Announcing a new endeavor

The new endeavor referred to in the title of this post will be a blog named Ruling Imagination, which I will begin writing on August 4, 2008 and in which I will address broadly speaking, both the law as it affects creative endeavors and creativity within law itself. While Ruling Imagination will, quite plainly, overlap in subject-matter with What is Fair Use?, I will continue to maintain this site; this site, however, will be confined, as it has since its beginning, primarily to questions of copyright and fair use and will continue to be aimed at an audience seeking a fairly high level of legal sophistication and technicality in its discussions. Ruling Imagination, on the other hand, will address a far wider range of subjects and will seek to engage a broader audience, in particular an audience within the creative community.

Carolyn Jack, one of the founders of Geniocity, has this to say:

I’m proud to announce that Peter Friedman, associate professor at Case Western Reserve University School of Law, will join our roster of bloggers starting Monday, Aug. 2.

Peter, who specializes in legal analysis and writing at Case Western Reserve University and is currently a Visiting Professor at the University of Detroit Mercy Law School and at the University of Windsor, also teaches at the Universiteit van Amsterdam. He will write for Geniocity.com about the creative cutting edge of the legal profession.

For those of you who think the law and creativity are separated by continents, if not galaxies, let me point out that technology, government policy, social trends and other forces constantly require the law to adapt in unforeseen ways. Look what Internet access has done to copyright law: How will artists get paid for their work if everyone can find music, pictures, writing and video for free on the Internet? Consider the questions that surveillance technology - security cameras, satellites, GPS-equipped cell phones and cars - raises about our constitutional right to privacy. And which locker room - men’s or women’s? - should an as-yet-surgically-unchanged transsexual be required to use?

A furiously changing world demands some pretty inventive thinking about the rules we live by. Peter will explore that thinking and unveil the latest, fascinating twists reshaping our legal landscape and our lives.

So look to Geniocity for briefs of a different cut.

Even Cleveland describes Geniocity as follows:

Carolyn Jack, the former arts writer for the PD has joined forces with artist and critic Dan Tranberg to create Geniocity.com, an online home for creativity. Inspired by a 7-part newspaper story she wrote on creativity, Jack has honed in on an underappreciated fact: creativity in all its variations is embedded in all walks of life. Their new site, Geniocity.com, is part objective news portal, relating the latest advances in science, research, commentary and inventions, and part marketplace for creative work. Their Geniocity Shop will represent global artists, including Clevelanders Robert Thurmer of CSU, and Tracey Lind of Trinity Cathedral. They officially open for surfing on Thu 6/12, so get creative, and contact them to submit your work and reach an international audience.'

Code of Best Practices for using copyrighted materials in online video

American University's Center for Social Media "a code of best practices" that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use."

The authors make clear that "this code of best practices does not tell you the limits of fair use rights. . . . It’s not a guide to using material people give permission to use, such as works using Creative Commons licenses. Anyone can use those works the way the owners say that you can. . . . It’s not a guide to material that is already free to use without considering copyright. For instance, all federal government works are in the public domain, as are many older works. In most cases, trademarks are not an issue. For more information on “free use,” consult the document “Yes, You Can!” and copyright.cornell.edu."

Then what is it? Essentially, it's a guide to what professionals actually are doing:

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.

Regular readers of this blog will not be surprised at the views of authorship and creation that inform this code of best practices. Fans of Girl Talk and the class that originated this blog will be particularly interested in the code's claim that it is fair use to "to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between these elements.

The Manual and creativity

Plainly, the KLF feel and express in a number of subtle and not subtle ways that what passes for art in the marketplace is nothing more than the rehashing of old tropes. They're not artistic nihilists, however; as they explain in The Manual

So why don't all songs sound the same? Why are some artists great, write dozens of classics that move you to tears, say it like it's never been said before, make you laugh, dance, blow your mind, fall in love, take to the streets and riot? Well, it's because although the chords, notes, harmonies, beats and words have all been used before their own soul shines through; their personality demands attention.

Freedom depends on the use of the past

Lawrence Lessig, from this flash presentation of his speech at the Open Source Convention 2002:

Creativity and innovation always builds on the past. The past always tries to control the creativity that builds upon it. Free societies enable the future by limiting this power of the past. Ours is less and less a free society.

Is Avril Lavigne a plagiarist or merely a speaker of the single human language?

From MSN's MUSICFIX:

In July 2007 punk princess Avril Lavigne found herself in a storm of controversy when '70s power pop band The Rubinoos claimed Lavigne's 'Girlfriend' stole from their song 'I Wanna Be Your Boyfriend'. Across the Internet, amateur musicologists listened to the songs and made their judgements about the validity of the accusation, with opinions varying wildly on the subject.

Avril countered the accusation by saying she'd never heard of the Rubinoos. This is almost certainly true, as we are talking about the same woman who in 2003 mispronounced the name of rock icon David Bowie when announcing Grammy nominees. If she can't get Bowie's name right then it's fair to assume she's unlikely to know the band that did the theme song to Revenge of the Nerds.

What was all the fuss about?

For the Lavigne-loving public these accusations were an unwarranted outrage, and an unfair dismissal of her talents. For those in the anti-Avril camp the claims supported their position that Lavigne was more pop tart than punk princess.

In her defence Avril pointed out both songs are essentially similar to the Rolling Stones 'Get off my Cloud' and the Ramones 'I Want to be your Boyfriend.' So if anyone should be angry it should be Sir Mick. Luckily for Lavigne he's too busy being a rich old rock star to care. Besides, according to Avril, the ''Sid Vicious for a new generation'', "All songs share similar lyrics and emotions. As humans we speak one language."

What were the consequences?

Unfortunately for Avril, over the next few weeks more accusations surfaced, with a former writing partner first claiming, then retracting another plagiarism claim. To add to the grief people also noticed similarities between her song 'I Don't Have to Try' and the Peaches tune 'I'm the Kinda.'

Perhaps Lavigne's greatest defence against claims of stealing a '70s rock song is her well-documented ignorance of pretty much any music released before 1995. She once said, "People are like, 'Well, she doesn't know the Sex Pistols.' Why would I know that stuff? Look how young I am. That stuff's old, right?"

The true history of copyright

One important argument to consider is that free speech depends on the public domain, that it requires the free exchange of ideas, and that those ideas are not the creations of geniuses who pull them with the help of divine inspiration out of their very souls for the good of the rest of mankind but, rather, that they are merely "discovered" by their "authors" within the collective culture we and all our ancestors have created. Thus, in the 18th Century

intellectuals had argued that the enlightenment was grounded on the free exchange of ideas — ideas that belonged to the world and not to the individuals who discovered them. This was a view eloquently expressed in 1776 by the marquis de Condorcet. Individuals could not own ideas as they did property, he argued. "There can be no relationship between property in ideas and that in a field, which can serve only one man. [Literary property] is not a property derived from the natural order ... It is not a true right, it is a privilege" [7]. As a consequence, copyright existed to protect the free exchange of ideas, not the rights of authors [8].

This view, however, was soon overwhelmed in 1788-89 by the Revolution. In the Declaration of the Rights of Man, the National Assembly officially sanctioned freedom of the press. Without effective copyright, the freedom was wild and destructive. Anonymous and seditious pamphlets appeared throughout the country; piracy of literary works was rampant; publishers faltered and became insolvent. Officials recognized the need to act, but they debated endlessly, ensnared by the politics of censorship in the midst of the Revolution’s turmoil [9].

As early as 1790, Condorcet himself cosponsored a proposal that provided copyright for the author’s life plus ten years. The proposal violated the principles Condorcet had declared just 14 years earlier, but he now had another goal in mind following the Revolution (to make authors accountable for what they wrote). His proposal did in fact place some limitations on literary property, but not surprisingly, these were widely criticized by the Paris Book Guild and the royally privileged theatre directors. Once again, they used author rights as their central argument [10]. The proposal never came to a vote.

Astonishingly, after the original sponsors departed, almost exactly the same measure was passed into law in 1793 without discussion, partially propelled by the revolutionary call to respect individual rights and property. French copyright law was a compromise: The law sanctioned the notion of literary property, yet it limited such property and created the notion of public domain. It gave something to those with corporate interests in literary property, but it also took something away. And during the nineteenth century those corporate interests worked steadily to take back whatever they had lost.

Some claim that French copyright law was born in the Revolution as droit d'auteur — author rights. But French copyright continued to change for one-hundred years following the Revolution (Ginsburg, 1990). What was initially an uneasy compromise between the philosophies of Diderot and Condorcet slowly became dominated by the notion of author and moral rights, until copyright became synonymous with droit d'auteur in France.

Bridgeport Music, Inc. v. Dimension Films

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, paragraphs 37-38 (6th Cir. 2004)(footnotes omitted):

[A] sound recording owner has the exclusive right to "sample" his own recording. We find much to recommend this interpretation.

To begin with, there is ease of enforcement. Get a license or do not sample. We do not see this as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a "riff" from another work in his or her recording, he is free to duplicate the sound of that "riff" in the studio. Second, the market will control the license price and keep it within bounds. The sound recording copyright holder cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording. Third, sampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another's work product.