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| bliss |
 Posted: Sat Nov 18, 2006 7:58 am |
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| Why hasn't this made it's way to The Supreme Court yet? One would think that a competent lawyer would just take examples from every art form that we know of and graphically illustrate the tradition of sampling and borrowing of material by artists of other artists. It would be very easy to do and then that stupid ruling would be overturned. http://www.slate.com/id/2153961/ |
Last edited by bliss on Mon Nov 27, 2006 3:23 pm; edited 2 times in total |
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| shamann |
| Posted: Sat Nov 18, 2006 10:33 am |
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Someone did (sort of) but they lost:
http://www.eldred.cc/eldredvashcroft.html
In the Eldred case, it was an attack on the Sonny Bono law. The court decided that to dismantle that law would also dismantle the 1976 copyright convention, since one term extension is the same as as any other (although I guess they can't grasp the concept of accepting the sins of the past but not repeating them). Which to me means that a bad law won't be turfed if it comes from a long lineage of bad laws. |
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| bliss |
| Posted: Sat Nov 18, 2006 6:21 pm |
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For those interested, here is the condensed version of the outcome of Eldred v. Ashcroft. Clearly what's at stake is the entertainment industry's control of copyrighted material. It is not surprising that such a law, the Sonny Bono Copyright Extension Act of 1998, would be passed in the state of California. That there is precedent for decisions favoring retroactive copyright extensions and that the Supreme Court supports those precedents means that yet more retroactive decisions that favor the corporations will be made in the future. In other words, in perpetuity -- a phrase that entertainment lawyers understand very well. The entertainment industry will seek new extensions in court every time it feels threatened that it is about to lose control over its vast catalogs of copyrighted material to the public domain.
Man, you have no idea how much this infuriates me. Still, it should be glaringly obvious that the Bridgeport Music Inc. v. Dimension Films is as bogus a decision as they come. How can a judgement that makes it illegal to use a sample of a sound recording of any length in a new recording also uphold the copyright law doctrine of fair use? In 1952 John Cage's composition 4'33" premiered. Under this judgment every single sound recording since 1952 is potentially subject to virtually unlimited licensing fees owed to the John Cage estate! Not to mention every song or piece of music written since then that contains a rest. "Cage repeatedly claimed that he composed 4'33" in small units of silent rhythmic durations which, when summed, equalled the duration of the title". This scenario would set a horrifying precedent should it ever happen.
The Eldred v. Ashcroft decision, the Bridgeport Music Inc. v. Dimension Films decision, and the proclivity of corporations to lobby and influence congressmen such as the now deceased Sonny Bono (who should have known better and saw that tree coming) are absurd and represent, in my view, criminal injustices to the best interests of artists, scientists, educators and the fabric of civilized society. |
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| thesimplicity |
| Posted: Sun Nov 19, 2006 12:15 am |
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bliss wrote: In 1952 John Cage's composition 4'33" premiered. Under this judgment every single sound recording since 1952 is potentially subject to virtually unlimited licensing fees owed to the John Cage estate! Not to mention every song or piece of music written since then that contains a rest.
I once got into a huge argument during a crit in college with a philosophy professor about the difference between 'active' and 'inactive' appropriation. In the end we both agreed that 'appropriation' (or fair use, in the case of my argument) was an intentional act while 'theft' was unintentional. If your music contains silence then, yes, you are infringing on the copyright of a silent piece of work that has precedence, but it's important to remember that you're not actively sampling it. If you make a bunch of loops from a CD copy of 4'33", that's a different story. Even though both rest are identical in substance. I wish I could remember the whole conversation because trying to describe it now just makes me think "how the hell did we come to that conclusion?"
I don't have time to type out all my thoughts on this (and I have plenty, as I somehow ended up studying law after my art school education) -- I have to get in line for a Wii  -- but everyone should read up on the new orphaned works act: http://www.publicknowledge.org/node/388
If you're a visual or sound artist it's going to greatly affect you. My circle of friends are torn on it, so I'm really interested in hearing opinions from some people who aren't familiar with it! |
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| shamann |
| Posted: Wed Nov 22, 2006 11:33 am |
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bliss wrote: "Cage repeatedly claimed that he composed 4'33" in small units of silent rhythmic durations which, when summed, equalled the duration of the title". This scenario would set a horrifying precedent should it ever happen.
Technically speaking, 4'33" isn't just silence. It is in fact a fairly specific performance of silence, given that the performer's actions are an intrinsic part of the score. You're suggestion is essentially the same as saying anyone who wrote a work for violins owns copyright over the sound of violins, which isn't how copyright works, even under these most recent judgments. |
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| bliss |
| Posted: Wed Nov 22, 2006 2:02 pm |
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shamann wrote: bliss wrote: "Cage repeatedly claimed that he composed 4'33" in small units of silent rhythmic durations which, when summed, equalled the duration of the title". This scenario would set a horrifying precedent should it ever happen.
Technically speaking, 4'33" isn't just silence. It is in fact a fairly specific performance of silence, given that the performer's actions are an intrinsic part of the score. You're suggestion is essentially the same as saying anyone who wrote a work for violins owns copyright over the sound of violins, which isn't how copyright works, even under these most recent judgments.
No, I referred to the composition, itself, and the explanation of the process by which it was composed given by John Cage, himself. I didn't say that Cage had a copyright on silence itself, I referred to his composition of 4'33' which is composed completely of silence of which his estate owns the copyright of. |
Last edited by bliss on Wed Nov 22, 2006 2:12 pm; edited 1 time in total |
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| shamann |
| Posted: Wed Nov 22, 2006 2:08 pm |
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| bliss |
| Posted: Wed Nov 22, 2006 2:15 pm |
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shamann wrote: Except that 4'33" is a performance of silence, not representative of all small units of silence.
What difference does that make? Mary Had A Little Lamb is composed of small rhythmic and melodic units of potential sound and silence...
Anyway, check this out as a matter of reference. I believe the final outcome of that was a settlement between Mike Batt and the Cage estate. Still, this incident should give you a better idea of where I'm coming from. |
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| shamann |
| Posted: Wed Nov 22, 2006 3:18 pm |
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Actually, what's most interesting about the Batt case is that it in fact has no bearing on copyright law, since it was only a settlement. In the UK, its common law is based solely on precedent where a judgment has been made.
In this case, Batt very likely would have been justified (no sampled recording, no actual resemblance to the Cage work other than the silence), but lawyer costs would have run deep, probably deeper than the settlement (which could very easily have never been actually paid out since word alone of the settlement would benefit the Cage Trust more than the small sum of money, and which likely would have been paid out by his record company out of a royalty split). Batt's error here was also that he used "Cage" as co-writer even if he played cheeky about who Cage was later.
4'33" is very specifically about the score (three movements, specific duration, inactivity per movement, but freedom in between), which if you've never seen it I'm sure is easy to find on the web. In Batt's case, his silent piece was very much a different affair. He could very easily have won, but again deep pockets rules the lawyer game. |
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| bliss |
| Posted: Wed Nov 22, 2006 7:54 pm |
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shamann wrote: Actually, what's most interesting about the Batt case is that it in fact has no bearing on copyright law, since it was only a settlement. In the UK, its common law is based solely on precedent where a judgment has been made.
I agree with what you said about establishing legal precedent. However, the John Cage estate did try to influence how copyright law would favor them in the future by going after Batt in the first place. I can see well clearly that Batt's piece was original, and also that he brought attention to the piece by sharing credit for authorship of the piece through the usage of the name "Cage". Yet it is arguable if usage of the name "Cage" in reference to an original composition of silence constitutes trademark infringement or not. Through the use of the fair use doctrine as a defense, parody and the depiction of historical cultural events and persons of historical significance in the arts is protected and well represented by precedent in copyright law. Unless Batt is promoting his shows by informing or misleading the public that he wrote a piece with John Cage and is using John Cage's image on all of his marketing materials without actually performing a piece composed by John Cage, then he probably would not have much to worry about on the matter of trademark infringement. But, yes, in Batt's case it is probably a matter of whether the cost of getting a legal judgment is worth it or not, |
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| bliss |
| Posted: Mon Nov 27, 2006 9:31 am |
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| bliss |
| Posted: Mon Nov 27, 2006 3:49 pm |
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| bliss |
| Posted: Mon Nov 27, 2006 4:19 pm |
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