Thursday, March 27, 2008

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.

Wednesday, March 26, 2008

The KLF as pop stars

The Timelords/KLF, "Doctorin' the Tardis," their 1988 British number one single:

"Doctorin' the Tardis" is predominantly a mash-up of the Doctor Who theme music and Gary Glitter's "Rock and Roll (Part Two)", with sparse vocals inspired by The Daleks and Harry Enfield's "Loadsamoney" character. Also credited on the record was "Ford Timelord", Cauty's 1968 Ford Galaxie American police car (claimed to have been used in the film Superman IV filmed in the UK). Drummond and Cauty declared that the car had spoken to them, giving its name as Ford Timelord, and advising the duo to become "The Timelords".

KLF, with Tammy Wynette, "Justified and Ancient" (#1 in the U.S., #2 in the U.K.:

The Red Army Choir

one of K Cera Cera's components doesn't seem so "original" after all now, does it?

Stewball, a traditional Irish folk song:

Happy Xmas (the War is Over), John Lennon & Yoko Ono:

DJ Danger Mouse's Grey Album and the Grey Video

The Grey Album, Part 1:

The Grey Album, Part 2:

From Illetgal Art:


DJ Danger Mouse remixed the vocals from Jay-Z's The Black Album and the Beatles' White Album and called his creation The Grey Album. He sent about 3,000 promo copies out, and was soon served with a cease-and-desist notice from EMI, who owns the rights to the White Album master. Danger Mouse complied with EMI's order, but Stay Free! (sponsors of the Illegal Art Exhibit) and other fans and activists continued distributing the record over the Internet. EMI sent legal threats to many of us as well but later backed down. Next, SONY/ATV -- who owns the rights to the Beatles' compositions -- stepped in and sent our internet service provider a DMCA takedown notice (3/1/2004). We secured legal representation from the EFF, moved our website to the Online Policy Group (a free-speech ISP), and responded to Sony with this letter. Fortunately, Sony also dropped the case and The Grey Album remains safely online.

For more info, check out:

EFF's overview of the Grey Album case
Grey Tuesday (protest organized by Downhill Battle)
New York Times on Grey Tuesday
Rolling Stone's review of the Grey Album
Boston Globe's review.


Grey Album .torrent courtesy of You will need Bittorrent software to download this.

From Wikipedia (links omitted):

The Grey Video is a music video made in the autumn of 2004 by directing team Ramon & Pedro, that is Swiss directors Laurent Fauchere and Antoine Tinguely . . . to promote the single "Encore" from The Grey Album.

The video, which is entirely in black and white, features clips from The Beatles' film A Hard Day's Night, and footage from a Jay-Z performance. It uses new footage and computer generated imagery to create scenes that involve John Lennon breakdancing and Ringo Starr scratching.

One artist's view on creative and non-creative appropriation

Artist Mark Vallen's critique of the Shepard Fairey's solo "art" exhibition:

. . . Fairey has developed a successful career through expropriating and recontextualizing the artworks of others, which in and of itself does not make for bad art. Pop artist Roy Lichtenstein based his paintings on the world of American comic strips and advertising imagery, but one was always aware that Lichtenstein was taking his images from comic books; that was after all the point, to examine the blasé and artificial in modern American commercial culture. When Lichtenstein painted Look Mickey, a 1961 oil on canvas portrait of Mickey Mouse and Donald Duck, everyone was cognizant of the artist’s source material - they were in on the joke. By contrast, Fairey simply filches artworks and hopes that no one notices - the joke is on you.

Plagiarism is the deliberate passing off of someone else’s work as your own, and Shepard Fairey may be unfamiliar with the term - but not the act. This article is not about the innocent absorption of visual ideas that later materialize unconsciously in an artist’s work, we do after all live in a maelstrom of images and we can’t help but be affected by them. Nor am I referring to an artist’s direct influences - which artist can claim not to have been inspired by techniques or styles employed by others? What I am concerned with is the brazen, intentional copying of already existing artworks created by others - sometimes duplicating the originals without alteration - and then deceiving people by pawning off the counterfeit works as original creations. . . .

Turning an appropriation against its appropriator

Tuesday, March 25, 2008

Is the U.S. one big remix?

In light of the last 2 posts, the question seems to be: should the law encourage the creativity made possible by the combination of digital media and the internet, or would doing so put too much at risk the incentives copyright holders have to create?

From Remix America, there's this response:

This country is a remix, it's what we do. What did Jefferson and Paine and Adams do but mashup history, take a little from the Magna Carta, a little from John Locke, and a whole lot of rebellion. Now, thanks to the web and digital technology, everyone can join in.

This is a unique moment in our history -- We can rediscover the promise of the Declaration of Independence next to the music of Louis Armstrong next to the beats of the Beastie Boys and clips of our candidates talking about "Changes." Every one of us can own our best expressions of liberty, democracy and freedom, remix them as they see fit, and share them with the world. is a multi-partisan, non-profit website that uses digital technology to give everyone the chance to own the words, the music, the images and sounds of America in digital form; to remix those expressions and ideas with their own; and to send the products of our community's creativity out to the world... where others will come back to us and start it all over again...

There's no telling where this can go – we want to be the place where millions can post their post their dreams, their hopes, their frustrations about our country via text , video responses and remixes...

We want to be a home millions of voices that can change the National conversation.

The implications of allowing creative appropriation art

In Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)(pdf), the Second Circuit did seem to adopt a version of the reasoning in the preceding post: a work that appropriates the heart of another copyrighted work constitutes fair use as long as it (1) is a genuinely creative work and (2) does not exploit a market created by the copyrighted work. As previously noted on this blog, the Second Circuit concluded that Koons' painting, Niagara, passed the "transformative test" “almost perfectly” because Koons changed the original copyrighted picture’s “colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details.” Also, and “crucially,” Koons’s painting had an “entirely different purpose and meaning – as part of a massive painting commissioned for exhibition in a German art-gallery space.” Thus, the court concluded, “[t]he question is whether Koons had a genuine creative rationale for borrowing Blanch’s image, rather than using it merely to get attention or to avoid the drudgery in working up something fresh.” The court, of course, concluded Koons did have such a genuine creative rationale.

Obviously, too, the court had to conclude that Niagara had no impact on the market for the original copyrighted photo Koons had appropriated. Reaching that conclusion in Blanch v. Koons was easy; Koons' painting was directed at a market for fine art that bore little economic relationship to the market at which the original photograph was aimed -- commercial advertising. Nevertheless, it is important to remember that in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the Supreme Court did not actually find that 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Woman" constituted fair use. Rather, Justice Souter required the trial court on remand to determine whether or not 2 Live Crew's song had an impact on the primary or derivative markets for Roy Orbison's song:
In explaining why the law recognizes no derivative market for critical works, including parody, we have, of course, been speaking of the later work as if it had nothing but a critical aspect (i.e., "parody pure and simple," supra, at 22). But the later work may have a more complex character, with effects not only in the arena of criticism but also in protectable markets for derivative works, too. In that sort of case, the law looks beyond the criticism to the other elements of the work, as it does here. 2 Live Crew's song comprises not only parody but also rap music, and the derivative market for rap music is a proper focus of enquiry, see Harper & Row, 471 U.S., at 568 ; Nimmer 13.05[B]. Evidence of substantial harm to it would weigh against a finding of fair use, because the licensing of derivatives is an important economic incentive to the creation of originals. See 17 U.S.C. 106(2) (copyright owner has rights to derivative works). Of course, the only harm to derivatives that need concern us, as discussed above, is the harm of market substitution. The fact that a parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market.

Although 2 Live Crew submitted uncontroverted affidavits on the question of market harm to the original, neither they nor Acuff-Rose introduced evidence or affidavits addressing the likely effect of 2 Live Crew's parodic rap song on the market for a non-parody, rap version of "Oh, Pretty Woman." And while Acuff-Rose would have us find evidence of a rap market in the very facts that 2 Live Crew recorded a rap parody of "Oh, Pretty Woman" and another rap group sought a license to record a rap derivative, there was no evidence that a potential rap market was harmed in any way by 2 Live Crew's parody, rap version. The fact that 2 Live Crew's parody sold as part of a collection of rap songs says very little about the parody's effect on a market for a rap version of the original, either of the music alone or of the music with its lyrics. The District Court essentially passed on this issue, observing that Acuff-Rose is free to record "whatever version of the original it desires," 754 F.Supp., at 1158; the Court of Appeals went the other way by erroneous presumption. Contrary to each treatment, it is impossible to deal with the fourth factor except by recognizing that a silent record on an important factor bearing on fair use disentitled the proponent of the defense, 2 Live Crew, to summary judgment. The evidentiary hole will doubtless be plugged on remand.

(citations and footnotes omitted).

In this day and age, a day and age that literally is no more than 2 to 5 years old, the implications of the Second Circuit's decision in Blanch v. Koons are potentially profound and problematic. The technological ease of ease of creating pieces of "appropriation art" and instantly disseminating them worldwide means that we will have an infinite number of creations that beg the question: do they affect the primary or derivative markets of the copyrighted works they appropriate? Could the courts (or any other institution) possibly cope with the burden of making those decisions?

Monday, March 24, 2008

Where is the line between derivative and transformative works

Could it be that the line between a derivative piece of appropriation art and a transformative one (i.e., the line between infringement and fair use) is defined by whether the allegedly infringing work is (1) creative and (2) does not exploit a market created by the original work?

In other words, a commercial work can appropriate the heart (or even the entirety) of a copyrighted work without infringing the copyright if it (1) is a genuinely creative work and (2) does not exploit a market created by the copyrighted work.

The Seinfeld trivia book challenged in Castle Rock Entertainment, Inc. v. Carol Publishing Group,
150 F.3d 132 (2nd Cir. 1998), failed on both counts: (1) it was a collection of "facts" derived from Seinfeld and simply rearranged (much like the telephone directory in Feist) and (2) it was directed at fans of the Seinfeld show, a market the show had created and had therefore had the exclusive right to exploit.

Unconscious Plagiarism

In Three Boys Music v. Michael Bolton, 212 F.3d 477 (9th Cir. 2000), cert. den'd sub nom. Bolton v. Three Boys Music Corp., 531 U.S. 1126 (2001), the Ninth Circuit's upheld a jury award of $5.4 million against Michael Bolton and Sony (the record company associated with him) for "unconsciously" plagiarizing the Isley Brothers' "Love is a Wonderful Thing." As noted by the Columbia Law Library Music Plagiarism Project, the case is comparable to Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976), modified and remanded sub nom., ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 1983 U.S. App. LEXIS 15562, Copy. L. Rep. (CCH) P25603, 221 U.S.P.Q. (BNA) 490 (2d Cir. N.Y. 1983), in which the court held that in his hit song "My Sweet Lord" George Harrison had "unconsciously misappropriated the musical essence of 'He's So Fine.'"

Sunday, March 23, 2008

Patry on Appropriation Art

Patry on Copyright
Database updated March 2008
William F. Patry
Chapter 10. The Fair Use Defense

Appropriation art poses very difficult problems for fair use, including whether it constitutes a comment, criticism, or parody.[FN1] The answer to that question is complicated in the case of appropriation art by its very essence, a conceptual statement, rather than a classic transformative use. Both artists and judges have very different about how appropriation fits into fair use: is it a well-recognized form of artistic expression, or is it piracy? In Rogers v. Koon,[FN2] as Judge Posner and Professor Landes have observed: "From the perspective of copyright law the very term "Appropriation Art" is a provocation; "appropriation" of a copyrighted works connotes stealing."[FN3] If art is in the eye of the beholder, such fair use appropriation art is even more so.

[FN1] See William Landes, Borrowed Images, and Appropriation Art: an Economic Approach, 9 Geo. Mason L. Rev. 1 (2000).

[FN2] Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).

[FN3] Landes and Posner, The Economic Structure of Intellectual Property Law, 261 (2003). See also Landes and Posner, The Economic Structure of Intellectual Property Law at 262-229. It should be noted that this is not Landes and Posner's own view; they believe the Koons case was incorrectly decided.

More on that JibJab This Land is Your Land video

From the Electronic Frontier Foundation, on the JibJab This Land is Your Land video:

Music publisher Ludlow Music, Inc., has officially backed down on its threats against web animation studio JibJab Media Inc. over the widely circulated "This Land" animated parody lampooning President Bush and Senator Kerry. JibJab had responded to Ludlow's threats by engaging the Electronic Frontier Foundation (EFF) to file suit on its behalf in San Francisco on July 29, 2004, seeking judicial confirmation that JibJab's work was a protected "fair use" and did not infringe Ludlow's copyrights.

During the course of investigating the case, EFF learned that "This Land is Your Land," the classic Woody Guthrie song, is part of the public domain and has been for several decades.

EFF's investigation revealed that "This Land is Your Land" appears to have been in the public domain since the early 1970s. Woody Guthrie wrote his classic American song in 1940, when the copyright laws granted a copyright term of 28 years, renewable once for an additional 28. According to EFF, the initial copyright term was triggered when Guthrie sold his first versions of the song as sheet music in 1945. The copyright on the song then ran out when Ludlow failed to renew its registration in 1973. Ludlow believes its copyright -- initially filed in 1956 and renewed in 1984 -- remains valid and disputes EFF's claims.

"We believe that Guthrie's classic tune, 'This Land Is Your Land,' belongs to all of us now, just like Amazing Grace and Beethoven's symphonies" said Fred von Lohmann, senior staff attorney with EFF. "The idea of copyright law is that, after a time, every work comes back into the hands of the public, where it can be reused, recycled, made part of new creativity without having to pay a fee or call in the lawyers. That's a great thing, the real genius of copyright."

JibJab dismissed its suit against Ludlow. As part of the settlement of the case, JibJab will remain free to continue distributing the "This Land" animation without further interference from Ludlow.

The First Amendment's relationship with the Fair Use Doctrine

In SunTrust Bank v Houghton Mifflin Co. 268 F3d 1257, 60 USPQ2d 1225, 14 FLW Fed C 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001), the owners of the copyright to Gone With the Wind sued the publisher that owned the rights to The Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind. The district court found the newer book infringed on the copyright of decedent's book, that irreparable injury could be presumed, and granted a preliminary injunction. On appeal, the publisher argued that there was no substantial similarity between the two works or, in the alternative, that the doctrine of fair use, 17 U.S.C.S. § 107, protected the newer book because it was primarily a parody. The 11th Circuit found that the newer book was clearly a parody, a specific criticism of and rejoinder to the decedent's book, that it provided social benefit by shedding light on the earlier work. Although fair use was an affirmative defense, the trustee had the burden of proof to obtain injunctive relief. It was also apparent that there would be little risk of market substitution, as the works were unlikely to be confused. In vacating the preliminary injunction against publication of The Wind Gone Wrong, the 11th Circuit stated that

the court held First Amendment privileges are also preserved through the doctrine of fair use. Until codification of the fair-use doctrine in the 1976 Act, fair use was a judge-made right developed to preserve the constitutionality of copyright legislation by protecting First Amendment values. Had fair use not been recognized as a right under the 1976 Act, the statutory abandonment of publication as a condition of copyright that had existed for over 200 years would have jeopardized the constitutionality of the new Act because there would be no statutory guarantee that new ideas, or new expressions of old ideas, would be accessible to the public. Included in the definition of fair use are "purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research." Section 107. The exceptions carved out for these purposes are at the heart of fair use's protection of the First Amendment, as they allow later authors to use a previous author's copyright to introduce new ideas or concepts to the public. Therefore, within the limits of the fair-use test any use of a copyright is permitted to fulfill one of the important purposes listed in the statute.

Because of the First Amendment principles built into copyright law through the idea/expression dichotomy and the doctrine of fair use, courts often need not entertain related First Amendment arguments in a copyright case. See, e.g., Eldred, 239 F.3d at 376 (where the works in question "are by definition under copyright; that puts the works on the latter half of the 'idea/expression dichotomy' and makes them subject to fair use. This obviates further inquiry under the First Amendment."); Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999) ("We have repeatedly rejected First Amendment challenges to injunctions from copyright infringement on the ground that First Amendment concerns are protected by and coextensive with the fair use doctrine."); Los Angeles News Serv. v. Tullo, 973 F.2d 791, 795 (9th Cir. 1992) ("First Amendment concerns are also addressed in the copyright field through the 'fair use' doctrine.").

The case before us calls for an analysis of whether a preliminary injunction was properly granted against an alleged infringer who, relying largely on the doctrine of fair use, made use of another's copyright for comment and criticism. As discussed herein, copyright does not immunize a work from comment and criticism. Therefore, the narrower question in this case is to what extent a critic may use the protected elements of an original work of authorship to communicate her criticism without infringing the copyright in that work. As will be discussed below, this becomes essentially an analysis of the fair use factors. As we turn to the analysis required in this case, we must remain cognizant of the First Amendment protections interwoven into copyright law.

Sun Trust, 268 F.3d at 1264-65