Derivative Artwork Inspiring Derivative Artwork -- But Will The Lawyers Ruin It?
from the but-what-about-the-copyrights? dept
We've written numerous times about the famed mashup artist Girl Talk (Gregg Gillis), who has created some extremely popular and well-reviewed albums by mashing up hundreds of songs together into songs that sound both entirely new, and which give appreciative nods towards the originals. Girl Talk has won various awards and has even been mentioned in Congress by Rep. Mike Doyle, as an example of why copyright should allow more such mashups and remixes, rather than having it crack down on the practice. And, of course, there's also been an excellent movie about Girl Talk, called RiP: A Remix Manifesto, which I encourage people to watch if they haven't seen it yet.Of course, there are all sorts of copyright questions around this. Some folks are stunned that Gillis hasn't been sued over his widespread sampling. There are a variety of theories as to why that might be -- from the idea that Gillis' use might actually cause courts to recognize that such sampling should be fair use, to the theory that the music industry doesn't go after Gillis because he's "white, middle-class and educated," as opposed to those who often do find themselves on the receiving end of sampling lawsuits.
Either way, we may get to jump deeper into the copyright conundrum, as the NY Times magazine recently covered an effort to make an entire movie based on people dancing to Girl Talk's latest album, All Day. You can see the trailer below:
What struck me as interesting wasn't just that Krupnick wanted to make a movie based on All Day, but that a lot of his inspiration came from both RiP: Remix a Manifesto and having briefly worked with the lead dancer, Anne Marsen, in a video shoot for a commercial a year and a half ago. As the article recounts, Marsen is a classically trained ballet dancer, who dropped out of the University of the Arts and has since:
gone rogue, dance-wise, taking three or four classes a day from studios all over New York City -- jazz, modern, tap, salsa, flamenco, belly-dancing, break-�dancing, West African, pole dancing, capoeira -- borrowing gestures and movements and boiling them all down into her own unique B-girl bouillabaisse.Basically, she mixes a variety of different styles in a somewhat freelance manner. Krupnick had been looking for another project to work with Marsen on, and when he heard the latest Girl Talk album, he realized the basic similarities in style:
As Krupnick listened to the album, it struck him that Girl Talk makes music the way Anne Marsen makes dance. "I started to hyperventilate a little bit, the way you do when you get excited about something that you really want to come true," he told me.And this is how art gets created. Of course, it's interesting that no one questions Marsen for mixing all different kinds of dances that she's learned from others into her own style -- but when Girl Talk does it, people complain about how it's "stealing" and "infringing." Either way, take these two individuals (along with a supporting cast) and you get this entirely new and entertaining movie as well.
Derivative art creating derivative art.
That this goes against the claims of copyright maximalists will, undoubtedly, be ignored by those copyright maximalists. Of course, there's a separate question here: which is what about the copyright on the film. Gillis releases all of the Girl Talk stuff under a Creative Commons license. But, it's a license that does not allow for commercial use (which some find hypocritical on his part). I doubt he would object to the film (if he did, the social backlash would likely be quite strong), but given that Krupnick is raising money via Kickstarter, someone could make an argument that this is "commercial use." Separately, if Krupnick actually tries to do something more with the movie, he'll almost certainly not be able to get E&O (errors and omissions insurance). Last year, I covered the ridiculous difficulty that RiP's filmmaker, Brett Gaylor had to go through trying to get insurance for his film -- showing us his massive spreadsheet of samples he tried to clear, before giving up.
But the bigger question is whether or not any of the copyright holders on the music Girl Talk uses would decide to step in as well. While they might not have sued Gillis, there's nothing saying that they have to let this movie go forward. Beyond the copyright issues in the samples in the album itself, now Krupnick also has to worry about synch rights, which appear to be one of the lower levels of hell according to various filmmakers I've dealt with in the past.
One can hope, that as with Gillis' original works, that any rights holders know better than to call the lawyers -- and it would be a great story if that actually happens. But, I certainly wouldn't be surprised (though, I'd be very disappointed) if this wonderful idea for a film runs into legal problems. Assuming that happens, it'll be yet another example of copyright not inspiring new creative works, but stifling them (though inspiring legal fees).
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Filed Under: anne marsen, copyright, culture, dance, derivative works, girl talk, gregg gillis, jackob krupnick, movie, music
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I think that without posts like this talking about the legal implications, nobody would care (or watch).
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That is by no means clear. He's got a decent fair use argument for a lot of his uses.
Although he did use a pretty substantial portion of the Jay-Z song lyrics right at the beginning of the video clip.
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the worst part is it is like a commercial for all these other songs, i've bought six other albums from this one alone.
and come on, it starts off with ozzy and ludacrious.
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more like...
but I think dancing ruins some good standing around.
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Dance moves vs music scores
I guess in this case it wouldn't make a difference either way, as her style is a bit like free jazz, but it brings up an interesting issue. I would like to hear reasons from pro-IP people as to why dance should or shouldn't be protected by intellectual property law.
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In regards to Dance copyright: look up Labanotation.
I work with A LOT of dancers. Protecting their work is SERIOUS business and they are adamant about it.
DJ qbert is also working on a similar method to codify record scratching.
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Re: Re: Dance moves vs music scores
You're right. I had thought the protection wasn't the same but apparently it's just not used much.
Still, I think there's an interesting issue here of why musicians seem so sue happy compared to dancers. Mike suggests in the article that her use of moves learnt from various schools is kinda like remixing, but perhaps the key difference is that she is performing dance moves rather than using excerpts from other dancers videos. The issue of royalties remains though, shouldn't dancers have a royalty system like musicians do? Shouldn't every establishment with a dance floor be required to pay an agency in case a copyrighted dance be performed?
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RtB
There's your next T-Shirt, Mike.
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Re: RtB
"BUT... BUT... COPYRIGHT!"
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photocopy machines: creating innovation for more than 50- years
That about sums it up.
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Just more Masnick Effect here, 2 + 2 = 5, etc.
There's nothing particularly new about what's being done with the above work either; its been done in hip hop for years.
But apparently we now know Mike enjoys highly derivative music. What a shocker.
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I'll help:
Where he got the discussion about GirlTalk and copyrights and the problems with them
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And considering all the musical hooks in these things were written by other people, shouldn't those other people be credited as co-writers?
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So yes, credit is where credit is due. But putting a monetary gain for a mashup really does stifle derivative works.
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SOLUTION: create ORIGINAL works, instead of derivative ones. That is what the framers intended to promote when they wrote the constitution... While recognizing that the protections of copyright should exist for limited times.
And yes, we can argue all day about HOW LIMITED those tim frames should be.....
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Re: I've yet to hear one whose sum is better than its parts.
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I've heard several that are better. In fact, I rarely enjoy hip hop unless it's divorced from the usual, low-bpm 808 beats. I would almost say you're predisposed against mashups for whatever reason. I'm going out on a limb here and figuring you've never listened to the Kleptones before. Check out "A Night at the Hip Hopera" which mashes up about a decade's worth of hip hop with a Queen album. Truly inspired. And inspiring.
http://www.kleptones.com/pages/downloads.html
And considering all the musical hooks in these things were written by other people, shouldn't those other people be credited as co-writers?
Most mashup artists make no pretense about claiming writing credit or anything like that. They're building on pre-existing work and they're smart enough to know that. They also know they'll never be able to sell these albums, so that's half a deck stacked against them from the get-go. But still they do it. Why? I'm guessing it's because they honestly love music.
There are lots of music labels out there that don't love music. They love "product" and "sales." Consequently, they produce miserable, calculated "artistry." Mashups destroy all those fake confines and cut "product" adrift from its mooring. Music rarely sounds as alive as it does in the hands of a capable mashup artist.
Who else comes up with ideas like 50 Cent talking up his game over Jan Hammer's Miami Vice theme? Or Missy talking sexual smack over Cake's alterna-rock? Or the Black Francis screaming "UH!" like a choir full of whores over the top of Martin Solveig's electro-breaks with added lyrical accompaniment from Peter, Bjorn and John? Certainly not the artists themselves.
Don't sell these craftsmen short just because they play around with your favorite tracks or assume they lack creativity because they didn't write the sheet music.
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The next ten years are going to be brilliant for culture and the arts. Thanks Internet.
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Just give it up.
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Did you read the comments section?
"But apparently we now know Mike enjoys highly derivative music."
Why am I not surprised that you jumped to that conclusion despite Mike starting a paragraph with: "Even if you're not a fan of Girl Talk's music".
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Synch rights?
Seriously. The middlemen in this business can't die fast enough if they're grasping at fees like a "synch right".
That's just stupid.
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Re: Synch rights?
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If my house was copyrighted, you wouldn't be allowed to make a "very similar one that could easily cause confusion". Then you just add bits and pieces from other houses to try to hide the copyright theft you're doing.
Why would it be any different here? Because Mike said so?
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Houses have discrete addresses... where the f*ck is the confusion and who the f*ck cares.
Take it as a compliment on your good taste and move along - you lose NOTHING.
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No, it's like someone borrowing your window and someone else's door and the front walk from your mutual neighbor and a mailbox from the guy across the street who's always stealing your newspaper and stealing that newspaper back along with some decent shrubbery and using the same paint color as the corner house and the shingles of the house behind you and the garage doors from two blocks away and the naked cherub fountain from the courthouse and the stern street number font of the cop shop and the spiral staircase from that one movie you saw and the exit signs from the local theater and the car seats from the soccer mom's minivan and that stoner's stereo and mom's couch and grandma's collector's plates and Uncle Jim's junked Olds and the 12th hole green from the nearest golf course and all the ideas of a meth-addled feng shui consultant and some ideas from your local architect as improved on by your 4-year-old's idea of what a real house looks like viewed through a combination 3-D glasses/kaleidescope.
That's what it's like:
(Girl Talk - "Jump on Stage" sample list)
* 0:00 - 1:08 Portishead - "Sour Times" (portion sampled samples "Danube Incident" by Lalo Schifrin)
* 0:01 - 0:08 Miley Cyrus - "Party in the U.S.A."
* 0:08 - 0:09 Naughty by Nature - "Everything's Gonna Be Alright"
* 0:09 - 1:23 Big Boi featuring Cutty - "Shutterbugg"
* 0:10 - 1:08 Amerie - "Why R U"
* 1:09 - 2:41 Talking Heads - "Take Me to the River"
* 1:14 - 1:23 Ice Cube - "We Be Clubbin'"
* 1:14 - 1:27 V.I.C. - "Wobble"
* 1:15 - 1:25 50 Cent - "Get Up"
* 1:16 - 1:28 Diddy featuring Christina Aguilera - "Tell Me"
* 1:18 - 1:33 The Edgar Winter Group - "Frankenstein"
* 1:31 - 1:33 50 Cent - "Disco Inferno"
* 1:33 - 2:41 Skee-Lo - "I Wish"
* 1:34 - 2:17 The Notorious B.I.G. - "Hypnotize"
* 1:43 - 2:46 T'Pau - "Heart and Soul"
* 2:46 - 2:46 Janet Jackson - "Love Will Never Do (Without You)"
* 2:42 - 3:08 Jadakiss featuring Swizz Beatz and OJ Da Juiceman - "Who's Real"
* 2:50 - 2:51 New Edition - "If It Isn't Love"
* 2:52 - 4:26 Radiohead - "Creep"
* 3:04 - 4:10 Ol' Dirty Bastard - "Shimmy Shimmy Ya"
* 3:09 - 3:11 Public Enemy - "Public Enemy No. 1"
* 3:51 - 4:08 Cypress Hill - "How I Could Just Kill a Man"
* 4:20 - 4:30 Busta Rhymes - "Dangerous"
* 4:25 - 5:03 Prince - "Delirious"
* 4:30 - 5:13 Master P featuring 5th Ward Weebie and Krazy - "Rock It"
* 5:08 - 5:08 Prince & the New Power Generation - "Gett Off"
* 5:09 - 6:22 Iggy Pop - "Lust for Life"
* 5:09 - 6:17 Beastie Boys - "Hey Ladies"
* 5:15 - 5:17 White Town - "Your Woman"
* 5:18 - 6:22 Lady GaGa - "LoveGame"
http://www.illegal-tracklist.net/Tracklists/AllDay
And then this collective asks you to move out because you're harshing everyone's mellow with your lack of ideas.
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For me, it's the biggest damnation of "current culture" because they have stopped being truly creative and settled for second best recycling. They no longer are impressed by a great painting, but they are impressed with the guy sweeping up the studio once the artist left.
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Vanilla Ice and Queen
Biz Markie vs Warner Bros
Then let's look at what GirlTalk figured out about the rhythm of certain songs:
http://www.youtube.com/watch?v=qC4BRLYlGjE
Look at that and tell me that you haven't heard similar riffs throughout the ages
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How is it like that??
Do the original songs no longer exist? Is your mp3/cd/vinyl of Jay-Z now magically converted into the Girl Talk song that samples him?
Or is it that if you reference your fondness for Jay-Z, or try and talk about what he means to you, that people won't understand, or will mentally plug in the name "Girl Talk" over your references and talk at cross purposes?
Or is it that the meaning, the function, the purpose of Jay-Z's song is undermined, withered, defeated?
In what actual tangible sense is any of the art here actually affected - actually infringed upon - by this new music, EXCEPT in a financial sense?
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If he uses clips from 100 different acts in his mashups, each act is going to have a hard time attributing any of his profits to *their* work, and that's before addressing the fact that he doesn't actually sell recordings.
Maximum statutory damages for one or two songs aren't going to cover attorney fees if he fights it (and he would likely get some free representation).
That plus the fact that he has a decent fair use case means (a) there's a chance the legal fees will be spent for nothing, and (b) even if the plaintiff wins it's not a very strong case for getting attorneys' fees paid.
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You used Michael Jackson? $5 per tour
Ooooh, Celine Dion - $20 to ASSCRAP
You used Lindsay Lohan...
Anyway, point stands that the remix license would really be a boon to try to make the holder even more money.
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*over their head*
You missed the ENTIRE point I was making with the Youtube video.
The licensing gets really expensive for no reason and it's arbitrary.
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Re: *over their head*
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Link
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Welcome to the detriment of society in exchange for a court appearance and a big fat payday for the legal team who apparently are the only ones that have figured out that it doesn't matter which side they are on - they will get paid. Like mercenaries who start a war then raise their hand to offer their services for whichever side is willing to pay. You don't have to win - you just have to participate and the money will come regardless of your work or effort.
The losing attorney should get the "Participant" ribbon in civil suits - that might keep some of the frivolous lawsuits off the docket!
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Um...it's rarely about a lawyer getting paid. It's always (or almost always) about a client getting paid. Client's don't often say "Go ahead and sue! As long as you get paid, I'm happy to put a lot of effort into something that brings me no benefit!"
Now, most lawyers aren't going to sue for free (even those that work for nonprofits), but the lawyer having a reasonable prospect of getting paid is usually a necessary but not sufficient condition.
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That's not at all true. Plenty of companies, good, bad, innovative, crotchety, "go the litigious route" sometimes.
I think that's unrelated to why most parties settle (including plaintiffs and defendants of all sizes).
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I could go on, but the litigious route is the first signal that your business is failing. If you have to sue your customers, you're doing it wrong.
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the question should not be 'how much money am i getting from this' it should be 'is this action going to lead to a gain on any level that justifies it's costs on all levels?'. that's not just a cash question. if a company already makes a profit, making a Bigger profit by screwing over the world and people around you will usually have a 'no' answer to this question, btw.
all too often the answer in these music/IP related situations is 'no', but they do it anyway.
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You're missing the most obvious of all points here!
In these lawsuits only one client will (possibly) get paid, but the lawyers on BOTH sides are guaranteed to get paid!
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Second, even assuming both sides of attorneys get paid, that doesn't make attorney payment "the only possible incentive" for a lawsuit, or even a bad thing.
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This is the point I disagree with at heart. A lawsuit strictly driven by attorney payment is absolutely abuse of the legal system of the worst kind.
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I'm saying you are wrong to assume that attorney payment *is* the only thing driving a lawsuit. That is rarely the case.
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Legal Team: Absolutely, and used without permission even!
Marketing Department: We love it - we couldn't create that much publicity with a budget ten-fold of what we currently have!
Client MegaCorp: What can we do about that?
Legal Team: Just say the word and we'll take care of the rest!
Client MegaCorp: "The word."
Legal Team: Issue a DMCA takedown notice, someone track that IP address, let's find the culprit and we'll make 'em pay! We'll show them they can't do that to our clients!
Marketing Department: {two-handed face palm}
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When decisions are made just because there is a legal avenue available, rather than taking a step back and actually evaluating what is going on and how it might even have a positive effect for your company, you end up with perfectly good money going to the legal team which could have gone into actual development, innovation, and/or salaries for the people who actually contribute to the companies bottom line.
Far too often we see companies take legal action simply because they can and not even consider other ways to resolve a perceived threat or even possibly accept a beneficial circumstance brought about by a third party.
The mentality of shoot first and ask questions later rarely works to the shooters benefit.
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Sure. In case you missed it the several times I've explicitly stated this, my point is that this doesn't happen all that often.
I'll be the first to admit that sometimes companies make bad decisions, and that includes litigating when they shouldn't. But that's usually based on a misperception of the costs/benefits, not simply because they *can* or because they only care about lawyers getting paid.
If you'll recall, that is what this thread started off being about.
If you have some reason to believe that people are deciding to sue simply because they can and they want lawyers to get paid, please explain, but simply saying that it happens or creating a fictional dialogue in which it happens is not very convincing.
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The dialogue is based on personal first-hand experience. While not a word for word transcript, this scenario actually happened right in front of me. When I questioned the motive behind the action being taken I was told, literally, "That's what they get paid to do."
Despite a no-cost benefit that resulted in some fantastic exposure, the legal team was sent hunting.
Please don't misunderstand, there is a time and place for legal action but todays litigious society (US) is far from prudent about deciding when to use their legal resources.
The headline here is: "Derivative Artwork Inspiring Derivative Artwork -- But Will The Lawyers Ruin It?"
It would be a safe bet to simply answer "Yes, they will."
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Missed the mark....
Using others music in derivative work shouldnt require ANY license, ANY fees, ANY ANYTHING.
If I want to make a mashup and put it on youtube, I should be able to, no matter what the situation, no matter what anything.
Lets make an amazing comparison here...
Have you seen brand name objects in movies? The camera focuses on the apple logo on the laptop for a second, the guys holding a coke, etc.
Do the companies represented charge a fee for their being in the movie?
NO
Often times, the company PAYS (yes thats right, they pay for the advertising) to be in the movie.
Wow, I know it blows your mind, a content/product creator PAYING for advertising.
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Re: Missed the mark....
The article, and many of the comments, have focused on other, similarly valuable points.
Now, as to YOUR point, there's a tough line to draw. If I want to resell Jay-Z's entire album, with a tiny snippet of my own stuff mixed in at the end, should I be able to without any license from Jay-Z? I think even the most minimal of copyright minimalists (as opposed to abolitionists) would say no. If that's the case, then the line-drawing gets tough.
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Which is why I dislike the attitudes of the MAFIAA, which essentially boils down to, "We're not making enough money! We need stricter laws!"
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i went to a show by ricky henry from shael riley and he did a chiptune cover of party and bullshit in the usa" which is a bootie mashup.
it was a pretty epic collision.
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yes
People are busy trying to survive so they find the best way to use their money all the while think tanks smear media an junk everywhere making living quite the joke..problem is its on the people. If that were not the case, then this whole discussion would just be hypothetical.
Sadly, it is not.
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win.
the second one i'm failing at due to overload from reading too many different things at once. heh.
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Girl talk
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Girl talk
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Correction
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Correction
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Re: OC ReMix
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