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

from the again dept

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.

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

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!"

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.

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.

Filed Under: copyright, copyright criminals