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.

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.

YouTube has recently begun removing videos that feature content from Constantin Films’ 2004 film, “Der Untergang” (“Downfall”), despite the fact that many of these videos are parodies and thus constitute fair use of the material.

This video says it all:

I’m sorry to report to lawyers and law students this version has been taken down:

ADM has, top it mildly, been the subject of considerable ire, criticism, and even criminal prosecution for price fixing (the subject of Matt Damon’s recent film The Informant and Fair Fight in the Marketplace, an excerpt of which appears below’s Woertz’s blathering), political corruption, destruction of the rainforests, and the forced labor of children.

A couple of days ago I posted on my Facebook page what I thought was a hilarious edit of the Woertz video in which some of her original words were retained and many were dubbed over to make it appear as if she were speaking openly on behalf of an evil multinational bent on the gross and horrific exploitation of the world and especially of multinational food markets. I thought it was hilarious piece of political critique. No one could have mistaken it as an “official” ADM production, but plainly it hit a nerve at ADM.

Today I noticed that when I click on the video on my Facebook profile a message appears that it is “no longer available due to a copyright claim by Archers Daniel Midland Company” and that if I click through to YouTube there’s no page for the video at all, not even a page with the same empty video box and takedown message.

This is outright copyright abuse. Criticism is fair use. When anyone asks whether in fact fair use is grounded in the Constitution’s guarantee of free speech, all you need is to think of a situation like this — one can appropriate copyrighted works to criticize and parody the copyright holder. And to use the copyright laws to silence that critique has nothing to do with protecting intellectual property and the rights of a creator to profit from his, her, or its creation: it’s unconstitutional censorship! (Peter Bouchard wrote a good summary yesterday on ” The Battle against Bogus Takedowns, a topic I’ve touched on in the past.”