Thursday, August 14, 2008

appropriation can be original

I disagree with the first part of this quote, from Barry Slotnick, head of the intellectual property litigation group at the law firm Loeb & Loeb. I agree with the second:
(1) "Fair use is a means to allow people to comment on a pre-existing work, not a means to allow someone to take a pre-existing work and recreate it into their own work."

(2) "What you can't do is substitute someone else's creativity for your own."

And considering how original Girl Talk is, I think it unlikely anyone will sue them. It's far more likely a record company will sue some much more ham-fisted appropriator who has not created something original out of pre-existing pieces.

Universal Goes Crazy

"Universal Music told a federal judge . . . Friday that takedown notices requiring online video-sharing sites to automatically remove content need not consider whether videos are protected by the 'fair use' doctrine." The case involves Stephanie Lenz's 29 second video of her son dancing to Prince's "Let's Go Crazy," which Universal sought to remove via a DMCA takedown notice at Prince's insistence that he has total control over all uses of his music. Lenz is now seeking damages on the grounds that in sending the takedown notice Universal knowingly misrepresented that Lenz's video was infringing. Since it is difficult to believe anyone involved in the music industry (other than, perhaps, Prince) would believe the video was infringing, I guess Universal has no argument left other than the one they made: fair use is irrelevant when considering the propriety of sending a takedown notice. It seems a weak reed on which to rest its case.

EFF's brief (pdf) in the case, by the way, is excellent.