Why Copyright Criminals Filmmakers Won't Get Sued? Because They'd Win

from the again dept

Tue, Apr 6th 2010 4:07pm — Mike Masnick

Last year we had a post, based on a post by Peter Friedman, suggesting a big reason why Girl Talk hadn't been sued for creating entirely sample-based music was because there was a good chance that Girl Talk/Gregg Gillis would win that lawsuit, and establish a clear fair use right in sampling. Now, with the more recent discussion about the legality of the documentary Copyright Criminals, Friedman is making the same point again: suggesting that the filmmakers won't get sued, because they would likely win, and redraw the boundaries of the law on music sampling and fair use:

But if McLeod is willing to fight a lawsuit -- and I think he is -- the recording industry won't sue him. The existing precedents requiring licensing of every single recorded sample would be overturned, and the record industry would [have] lost the appearance created by these precedents, an appearance that makes the vast, vast majority of samplers pay license fees for their samples. It's better business for the industry to let the occasional brave and creative soul feel as if he's getting away with something than to have the industry's precious -- and ill-founded -- legal precedents put at genuine risk.

Of course, there's a separate argument, that has been made by Copycense, that race actually plays a role in this. The musicians who have been sued over sampling tend to be black. Gillis is not:

Gillis hasn't been arrested or sued because his socioeconomic status fits what the mainstream wants to see when it talks about this issue. Gillis' bio reads well for mainstream public relations purposes -- he is white, middle-class, and educated -- and his basic story (fell in love with music and sampling while studying science at a renown institution of higher learning) is All-American. For establishment folks like Congressman Mike Doyle (D-PA), who represents the district in which Gillis resides and has testified before Congress on Gillis' behalf, Gillis' story presents a squeaky clean image of American innovation -- and decidedly not sepia-toned humans toiling against misery in dark, sweaty, basements or ghetto community rooms where sampling and hip hop culture were born out of the need to get by with less.

On that note, while the movie Copyright Criminals features a mix of artists of different races, many are black. However, the main fillmmakers behind the film, Benjamin Franzen and Kembrew McLeod, are both white. I have no idea how much of a role this actually plays in the decisions about who to sue over sampling, in music, but if race really does play into it, that would be a shame.

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Filed Under: copyright, copyright criminals, fair use, girl talk, sampling

11 Comments

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Jake, 6 Apr 2010 @ 4:46pm

I don't think it's race per se that affects the decision, but chances are "sepia-toned humans toiling against misery in dark, sweaty basements or ghetto community rooms" are going to have trouble affording really good lawyers and are thus easy targets, even the return on one's investment is relatively low.
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- Aaron deOliveira (profile), 6 Apr 2010 @ 7:53pm
  
  Re:
  i definitely agree with the idea of an easy target. being middle class and educated means that they can hit back. bully's don't like that.
  
  if they start a fight with an educated middle class or above, they're asking for a fight with alumni organizations, trade organizations, facebook groups, etc, etc.
  
  i really liked your imagery: "sepia-toned humans toiling against misery in dark, sweaty basements or ghetto community rooms" beautiful writing.
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NAMELESS.ONE, 6 Apr 2010 @ 5:30pm

trust me greed is the one thing that isn't racist
topic read to self ten times
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- Richard (profile), 7 Apr 2010 @ 2:39am
  
  Re: trust me greed is the one thing that isn't racist
  Actually it is - all those landladies who used to turn away good business are testimony to the fact
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Anonymous Coward, 6 Apr 2010 @ 5:30pm

It would help meaningful debate if the author of the article, a professor at a law school in Michgan, had mentioned that while the 6th Circuit has taken a very narrow view (Michigan is in the 6th Circuit), cases in most other circuits, and particularly the 1st and 9th, have taken a much more expansive view.
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PopeRatzo (profile), 6 Apr 2010 @ 6:03pm

Nameless One is Right
It's not about racism. It's about a greedy industry that's afraid of losing it all.

Plus, they still think they'll figure out a way to make money off Girls Talk.

Just think of it: They'll be able to make money off the original artists' music and then double dip for more money off the sampler's music. It's like shaking the money tree for them.
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Dan (profile), 6 Apr 2010 @ 7:19pm

No, they wouldn't win
I used to think the same way about file sharing and torrent sites, until they all started losing their cases. I can't see it would most likely be a win. It may just be wishful thinking. I think the judges feel a win for the fair use folks would make copyright practically unenforceable, so wouldn't rule in their favor.
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- Hephaestus (profile), 7 Apr 2010 @ 6:31am
  
  Re: No, they wouldn't win
  " I think the judges feel a win for the fair use folks would make copyright practically unenforceable"
  
  How does that change anything? how is copyright enforcable now?
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Jon Renaut (profile), 7 Apr 2010 @ 6:05am

Sue on purpose
Couldn't an artist sympathetic to sampling sue with the intent of changing the law? I'm sure someone like the EFF or Public Knowledge would be happy to help out.

I'm not a lawyer, so I don't know all the details on what happens when the person bringing the suit actually wants to lose, but surely someone with standing to sue Girl Talk actually thinks it's awesome that his/her music was used this way.
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The Mad Hatter (profile), 8 Apr 2010 @ 2:50pm

It's about race, but it's also about class. Poor black folks can't afford lawyers. Middle class white folks can. It's a lot easier to threaten those who aren't able to afford to hire a lawyer, and it's a lot easier to threaten someone with a different skin color.

Sad, but true.
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Nate, 25 Jul 2010 @ 2:00am

It IS all about race!
I've been researching this subject for a few years now and have also come to the conclusion that it really does all boil down to the race of the sampler. Even going back to the days of modern art in the 1970's and 1980's one can see a pattern of white artists using copyrighted material and not being sued, in fact most are praised and considered "geniuses" in their field for furthering the artistic culture in America. I would say that Gillis is the poster child for this phenomenon. The fact that he uses so many samples, and doesn't really add anything new to the music(besides mixing different songs together) is a big clue. Most black hip-hop artist will definitely get sued even if they only use ONE single sample in a song. How one guy can sample hundreds of artists and songs on a single record and not get sued, yet most black artist who sample ONE single song or artist without permission get sued says a lot. Amazing t has taken this long for people to finally start seeing that it race plays a huge part in why certain artist are sued boggles my mind. Maybe denial? I'm white myself, but I'll fully admit that it is a race thing, and it isn't right.
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