"The principle of collage is the central principle of all art in the twentieth century." -- Donald Barthelme (1931-1989)
The contents of this site are not intended and should not be taken as legal advice.
This blog is an ongoing exploration of issues related to copyright and fair use in our contemporary digital culture. The blog began and continued through April 2008 as a class project in Peter Friedman’s Legal Analysis & Writing classes at Case Western Reserve University of Law during the spring 2008 semester. The students wrote cross-motions for summary judgment in a fictional lawsuit brought by the owners of the copyright to "Que Sera, Sera (Whatever Will Be, Will Be)." The Plaintiffs (represented by half of my students) alleged infringement of their copyright in Que Sera, Sera by the KLF, the real-life creators of an actual recording entitled "K Cera Cera." K Cera Cera (mp3) is a recording of the Red Army Choir singing an amalgam of Que Sera, Sera and John Lennon and Yoko Ono's Happy Xmas (the War is Over). The second half of the students, of course, represented the Defendants. In the course of the students' work in researching and writing their summary judgment briefs, the professor and the students posted items here that raise and explore the legal and policy implications implicit in and related to the infringement claim and Defendants' fair use defense. The relevant documents the students had to work from were the following:
(1) Plaintiffs' Complaint filed in the fictional action.
(2) Defendants' Answer filed in the fictional action.
(3) Excerpts from the deposition of Joyce Hatto, Senior Director of A&R for Defendant Arista Records.
(4) Excerpts from Plaintiffs' Responses to Defendants' Requests to Admit.
(5) A discussion regarding ASCAP's standing as a plaintiff is contained in the comments to William Patry's blog post here.
In light of the timeliness and open-endedness of the issues raised by the fictional lawsuit, the blog will continue despite the completion of the project and of the school year.
7 comments:
I can't imagine a valid argument for why the law should favor parody over political satire. Why is the artists work less justified because his inspiration and thus the effect of his work reflects outward rather than backwards towards the original. It makes no sense to say to an architect that he can only use the bricks of a an old building if he employs them in such a way as to recall the old building with additional embellishments. The architect should be free to utilize the materials to make the new building.
Responding to anonymous above, the key difference between parody and political satire (as described in the comment to this post ) is that the law (at least as described in Campbell ) doesn't require authors/artists to bear the burden of society's need for political commentary by suffering the uncompensated/uncontrolled adaptation of their works. The issue is a matter of balancing the relative rights: (1) the right of the artist to control the use of his/her work for a finite period of time (as prescribed by the copyright statute) vs. (2) the right of all members of society to engage in commentary and dialog. The court in Campbell essentially said that authors/artists, by enjoying the benefits provided by copyright law in presenting their works to the public, are implicitly agreeing to shoulder the burden of public commentary (favorable or not) on the work itself. To me that is a far cry from arguing that, by enjoying the benefits of copyright, the author is implicitly agreeing to shoulder the burden of making the work available for public use to comment on any subject it feels like (including political commentary). To extend the brick metaphor, if I own the bricks I can certainly condition an architect's use of them on anything I want. If the architect doesn't like the restriction, s/he is free to go buy some other bricks. The same holds true for political commentary--if the folks at JibJab don't want to pay or can't get rights to use a song, they are free to try to get rights to another song or write their own. That the commentary would be less effective without a well-known and catchy song is of no consequence--to argue otherwise is to suggest that popular or well-known works of art are somehow subject to fewer protections than obscure ones.
I don't understand why the use of better known works of art in creative political commentary offers them less protection than that enjoyed by lesser known works.
The creative political commentary represented by the JibJab video and K Cera Cera does not displace any market for the well known works they use (creatively, and in combination with other elements) in making their political points.
Moreover, it is the very renown of the copyrighted work that makes the new work effective. The JibJab video would not have the impact it has without using This Land is Your Land. And KLF's K Cera Cera would not be able to send up the naivete rampant in the wake of the fall of the Soviet Empire (Fukuyama's "The End of History" and all that) without the aura of innocence and naivete conveyed by Que Sera, Sera and its association with Doris Day. I guess perhaps your speaking of lesser protection of the original artist's "moral rights," but I don't see how such a view squares with (1) the U.S. economic approach to copyright and (2)the heavy weight of the First Amendment behind the fair use doctrine.
It amazes me that given the value of political speech, creative parody would be more protected than creative political expression.
responding to John, why does society value and wish to protect the artist? It is because he contributes to society by adding cultural bricks that add to societies architecture, and not becuase he is some specialty of normal busnesperson or investor. When a given piece of art is particullarly good or effective, or for whatever other reason simply pervasive, it can contibute significantly to the social architecture such that in some way it is fundamentally altered or changed in some way. And such alteration is exactly what the artist was hoping for in creating it. How it happens is without regard to the original artist's intent as potentially exemplified in the case of the association with que sera sera. The subsequent artist wishing to create his/her own art starts largely form the bricks already present in the social architecture. It serves the goal of art efficiency to allow the artist as free a use of those socio/cultural bricks as possible without creating some sort of negative feedback loop whereby such subsequent use makes original production less worthwhile. It is hard to imagine that political expression would make that more of a risk than simple parody. Is it a check on the creation of art and a burden on the original artist to say that if your work is good enough it may someday contribute so much to the social architecture that when subsequent artists think of a given social buiding that your art may be almost synonymous with that building and my be used in helping shape the direction of further political or social expression by subsequent artists. Further the campbell court places the majority of weight on the tranformative aspect of the new work rather than the classification in which the subsequent art could be placed. The balencing act copyright law through fair use forces is and should be aimed at allowing the most artistic production.
I think both Anonymous and Peter make good points. Still, I'm troubled in many ways with the idea that any creative work is immediately and completely in the public domain (through the vehicle of fair use) for the purposes of political commentary. For one, I think the line between political commentary vs. non-political commentary is awfully hazy. Certainly presidential elections are political, but isn't crime or gang violence a political issue too? Could a politically-minded rap artist make immediate use of a sample from a brand-new hit song to convey a certain message? Does it matter whether the borrowing work is satirical, merely humorous, or simply political? Another issue is timing: one characteristic shared by all of the examples mentioned so far (This Land..., Que Sera..., and Oh Pretty Woman) is that the borrowing work came into to being some years after the original work which it borrowed from. In such cases, it is easy to claim that the borrowing work doesn't displace the market for the borrowed work. But a rule has to work in all cases and, for better or worse, we no longer break copyright protection down into a series of renewable time periods so we're stuck with the idea that a work is copyrighted or it isn't. It would seem cumbersome and unpredictable to try to insert some time period for a fair use claim into the current scheme where an older work might be more available for satire than a newer one.
There's no question the view I'm advancing (which I may or may not come to believe in) is that fair use would include any genuinely creative work of appropriation art that does not exploit the market created by the copyrighted appropriated work.
Isn't that the essence of Blanch v. Koons?
A big part of the issue here is the new material reality with which we are dealing. Fair use and copyright law are products of a pre-digital, pre-internet era. The digital internet era has the promise of inspiring so many new forms of creativity that to limit commercial fair use of copyrighted works would be to diminish creativity -- the exact opposite of the constitutionally founded purposes of copyright and fair use.
Would you really want to make it impossible to create things like the JibJab video? In the same vein, the licensing system the recording companies impose (perhaps in defiance of legitimate fair use arguments) threaten to kill off creations like Pandora Radio, which, as far as I'm concerned, is one of the greatest inventions I've ever found.
And I want to emphasize two things about the commercial works of appropriation art I would consider legitimate: (1) they would not exploit a market created by the original work, and (2) they would be genuinely creative.
The Seinfeld trivia book at issue in Castle Rock Entertainment, of course, fails on both counts: (1) it was an effort to exploit precisely the market the Seinfeld show had crated, and (2) it was a compilation of "facts" (information from the show) that may have been arranged cleverly but certainly was no more "creative" than the telephone directory in Feist.
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