Music Composer For 'A Clockwork Orange' Sues Australian Who Created 'A Trumpwork Orange' Parody Trailer
from the like-clockwork dept
One of the tests for fair use as it pertains to copyright is the impact that the use of a work has upon the original. While this is but one of four tests used, it is arguably the most important when it comes to advising a rights holder on whether or not to move forward with any legal action. After all, regardless of whether the use of the work is indeed fair use, what would be the point of taking action against the use of a work if that original work were not negatively impacted, or if the impact was positive? There would seem to be no point to expending any time or capital in a legal fight in those cases, yet we regularly see such thinking ignored.
Such is the case concerning Hugh Atkin, an Australian who produced a parody trailer in the style of A Clockwork Orange for President Elect Trump's campaign, entitled A Trumpwork Orange. He originally put it alongside the original movie's trailer, basically to show how he tried to ape the style for his parody. That version was taken down, however, and now we're left with only this version.
Now, when I say that a DMCA notice was filed to get the video taken down, you would be forgiven if you assumed that it had come from our new overly-litigious overlord. But it didn't. Instead, it came from a company that represents Wendy Carlos, the composer behind the soundtrack for A Clockwork Orange. She is the one who created that version of the William Tell Overture featured in the trailer, and she has decided that Atkin needs to license her work to create his parody. In fact, after Atkin filed a DMCA counter-notice and had the video restored, the company representing Carlos went ahead and filed a lawsuit against him in retaliation.
In a lawsuit filed in a New York district court, Serendip LLC is now suing Hugh Atkin for the unlawful use of Carlos’ music in his one minute video.
“Unbeknownst to, and without permission or license from Serendip, Defendant made derivative use of Wendy Carlos’s music arrangement and master sound recording works of the ‘William Tell Overture’, in the soundtrack of Defendant’s video, entitled ‘A Clockwork Trump vs. A Trumpwork Orange’,” the lawsuit reads.
It adds that Atkin uploaded the video around October 23, 2016, “with the apparent purpose of monetizing the video for his own benefit, and with his later stated purpose of ‘providing satirical political comment on the 2016 US Presidential Election campaign of Donald Trump’.”
It's worth noting that the parody video was not levying parody on the song in the trailer, which actually hinders any defense in the name of parody and fair use. Still, we're left with the question of what the impact on the original work, Carlos's iteration of the William Tell Overture, was. It's pretty clear that any claim that this original work was harmed by Atkin's parody would be head-scratching at best. Other versions of the original movie trailer exist on YouTube, after all, and this new parody work even included the original trailer alongside the new creation. It seems that this usage impacts the original work only by maintaining the status quo. And yet Carlos decided to sue.
Interestingly, Atkin wasn't even aware of the lawsuit until TorrentFreak contacted him.
“I did not know that Serendip had commenced proceedings against me. I only found out about the suit via your email, which was a rude shock to wake up to on a Monday morning in Sydney. The complaint has not yet been served on me,” he said.
“I received an email from lawyers for Serendip on October 29 in relation to the takedown notification which had been given by Serendip to YouTube under the DMCA and my counter-notification.
“I responded by letter on October 30 requesting further information about the alleged claim of infringement and otherwise denying any infringement. I never received a response to my letter, and my video was restored to YouTube last week. From their failure to respond, I assumed that Serendip was not pursuing its claim.”
As the TorrentFreak post notes, this isn't the first such lawsuit filed by Serendip. It previously filed a lawsuit against a man in the UK, who used some of Carlos' music in a movie critique of Stanley Kubrick films. That lawsuit is reported to have ended fairly amicably. One hopes that this one will, too.
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Filed Under: copyright, donald trump, hugh atkin, parody, takedown, trumpwork orange, wendy carlos
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TIL it was from A Clockwork Orange. I had no idea.
(Sadly I haven't seen it yet)
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Surely people here must recognize that a recorded performance of a public domain composition has a valid copyright in itself. Otherwise, why would any company try to sell recordings of classical music. Just the fact that the composition is in the public domain doesn't invalidate all copyright claims. Let's characterize all the 4 factors in this case even though Tim's focus in this article is that one of the 4 fair use factors is usually ignored.
1). the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
A parody short film freely available on Youtube. Profit doesn't seem to be the motive here but the parody addresses a very newsworthy occurrence. As Tim noted, the music background is not the subject of the parody. The musical piece is played in its entirety without any transformation.
2). the nature of the copyrighted work.
This is an original arrangement of a portion of a composition which is in the public domain. I don't know if the following is relevant to infringement considerations but in 1971 it took a lot of time to set up and record even an electronic piece that is only 1 minute 17 seconds long.
3). the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
This recording of, an abridged, William Tell Overture is used in its entirety and is not changed at all from the original.
4). the effect of the use upon the potential market for or value of the copyrighted work.
I agree with Tim's point that this parody will not have any negative effect of the market or value of this Carlos' recording.
Overall, it seems the infringement claim is marginal but Serendip may win the lawsuit. I would advise Wendy Carlos to drop the lawsuit. Any of you can do this by writing to Wendy via this one-way mailbox:
http://www.wendycarlos.com/write.html
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But isn't licensing the song for usage in films, parody or otherwise, one of the primary markets for a soundtrack? Wouldn't ruling its usage to be Fair Use in a film like this have an effect on how much can be charged for a license? Wouldn't that lower the market value for a license to effectively zero dollars, since anyone would be able to use it without paying and claim Fair Use?
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The whole point of the public domain is that anyone can use it in any way. And none of those ways should prevent a person from making money from her work.
In any case, A Clockwork Orange (the film, the book, and the soundtrack) should have entered the public domain years ago; they're more than 28 years old, aren't they? It's only due to our Mickey Mouse copyright laws that the terms are so insanely long at the moment.
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Re: I've heard that music all over the place for years.
A re-orchestration of Rossini’s overture from William Tell.
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And actually, the original value of Wendy Carlos arrangement is so low, it wouldn't even meet the standard for copyright eligibility in most of the world. It's just a copy of Rossinis work.
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And this video just reminds me that I enjoy the music and should pull out the copy that I purchased and enjoy it.
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Sigh.
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I mean seriously, Carlos has a flippin' nerve!
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I'm just pausing last night's Daily Show to mention that they showed a clip from The Lion King as part of a joke. It included part of the musical score, despite not levying parody on the song. Somehow I doubt they'll get sued over it.
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"Somehow I doubt they'll get sued over it."
....Because maybe they've already paid to use it?
ASCAP and friends do (only) music; that's how all of the radio stations can play songs w/o getting sued to death. Apparently if the workers in a repair garage play songs that customers can overhear, THE GARAGE is supposed to get a license as well.
Comedy Central's Daily Show has already covered their a$$ I'm sure -- look at THEIR Terms of Service.
I'm not sure what group handles showing movie clips and modifications, but I'm sure CC has already signed up for it.
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If only...
...the Rossini family could file a claim against Wendy Carlos!
P.S. Having never seen the opera, the overture was ALWAYS the theme song for The Lone Ranger (Clayton Moore and Jay Silverheels version) to me.
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"... “with the apparent purpose of monetizing the video for his own benefit, and with his later stated purpose of ‘providing satirical political comment..."
"Apparent" to Carlos, because monetization is the only possible reason to create something.
And good thing he later "stated" that satirical purpose; no one would ever have known it was parody... just an attempt to pick Carlos' pocketbook.
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with the apparent purpose of monetizing the video for his own benefit,
A commercial purpose does not automatically disqualify a parody from a fair use defense, no matter how the plaintiff screams. I rather doubt the original market for the score has been damaged.
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Hang on..
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Re: Hang on..
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Also, all of the critical albums originally released on Columbia Records 1969-1975 have been out of print for roughly a decade, since their CD reissue on East Side Digital, and they command collectible prices in the used market (but not unreasonable ones, about $25 per CD).
(Carlos' own web page, active in the early 2000s, has been dormant for a while. The last dated content I found was from 2007.)
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Wendy Carlos
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Amazing composition......
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