This is why collage (the style of sound organization prompted and permitted
by modern audio technologies) is so pertinent, and why it should get fair
use status. A lot of musics now employ collage methods and techniques.
Collage music's many fragmentary elements cannot be withheld as
pay-per-piece material any more, no matter where it originates. It's
anti-collage and it's antithetical to copyright's goal of encouraging new
and useful arts. A definably fair use collage's (EXCEPTION: ADVERTISING)
cultural reuse/recycling should be one of the limits on modern copyright,
not prosecutable through copyright law because THAT'S affordable free
expression for a significant amount of new music being made these days.
DJ
Negativland
>This has been carried to a ridiculous extreme in the past: Audio engineers
>trying to claim snare sounds (due to "their" EQ, compression, and reverb
>settings), techs or artists claiming guitar tones, and, of course, the
>Harley trademark application for their "unique" engine sound (what ever
>became of that?). And believe me, there was a period where B-3 drawbar
>settings were protected with organists' lives. This kind of stuff has been a
>factor in longer and more deliberate work-for-hire agreements -- especially
>as it's become easier to push a couple of buttons and mangle a sound so
>completely that you're sure it's a brilliant and singular work of art.
>
>In one of the most recursive suits in recent memory, Roland sued -- or
>threatened to sue -- an Italian company that had manually resampled and
>relooped one the Roland sound sets (from the Sound Canvas or similar module,
>I believe). ROM sounds that, themselves, came from God-knows-where. Unless
>I'm mistaken, they settled.
>
>But you ask the right questions:
>
><<How about sound effects records? Should a recording of a trash can be
>copyrightable? How about a recording of a fart?>>
>
>If Roland has gone to the trouble and expense of getting some
>Czechoslovakian orchestra in a room to do string samples, should another
>party be able to simply sample the result and make their own product? The
>barrier to entry for trash can FX is quite a bit lower, but the same concept
>applies. As for stealing fart recordings ... well, that would really stink,
>wouldn't it?
>
>Marv
>
>*Personally, I'm surprised the folks who make the Auto-Tune plug-in haven't
>tried to trademark Britney's in-tune vocal. (Then again, who are they to
>talk: They also make the Microphone Modeler, which allegedly turns your SM57
>into any $3,000 mic. Right.) A lot of this stuff strikes at the heart -- or
>neighboring organs, at least -- of Negativland's collage debates.
>
>-----Original Message-----
>From: owner-phoATonehouse.com [mailto:owner-phoATonehouse.com]On Behalf Of
>leflaw
>Sent: Tuesday, February 27, 2001 5:26 PM
>To: Krimm, Dan; phoATonehouse.com
>Subject: Re: pho: "threshold" for copyright??
>
>
>There are copyright requirements of creativity and originality. These have
>been
>tested in regard to most types of copyrights ( music, plays, sculpture,
>etc.,)
>and sometimes produces strange court decisions. For example, that bass lines
>are
>not copyrightable. However, no one has tested the threshhold for sound
>recordings
>to any great degree, to my knowledge.
>
>For example, suppose I steal a drums and bass recording, get sued and defend
>on
>the grounds that they are not sufficiently creative or original, arguing
>that if
>a bass line is not copyrightable, that a drum beat is most certainly not, so
>the
>combination is therefore not protectable. Music without harmony and melody
>is not
>copyrightable. You don't think I couldn't convince some federal judges of
>that?
>
>How about sound effects records? Should a recording of a trash can be
>copyrightable? How about a recording of a fart?
>
>It is never been the law that anything and everything is copyrightable.
>There is
>a threshold. It might be low, but it is there.
>
>"Krimm, Dan" wrote:
>
>> Well, okay, but that speaks to a sort of "critical mass" issue for what
>> qualifies as a *work* of art. Not what qualifies as a work of *art* - if
>> you get my meaning in the shift of emphasis...
>>
>> That is, it's a sort of content-magnitude threshold, not an
>> artistic/creative-quality threshold. Maybe there are issues with how
>> derivative a work can be before it infringes, but that's not what I
>thought
>> you were talking about. I thought you were saying, some "art" just sucks
>so
>> badly it doesn't deserve to get a copyright, even if it is long enough and
>> unique enough and non-duplicating enough to be considered an individual
>work
>> (if not an "intellectual work" or "artistic work" - do we have laws for
>> "stupid works" or "mediocre works"? - no, they are covered under the same
>> domain, right?).
>>
>> Dan
>>
>> -----Original Message-----
>> From: leflaw [mailto:leflawATleflaw.com]
>> Sent: Tuesday, February 27, 2001 5:09 AM
>> To: Dan Krimm; phoATonehouse.com
>> Subject: Re: pho: "threshold" for copyright??
>>
>> I will get you some case law and "Nimmer" quotes, but the issue is seldom
>> tested. There was one old case that said that a bass line, believe it or
>> not, was not copyrightable, and rearranging public domain material without
>> adding sufficient creativity is not copyrightable.
>>
>> Just because an examiner at the PTO gives out a certificate doesn't mean
>> that it will survive in court. It is a presumption only.
>>
>> The issue comes up more often in cases involving data, like Westlaw v.
>> Lexis.
>>
>> Dan Krimm wrote:
>>
>> > At 08:59 PM 02/26/2001 , leflaw wrote:
>> > >There is an artistic and creative threshold that a work must reach in
>> order
>> > >to be
>> > >copyrighted. What makes you think that the shit the RIAA puts out
>would
>> even
>> > >survive this test? What evidence do you have that you are indeed
>worthy
>> of
>> > >this
>> > >wonderful protection that you think, in your blind arrogance, is your
>> > >birthright?
>> > >In other words, just what the hell do you know about art?
>> >
>> > Larry,
>> >
>> > I haven't followed much of the thread that this came from, but this
>> statement from both a music lawyer and a working musician really puzzles
>me.
>> Are you being sarcastic? You know as well as anyone that any composition
>> and/or recording is automatically covered by current copyright law from
>the
>> moment of creation. And, for 20 bucks it can be registered with the
>> Register of Copyrights without even being published. You don't have to be
>a
>> lawyer to do this, just a citizen (or maybe only a resident) of the US.
>> It's actually pretty easy - you can download the registration forms as
>PDFs
>> from the CO web site.
>> >
>> > I've got a bunch of mediocre early work registered with the Copyright
>> Office, and some pretty good later work as well, all of it registered by
>me,
>> myself, directly.
>> >
>> > Art doesn't have to "deserve" to have copyrights, it just has to exist.
>> And the problem with deciding who might deserve this right is that the
>> judgments can hardly avoid a healthy dose of arbitrariness - the very
>> "legitimizing" factor that excludes so many "deserving" artists from the
>> marketplace in the first place. I think this must have been clear to the
>> writers of copyright law in the US, because they explicitly excluded any
>> judgment of artistic value from the system (I guess they figured the
>> marketplace would measure that value in the form of economic value - and
>of
>> course that in conjunction with the mass media structure of promotion and
>> distribution has perverted the culture of music increasingly in recent
>> years, but I digress).
>> >
>> > I'm not going to try to analyze or defend Karen in any detail, but
>> whatever logic led you to this statement must have been convoluted indeed.
>> I must be missing something here...
>> >
>> > Dan
>> >
>> >
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