Licensing status of The Elements by Tom Lerher
This page has been created to provide evidence that Tom Lehrer (the performer and rights-holder in the song The Elements published in 1959) granted an explicit, written and signed license to myself (Theodore Gray, DBA Element Collection) for the use of the song in an iPad App and associated promotional materials including YouTube videos.
It further provides evidence that SME/CBS are mistaken in their assertion that they control the rights to this song, or have the authority to issue copyright notices against it. The evidence points to this not being the case. (My speculation is that their placing it in their ContentID claims database is a simple, understandable clerical error. But an error nonetheless.)
1: The License
In early 2010 I had a verbal and email exchange with Tom Lehrer in which he expressed willingness for me to use The Elements in an iPad App I was creating. No formal license was signed at that time, but there was an exchange of consideration. (An iPad in exchange for use of the song.)
The below written license was created at the request of Apple Computer and signed by Tom Lehrer on March 23, 2010. Apple requested the execution of this more formal license because they intended to use clips of the song when featuring my App in a television commercial for the iPad. This required me to be able to grant them the right to use the song not only in the App itself, but also in commercial advertising promoting the App and Apple products. This in turn required me to have permission from Tom Lehrer to be able to extend those rights to Apple, and to be able to prove to Apple that I had that right.
This license letter was reviewed and approved by Apple lawyers, and executed by Tom Lehrer. On the basis of this license, my App has made multiple appearances in Apple advertising online, in print, and on television. (Though, to my knowledge, the song did not in fact make the final cut in any of those uses by Apple, which ended up featuring other parts of my App that did not use the song.)
I believe that this license is clearly intended to grant me the right to use the song very broadly in associating with my App, and all my uses of the song on YouTube are for that purpose.
2: SME/CBS do not control the rights to this song.
Tom Lehrer wrote and performed The Elements first in 1959. I have engaged in extensive personal communication with him over several years, and he has always maintained, and there is no reason to doubt him, that he never sold his rights in this song on anything other than a non-exclusive basis. He asserts that he has licensed the song many times to many entities, but never sold the underlying copyright, nor given anyone else exclusivity on its use.
As evidence of this, I quote here from an email exchange on March 3, 2016 in which I asked him to restate for the record this assertion. (Tom Lehrer's personal email address is email@example.com and has been since that was a reasonable email address to have.)
On Mar 3, 2016, at 4:41 PM, Livinglgnd <firstname.lastname@example.org> wrote:
I have no idea who SME is or what this is all about.
I am the sole owner of the copyright and all rights to the song. If I ever have licensed it to anyone for a TV show or anything else, it was always a non-exclusive license. In no sense do they own the song. In other words, they have no legitimate basis whatsoever for any attempt on their part to stop anyone from using the song.
As you know, there are many thousands of YouTube entries which include the song. Surely they do not intend to take all of these down.
I am curious: what can they do if you just ignore them and continue to use the song. Sue you?
From: Theodore Gray <email@example.com>
To: LivingLgnd <LivingLgnd@aol.com>
Sent: Wed, Mar 2, 2016 6:11 pm
Subject: Elements song copyright claims
You may remember that about 6 years ago I sent you an iPad with a copy of my app The Elements, which included your song of the same name set to a matched sequence of my photographs.
Because Apple wanted to use the app and portions of the song in some promotional videos and ads, I got you (somewhat to your annoyance) to sign a statement to the effect that I had permission both to include the song in my App, and to use it to promote the App. I’m afraid I’m probably going to annoy you again with my current question, but it’s starting to be more and more of a problem.
Since releasing the App I’ve use the song and associated video in talks and Youtube videos, per what I understood to be our agreement.
But, whenever the song appears in a Youtube video, I get a copyright claim against it filed by an outfit described as “SME, on behalf of CBS”.
At one point I believe you explained that this was because CBS had at some point licensed it for us in the soundtrack for a show, and was now confused into thinking that they controlled all rights in the song.
I’ve contesting the Youtube copyright claims against my use of the song, explaining that I have a written, signed contract with you giving me permission to use it this way. However, this explanation has been rejected by SME/CBS, and they have reiterated that they own the song and I am not allowed to use it.
Before I take the next step in contesting this, can you confirm that they really do not have a legitimate basis for telling me I’m not allowed to use the song, given our agreement?
It can be difficult to prove a negative, but on the basis of this unequivocal statement by the original performer that he has never sold or licensed the song exclusively to any entity, I think there is substantial doubt that SME/CBS have the right to issue ContentID claims against it. At the very least the burden of proof should be on them to provide some kind of written and signed document giving them the necessary rights to base such claims on.
Most likely, what SME/CBS will find on investigation is that they have a non-exclusive license giving them the right to use the song on a television show and on a soundtrack compilation album issued by CBS Records. This license will give them the right to publish the song in those contexts, but not the right to control any other uses of it. In particular, it will not give them the authority to issue ContentID claims against any uses of the song online.
On the basis of this, and on the strength of my signed license contract with Tom Lehrer himself, I firmly contest the SME/CBS claim against my use of the song, and ask that it be withdrawn without delay.
Thank you for your time,