Justice is too expensive: photography and public art this time.

As a lawyer, I am of course very invested in my belief in our justice system, but one thing is abundantly clear: it is too expensive. The prohibitive expense of vindicating one’s rights tilts the entire system in favor of those with wealth. Copyright is a field rife with illustrations of this principle, but it is a problem that permeates the entire system. And now we have another example. As I wrote in February 2010, photographer Mike Hipple was sued by sculptor Jack Mackie over the photo Hipple took about 10 years ago of a woman standing near the “Dance Steps on Broadway” sculpture in Seattle’s Capitol Hill. (Hipple’s photo is below and to the right.)

Now comes word from Hipple that he has decided to settle the case. Why? Because, though he continues to believe in the legitimacy of his position, it is not worth it financially to go to trial:

I am writing to let you know that I have settled Jack Mackie’s copyright claim against me. I believe I have good defenses but have come to understand that he has good claims. I also believe now that the financial stakes are such that it is not worth continuing to fight.

I understand Jack Mackie’s ardent desire to protect his copyright in Dance Steps on Broadway. I, too, want to protect my own photography copyrights. Mr. Mackie’s Dance Steps is a Seattle icon and a well known work. I understand why he is so protective. I did not intend to attack his copyright when I took my photo, and I did not realize then that selling a photograph which includes part of a copyrighted public artwork can violate that copyright.

I did not intend, in defending myself in the lawsuit, to attack Mr. Mackie personally. I intend to let this matter go and urge my supporters to do the same.

I can, of course, let this matter go. It would be difficult to push hard against a client’s decision to settle such a case given the costs and risks of pursuing it through trial and, possibly, appeal. But the larger issue is one that I can’t let go.

First, I do not see what benefit there is to anyone in allowing Mackie to stop Hipple from making and selling his photographs. And, of course, I also agree with Hipple that the photo constitutes fair use of the sculptures image. Why? Because the photo stands on its own as a creative work. Hipple has taken a work embedded in a sidewalk in front of a public building and made it into a beautiful image that evokes both dance and confusion in a world full of complicated instructions seemingly sending us in a myriad of different directions. I don’t know how often I can say it: art builds on art. Culture builds on culture. And the sooner we ease up on our madness to monetize everything the sooner we’ll be sane.

Artists don’t protect their “purity” through copyright overclaiming.

Readers of this blog know I feel pretty strongly about this, particularly in connection with genres often disparagingly referred to as “appropriation art.”

Well, my friend Andrew Dubber pointed me to this very cool “8 bit, chiptune” reworking of an all-time favorite of mine (and just about everybody’s my age) — Miles Davis’ Kind of Blue — dubbed Kind of Bloop.

Andy Baio, Kind of Bloop‘s creator, unfortunately ran into the type of problem with which I am all too familiar. As he writes,

Before the project launched, I knew exactly what I wanted for the cover — a pixel art recreation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue. I tried to draw it myself, but if you’ve ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.

You can see the results below, with the original album cover for comparison.

Unfortunately, Jay Maisel, the photographer who shot the original photo of Miles Davis used for the cover of Kind of Blue. threatened a lawsuit for copyright infringement seeking hundreds of thousands of dollars in damages. Baio settled, agreeing to pay Maisel $32,500 and not to use the artwork again. And he writes, in words I firmly endorse:

But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is “fair use” and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.

At the heart of this settlement is a debate that’s been going on for decades, playing out between artists and copyright holders in and out of the courts. In particular, I think this settlement raises some interesting issues about the state of copyright for anyone involved in digital reinterpretations of copyrighted works.

Baio includes in the account of his ordeal several works of art that reinterpret earlier copyrighted works as well as a list of links to other such works. They are all worth checking out and almost all add to those referred to in the posts in that “appropriation art” link above.

One thing both Baio and I find particularly troubling is a statement Maisel’s lawyer made in a letter to Baio in explaining that Maisel never even would have licensed the use of the image:

“He is a purist when it comes to his photography,” his lawyer wrote. “With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world.”

I am no cynic, and I have respect for people’s work and spiritual purity, but this is nonsense. Copyright does not give an artist the power to control the way his work is used to the point that he can forbid transformative uses of it. Or, rather, it does, but only if he is willing to use his financial weight and the ways our legal system allows that financial weight to coerce those without the same resources. And that is hardly the behavior of a “purist.” But it is copyright overclaiming.

Art builds on art. Maybe Maisel should read The Gift, by Lewis Hyde. The introduction is available here (pdf).

It may be old fashioned to say so, but what Righthaven is doing is Champerty.

There is a lot being written about Righthaven’s most recent loss in its campaign to enforce the copyrights in newspaper articles it purportedly purchased the right to enforce. I’ve pasted in a copy of the decision, Righthaven, LLC v. Hoehn,  below. What seems most significant about the decision to me is the judge’s finding that Righthaven does not have legal “standing” to pursue the copyright infringement claim for the unlicensed use of an entire Las Vegas Review Journal article. I’ve previously written about this problem with Righthaven’s “business” model.

The problem is that Righthaven does not actually buy the copyright to the articles it subsequently claims infringement of. Rather, it only buys the right to sue for infringement if infringement occurs. The copyright owner retains all the other rights that go along with the copyright. Thus, in Hoehn, as Judge Philip M. Pro explains, the agreements between Stephens Media, the owner of the Las Vegas Review Journal, and Righthaven “deprive Righthaven of any of the rights normally associated with ownership of an exclusive right necessary to bring suit for copyright infringement and leave Righthaven no rights except to pursue infringement actions, a right which itself is subject to Stephens Media’s veto.”

In his treatise on copyright, William Patry states that a plaintiff in a copyright lawsuit “must plead ownership of the right sought to be vindicated.” Patry on Copyright, Section 19:7. In short, you cannot sue for violation of a right that is not yours to enforce. To allow Righthaven to do otherwise is to allow it to engage in the common law sin of “champerty,” which is the sale of a right to sue to someone with no interest in the alleged wrong being sued on for a percentage of the amount recovered. As the Second Circuit Court of Appeals has explained, champerty is “a bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part in consideration of receiving part of any judgment proceeds.” Alexander v. Unification Church of America, 634 F.2d 673, 677 n.5 (2d Cir. 1980). As Patry explains it, Righthaven seems to have fallen into the trap of engaging in Champerty:

As applied to copyright, champerty may be found only when there is an assignment of the copyright and preexisting causes of action and where the assignment of the copyright was a sham designed to disguise the real intent of conveying the chose in action. For example, if the assignment required the assignee to reconvey the copyright at the conclusion of the litigation, this would be very strong evidence of champerty. If, however, the assignor continued to exploit the work in a manner inconsistent with an assignment of rights, a claim of champerty might prove out.

Patry on Copyrght, Section 5:36 (emphasis added).
Right Haven, LLC v Hoehn (D Nevada 2011)

One more step away from old (scholarly) publishing practices

Jeffrery Pomerantz writes of the difficulties he and his colleague, Diane Harvey, had in trying to negotiate a fair allocation of rights between themselves as authors and the journal The Reference Librarian in connection with an article Pomerantz and Harvey had been asked to write for an issue of the journal dedicated to the future of reference and library education.

The story reveals several important points. One I am clearly interested in is the importance of sound legal advice in locating and interpreting the precise matters authors are being asked to agree to. Simply figuring out what rights are being allocated and how they are being allocated is not an easy thing. First, the “agreement” the authors were asked to sign did not set forth the relevant policies they were agreeing to. Second, even after the journal had appeared to back off its original position, insightful legal reading of the new position showed it was the old one repackaged in new form.

Another point to be take is the leverage publishers have over certain authors — Pomerantz and Harvey are fortunate; they are sufficiently well established in their academic fields that they could afford to stand their ground and risk the journal’s refusal to accede to their demands on rights and the resulting refusal to publish their article.

A third point is that Pomerantz and Harvey were able to self-publish their paper with the ability to represent that it had already passed the journal’s peer review process, thus eliminating the only real weakness of self-publication: the absence of validation provided by peer-review. They have also published it in a manner that will permit ongoing comment, which in itself will provide a further level of peer review.

Is publication changing, or what?

hat tip to @asawusch on twitter.

Bratz, Mattel, and Work for Hire: does copyright really protect the artist?

I often wonder if artists who cry loudly about the threat posed to creativity by insufficient “protection” of copyright are really useful idiots. That copyright is primarily about protecting the artist is questionable, not least because of the “work for hire” doctrine. In short, as the Stanford Copyright & Fair Use site puts it:

If a work is created by an employee in the course of his or her employment, the employer owns the copyright.

The recent victory by MGA Entertainment over Mattel in the fight over the ownership of the copyright in Bratz dolls highlights the difficulties creators might face in connection with the work for hire doctrine. In part, the case turned on the distinction between an “idea,” which cannot be copyrighted, and its particular expression, which can. Carter Bryant was an employee of Mattel at the time he first developed and sold to MGA the idea for the Bratz dolls. As Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit explained in the 2010 decision overturning an earlier jury verdict in favor of Mattel, that idea in and of itself could not be claimed by Mattel merely because Bryant was its employee at the time:

Assuming that Mattel owns Bryant’s preliminary drawings and sculpt, its copyrights in the works would cover only its particular expression of the bratty-doll idea, not the idea itself. See Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971). Otherwise, the first person to express any idea would have a monopoly over it. Degas can’t prohibit other artists from painting ballerinas, and Charlaine Harris can’t stop Stephenie Meyer from publishing Twilight just because Sookie came first. Similarly, MGA was free to look at Bryant’s sketches and say, “Good idea! We want to create bratty dolls too.”

But, as Jonathan Bailey at Plagiarism Today explains, Mattel’s claim was based in part on Carter’s employment contract, which stated that

I agree to communicate to the Company as promptly and fully as practicable all inventions (as defined below) conceived or reduced to practice by me (alone or jointly by others) at any time during my employment by the Company. I hereby assign to the Company … all my right, title and interest in such inventions, and all my right, title and interest in any patents, copyrights, patent applications or copyright applications based thereon. (emphasis added)

The contract further specified that “the term `inventions’ includes, but is not limited to, all discoveries, improvements, processes, developments, designs, knowhow, data computer programs and formulae, whether patentable or unpatentable.”

Mattel argued that the contract’s definition of “inventions” therefore gave it rights to any “ideas” Carter developed during the time of his employment. The 9th Circuit “conclude[d] that the agreement could be interpreted to cover ideas, but the text doesn’t compel that reading.” (emphasis added) It therefore left to the jury in the new trial to decide what in fact Carter and Mattel had intended the contract to cover. Plainly, the jury did not buy Mattel’s argument.

As Bailey points out, the issues involved in the case have very meaningful implications for all creators:

Generally, any work you create for an employer as part of your job becomes copyright of the employer, not you. However, almost instantly there becomes issues as to what is and is not part of your employment, especially when you do creative work on the side that is similar to the work you do for a living.

If you are an artist and do artistic work for your employer, when is your creative work done in the course of employment and when is it not? That is a difficult question in and of itself, but an artist must also pay close attention to his or her contract. While Carter and MGA prevailed over Mattel, your contract, might give your employer ownership over your very ideas if it states so clearly enough.

Is Righthaven committing Champerty? It sure seems so.

I’ve long thought of writing about Righthaven as an embodiment of copyright gone mad. As explained at Righthaven Lawsuits, Righthaven is an entity set up to purchase the rights to newspaper stories and sue for copyright infringement anyone who dares to quote from those stories online. There has been so much coverage, however, that anything I might have to say would have been redundant. And I’m not first on this point, but it’s one I cannot leave alone. Nate Anderson writes that it appears the agreements pursuant to which Righthaven purchased the rights to sue for the infringements of articles does no such thing. The problem, according to Anderson, is that Righthaven’s agreement

appears to give Righthaven only the right to sue over the story or photograph at issue, but not to exploit it in any other way. Past court cases have ruled that companies cannot bring copyright suits unless they control one of the “exclusive rights” enumerated in the Copyright Acts, rights including copying, distribution, public performance, etc. The “right to sue” is not among them.

Indeed, Anderson seems to be right. The “Strategic Alliance Agreement” between Righthaven and Stephens Media LLC (embedded below) states in its section 7.2 that Righthaven has no rights in the works it is purchasing rights in except those rights associated with suing for suing for copyright infringement in those works:

Despite any such Copyright Assigmnent, Stephens Media shall retain (and ishereby granted by Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery. (emphasis added).

In his treatise on copyright, William Patry states “Plaintiff must plead ownership of the right sought to be vindicated.” Patry on Copyright, Section 19:7. In short, you cannot sue for violation of a right that is not yours to enforce.  To allow Righthaven to do otherwise is to allow it to engage in the common law sin of “champerty,” which is the sale to someone with no interest in the alleged wrong being sued on of a right to sue for a percentage of the amount recovered in the suit. As the Second Circuit Court of Appeals has explained it, champerty is “a bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part in consideration of receiving part of any judgment proceeds.” Alexander v. Unification Church of America, 634 F.2d 673, 677 n.5 (2d Cir. 1980). As Patry explains it, Righthaven seems to have fallen into the trap of engaging in Champerty:

As applied to copyright, champerty may be found only when there is an assignment of the copyright and preexisting causes of action and where the assignment of the copyright was a sham designed to disguise the real intent of conveying the chose in action. For example, if the assignment required the assignee to reconvey the copyright at the conclusion of the litigation, this would be very strong evidence of champerty. If, however, the assignor continued to exploit the work in a manner inconsistent with an assignment of rights, a claim of champerty might prove out.

Patry on Copyrght, Section 5:36 (emphasis added).

Strategic Alliance Agreement Between Righthaven and Stephens Media

Again: Culture is Collaborative. Kembrew McLeod this time.

In the Atlantic, there is an interview with “intellectual property scholar (and Atlantic contributor) Kembrew McLeod,” who, with copyright lawyer Peter DiCola, argues in Creative License: The Law and Culture of Digital Sampling that “current digital copyright practices unfairly burden musicians who sample snippets of other artists’ songs in their own music. begins by taking us back to the golden age of hip-hop, demonstrating how lawsuits quashed a nascent art form during its artistic ascendancy.” In the course of the interview, McLeod touches on several points I have emphasized in this blog, including the ways sampling (like any sort of artistic appropriation) serves perfectly traditional and ordinary artistic purposes:

Sounds can bring back memories. Some samples remind the listener of a particular era, or connect a song with a particular moment in time. Artists want to transport themselves, and the listener, for nostalgic reasons—or to provide historical resonance. Sampling can function like an audio time machine.

McLeod also articulates a point I have made over and over again: that our conventional notions of “authorship” as the creation of wholly original art from the mind of an inspired genius is not at all consistent with the reality of artistic creation:

The old-school notion of the individual genius author is embedded in European and American copyright law—the lone individual genius toiling away until a burst of creativity creates a truly original work unlike anything else that previously exists. But we know that, in the world of music, you can’t really create a new song without referring to an old song in some way. So the law itself assumes a Romantic notion of authorship, though we know this isn’t how culture is produced. Culture is collaborative.

The entire interview is worthwhile. It covers a wide range of matters relevant to these issues and is especially informative on the history of the music industry’s ways of dealing with sampling.

Appropriation art: is Richard Prince’s loss its end? I don’t think so.

The decision holding Richard Prince liable for infringing Patrick Cariou’s copyright in photographs Prince appropriated (which I wrote about 3 days ago) continues to inspire commentary. Donn Zaretsky does his typically excellent work in collecting the range of intelligent commentary and adding his own. He points to what he considers the key point in the decision, the judge’s belief that Prince’s appropriation was not sufficiently “transformative” to constitute fair use of Cariou’s photographs because Prince’s work did not sufficiently comment on or otherwise refer back to Cariou’s photographs (hyperlinks in original):

[T]he key bit is that the court rejected the fair use defense because, as Artnet’s Walter Robinson puts it, “Prince’s works do not specifically comment on Cariou’s originals.” (Robinson says: “Face it, the notion of ‘appropriation’ just doesn’t play well in our law courts.”) The NYT’s Randy Kennedy writes that “Judge Batts wrote that for fair-use exceptions to apply, a new work of art must be transformative in the sense that it must ‘in some way comment on, relate to the historical context of, or critically refer back to the original works’ it borrows from.”

That hasn’t always seemed to be a requirement in other fair use cases. In Blanch v. Koons, for example, the Second Circuit noted that Koons used “Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media” (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch’s image). Quoting the Supreme Court’s Campbell decision, the court said the test of transformativeness is whether the later work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

As I wrote the other day, I think the “key” element in the case is the evidence that Cariou had (and that the court apparently found credible) that he had been directly damaged by the appropriation. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the Gagosian Gallery began showing Prince’s works that appropriated Cariou’s photographs. As a result, the gallery owner considering a show for Cariou’s works backed off, because “she did not want to exhibit work which had been “done already” at another gallery. Slip op. at 6-7. In other words, Prince’s work essentially was functioning as a direct market substitute for Cariou’s work.

That is a far cry from the situation in Blanch v. Koons, in which the Second Circuit Court of Appeals held that Jeff Koons’ appropriation of a photograph in a collage constituted fair use. There was no reason in Blanch to believe that Koons’ work in any way damaged any market for the appropriated photograph.

Moreover, Cariou’s case does not and cannot conceivably be interpreted to overturn Blanch, in which, as Zaretsky correctly notes, the Second Circuit approved Koons’ use of “‘Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media’ (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch’s image).”

Judge Batts’ apparent belief that in order to be sufficiently transformative to qualify as fair use an artistic appropriation must comment on or otherwise refer back to the appropriated work is certainly open to question even apart from the unquestionable continuing vitality of Blanch. The proposition that an appropriation must comment on the original to constitute fair use originates in commentary on Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,  (1994), in which the Supreme Court held that 2 Live Crew’s appropriation of Roy Orbison’s Oh, Pretty Woman was a non-infringing fair use. While the Court did stress the ways in which 2 Live Crew’s reworking of the song “parodied” Oh, Pretty Woman, I think it is worth wondering whether one’s principal reaction to 2 Live Crew’s song is that it is making fun of Orbison’s song. More importantly, Justice Souter, writing for the Court, emphasized that the less an appropriating work damages the market for the original work it appropriates, the less it needs to reflect directly back on the original to the degree to constitute a non-infringing fair use:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody’s critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work’s minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

Id. at 580, n. 14. And, indeed, this understanding fits perfectly the decision in Blanch, in which it would be absurd to suggest that Jeff Koons was parodying the specific photograph he appropriated rather than using it to comment on the worlds of commercial and fashion photography in general:

Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “`in the creation of new information, new aesthetics, new insights and understandings.’” When, as here, the copyrighted work is used as “raw material,” in the furtherance of distinct creative or communicative objectives, the use is transformative.

The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

Blanch v. Koons, at 467 F.3d at 252-53.

I think it is crucial to remain cognizant of the fact that the case law establishes that there can be transformative use of copyrighted work in art other than art that ridicules copyrighted work. I have gone on at great length on this blog about the ways our conventional notions of authorship are too narrow and historically ignorant. But Ray Down is downright eloquent on the ways these issues pertain to art over at his Copyright Litigation Blog in connection, specifically, with Richard Prince. His entire post, with helpful illustrations, is well worth your read. Here’s an excerpt:

Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning. The urinal of Marcel Duchamp. The Brillo Box of Andy Warhol. Both utilitarian objects made by others and fetishized by the artists.

And look at L.H.O.O.Q. – nothing original in the execution, but the Mona Lisa was in the public domain at the time. Prince is blatantly stealing. Plagiarists take the words of others and try to make you believe that they have crafted them. But Prince’s cutouts from advertising, porn and outlaw biker magazines never misled the consumer.

But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it. When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it.

To me, an original work of fine art properly labeled as such by a new artist is almost pure speech – or in some way pure idea – even if it includes major appropriations. Things change when the artwork is widely reproduced. When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value. Prince’s “appropriation” added ten million dollars worth of value to a pile of books. Everyone knew he didn’t create the original.

This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers – surrounded by the top art advisers and critics -if these people feel that Prince’s value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books? In fact, Prince’s prices will probably soar – scarcity and scandal drive art prices up.

From a semiotic perspective, isn’t Prince simply holding up a mirror to people who may not want to look at themselves or their art as art in the hands of another? And if your message is mirror-like, is it less valid? And if you don’t have the verbal skills to articulate what you are doing, is that any less a mirror?

In short, I think Dowd is right, but I also think the death knell of non-parodic appropriation is being rung without reason. Finally, I think that if Cariou convinced the court that Prince’s appropriations robbed Cariou of real opportunities to sell his photographs, the outcome of Cariou’s case is obviously correct and does not threaten the kind of appropriation case people like Zaretsky, Dowd, and I talk about when we talk about appropriation by the likes of Prince, Koons, and Shepard Fairey.

Can you be original if you do nothing but appropriate the work of others?

From Wikipedia: Ophir Kutiel (born 1982), professionally known as Kutiman, is a musician, composer, producer and animator from Israel. He is best known for creating the online music video project ThruYOU, an online music video project mixed entirely from samples of YouTube videos which has received more than 10 million views. Time Magazine named it one of the 50 Best Inventions of 2009.

Here is This is What it Became, one cut from ThruYOU:

Mike Masnick of techdirt, writes yesterday, in terms that a lawyer for Gregg Gillis would love:

[T]o hear some people talk about these things, none of this is “creative.” It’s all just “copying.” In some cases it’s outright “piracy.” After all, Kutiman is using the works of others, and doing so entirely without permission. And yet, I have trouble seeing how anyone can legitimately claim that these songs are “piracy” in any real sense of the word. Kutiman is clearly a musician. That he uses a note played by someone else on a YouTube video, and then “plays” it himself, strikes me as no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar. A musician is putting different sounds together to create music. Does it really make a huge difference if that music involves someone making a note from an instrument directly themselves… or by taking the note originally played by someone else and doing something creative and amazing with it?

I think Masnick is right on in stating that the use of technology widely available only in the last several years to compose a work from pieces of other recorded work is “no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar.” What many fail to recognize is that the music the likes of Kutiman, Gillis, DJ Earworm and a myriad of others are producing today is the result of new technology, not a new mindset. There are plenty of people out there who would tell you that rampant sampling is the consequence of a generation without respect for property rights. But I think people who say such things are missing the real point: ten years ago, it would have been very difficult for people like Gillis and Kutiman to compose the work they compose today. Twenty years ago it would have been impossible without efforts few but the most dedicated would resort to.

In short, we have new instruments today. That those instruments produce their sounds by means of reproducing pre-recorded sounds does not make them any less instruments than instruments that can produce only a limited number of notes.

Substantially similar or original? Can’t it be both?

From The Millions: “’Substantially Similar? (after Koons 2010),’ [right] is composed of 36 rectangular panels, each contributed by a different artist and then assembled by the artist who conceived the piece, Alfred Steiner. The result was an instantly recognizable riff on Jeff Koons’s ‘Popeye’ series [left] – an appropriation from an appropriator who has made headlines in several highly publicized copyright cases. A note beside ‘Substantially Similar?’ left no doubt about its creator’s stance on the passionate arguments for and against copyright laws: ‘By engaging these issues, the project may also suggest how copyright antagonizes artistic freedom while providing artists no discernible benefit.’”

Steiner is a “lawyer who happens to be an artist.” Steiner described his methods in composing Substantially Similar? (after Koons 2010):

I took an electronic version of the Koons original and divided it up into 36 pieces and sent each artist just one little piece, via e-mail, so they wouldn’t recognize the whole thing. I gave them instructions on how to create an image based on the image that I’d e-mailed them. The only other instructions were a very close paraphrase of the 2nd Circuit’s test for copyright infringement – which is, “would a reasonable person regard the two works’ esthetic impact as the same?”

TM: In other words, would a layman recognize these two works as being the same thing?

AS: Right.

TM: So the contributors didn’t know what they were reproducing?

AS: Right.

TM: And the result was a piece that looked vaguely like Koons, but was different.

AS: It had the essence of the original but was clearly a new work.

In connection with Girl Talk, Steiner states what is very much my thinking — why would we want to stop something so good?

[Greg Gillis] will make songs that are totally based on samples. One song may have 200 samples, so many that there’s no way you could pay each artist. He’s very well received critically. The question is, should it be possible to make that kind of work or not? I kind of think, yes, it should be possible.

Cariou v. Prince: the damage to plaintiff is far more important than Richard Prince’s inability to articulate an artistic intent.

I discussed here nearly 2 years ago the lawsuit by photographer Patrick Cariou against Richard Prince alleging that the collages Prince had exhibited at the Gagosian Gallery in 2008 because they had appropriated photographs of Rastafarians Cariou had taken and published in his book Yes Rasta in 2001. I wrote then that the lawsuit “could have a profound impact on the art world, either clarifying that the widespread acceptance in the art world of appropriation art is legally legitimate or opening the door to an increased number of lawsuits by copyright holders against artists engaged in collage, sampling, satire, and any  number of other genres that have become increasingly easy to engage in with the digitalization of media and the rise of the internet.”

The verdict is in: the court ruled in favor of Cariou and against Prince. The decision is embedded below.

On the one hand, the decision is not as far reaching as it might have been. The court emphasized that it was declining to accept Prince’s argument that “appropriation art is per se fair use, regardless of whether or not the new artwork comments on the original works appropriated.” Slip Op. at 17-18. On the other, the court limited the scope of fair use in appropriation art to work that comments on the original works, insisting that, “to the extent that [Prince’s works] merely recast, transform, or adapt the photos, [they] are . . . infringing derivative works.” Id. at 18.

There are a several interesting aspects of the case. First, the court emphasized that Prince “testified that he has doesn’t “really have a message” he attempts to communicate when he making art,” and that “[i]n creating [his] Paintings Prince did not intend to comment on any aspects of the original works or the broader [Rastafarian] culture.”

It may be a dangerous thing to depend on the artist’s intent in judging the transformative nature of his art. 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? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007) (emphasis added), the Second Circuit, in holding that Jeff Koons’ appropriation of a copyrighted photograph constituted fair use, based its conclusion that Koons’ use of the photograph was “transformative” precisely on Koons’ statements regarding what he intended:

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. Compare Koons Aff. at P4 (“I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.”) with Blanch Dep. at 112-113 (“I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs.”). The sharply different objectives that Koons had in using, and Blanch had in creating, “Silk Sandals” confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant’s purpose in using copyrighted concert poster was “plainly different from the [*253] original purpose for which they were created”); see also 17 U.S.C. § 107(1) (first fair-use factor is the “purpose and character of the use” (emphasis added)).

Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. Castle Rock Entm’t, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as “raw material,”Castle Rock Entm’t, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see alsoBill Graham Archives, 448 F.3d at 609 (use of concert posters “as historical artifacts” in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when “the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting” on the original). His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “‘in the creation of new information, new aesthetics, new insights and understandings.’”

The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated);Davis, 246 F.3d at 174 (same). The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects’ details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

In short, courts seem to be basing the transformative nature of alleged infringements on the avowed intentions of the artists themselves. Thus, 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, obviously, should have called his work a parody and critique, not a sequel or a “freestanding novel.” It’s odd to think that makes a difference, though. No matter what he said, his work would be the same.

In the same way, it seems odd that Prince’s refusal to articulate an artistic intent and Koons elaborate description of his own intent are the most significant determinants of the legitimacy of their respective artworks.

Of course, there are more obvious was to distinguish Prince’s case from Koons’. Koons’ use of a fashion photograph in his collage quite plainly had no impact on any reasonably foreseeable markets for that fashion photograph. In contrast, Prince’s work quite obviously did have an impact on the commercial value of Cariou’s work. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the Gagosian Gallery began showing Prince’s works that appropriated Cariou’s photographs. As a result, the gallery owner considering a show for Cariou’s works backed off, because “she did not want to exhibit work which had been “done already” at another gallery. Slip op. at 6-7.

So we need not go so far as to conclude that Cariou’s lawsuit signals the death of appropriation art in all its various guises. Blanch v. Koons alone is proof that is not the case. But if we realize how plainly and directly Prince’s appropriations damaged Cariou’s opportunities to economically benefit from his own work, the outcome (if not all of the reasoning) of this new case is obviously correct.

Cariou v Richard Prince

If you think you’ll come up with a really original idea, you’re just kidding yourself.

In The City and the City, China Mieville writes a police procedural that takes place in “[t]win southern European cities Beszel and Ul Qoma,” which “coexist in the same physical location” but are “separated by their citizens’ determination to see only one city at a time.” When I read the novel I marveled at the originality of the premise. Of course, as Mieville himself recognizes in an interview on BLDGBLOG, there’s nothing new under the sun:

I should say, also, that with the whole idea of a divided city there are analogies in the real world, as well as precursors within fantastic fiction. C. J. Cherryh wrote a book that had a divided city like that, in some ways, as did Jack Vance. Now I didn’t know this at the time, but I’m also not getting my knickers in a twist about it. If you think what you’re trying to do is come up with a really original idea—one that absolutely no one has ever had before—you’re just kidding yourself.

You’re inevitably going to tread the ground that the greats have trodden before, and that’s fine. It simply depends on what you’re able to do with it.

That indeed is where artistic genius resides — not in the originality of the thought, but in what the artist does with the thought.

And adult approach to digitizing library holdings

I have long believed the copyright concerns that have hampered the digitization of library holdings are way overblown, especially in light of the value to be gained by digitizing the contents of libraries and making them available for research online. So it is gratifying to see that the libraries of Duke University, North Carolina Central University (NCCU), North Carolina State University (NCSU), and the University of North Carolina at Chapel Hill (UNC) have issued a report — The Triangle Research Libraries Network’s Intellectual Property Rights Strategy for Digitization of Modern Manuscript Collections and Archival Records Groups (pdf) – that, as Library Journal describes it, “urges libraries to make large-scale special collections available online, even if some question about the copyright status of certain elements remains.”

The document sets forth a comprehensive strategy for addressing copyright concerns that digitization raises. It doesn’t shy, however, from asserting the legitimacy of the project as an exercise of fair use: “In the unlikely event that a TRLN member library is challenged on the presentation of the digitized collections/groups, and in the even more unlikely event that the library is unable to resolve those challenges…the library will rely on a fair use argument.”

And the document sets forth its fair use analysis clearly and concisely, addressing each of the factors of the 4-part fair use test as follows:

Fair use is a balancing test based on . . . four factors. The factors are not a list of requirements, and all four factors need not be met to have a successful fair use argument. Each factor as it might pertain to the CCC project’s selected manuscript collections and archival record groups is addressed below.

The purpose and character of the use

The CCC project is not for profit; the project’s purpose is to promote historical scholarship and support educational uses of primary sources by providing free and open online access to a large corpus of research materials: the digitized manuscript collections and archival record groups from the four libraries. Individual documents contained in the collections and groups may remain under copyright protection, but they are used in this project for research and educational purposes.

The character of the use is transformative. An individual document’s original use was temporally bound, its value practical. For example, at the time that any individual letter in the Frank Porter Graham papers was written, it served only to share information with Graham. But now that letter is part of a manuscript collection that contains more than one hundred thousand documents. And as with any individual item in a manuscript collection/archival record group, the document serves as a small part of a larger resource, one used in scholarly inquiry and education. The aggregation and organization of individual documents to create manuscript collections/archival record groups transform the purpose and function of the individual documents, as do the finding aids for these collections/groups, which also add to the research value. The digitization and online presentation of the documents in the collection/group further remove the individual document from its original purpose, and deepen its transformed purpose and use as a historical resource that contributes to our understanding of the past.

The nature of the copyrighted work

Most of the documents in the manuscript collections/archival record groups were created in the course of the daily life of an individual or in the routine business of an organization. Created without commercial motivation or artistic intent, these works were not meant for publication at the time of creation, and today are not publishable in isolation. The research value of manuscripts lies not with the individual document, but rather with the collection of documents that together provide context and insight into the past.

The amount and substantiality of the portion used

The presentation of entire documents and entire collections/record groups is therefore appropriate for the intended use by students, educators, and scholars. Individual documents in the collections/groups are the copyright?protected works; but the law does not specify a particular amount of a work that can be used without permission.

The educational and transformative purposes of the use require the presentation of the works in their entirety and so satisfy this factor.

The effect of the use upon the potential market

The scholarly research value and educational significance of these collections are incalculable, but their aggregated online presentation will have little to no effect on the market value of individual documents. In virtually all cases, no such market exists. In the rare instance in which an individual document has a commercial market, the downloadable digital images will not be of commercial quality and therefore will pose no threat to that market.

Would Shakespeare have survived the Internet? Scott Turow and the morality of propertizing creativity.

In the New York Times, Scott Turow, Paul Aiken, and James Shapiro ask whether Shakespeare would have survived the Internet:

The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt.

They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.

There are a number of questions one might raise in response to Mr. Turow and his colleagues. For one, there are not many law professors other than the notoriously ineffective Charles Nesson who defend the legality of unauthorized file sharing. (To question the assumption that file sharing has a material impact on the music and publishing industries is, on the other hand, a different matter.) To conflate file sharing with tranformative appropriation in discussing copyright is the genuinely misleading rhetorical move. And Shakespeare may not be the best example to use in arguing that copyright and innovation necessarily go together. One might wonder, in fact, whether there really is such a thing as a sui generis artist, be that artist Shakespeare or Robert Johnson. Nor could one argue that there were no great artists and writers prior to the advent of what the Turow and his colleagues describe as “paywalls” around theaters or before copyright. Indeed, at least in certain markets the absence of copyright protection does indeed promote innovation. The very premise of Turow’s argument — that in the absence of the economic monopoly conferred by copyright creativity like Shakespeare’s simply won’t happen — is hardly indisputable.

Perhaps Judge Alex Kozinski, referencing Scott Turow of all people, put it best in dissenting from the 9th Circuit’s refusal to rehear en banc a case in which Vanna White successfully sued Samsung for violating her “right of publicity” by “appropriating” her “identity,” emphasizing that overprotecting intellectual property is as dangerous as underprotecting it (footnotes omitted):

Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts. Clint Eastwood doesn’t want tabloids to write about him. Rudolf Valentino’s heirs want to control his film biography. The Girl Scouts don’t want their image soiled by association with certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it “Star Wars.” Pepsico doesn’t want singers to use the word “Pepsi” in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year’s Eve. Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see purple when their creations are made fun of.

Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains.

So too it is with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture. . . .

But what does “evisceration” mean in intellectual property law? Intellectual property rights aren’t like some constitutional rights, absolute guarantees protected against all kinds of interference, subtle as well as blatant. They cast no penumbras, emit no emanations: The very point of intellectual property laws is that they protect only against certain specific kinds of appropriation. I can’t publish unauthorized copies of, say, Presumed Innocent; I can’t make a movie out of it. But I’m perfectly free to write a book about an idealistic young prosecutor on trial for a crime he didn’t commit. So what if I got the idea from Presumed Innocent? So what if it reminds readers of the original? Have I “eviscerated” Scott Turow’s intellectual property rights? Certainly not. All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy.

Turow and his colleagues are guilty, I think, of the “bad medicine” of “reducing too much to private property.” Perhaps Turow would describe me as a law professor advancing “counterintuitive” arguments, but he runs the risk of embodying (and profiting mightily from) a culture that has an unprecedented tendency to “propertize” everything it can and a blindness to the ways law cannot stem new practices made possible by technology. The inarguable truth is that the music and publishing industries once had virtual monopolies on the production and distribution of their products and that they no longer do. Those industries have largely reacted by trying to enforce a legal regime that grew up with and required the old means of production and distribution, which seems to me at least not the most productive way of promoting creativity.

Turow appears to be among the reactionaries trying to use the force of law to overcome reality. Last year he complained that publishers had made a mistake in making publishing e-book versions of writers’ works at the same time they published the book versions, agreeing with a publisher’s assertion that “there’s something radically wrong” when a market has the power to cause the value of a book to plummet.  When the publisher expanded on the point by stating that “I want to be able to say that a new book by Scott Turow is worth $28, and people should be willing to pay that,” Turow agreed, justifying his entitlement to the price by arguing that “[t]here is nothing wrong with [copyright holders] maximizing their profits . . . . If we really want to have a robust literary culture, then we have to think about the compensation system.”

I would suggest to the publisher and Turow that there might not be anything wrong with maximizing profits but that there might indeed be something wrong with charging a price that reflects the costs of printing and distributing books when the market now can deliver a product that need not be printed and that can be delivered virtually for free.

What is “intuitive” to Turow and the point of view he represents is that your creations are as much your property as your car or your computer. But “intellectual property” is not property in the same way as personal or real property. The very source of our nation’s copyright laws, the Constitution’s Copyright Clause,  makes clear that copyright law exists to promote invention and creativity, and to the extent it discourages invention and creativity it is unconstitutional. Nonetheless, Turow and many others cannot seem to overcome some “moral” conviction that to allow others to profit off of your creations is somehow to “steal” something from you. Again, Judge Kozinski in the Vanna White case quoted above, eloquently states the response to this “moral claim” (footnotes omitted; hyperlinks added):

Moreover, consider the moral dimension, about which the panel majority seems to have gotten so exercised. Saying Samsung “appropriated” something of White’s begs the question: Should White have the exclusive right to something as broad and amorphous as her “identity”? Samsung’s ad didn’t simply copy White’s schtick–like all parody, it created something new. True, Samsung did it to make money, but White does whatever she does to make money, too; the majority talks of “the difference between fun and profit,” 971 F.2d at 1401, but in the entertainment industry fun is profit. Why is Vanna White’s right to exclusive for-profit use of her persona–a persona that might not even be her own creation, but that of a writer, director or producer–superior to Samsung’s right to profit by creating its own inventions? Why should she have such absolute rights to control the conduct of others, unlimited by the idea-expression dichotomy or by the fair use doctrine?

To paraphrase only slightly Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S340], __, 111 S.Ct. 1282, 1289-90, 113 L.Ed.2d 358 (1991), it may seem unfair that much of the fruit of a creator’s labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the system’s very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it

The negative impact of the internet on music sales has been greatly exaggerated. I’m shocked, shocked.

From Ernesto at TorrentFreak, an excerpt:

In 2010 the BPI reports that there were 281.7 million units sold, which is an all-time record. Never in the history of recorded music have so many pieces of music been sold, but you wont hear the music industry shouting about that. In fact, the music industry is selling more music year after year and today’s figure is up 27% compared to the 221.6 million copies sold in 2006.

But, instead of praising the increasing consumer demand for music, the industry cuts up the numbers and prefers to focus on the evil enemy called piracy. By doing so they spin their message in a way that makes it appear that piracy is cannibalizing music sales. But is it?

In their press release the BPI points out that album sales overall were down by 7%. Although digital album sales were up 30.6%, physical CDs were down by 12.4%. If we believe the music industry, this drop in sales of physical CDs can be solely attributed to piracy. This is an interesting conclusion, because one would expect that piracy would mostly have an effect on digital sales.

We have a different theory.

Could it be that album sales have been declining over recent years because people now have the ability to buy single tracks? If someone likes three tracks from an album he or she no longer has to buy the full album, something that was unimaginable 10 years ago.

This theory would also fit the sales patterns of the last few years, where album sales are down year after year while the number of individual tracks sold is increasing rapidly. In 2010 the UK music industry sold 161.8 million singles (digital and physical) compared to 66.9 million in 2006. Where does piracy fit in here?

Could it possibly be that piracy is only affecting album sales and not single sales? Would that make sense?

Or could it be that the consumption habits of the average music consumer have changed in the last decade?

A National Public Library? There’s nothing to stop it other than a lack of political will to do anything useful.

Robert Darnton calls for a National Digital Library — “a digital library composed of virtually all the books in our greatest research libraries available free of charge to the entire citizenry, in fact, to everyone in the world.” I agree with him that the project is neither naive nor utopian. Several countries have already committed themselves to the creation of their own national digital libraries:

In December 2009 President Nicolas Sarkozy of France announced that he would make €750 million available for digitizing the French cultural “patrimony.” The National Library of the Netherlands aims to digitize within ten years every Dutch book, newspaper, and periodical produced from 1470 to the present. National libraries in Japan, Australia, Norway, and Finland are digitizing virtually all of their holdings; and Europeana, an effort to coordinate digital collections on an international scale, will have made over ten million objects—from libraries, archives, museums, and audiovisual holdings—freely accessible online by the end of 2010.

Darnton concludes that the U.S. “should be possible to digitize everything in the Library of Congress for less than Sarkozy’s €750 million—and the cost could be spread out over a decade.” And he therefore sees the legal issues — particularly dealing with “orphan works” – as the principal barrier to a U.S. National Digital Library.

Unfortunately, I disagree with Darnton regarding the main impediment. As I’ve explained “orphan works” are “works whose copyright holders cannot be identified, a common problem because there is no registry of copyrights and the authors of the books are not necessarily the copyright holders. Rather, the copyright holders might include unidentifiable heirs or even corporate entities that have gone through mergers, dissolutions, or other forms of corporate reorganization that make it difficult or impossible to identify the entity that currently owns the copyright.” I’m not sure I see any particular problem with Congress enacting legislation amending the Copyright Act to authorize a National Public Library to use works whose copyright owners cannot be identified under terms that provide for reasonable compensation when and if owners make and establish their claims.

I think, however, the cost is a real impediment in the current economic climate. €750 million is almost $1 billion. While the U.S. military budget for 2010 totals approximately 685 times this amount, the current political climate hardly seems ripe for Congress to take the initiative on a project that would strike much of the citizenry — and certainly most U.S. politicians — as intellectual frivolity. It isn’t, of course, but one can be sure that massive confusion over the rights of authors (as I’ve touched on here, among other places) could be used to demagogue to death a billion dollar project longed for by a bunch of professors.

Why hasn’t Girl Talk been sued? My answer, sampled and remixed in a new article

Why hasn’t Greg Gillis, who performs and records as Girl Talk, been sued despite (1) the fact his music consists entirely of recorded samples of other recordings, (2) his high profile and success, and (3) the music industry’s insistence — based on very shaky legal grounds — that no recorded sample can be appropriated without permission?

Well, I’ve been saying it for a long time, and I believe I was the first — Gillis is just too good:

I am a lawyer just like the lawyers representing Metallica, the Guess Who, and anyone else whose work has been sampled and repurposed by Gillis. And if were advising one of these clients (or I were representing the RIAA and could influence the lawyers for Metallica and the Guess Who), I would advise that client not to sue Girl Talk; Gillis’s argument that he has transformed the copyrighted materials sufficiently that his work constitutes non-inringing fair use is just too good. I’d go after someone I am more likely to beat. Othewise, I’d lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand Upright Music and Bridgeport Music.

And now comes Joe Mullin, of paidContent.org explaining Why The Music Industry Isn’t Suing Mashup Star ‘Girl Talk“:

So why hasn’t Gillis been hauled in front of a judge by the music industry? Probably because he’s the most unappealing defendant imaginable. Gillis would be a ready-made hero for copyright reformers; if he were sued, he’d have some of the best copyright lawyers in the country knocking on his door asking to take his case for free.

At the Electronic Frontier Foundation, probably the most well-funded public interest group working in the copyright space, lawyers have made it clear for years that they’re positively eager to litigate a case over music sampling, which they believe is a clear-cut case of fair use.

And I’ve said it before myself. I’d love to represent Gillis in that case should it ever come about.

Steinski talks about the origins of musical mashups

There are legal remedies, and there are other remedies too.

From Mary Elizabeth Williams in Salon, here’s a story of blatant copyright infringement, utter ignorance on the part of the infringer, and the force of non-legal remedies. The culinary magazine Cooks Source lifted a 5-year old article by writer Monica Gaudio entitled “A Tale of Two Tarts,” and, without attribution, republished it. When Gaudio contacted Cooks Source’s editor, the editor responded by claiming “I have been doing this for 3 decades, having been an editor at The Voice, Housitonic Home and Connecticut Woman Magazine. I do know about copyright laws.” The editor than proceeded to demonstrate that she knows very little about copyright laws, claiming that anything posted to the internet is “public domain” and that Gaudio should feel grateful and even consider compensating Cooks Source!

[Y]ou should be happy we just didn’t ‘lift’ your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. . . . We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me… ALWAYS for free!”

But this is not a tale of a lawsuit. It is a tale of far more effective remedies. Gaudio blogged about her experience, the incident began to be noticed, and, in Williams’ words:

[The reactions] snowballed as the collective outrage moved off Gaudio’s LiveJournal page and onto – where else? – Facebook and Twitter. Suddenly the [Cook Source's] Facebook page was accumulating new “fans” like a warm apple pie attracts scoops of vanilla ice cream. Let the hilarious public shaming commence!

As Williams recognizes, these type of remedy may be far more satisfying — not to mention far more effective — than any remedy a lawsuit could obtain:

[W]hat [Guadio] – and all of us who’ve been watching along with her – have received is a different and in many ways greater victory. It tastes mighty sweet.

Pissed off by Parody

Citizens Against Government Waste is one of those private, corporate-fed entities freed by the Citizens United decision to pour as much money as they want into political campaigns. It has produced an ad ridiculing stimulus spending by the government that promises to be the source of many a parody, including the one embedded below (which appears to be the first).

CAGW, however, believes this parody is a copyright violation and has sent YouTube a takedown notice. Campus Progress, which produced the video, disagrees:

Citizens Against Government Waste must have spent all their money on the video, and didn’t have any left over for legal advice. Our video is a parody, not a copyright violation. And we aren’t raising money off it. We’re only raising awareness and highlighting the concern of young people that corporate interests are drowning out their voices this fall.