Music Composer For 'A Clockwork Orange' Sues Australian Who Created 'A Trumpwork Orange' Parody Trailer

from the like-clockwork dept

One of the tests for fair use as it pertains to copyright is the impact that the use of a work has upon the original. While this is but one of four tests used, it is arguably the most important when it comes to advising a rights holder on whether or not to move forward with any legal action. After all, regardless of whether the use of the work is indeed fair use, what would be the point of taking action against the use of a work if that original work were not negatively impacted, or if the impact was positive? There would seem to be no point to expending any time or capital in a legal fight in those cases, yet we regularly see such thinking ignored.

Such is the case concerning Hugh Atkin, an Australian who produced a parody trailer in the style of A Clockwork Orange for President Elect Trump's campaign, entitled A Trumpwork Orange. He originally put it alongside the original movie's trailer, basically to show how he tried to ape the style for his parody. That version was taken down, however, and now we're left with only this version.

Now, when I say that a DMCA notice was filed to get the video taken down, you would be forgiven if you assumed that it had come from our new overly-litigious overlord. But it didn't. Instead, it came from a company that represents Wendy Carlos, the composer behind the soundtrack for A Clockwork Orange. She is the one who created that version of the William Tell Overture featured in the trailer, and she has decided that Atkin needs to license her work to create his parody. In fact, after Atkin filed a DMCA counter-notice and had the video restored, the company representing Carlos went ahead and filed a lawsuit against him in retaliation.

In a lawsuit filed in a New York district court, Serendip LLC is now suing Hugh Atkin for the unlawful use of Carlos’ music in his one minute video.

“Unbeknownst to, and without permission or license from Serendip, Defendant made derivative use of Wendy Carlos’s music arrangement and master sound recording works of the ‘William Tell Overture’, in the soundtrack of Defendant’s video, entitled ‘A Clockwork Trump vs. A Trumpwork Orange’,” the lawsuit reads.

It adds that Atkin uploaded the video around October 23, 2016, “with the apparent purpose of monetizing the video for his own benefit, and with his later stated purpose of ‘providing satirical political comment on the 2016 US Presidential Election campaign of Donald Trump’.”

It's worth noting that the parody video was not levying parody on the song in the trailer, which actually hinders any defense in the name of parody and fair use. Still, we're left with the question of what the impact on the original work, Carlos's iteration of the William Tell Overture, was. It's pretty clear that any claim that this original work was harmed by Atkin's parody would be head-scratching at best. Other versions of the original movie trailer exist on YouTube, after all, and this new parody work even included the original trailer alongside the new creation. It seems that this usage impacts the original work only by maintaining the status quo. And yet Carlos decided to sue.

Interestingly, Atkin wasn't even aware of the lawsuit until TorrentFreak contacted him.

“I did not know that Serendip had commenced proceedings against me. I only found out about the suit via your email, which was a rude shock to wake up to on a Monday morning in Sydney. The complaint has not yet been served on me,” he said.

“I received an email from lawyers for Serendip on October 29 in relation to the takedown notification which had been given by Serendip to YouTube under the DMCA and my counter-notification.

“I responded by letter on October 30 requesting further information about the alleged claim of infringement and otherwise denying any infringement. I never received a response to my letter, and my video was restored to YouTube last week. From their failure to respond, I assumed that Serendip was not pursuing its claim.”

As the TorrentFreak post notes, this isn't the first such lawsuit filed by Serendip. It previously filed a lawsuit against a man in the UK, who used some of Carlos' music in a movie critique of Stanley Kubrick films. That lawsuit is reported to have ended fairly amicably. One hopes that this one will, too.

Filed Under: copyright, donald trump, hugh atkin, parody, takedown, trumpwork orange, wendy carlos

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. icon
    aldestrawk (profile), 17 Nov 2016 @ 12:27pm

    Re: Re:

    I was a teenager when "A Clockwork Orange" came out. Great film indeed! Do you recognize Darth Vader in that film (actor David Prowse)? The soundtrack was a great part of that movie. I had an early interest in electronic music started listening to "Switched on Bach" and the "Well Tempered Synthesizer" back in 1970. Wendy Carlos is one of the great electronic music pioneers. I do object to you bringing up the fact that she is transgender in a rather disdainful way. Firstly, it is entirely irrelevant to the discussion of whether her lawsuit has a valid legally valid claim of copyright infringement. Issues concerning transgenderism have been much in the news in the last couple of years. Wendy Carlos transitioned in 1968 but didn't come out publicly till 1979. She has never made a big issue of it and does not consider herself any sort of activist. So, she hasn't participated in the recent publicizing of transgender issues. This makes mentioning it all the more irrelevant in a discussion of fair use under copyright law.

    Surely people here must recognize that a recorded performance of a public domain composition has a valid copyright in itself. Otherwise, why would any company try to sell recordings of classical music. Just the fact that the composition is in the public domain doesn't invalidate all copyright claims. Let's characterize all the 4 factors in this case even though Tim's focus in this article is that one of the 4 fair use factors is usually ignored.

    1). the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

    A parody short film freely available on Youtube. Profit doesn't seem to be the motive here but the parody addresses a very newsworthy occurrence. As Tim noted, the music background is not the subject of the parody. The musical piece is played in its entirety without any transformation.

    2). the nature of the copyrighted work.

    This is an original arrangement of a portion of a composition which is in the public domain. I don't know if the following is relevant to infringement considerations but in 1971 it took a lot of time to set up and record even an electronic piece that is only 1 minute 17 seconds long.

    3). the amount and substantiality of the portion used in relation to the copyrighted work as a whole.

    This recording of, an abridged, William Tell Overture is used in its entirety and is not changed at all from the original.

    4). the effect of the use upon the potential market for or value of the copyrighted work.

    I agree with Tim's point that this parody will not have any negative effect of the market or value of this Carlos' recording.

    Overall, it seems the infringement claim is marginal but Serendip may win the lawsuit. I would advise Wendy Carlos to drop the lawsuit. Any of you can do this by writing to Wendy via this one-way mailbox:

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown for basic formatting. (HTML is not supported.)
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Shop Now: Techdirt Logo Gear
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories
Report this ad  |  Hide Techdirt ads


Email This

This feature is only available to registered users. Register or sign in to use it.