Bob Latham Bulletin

Bob Latham Bulletin Paul Simon & The Take Down Debate

As the tension between content creators and online service providers continues, and the circumstances and responsibilities for taking down infringing content on the internet are honed further, it is worth getting some perspective on the debate by harkening back to another time and another medium. In the late 1960s and early 1970s, Paul Simon unwittingly found himself at the epicenter of what would now be referred to as "take down" issues. The song "Mrs. Robinson" contains, of course, one of the cultural touchstone lyrics of the era: "Where have you gone, Joe DiMaggio?" DiMaggio's initial reaction was to complain, "I haven't gone anywhere," and demand that his lawyers take action against Simon. Cooler heads prevailed, DiMaggio and Simon later became friends, and DiMaggio realized that the line only enhanced his brand, a brand that he made a living cultivating up to his dying day.

Six years later, sans Garfunkel, Simon found himself in hot water with the Eastman Kodak company for his song "Kodachrome." In fact, Simon was in the odd situation of the song not being played over the BBC in the United Kingdom because of the BBC's policy against songs that endorsed products, and Kodak not viewing his song as an endorsement but rather as an infringement. What's a troubled folksinger to do?

Once again, a bridge was built over troubled water and Kodak eventually accepted that the song "Kodachrome" enhanced its commercial brand rather than detracting from it. Indeed, it used the song in a later ad campaign.

These lessons were perhaps brought to bear more recently when in the final season of The Sopranos, two college students did a mash-up called the "Seven Minute Sopranos" and posted it on YouTube. Rather than demand its takedown, HBO and The Sopranos creator David Chase embraced the effort, and to this day it no doubt helps maintain interest in The Sopranos.

The point of these historical examples is that even if a party may have a right to take down infringing content, is it always in its best interest to do so? While these examples may be anomalies, they can perhaps serve as inspiration for both sides of the debate to find common ground where it may exist.

— Bob Latham is a partner at Jackson Walker. He can be reached at blatham@jw.com.