"Sampling" is when a songwriter, recording artist or record producer takes a portion of an existing song, existing recording, or both and puts them into a new song, recording or both. . . .
If the recording is released without the sample being approved (the pre-existing song or record) the publisher and record company will contact the recording artist or record company that released the unauthorized sampled performance and let them know that such a use constitutes an infringement of copyright. Litigation could be next but if the sample can be deleted from the record before it is released, no harm would occur.
If the sample is approved by the music publisher or the record company of the pre-existing song and record, the matter is then handled in a number of different ways including a one-time "buy-out of all rights" fee; the payment of a percentage of income received from either the new recording or the new song; or the transfer of a portion of the copyright of the new composition as well as the income generated from the new song.
Friday, March 7, 2008
It all begins with an empty page, either a piece of paper or a blank computer screen. A composer or songwriter faces the challenge of creating a song or a symphony or a film score that people will want to listen to, play or sing. This process of writing music takes talent, craft, training and dedication.
Music may find its way to the radio, to television, the movies, a concert hall, a club, a restaurant, a sporting event, and of course, the Internet. Without the work of composers and songwriters there would be no music web sites, no MTV or VH1, no music to dance to, to help us celebrate birthdays and holidays, to accompany us through our lives.
Our government has laws - copyright laws - that protect the music that songwriters and composers create. They work hard to earn a living, and their work has real value - even though we can't touch it or hold it - it touches and holds us. Their work is the product of their minds, just as objects are the products of someone's hands. Without copyright protection it wouldn't be possible to earn a living writing music professionally, and therefore, we would have much less new music in our lives. Copyright protection sees to it that creators are fairly paid when their music is used to attract or please customers, listeners, to build drama, suspense or comedy in a movie, to add excitement to a game, in airplanes, shopping malls, even "on hold." The purpose of copyright is to encourage the creation of new works by giving the creators the right to ownership of their original creations.
Thursday, March 6, 2008
FREE APPROPRIATION IS INEVITABLE when a population bombarded with electronic media meets the hardware that encourages them to capture it.
AS ARTISTS, our work involves displacing and displaying bites of publicly available, publicly influential material because it peppers our personal environment and affects our consciousness. In our society, the media which surrounds us is as available, and as valid a subject for art, as nature itself.
AS ARTISTS, the economic prohibition of clearance fees and the operational prohibition of not being able to obtain permission when our new context is unflattering to our samples should not diminish our ability to reference and reflect the media world around us.
OUR APPROPRIATIONS are multiple, transformative, and fragmentary in nature; they do not include whole works.
OUR WORK is an authentic and original “whole” being as much more than the sum of it’s samples. This is not a form of “bootlegging”, “piracy” or “counterfeiting” intending to profit from the commercial potential of the subjects appropriated. The law must come to terms with distinguishing the difference between economic intent and artistic intent.
THERE IS NO DEMONSTRABLE NEGATIVE effect on the market value of the original works from which we appropriate. or the cultural status or incomes of the artists who made the original works. Referencing a work in a fragmentary way is at least as likely to have a positive effect on these areas of concern. (RAP/HIP HOP sampling played a big part in the renewal of James Brown’s career, and he has sued them for it!)
THE URGE TO MAKE one thing out of other things is an entirely traditional, socially healthy, and artistically valid impulse which has only recently been criminalized in order to force private tolls on the practice (or prohibit it to escape embarrassment). These now all-encompassing private locks on mass media have led to a mass culture that is almost completely “professional”, formalized and practically immune to any form of bottom-up, direct-reference criticism it doesn’t approve of.
THE COURTS’ often-espoused principle that “if it’s done for profit, it can’t be fair use”, represents a thoughtless and carelessly misguided prejudice against the struggle of new art to survive. Making media- any media- is expensive. It requires substantial up front investments in time and manufactured goods to create, duplicate, and distribute anything. The courts’ easy reliance on a not-for-profit standard for fair use ignores the reality that artists, no matter what they choose to do, need to support themselves and their work with a return on their investment just like everyone else. The currently applied ‘nonprofit’ standard simple assures that only the independently wealthy may dabble in fair use. If society values the challenging and reforming aspects of critical, fair use works that bubble up from independent grassroots thinking, the law should not condone the smothering of such works by disallowing their economic survival in our free marketplace.
WE BELIEVE that artistic freedom for all is more important to the health of society then the supplemental and extraneous incomes derived from private copyright tariffs which create a cultural climate of art control and Art Police. No matter how valid the original intent of our copyright laws may have been, they are now clearly being subverted when they are used to censor resented works, to suppress the public need to reuse and reshape information. and to garner purely opportunistic incomes from any public use of previously released cultural material which is, in fact, already publicly available to everyone. the U.S. Constitution clearly shows that the original intent of copyright law was to promote a public good, not a private one. No one should be allowed to claim private control over the creative process itself. This struggle is essentially one of art against business, and ultimately about which one must make way for the other.
Wednesday, March 5, 2008
Banks are in the business of making money by lending it. The more they lend the more they make. They want us, the punter, to become addicted for life to the false sense of security it gives us. Banks will go to extremes thinking up new and ingenious ways of getting us to borrow money from them. First and foremost they want us to get into property: "Buy a house," because with your property as security they can always lend you more and more money. If things were to go badly wrong and you weren't able to keep up the interest payments they can always force you out of house and home and get their money back that way.
Of course, it would be bad for the banks if they were seen to be throwing too many families onto the street or forcing businesses to the wall in order to redeem their loans. They would always prefer to lend more money so as to help pay off the interest on the earlier loans. Banks have spent millions over the past few years trying to destroy the public's old impression of the bank manager in bowler, brolly and pinstripe, to the approachable and amiable sort of chap who will attempt at all times to say "Yes!". They have only done this, not because they like being nicer, but to seduce you into coming in and borrowing more money. Remember, when you are going in to see a bank manager you're going to see a pusher; a pusher dealing in one of the purest, most addictive drugs — money.
Bank Systems and Technology, June 2004:
Countrywide Home Loans Inc., a subsidiary of Countrywide Financial Corp. (Calabasas, Calif.; $97.9 billion in total assets), has reaped the benefits of the recent mortgage explosion, processing more than 150,000 loans monthly. Last year it handled $434 billion in new mortgages.
"The mortgage industry has seen a huge couple of years, due to the [refinancing] market," says Scott Berry, the financial institution's Agoura Hills, Calif.-based executive vice president of artificial intelligence. Countrywide has more than doubled the volume of its mortgage originations in the past two years, he says.
Its automated underwriting software has helped make that possible by speeding up the approval timetable. "Without the technology, there is no way we would have been able to do the amount of business that we did and continue to do," Berry says.
WJLA, Washington, D.C.'s ABC television network, March 5, 2007:
Countrywide Financial Corp.'s mortgage portfolio continues to deteriorate rapidly as defaults increase and home prices fall, a securities filing shows.
The Calabasas, Calif., lender's annual filing with the Securities and Exchange Commission, released late Friday, showed a big increase in late payments on option adjustable-rate mortgages, known as option ARMs. These loans give borrowers several choices of payment each month, including one that covers only part of the interest normally due. When borrowers choose that minimal payment, the loan balance grows.
A woman was forced out of her Arlington home Wednesday after unsuccessful attempts to sell her home. Cecily's troubles began when she was laid off from her job, which triggered a pileup of bills that she just couldn't pay and a string of mortgage payments that weren't being made. She said Wednesday was the worst day of her life. Moving crews pulled her couch, dining room table and computers out of her home and placed them on the street.
"This is what's happening across america. This is what's happening to families everywhere. They are being thrown out of their homes. If it can happen to me it can happen to anybody else," Cecily said.
Washington Post, February 22, 2008 (emphasis added):
Washington Post, February 29, 2007:
The nation's largest lending institutions are lobbying hard to block a proposal in Congress that would give bankruptcy judges greater latitude to rewrite mortgages held by financially strapped homeowners. . . .
The legislation would allow bankruptcy judges for the first time to alter the terms of mortgages for primary residences. Under the proposal, borrowers could declare bankruptcy, and a judge would be able to reduce the amount they owe as part of resolving their debts. . . .But the banks argue that any help the proposal might provide to troubled homeowners in the short run would be offset by the higher costs that borrowers would have to pay to get mortgages in the future. The reason, banks say, is that they would pass along the added risk to borrowers in the form of higher interest rates, larger down payments or increased closing costs.
If banks were unable to pass on the entire cost, they could be forced to trim their profits.
Nolo Bankruptcy Resources:
Senate Republicans yesterday blocked consideration of a bill designed to prop up the struggling housing industry, declaring that the Democratic-backed provisions would harm mortgage lenders and inflame the housing crisis.
With a 48 to 46 vote, the Senate did not gain the 60 votes needed to halt a threatened filibuster on the housing package. . . .
The housing proposal includes billions of dollars for local communities to buy up subprime mortgages and a controversial rewrite of bankruptcy laws to allow judges to slash interest rates for low-income homeowners. The mortgage industry has waged a stiff lobbying campaign against the bankruptcy provision.
Bankruptcy is a federal court process designed to help consumers and businesses eliminate their debts or repay them under the protection of the bankruptcy court. In Chapter 7 bankruptcy, property is sold (liquidated) to pay off as much of your debts as possible, while leaving you with enough property to make a fresh start.Wall Street Journal, March 6, 2008:
Mr. Bernanke and the Fed are charged with protecting the soundness of the banking system. The bulwark of such protection is shareholder equity -- capital -- which is generated in part by income-producing assets known as loans. Yet the Fed chief has now advised that, as a matter of public policy, banks should take a chunk of that capital and transfer it to mortgage debtors. How this additional charge -- and new political risk -- against bank earnings will ease the mistrust at the heart of the current credit crisis is a mystery.
From one review: "This is clearly a labor of love by two devoted Doris Day fans who are clear-eyed enough not to overstate the excellence of the program while finding much to admire. THE DORIS DAY SHOW was a fun, sweet show but it wasn't one of the alltime great sitcoms, it actually wasn't even that funny (as the authors note, it was more of a light drama with comedy)."
This book is ranked at #436,803 on Amazon.
40% of customers viewing this page bought the CBS-TV special, Dorris Day Today on DVD instead.
Tuesday, March 4, 2008
Thus, Pandora Radio, one of my very favorite sites, objected strongly to the Copyright Royalty Board's decision setting rates for webcasting of music (pdf). According to The Confessions of a Mad Librarian (among others), " many feel will [CARP's decision will] stagger commercial webcasters and beggar small, non-profit webcasters (think of the web-based streaming and archived audio of your favourite college radio station) into shutting down entirely."
Joshua K. Knobler, Performance Anxiety: The Internet and Copyright's Vanishing Performance/Distribution Distinction, Cardozo Arts & Entertainment Law Journal, Vol. 25, Issue 2, addresses matters pertaining to these issues.
And, with reference to a source previously referred to in this blog, our school's own Martha Woodmansee organized a collaborative authorship project in Case Western Reserve's English Department, "Beyond Authorship: Refiguring Rights in Traditional Culture and Bioknowledge":
During the spring semester 2004 I directed a collaborative research project at the intersection of Law and Cultural Studies -- specifically, the domain of international intellectual property covered by copyright. The "collaboratory" consisted of three graduate assistants from English, Law, and Sociology, and nine advanced undergraduates majoring in arts, humanities, and social science departments at Case Western Reserve University. The aim of this project was to give undergraduates an opportunity to participate in basic research in the humanities in a collaborative work environment. Our joint efforts resulted in this website, which takes advantage of digital technology to expand and enhance my article, "Beyond Authorship: Refiguring Rights in Traditional Culture and Bioknowledge," co-authored with Peter Jaszi and published in Scientific Authorship: Credit and Responsibility in Science , ed. Mario Biagioli and Peter Galison (NY: Routledge, 2003). -- Martha Woodmansee, May 15, 2004.
It has already been suggested on this blog that the development in the 18th Century of our notions of authorship may be inextricably intertwined with the development of copyright law as it existed before the digital revolution. And despite the fact law school seems to valorize judges as the "creators" of the common law through the opinions they "author," I myself have suggested that
[J]udicial writing as a quintessential example of collaborative writing, a view corroborated by the ways experienced lawyers use and interpret judicial opinions in practice. The judicial opinion is . . . a piece cobbled together from a number of other sources that include established law, the lawyers' written and spoken legal arguments, secondary legal sources, and earlier opinions that were themselves built up from the bits and pieces floating through the legal discourse community.I've also always emphasized to my students that lawyers, not judges, are the most important component of the never-ending collaborative legal writing project.
And now, from JR Enterprises Incorporated, here's a suggestion that we're fooling ourselves about whom we consider authors in another genre, scientific writing:
Coturnix writes: "But seriously now, the question of authorship on scientific papers is an important question. For centuries, every paper was a single-author paper. Moreover, each was thousands of pages long and leather-bound. But now, when science has become such a collaborative enterprise and single-author papers are becoming a rarity, when a 12-author paper turns no heads and 100-author papers are showing up more and more, it has become necessary to put some order in the question of authorship."
Maybe it's time instead to rethink the whole concept of authorship. Creation is almost always a collaborative process. I suppose rethinking the whole concept may in fact be what Coturnix has in mind inasmuch as he proposes a list of "credits" for scientific articles to detail the various contributions collaborators make to those articles.
Monday, March 3, 2008
The defense of fair use, originally judge-made, now codified, plays an essential role in copyright law. Without it, any copying of copyrighted material would be a copyright infringement. A book reviewer could not quote from the book he was reviewing without a license from the publisher. Quite apart from the impairment of freedom of expression that would result from giving a copyright holder control over public criticism of his work, to deem such quotation an infringement would greatly reduce the credibility of book reviews, to the detriment of copyright owners as a group, though not to the owners of copyright on the worst books. Book reviews would no longer serve the reading public as a useful guide to which books to buy. Book reviews that quote from ("copy") the books being reviewed increase the demand for copyrighted works; to deem such copying infringement would therefore be perverse, and so the fair-use doctrine permits such copying. Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345, 1351 (7th Cir. 1995) (dictum); William M. Landes, "Copyright, Borrowed Images, and Appropriation Art: An Economic Approach," 9 Geo. Mason L. Rev. 1, 10 (2000); Lawrence Lessig, "The Law of the Horse: What Cyberlaw Might Teach," 113 Harv. L. Rev. 501, 528 (1999). On the other hand, were a book reviewer to quote the entire book in his review, or so much of the book as to make the review a substitute for the book itself, he would be cutting into the publisher's market, and the defense of fair use would fail. Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 215 (2d Cir. 1983) (dissenting opinion), rev'd, 471 U.S. 539 (1985); see Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562 (1985); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1118 (9th Cir. 2000); Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1051 (2d Cir. 1983).
Generalizing from this example in economic terminology that has become orthodox in fair-use case law, we may say that copying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work, see 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright sec. 13.05[B], p. 13-193 (2002), is not fair use. On Davis v. The Gap, Inc., 246 F.3d 152, 175-76 (2d Cir. 2001); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1277 (11th Cir. 2001) (concurring opinion); Wendy J. Gordon, "Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors," 82 Colum. L. Rev. 1600, 1643 n. 237 (1982); see Consumers Union of United States, Inc. v. General Signal Corp., supra, 724 F.2d at 1051. If the price of nails fell, the demand for hammers would rise but the demand for pegs would fall. The hammer manufacturer wants there to be an abundant supply of cheap nails, and likewise publishers want their books reviewed and wouldn't want reviews inhibited and degraded by a rule requiring the reviewer to obtain a copyright license from the publisher if he wanted to quote from the book. So, in the absence of a fair-use doctrine, most publishers would disclaim control over the contents of reviews. The doctrine makes such disclaimers unnecessary. It thus economizes on transaction costs.
The distinction between complementary and substitutional copying (sometimes--though as it seems to us, confusingly--said to be between "transformative" and "superseding" copies, see, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)) is illustrated not only by the difference between quotations from a book in a book review and the book itself, Marion B. Stewart, "Calculating Economic Damages in Intellectual Property Disputes: The Role of Market Definition," 77 J. Patent & Trademark Office Society 321, 332 (1995), but also by the difference between parody (fair use) and burlesque (often not fair use). A parody, which is a form of criticism (good-natured or otherwise), is not intended as a substitute for the work parodied. But it must quote enough of that work to make the parody recognizable as such, and that amount of quotation is deemed fair use. Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 579, 580-81 and n. 14, 588; Suntrust Bank v. Houghton Mifflin Co., supra, 268 F.3d at 1271; Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 (2d Cir. 1998); Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1400 (9th Cir. 1997); 4 Nimmer & Nimmer, supra, sec. 13.05[C], pp. 13-203 to 13-218. A burlesque, however, is often just a humorous substitute for the original and so cuts into the demand for it: one might choose to see Abbott and Costello Meet Frankenstein or Young Frankenstein rather than Frankenstein, or Love at First Bite rather than Dracula, or even Clueless rather than Emma. Burlesques of that character, catering to the humor-loving segment of the original's market, are not fair use. Benny v. Loew's Inc., 239 F.2d 532, 536-37 (9th Cir. 1956), aff'd by an equally divided Court under the name Columbia Broadcasting System, Inc. v. Loew's, Inc., 356 U.S. 43 (1958) (per curiam); see 4 Nimmer & Nimmer, supra, sec. 13.05[B], pp. 13-194 to 13-195, sec. 13.05[C]; cf. Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 580-81 & n. 14, 591. The distinction is implicit in the proposition, affirmed in all the cases we have cited, that the parodist must not take more from the original than is necessary to conjure it up and thus make clear to the audience that his work is indeed a parody. If he takes much more, he may begin to attract the audience away from the work parodied, not by convincing them that the work is no good (for that is not a substitution effect) but by providing a substitute for it.
If it was not the day the Earth stood still, it was close: It was the day Washington was not cynical.
When Mr. Rabin and Mr. Arafat came together, the banal was suddenly breathtaking, and the ordinary was suddenly historic: one person touching another, one person sitting next to another, one person applauding another; President Clinton introducing Mr. Arafat to his daughter, Chelsea; the President, Mr. Rabin and Mr. Arafat holding up their "Seeds of Peace" T-shirts, like teen-agers at a rock concert; Mr. Rabin shaking hands with Arab ambassadors.
The jaded were awed. Even for a New Age Presidency, there were a lot of men in the audience crying. George Stephanopoulos, the Clinton aide, and Rahm Emanuel, the White House adviser who had helped arrange the logistics, were crying.
So was the Hollywood contingent -- Ron Silver and Richard Dreyfuss -- along with Leon Wieseltier, the literary editor of The New Republic. "Do you believe this?" Mr. Dreyfuss asked Mr. Wieseltier.
"And you're the guy who saw those aliens land in that movie," Mr. Wieseltier replied, referring to the actor's role in "Close Encounters of the Third Kind."
To Mr. Arafat, the moment meant "putting an end to [ Palestinians' ] feelings of being wronged." To Shimon Peres, the Israeli Foreign Minister, it marked "a revolution: yesterday a dream, today a commitment." But it was left to Mr. Rabin, a hero of the 1967 war that brought Israeli occupation to the very territories the Palestinians now hope to reclaim, to say -- indeed to trumpet -- what seemed to be on everyone's mind:
"Enough of blood and tears. Enough!"
"With a public image so pure that it made Ivory Snow look like soot by comparison, Doris Day spent most of her professional life purveying the image of a pristine, virginal 'girl you'd like to take home to mother.'"
Wikipedia entry on Doris Day:
In Alfred Hitchcock's The Man Who Knew Too Much, she sang "Whatever Will Be, Will Be (Que Sera, Sera)", which won an Academy Award for Best Original Song. According to Jay Livingston (who wrote the song with Ray Evans), Day preferred another song used briefly in the film, "We'll Love Again", and skipped the recording for Que Sera, Sera. When the studio pushed her, she relented, but after recording the number in one take, she reportedly told a friend of Livingston's, "That's the last time you'll ever hear that song." The song was used again in her 1960 film, Please Don't Eat the Daisies and was reprised as a brief duet with Arthur Godfrey in The Glass Bottom Boat; it also became the theme song for her television show. This was her only film for Hitchcock and, as she admitted in her memoirs, she was initially concerned at his lack of direction; she finally asked him if anything was wrong and he said everything was fine; if she wasn't doing what he wanted he would have said something.Dennis Bingham, "'Before She Was a Virgin . . .': Doris Day and the Decline of Female Film Comedy in the 1950s and 1960s":I
[Doris Day's] "image" . . . looms so large as to block out the talents of the woman herself and the films that she made. "She appears sheer symbol," wrote Updike, "of a kind of beauty, of a kind of fresh and energetic innocence, of a kind of banality. Her very name seems to signify less a person than a product, wrapped in an alliterating aura." Dwight MacDonald, ostensibly reviewing That Touch of Mink in 1962, diagnoses a disease:
"'The Doris Day Syndrome.' The chief symptom is a bland conformity, of which the 'disease,' conversely, is also a symptom in the culture at large. MacDonald's Day is as wholesome as a bowl of cornflakes and at least as sexy. [Her face is] unmarked by experience, thus titillating the American male's Lolita complex, while at the same time . . . , it is full of Character, or maybe just Niceishness, so that it also appeals to the ladies. No wonder Doris Day is Hollywood's No. 1 box-office property. I suspect most American mothers would be pleased, and relieved, if their daughters grew up to resemble Doris Day. She has the healthy, antiseptic Good Looks and the Good Sport personality that the American middle class—that is, practically everybody—admires as a matter of duty."
Legend has it that when Doris Day first heard the song, her reaction was that it was a “forgettable children’s song.” Eventually, she recorded the song for Alfred Hitchcock’s thriller, “The Man Who Knew Too Much.” The song won an Oscar for best original song.