Good Copy, Bad Copy (embedded with permission)

A documentary from Denmark on Girl Talk, Bridgeport Music, sampling, and copyright:

Who's the author?

From Scoodleyweb:

I don’t think I have any words for this. Star Trek the Animated Series mashed up with William Shatner singing Pulp’s common people, as Kirk/Spock slash fiction. So many memes tied up in a nice bow. Exquisite. Simply Exquisite.

And if you wonder where the title of the post, "In that case, I'll have a Rum and Coke," comes from, you should look here and

ask yourself, who wrote "Rum and Coca-Cola?" Morey Amsterdam, U.S. copyright holder, who slightly changed some lyrics to a song he heard in Trinidad? Lord Invader, who put new lyrics to a song written by Lionel Belasco in the early 1900s? Lionel Belasco, who adapted his music from a folk song from the 1800s?

And how far back does the thread stretch from there? Who originally wrote the music that would evolve into "Rum and Coca-Cola"?

Course packs in the internet age.

Oxford University Press, Cambridge University Press, and Sage Publications sued the Georgia State University in federal court in April, arguing that course readings that professors and librarians disseminated online infringed publishers' copyrights." The complaint is here (pdf).

I am sympathetic to the view of the that the posting of copyrighted materials without permission for educational purposes would be beneficial for students. As the editors of the UCLA Daily Bruin write: "With increased tuition fees, living expenses and constantly looming debt, the last thing students want to dish out more money for is a heavy and overly expensive textbook that they will open once over the course of the quarter to read one paragraph."

But there is serious legal doubt to the legitimacy of the position of Georgia State in the lawsuit. In Princeton University Press v. Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996) , cert. denied, 520 U.S. 1156 (1997), the U.S. Court of Appeals for the Sixth Circuit held that photocopied "course packs" containing excerpts from copyrighted materials that sound very similar to those being posted on line by your university did NOT constitute fair use. Though there are many ways in which the internet changes the calculus one must apply to questions of fair use, I don't see any particular way Georgia State's actions differ from those of the University of Michigan professors actions in making available to their students photocopied coursepacks consisting of collections of excerpts from copyrighted texts.

Of course, the federal courts in Georgia are not bound to follow the Sixth Circuit's decision in Princeton University Press, but that decision has not proven to be a particularly controversial one with respect to its doctrine. As Stephana Colbert and Oren Griffin explain in "The Impact of Fair Use on Higher Education: a Necessary Exception?", 62 Albany L. Rev. 437, 454-55 (1998): "the Congress that passed the Copyright Act in 1976 would pretty clearly have thought it unfair for a commercial copyshop to appropriate as much as 30 percent of a copyrighted work without paying the license fee demanded by the copyright holder . . . ."

Neverthless, the issue is "[o]ne of the most contentious issues between libraries and publishers in the digital age . . . ." As Colbert and Griffin point out:

T]he changes in technology and teaching practices that have occurred over the last two decades might conceivably make Congress more sympathetic to the defendants' position today. If the law on this point is to be changed, however, we think the change should be made by Congress and not by the courts.

Thus, while suggesting that [Michigan Document Services had] has legislative support for its conduct, the court left open the possibility that a different result might be forthcoming should Congress revisit the copyright statute. Certainly, technology has had a dramatic impact on virtually every segment of American society, and to think that the application of American copyright law has been unaffected by the advances in technology since 1976 is naive.

See also Melamud, Pursuing Fair Use, Libraries, and Electronic Reserves, 92 Law Libr. J. 157 (2000)(pdf).

What can you do? Well, you don't have to send a takedown notice or sue.

From Techdirt, a question -- who will be the first to sue Girl Talk? I don't think it will be LL Cool J -- and mention of a small industry of "sample trolls":

[W]ith over 300 samples used on the album, there's almost certainly going to be a few who get upset [by the Girl Talk album]. . . . [T]he woman in charge of the copyright for the band the Guess Who is planning to go after Girl Talk, noting that: "We'll chase it down. What more can you do?" Well, actually, there's plenty more that you can do -- such as recognizing that no one who hears the music on Girl Talk is going to see that as a replacement to the Guess Who's album -- and, if anything, it might entice new fans to the original.

But, eventually a legal battle is going to pop up -- and while Gillis and his label are banking on "fair use" claims to protect them, the history of court cases on this particular question have shown the courts (wrongly) seem to count nearly any require a license. This has created a small industry of "sample trolls" getting the rights to various songs (often via very questionable means) and then suing anyone who samples just a few notes from it. It seems quite likely that sooner or later someone is going to go after Gillis for this.

Is Coldplay original?

This whole question of originality can make one's head spin. It may not help Coldplay's situation that Chris Martin has been quoted in the past as saying "We're definitely good, but I don't think you can say we're that original," he notes. "I regard us as being incredibly good plagiarists."



Addendum, from Techdirt:

[T]he guy from Creaky Boards later not only retracted his accusation, but suggested that perhaps both bands were actually "inspired" by the "Fairy Theme" in the Legends of Zelda. In a world of strict copyright, of course, that might make both songs "illegal," though I doubt anyone would think that would be the optimal outcome.

. . . The thing is, part of the point we keep trying to make around here is that, for the most part, that's true of just about everyone. It's the overly aggressive use of copyright law that prevents that sort of "goodness" from showing up. Oh, and it's also worth mentioning, that this little story has definitely increased the profile of The Creaky Boards -- proving one of the points we recently made about plagiarism. Even if the plagiarist is "bigger" than you, the original creator can use that to their advantage as well.

Kid Rock doesn't steal, but is there anything original about him?

Speaking of Kid Rock, of course, brings to mind his own appropriation of Lynyrd Skynyrd's Sweet Home Alabama, Warren Zevon's Werewolves of London, and Bog Seger's Night Moves, which can't help but bring back a fond nostalgia for the much maligned decade of my teens (the '70s). I have no doubt, of course, that Kid Rock paid big bucks to the copyright holders of the songs he appropriated (though, perhaps, not to Seger, from whose Night Moves there isn't quite copying), but I'm sure he's made far, far more than he paid.

And could there possibly be a more fitting instance of The Manual's principles in action?

Kid Rock says he was kidding about saying it's okay to download his songs for free.

Kid Rock, "who has resisted selling his music on iTunes and other online stores, tells The Associated Press he was just kidding." (Hope AP doesn't send me a takedown notice!)

Copyright Ignorance from MTV.com

In connection with yesterday's post about Girl Talk's new album, I can't help but mention today's post on MTV.com by James Montgomery. Montgomery writes of listening to the album while flying on a plane along with L.L. Cool J and wondering:

Song seven on the [Girl Talk] record is called "Like This," and it features, in addition to a whole lot of other things, two very audible samples of LL's "Mama Said Knock You Out," two samples that Girl Talk did not obtain LL's permission to use, which means that they appear in the song illegally, which means that LL is not getting paid for their usage, which would probably make LL very upset if he had any idea that this was happening. (emphasis added.)

Then Montgomery writes that Girl Talk's Greg Willis uses "the concept of 'fair use' to shield himself from any pesky copyright suits."

I can't believe someone from MTV.com is writing on these issues from such a state of ignorance. It's far from certain that what Girl Talk is doing is "illegal," and "fair use" is no "technicality" to shield one from copyright infringement lawsuits. It's one's constitutional right.

And, incidentally, D.J. Danger Mouse has not, as Montgomery implies, "left the [musical collage] genre behind.

Addendum: First, according to Will in the comments, Mr. Montgomery should have known better than to think LL Cool J would've been upset by Girl Talk's appropriation because "LL recently recorded a 'mixtape' called 'Return of the G.O.A.T.' featuring a number of freestyles over uncleared sampled beats."

Second, and more important in trying to determine whether Girl Talk's appropriations constitute fair use, Mr. Montgomery's own evaluation of Girl Talk's music basically makes the case that the use is "transformative" and therefore does constitute fair use. He writes: "[Girl Talk's] new album is so great, the kind of thing that could not have existed 10 years ago, an audio time capsule of the era in which we live. The kind of thing that can inspire post-millennial dilemmas at 37,000 feet."

Then again, inasmuch as Mr. Montgomery is a shill for MTV, and MTV is part of a corporate conglomerate with every interest in hiding the realities of fair use from the public, it should be no surprise that he writes with such ignorance about fair use. Here are some posts to try to begin to bring him up to speed.

Is the use "commercial" if you ask for a donation in return?

Girl Talk's "Feed the Animals" is the latest product from Illegal Art that raises the question, posed by the N&VR Journal: "at what point does sampling end, and a new creation with a new 'songwriter' begin?" It's a question posed again and again by musical collage. It is not, as this blog again and again points out, a position that is "anti-copyright." Rather, as Illegal Art's founder, Philo T. Farnsworth, explains:

I should clarify that we are and we aren't anti-copyright. We're against copyright law when it impedes an artist's ability to interact with pre-existing recordings. We're not against copyright protecting artists from someone copying their material and selling it without compensating them.

But, as we all know by now, whether the use of copyrighted material is a fair use requires a holistic consideration of four factors, including the purpose and character of the use, which itself includes a consideration whether the use is commercial or not. "Feed the Animals" raises a question with respect to this factor I have never encountered before: is the use a commercial one if the creator, instead of selling the product, offers it along with a request for a donation? Illegal Art will allow you to download "Feed the Animals" without donating anything; I did so. That's no sale. Under basic contract law, therefore, this deal is no "contract": one can obtain the album without giving or promising anything in return.

Of course, whether a use is commercial is only one factor among many in determining whether it is a fair use; it is not even the entirety of the "nature of the use" factor. But the fact Illegal Art will give away the product for nothing does weigh in favor of its legality.

And, like the video discussed yesterday, the album is there, available on the internet, as yet unchallenged by any of the owners of the material appropriated by it. There is always that vast amount of human behavior that may or may not be illegal but still happens in a relatively unimpeded way. There also too is a vast amount of copyright overclaiming by copyright holders that use there economic weight to stop practices that would, if fought for, be upheld. Law is not always the answer to our questions, particularly when we are dealing, as we are, with a material reality that has changed and is changing as radically as the material reality of information in the digital age.

Digital locks, fair use, and the Constitution

Canada is considering legislation that would make it illegal to break digital protections on copyrighted material (i.e., so-called "DRM" ("Digital Rights Management") protection"). The Canadian bill apparently is intended to override existing rights, including the right to backup or copy digital materials for personal use or for fair use of materials with DRM protection. Apparently too, "mash ups and satire will be criminalized by the bill if they 'distort or mutilate a copyright performance.'" A group of Canadian musicians have severely criticized the bill, stating that "[t]he question is, who gains from this bill? It’s not musicians. Musicians don’t need lawsuits, we don’t need DRM protection. These aren’t the things that help us or our careers. What we do need is a government that is willing to sit down with all the stakeholders and craft a balanced copyright policy for Canada that will not repeat the mistakes made in the United States.”

The group is referring to 17 U.S.C. Section 1201 of the Digital Millennium Copyright Act,(the "DMCA"), which purports to make it unlawful to override a CD or DVD's digital copyright protection even if the copying of the copyrighted material is legitimate, non-infringing fair use.

Nevertheless, I'm not sure a court could impose liability under Section 1201 of the DMCA on someone who evades DRM protection on a CD or DVD if the copying is for a fair use. Fair use is founded in the Constitution, both in Article I, Section 7, which gives Congress the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," and in the First Amendment protection of free speech. In other words, fair use is a constitutional right, and constitutional rights cannot be derogated by legislation.

Not everyone agrees. Chris Soghoian writes that the creators of the Hillary's Inner Tracy Flick video are in violation of the DMCA's provision making it unlawful to copy material under DRM protection even if the video otherwise makes fair use of scenes from the movie Election. Soghoian cites to the statement by the U.S. Court of Appeals for the Federal Circuit in Atari v. Nintendo, 975 F.2d 832 (Fed. Cir. 1992), that "[t]o invoke the fair use exception, an individual must possess an authorized copy of a literary work." Thus, Soghoian concludes, if the creator of the video "used DVD-ripping software, its unencrypted, DRM-free copy of the work (which they would have needed to cut and paste bits into their mash up) is in no way authorized. This means, unfortunately for [the video's creator], that it would have no fair-use defense, and could thus face a copyright infringement lawsuit."

I'm not so sure. Congress cannot through legislation deprive someone of using material in a way the First Amendment of the Bill of Rights and Article I, Section 7 of the Constitution permit. Thus, I am confident, a statute that makes it unlawful to copy for fair use purposes any document stating "no copy of this document is permitted by its author for any purposes" would be unenforceable under the Constitution. I do not see why DRM protection, which can generally be cracked very easily, should, for fair use purposes, be treated any differently than such a bare declaration that any copying is unlawful.

The Associated Press Overreaches

The Associated Press, in a blatant disregard of fair use, is purporting to require payment for the quotation on a website of as few as five words from AP articles. The starting price, for five words, is $62.50 (@ $12.50/word). Pursuant to this policy, the AP has issued 6 DMCA takedown notices against the Drudge Retort, "claiming that the users linking to its stories are violating its copyright and committing 'hot news' misappropriation under New York state law." Apparently, the firestorm of protest the AP's new policy provoked has led to some rethinking on AP's part, but, as Michael Arrington of TechCrunch.com, explains:

The A.P. doesn't get to make its own rules around how its content is used, if those rules are stricter than the law allows. So even thought they say they are making these new guidelines in the spirit of cooperation, it's clear that, like the RIAA and MPAA, they are trying to claw their way to a set of property rights that don't exist today and that they are not legally entitled to. And like the RIAA and MPAA, this is done to protect a dying business model - paid content.

According to Columbia law professor Timothy Wu, "'the principal question is whether the excerpt is a substitute for the story, or some established adaptation of the story.' . . . Mr. Wu said that the case is not clear-cut, but he believes that The A.P. is likely to lose a court case to assert a claim on that issue. 'It’s hard to see how the Drudge Retort "first few lines" is a substitute for the story,' Mr. Wu said. "

A digital simulacrum is not creative enough to be copyrighted

In a decision entered today in Meshwerks, Inc. v. Toyotal Motor Sales, Inc., No. 06-422 (10th Cir. June 17, 2008)(pdf), the 10th Circuit Court of Appeals affirmed an order granting summary judgment and dismissing the copyright infringement case brought against Toyota by Meshwerks, which had created digital models of Toyota cars for use in Toyota's advertising. As the court explained, "[t]hese digital models have substantial advantages over the product photographs for which they substitute. With a few clicks of a computer mouse,the advertiser can change the color of the car, its surroundings, and even edit its physical dimensions to portray changes in vehicle styling; before this innovation, advertisers had to conduct new photo shoots of whole fleets of vehicles each time the manufacturer made even a small design change to a car or truck." Professor Patry strongly criticized the lower court's decision and will no doubt be unpersuaded by the 10th Circuit's affirmance. The court concluded, however, that the digital models did not have a sufficient degree of creativity to entitle them to copyright protection because

Meshwerks’ digital wireframe computer models depict Toyota’s vehicles without any individualizing features: they are untouched by a digital paintbrush; they are not depicted in front of a palm tree, whizzing down the open road, or climbing up a mountainside. Put another way, Meshwerks’ models depict nothing more than unadorned Toyota vehicles – the car as car. See Appendix A. And the unequivocal lesson from Feist is that works are not copyrightable to the extent they do not involve any expression apart from the raw facts in the world. As Professor Nimmer has commented in connection with the predecessor technology of photography, “[a]s applied to a photograph of a pre-existing product, thatbedrock principle [of originality] means that the photographer manifestly cannot claim to have originated the matter depicted therein . . . . The upshot is that the photographer is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” Nimmer on Copyright § 3.03[C][3]. It seems to us that exactly the same holds true with the digital medium now before us: the facts in this case unambiguously show that Meshwerks did not make any decisions regarding lighting, shading, the background in front of which a vehicle would be posed, the angle at which to pose it, or the like – in short, its models reflect none of the decisions that can make depictions of things or facts in the world, whether Oscar Wilde or a Toyota Camry, new expressions subject to copyright protection.

Is it parody if the point is not to make fun of the original?

Little, Brown is publishing “Goodnight Bush,” an unauthorized parody of the 1947 children’s bedtime classic “Goodnight Moon,” written by Margaret Wise Brown and illustrated by Clement Hurd: The cover of “Goodnight Bush” looks almost exactly like “Goodnight Moon — green and orange, with an image of a window and fireplace — and uses a similar rhyme scheme. But there the thematic similarities end.

The authors, Erich Origen and Gan Golan, set their story in “a situation room.” There is no bunny snuggling into bed, but rather George W. Bush, grinning and wearing a “Mission Accomplished” flight suit. Instead of three little bears sitting on chairs, there are “war profiteers giving three cheers.”
Subsequent pages tell of “A grand old party to war in a rush/And a quiet Dick Cheney whispering hush.” The vice president is illustrated seated in a rocking chair — with a shotgun in his lap and bunny slippers on his feet. . . .

The publisher of “Goodnight Bush” is counting on the fair use doctrine, which allows limited amounts of copyrighted material to be used without permission. “Parody as fair use is a developing area of the law,” said Pamela Golinski, an entertainment lawyer in New York, “and as a result, whether a given parody merits the shield of the fair use doctrine is a complex question.”

Little, Brown may have some difficulty in sustaining its fair use defense in light Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), in which the U.S. Court of Appeals for the Ninth Circuit held that the re-telling of the facts of the O.J. Simpson murder trial in the style and rhythms of Dr. Seuss's The Cat in the Hat was not fair use. The court concluded the book was a satire, not a parody, because the book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and style to tell the story of the murder.

Readers of this blog will not be surprised to know the parody/satire distinction seems a tenuous one. Every parody makes a point independent of its ridicule of the original, and every satire requires recognition of the original to accomplish it's artistic intent. Do the copyright holders to The Cat in the Hat own its metrical scheme?

YouTomb

YouTomb is a research project by MIT Free Culture that tracks videos taken down from YouTube for alleged copyright violation. More specifically, YouTomb continually monitors the most popular videos on YouTube for copyright-related takedowns. Any information available in the metadata is retained, including who issued the complaint and how long the video was up before takedown. The goal of the project is to identify how YouTube recognizes potential copyright violations as well as to aggregate mistakes made by the algorithm. Who is behind YouTomb? YouTomb was built by MIT Free Culture, a student organization at MIT. Active Free Culture chapters exist at many schools and universities; they work together to promote open access to knowledge and culture.

What's recently been taken down?
John Lennon's #9 Dream, which had originally been posted on September 2, 2006, and was taken down today.

Gee, do you think today's move has anything to do with pique over the decision rejecting Yoko Ono's motion for a preliminary injunction and allowing Expelled to be distributed with the 15 seconds of "Imagine" remaining?

Copyrighted recordings are subject to fair use too, but too few act that way

Finally, perhaps, the RIAA and ASCAP's reign of overclaiming copyright by asserting the fee simple ownership of every last component of every last copyrighted recording and song is coming to an end.

I've never understood why recording artists tolerate a regime in which they pay to use the sample of another recording, no matter how brief. Art thrives on recognizable quotation. It would be pointless for art to quote something unrecognizable. Recognizable notes carry meaning and connotations that are the very product of their recognizability, and art depends on evoking large meanings from small pieces. Nor can anyone argue that the brief sample of one recording in another deprives the original of sales; if anything, bringing the old song back into consciousness through the effective "quotation" of one of its recognizable parts could only conceivably help sales of the original.

Then again, perhaps I do understand the toleration of the licensing system that exists for the use of prerecorded samples. They bow to the RIAA, which (mis) states that "generally speaking, the use of any part of a song requires a license." (emphasis added) Thoughtless court decisions have endorsed the RIAA's position. As previously noted on this blog, paying for every last sampled note from a copyrighted song became industry practice after Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)(Duffy, J.), in a decision that did not even consider issues pertaining to fair use, enjoined the distribution of Biz Markie's third album because one of its songs sampled three words and the accompaniment ostinato of Gilbert O’Sullivan’s schlock hit “Alone Again, Naturally.” Duffy wasn't satisfied with a mere injunction, however: he referred the defendants to the U.S. Attorney's office for criminal prosecution and wrote in his opinion, like a preacher from the pulpit,"Thou shalt not steal." [Exodus, Chapter 20, Verse 15] has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed."

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2004), compounded this folly, holding that the defendant had committed copyright infringement by using in his own musical recording a two-second sample from an earlier copyrighted recording, lowering the pitch, and looping the sample to extend it to 16 beats. Again, the court failed entirely to consider the First Amendment rights that must be balanced against maintaining the composer's incentive to create, the very core of the fair use doctrine.

The Biz Markie case, Grand Upright Music, is generally considered the reason industry practice is to pay for any and all recorded samples. Record companies certainly have no interest in challenging the existing regime. The recordings they own are held inviolate too, so why challenge the right of another recording company to require payment for any sample, no matter how small, no matter transformative its use is, and no matter how little impact it will have on the market for the sampled piece? Artists who would challenge the existing regime hardly have the financial wherewithal to challenge the industry and the enormously successful artists who benefit from it. Thus, as Jonathan Lethem has written, "[a]lthough sampling was just a technological extension of the age-old process of learning through imitation, producers who use samples now pay up instead of trying to set precedents for fair use. "

This all goes in part to explain, I suppose, why I am so adamant in my support of the producers of Expelled, despite my contempt for their message and my respect, admiration, and love for their adversaries in their copyright litigation. Free speech is free speech. I even supported the rights of Nazis to march through a community full of Holocaust Survivors (as, of course, did the U.S. Supreme Court).

Maybe, however, times are beginning to change:

Just when it seems like mashups are played out — or playing dead, thanks to litigious record labels — along comes Girl Talk (nee Gregg Gillis). For last year's album Night Ripper, the laptop mixologist used more than 250 samples from 167 artists. Raps by Ludacris rub up against a Boston riff, the Ying Yang Twins whisper over the Verve's "Bittersweet Symphony." As the album became an indie sensation, Gillis resigned himself to the inevitable cease-and-desist order. But it never materialized. "Labels are starting to realize that something like Night Ripper isn't going to hurt their artists," Gillis says. "If anything, it will promote them."

Yes, it's smart business. But business should not define the rights of artists and writers to use the resonant pieces of our culture to express their own points of view. It is absurd to repeat the oft-repeated canard that "[i]t is well established that using just a few seconds or bars of a musical composition violates the copyright in a work if the piece taken was the "hook'' or 'essence' of the original song." If the sample does not in fact evoke the original, there's no point in using the sample. It's the sample's very recognizability and its cultural resonances that make it a usefully compressed sign in the appropriating work.

If we depend on business to determine when sampling is permissible and when it is not, we'll never have samples in works the original artists don't like. If you support the teaching of intelligent design and you leave it to business to define your rights to sample music, you'll never, ever be able to use a John Lennon piece, no matter how seminal you believe it is in expressing the views you abhor. If you are Biz Markie creating a new work that rejects the sentiment and sappiness of Gilbert O'Sullivan's ouevre, you'll never be able to sample a Gilbert O'Sullivan work.

I wish I could tell Judge Kevin Duffy that "Thou shalt not steal" does not exhaust Old Testament wisdom.

The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun. -- Ecclesiastes 1: 9 (KJV)