and we liked it, made some small changes in wording, and David Clark drew it up. It was a surreal meeting between Barney and Clyde, in the park. Barney asks Clyde if he ever wished he were someone else, and Clyde breaks into song. Imitating Sinatra, he performs the most recognizable, corny stanza to "That's Life," the puppet, poet, pirate lines. You can read 'em here. In the end, for the "That's Life!" line, he is joined by other homeless men as the chorus. They end, everything goes back to normal, and Barney declares that what just happened was just plain weird. Clyde defends himself by noting this was "Fair Use" of song lyrics. We knew it wasn't a great end, but this was mostly sight gag. We sent the strip to the Wapo Writers Group, which is the syndicate that distributes it.
On deadline, the strip’s editor, Amy Lago, called. We had a legal problem, she said.
The Fair Use doctrine says that under certain circumstances, it is okay to quote from a copyrighted work without obtaining permission or paying a fee. The accompanying rules and regs are particularly nebulous, and open to interpretation. One problem here is that we were proposing using a pretty big chunk of the song "That's Life," and perhaps its most recognizable riff, as sung by Sinatra. But the second problem was worse, Amy said.
We had inadvertently picked the worst possible song to cull lyrics from. Dean Kay, the songwriter, is described this way in his Wikipedia biography: “Dean Kay is an entertainer, recording artist, songwriter, music publishing executive, mentor, innovator, speaker AND DEFENDER OF CREATOR’S RIGHTS." (panicky emphasis added.) He has a blog that is in some measures about the humongous importance of protecting your intellectual property rights at all costs and fighting to the death any efforts to infringe on it.
In short, our lawyers felt we could not take this risk without specific permission from Kay. We were right on deadline, so we killed the strip for the time being.
Weeks passed. Eventually, I talked to Kay, explained our situation. He couldn’t have been more pleasant , but, he said, his hands were tied. The copyright was being protected by a separate copyright-protection company, The Hal Leonard Corp., and they had Procedures To Follow, and Fees To Assess. They are a big business enterprise that doesn’t make exceptions. He said if it were up to him he’d give it to us for free; but he hoped something could be worked out with Hal Leonard. Oh, and he asked for the signed original, if this ever got printed.
So we went to The Hal Leonard Corporation’s website, which had a page to use for licensing requests. The first thing that leaped out at us was that it could take as many as 6 weeks to get an answer. The second was that the process for applying for licensing seemed odious and endless; you had to fill out an elaborate questionnaire merely to be considered for membership in the Hal Leonard website, after which you would maybe have standing to grovel for permission to use a few words of a song, which might or might not be awarded to you after you pay a fee they will tell you about only after completing everything else, and which sounded like it would be a lot.
Now, I believe in intellectual property rights (though I made no complaints about this, when I probably could have cashed in a bit). But, really, in this case, we were doing no more than paying homage to the song; we were not claiming it was ours, or holding it up to a bad light. Still, rules were rules, risks were risks, and lawyers were being lawyers. And, to be fair, we WERE using something of intrinsic value: These are excellent lyrics. So we killed the strip.
But it kept gnawing at me. And then I had an idea.
Tried it on Amy. She liked it.
What resulted became one of our favorite strips, and suddenly, the end made much greater sense. And we showed total transparency. Here is the strip as it appeared Sunday. Yes, this is entirely protected, as parody.
I am hoping Dean Kay still wants the signed original. I'll tell him he can have it, after submitting some paperwork, for a fee to be negotiated over 6 weeks.
No, he gets it for free. Because I'm just that kind of guy.