Saturday, February 23, 2008

Plagiarizing Silence

According to its authors, Death by Copyright "is a catalogue of the unintended consequences of overly broad and inflexible copyright laws." This is one of my favorites:

Mike Batt is a British classical composer who put together a group called "The Planets" in 2001. Their first album was called Classical Graffiti. In it Batt included a track with one full minute of silence. He said it was a tongue-in-cheek dig at a John Cage piece called 4 minutes 33 seconds which was similarly a track of total silence, albeit somewhat longer. Batt, credited himself as well as Cage with writing the piece. There would be precious few other ways to identify who the dig was directed at. Unfortunately, Batt soon found himself on the receiving end of a lawsuit from the estate of John Cage, who had died several years previous. In the trustees' view "We do feel that the concept of a silent piece - particularly as it was credited by Mr Batt as being co-written by 'Cage' - is a valuable artistic concept in which there is a copyright."

Batt did eventually come to an out-of-court resolution over this but it did end up costing him a ridiculous undisclosed 6-figure amount.

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.

What is an author?

From Peter Jaszi, Case Western Reserve's own Martha Woodmansee, and their collaborators, an excerpt from Beyond Authorship: Refiguring Rights in Traditional Culture and Bioknowledge:

An "author" in the modern sense is the creator of unique literary, or artistic, "works" the originality of which warrants their protection under laws of intellectual property -- Anglo American "copyright" and European "authors' rights." This notion is so firmly established that it persists and flourishes even in the face of contrary experience. Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary.

This individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than two centuries ago in the heroic self-presentation of Romantic poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but in a new, unique -- in a word, "original" -- work which, accordingly, may be said to be the property of its creator and to merit the law's protection as such.

With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-Europeans, artists working in traditional forms and genres, and individuals engaged in group or collaborative projects, to name but a few. Exposure of these exclusions -- the recovery of marginalized creators and underappreciated forms of creative production -- has been a central occupation of cultural studies for several decades. But the same cannot be said for the law. Our intellectual property law evolved alongside of and to a surprising degree in conversation with Romantic literary theory. At the center -- indeed, the linchpin -- of Anglo-American copyright as well as of European "authors' rights" is a thoroughly Romantic conception of authorship. Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual property regime. In patent it survives today both in figurations of the inventor and in the emphasis, which this body of law shares with copyright, on the "transformative" moment in the creative process.


The KLF had an earlier copyright dispute with ABBA. The KLF lost, but later released a censored version of the disputed LP with the disputed samples removed, as well as written instructions on how to recreate the original. The entire album, without the samples ABBA insisted be removed, is available in mp3 format here. The text on the edge of the label of both sides of the LP stated:
All sounds on this recording have been captured by the KLF. In the name of Mu, we hereby liberate these sounds from all copyright restrictions, without prejudice. A KLF Communication.
A precursor to Creative Commons licensing?

It may not be shocking to learn that
bootlegs of the original LP are available.

How long does a copyright last?

As the Copyright Website puts it:
Generally, when you think of copyright term, you think in terms of the author's lifespan, plus some bonus years. However, as Congress keeps extending the bonus years in an interminable game of hopscotch to keep Micky Mouse out of the public domain, the calculus for determining copyright term becomes a little more. In fact, as you can see in the flowchart below, the calculus really begins to look like calculus.
Lolly Gasaway of the University of North Carolina provides a useful chart that confirms the above characterization that calculating the duration of a copyright is, to put it mildly, difficult.

The original copyright registration to Que Sera, Sera from 1956 was renewed in 1984.

Ray Evans died in 2007.

Jay Livingston died in 2001.

After their deaths, the copyright to Que Sera, Sera was assigned to Jaylivingston Music and St. Angelo Music.

Friday, February 22, 2008

2 Live Crew took on Roy Orbison and won

Richard Posner on copyright overclaiming

Fair Use and Misuse, by Richard Posner

. . . Finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright's breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher's (or movie studio's) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn't know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit.

The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn't want to encourage such uses by permitting his own authors to copy from other publishers' works. So you have a whole "law in action" law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license. . . .

Another mashup, just because I like it so much

A Fair Use Fairy Tale

FAQ's on KLF

KLF Online version 3.0

Excerpts from KLF - the Documentary

U.S. Constitution, Article 1, Section 8, Clause 8

All copyright power derives from 27 words in Article 1, Section 6 of the U.S. Constitution:

The Congress shall have 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; . . . (emphasis added).
It does not state:
The Congress shall have the Power . . . To further the capacity of authors and inventors to extract any and all value that exists in their creations, by securing for a time in excess of the lifetimes of these Authors and Inventors the exclusive right to their respective writings and discoveries; . . .

John & Yoko in the '70's, plus Happy Xmas (the War is Over)

Thesecond performance of Que Sera, Sera from The Man Who Knew Too Much

The first performance of Que Sera, Sera from The Man Who Knew Too Much