How Just Making A Documentary About Copyright Might Get You Sued Over Copyright
from the bring-on-the-lawyers dept
Back in January, I attended Public Knowledge's excellent "Fair Use Movie Night" and wrote about it here on Techdirt. One of the speakers was Kembrew McLeod, who explained how difficult it was to make his film, Copyright Criminals, which is mostly about music sampling, and how the lawyers made that incredibly difficult. Over at The Atlantic, McLeod has a great article that is effectively a written version of what he said that night, discussing the legal insanity of trying to make a documentary about sampling without getting sued. While he did pay for and clear some of the clips in the film, there are over 400 clips that are uncleared -- and while he's betting that fair use would save him, he has no idea if it really would, and there's no way to know for sure unless someone sues him. And if someone sues him, the liability is not something to laugh about:While we raised the money to license about two-dozen songs and some footage, our film nevertheless contains over 400 brief-but-unlicensed uses of copyrighted material. When I can't sleep at night, I sometimes count how much we'd be liable for: up to $150,000 in statutory damages, per infringement. 400 x $150,000 = $60,000,000. Sixty. Million. Dollars.He points out how copyright law is not only ridiculous in such situations, it's also haphazard in that it's not applied consistently at all:
One of the more headache-inducing aspects of the way copyright law is interpreted is how haphazardly it is applied in different contexts. When writing a book, quoting another book is perfectly acceptable, but quoting more than two lines from song lyrics (even if it takes less than 0.001 percent of the book's total text) might give you and your publisher a problem. If your band perfectly imitates a distinctive drum rhythm from a Bo Diddley record, no worries, musicians have been doing that for half a century. But when you sample Diddley's beat it could be a copyright infringement if you don't get permission. Inversely, you don't need approval when you record a cover of someone else's song, as long as you pay the per-song fee that is set by Congress and don't alter the lyrics. It gets really confusing.This was the point we made recently concerning the difference between a "sampled" written work, and a sampled album.
McLeod also retells my favorite story from the night I saw him speak (which I wrote about in that original post) concerning his (brief) interactions with Bridgeport, the famed sample troll, though in this telling he adds some more details, including the fact that George Clinton has been sued for sampling his own music:
In a page ripped straight from Evil Corporation Digest, one of those slapped with a suit was George Clinton--for sampling one of his own records. True story. "Yeah, I got sued for sampling my own stuff," Clinton told us with a bemused smile. "In fact, I still got a suit pending." After trying for six weeks to license a song that Bridgeport partially controlled, a company representative finally got back to us. The man on the other line--who I imagine was chomping on a cigar--said only, "Denied!" Before abruptly hanging up, he added, "Denied. No reason!"Yes, five companies, each of which need to grant their approval and (not mentioned in the article, but spoken about back in January) is the fact that if one of the five (or, in some cases, more) companies demands a higher fee, all of the other co-owners need to get that higher amount as well. It makes it prohibitively expensive. This is unfortunate, because in many ways it's taken the fair use right out of music.
In an email, Bridgeport reminded us that "any of the songs involved in the sample settlements (Public Enemy, Digital Underground, and others) are entirely separate compositions which we own a portion of and which require our approval." That's because Bridgeport now controls portions of hundreds of hip-hop songs as a result of their litigation. For instance, if you want to license Digital Underground's biggest hit, "The Humpty Dance," you have to deal with Bridgeport--as well as up to five other companies currently listed as co-owners.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, copyright criminals
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Yes, but if you have a judge in the pocket of the music industry, then he/she will do everything to exclude any testimony to that fact. Even if it violates the rights of the defendant. Way to go for draconian justice. The only ones that win are the toolbags that have the power and money.
[ link to this | view in chronology ]
Lawyers
[ link to this | view in chronology ]
I dont trust musicians
[ link to this | view in chronology ]
You doth protest too much
Good article, but this last bit is just not true.
Each joint owner of a copyright has the right to grant non-exclusive licenses authorizing others to use the work even WITHOUT the consent of the other joint owners. The terms of that license are whatever that joint owner and the licensee agree upon. The license-granting joint owner must, however, pay the other joint owners their proportional share of the royalty earned from the license.
Sometimes joint owners will agree among themselves, via contract, that all must consent to any licensing arrangement but the law does not require them to enter any such agreement. If they did so agree but one of the joint owners licensed the work anyway, the license would still be valid [assuming the licensee did not know about the owners’ licensing restriction] and so the licensee could use the work – the remedy for the other joint owners being a breach of contract action against their wayward joint owner.
Acquiring rights to use copyright works IS way too complicated and onerous. But not as onerous as you've made it out to be. A good research paper on the subject from the documentary film world is here: http://j.mp/1im2Jd
[ link to this | view in chronology ]
Re: You doth protest too much
Interesting. Back at the event where Kembrew spoke, he claimed the opposite was true. Was he lying? Or confused? He was the one doing the licensing, and he suggested that this was absolutely the case.
[ link to this | view in chronology ]
Re: Re: You doth protest too much
[ link to this | view in chronology ]
Re: Re: You doth protest too much
The situation I was describing -- a song embedded with multiple samples -- is different, and DOES require that you acquire licenses from each separate publishing company that owns a stake in that song. I experienced this firsthand, which of course is why I wrote the essay.
[ link to this | view in chronology ]
Re: Re: Re: You doth protest too much
So the problem is that you want to include in your film a song created by compiling bits from other songs -- and you’re annoyed that you have seek permission from the creator of each one of the bits.
I don’t understand your annoyance.
It’s useful to take the issue out of the “digital world is different” paradigm to demonstrate that your annoyance is not warranted.
Fred, Suzy, Bill, and Jose each paint a painting. George takes a qualitative important bit from each and blends them into a new painting of his creation. Because of Fred, Suzy, Bill, and Jose’s contributions, Pete likes “George’s” painting and wants to use it to advertise his grocery store [or whatever].
Why should Pete be able to use “George’s” painting w/o first getting permission from Fred, Suzy, Bill, and Jose? If customers respond to Pete’s advertisement that’s a result of those artists talents. What’s the basis for Pete simply using their work w/o permission? There is none.
You’re Pete.
I get it that your film is educational and provides a public service. But so does every documentary film, every private hospital, every private school, every everything that provides society-benefiting services [perhaps even Pete’s grocery store]. The educational benefit of your film does not justify ignoring Fred, Suzy, Bill, and Jose rights in their artistic works [non-profit educational institutions rightfully have a statutory leg up in the fair use analysis]. Artists already have a tough time making a living.
If I were Fred, Suzy, Bill, and Jose – or whoever bought their rights – I’d be pissed that your using my work in your film w/o paying me. You’re making money on, in part, my work. So ask me. And I can say yes or no.
Compilation works have around for centuries. The only thing new about creating a compilation work via "sampling" is that it's so easy to do with digital content. We may come to a point when, as a society, we conclude that the vast numbers of new works made possible by this ease is more important than respecting the rights of the individual artists whose works have been "sampled." But we've not yet made that decision [though perhaps we should]. You, however, have no right to make that call on your own.
[ link to this | view in chronology ]
Re: Re: Re: Re: You doth protest too much
So, in some cases, songs with six samples required me to get permission from up to seven owners (if you count the sound recording side). Some of these individual owners wanted up to $10k for their share of one song. Based on the quotes we were getting back, the estimated costs of clearing the rights for the film would be $2-4 million, which isn't even a possibility for me.
Copyright Criminals contains dozens of brief audio quotes of songs from hip-hop's "golden era," which were essential to play so that the audience could hear how the music changed as hip-hop producers reacted to the constraints of the sample licensing system. I've co-written a book with Northwestern Law professor Peter DiCola that is based on over a hundred in-depth interviews with all the major stakeholders in the sample licensing system. Almost all of them complained that the system was inefficient at best and broken at worst. It's called Creative License, and it will be out on Duke UP early-2011.
As I said in my article, I tried to make a documentary that shows the effects of an inefficient licensing system, but that very same system muzzled my ability tell that story.
And as I also stated in the article, fair use enabled me to tell that story. While you are technically correct in saying that the first amendment doesn't protect copyright infringing speech, nevertheless, first amendment principles have long been a part of fair use case law. On that front, you are either being disingenuous or are uninformed.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: You doth protest too much
You write: " ... first amendment principles have long been a part of fair use case law. On that front, you are either being disingenuous or are uninformed."
My only mention of fair use was to laud the statutory non-profit educational fair use factor. That statutory recognition -- indeed command -- is clearly a GOOD thing. How is that disingenuous and of what am I uninformed?
In my original post I linked to the American University study that chronicled how difficult it is for documentary film makers to clear the rights to all the existing works used in their films. I recognize, just like everyone else on the planet, that existing law throws up insurmountable hurdles before those who want to create new works that incorporate existing works.
Like the dog that didn't bark, however, the absence of any alternative from you leads me to conclude that you have none -- and are simply griping. Which everyone does. I'd prefer a conversation that moves the discussion forward instead of one that simply rehashes [for the umpteenth time] the problem.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: You doth protest too much
I recognize now that I never should have engaged in this back and forth, and I'm sorry about that. The first time I posted, it was because you mischaracterized what I was arguing because, as you said, you only read the summary of my article in the blog post, above. I don't feel like I'm having a rational conversation with you, and perhaps you are actually a hilarious performance artist. I have no idea. It's quite possible this situation is all my fault, so let's break it off, and I apologize. I wish you the best of luck in life, and take care.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: You doth protest too much
[ link to this | view in chronology ]
Re: You doth protest too much
The situation I was describing -- a song embedded with multiple samples -- is different, and DOES require that you acquire licenses from each separate publishing company that owns a stake in that song. I experienced this firsthand, which of course is why I wrote the essay.
[ link to this | view in chronology ]
There is a tragic disconnect in society today...
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Simple: because the new work does not take away from the old, does nothing to diminish the market for the old, and is a form of free expression, as (supposedly) guaranteed by the Constitution. Pesky First Amendment thing.
[ link to this | view in chronology ]
Re: Re: Re:
A "pesky First Amendment thing?" Hmmm. Speech that infringes a copyright is NOT PROTECTED by the First Amendment. Period. So stop resorting to throw-away lines and realize that the question is whether the particular sampling is an infringement or not. Throwing the "free expression" and "First Amendment" lines around as if, by magic, they alone win your argument is infantile.
Who decides whether a particular reproduction [whitewashed by the term "sampling"] is an infringement or not? You? The alleged infringer? How about, oh let's say, that the CREATOR of the reproduced content has a say in the matter.
Is copying and republishing someone's four chord riff an infringement? How about twenty chords? How about copying and republishing the refrain "Why don't we do it in the road?" -- a simple sentence that is [with one exception] the entire lyric of a Beatle's song. Can someone reproduce Lennon's version of that line and plop it in their song just because they want to?
Oh, I forgot, according to YOU the "new" song doesn't take away from the old and does not diminish the market for the Beatles song. So it's alright. And you get to decide that why? I'll tell you: because [whether you even know it or not] you've bought into the concept that creation of new is more important than protection of the old. And that you have not supported by argument or reference to anything other than "free expression." And, by the way, the creation of new is not really "new" when the old [the "sampled" content] literally forms part of the new. How about promoting the really new?
Even more fundamentally you don't even seem to realize the internal inconsistency in your position. You're asserting that creator 2's right to create is more important than creator 1's right to control what he created. That tees up artists to fight artists. Just what they need. Well done.
[ link to this | view in chronology ]
Re: Re: Re: Re:
A "pesky First Amendment thing?" Hmmm. Speech that infringes a copyright is NOT PROTECTED by the First Amendment. Period.
That's quite a novel interpretation of the law. Most First Amendment lawyers I know would tell you this is wrong. The two aspects of the Constitution are in conflict with each other, and the courts have long sought a balance which is a hell of a lot more nuanced than "you infringe, there is no First Amendment right." I mean, hell, all of fair use case law says that's wrong and you know it. Why would you state otherwise?
So stop resorting to throw-away lines
Dan, you were the one who claimed that we needed to explain why a mashup artist should be allowed to express himself -- which alone is a stunning and disturbing statement. I gave you the answer. That you choose not to recognize the First Amendment on this matter is a separate issue.
Throwing the "free expression" and "First Amendment" lines around as if, by magic, they alone win your argument is infantile.
No, it's not infantile -- and considering the vast number of cases and journal articles and analysis of this very issue, it's downright insulting for you to imply that a First Amendment analysis of copyright issues is "infantile." Grow up Dan. Just because I actually know what I'm talking about and can't be bullied by "copyright uber alles" doesn't mean that you should resort to calling my arguments "infantile."
Who decides whether a particular reproduction [whitewashed by the term "sampling"] is an infringement or not? You? The alleged infringer? How about, oh let's say, that the CREATOR of the reproduced content has a say in the matter.
First off, calling it sampling is not "white washing." If you knew anything about sampling, you would know it's quite different than pure "reproduction." Arguing otherwise only shows your ignorance of the subject. However, why should the original creator have a say in others' expressions? That, again, goes against the very purpose of the First Amendment. It should never be the content creator who has the final say. The law was never intended to give the original content creator that right. The law was intended to promote the progress. Are you really trying to twist both copyright law and the First Amendment to say things they do not?
Is copying and republishing someone's four chord riff an infringement? How about twenty chords? How about copying and republishing the refrain "Why don't we do it in the road?" -- a simple sentence that is [with one exception] the entire lyric of a Beatle's song. Can someone reproduce Lennon's version of that line and plop it in their song just because they want to?
Why shouldn't they be able to do so? It is a fair question.
Oh, I forgot, according to YOU the "new" song doesn't take away from the old and does not diminish the market for the Beatles song. So it's alright.
Yes. Are you arguing otherwise? I assume your comment is being sarcastic, but I don't see any basis for why.
And you get to decide that why?
Because of two things, both of which you seem to ignore.
(1) The purpose of copyright law is not to create permission based culture, but to promote the progress.
(2) The First Amendment's default position is to allow speech rather than deny it.
I'll tell you: because [whether you even know it or not] you've bought into the concept that creation of new is more important than protection of the old.
Yes, absolutely. Because "protection" doesn't make sense. But progress does. You seem to have bought into the argument (supported by absolutely nothing) that old content is the best and new content is meaningless -- which goes 100% against the very purpose of both copyright law and the First Amendment.
And, by the way, the creation of new is not really "new" when the old [the "sampled" content] literally forms part of the new. How about promoting the really new?
You didn't really just make that argument did you? So, in your world, only brand new content counts? No content that builds on the works of others count?
Where did you get law degree? Did they teach you from books? Clearly you should not practice, since you are only building on what you learned in those books. Why not practice *REAL* law where you make stuff up completely out of nothing (or maybe that is what you're doing).
Even more fundamentally you don't even seem to realize the internal inconsistency in your position. You're asserting that creator 2's right to create is more important than creator 1's right to control what he created. That tees up artists to fight artists. Just what they need. Well done.
Wow. What a stunning and rather disgusting ignorance of how creativity works. For nearly all of human history creativity has been based on building on the works of others. This does not set up "fights" about "control." Most people recognize the basic fact that two people building off each others works don't lessen anything. There is no need for "control." You keep introducing more into the world and the pie grows.
Dan, I'm going to take a step back here and assume you really didn't mean what you wrote in this post, because it really makes no sense. You seem to have misinterpreted the history of cultural production, the meaning and purpose of copyright law and the scope of the First Amendment all in one. Please tell me that you didn't mean it. You're a smart guy and knowledgeable on this stuff, but reading this post has me wondering what got into you today.
[ link to this | view in chronology ]
I don't have time to track down the controlling case law but the following are two cases quickly located that regurgitates the relevant law: http://j.mI p/dAyBiX [at p. 563 of the opinion] and http://j.mp/cA0Fdg [at p. 43 of the opinion]. In short, speech that's copyright infringement is not protected by the First Amendment. Full stop.
Whenever the premise of an argument is wrong everything that follows is unsupported chatter. Which doesn't mean that it's not interesting chatter, it just can't form the basis for a reasoned -- or legitimate -- conclusion. Like yours.
A fair use of a copyrighted work is, by the way, not an infringement so fair reproductions do not offend the First Amendment. Which leads us right back to the nub of the issue: is the copying of a portion of another's work w/o permission copyright infringement?
If yes, then the mashup in which the reproduction is inserted is unlawful. If no, then it's not. Leave your copy of the First Amendment at home, it ain't relevant.
What is relevant is the statutory definition of copyright infringement.
Nowadays, all copyright rights are created by Congress. Congress can simply declare that copyright does not attach to 15 second song excerpts -- or to 10 second long video clips or to just three lines of poetry or to any photographs that show only an apple, or whatever variations they can rationally argue "promotes the progress."
If you want mashup artists to have the right to copy snippets from other artists' work w/o permission then you need to convince Congress that's a good idea. But as of now, the artist who created that snippet may very definitely have a valid infringement claim.
Cheers.
[ link to this | view in chronology ]
Re:
Dan, please. Take the time to read before you make ridiculous claims about things no one said. It really makes it difficult to take you seriously.
No one said that it automatically authorizes, condones or justifies the actions. It was our explanation for why such things *should* be considered legitimate under the law.
You are arguing what the law says today -- after it has been abused, twisted and changed through people who understand little about creation, but a tremendous amount about twisting the law to their own advantage, often against the will of the founders. This whole discussion was about people creating new works, and you responded with a ridiculous assertion: that all creation based on the works of others must be permission based, and asked why anyone would think that not the case. I gave you my explanation.
No one said that automatically "justifies" it. It explains why we think the caselaw is questionable and does not fit with the intention of the founders on this matter.
In short, speech that's copyright infringement is not protected by the First Amendment. Full stop.
Again, this is simply not true, and you know it. To repeat it -- as Kembrew pointed out -- is either being deliberately dishonest or ignorant.
What you are doing is playing a semantic game -- which is a hell of a lot more childish than me accurately pointing to the First Amendment when appropriate. Your semantic game is "well, if it's fair use, then it's not infringement." Basically you've created a tautology. If it's infringing, it's infringing. Didn't they teach you the uselessness of tautologies in arguing in law school?
If yes, then the mashup in which the reproduction is inserted is unlawful. If no, then it's not. Leave your copy of the First Amendment at home, it ain't relevant.
Again, we are arguing where this should go if one were to actually pay attention to the Constitution. You are arguing some minor case law points as if this isn't an area of jurisprudence that is still in great conflict -- which again, would either suggest dishonesty or ignorance. I've got a stack of books and papers sitting on my desk at this very moment debating First Amendment vs. Copyright issues -- all of which were written in the last 3 years. To claim that there is "no issue" here or "full stop" is pure ignorance.
What is relevant is the statutory definition of copyright infringement.
Sure, if we were arguing in court. But we're not. We're having a discussion of what the law should be, and a discussion of why many of the current decisions appear to conflict. Do you honestly think that things like the Bridgeport decisions -- which Kembrew touches on -- would hold up to further scrutiny? A case where the judge cited the bible more than he did the statute?
If you want mashup artists to have the right to copy snippets from other artists' work w/o permission then you need to convince Congress that's a good idea. But as of now, the artist who created that snippet may very definitely have a valid infringement claim.
Wow. And how do you get Congress to understand that? It's by *having discussions like the one we're having right here* which you seem to think no one can have because copyright law is already settled. Full stop.
Stunning.
[ link to this | view in chronology ]
Re: Re:
I did not argue “that all creation based on the works of others must be permission based … .”
I argued that the owner of the sampled work “may very definitely have a valid infringement claim” and, absent a persuasive argument that there’s no substantial similarity between the works [because of de minimus use or modification] or a defense [such as fair use] then the mashup artist infringes. If the mashup artist has such an argument or a defense, more power to him: create w/o permission. But if he doesn’t, then his compilation work is NOT protected by the First Amendment.
The “minor case law” I found quickly cites two US Supreme Court decisions for that proposition. You might not like the rulings, but that’s our highest court’s interpretation of our First Amendment. If infringement, then no First Amendment protection. Again, full stop. Your assertions otherwise [I can’t call them arguments] are frivolous.
As for your claim that I’m arguing by tautology [which is when the premise of an argument is the same as the conclusion] you are, again, wrong. I mentioned that the fair use of a work is not an infringement of the work and, therefore, the First Amendment protects fair reproductions. I mentioned this to counter your assertion that “the courts have long sought a balance [between copyright law and the First Amendment] which is a hell of a lot more nuanced than ‘you infringe, there is no First Amendment right.’ I mean, hell, all of fair use case law says that's wrong and you know it. Why would you state otherwise?”
Your statement – i.e., that fair use law says that infringements are protected by the First Amendment – is most certainly wrong. So I made clear that if a reproduction is fair there is no infringement [and so sample away]. No tautology, no sneaky wordsmithing. Just good ole fashioned argument.
As for the academic tomes that you’re hoarding, they certainly have their place in the debate over the proper scope of copyright protection and the interplay between copyright law and the First Amendment. But that’s all that is: an academic debate. Until Congress amends our copyright law to permit folks to make “substantially similar” copies of others’ works [which would permit the reproductions you euphemistically call “samples”], then all you’re doing is griping about how the system is just not working for you. You want folks to be able to freely make substantially similar copies because you think that’s good for society.
So you need, therefore, to come up with a better system – one that’s consistent with the Patent and Copyright clause in Article 1, Section 8. If you try, then start at square one: "[I]t should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).
So whatever system you come up must conform to this Constitutional touchstone – i.e., your system must be based on “the economic incentive to create.” You may be able to convince Congress that the reproduction of portions of copyrighted works which are then used to create new works is not an infringement of the original work. Good luck with that.
[ link to this | view in chronology ]
Re: Re: Re:
Clearly you have no interest in rational discussion.
Once again, I will point out that people here tried to engage with you by explaining the basic rationale for how we believe the law was intended to work -- a point you have failed to respond to. Instead, you keep arguing how the law works today -- which is exactly what we find problematic. We point that out, and you say "change the law." This is how you change the law, by having conversations that make people aware that the law, as it stands today goes against the constitutional intent of both copyright law and the First Amendment.
And, finally, I'm not talking about an "academic" argument. These are arguments being made today by folks who actually work *in the business*. You may enjoy semantic arguments as a lawyer, but some of us actually care about this stuff from the position of a content creator.
[ link to this | view in chronology ]
Re: Re: Re: Re:
As for "explaining the basic rationale for how we believe the law was intended to work" you have not -- except to say that because sampling doesn't "take away" from the sampled work or affect the market for the work it should be lawful. Which simply assumes that those are the two relevant criteria and which ignores completely the very basis our Constitution has established as the motivator for creating copyrightable works: the economic incentive.
If you want to undermine the economic incentive to create by making it lawful to reproduce portions of existing works [yes, yes, excepting fair reproductions] then you need to explain why that makes sense. Otherwise you're just whining.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
I made a clear and compelling argument, backed up by fact. You decided to ignore it and insult me. Your ignorance of economics and the creative process is not something you seem interested in fixing. I have put forth detailed economic analyses of content creation. To suggest otherwise is blatant dishonesty -- something you have done repeatedly in this thread.
This is not worth my time.
Good luck.
Mike
[ link to this | view in chronology ]