Music Composer For 'A Clockwork Orange' Sues Australian Who Created 'A Trumpwork Orange' Parody Trailer

from the like-clockwork dept

Wed, Nov 16th 2016 5:06pm — Timothy Geigner

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

26 Comments

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Phoenix84 (profile), 16 Nov 2016 @ 5:24pm

I've heard that music all over the place for years.
TIL it was from A Clockwork Orange. I had no idea.

(Sadly I haven't seen it yet)
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Phoenix84 (profile), 16 Nov 2016 @ 5:27pm

Re:
Apparently I can't read either. The original music I haven't heard much before, the 'replacement' was apparently what I was referring to.
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Anonymous Coward, 16 Nov 2016 @ 6:28pm

There was some good early electronica in the Clockwork Orange soundtrack. I bought the CD in the 90s. Good stuff.

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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Scote, 16 Nov 2016 @ 7:58pm

Composer creates an arrangement of the public domain William Tell Overture, expects to be paid forever.

Sigh.
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Roger Strong (profile), 16 Nov 2016 @ 8:12pm

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.

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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Anonymous Coward, 16 Nov 2016 @ 8:44pm

Re:
Best movie ever made in my opinion. Best mindfuck movie for sure. Considering Walter Carlos (yes, that is "her" birth name) never wrote this music to begin with, this is a disgusting abuse of copyright law.
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Lawrence D’Oliveiro, 16 Nov 2016 @ 8:46pm

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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AEIO_ (profile), 16 Nov 2016 @ 10:52pm

Re: Daily Show [shows] clip from The Lion King
"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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s7, 16 Nov 2016 @ 11:43pm

Took video of my Nephew's high school graduation, uploaded it as a private video on YouTube to share with family. It was flagged for copyright, got a strike on my account for "Pomp and Circumstance". Conceived/written in 1901! Apparently it was a more modern recording, a "cover" if you will of a 100+ year old song. This *hit's getting out of control.
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Anonymous Coward, 17 Nov 2016 @ 12:32am

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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Vidiot (profile), 17 Nov 2016 @ 4:50am

"... “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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Anonymous Coward, 17 Nov 2016 @ 5:19am

Trumpwork Orange is going to a huge hit at the box office, no one has bigger hits at the box office. This will be such a huge hit you will get tired of it being so huge.
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wereisjessicahyde (profile), 17 Nov 2016 @ 5:27am

Hang on..
So you can get sued for posting a trailer now? Isn't the whole point of a trailer to encourage purchases? To spread the word about a work? To sue is just cynical money grabbing.
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Anonymous Coward, 17 Nov 2016 @ 5:30am

Re:
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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Seegras (profile), 17 Nov 2016 @ 7:11am

Re: Re: I've heard that music all over the place for years.
> A re-orchestration of Rossini’s overture from William Tell.

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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jupiterkansas (profile), 17 Nov 2016 @ 9:14am

Re: Hang on..
It's not a real trailer.
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aldestrawk (profile), 17 Nov 2016 @ 12:27pm

Re: Re:
I was a teenager when "A Clockwork Orange" came out. Great film indeed! Do you recognize Darth Vader in that film (actor David Prowse)? The soundtrack was a great part of that movie. I had an early interest in electronic music started listening to "Switched on Bach" and the "Well Tempered Synthesizer" back in 1970. Wendy Carlos is one of the great electronic music pioneers. I do object to you bringing up the fact that she is transgender in a rather disdainful way. Firstly, it is entirely irrelevant to the discussion of whether her lawsuit has a valid legally valid claim of copyright infringement. Issues concerning transgenderism have been much in the news in the last couple of years. Wendy Carlos transitioned in 1968 but didn't come out publicly till 1979. She has never made a big issue of it and does not consider herself any sort of activist. So, she hasn't participated in the recent publicizing of transgender issues. This makes mentioning it all the more irrelevant in a discussion of fair use under copyright law.

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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Anonymous Coward, 17 Nov 2016 @ 1:06pm

Re: Re: Re:

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.

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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wallow-T, 17 Nov 2016 @ 2:26pm

I'll just comment that Wendy Carlos and her representatives have been extraordinarily vigorous in having her music taken down from the net. All YouTube search results for Wendy Carlos appear to be cover versions.

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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Chris, 18 Nov 2016 @ 2:36am

Re: Re: Re: I've heard that music all over the place for years.
Have too agree - this should not even be copyrightable. It's typical computer music rubbish of it's era. The only argument I can think of is "sweat of the brow" as this stuff took a long time to code (I'm old so I remember doing this sort of thing at Uni in the 70s). You literally could just take a music score and code it, then set the tempo. Not really all that imaginative despite what the "author" might think.
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Wendy Cockcroft (profile), 21 Nov 2016 @ 2:35am

Re: Re: Re:
_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._

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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Wendy Cockcroft (profile), 21 Nov 2016 @ 2:36am

Re:
Nail hit on head, news at eleven.

I mean seriously, Carlos has a flippin' nerve!
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Wendy Cockcroft (profile), 21 Nov 2016 @ 2:37am

Re:
She and her contributions to music might disappear from the historical record. Is that what she wants?
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Welton Barker, 1 Dec 2016 @ 9:07am

Wendy Carlos
In her defense, I think that Carlos does pretty aggressively prevent any use of her music across the board. Any lack of prosecution is more likely an oversight than editorial.
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wereisjessicahyde (profile), 1 Dec 2016 @ 11:17am

Re: Re: Hang on..
Half of the video was
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Music, 11 Mar 2017 @ 11:28pm

Amazing composition......
Just now watched the parody trailer. its really amazing. I have listened A Clockwork Orange music. The music composition is simply awesome. I have been following her music on setbeat app from last one year. Thanks.
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