Wow. I wasted my whole evening. What the hell was I thinking.
We the undersigned are extremely concerned wtih the current tactics of the popular
culture industry to silence a relatively new form of music. This form of music
makes heavy use of existing copyrighted recordings as its source material.
We believe that copyright law has been misapplied to this musical form in
excessive and unnecessary lawsuits which in some cases have resulted in court
orders to destroy original works. These lawsuits originate in the legal
departments of the large corporations, specifically an ever smaller number of
legal entities who own the copyrights for a great majority of all recordings ever
made, and essentially every single recording that the everyday person can
recognize as popular music. For that matter, these same corporations own the
copyrights on essentially every news broadcast, football game, television program,
and advertisement that everyday people can see and hear in their home.
We feel that the copyright law was originally intended (in the case of its
application to music, which was added much later than the law's original domain of
the written word) to encourage composers and musicians to create music without
fear that larger, more succesful organizations with better distribution operations
would be able to claim authorship of their music. It provides a legal recourse
for when the original work of an artist is wholly appropriated by another without
permission. It seeks to make certain that the author or current copyright holder
approves of all sales or exhibitions of their original works, and provides
recourse for when such sales or exhibitions are unathorized.
The law was intended to encourage musicians to share their music with the world
fear of their music being taken - by re-recording, subtly altering, or simply
duplicating it - and sold by someone else. We agree wholeheartedly with this
application of copyright law, and we agree that such acts should be criminalized.
The new form of music (we call it "collage" or "tape music," but it is best known
as "sampling") stands accused of being the appropriation of the works of others.
Lawsuits arguing this position have been successful. Sales of recordings of this
music have been halted by court order, and all remaining copies of some recordings
have been destroyed by court order, or more commonly, in settlement to avoid the
cost of a legal battle with powerful corporate copyright holders.
Not all the undersigned are in agreement over any particular court case or
However, we believe that
"sampling" of a recorded work without the authors permission,
even in ways that the author or copyright holder disagrees with,
and even if the result of such "sampling" is re-sold at a profit and without
attribution to the original artist,
does not constitute infringement of copyright IN AND OF ITSELF.
We feel that our recordings which use copyrighted materials should not be
considered in violation, because
1) They are derivative works and not copies. Our works are not the result of
simply copying, in whole or in part, the original. There have been significant
alterations to the original material.
2) They don't function as a substitute for the copyrighted material. The
copyright holder has suffered no loss because of the new work.
3) Those who acquire our works are not doing so in search of the original
copyrighted material. The consumer does not mistake our works as the works of
others, or vice versa.
We consider our appropriation of materials already published and copyrighted to be
the natural result of the many new ways of distributing copyrighted works, some of
which can be considered intrusive and pervasive. However we consider ourselves to
be quoting these works for the purpose of review of the very distribution
technologies and commercial practices which make these works available to us.
Leaving aside the "Fair Use" clause in the copyright law which speaks loudly to
our claims, we believe that in copyright cases against artists making
appropriated works from copyrighted materials the following guidelines should be
adopted before issuing orders to destroy any artist's work, orders to cease and
desist in its distribution, or orders to pay damages to the copyright holder.
We believe that all copyright cases against any artists who use previously
published copyrighted materials that do not meet the guidelines should be
dismissed. We further believe that artists and distributors should have
recourse and public assistance in the event of harrasment and intimidation by
powerful and litigous copyright holders.
1. THERE SHOULD BE A STRICT BURDEN OF PROOF OF LOSS TO THE COPYRIGHT HOLDER
We observe that proof of loss is missing from the cases we are familiar with, and
that all the burden of proof falls to the defendant.
We believe that this PROOF OF LOSS should consist of TWO OF THE FOLLOWING BEING
PROVEN TRUE beyond a reasonable doubt:
A: The derivative work is essentially no different from the original work.
Nothing has been added, or subtracted, or altered in even the least significant
way. It is a copy.
B: That the distribution of the derivative work is wholly dependent on the
original work, and such distribution is clearly in place of the original work.
That is, taking the case of a CD offered for sale, that a significant number of
its purchasers believed that the CD was the original work and not a derivative
work, or that it was a new work by the original artist and not a new work by the
derivative artist, to the extent that the resulting purchase satisfied the buyer's
need or intention to purchase a work of the original artist, or that purchasers
were convinced that the works of the original artist were actually works made by
the derivative artist (that is, the derivative artist took credit for the original
artist's work), or that purchasers intended to buy the work of either one with
indifference to which.
C: That the distribution of the derivative work, whether beneficial to the
derivative artist or not, resulted in the loss or reduction of revenue from sales
of the original work by the copyright holder. That is to say, the issuance of the
derivative work cost the copyright holder money by replacing sales of the original
work with sales or distribution of the derivative work.
2. SEE NUMBER ONE!
(c)2000 Chris Ball
All Rights Reserved
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