Everyone leaps to the commercial's heavy use of collage and how horrible
fair use would be there - Correct! - I ALWAYS STIPULATE THIS EXCEPTION IN
FAIR USE FOR COLLAGE - NOT AVAILABLE TO ANY ADVERTISING. PERIOD. They must
pay and get permission for everything of others they use because they
aren't making art, they are making ads. That would be the easiest of all
legal distinctions to maintain under fair use for collage. No advertising
As to your specific soundware example, making a new CD of segmented samples
out of other's segmented samples does not end up being more than a CD of
segmented samples. This is not collage by anyone's definition and does not
intend to be on the face of it. Fair Use for collage does not cover
compilations or recompilations (no matter how partial the use or how
transformed the samples) when no new and recognizable creative whole is
achieved. It has to be a work or a piece using samples, not just raw
samples designed for reuse themselves. Sample compilations or compilations
of any kind do not get fair use . They are not art in themselves and never
pretend to be. Only combinations pretending to be art in themselves may
achieve fair use for collage. Someone COULD claim their compilation of
samples IS a work of art, but it should and would be quickly thrown out of
court, hopefully with the admonition, "You can do better than this..."
Honestly, the "is it or isn't it?" art factor for courts would be a hell of
a lot easier than the "is it or isn't it" pornography factor they deal with
all the time. Once you know the rules, distinctions are comparitively clear
With fair use for collage, I could use any samples from that original $20k
sample CD, or samples from your transformed compilation of their disk, to
make a new collage and not have to pay either of you for doing so as long
as it uses less than the whole and/or transformed the samples, resulting in
a new work that exists as a new whole which is more than a simple sum of
its sampled parts - collage.
This, you may have guessed, would be virtually EVERY musical use of samples
today, whether sampling from existing works or from sample compilations. If
you don't like it, for heaven's sake stop spending $20k on creating sample
CDs which you have to pay musicians to make! It's stupid when you can't
sell them for use in new sampling music. Don't worry, there's NO shortage
of samples whatsoever and never will be! Audio collagists, who are usually
heavy users of other's work, are the least interested in pure music samples
on a disk and are usually not into making more pure music for its own sake
out of designer samples. I never used that form of dedicated music sample
because they are just little boring bits of sanitized music, no context
comes with them. Collage is all about mixing CONTEXTS and very often plays
on a recognition of the sample's source as already existing and familiar
work. But nevertheless, all sample using music IS collage by definition
and deserves fair use in doing so.
Fair use for collage would close down many functions of the labels' sample
clearance departments (They'll still be selling their catalog to
compilations for instance) and return them to the businmess of making money
off what they can create (sample usages are fair use for THEM too!) rather
than from what they can recoup on without lifting a creative finger, while
routinely refusing access to any new collage usage they don't like.
Downsizing copyright law by expanding fair use to collage would be a huge
benefit to modern creative impulses, most of which now involve collage.
When collage's raw material is determined by source owners' demand for
secondary income, as it is now, you have purely economic tolls (not to
mention private egos) determining what new art gets made and what doesn't.
Collage is the most timely and instructive form we have to re-evaluate the
limits on cultural ownership and how private art should really be when it's
general progress becomes so based on copping from past examples and the
expression of others BY DIRECT REFERENCE.
The recycling of existing music into new music will only grow from here. It
is the forseeable future of advanced music since there is virtually nothing
"original" possible in any other kind of "pure" music anymore. (This
requires a long essay of observations to prove to you involving the entire
history of music making, but it's finally true!) The only interesting
future left to music, the only relatively unexplored direction for sonics,
the only way to be "new," is in synthesis, recontextualizing, collage - the
recombining and remanipulation of what already exists in unimaginable
profusion. Fair Use for collage would acknowledge and welcome this final
direction for making "new" music, rather than hopelessly and fruitlessly
suppressing it as the work of outlaws which should be discouraged through
enforced tolls. We are trying to bite off our nose to spite our face. How
is it possible to actually bite off one's own nose? It isn't, and that is
the story of music ownership vs. collage.
>Don, just to get your read on this....
>I can see -- if not necessarily completely agree with -- your argument for
>broader interpretations of fair use when it comes to collage in composition.
>I also see the potential for much greater corporate abuse than could
>currently exist. It would be interesting to watch that first case where Nike
>decided to use a famous loop under the "Collage Law," and proceeded to claim
>that their use is no less fair than an artist's, whose music *is* their or
>their label's advertising.
>Anyway, to my specific example: If a soundware company shells out $20k for a
>string section to do a sample CD, are you saying that should I be able to
>grab those samples, reloop them (maybe even improve the multisample in the
>process), and sell that as a competitive sample CD?
>From: owner-phoATonehouse.com [mailto:owner-phoATonehouse.com]On Behalf Of
>Sent: Wednesday, February 28, 2001 5:02 PM
>Subject: RE: pho: "threshold" for copyright??
>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.
>>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
>>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
>>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
>>applies. As for stealing fart recordings ... well, that would really stink,
>>*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
>>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.
>>From: owner-phoATonehouse.com [mailto:owner-phoATonehouse.com]On Behalf Of
>>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
>>tested in regard to most types of copyrights ( music, plays, sculpture,
>>and sometimes produces strange court decisions. For example, that bass
>>not copyrightable. However, no one has tested the threshhold for sound
>>to any great degree, to my knowledge.
>>For example, suppose I steal a drums and bass recording, get sued and
>>the grounds that they are not sufficiently creative or original, arguing
>>a bass line is not copyrightable, that a drum beat is most certainly not,
>>combination is therefore not protectable. Music without harmony and melody
>>copyrightable. You don't think I couldn't convince some federal judges of
>>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.
>>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
>>> you were talking about. I thought you were saying, some "art" just sucks
>>> badly it doesn't deserve to get a copyright, even if it is long enough
>>> unique enough and non-duplicating enough to be considered an individual
>>> (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?).
>>> -----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
>>> 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.
>>> 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
>>> > >to be
>>> > >copyrighted. What makes you think that the shit the RIAA puts out
>>> > >survive this test? What evidence do you have that you are indeed
>>> > >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
>>> Are you being sarcastic? You know as well as anyone that any composition
>>> and/or recording is automatically covered by current copyright law from
>>> 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
>>> 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
>>> 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
>>> 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
>>> 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
>>> I must be missing something here...
>>> > Dan
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