Reasons Why Copyright On Art And Music Could Be Deemed Unconstitutional

from the arguments-in-the-extreme dept

I've often discussed the original constitutional reasoning behind patents and copyright law, specifically the phrase we all know in Article 1, Section 8:

The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

From this, I still believe it's quite clear that if copyright or patents are used in a way that does not "promote the progress" of those things, then it is unconstitutional to use copyright or patent law in that way. Not everyone agrees with me, of course. However, I've mostly focused on the "promote the progress" side of things, but haven't delved as much into the details of "science and useful Arts." I have read up extensively on what the founders meant by that, which can be simplified as "science" meaning scientific publishing/books and "useful Arts" meaning inventions. There's also a fair bit of evidence that the real focus of the founders was on patents, rather than copyright. It wasn't that they weren't concerned at all about copyright (they were), but that the bigger issue was patents, and copyright was a sort of "throw in" at the behest of some vocal authors, along with some remembrance of states' fights over local copyright policies. But, on the whole, it was patents that were considered of much more importance to progress than copyrights.

And, not only were copyrights initially for a "limited time" (14-years) but the first federal copyright law in the US limited copyright to books, maps and charts. Tom Bell points out that, based on this, and some other aspects of the early intentions of the founders, you can make an argument that copyright law, as per the constitution, was never intended for things like art and music. After all, what does art or music have to do with "science"? And if it really was intended to cover art and music, then why didn't the founders have it cover music that was being composed at the time? Perhaps it was because they realized that music and paintings had nothing to do with science, and the Constitutional clause is only limited to promoting the progress of science and the useful arts (and, again, in the parlance of the day, "useful arts" was inventions). As Bell states:

Here as elsewhere, acquiescence to long-accepted practices has dulled us to the Constitution's bracingly straightforward words. We should read them anew and reflect that the Founding generation did not evidently think that granting statutory privileges to such purely artistic creations as romantic operas or pretty pictures would promote the progress of both science and the useful arts. Furthermore, most citizens today would, if presented with the Constitution's plain language rather than the convoluted arguments of professional jurisprudes, probably say the same thing about pop songs, blockbuster movies, and the like. That is certainly not to say that purely expressive works lack value. They may very well promote such important goals as beauty, truth, and simple amusement. The Constitution requires that copyright promote something else, however--"the Progress of Science and useful Arts"--and a great many works now covered by copyright cannot plausibly claim to do both.

Bell is interpreting the Constitutional clause in an even stricter manner -- suggesting that any work covered by patents or copyright needs to promote both progress in science and in the useful arts, which is an even higher bar, though I'm not sure I'm convinced it was meant to be both. Also, many would retort that the Constitution grants the Congress the ability to determine if such monopolies promote the progress of science and the useful arts -- and as long as Congress says they do, then we should consider that they do (no matter how wrong they might be). For a variety of reasons, that line of thinking is problematic, but it is the line that the Supreme Court has taken with copyright before (such as in the Eldred case). I'm not necessarily convinced of Bell's thinking here, but it's certainly a point worth pondering (and discussing).

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Permission Culture: Want To Quote A Single Sentence In A Book? Pay Up!

from the copyright-law-at-work dept

Benjamin points us to yet another (and another and another) example of copyright law gone insane. It involves Kyle Gann, a music professor, composer, author, etc. who was working on his latest book, but had to drop an entire section because he wasn't allowed to quote short sentences that are, themselves, apparently considered works of art, without getting permission from the original authors:

I've been trying to get permission simply to refer to Fluxus pieces like La Monte Young's "This piece is little whirlpools in the middle of the ocean," and Yoko Ono's "Listen to the sound of the earth turning." And of course, Yoko (whom I used to know) isn't responding, and La Monte is imposing so many requirements and restrictions that I would have to add a new chapter to the book, and so in frustration well past the eleventh hour, I've excised the pieces from the text.

Yes, it's become so impossible to quote a single short sentence, that it's just not worth doing at all. Welcome to permission society. Some copyright system believers may claim that this is just the market at work, but it certainly seems a lot more like an undue restriction on freedom of expression at the hands of copyright law. I can't see, frankly, how using copyright law to ban such writing isn't a clear violation of the First Amendment. He even wasted a bunch of time thinking about ways around this:

Some of these pieces are too brief to refer to without quoting them in their entirety. How do you use Nam June Paik's "Creep into the vagina of a living female whale" as an example without giving the whole piece away? How am I supposed to refer to it: "Creep into the vagina, etc"? Call it Danger Music No. 5 and tell you to look it up? Paraphrase it: "crawl into the birth canal of a matronly member of the order Cetacea"? And if the copyrights are held by unreasonable people who can hold your book hostage to their detailed demands, then it's just time to find a different research area. The situation is absurd, somebody under whatever questionable chemical influences scrawls seven words on a piece of paper and 50 years later I can't refer to that piece of paper without paying someone some money and following their prescriptions.

Now, I would think that Gann would have a pretty clear claim to fair use if he were to use the phrases he wanted, but it appears his publisher doesn't even want to bother with the potential battle -- and since fair use is (as copyright maximalists gleefully love to remind everyone) merely a "defense" rather than a "right" (which isn't entirely accurate either), the only way to guarantee that this is fair use is to (a) get sued and (b) have a court rule on it -- something that no one should have to contemplate, just while writing a book on art. What a shame and a loss. Yet, it's what this world has become thanks to out of control copyright law and this sense of "permission culture," where even free expression now requires a request for permission and an open checkbook.

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Why Hasn't The Recording Industry Sued Girl Talk?

from the because-they're-scared-to-death-they'll-lose dept

Peter Friedman has another wonderful post, discussing why music is the "main battleground" in the copyright wars, raising a few good points -- including the idea that music master tapes are dying in vaults, causing locked up music to disappear, and highlighting a troubling series of case law decisions that seem to entirely ignore the concept of fair use when it comes to music (some of which we've discussed in the past here).

But the most interesting point may come at the end, when he brings up something that's been confusing here as well: how come Greg Gillis -- better known as Girl Talk, the popular mashup musician -- hasn't been sued yet. Especially since his Feed the Animals CD came out, generating a ton of publicity and popular press coverage (and sampled from hundreds of songs), pretty much everyone has been waiting for him to get sued. Friedman tosses out a suggestion that makes a lot of sense: the recording industry is scared to death that a court will rule in Girl Talk's favor and return "fair use" to music:

Well, I think 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.

When asked, Gillis has repeatedly stated that if he's sued he believes he has a strong fair use defense. Perhaps the lawyers at the record labels (and representing certain musicians) have all recognized the same thing. Gillis will almost certainly win in court, and all those terribly decided cases that ignore fair use in music will get pushed aside.

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Girl Talk On Remix As An Art Form

from the knock-on-wood dept

Greg Gillis (aka Girl Talk) recently participated in a live chat as part of a Download Decade series run by the Globe and Mail. Gillis makes music entirely from samples, combining existing songs in creative ways to make something new. His last album, which was offered as a pay-what-you-want download, used over 300 samples. Even though he's been held up in Congress as an example of why traditional copyright laws might no longer make sense, it seems like a lawsuit is inevitable because Gillis doesn't license any of the samples he uses. Yet, there has been no legal action to date (knock on wood!). Gillis argues that his sampling is fair use because it's transformative, but that hasn't been tested in court.

In the chat, he responded to a question I raised about why he uses a noncommercial license for his music (as he makes commercial use of others' works), arguing that transformative fair use would still allow commercial use of his music and noting that his label suggested the noncommercial license as a "safe move." Gillis was also asked whether he's surprised that he still hasn't faced a lawsuit, even though his profile has been much higher in the past few years.

Kind of. I believe in what I'm doing. I do not think it should be illegal. But at the same time, if you look at the history of sample-based music, it is somewhat surprising. Biz Markie, 2 Live Crew, Danger Mouse, Negativland, etc. Those are the people who laid the groundwork. They all had issues.

He notes that he was under the radar with his first couple albums, but since 2006, it's been hard for him to ignore publications like the Rolling Stone and the New York Times talking about how he's going to get sued. Yet, no lawsuits. He says times are changing.

The way the general public views intellectual property in 2009 is much different than in 1999. Look around the internet. So much content comes from pre-existing media. We're used to it now. Christian Bale goes crazy on the set of T4. That turns into a techno song, which then turns into a cartoon on YouTube, which will then turn into a T-shirt. Everyone is constantly exchanging ideas and building upon previously existing material. So the idea of a remix being a real artform is being validated in our culture every day.

Certainly, artists like Girl Talk, as well as others ranging from DJ Kutiman to the creator of the "rap chop" video, have been debunking the myths about "original" content, showing people that remixing can be creative and original and that it contributes to culture. Still, there are plenty of people who believe otherwise. Hopefully, Gillis continues to avoid legal troubles, though I don't think things have changed so much that this isn't still a huge risk. But, insofar as the remix is increasingly validated as an art form, perhaps a lawsuit would end up highlighting the limits that copyright law places on artistic expression nowadays.

Blaise Alleyne is an expert at the Insight Community. To get insight and analysis from Blaise Alleyne and other experts on challenges your company faces, click here.

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Yes, Artists Build On The Works Of Others... So Why Is It Sometimes Infringement?

from the it's-called-inspiration dept

Following on our story the other day about copyright questions concerning the "appropriated art" that became the iconic Obama campaign poster, the Wall Street Journal has an interesting article exploring the fine line between derivative works and transformative works in the art world. As you probably know, derivative works (e.g., making a movie out of a book) are considered copyright infringement, but transformative works are not.

Of course, how you define a transformative work is a big open question. The article doesn't discuss it here, but for some unexplained reason, courts have mostly determined that there is no such thing as transformative works in music -- so sampling is mostly seen as infringement. The article, instead, focuses on visual artwork, though, where courts have ruled in different ways, depending on the artwork -- leading many to consider this to be a "gray area."

It probably won't surprise many, but to me the whole concept seems silly. The history of creativity has always included the concept of taking the ideas of others (those who influenced you) and building on them. That's the history of storytelling. It's the history of joke telling. It's the history of writing. It's the history of music. It's the way art is created. And that's a good thing. Art never springs entirely from 100% original thought. It's an amalgamation of what else is out there -- put together in a new way. What's even more ridiculous is that, in almost every one of these cases, it's difficult to see how the "original" complaining artist is even remotely "harmed" by the follow-on artists. If anything, it's likely that the later art would only draw more attention to the original artist. It's just that we've built up this ridiculous culture of "ownership" of ideas, where people think that someone else doing something creative by building upon my work is somehow "stealing." It's a shame, and it's incredibly damaging to our cultural heritage -- which, of course, is exactly the opposite of what copyright law is supposed to be about.

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What If Movies Went Away?

from the times-change dept

For years, in discussing how copyrights really aren't necessary, it's always only a matter of time until someone brings up the infamous $200 million question -- first asked to me by someone at NBC Universal years ago: "But how will Universal make $200 million movies without copyright?" As we've explained, that's the wrong question. The cost to make a movie is meaningless in this context -- as it's been shown that the cost of making a movie is actually inflated due to a variety of factors, including overly aggressive use of copyright, which allows inefficiencies to enter into the moviemaking process. Without copyright, moviemakers would have to cut down on some of that waste, and focus on actually making movies at more reasonable costs -- which is absolutely possible.

The real question is how will movies make money -- and that's easy enough to answer. As plenty of folks have been pointing out for years, the movie business isn't selling movies, but selling seats to an experience. Put on a good moviegoing experience and the money will still come in. Theater owners will have every incentive in the world to make sure good movies get made, otherwise they won't be able to stay in business.

However, in the ongoing online debate being held by the Cato institute, Rasmus Fleischer makes another point that's at least worth considering: what if movies really aren't that important as a content medium. Now, personally, as a movie fan, this made me cringe, but the overall point he's making is worth thinking about, noting that movies are a recent phenomenon, and other forms of "high art" have come and gone in the past without the world ending. He quotes Paul Oskar Kristeller:

There were important periods in cultural history when the novel, instrumental music, or canvas painting did not exist or have any importance. On the other hand, the sonnet and the epic poem, stained glass and mosaic, fresco painting and book illumination, vase painting and tapestry, bas relief and pottery have all been “major” arts at various times and in a way they no longer are now. Gardening has lost its standing as a fine art since the eighteenth century. On the other hand, the moving picture is a good example of how new techniques may lead to modes of artistic expression for which the aestheticians of the eighteenth and nineteenth century had no place in their systems. The branches of the arts all have their rise and decline, and even their birth and death.

The point is quite clear. "High art" forms come and go -- and when something new comes along to replace the old form, people don't feel that it's such a huge loss, usually because something the market prefers more comes along instead. If there's really a demand for movies, a business model will be created to finance them and make sure they make money. However, getting rid of copyright may teach us that there are other art forms out there that are even better.

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