Wednesday, April 2, 2008

Radiohead makes it easy to create your own remixes

From Radiohead's Nude Re/Mix:

Radiohead, iTunes and GarageBand are giving you the opportunity to remix the band's new single "Nude".

To make remixing easy, the separate 'stems'* from the song are available to purchase from iTunes _here_. The 'stems' available are bass, voice, guitar, strings/fx and drums. You can mix them in any way you like, either by adding your own beats and instrumentation, or just remixing the original parts.

If you purchase all five 'stems' from iTunes during the first week they're available, you'll be sent an access code to a GarageBand file ready to open in GarageBand or Logic. However, you don't need GarageBand to do a remix, all the stems are in iTunes Plus format and compatible with several music software platforms. The GarageBand file will be emailed out on April 11th.

Finished mixes can be uploaded _here_ where the public will listen and vote for their favourite remix (voting ends May 1st). You can also create a widget allowing votes from your own website, Facebook or MySpace page to be counted as 'mix votes' back on radioheadremix.com. Radiohead will listen to the best remixes.

Nude is out now in the UK on CD, 7" and download.

*'stems' are the component parts of the song.

The non-transformative commercial use of the entirety of a creative work is an infringement even without proof of damage

In referring to non-transformative appropriations of entire creative works for commercial purposes, Judge Leval has made clear that the failure to show damage will not make the appropriation into a fair use:
Quotation of the original may substantially augment its value and yet be a clear infringement. This would occur, for example, if a famous disc jockey, without authorization, regularly used an obscure song as the theme melody of her program. The value of the copyright for the song would be greatly enhanced. But such use would unquestionably be an infringement. No serious argument can be made that fair use should be found because the value of the copyright was increased, rather than harmed.
Pierre Leval, Fair Use Rescued, 44 U.C.L.A. L. Rev. 1449, 1459 (1997)(Westlaw)

Tuesday, April 1, 2008

The relationship between factor 3 and factors 1 and 4

Some have suggested that even if KLF’s version of K Cera Cera (1) is a genuinely creative and original work (i.e., a “transformative work”) and (2) has no effect on the primary or derivative markets for Que Sera, Sera, the fact that it appropriates virtually all of Que Sera, Sera militates against a finding of fair use. This argument, grounded in the third first use factor – “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” – is, in essence, as follows:

K Cera Cera could have evoked the meaning it draws from Que Sera, Sera (a distinctly American na├»ve and fatalistic optimism expressed both in the song’s lyrics and in its identification with Doris Day’s public persona) by simply appropriating one chorus, not the entire work. Since K Cera Cera instead used virtually the entirety of Que Sera, Sera, it fails the third fair use factor and therefore cannot be fair use regardless of its originality and market impact

There quite plainly are statements by courts that the third fair use factor suggests that appropriation of copyrighted works must be limited to the amount necessary to accomplish the purpose of the appropriating work. Thus, for example, in Bill Graham Archives LLC v. Dorling Kindersley Ltd., 386 F. Supp. 2d 324, 330 (S.D.N.Y. 2005), the court stated that “[t]his ‘inquiry must focus upon whether “the extent of . . . copying” is consistent with or more than necessary to further 'the purpose and character of the use.’ Castle Rock Enter. v. Carol Publishing Group, 150 F.3d 132, 144 (2d Cir. 1998), citing Campbell, 510 U.S. at 586-87, 114 S. Ct. 1164, 127 L. Ed.2d 500.”

I would suggest, however, that, once if it is conceded that K Cera Cera appropriates the heart of Que Sera, Sera, whether it quotes one verse, half the song, or the entire song is irrelevant as long as K Cera Cera is (1) genuinely transformative and (2) has no impact on Que Sera, Sera’s primary and derivative markets.

If in fact K Cera Cera is genuinely transformative and has no impact on Que Sera, Sera’s markets, it makes no difference to Que Sera, Sera’s copyright holders whether one verse or the entire song is appropriated. If it makes no difference, why should the amount matter?

I think too my view is confirmed by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994)(emphasis added), in which the Court stated:

The third factor asks whether “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” § 107(3) (or, in Justice Story's words, “the quantity and value of the materials used,” Folsom v. Marsh, supra, at 348) are reasonable in relation to the purpose of the copying. Here, attention turns to the persuasiveness of a parodist's justification for the particular copying done, and the enquiry will harken back to the first of the statutory factors, for, as in prior cases, we recognize that the extent of permissible copying varies with the purpose and character *587 of the use. See Sony, supra, 464 U.S., at 449-450, 104 S.Ct., at 792-793 (reproduction of entire work “does not have its ordinary effect of militating against a finding of fair use” as to home videotaping of television programs); Harper & Row, supra, 471 U.S., at 564, 105 S.Ct., at 2232 (“[E]ven substantial quotations might qualify as fair use in a review of a published work or a news account of a speech” but not in a scoop of a soon-to-be-published memoir). The facts bearing on this factor will also tend to address the fourth, by revealing the degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives. See Leval 1123.

Finally, I know of no case holding that a work constituted an infringement based on the appropriation of too great a portion of the copyrighted material in which that appropriation did not have an impact on the markets for the copyrighted work. Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), and Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987), are two examples of such cases. In both, the infringing use plainly hurt the copyrighted work’s primary market. In Harper & Row, The Nation published the chapter of President Ford’s autobiography that discussed his pardon of Richard Nixon. Since the public had by far more interest in that aspect of Ford’s life than any other, the publication hurt the sales of the autobiography. Why buy the book when the magazine gives you everything you’re interested in at a much lower price? In Salinger, a biography quoted long portions of J.D. Salinger’s letters. The infringement was not merely a result of the fact the excerpts from the letters far exceeded what was necessary to supporting the book’s biographical points. It was because there was an audience of Salinger fans so hungry for any new writing by Salinger (who had not published a word since 1965) that they would buy the book simply to read new Salinger. The biography, in short, was exploiting Salinger’s primary market for his own copyrighted works.

Pink Martini's Que Sera, Sera

From "Sympathique" (1997):

Those wacky Brits

Que Sera, Sera
Whatever will be, will be,
Where going to Wemb-ley,
Que Sera, Sera

Monday, March 31, 2008

JSG Boggs - what gives money its value? what gives art its value? what is value?


From Suite 101:
Although the United States Treasury Department has very strict and serious laws about the counterfeiting of currency, there is one law that is above them that they seem to recognize and that is the artists freedom of expression.

J.S.G. Boggs (born Steve Litzner) is most famous for his hand drawn, one-sided United States bills that he then exchanges for goods and services just like real money. His drawings show the hand of a master draftsman so much so that he has been arrested for his counterfeiting in England and Australia. Boggs was acquitted in both cases on the grounds that he was creating art and not forging or counterfeiting currency and trying to pass it off as such.

But Boggs’ creations are as elusive as his philosophy about the art he creates. He does not consider the drawn bank notes as money and they are commonly referred to as Boggs Notes, Boggs Bills, and Boggs Dollars. Boggs considers the art part of his work when he exchanges the bills, receives change, and receipt and goods. He then is willing to sell the receipt, change and goods as the art, not the original bill. If a collector wants a hand drawn Boggs Bill they will have to track down the lucky recipient themselves.

While Boggs art work could be considered hard to collect and esoteric he is taken seriously by the art world. The proof? His work is in the collections of the British Museum, the Art Institute of Chicago, the Museum of Modern Art, and the Smithsonian Institution.

One of my favorite books on the "value" of money is Lawrence Wechsler's Boggs: A Comedy of Values.

Jimmy Cauty: Bad Car/Bad Art

Digital online copies of Sherry Levine's photographs of Walker Evans' photographs

From After WalkerEvans.com

In 1936 Walker Evans photographed the Burroughs, a family of sharecroppers in Depression era Alabama. In 1979 in Sherrie Levine rephotographed Walker Evans' photographs from the exhibition catalog "First and Last." In 2001 Michael Mandiberg scanned these same photographs, and created AfterWalkerEvans.com and AfterSherrieLevine.com to facilitate their dissemination as a comment on how we come to know information in this burgeoning digital age.

Here on AfterWalkerEvans.com you will find a browsable selection of these images. Links to the high-resolution exhibition-quality images to download and print out. Along with a certificate of authenticity for each image, which you print out and sign yourself, as well as directions on how to frame the image so that it will fulfill the requirements of the certificate.

By building the image's URL into the title - the image to the left is "Untitled (AfterWalkerEvans.com/2.jpg)" - the images are locatable and downloadable by anyone who sees or reads about the image. By distributing the i
mages online with certificates of authenticity, the images are accessible by anyone. Unlike the work of the late Felix Gonzalez-Torres ‹ known for his spills of candy and stacks of paper from which the viewer can take a piece of, though the sculpture stays complete because the owner possesses the certificate of authenticity, the right to reproduce ‹ the certificates here are used to insure that each satellite image be considered with equal authenticity, not the opposite. This is an explicit strategy to create a physical object with cultural value, but little or no economic value.

On Jeff Koons

Wikipedia on Jeff Koons:

Jeff Koons has received extreme reactions to his work. Supporters claim (for Balloon Dog) "an awesome presence... a massive durable monument" (Amy Dempsey, ed. Styles, Schools and Movements, 2002, Thames & Hudson), and for other work that it is possible to be "wowed by the technical virtuosity and eye-popping visual blast" (Jerry Saltz, art critic) http://www.artnet.com/magazine/features/saltz/saltz12-16-03.asp

However, Mark Stevens of The New Republic dismissed him as a "decadent artist [who] lacks the imaginative will to do more than trivialize and italicise his themes and the tradition in which he works... He is another of those who serve the tacky rich." Michael Kimmelman of The New York Times saw "one last, pathetic gasp of the sort of self-promoting hype and sensationalism that characterized the worst of the 1980s" and threw in for good measure "artificial," "cheap" and "unabashedly cynical."

Whether Koons will be seen in time as a critical commentator in the tradition of the Dadaists and a genuine leader in the controversial tradition of the avant-garde, or merely as a fashionable purveyor of meaninglessness and banality, remains to be seen. However, this judgement cannot be made in isolation from the evaluation of the wider contemporary art scene. He has had an undoubted influence on noted younger artists: his extreme enlargement of mundane objects has been first shown by Claes Oldenburg and Coosje van Bruggen, and much later by Damien Hirst, one of Koons' later influences (e.g. in Hirst's Hymn, an eighteen-foot version of a fourteen-inch anatomical toy) and Mona Hatoum amongst others.

Even a cursory study of history shows that contemporary institutional acceptance (his work has been exhibited in London's Royal Academy) is no reliable guide to the judgment of posterity. What can be said is that at the moment Koons attracts extremes of enthusiasm and vitriol, and that his work is amongst the most expensive in the world.

Koons has received recognition by his peers. In 2005 he was elected as a Fellow to the American Academy of Arts and Sciences.


Sunday, March 30, 2008

War is Over

What happened after the remand of Campbell v. Acuff-Rose

According to the June 5, 1996 issue of the Memphis Commercial Appeal:

Acuff-Rose Music settled a copyright infringement lawsuit Tuesday it had filed against the rap group 2 Live Crew over the rappers' parody of the rock classic Oh, Pretty Woman.

Under terms of the settlement, Acuff-Rose said it dismissed its lawsuit against the group while 2 Live Crew agreed to license the sale of their version of the Roy Orbison classic. ''That means we will be getting paid for the song,'' said Acuff-Rose...
It's an interesting result. Of course, the amount 2 Live Crew agreed to pay was not disclosed. More interestingly, the whole case started, I believe, when Acuff-Rose wouldn't agree to license "Oh, Pretty Woman" to 2 Live Crew.