Remember that video of two Bank of America employees singing a bastardized version of U2's "One" to celebrate the merger of BofA and MBNA? The one that kind of made you cringe and hope you never have to go to another one of these corporate homecoming rallies again?
Yeah, well, it made Universal Music Publish Group cringe too. Last week a lawyer for Universal, which is the catalog owner and administrator for the song, posted a cease and desist letter in the comments section of the music blog Stereogum. But far from ceasing and desisting, the BofA song has found new life in the comedy of David Cross. The video above shows Cross performing the song at the Comix comedy club a couple of weeks ago. And this morning Stereogum posted another video of Cross performing the song along with Modest Mouse's Johnny Marr at the Bowery Ballroom.
After the jump, we bring you the c&d from Universal's lawyer.
Lyrics Celebrating Bank Merger Impress Only Copyright Lawyer [New York Times]
Johnny Marr & David Cross Cover Bank Of America's "One" [Stereogum]
As a courtesy to you and, in order to put Sterorgum.com on notice, I am attaching the text of a cease and desist letter sent to Bank of America’s legal counsel. Universal is aware that you are contributing to the infringement of U2's Composition entitled "One" by, among other things, providing access to the unauthorized video on your website. Universal is also aware that you are the owner, registrant, administrative contact and technical contact of Stereogram.com.
Universal has a good-faith belief that the unauthorized uses of U2's Composition entitled "One" and the reproduction of any lyrics derived therefrom on your website are not authorized by the copyright owners or such owners’ agents. On behalf of Universal, I hereby swear under penalty of perjury that the foregoing statement is true and accurate and that the foregoing statement is made under authority of one or more of the owners of an exclusive right in the Composition.
Please be advised that, if the unauthorized video is not removed from your website immediately, Universal shall seek any and all available legal relief against the owner(s)/registrant(s) of Stereogum.com.
All rights are expressly reserved.
Raul R. Gonzalez
Attorney, Business Affairs
Universal Music Publishing Group
2440 S. Sepulveda Blvd., Suite 100
Los Angeles, CA 90064-1712
November 13, 2006
URGENT – IMMEDIATE ATTENTION REQUIRED
VIA FACSIMILE (415-343-9495) & CERTIFIED MAIL,
RETURN RECEIPT REQUESTED
Bank of America, N.A.
Legal Order Processing
P.O. Box 3609
Los Angeles, California 90051
Re: Unauthorized Exploitation and Contributory Infringement of Musical Composition on Web Sites located at http://theshermanfoundation.blogspot.com/2006/11/one-bank.html and http://www.thetripwire.com/news/2006/11/8/u2-boa-wtf
By way of introduction, Universal Music Publishing International B.V. and Universal – PolyGram International Publishing, Inc. (collectively, “Universal”) are the exclusive publisher and administrator, respectively, for the world excluding the United Kingdom and Ireland, of all musical compositions to the extent written, owned and/or controlled by Paul Hewson p/k/a “Bono,” Dave Evans p/k/a “The Edge,” Adam Clayton and Larry Mullen, Jr., collectively p/k/a “U2,” including, without limitation, the musical composition entitled “One” (the “Composition”).
It has come to Universal's attention that Bank of America, N.A. (“BA”) has created a derivative work of the Composition to promote BA’s business and, in connection therewith, BA has publicly performed, synchronized, reproduced and distributed the Composition during BA business meetings and in timed relation with a video that is available to the public on at least two (2) Internet Web Sites located at http://theshermanfoundation.blogspot.com/2006/11/one-bank.html and http://www.thetripwire.com/news/2006/11/8/u2-boa-wtf (the “Infringing Web Sites”). Universal's records, however, do not reflect Universal having granted to BA, or any other party, licenses to create a derivative work, to reproduce, distribute or otherwise exploit the Composition, either on or by way of the Infringing Web Sites or by any other means. As such, each such act constitutes an act of infringement under the United States Copyright Act.
Accordingly, Universal is hereby formally placing BA on notice that BA’s reproduction, distribution and other exploitation of the Composition, during BA business meetings and/or on the Infringing Web Sites or otherwise (the “Unauthorized Uses”), without Universal's consent, are violations of Universal's copyrights therein and constitute infringements thereof. Universal therefore demands the following:
1. That BA and its employees and agents immediately cease from any further Unauthorized Uses, including, without limitation, any and all further reproduction and distribution of the Composition on and by way of the Infringing Web Sites (for the avoidance of doubt, reproduction and distribution is not limited to uploading the Composition onto the Infringing Web Sites; rather, reproduction and distribution also includes maintaining “enabled” links on the Infringing Web Sites by which visitors to the Infringing Web Sites may listen to or otherwise access the Composition);
2. That BA immediately contact the owners and/or registrants of the Infringing Web Sites to halt the unauthorized exploitation of the Composition;
3. that BA confirm such cessation in writing by the close of business on Friday, November 17, 2006;
4. that BA provide Universal, by the close of business on Monday, November 20, 2006, with a complete, accurate and detailed written accounting setting forth any and all exploitations of the Composition by BA, including, without limitation, a detailed report of the scope of the media used, the term of the Unauthorized Uses and the territories where the Unauthorized Uses were made; and
5. that BA contact me immediately thereafter to discuss both the monetary compensation to which Universal is rightly entitled in connection with the Unauthorized Uses and any other actions to be taken by BA that Universal shall deem necessary.
Please be advised that in the event that BA fails to comply with Universal’s demands herein, Universal shall vigorously pursue any and all relief it deems necessary and appropriate to protect its rights in and to the Composition. As a preliminary matter, Universal may seek injunctive relief. In the event that Universal is compelled to institute legal proceedings against BA, Universal may also seek statutory damages in connection with BA’s infringement of the Composition. You should know that, pursuant to 17 U.S.C. § 504(c)(2), BA may be liable for statutory damages as much as $150,000.00. Pursuant to Section 505 of the Copyright Act, moreover, Universal will most certainly seek to recover any and all attorney fees and costs incurred as a result of BA’s infringement of Universal’s copyright in the Composition.
Nothing contained herein or omitted herefrom shall be deemed to be an admission of any fact or a waiver of any rights or remedies with respect to the subject matter hereof, all of which rights and remedies are hereby expressly reserved.
Very truly yours,
Raul R. Gonzalez
Attorney, Business Affairs