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.

Would an appropriator sue someone who had appropriated his work?

In my comments to students after an oral argument on the cross motions for summary judgment on the legal writing problem that inspired this site, I suggested that the idea (advanced by counsel for the plaintiffs) that the KLF would pursue a copyright infringement action against anyone who appropriated K Cera Cera seemed pretty far-fetched. It would take too much nerve for an appropriator to sue someone for appropriation, wouldn't it? Perhaps not, at least in the case of Shepard Fairey.

I still think such a move is contrary to part of what the KLF were all about.

Then again, maybe Baxter Orr's claim that Shepard Fairey has served him with a cease and desist order is a hoax Orr cooked up to garner publicity for his own work.

When will we no longer consider it "original" to express the "insight" that much of what we label "original" and thereby protect with copyright law is just the same old pap recycled by corporate giants, not art created by divinely inspired geniuses living among us? That idea may not itself be an original one, but it does not seem to have penetrated very much into the culture at large, much less copyright law, at least not when the most successful commercial "artists" are so plainly the synthetic creations of corporate giants:

"It's an amazing thing that we've reached a place in the entertainment industry where a 15-year-old Disney firecracker could outsell 'The Boss,' that the kid who plays Harry Potter could make more money in a year than Jennifer Aniston and Sandra Bullock," said Lea Goldman, senior editor of Forbes. "Kids are where it's at today. Tweens wield mighty, mighty power in the marketplace."

Like many others in entertainment, [Miley] Cyrus is probably better known for her character's name, Hannah Montana, than her real name. However, the name "Hannah Montana" is owned by Disney, which controls all aspects of its use and pockets much of the earnings.

"Miley is unusual in that much of her earnings are under a Disney-owned brand, that of Hannah Montana," Goldman said. "This is a Disney property. That means Disney enjoys ownership of all the rights and royalties associated with the brand."

Syracuse popular culture professor Robert Thompson agrees.

"Miley Cyrus as Hannah Montana is the huge phenomenon it is, not because she's a brilliant actor or an extraordinary singer," he said. "The reason it is a phenomenon is because of the incredible industrial complex that Disney has in control. The way the concert was promoted, the handling of Hannah Montana is a phenomenon created out of a brilliant set of marketing strategies."

That's why the teen star whose full name is Destiny Hope Cyrus - Miley is a nickname - is known more as Hannah Montana. On her second music recording, a two-disc follow-up to her Hannah Montana soundtrack, Cyrus uses her full name on the second disc. Beyond that, her official Web site (mileyworld.com) and her live television appearances as herself, Cyrus is Hannah Montana to the public.

Goldman said that Disney is well aware that Hannah Montana would not exist without Cyrus, "and she is well-compensated. But Miley wouldn't be Miley without Hannah."

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)

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 naïve 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

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 images 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.

War is Over

One of Jimmy Cauty's Posters on the Streets of London

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.

What does "KLF" stand for?

From Stuey and Nick's KLF FAQ:

The letters 'KLF' stood for many things, which changed many times throughout their life-span. The first documented occurrence is in 1987, when the moniker 'Kopyright Liberation Front' was mentioned on their record releases. But over the years up to the 1992 retirement, they always got asked this question in interviews and were always making up new names. One much-quoted line is "We're on a quest to find out what it means. When we find out, we can stop what we're doing now." Various examples of these names are: 'Kings of the Low(er) Frequency', 'Kool Low Frequency', 'Keep Looking Forward', 'Kevin Likes Fruit' and so on, but the usually accepted definition is 'The Kopyright Liberation Front'. [Nb. this has 24 letters, but if you spell it Kopyrite, then there's 23!!]

The next question is how did this name come about. The Justified Ancients of Mu Mu came from the Illuminatus books, and possibly to some extent the name KLF was influenced by these as well. Over recent years there've been a number of organisations using an acronym ending -Liberation Front. In the 1960's was the NLF - National Liberation Front - the North Vietnamese resistance to the USA supported by 'hippies' in the US. In the 1980's was the ALF - Animal Liberation Front - British radicals who became famous for freeing animals from experimental labs. There's also the Kasmiri Liberation Front. Then in Illuminatus! there's the ELF - Erisian Liberation Front - leading the forces of chaos against order. So it could follow that for sampling in the 80's and 90's there's the KLF - Kopyright Liberation Front - Freeing Mu(sic) from copyright laws and using past sounds as much as you want. There are many other ..LF's too, but I reckon those are the important ones that led to Bill'n'Jimi choosing the name KLF.