Beyoncé’s XO Challenges Credulity

For one of the first times in my life Beyoncé Knowles has shocked me. It has nothing to do with philosophical conundrums over how bootylicious she might or might not be or why her “Put A Ring On It” video gives me nightmares. She has revealed something new to me, something that I have not heard before and it is not buried in the dolphinesque melodies of one of her tracks but front and center at the beginning of her new song “XO.”

Some might have heard that Beyoncé has attracted some criticism, arising out of the fact that the track begins with a sample of Steve Nesbitt’s sombre reporting of the 1986 Challenger shuttle disaster. This was an event that arrested minds around the world as seven of the most talented representatives of the planet were wiped out on live TV. It was a time when space launches meant something, garnering excitement as only the best and brightest could go. Today, as one can buy a ticket on Virgin Galactic, so too can Beyoncé trivialize tragedy to sell trite ditties.

The apologies of her publicist on Twitter and desperate attempts to give purposeful meaning to the mistake ring hollow. Ms. Knowles did not write the music or lyrics, nor was she the producer on XO (presumably named after text shorthand rather than the brandy). That honor was given to Ryean Tedder and Terius Nash, also known as “The Dream.”

The bright idea to include this audio sample probably emanated from one of these two hypnagogues and if they were doing their jobs correctly probably sought clearance to use the sample. Not that every producer does seek legal clearance, a prime example being Havoc’s recent uncleared use of Lyn Christopher’s “Take me With You” on his “13” album. If they sought clearance, they would have known the sample came from Nasa and might have thought twice about using it in this context or given some sort of tweeted disclaimer before the scandal broke. The question is “Why would NASA have given permission to use this for a pop song?”

The answer lies in the real scandal that NASA seems to allow anybody to use its audio with impunity for practically any and all purposes. see http://www.nasa.gov/audience/formedia/features/MP_Photo_Guidelines.html#.UsYktH-9KSM

Amongst other things Nasa says:

“As a government entity, NASA does not license the use of NASA materials or sign licensing agreements. The agency generally has no objection to the reproduction and use of these materials (audio transmissions and recordings; video transmissions and recording; or still and motion picture photography)”

This makes little sense. While the policy goes on to say “If a recognizable person, or talent (e.g., an astronaut or a noted personality engaged to narrate a film) appears in NASA material, use for commercial purposes may infringe a right of privacy or publicity” NASA is ceding any oversight of their material to astronauts and journalists, and seemingly does not take action unless somebody messes with their blue meatballs (that is actually how NASA refer to its insignia).

So over to Mr. Nesbitt who, depending on where he lives, might or might not be able to avail himself of the privacy statute in the state of his domicile to take action. Should he choose to do so it would be a righteous battle on a number of levels and may prompt NASA not to be so laissez faire with its property.

Alternatively, Ms. Knowles and her team should rework the track and remove the sample instead of adding insult to injury by trying to fool the world that its inclusion was an intentional tribute. As she once said “I can’t take no more” xoxo.

Postscript

NASA responded to our enquiries as to whether their content is the equivalent of shareware and we were referred to the link posted above. NASA also gave their official statement:

The Challenger accident is an important part of our history; a tragic reminder that space exploration is risky and should never be trivialized. NASA works everyday to honor the legacy of our fallen astronauts as we carry out our mission to reach for new heights and explore the universe.

This is a classic example as to why the Copyleft movement (anti-copyright) is misguided. Producers like The Dream have little compunction in seeking to profit from the content of others in the full knowledge that the public’s attention span is short lived. If the object of the song was to pay tribute to such fallen heroes, the profits should be donated to the relevant charity.

Rob Garson
rg@gs2law.com