Mount Washington Railroad, New Hampshire (c. 1870)

GIF made with the NYPL Labs Stereogranimator

The Beach Boys: Villains, just see what you’ve done.

One of the oddest points to get across to non-lawyers, lawyers-to-be, and even many lawyers is that what the law prescribes and what actually happens are 2 entirely different things and that it is as crucial to being a good lawyer to understand what actually happens and why  as it is to know the laws.

It starts out pretty simply with beginning law students. The first time someone says, “But you can’t do that because it’s against the law,” I ask him whether he’s ever driven faster than the speed limit. And then I look at him and say, “But you can’t! It’s against the law.”

The law does, of course, affect a lot of what happens. You’ll speed based on some unconscious calculation regarding the benefits of getting where you’re going faster against the risk of being ticketed and the cost if you are. You might also take into account other costs such as dangers posed by children in the neighborhood, the driving conditions, and the reactions of any passengers to your speed.

It might seem like a simplistic example, but that’s what you have to become conscious of when you’re a lawyer: the risks and costs associated with your behavior, including the risks and costs imposed by law. And if you only consider the risks and costs imposed by law, you’re probably not doing your clients a lot of good.

I am convinced, however, that the central problem with the contemporary U.S. legal system is the cost of actually using the law to get what the law prescribes. It’s insane how much it costs to sue or be sued, and the insanity of those costs skews so much in our society in favor of those with a lot of money regardless of the legal ramifications of that skewing. In copyright, a lot of people complain that digitized information and the internet have made it too expensive to stop people from stealing their property. But far more of an impact is felt by what is called “copyright overclaiming,” the assertion by wealthy (and typically corporate) copyright holders that their rights have been infringed by people who cannot afford to vindicate their legitimate rights to use the copyright material in a lawsuit.

As Richard Posner has written:

Here is a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher’s (or movie studio’s) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit.

The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn’t want to encourage such uses by permitting his own authors to copy from other publishers’ works. So you have a whole “law in action” law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.

Whether it’s the writer’s own publisher or the copyright holder, the instances of copyright overclaiming are endless and seem downright silly until you realize the person being sued by the copyright holder really has no choice. Money rules.

Now, from artnet, comes the latest example of a rich has-been using his a flimsy claim of copyright infringement to squeeze a few more dollars out of an up-and-coming artist:

Perhaps no one was more excited by the long-awaited release of the Beach Boys’ unfinished 1966 album Smile than Erik den Breejen. After Smile came out last year, the young painter (and lifelong Beach Boys fan) set to work on a series of paintings that transformed the lyrics into brightly colored text-blocks, assembled into shapes of ocean waves and smiling lips.

When the exhibition opened at Freight and Volume gallery in December (and was reviewed in these pages by Charlie Finch), den Breejen sent word of the show to Beach Boys lyricist Van Dyke Parks. Den Breejen had tracked down Parks’ manager, thinking that she might share his artworks with his idol. A few days later, Den Breejen was met with a less than enthusiastic reply: a cease-and-desist letter mailed to the gallery from Parks’ attorneys.

* * *

Dickie Goodman & Bill Buchanan: The Flying Saucer — the first hit mashup and its legacy

• Buchanan & Goodman – The Flying Saucer (Parts 1 & 2) (mp3)

Chuck Miller on the first controversial hit recording using samples of other songs:

[I]n June 1956, [Dickie] Goodman came up with an idea. “Bill Buchanan and I were writing some songs at the time,” said Goodman in a print interview, “trying to break into the business. We were sitting around and suddenly we got an idea. How would it be if we had a disc jockey show being interrupted by reports of a flying saucer – THE FLYING SAUCERS ARE REAL! – and suddenly the Platters line (from “The Great Pretender”) came to me – ‘Too real when I feel what my heart can’t conceal’ and we said ‘Hey!’ and we didn’t know any better so we put the thing together.”

Within a few days, Goodman and Buchanan spliced together a four-minute reworking of Orson Welles’ “War of the Worlds” radio broadcast. Goodman played “John Cameron Cameron,” an unflappable reporter interviewing people, officials and even the Martians themselves. Buchanan was heard as a title-mangling disc jockey (allegedly based on Alan Freed), who interrupted a Nappy Brown dance number with news of an invasion from Mars.

Buchanan: We interrupt this record to bring you a special bulletin. The reports of a flying saucer hovering over the city have been confirmed. The flying saucers are real!

Radio:Too real, when I feel, what my heart can’t conceal… (from the Platters’ “The Great Pretender”)

Buchanan: That was the Clatters’ recording, “Too Real!”

And that set the pattern. Goodman would interview eyewitnesses about the spaceship, whose responses were the lyrics of popular songs.

Goodman: This is John Cameron Cameron downtown. Pardon me madam, would you tell our audience what would you do if the saucer were to land?

Witness: Duck back in the alley (from Little Richard’s “Long Tall Sally”) . . .

The record continued. While the flying saucer landed on Earth, Buchanan and Goodman greeted its arrival with more splices, in-jokes and primitive technical wizardry.

Goodman: This is John Cameron Cameron on the spot. And now I believe we’re about to hear the words of the first spaceman ever to land on earth.

Martian: “A WOP BOP A LOO MOP A LOP BAM BOOM” (from Little Richard’s “Tutti-Frutti”) . . .

The duo shopped their pastiche to every record label in New York. Nobody was interested; many record execs dismissed the recording as a cheap “sampler.” Undaunted, they took the tape to radio station WINS, where disc jockey Jack Lacy agreed to play it. He gave the song a couple of airings, then let the next DJ – Alan Freed – play the track during his show.

Meanwhile, Buchanan and Goodman visited George Goldner, a producer at Roulette Records. In a print interview with Art Fein, Goodman remembers that meeting. “We were in George’s office, but before we got a chance to play our record, one of his salesmen burst in and asked if anybody knew about a record that was played on WINS the night before – something about Elvis Presley and spacemen. Everybody in town wanted it. George took it on immediately.”

* * *

Although the record was an immediate hit in New York, it took a couple of weeks for the rest of the country to catch on. The NBC and ABC radio networks initially banned the song, because they didn’t want any listeners misunderstanding the gag record as an actual announcement of an invasion. Other parts of the country couldn’t get their hands on the record fast enough. In Cleveland, for example, the record was so scarce that stores were charging customers as much as $1.75 for each copy.

Meanwhile, the Music Publishers Protective Association, through the offices of its trustee, the Harry Fox Agency, claimed “The Flying Saucer” was guilty of at least 19 different instances of copyright infringement and unauthorized usages. “If we can’t stop this,” said one record insider to Billboard, “nothing is safe in our business.”

“No industry exec believes [Buchanan and Goodman] have a leg to stand on in their use of copyrighted material and other disk artists without permission,” said an unnamed source to Variety.

But although the record companies publicly moaned and wrung their hands over the issue, they initially let the publishing houses go after Buchanan and Goodman for copyright infringement, rather than litigate the matter themselves. Part of the reason may have been because “The Flying Saucer” actually increased sales of records included in its collage. For example, because a snippet of “Earth Angel” was part of “The Flying Saucer,” requests for the Penguins song forced DooTone Records to reissue their hit. As an unidentified publishing representative told Time magazine, “It’s the greatest sampler of all. If you’re not on ‘Saucer,’ you’re nowhere!”

Some record company executives questioned whether Buchanan and Goodman actually infringed on any rights at all. The fragments were all part of ASCAP’s and BMI’s libraries, and Buchanan and Goodman’s lawyers argued that the question was really whether “The Flying Saucer” contained any material that wasn’t part of those two libraries. One record exec told Variety that he was ready to forget the whole business and just let the record run its course. Another industry lawyer said that because of all the publicity this case received, he didn’t think anybody would dare make another “snippet” record for at least another decade.

After much negotiation among all parties, an agreement was finally reached. The publishing houses would split 17 cents in royalties from every 89 cent copy of “The Flying Saucer” – approximately 1 cent for each publisher per disc sold. Buchanan and Goodman could still sell their single, and the song was finally cleared for jukeboxes and radio airplay.

By August 15, 1956, “The Flying Saucer” had sold 500,000 copies in three weeks, and was a regional #1 hit in Pittsburgh, Louisville and Cleveland. By the end of August, “The Flying Saucer” had doubled those sales figures, and climbed as high as #3 in Billboard’s and Variety’s national sales charts, just behind Elvis Presley’s two-sided hit “Don’t Be Cruel”/”Hound Dog” and the Platters’ “My Prayer.” In some cities, “The Flying Saucer” actually beat Elvis for a few weeks in sales and local airplay. Jukebox owners purchased three or four copies of “The Flying Saucer” for their businesses – and a couple extra for themselves. Disc jockeys loved the song, and began working on “break-in” collages of their own.

Some of those “break-in” records actually made it to disc – many of them while “The Flying Saucer” was flying up the charts. . . .

The publishing houses were furious. Instead of “break-in” records stopping, now they were multiplying like weeds in a garden. In an attempt to limit the production of new “break-in” records, the publishing houses demanded an increase from the standard two-cent royalty for each song used, to eight cents per song from each of the new “break-in” discs!

Many of the smaller companies simply gave up. . . . Plus Records . . . pressed 53,955 copies of an Elvis-themed “break-in” record, “Dear Elvis, With Love From Audrey” . . . , but could sell only 30,000 copies before the increased royalty rate was assessed. As part of a settlement agreement, Plus Records turned over the master of “Dear Elvis” to the publishing houses, who promptly destroyed the master.

In November 1956, Buchanan and Goodman began work on their second single, “Buchanan and Goodman on Trial” (Luniverse 102), a “break-in” record satirizing their experience in the courtroom. With Little Richard as their defense attorney and a jury full of Martians acquitting the “break-in” duo of all charges, “Buchanan and Goodman on Trial” became both a moderate hit and a not-so-veiled jab at the legal system.

This time the record companies fought back. Four record labels – Imperial, Aristocrat, Modern and Chess – along with two performers, Fats Domino and Overton Lemon (Smiley Lewis), filed suit in New York District Court for an injunction against all Buchanan and Goodman recordings, as well as $130,000 in compensatory and punitive damages. They also wanted 6 cents per single for use of such songs as “Ain’t That A Shame,” “Maybelline,” “I Hear You Knocking” and “Hard to Tell” on the two Luniverse singles. Two publishing companies, Commodore Music and Arc Music, joined in the suit, both refusing Luniverse’s original penny-per-sample out-of-court settlement from the first trial.

During the trial, Saul Goodman, Dickie Goodman’s father and co- counsel for the defendants, brought a copy of “The Flying Saucer” into the courtroom as Exhibit A. “My grandfather took it up to the judge,” said Jon Goodman,” and he asked the judge to take it home and listen to it. At first the judge didn’t want to do it, but he went ahead and did it.”

The next day, judge Henry Clay Greenberg denied the injunction, writing in his decision: “The defendants [Buchanan and Goodman] artfully and cleverly have devised interesting novelty records which make use of portions of records of successful performers under exclusive contract with the plaintiffs and others … In this highly competitive industry, the fruits of labor may be gathered in or lost quickly … Undoubtedly some considerable value attaches to the portions of the plaintiffs’ records which have been adopted by the defendants … the court is not able to determine whether or not the defendants have exceeded the bounds of permissible fair competition … A temporary injunction ought not to issue in a case unless the offense is clear.”

“The judge later said that the “Flying Saucer” was a satire, a parody, a new work – a burlesque, in effect – and there was no reason to charge Luniverse with violation of anybody’s copyright,” said Jon Goodman. “There were out of court settlements – they arranged clearances for the publishing houses and whatever. My father made the Harry Fox Agency, which was in charge of collecting mechanicals and royalties, a more interesting organization to work with.”

* * *

In fact, Goodman’s snippet records may have been the rock equivalent of the compositions of John Cage, David Tudor and George Rochberg – using tape recorders and phonograph records as instruments, slicing up reel-to-reel tapes and resplicing them at random; creating new recordings from the fragments of old ones. It was the music of indeterminacy, as Luciano Berio composed “Sinfonia” by quoting from a Mahler symphony and fragments of a theatrical production. It was new uses for old technology, as Ferrante and Teicher plucked the wires of a “prepared piano” for a harp-like sound. Music barriers were being torn down, as Edgard Varese’s aural symphonies influenced the work of Frank Zappa; and as Karl-Heinz Stockhausen’s electronic compositions left an indelible imprint on the Beatles’ “Revolution No. 9.”

And Dickie Goodman may have been the first to turn this “music of indeterminacy” into pop recordings. Other unsuccessful attempts at “break-in” records could be found as early as the 1920′s, according to syndicated radio host and music expert Dr. Demento. “In 1928, The Happiness Boys (Billy Jones and Ernest Hare) recorded a comedy sketch for Victor called ‘Twisting the Dials,’ about listening to the radio. It used a few snatches of other phonograph records to simulate the music that was encountered while ‘twisting the dials.’ The record was not a big seller. Spike Jones and Stan Freberg often used quotes from existing songs for humorous effect, but not bits of actual hit records. I would say that for all intents and purposes, ‘The Flying Saucer’ was the first successful release in that genre.”

* * *

Goodman’s legacy is still alive today. . . .

And most of all, he wants anybody who ever sampled a track, anybody who ever transposed a lyric into an entirely new song, anybody who had to contact the Harry Fox Agency to determine proper mechanical rights – to remember Dickie Goodman. “This is what I was meant to do. What I’m trying to do is stop something that can last forever from fading away. I’m trying to save my father’s work.”

Michalis Pichler: Statements on Appropriation (2009)

Michalis Pichler: Statements on Appropriation (2009) 

1. if a book paraphrases one explicit historical or contemporary predecessor in title, style and/or content, this technique is what I would call a “greatest hit”

2. Maybe the belief that an appropriation is always a conscious strategic decision made by an author is just as naive as believing in an “original” author in the first place.

3. It appears to me, that the signature of the author, be it an artist, cineast or poet, seems to be the beginning of the system of lies, that all poets, all artists try to establish, to defend themselves, I do not know exactly against what.

4. Custom having once given the name of ” the ancients ” to our pre-Christian ancestors, we will not throw it up against them that, in comparison with us experienced people, they ought properly to be called children, but will rather continue to honor them as our good old fathers.

5. It is nothing but literature!

6. there is as much unpredictable originality in quoting, imitating, transposing, and echoing, as there is in inventing.

7. For the messieurs art-critics i will add, that of course it requires a far bigger mastery to cut out an artwork out of the artistically unshaped nature, than to construct one out of arbitrary material after ones own artistic law.

8. The authenticity of a thing is the essence of all that is transmissible from its beginning, ranging from its substantive duration to its testimony to the history which it has experienced.

9. Intellectual Property is the oil of the 21st century

10. Certain images, objects, sounds, texts or thoughts would lie within the area of what is appropriation, if they are somewhat more explicit, sometimes strategic, sometimes indulging in borrowing, stealing, appropriating, inheriting, assimilating… being influenced, inspired, dependent, indebted, haunted, possessed, quoting, rewriting, reworking, refashioning… a re-vision, re-evaluation, variation, version, interpretation, imitation, proximation, supplement, increment, improvisation, prequel… pastiche, paraphrase, parody, forgery, homage, mimicry, travesty, shan-zhai, echo, allusion, intertextuality and karaoke.

11. Plagiarism is necessary, progress implies it.

12. Ultimately, any sign or word is susceptible to being converted into something else, even into its opposite.

13. Like Bouvard and Pecuchet, those eternal copyists, both sublime and comical and whose profound absurdity precisely designates the truth of writing, the writer can only imitate a gesture forever anterior, never original

14. The world is full of texts, more or less interesting; I do not wish to add any more.

15.

16. The question is: what is seen now, but will never be seen again?

17. Détournement reradicalizes previous critical conclusions that have been petrified into respectable truths and thus transformed into lies.

18. No poet, no artist, of any art has his complete meaning alone.

—————————
On December 11 2009 six one sentence statements originated by the “artist /author” for the purpose of this piece were mixed, in a container, with eighteen one sentence quotes taken from various other sources; each sentence was printed onto a separate piece of paper. Eighteen statements were drawn by “blind” selection and, in the exact order of their selection, join altogether to form the “statements on appropriation”, for the presentation at Stichting Perdu, Amsterdam.

In the following bibliography the sources (…) may be found although no specific statement is keyed to its actual author.

Roland Barthes,”The Death of the Author”, (1967)

Walter Benjamin, “Unpacking My Library “(1931), repr. In “Illuminations”, (ed.) Hannah Arendt (1968)

Walter Benjamin (1936), “Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit”, Frankfurt/Main 1963, p.15 (transl.http://www.marxists.org/reference/subject/philosophy/works/ge/benjamin.htm)

Marcel Broodthaers (interviewed by Freddy de Vree, 1971) repr. in “Broodthaers”, Koeln (1994), p. 93

Ulises Carrión , “The New Art of Making Books”, Kontexts no. 6-7, 1975 and repr. in Guy Schraenen: “We have won! Haven’t we?”, Amsterdam, (1992)

Giorgio de Chirico, repr. in “The New Five-Foot Shelf of Books”, Allen Ruppersberg, Ljubljana (2003)

Guy Debord, “The Society of the Spectacle” Paris, (1967), Paragraph 206, (transl. Ken Knabb http://www.bopsecrets.org/SI/debord/8.htm )

Guy Debord, Gil J Wolman, “Mode d’emploi du détournement” in “Les Lèvres Nues #8″ (trans. by Ken Knabb “A User’s Guide to Détournement” (2006))

Eliot, T.S. “Tradition and the Individual Talent” (1919), repr. in Frank Kermode (ed.) “Selected Prose of T.S. Eliot”, (1984) London:Faber, p.37

Mark Getty, chairman of Getty Images in an interview with “The Economist”, London (2000)

Kenneth Goldsmith , “Being Boring”, in The Newpaper #2, London (2008), p.2,http://www.thenewpaper.co.uk

herakleitos, Ephesos (around 500 BC), quoted by Plato in “Cratylus” (fragment 41)

Julia Kristeva “Word, Dialogue and Novel” (1969), repr. in Toril Moi, (ed.) “The Kristeva Reader”

Comte de Lautréamont (Isidore Ducasse), “Poésies”, London (1978), p.68

Daniel McClean and Karsten Schubert (ed), Dear Images: Art, Copyright, and Culture, (2002)

Allen Ruppersberg, “Fifty helpful hints on the Art of the Everyday” in “The Secret of Life and Death”, LA (1985), p.113

Kurt Schwitters, “i (ein Manifest)” repr. in ” Kurt Schwitters – Das Literarische Werk” (ed.) Friedhelm Lach Band 5, p. 120, Koeln (1973/1981)

Leo Steinberg, (1978) repr. in Schwartz, Hillel, Culture of the Copy, Zone Books, New York (1996)

Max Stirner, “Der Einzige und Sein Eigentum” (1844), Stuttgart (1972), S.16

—–
see also: Douglas Huebler, “Variable piece #20″, Bradford, Massachusetts 1970

Saturday Night Mashup: Beatles — Revolution Number Nine

Saturday Night Mashup: The Timelords/KLF — Doctorin’ the Tardis

Friday Night Mashup: Kota Ezawa and Yves Klein: Into the Void

In loving memory of an American classic

Kota Ezawa, Slide 2006

Another thought on stating artistic intentions

Everything that can be thought at all can be thought clearly. Everything that can be said at all can be said clearly. But not everything that can be thought can be said.

                                                           – Ludwig Wittengstein

Richard Prince doesn’t have to describe one of his paintings as a Rhino in Hot Pants Shouting, “Repent, Repent!” for it to be so.

Tom Waits on the “meanings” of his songs:

If you break open a song, you’ll find the eggs of other songs. Misunderstandings are really kind of an epidemic and acceptable. I think it’s about one thing, but someone else will say, ‘That song is kind of a rhino in hot pants on a burnt rocking horse with a lariat shouting, “Repent, repent!” I think that’s great.

Why do I bring up Waits rejoicing in the fact someone might hear one of his songs as a “kind of rhino in hot pants on a burnt rocking horse with a lariat shouting, “repent, repent!” Because the lawyer for Patrick Cariou believes that a work of art appropriating another work can only be interpreted to be sufficiently “transformative” of that earlier work if the appropriator expresses in words a transformative purpose. Richard Prince, in appropriating Patrick Cariou’s photographs for his own artistic purposes, said he had no real interest in the meaning behind Cariou’s work, and that he used it strictly as “raw material,” that it was “taking for the sake of taking.”

Cariou’s lawyer thinks that Prince’s inability to state an artistic purpose is fatal to his case. In his eyes, the law requires a 2-step process: “First the defendant has to say” he was engaged in a transformative use of the work he was appropriating. “Only then does the court go on to say, ‘Well let’s see if this is reasonably perceivable.’”

As I made clear yesterday, and as I think Tom Waits makes clear far more vividly, it seems absurd to limit the meaning of a work of art to whatever the artist might state it is. Nor is this particular controversial. The phrase “intentional fallacy” was coined in the title of an influential scholarly article (Wimsatt and Beardsley 1946) claiming that artists’ intentions are neither available nor desirable as a standard for assessing art. As has been pointed out, “Intentionalists disagreed, arguing that any sense of the artist’s intention, however obscure, can be a useful resource in interpreting a work of art.”

But the point is, even “Intentionalists” acknowledge that judging, interpreting, and assessing art calls on attention to the art and all it evokes in the eyes of the viewer. Those judgments, interpretations, and assessments are never limited to what the artist wanted the viewer to see and think.

So Cariou’s lawyer is advancing nonsense when he suggests the court should be limited in that way. Nor is the precedent for court reliance in making fair use decisions on the expressed intent of the appropriating artist particularly compelling support for that nonsense. It is true that in Blanch v. Koons the U.S. Court of Appeals for the 2d Circuit relied on what Jeff Koons stated his purposes were in appropriating a photograph for use in one of his paintings. But there were no competing interpretations submitted to the court. As the court pointed out: “Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it.” Quite simply, the court was persuaded by Koons’ explanations. That the court was so persuaded does not mean, however, that the artist’s explanations are the only means by which the court could be persuaded.already stated their intent to parody. Nor, as Cariou’s lawyer contends, did a lower court find that 2 Live Crew’s re-working of Roy Orbison’s “Oh, Pretty Woman” depended on 2 Live Crew’s assertion their song was a “parody.” In fact, the Court found that 2 Live Crew’s words parodied Orbison’s and remanded the case so a lower court might determine (a) whether there had been any negative economic impact on sales of Orbison’s song in the potential “derivative market” of rap cover versions, and (b) whether the quantity of musical elements taken from Orbison’s song were more than necessary to 2 Live Crew’s purposes. Campbell, 510 U.S. at 590-91. After remand, the case settled, and there were no further court hearings.

Joy Garnett Lectures on Painting, Mass Media, and the Art of Fair Use

What did Jackson Pollock intend when he painted Lavender Mist? Cariou v. Prince, and the importance of scripting the artist’s words.

Patrick Cariou’s lawyers have filed their brief (embedded below) in opposition to Richard Prince’s appeal of the decision holding that Prince’s appropriation’s of Cariou’s photographs constituted copyright infringement. Writing in artnet, Rachel Corbett explains, among other things, that Cariou’s legal team

is banking largely on the claim that Prince’s work failed to comment on or satirize Cariou’s photographs — a common objection against applying the fair use exception to copyright law.

While Prince’s lawyers, Boies, Schiller and Flexner, convincingly argue that “Canal Zone” is “transformative” of the original works, Cariou’s lawyers say that’s not enough. “That argument fails because, absent a justification for the appropriation, taking copyrighted work in order to create ‘something new’ has no practicable boundary and would effectively eviscerate the rights of copyright owners.”

After all, they point out, Prince plainly, arrogantly, and perhaps fatally, said in district court that he had no real interest in the meaning behind Cariou’s work, and that he used it strictly as “raw material.” It’s “taking for the sake of taking,” Cariou’s lawyers argue.

As I wrote nearly a year ago, I believe it would be absurd to conclude whether Prince’s use of Cariou’s work was transformative based on Prince’s words. Artist’s are not particularly gifted at putting into words what their works mean. Why, after all, would we need their work if their words would suffice?

As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well accepted they are almost trite,

The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist’s own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists’ work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.

What was Jackson Pollock’s purpose in painting Lavender Mist? Van Gogh’s in painting The Irises? Haven’t we accepted by now the limitations focus on artistic intention would impose on our appreciation of art?  Nevertheless, in the decision enjoining the publication of a “sequel” to The Catcher in the Rye, the judge was significantly influenced by the fact the author and his representatives had described the work in words that didn’t fit the legal standard they wanted to meet:

Until the present lawsuit was filed, Defendants made no indication that 60 Years[the new work] was in any way a parody or critique of Catcher [in the Rye]. Quite to the contrary, the original jacket of 60 Years states that it is “. . . a marvelous sequel t one of our most beloved classics.” . . . Additionally, when initially confronted with the similarities between the two works, rather than explaining that60 Years was a parody or critique of Catcher, Colting’s [the new work’s author] literary agent, Mr. Sane, contended that 60 Years “is a completely freestanding novel that has nothing to do with the original Catcher in the Rye.” Opinion and Order at 16, n. 3.

Colting and his agent, obviously, should have called his work a parody and critique, not a sequel or a “freestanding novel.” Plainly, they had not been sufficiently counseled by lawyers who could have put the proper words in their mouths. It’s odd to think that being sufficiently versed in the mere words that would be consistent with the legal outcome you seek should make a difference, though. No matter what an artist said, his work would be the same.

In the same way, it seems odd that Prince’s refusal to articulate an artistic intent should be a determinant of the legitimacy of his artwork. The Amicus Brief filed in support of Prince’s appeal by the Andy Warhol Foundation for the Visual Arts (also embedded below) makes precisely these points (at 31-34; hyperlinks added):

The district court found Prince’s work was not transformative based entirely on Prince’s apparent inability to verbalize the meaning of it to the court’s satisfaction, and the court’s own conclusions about Prince’s subjective intent.  See SPA-17-20. But transformative meaning must be assessed first and foremost by observation of the work itself, and whether new meaning and expression may  be reasonably perceived from it.  See Campbell, 510 U.S. at 582-83. In Campbell, the Court did not demand testimony from 2 Live Crew, or speculate about their subjective intentions. It concluded that elements of parody could reasonably be perceived from the work itself, and that was enough  to establish its new meaning and expression. See id.

Ultimately, the meaning of art is defined by the viewer, not a judge, or  even the artist himself. A viewer’s reaction to a work of art is shaped by the viewer’s personality, emotions, values, experience and knowledge. So while it is plainly dangerous for those trained in the law to judge the worth or meaning of art, see Campbell, 510 U.S. at 582-83, it is equally dangerous to pretend the meaning of art can be defined solely by the intention of the artist herself, much less her ability to articulate that intention to the satisfaction of judges and lawyers.  See Pleasant Grove City v. Summum, 555 U.S. 460, 476 (2009) (recognizing “it frequently is not possible to identify a single ‘message’ that is conveyed” by a government monument, and the sentiments it expresses “may be quite different from those of . . . its creator”); Hurley v. Irish-Am. Gay Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995) (“a narrow, succinctly articulable message is not a condition of constitutional protection” for expressive speech).

That is not to say the testimony of the artist is irrelevant. If, as in Blanch [v. Koons], the artist can explain the intended meaning of his work and how it differs from the work he borrowed, that testimony may be quite informative. But the failure to provide an explanation as polished as the one Jeff Koons provided in Blanch cannot be fatal. If it were, then every artist who works within this tradition will be forced to concoct a narrative that appeals to legal sensibilities, and the law will succeed in protecting only those artists who are scripted by counsel.

Other rules that protect First  Amendment interests do not ask the speaker to demonstrate the value of her speech, or require her to persuade a judge of its worth.  Neither does copyright.  See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (Holmes, J.) (“It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time.”).

The long tradition of appropriating existing images in the context of collage and other expressive practices described in Section I clearly demonstrates the important new meaning and expression these uses deliver. The Court should recognize that the use of existing images in visual art may convey a wide array of transformative meaning that goes far beyond direct commentary on the original and is not limited by the expressed intentions of the artist.

Cariou v Prince Appeal, Brief for Plaintiff-Appellee

Cariou v Prince Warhol Foundation Amicus Brief

Part home, part musical instrument — NOLA’s Music Box

From NPR.org, In The Music Box, New Orleans Residents Hear Hope:

When Hurricane Katrina hit New Orleans in 2005, it left behind a city full of destroyed homes. Despite ongoing rebuilding efforts, thousands of blighted properties remain. Now, a group of artists is creating a structure that is part home, part musical instrument and part inspiration of what can be made of these damaged properties.

The Music Box is a small village of ramshackle sculptures huddled together on Piety Street in the Bywater section of the once-flooded 9th Ward. The sculptures are outfitted as musical instruments and are made almost entirely of the remains of the 18th-century Creole cottage that used to sit on this lot.

The Heartbeat House is one of these musical sculptures: It’s an A-frame shack with a rotating organ speaker perched on top. The speaker is attached to a stethoscope — which broadcasts the heartbeats of those who stop to engage with the art.

“Unlike a church bell [that] calls people to congregation or an alarm, what we want to have is a Experience the Sounds of the Musical Instruments that make up the Music Box heartbeat,” explains curator Delaney Martin. “This primal beat that calls to the people of New Orleans and says: Come out and dance, come out and sing, come out and have fun.”

The instruments housed in the Music Box are described here. One, the Voxmuron, “is comprised of a microphone that feeds a series of audio loop devices that can be recorded on to and played by mahogany paddles. Complicated metal linkages that power the paddles and a complex organization of wires are masked behind a decorative, finished wall-panel. This wall of sound is intended to evoke the sound of neighbors talking or playing music on the other side of a thin wall. The sound of this instrument is never the same. It is dependent on who or what is recorded into it. A very versatile producer of sound.”

You can listen to one performance on Voxmuron by Matana Roberts and Taylor Shepard right here:

The motion picture and music industries won’t give up trying to protect their money-making models even if they are obsolete.

Bill McGeveran in the Guardian makes clear that the film and music industries aren’t going to go away, but that there are ways to to address legitimate copyright concerns without PIPA and SOPA’s utter inadequacies:

At the end of a Hollywood blockbuster, when the vanquished villain declares that he should have won and that we haven’t seen the last of him, we all know what it means: the sequel is coming.

So, Hollywood’s top lobbyist, former Senator Chris Dodd, followed a familiar script last week after sweeping online protests derailed the Stop Online Piracy Act (Sopa) and Protect IP Act (Pipa), a pair of legislative proposals backed by movie and music distributors. Dodd snarled that his opponents had misled the public and vowed to continue pressing for new laws to combat unauthorized copying of intellectual property. Coming soon to a congressional hearing room near you, it’s Sopa II: Revenge of the Content Industries.

. . . . Even Dodd’s enemies acknowledge that these sites pose a problem, though many question industry estimates about its scope.

Those of us who opposed the excesses of Sopa and Pipa need to prepare for the next round. . . . At a minimum, Congress must address three other problems as well.

First and foremost, Sopa II needs to take due process seriously. . . .

Second, the standards for judging infringement must be clear and must be consistent with existing intellectual property law. . . .

Finally, these bills cannot shift IP owners’ duty to safeguard their own rights onto innocent bystanders like Google, eBay or Facebook. Open online forums enable millions of daily communications from ordinary people. Intermediaries cannot examine every post searching for links to pirates. That’s why federal law exempts them from liability for nearly everything their users post independently – even fraud or defamation. IP already gets special treatment, because intermediaries must remove infringing material if rightsholders complain.

Building knowledge in the digital age; the transition continues — science this time.

I have made the point on this blog that the digitization of information and the internet have made the old ways of doing business with information (be it entertainment, news, science, or art) obsolete and that efforts to force the new media into legal forms that evolved with the ways businesses had organized the old technologies are doomed to failure or to killing the innovation those laws are supposed to promote.

But the struggles inherent in the transition from old and established ways of doing business are ongoing and will continue to be. Today’s example comes from the world of science. As the New York Times reports, “For centuries, [scientific] research [was]cdone in private, then submitted to science and medical journals to be reviewed by peers and published for the benefit of other researchers and the public at large.  . . . Peer review can take months, journal subscriptions can be prohibitively costly, and a handful of gatekeepers limit the flow of information. It is an ideal system for sharing knowledge, said the quantum physicist Michael Nielsen, only ‘if you’re stuck with 17th-century technology.’”

But Dr. Nielsen and others argue that science can happen much more quickly and accurately using the new technologies, and reality is catching up to their ideals (even as established institutional players such as universities and grant-makers still depend on the “traditional published paper” as their exclusive criterion of judgment):

Open-access archives and journals like arXiv and the Public Library of Science (PLoS) have sprung up in recent years. GalaxyZoo, a citizen-science site, has classified millions of objects in space, discovering characteristics that have led to a raft of scientific papers.

On the collaborative blog MathOverflow, mathematicians earn reputation points for contributing to solutions; in another math experiment dubbed the Polymath Project, mathematicians commenting on the Fields medalist Timothy Gower’s blog in 2009 found a new proof for a particularly complicated theorem in just six weeks.

And a social networking site called ResearchGate — where scientists can answer one another’s questions, share papers and find collaborators — is rapidly gaining popularity.

Editors of traditional journals say open science sounds good, in theory. In practice, “the scientific community itself is quite conservative,” said Maxine Clarke, executive editor of the commercial journal Nature, who added that the traditional published paper is still viewed as “a unit to award grants or assess jobs and tenure.”

Clay Shirky on why SOPA & PIPA won’t go away: the old media companies want to make it too expensive for you (artist, consumer, teacher, etc.) to use copies even in legitimate ways

Saturday Night’s Music Mashup: Kota Ezawa – “Beatles: California Über Alles”

Saturday Night at the Mashup Movies: Negativland, “No Other Possibility”

Off Book: The Evolution of Music Online (a/k/a progress SOPA would end)

Off Book: The Evolution of Music Online from PBS Arts on Vimeo.

The Evolution Control Committee will sue you if you listen to their new album, but at least they can host a Saturday night horror flick they’ve mashed together the soundtrack for.

From the Evolution Control Committee, which :”began in 1986 and continues to risk millions in copyright violation fines for what The ECC calls ‘music’”:

We’re very pleased to announce that our new album is now finally and officially released! All Rights Reserved is now available as a double CD, on vinyl, or download.

It’s just a shame you can’t listen to it.

“The lawyers had concerns,” ECC’s TradeMark Gunderson explains. “Although we felt tracks like our ‘What Would You Think If I Sang AutoTune’ were clearly parody as well as Fair Use, the legal types thought they were lawsuit-bait.” To give the label and the band an extra line of legal defense, the album includes a Listener License Agreement, a set of terms and conditions like those required in order to install computer software. “Fair Use or not, a track like’Stairway To Britney’ could easily offend a litigious party,” says Seeland Industries lawyer Sandy Kryle. “We thought the best solution would be a legal agreement that forbids anyone — everyone — from listening. Period.”

Even with the Listener License Agreement, the product was too hot for some to handle. Both the pressing plant as well as the distributor initially refused to handle the album, saying that All Rights Reserved was too risky — a surprising reaction in an era when even Girl Talk can’t muster a single major label complaint.

“We’re not crazy about the idea of suing our fans,” says ECC band member Christy Brand. “But it seems to work for the RIAA.”

You may not want to risk being sued, but for those of us in Cleveland who miss Ghoulardi’s Shock Theater, we can at least spend our Saturday night watching ECC’s version of the silent movie classic Nosferatu, dj’d live using only soundtracks from other movies:

Nosferatu with live Reels Of Steel soundtrack DJ’d by The ECC from Evolution Control Committee on Vimeo.