Seuss Estate And ComicMix Copyright Case Settles In The Saddest Possible Way

from the sad-I-am dept

Readers here will know that we've followed the trademark and copyright lawsuit filed by the estate of Dr. Seuss against ComicMix LLC, creators of the mashup book Oh, the Places You'll Boldly Go! The entire thing has been a multi-year rollercoaster designed to be serpentine, with ComicMix arguing that the mashup book was transformative and covered by fair use, and winning on that front, only to have the copyright portion of the argument overturned on appeal. Go and read Cathy Gellis' writeup on the appeal; it's incredibly detailed and informative.

But if anyone was hoping to see this case progress up the federal court ranks, they will be both disappointed and sad. Disappointed because the parties have now settled the case with ComicMix agreeing to acknowledge that the book did, in fact, infringe on Suess' copyrights.

Dr. Seuss Enterprises LP and the makers of the Dr. Seuss/"Star Trek" mashup book "Oh, the Places You'll Boldly Go!" have settled Seuss' copyright infringement claims, according to a Tuesday filing in San Diego federal court.

In an agreement filed with the court, the parties agreed that the book infringes Seuss' copyrights and permanently bars ComicMix LLC, former "Star Trek" writer David Gerrold, illustrator Ty Templeton and others from selling it, while Seuss agreed to drop any claims for damages or attorneys' fees.

The court document is embedded below so you can see it for yourself. This is normally where I would rant and rave about how these settlements, which might make sense for one or both sides of a given conflict, are actually very bad for the larger public as they do not properly resolve the open questions contained in the dispute. In this case, the full weight of the court and legal system has not had its say on whether the mashup book infringed Suess' copyrights. Two courts have disagreed and this could have progressed further, potentially up to the Supreme Court, but the settlement puts a stop to that process.

That said, it's difficult to be to rant-y and rave-y about this particular settlement given the reason it was sought out. Remember that part I said above about this being sad? Well...

The defendants' attorney Dan Booth of Dan Booth Law said in a statement that his clients settled because of Templeton's diagnosis of Stage 3 colorectal cancer earlier this year.

"After five years of litigation and with the pre-trial deadlines looming, as Ty's collaborators and friends, we refuse to put him through any additional stress that would in any way impinge on his health and recovery. To the credit of the people at Dr. Seuss Enterprises, they didn't want to put Ty through that either," Booth said. "So we joined in a motion to end the suit the day before Ty's surgery, in order to alleviate the less serious pain in his butt."

Two things I absolutely have to mention. First, I appreciate the hell out of Booth including a butt joke in a statement about his friend having colorectal cancer. I imagine that he knows Ty would be okay with such a joke, in which case this is just plain good comedy. Second, and more important, the proper framing of this news story should be that the Dr. Seuss Estate extracted a settlement over a copyright dispute for a book that very much did the estate no harm because it was bullying a cancer patient. Somehow, one imagines Suess himself not being in love with this idea, but that is pure speculation.

What isn't speculation is that, as Cathy made the point in the earlier post, this represents a culture loss. Mashup art is not rare and has become, to some discernable level, a part of our culture. This settlement manages to add another bit of ammunition from protectionists who want to control and license every last thing related to their works, whether fair use ought to apply or not.

I understand why this settlement was reached... but it both sucks and is sad.

Filed Under: copyright, dr. seuss, fair use, mashup, oh the places you'll boldly go, remix, star trek, transformative use
Companies: comicmix, dr. seuss enterprises

Elvis Costello Doesn't Care That A Pop Star Copied His Riffs; Says Every Musician Does That

from the good-for-him dept

Is there any cooler musician than Elvis Costello? Honestly, one of the more annoying things about writing about the ins-and-outs of copyright law and creativity is realizing just how many of my artistic (music, filmmaking, writing, etc.) heroes turns out to have absolutely dreadful opinions about creativity and inspiration, often ignoring how they got to where they got, and instead focusing on pulling up the ladder behind them and squeezing as much cash as possible out of others. So I'm always concerned when I learn about musician I like opining on these issues -- especially over the last few years. You had the Marvin Gaye Estate cash in on a pop song that didn't copy any Gaye song, but just had a similar "feel." And that opened the doors to a whole bunch of similar lawsuits of aging rockers (or their estates) demanding money from newer artists.

But Elvis Costello apparently has decided to take the much more sane, much more creative, and much more supportive route. A few different artists have started whining about a new album by Olivia Rodrigo. It started with Courtney Love complaining about the promo artwork on Rodrigo's new album being somewhat similar to Hole's album "Live Through This."

To be fair, Love didn't get that upset, admitting "It happens all the time to me," but she did call it "stealing" and saying that "not asking permission is rude" and "bad form." I don't think it's any of those things. At most it seems like an homage. It might also be kind of an accident. The two sets of images are not really that close. And this is disappointing to see from Love, who twenty years ago famously wrote up one of the greatest screeds mocking record labels and the RIAA for their reaction to the internet.

But, then someone noticed that Rodrigo's music also seemed to have homages in it. Billy Edwards said that her song "Brutal" seemed to be a "direct lift" from Elvis Costello's "Pump it Up." Listening to one after the other, you can definitely hear the similarities in the guitar riff, even though the songs themselves are extremely different.

But... rather than freak out about it, Elvis Costello stepped in on Twitter to make it clear that (1) he's fine with it, and (2) this is how music works. Indeed, he points out that it's how he wrote some of his own songs as well -- "you take the broken pieces of another thrill and make a brand new toy."

In fact, with the hashtags on that tweet, Costello notes that Pump It Up is itself a kind of remix of Bob Dylan's famous Subterranean Homesick Blues, which itself was inspired by Chuck Berry's Too Much Monkey Business.

As Costello rightly notes, this is how music works. Artists build on ideas of what's come before. It's homage, and how creativity works. You take ideas and inspiration from those who came before, and then you make your own thing out of it. And, in the long run, everyone does benefit. New fans learn the new songs -- and as they get deeper into it it also helps them rediscover the pieces on which it was built as well. Only foolish people think that creativity springs forth disconnected from all else -- or that every single inspiration must get a piece of whatever successful ideas newer artists come up with.

So, kudos to Elvis Costello for being quite clear in recognizing the nature of creativity, inspiration, and homage.

Filed Under: copying, culture, elvis costello, olivia rodrigo, plagiarism, remix

Remix Culture Done Right: Wes Tank Mashes Up Dr. Seuss With Dr. Dre (And So Far The Copyright Police Have Left Him Alone)

from the doctor-meets-doctor dept

A few days back I saw a friend share an incredible video on YouTube of a guy in Milwaukee named Wes Tank, rapping Dr. Seuss's "Fox in Sox" over Dr. Dre beats. Even if you think that sounds great, the final result is even better than you expect:

That video went super viral and is currently at over 3.5 million views on YouTube. Wes has since been adding more and more Seuss-over-Dre videos to his channel and each one is incredible. Because I can't pick favorites, here are a few. You'll want to watch them all.

Since seeing these videos (multiple times), I've read and watched a few different interviews with him and he says he basically came up with this idea on a whim five or so years ago, and did it at a live show, and got a tremendous response. Since then, he's done it a few times and it's a crowd favorite, but he never really had time to make the videos for it until, you know, the pandemic hit and the work he was planning to do with his recently created video production company, TankThink, got put on hold.

Of course, as someone who has promoted and supported the concept of mashup or remix culture for decades, this reminded me (yet again) of why being able to do this kind of creativity is so important. Wes himself has talked about the joy and value these videos are creating:

"I think this is helping families a little bit to cope and to have something positive that is going to make you laugh, and is not cynical, and it's not the news," Tank said. "There are so many kids out there who have no clue about what is going on in the world and that naivete is sort of fragile, and everybody's parents are a little tense. So when people send videos of their kids glued to the screen watching this, that just warms my heart."

It really is quite wonderful.

But of course... the downside of paying attention to these kinds of things for decades has me wondering how this plays out in the long term... because copyright always has the ability to come in and create problems. In one interview he's asked if he'll be putting out an album of the tracks, and he implies that copyright might get in the way of any kind of official album release (though he is offering the MP3s to his Patreon supporters).

Still, we're talking about the notoriously litigious Dr. Seuss estate, which not only sued over a fun parody of Dr. Seuss's work, but is still fighting the fact that it has so far lost that case. Parts of that case just had oral arguments before the 9th Circuit a few weeks ago. In other words, the Seuss Estate doesn't seem all that keen on letting people create derivative works. And that's before we get into whoever holds the copyright on Dre's music. Getting both sides of the copyright equation to agree on allowing this would make sense in a sane copyright world -- but that's not the world we live in.

Hopefully, neither side gets upset with this and they let Wes continue doing such an amazing job -- but just the fact that we all know there's a decent chance these amazingly creative mashups might disappear because Dr. Seuss's estate doesn't get paid, should be yet another damning example of how ridiculous the state of copyright law has become today.

Filed Under: copyright, dr. dre, dr. seuss, mashup, remix, wes tank, youtube

NY Times Goes Off On Amazon Because Some People Are Publishing Fake George Orwell Books

from the but,-hey,-what-about-that-public-domain dept

David Streitfeld is a NY Times reporter who, among other things, covers Amazon. As far as I can tell, he has never written about Amazon in an article where he doesn't present things in the worst, most distorted anti-Amazon light. It's gotten to the point where I generally just won't bother with a Times article about Amazon if it's by Streitfeld, because it's guaranteed to be misleading. Somehow, however, I made it through most of this recent article about counterfeit George Orwell books on Amazon before realizing it was yet another Streitfeld hit piece. The article itself is kind of interesting: there are a bunch of folks attempting to sell unofficial George Orwell books on Amazon, and sometimes they're garbage.

What I find odd, is that while the article admits that many are published in India, where Orwell's works are in the public domain, the article makes no mention of the odd copyright situation in the US and UK, where Orwell's books all should be in the public domain based on the copyright deal that was made with Orwell when he wrote the books. Under those terms, all of Orwell's books -- including Animal Farm (1945) and Nineteen Eighty-Four (1949) -- should have entered the public domain years ago, meaning that there would be a robust market for legitimate copies of those works.

Streitfeld also complains about some attempts to "improve" on Orwell.

Most of the distorted texts are likely due to ignorance and sloppiness but at their most radical the books try to improve Orwell, as with the unauthorized “high school edition” of his 1933 memoir. The editing was credited to a Moira Propreat. She could not be reached for comment; in fact, her existence could not be verified.

“Down and Out” is an unflinching look at brutal behavior among starving people, which makes Ms. Propreat’s self-appointed task of rendering the book “more palatable” rather quixotic.

Streitfeld is rather subtle in mocking "Moira Propreat" ("more appropriate") but misses the point again. If those works were in the public domain, as intended, then there would be plenty of opportunities for people to update, remix, change, edit, annotate and do whatever they wanted with Orwell's works. And that would, undoubtedly lead to a bursting of creativity. While it's more limited here -- because it's locked down by copyright -- it's little surprise that what few books have made it out there are of dubious quality and value.

But how is that Amazon's fault as opposed to copyright for limiting the ability of more thorough individuals and companies to do this kind of work? It's also unclear why Amazon is getting the blame for selling badly edited books. Going back decades to Smith v. California, the Supreme Court has held you can't hold bookseller's liable for the content of the books. But Streitfeld ignores all of that and seems to suggest that this is all Amazon's fault, because Amazon is Amazon. He argues -- taking talking points directly from the Authors Guild -- that Amazon won't vet these books because it will 'drag profits down," leaving out the fact that it's impossible to catch all such things.

Yes, there's a legitimate argument that buyers of such books may be annoyed and confused by a less than accurate copy of an Orwell book, but to blame Amazon, and to ignore the copyright issues that brought us here, is a really weird choice, but if it involves blaming Amazon for some other issue, it's the choice the NY Times and Streitfeld always seem to make.

Filed Under: 1984, animal farm, copyright, david streitfeld, george orwell, public domain, remix
Companies: amazon, ny times

Big Fair Use Win For Mashups: 'Oh, The Places You'll Boldly Go!' Deemed To Be Fair Use

from the set-phasers-to-fair-use dept

It's been roughly two years since we last had any update on the lawsuit that was brought by the estate of Dr. Seuss against ComicMix, a group of artists that created a mashup book in the styles of Dr. Seuss and Star Trek. The suit was over trademark and copyright rights, with the court ruling against the estate two years ago on the trademark claim. At the time of the ruling, the court gave the estate two weeks to prove there was any real harm done on the copyright side, after already ruling the trademark uses were fair use. Given the context of the judge's comments in the request, it was clear the Suess Estate had a hell of a hilll to climb.

A hill that now, nearly two years on, appears to have been insurmountable, as the firm representing ComicMix has announced that it has prevailed on the fair use copyright claims as well.

On March 12, 2019, after more than two years of litigation, the United States District Court for the Southern District of California (DSE’s home court) gave a learned, thoroughly reasoned decision that strongly affirms the fair use doctrine. District Judge Janis L. Sammartino reaffirmed her earlier findings that Oh, the Places You’ll Boldly Go! is a highly transformative work that takes no more from the Dr. Seuss books than necessary for its purposes. Under those circumstances, she found that DSE could only defeat the fair use defense by demonstrating that publishing the book would be likely to cause market harm to DSE, and she found that it failed to do so, leaving its claims of market harm simply hypothetical.

As for the trademark claims, Judge Sammartino had already found that the First Amendment protected the use of the title of Oh, the Places You’ll Go! in the title of the Defendants’ book. At the summary judgment stage, she determined that there is no such thing as a trademark in an artistic style, and that DSE does not have an enforceable trademark in the typeface used for the title, so the use of a Seussian typeface for Oh, the Places You’ll Boldly Go! is not trademark infringement.

The ruling itself is, as the law firm states, thoroughly reasoned. It takes the requests for summary judgement from both parties in turn, before taking on the question of fair use itself. Again, the analysis here is detailed, but the court's central ruling is whether or not Boldly interferes with the Seuss' works marketability:

Further, the Court is not persuaded that Boldly “has the same intrinsic purpose and function as Go!,” i.e., “providing an illustrated book, with the same uplifting message that would appeal to graduating high school and college seniors,” see Pl.’s MSJ at 17, or that Defendants “act[ed] in bad faith.” See id. at 17. While Boldly may be an illustrated book with an uplifting message (something over which Plaintiff cannot exercise a monopoly), it is one tailored to fans of Star Trek’s Original Series. See, e.g., Duvdevani Decl. Ex. 2 at 67:1–68:3. Further, that Defendants discussed the necessity of a license and determined that Boldly was a “fair use parody” without seeking the advice of counsel does not amount to bad faith.

The court then turns to the nature of the use of the original work. The court had originally ruled for ComicMix's motion to dismiss specifically on the question of how Boldly used Seuss' work, noting that the use of the work was both not a complete copying of the original and that it was obviously infused with new meaning. The Seuss Estate then argued that Oracle America Inc. v. Google LLC resolved that mashing two properties together in the way that Boldly does would not result in a work suddenly becoming fair use if the copying of the Seuss work was deemed to be substantial.

The court was not impressed.

Examining the cover of each work, for example, Plaintiff may claim copyright protection in the unique, rainbow-colored rings and tower on the cover of Go! Plaintiff, however, cannot claim copyright over any disc-shaped item tilted at a particular angle; to grant Plaintiff such broad protection would foreclose a photographer from taking a photo of the Space Needle just so, a result that is clearly untenable under—and antithetical to—copyright law.

But that is essentially what Plaintiff attempts to do here. Instead of replicating Plaintiff’s rainbow-ringed disc, Defendants drew a similarly-shaped but decidedly nonSeussian spacecraft—the USS Enterprise—at the same angle and placed a red-and-pink striped planet where the larger of two background discs appears on the original cover. See Duvdevani Decl. Ex. 31, ECF No. 115-11, at 450. Boldly’s cover also features a figure whose arms and hands are posed similarly to those of Plaintiff’s narrator and who sports a similar nose and eyes, but Boldly’s narrator has clearly been replaced by Captain Kirk, with his light, combed-over hair and gold shirt with black trim, dark trousers, and boots.5 Id. Captain Kirk stands on a small moon or asteroid above the Enterprise and, although the movement of the moon evokes the tower or tube pictured on Go!’s cover, the resemblance is purely geometric. Id. Finally, instead of a Seussian landscape, Boldly’s cover is appropriately set in space, prominently featuring stars and planets. Id. In short, “portions of the old work are incorporated into the new work but emerge imbued with a different character.” See Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 804 (9th Cir. 2003).

It goes on and on, but you get the idea. What this ultimately represents is a fantastic ruling for anyone interested in the flourishing of mashup-style cultural output. The kind of creative output that is Boldly, with its transformative meaning and messaging, but utilizing other original works to drive the point home, is certainly an art form onto itself. A ruling other than this one could have murdered that art form in its infancy.

And that isn't the purpose of copyright law, as this court wisely noted.

Filed Under: copyright, dr. seuss, fair use, mashups, oh the places you'll boldly go, remix, star trek
Companies: comicmix, dr. seuss, seuss estate

Copyright, Culture, Sharing, Remix... And A Congresswoman Dancing As A College Student

from the copyright-fun dept

So... this post is going to discuss something involving freshman Congresswoman Alexandria Ocasio-Cortez. For a variety of reasons -- some good, some bad, some truly awful -- Ocasio-Cortez (or AOC, as people call her) seems to elicit quite a strong reaction from people, both pro and con. This post is not about her, or her views, or whatever you happen to think about any of it. If you want to argue about her in the comments, feel free, just know that you'll be off-topic and will look silly. Rather, this post is about copyright -- a topic that we talk about frequently, and one on which AOC, in her new job, may at some point be asked to weigh in on as a legislator.

The latest "controversy" (if you can even call it that) began as one of the various attempts by some of her critics to dig into her past to try to prove... something(?!?), in this case by unearthing a video of her in college dancing. I remain unclear of what awful thing her critics thought this proved, but apparently it was something about how people can't possibly have been poor if they once had fun dancing. At least that was the suggestion I saw passed around, and it's about as nonsensical as copyright term extension, but alas...

There's actually a much more interesting copyright story underneath all of this, much of the history of which we've covered in detail on Techdirt in the past, but which Parker Higgins did a great job recounting on Twitter on Thursday afternoon:

Wired later turned much of Parker's thread into an article as well. The short version is that almost exactly 10 years ago, Sarah Newhouse put together a video taking scenes from various 1980s "brat pack" movies (mainly, and most prominently, Breakfast Club, but a few others as well) and put clips of the actors dancing to a (then) new song by the band Phoenix, called Lisztomania:

Notably, that is not the original video. Despite the band being super happy with that video (and everything that later came from it), somewhere along the way, Newhouse got dinged for it and other videos and had her entire YouTube account taken down over copyright infringements. Gotta love that DMCA requirement for a "repeat infringer" policy.

Soon after that video, a guy named Ian Parker, inspired by Newhouse's video, recreated it with his friends on a rooftop in Brooklyn:

That version is still online. It then inspired a ton of other people and social groups to build on that work and create their own, starting with a group in San Francisco. Except... that version is no longer online due to a claim by IFPI that the use of the song is infringing (remember, the band itself was thrilled about the attention this gave them...). But, of course, another version has popped up:

And there are lots and lots of others... including one from Boston University, which has a (just slightly) younger Alexandria Ocasio-Cortez having fun with some friends and recreating a localized BU version of the same video. That one's been online since 2010, just months after this whole craze started:

It is not entirely clear why the sudden spreading of clips from this video were seen as "new" since that original video has been up for nearly a decade, and it's also not at all clear why the "new" video changed the music, though if it was an attempt to hide where it originated from, that failed. I saw the initial tweet that was promoting the video, and it was obvious from the clips that this was one of the many Lisztomania videos, and it would be obvious to anyone who watched a bunch of them back then.

Earlier in 2010, Julian Sanchez had done a fun explainer video on the Evolution of Remix Culture, which we talked about a few times over the years:

Sanchez makes a few points in that video, but the key one is that the complaints that traditional copyright folks have about remix culture totally misses the point. These videos and the sharing of our unique versions of such memes is not about "freely" using someone else's stuff, but about social interactions with our own friends and communities, and putting our own stamp on things. Sanchez doesn't make this point, but it's actually a very similar situation to the way culture used to happen: storytellers would take the ideas of others and build on them and make their own versions and spread them.

Of course, Sanchez's own video was taken down (multiple times) with various bogus copyright claims. While one might argue that the fair use claims on the original videos were less strong (I'd disagree, but there are better arguments there), the idea that Julian's video was not fair use was... crazy. He was clearly commenting on the use of this music and videos for remix purposes, and it would meet all four criteria for fair use easily. Eventually, after Sanchez complained publicly about the takedowns, the demands were removed and the video lives on.

Soon after Sanchez's presentation, Larry Lessig himself used this example of remix culture -- highlighting Sanchez's video... and a whole bunch of these videos.

However, a few years later, as we covered here at Techdirt, the label with control of the copyright, Liberation Music, issued a takedown on one of Lessig's lectures about this. This was, exceedingly bizarre. Remember: Lessig was using the video clips from Julian's video, which is an explainer about the social situation and copyright policy questions raised by all of the other videos... and Liberation claimed it was infringing. Even worse, when Lessig counternoticed, Liberation told him if he didn't remove the counternotice, it would sue him. Lessig and EFF then sued Liberation seeking a declaratory judgment of non-infringement and (importantly) seeking fees for violating 512(f) of the DMCA -- which is the almost entirely toothless clause for pushing back against bogus DMCA takedowns. This was one case where it might actually have teeth. Realizing it was sunk, the following year Liberation ended up settling the case and paying an "undisclosed sum," while promising to adopt new fair use-respecting policies.

And that was, more or less, the end of that meme, until it suddenly came rushing back due to some people's infatuation with a particular Congresswoman. But there are a lot of really important copyright points embedded in this story -- starting with all of the lessons both Sanchez and Lessig highlighted in each of their videos (seriously, watch them both). But it's even more punctuated by the fact that so many of the videos that I discuss above were at one time or another taken down by copyright claims -- many of which seem entirely bogus -- and where the band has made it clear it was thrilled with these videos (as it should have been, as it gave that song a huge boost in attention). Indeed, Phoenix issued a statement (miraculously still available on Tumblr) stating: "We support fair use of our music" and also (apologies for the all caps screaming, but that's how they wrote it):

NOT ONLY DO WE WELCOME THE ILLUSTRATIVE USE OF OUR MUSIC FOR EDUCATIONAL PURPOSES, BUT, MORE BROADLY, WE ENCOURAGE PEOPLE GETTING INSPIRED AND MAKING THEIR OWN VERSIONS OF OUR SONGS AND VIDEOS AND POSTING THE RESULT ONLINE.

ONE OF THE GREAT BEAUTIES OF THE DIGITAL ERA IS TO LIBERATE SPONTANEOUS CREATIVITY - IT MIGHT BE A CHAOTIC SPACE OF FREE ASSOCIATION SOMETIMES BUT THE CONTEMPORARY EXPERIENCE OF DIGITAL RE-MEDIATION IS ENORMOUSLY LIBERATING.

WE DON’T FEEL THE LEAST ALIENATED BY THIS; APPROPRIATION AND RECONTEXTUALIZATION IS A LONG-STANDING BEHAVIOR THAT HAS JUST BEEN MADE EASIER AND MORE VISIBLE BY THE UBIQUITY OF INTERNET.

IN A FEW WORDS:

WE ABSOLUTELY SUPPORT FAIR USE OF OUR MUSIC,

AND WE CAN ONLY ENCOURAGE A NEW COPYRIGHT POLICY THAT PROTECTS FAIR USE AS MUCH AS EVERY CREATORS’ LEGITIMATE INTERESTS.

So, we have a copyright policy that pissed off the actual artists -- and only served to stifle or silence many people who were building off of it in truly creative ways that enabled a community endeavor. As Julian noted in his talk (and Lessig specifically called out), a big part of the question here is "what level of control copyright has over our social realities" and how copyright policy that is too locked down serves to limit our ability to express and share our social realities.

In his big thread, almost as an aside, Parker made a key point in this discussion that is worth repeating (over and over and over again):

Indeed, this is the entire point that the Article 13 debate in the EU is about. The supporters of Article 13 are demanding -- literally -- that the entire internet "be licensed." But think about how the above story plays out in such a world. In short, it doesn't. And while that might mean one less way for some internet morons to self-own themselves in trying to make fun of a new Congresswoman, I'm not exactly sure that's what we should be optimizing for.

Indeed, this whole story is a lesson in the power of culture and communities to actually rise above the ridiculousness of today's copyright laws (mostly) to actually showcase their communities and personalities, and that's something we should be championing. And one hopes that when copyright policy is up for discussion in Congress, that AOC gets that, now having some firsthand experience with it.

Oh, and I should note that the nature of remix and copyright and culture has continued to expand. Following from this whole mess with AOC, someone has set up a Twitter account called AOC Dances To Every Song, and it delivers exactly what it claims to. Here are just a few examples:

There are a lot more... though it would not surprise me at all to find that account is eventually shut down for... claims of copyright infringement. Because this is the insane world we live in.

For what it's worth, AOC herself has now evolved this even further by dancing in a new video, and making fun of the "controversy."

I wonder if copyright maximalists will demand that she also "license" that clip as well?

Filed Under: alexandria ocasio-cortez, copyright, culture, dancing, julian sanchez, larry lessig, lisztomania, parker higgins, phoenix, remix, sharing

New Organization Formed In South Africa To Promote The Rights Of Creators And Support Intelligent Copyright Reform

from the fair-use-is-only-fair dept

Over the years, Techdirt has written about some pretty bad stuff happening in South Africa on the copyright front. For example, there was the Business Software Alliance using made-up figures in an attempt to revise copyright law in its favor. The South African music rights organization tried to put public domain works under copyright. And -- most insane of all -- the South African recording industry association ran a stupid "anti-piracy" campaign called "Shoot the Pirate", which resulted in actual violence. So it makes a pleasant change to report on some good news from the country. A new organization of creators has been formed to press for a more balanced copyright system in South Africa. They call themselves ReCreate, although apparently the group has no connection with the similar US organization Re:Create. Here are the South African ReCreate's basic principles:

ReCreate exists to promote the interests of South African creatives with regards to copyright legislation.

As much as we are creators, we are users of existing cultural products. Currently our work can be blocked through censorship by those who claim to own our culture. Moreover we often do not not own the work we create. And many of us have been disadvantaged by an exploitative system which fails to pay us for our work.

Growing the digital economy requires innovation. South Africa is at a disadvantage to other countries with flexible copyright laws that support creativity.

We call on Government to include in the ongoing copyright reform three key issues to enable us to create the next generation of South African content for the world.

An update about the South African copyright reform currently underway can be found on the infojustice.org site. There's also an opinion piece in South Africa's Mail & Guardian written by some of ReCreate's founders, in which they explain some of the problems they face under current copyright legislation, and the fair use rights they need to help them produce new works in the digital world:

Parody and satire

Incidental use of background content

Use of works in public places

Digital archival

Creation of educational works

Non expressives uses on the Internet, including indexing, data mining and search

Re-mixing, transforming and re-interpreting

Creation of accessible copies for people with disabilities

Adaptation to future technology

However, according to another post on infojustice.org, the South African Department of Arts and Culture has come out against introducing fair use, claiming:

Fair use by its nature is open-ended and it creates uncertainties in the management of rights. If adopted, this model will permit uncontrollable and unreasonable access to copyright materials resulting into reduction of real income for copyright owners.

Although it's disappointing to see this kind of tired old FUD being spread, it's great to see artists standing up for themselves like this in South Africa. For too long, the copyright companies have claimed to represents artists while doing precious little to help them create new works or earn a decent living. The founding of ReCreate is a hopeful sign that things may be about to change.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: archival, copyright, creativity, fair use, innovation, parody, recreate, remix, satire, south africa

Two Separate Copyright Rulings Around The Globe May Finally Clear The Copyright Way For Sampling

from the good-to-see dept

This week, in two different countries, we got two very good rulings concerning copyright on "sampling" of music into other songs. As you may know, the law on sampling, especially in the US, has been a bit of a mess. There was a great documentary on this a few years ago called Copyright Criminals that I highly recommend watching if you can find it. Here's the trailer: A big part of the problem was a horrible ruling in the 6th Circuit in one of the (many) Bridgeport cases (a company that is alleged to have forged records to get control over heavily sampled works, and then sued lots of artists over their samples). In Bridgeport v. Dimension Films, a confused 6th Circuit appeals court made a bunch of nutty comments in a ruling, including "Get a license or do not sample. We do not see this as stifling creativity in any significant way." That case, which didn't even look at the fair use issue, effectively wiped out another legal defense against accusations of copyright infringement, known as "de minimis use." The court's bizarre ruling contradicted plenty of others in basically saying there's no such thing as de minimis use because each sampled note has value or it wouldn't have been sampled. This tautological reasoning is directly in that awful ruling:

Why is there no de minimis taking...? ... [E]ven when a small part of a sound recording is sampled, the part taken is something of value.(11) No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.

And while this ruling has been troubling copyright and music sampling folks for ages, no one seemed willing to challenge it. But, a few years back, we wrote about VMG Salsoul suing Madonna over her hit song "Vogue," claiming it used a sample from the VMG Salsoul song "Chicago Bus Stop." You can listen to both tracks and I assure you that you will not see any similarities, because they're totally different. In fact, VMG claimed that part of the reason it took 20 years to sue over this was because Madonna "hid" the sample -- which (to us, at least) raised serious questions about how it could be copyright infringement at all. In our article, we noted the mess in the 6th Circuit and the fear of others testing that ruling, but the Madonna case went forward (in the 9th Circuit, rather than the 6th) and Madonna won, and has now won again on appeal, with the court flat out rejecting the Bridgeport ruling in the 6th Circuit, and saying that de minimis use exists in sampling:

We reject that interpretation of § 114(b). Bridgeport ignored the statutory structure and § 114(b)’s express limitation on the rights of a copyright holder. Bridgeport also declined to consider legislative history on the ground that “digital sampling wasn’t being done in 1971.” ... But the state of technology is irrelevant to interpreting Congress’ intent as to statutory structure. Moreover, as Nimmer points out, Bridgeport’s reasoning fails on its own terms because contemporary technology plainly allowed the copying of small portions of a protected sound recording....

Close examination of Bridgeport’s interpretive method further exposes its illogic. In effect, Bridgeport inferred from the fact that “exclusive rights . . . do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds,” ... the conclusion that exclusive rights do extend to the making of another sound recording that does not consist entirely of an independent fixation of other sounds. As pointed out by Nimmer, Bridgeport’s interpretive method “rests on a logical fallacy.” ... A statement that rights do not extend to a particular circumstance does not automatically mean that the rights extend to all other circumstances. In logical terms, it is a fallacy to infer the inverse of a conditional from the conditional.

The ruling also rejects that weird "physical taking" line quoted above as a reason to ignore de minimis use as a defense against infringement:

We disagree for three reasons. First, the possibility of a “physical taking” exists with respect to other kinds of artistic works as well, such as photographs, as to which the usual de minimis rule applies.... A computer program can, for instance, “sample” a piece of one photograph and insert it into another photograph or work of art. We are aware of no copyright case carving out an exception to the de minimis requirement in that context, and we can think of no principled reason to differentiate one kind of “physical taking” from another. Second, even accepting the premise that sound recordings differ qualitatively from other copyrighted works and therefore could warrant a different infringement rule, that theoretical difference does not mean that Congress actually adopted a different rule. Third, the distinction between a “physical taking” and an “intellectual one,” premised in part on “sav[ing] costs” by not having to hire musicians, does not advance the Sixth Circuit’s view. The Supreme Court has held unequivocally that the Copyright Act protects only the expressive aspects of a copyrighted work, and not the “fruit of the [author’s] labor.” ... Indeed, the Supreme Court in Feist explained at length why, though that result may seem unfair, protecting only the expressive aspects of a copyrighted work is actually a key part of the design of the copyright laws.... Accordingly, all that remains of Bridgeport’s argument is that the second artist has taken some expressive content from the original artist. But that is always true, regardless of the nature of the work, and the de minimis test nevertheless applies.

And thus, the 9th Circuit directly admits that it's creating a circuit split, which makes it much more likely that the Supreme Court may take up the issue:

Because we conclude that Congress intended to maintain the “de minimis” exception for copyrights to sound recordings, we take the unusual step of creating a circuit split by disagreeing with the Sixth Circuit’s contrary holding in Bridgeport. We do so only after careful reflection because, as we noted in Seven Arts Filmed Entertainment Ltd. v. Content Media Corp.,.. “the creation of a circuit split would be particularly troublesome in the realm of copyright. Creating inconsistent rules among the circuits would lead to different levels of protection in different areas of the country, even if the same alleged infringement is occurring nationwide.” ... We acknowledge that our decision has consequences. But the goal of avoiding a circuit split cannot override our independent duty to determine congressional intent. Otherwise, we would have no choice but to blindly follow the rule announced by whichever circuit court decided an issue first, even if we were convinced, as we are here, that our sister circuit erred.

It also notes, as we did, that no one would ever be able to tell that the Madonna song sampled Bus Stop:

After listening to the recordings, we conclude that a reasonable jury could not conclude that an average audience would recognize the appropriation of the composition.

Furthermore, the fact that the sample was modified helps Madonna's case:

The horn hit itself was not copied precisely. According to Plaintiff’s expert, the chord “was modified by transposing it upward, cleaning up the attack slightly in order to make it punchier [by truncating the horn hit] and overlaying it with other sounds and effects. One such effect mimicked the reverse cymbal crash. . . . The reverb/delay ‘tail’ . . . was prolonged and heightened.” Moreover, as with the composition, the horn hits are not isolated sounds. Many other instruments are playing at the same time in both Love Break and Vogue.

The ruling even notes that VMG Salsoul's own expert "misidentified" the source of the sampled note, showing that even their own expert couldn't correctly understand what was sampled here (oops). And in the end, the court supports de minimis use:

We hold that the “de minimis” exception applies to actions alleging infringement of a copyright to sound recordings.

Separately, the court did overturn the district court awarding attorneys' fees in the case, saying that the lawsuit was not "objectively unreasonable" in light of Bridgeport, even if that case was disputed by many.

There is also a really confused dissent by Barry Silverman that goes along the "copyright is a property right and any infringement on that right is bad" line of thinking:

The plaintiff is the owner of a copyright in a fixed sound recording. This is a valuable property right, the stock-intrade of artists who make their living recording music and selling records.... It is no defense to theft that the thief made off with only a “de minimis” part of the victim’s property.

And then there's this:

True, Get a license or do not sample doesn’t carry the same divine force as Thou Shalt Not Steal, but it’s the same basic idea. I would hold that the de minimis exception does not apply to the sampling, copying, stealing, pirating, misappropriation – call it what you will – of copyrighted fixed sound recordings. Once the sound is fixed, it is tangible property belonging to the copyright holder, and no one else has the right to take even a little of it without permission.

It's kind of horrifying when an appeals court judge doesn't know the difference between theft and infringement. Thankfully, he's in the minority.

Either way, this circuit split increases the chances of the Supreme Court weighing in. That could be good in finally getting the 6th Circuit precedent destroyed. Or... it could be bad in that this particular Supreme Court seems to almost always get copyright cases wrong, meaning it could affirm the 6th Circuit interpretation and dump the 9th's, once again doing serious harm to sampling as an art form.

Meanwhile, however, over in Germany, they've taken a much more enlightened view on all of this in a similar case involving Kraftwerk whining about a hip hop song sampling some of its music. The German Bundesverfassungsgericht (German federal constitutional court) has given a big okay to samples by noting that their artistic merit outweighs the copyright issue:

If the artist’s freedom of creative expression is measured against an interference with the right of phonogram producers that only slightly limits the possibilities of exploitation, the exploitation interests of the phonogram producer may have to cede in favour of artistic dialogue.

The ruling basically tries to balance the right to "artistic freedom" with copyright law, and basically argues that in cases where those doing sampling aren't doing any real harm to the original copyright holder, the artistic freedom should win out. The court rejects the idea that using a short sample interferes with the copyrights of the original:

The presumption by the Federal Court of Justice that even the inclusion of very brief sound sequences constitutes an interference with the plaintiffs’ right to protection as phonogram producers if the used sequence can be reproduced so as to sound like the original, does not take sufficient account of the right to artistic freedom. Where a musical artist who intends to use samples to create a new work does not want to refrain from including a sample in his new piece of music, the strict interpretation of free use by the Federal Court of Justice puts him in the position of having to decide whether to obtain a sample license from the phonogram producer or to reproduce the sample himself. In both cases, however, the freedom of artistic activity and hence also the further cultural development would be restricted.

Just because you can license some samples doesn't fix the situation:

Emphasising the possibility to obtain a license does not provide an equivalent degree of protection of the freedom of artistic activity: A right to be granted a license to use the sample does not exist; due to his right of disposal, the phonogram producer may deny a licensing without having to give reasons and irrespective of the readiness to pay for the use of the sample. The phonogram producer is entitled to demand the payment of a license fee for the use of the sample, the amount of which he is free to determine. The process of granting rights is extremely difficult in case of works which assemble many different samples in a collage-like manner. These problems are only solved insufficiently by existing sample databases and service agencies that assist musical artists in the process of sample clearing.

In other words, the German approach here is a big, big deal, recognizing that sampling is a form of artistic expression, and requiring licenses for it stifles creativity and musical expression. This is a much bigger deal than the US situation, where we're still arguing over de minimis use (and not even fair use!). Meanwhile, over in Germany they're directly looking to enable more artistic freedom.

Filed Under: 6th circuit, 9th circuit, bridgeport, creativity, de minimis, fair use, germany, hip hop, kraftwerk, madonna, music, remix, samples, vmg salsoul

Mad Max Fury Road Re-Edit Taken Down Because Of Course It Was

from the copyright-road dept

As I was poking around the interwebz yesterday morning, I came across an interesting project one fan of Mad Max: Fury Road had made. To preface this, if you haven't seen the movie, shame on you and all of your ancestors. It's two hours of mind-blowing nonsense wrapped up in an action film that appears to be attempting to be the definitive action film moving forward. That said, director George Miller has also made some comments about how he would have preferred to have the film edited in black and white, with limited to no dialogue and the musical score taking center stage.

Well, one fan went ahead and worked to produce Miller's vision. The resulting movie was strikingly different and resulted in a very different experience compared with watching the movie. If nothing else, it was a wonderful example of the power of dialogue, editing, musical scores, color and sound. The person responsible for the edited film put it this way.

George Miller has said that the best version of his film is in black and white, with no dialogue. BLACK & CHROME is an attempt to realize Miller’s alternate vision. The cinematography, the editing, the sound design, and the score, are now represented in a completely new experience.

I do not own the rights to this video. All rights belong to its rightful owner/owners. No copyright infringement intended. This is merely an exercise and study of the art of filmmaking.

But before you go rushing to check out this awesomeness for yourself by clicking the link above, you should know that this is what will greet you. Yes, in an outcome that I predicted immediately after I shared the fan project with the rest of my Techdirt compadres, it appears the video has been taken down over copyright issues. And that's dumb on a variety of different levels. First, the takedown itself wasn't necessary. Nothing about Black and Chrome competed with Fury Road. The entire point of the fan project was to show just how different small changes could make the overall experience. Those experiences were unique enough to be non-overlapping from the film viewer's perspective. This is just a control power move by whoever made it.

But I'm not entirely certain fair use shouldn't come into play, as well. As a matter of art, the project is undeniably transformative. Certainly there is little effect on the original work to consider, save perhaps for an increased likelihood that others will want to see the original after seeing the fan-edit. That said, a significant amount of the original work is used to make the derivative, so I'm not sure it goes far enough for fair use. Regardless, the creator of the fan-edit appears to be taking the takedown well.

Thank you for liking, sharing, and watching BLACK & CHROME. This is it for now. Your response has truly shown what the joy of movies is about. Hopefully, the right person(s) will have WITNESSED this and we can look forward to an official version of Mad Max: Fury Road in black and white. The film has lived, and has died, but can it live again?

It's just too bad the film wasn't allowed to become a fun bit of experience for Mad Max fans everywhere.

Filed Under: culture, editing, fury road, george miller, mad max, remix