Last Eurovision song festival [an event I normally pay no attention to] was won by Israel, with a tune called “Toy” by a very Rubenesque DJ and singer named Neta Barzilay.
Some people at the time noted the striking similarity between a phrase in the composition (such as it is) and the main riff of The White Stripes’s 2003 chart-topper “Seven Nation Army”. [Apparently, the title is how TWS frontman Jack White misheard “Salvation Army” as a child.] I didn’t think much of it — as I thought that riff pretty clichéd to begin with — But Universal Music Group subsequently sued Neta Barzilay on “behalf” of Jack White.
Now Mrs. Arbel forwarded me an article from Haaretz English Edition [archive link] according to which a settlement has been reached. The financial terms are undisclosed, but Jack White will receive a co-writing credit.
However, the Haaretz article [*] also points out that a very similar phrase appears in Bruckner’s 5th symphony. Listen to the YouTube below at 21:30 (the video embed should start playing 1 second before that if clicked):
Yup, substantially the same phrase, in Bb minor instead of E. Does this make it “plagiarism of plagiarism”? In the eyes of a random observer, perhaps yes. In the eyes of the law, no — because Bruckner’s composition passed into the public domain long ago, and hence Jack White [**] quoting it does not amount to a rights violation. (I would not want to feed all the rock and pop composers who have recycled bits of Bach, Mozart, Beethoven, Borodin,… as main melodies or riffs without as much as a hat tip. I am not talking about brief “salute” or “tribute” quotes in passing.)
So this adds a very interesting wrinkle to the case. I would have assumed that a song element that is itself lifted from a public domain source would not be copyrightable as such — the whole (which would be a derivative or [presumably in this case] a transformative work) would be, or any original material in the song. Perhaps that is the argument the defendants should have made—I am not a lawyer, but it would seem that this case would be winnable in court. (It is quite possible, however, that the defendants feared being bankrupted by a protracted legal battle against a plaintiff with very deep pockets and a “seven-nation army of copyright lawyers” on retainer.)
I cannot help being reminded of an anecdote from my HS years. A punk rocker was caught shoplifting from a record store. When the beat cop caught and arrested him, his defense was: “That record is mine! I stole it fair and square!” [Dutch original: “Die plaat is van mij! Ik heb ze eerlijk gestolen!”]
Some will rightly point out that composers like J. S. Bach had a much breezier attitude about quoting material than today’s music industry. However, here is the catch: when Bach recycled a popular song as a fugue theme, the material recycled was maybe 1% of the composition, and the contrapuntal edifice he built upon it the other 99%. Tchaikovsky’s “1812 Overture” makes broader use of borrowed material (a Russian Orthodox hymn as the theme for the Russian defenders, and the Marseillaise as the theme for Napoleon’s invasion troops) — but again, there was a ton more music to it.
Bands like Dream Theater quote/steal bits of thematic material like magpies, but again use them as jumpoff points for more elaborate compositions and virtuoso improvisations.
But when your whole composition (such as it is) consists of a simplistic song built up from repeating one or two riffs and/snatches of melody —and then you are then discovered to have “borrowed” them — then I think the true problem is the simplistic, formulaic, and inspiration-less character of the “products” of today’s music industry, not plagiarism.
[*] credit where credit is due — regardless of my disgust with Haaretz’s editorial stance and general oikophobia, this was a good catch. [**] According to Jack White’s wiki bio, he was a classical music aficionado before turning to rock. It is thus quite probable that he was familiar with the Bruckner original. (1970s German progressive rock band Novalis recorded this tribute to Bruckner’s 5th.) And again, I wouldn’t want to feed all the classically-raised musician turned rockers who mined classical compositions for riffs and hooks. I often quip that J. S. Bach was the greatest jazz cat in history, Mozart the greatest pop composer, and Beethoven the greatest hard rocker 🙂
Academics, writers, musicians, video producers, publishers, and other creative professionals have all heard of the “fair use doctrine”, that under certain circumstances allows us to quote copyrighted text, images, or sounds. But what is it, in plain English?
First of all, a disclaimer: I am not a legal professional — I have merely acquired a working knowledge of the concept through my day job — and nothing I write here should be taken as legal advise.
Second, while the concept existed in common law for a long time before that, “fair use” was officially enshrined as statutory law in 1976 as 17 U.S.C. § 107
Notwithstanding the provisions of sections 17 U.S.C.§ 106 and 17 U.S.C.§ 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
[Emphasis mine in the above.]
This four-part test was actually first formulated by US Supreme Court Justice Joseph Story (1779-1845; “what’s in a name?”) in the ruling on Folsom v. Marsh: this case concerned somebody who had published his own two-volume condensation of a 12-volume biography of George Washington. SCOTUS decided that yes, such derivative works were within the rights of the original copyright owners (the plaintiff), and that Marsh, the defendant, had violated their copyright.
In plain English: Justice Story argued that by publishing an “all the good bits” abridgment, Marsh had greatly reduced the sales potential of the long original.
Let me illustrate the four-part test with a few concrete examples:
(1) Quoting another scholarly author’s argument in a scholarly work, with proper source attribution, and clearly marking it as a quotation rather than one’s own words: fair use, and common established practice.
typically, the works being quoted are noncommercial to begin with
typically, the quote is a very small percentage of the full paper or book
the “market value” of a scholarly paper is measured in citations, and your action will generally only increase those
(2) Quoting a phrase, quip, aphorism,… of another author in one’s novel, clearly marking it as a quote? Accepted practice. Typically, the quote is 0.00x % of the whole book, and this is actually a way of bringing tribute to the writer being name-checked.
(3) Quoting a few lines from a poem or song lyric in your fiction book? Aha, now this is another matter — because even a few lines constitute a nontrivial percentage of the original work, so this would fail the amount and substantiality test.
My editor taught me a serviceable workaround: paraphrasing the lyrics in my own words. It is the words that are subject to copyright, not the ideas conveyed in them. [Cf. the idea-expression divide in intellectual property law.]
And if the poem in question is in the public domain (e.g., Shakespeare, Tennyson,… or generally anything published before 1923) then of course no issue arises.
(3b) Quoting a picture or graph from one work in a scholarly work of yours? Well… as “masgramondou” put it, “one picture is worth a thousand words — assume the same holds for copyright purposes”. The way I think of it: the image is a complete unit unto itself, and it would be more akin to quoting an entire chapter or section of a written work (or an entire verse or chorus of a song lyric).
And so, where for a textual quotation source referencing would be adequate, one would have to apply for copyright permission to the original copyright holder. In practice this is less of an imposition than it seems: most scholarly publishers have a (semi)automated mechanism in place where one can apply online with full personal details, details of the work being quoted, details of the work it’s being quoted in (review articles are actually the most common scenario), and commercial or noncommercial character of the derived work. (The last time I needed such permission for a paper in my day job, it cost me $0 and all of two minutes.) The licensed picture is then almost invariably accompanied by a statement along the lines of “From H. Slowcoach and L. Tortuga, Journal of Chelonian Reproduction12, 345 (1967). Copyright American Association for Herpetology. Reprinted with permission.”
(3c) Recycling somebody else’s artwork in your own commercial fiction book? Unless it’s in the public domain or you licensed it form the copyright holder, you are setting yourself up for litigation or at the very least “cease and desist” letters.
Stock photos are another matter. They are “works made for hire” from a copyright point of view: once you bought them, they are yours to use. Their use in book covers can entail other issues — such as when two authors use the same stock photo — that one may wish to avoid, but they are in a different realm than copyright infringement.
Coming back to scholarly nonfiction for a moment: The scientific world in recent years has seen the emergence of licensable image libraries (e.g., Springer Images). Particularly in the life sciences, where diagrams and elaborate artistic renderings are more common than straight plots or data visualization, such image libraries have their places, and can save money compared to hiring a skilled visual artist with the appropriate background.
(4) What about music?
• In a music-centric novel, describing musical compositions in great detail — short of actually including transcribed scores — is apparently fine.
• Using audio of a well-known popular song for an audio book or a book trailer in practice means licensing. It can get tiresome enough that people might instead hire a musician to compose something “in the style of [insert popular song]” and use that instead
• most classical compositions are in the public domain, but specific audio recordings (e.g. for use in an audiobook or book trailer) need to be licensed. As part of the “open culture movement”, there are artists that make their own recordings of classical pieces available under Creative Commons licenses: these may be a good alternative. Otherwise, you know what? Go to your local conservatory and offer to pay somebody to record the track for you.
(5) Reproductions of visual works of art
• What if I, say, wanted to use a digital image of a Renoir painting as a book cover? (Assume it’s a “literary fiction” book, since that’s what cover designers tell me such use would signal.) The copyright here applies to the photograph, strange as this might seem. Museums that allow downloading of digital images of their collection typically stipulate that such images are “for personal use only”. In some cases, if photography in the museum is permitted, one can legally visit the museum in person, take a picture (usually without a flash) and use that.
Speaking of book covers: who “owns” the copyright to a book cover? They are generally produced as “works for hire” by a cover designer, and whoever commissioned the work and paid for it owns the rights to the cover (typically: the publishing house, or the author if it is an indie publication). Recycling by somebody else as artwork for commercial publication projects without licensing or permission constitutes copyright infringement.
Very recently and importantly: Concerning the special case of “thumbnails” showing up in searches or use in product links, the Ninth Circuit Court of Appeals has ruled in Perfect 10 v. Amazon that these are a highly “transformative” use and that they are to be considered fair use. The ruling gave much weight to “the public interest” [in search engines etc.]. It also held that hyperlinking to such images does not constitute “secondary copyright violation”.
(6) What about parody?
Parody (if clearly recognizable as such) is an affirmative defense: a landmark court case on the matter is Campbell vs. Acuff-Rose Music, a.k.a., the “Pretty Woman” case. It involved the rappers 2 Live Crew, fronted by Luther Campbell (stage name “Luke Skywalker”), who had recorded their own “version” of Roy Orbison’s classic song: they had kept only the iconic bass riff (which I presume they programmed into a Roland TB-303) and chanted (I would not dignify their performance with the term ‘singing’) their own lyrics over it (which focused on such features of the woman as her derrière, hair in certain places, promiscuity—you get the drift). They had in fact approached the copyright owners (Acuff-Rose) for licensing the song for a parody but been told to take a hike, then recorded their own version anyway. The court found in their favor, ruling that parody was a “transformative” use [in the legal sense of the word] rather than a merely “derivative” one.
Marcel Duchamp’s parody of the Mona Lisa is often cited as a classic example of a transformative work
So for example, if I were to release an album and issue an ad with a picture of my own album cover, plus one of “St. Anger” by Metallica as “this is not what you will get”, I would be over the line — a picture is a complete unit, and promotional material is clearly not scholarship or commentary. If instead I drew a parody cover of a fictional album “St. Anal” by “Banalica”, I would probably be safe — but even then I might get legal advise first to be on the safe side.
Summarizing:
there is a simple 4-factor test for “fair use”
in general, scholarly use is much more permissive than commercial use
anything quoted should be a trivially small percentage of the whole work, and in particular should not be a self-contained unit of the whole work
use should not detract from the commercial revenue potential of the original
there are commonly accepted usages; there are abusages that are manifestly illegal; and there is a gray zone in between when one might wish to get legal counsel, or at the very least err on the safe side.
Media companies tend to be very aggressive (often to the point of seeming absurdity) in asserting their rights: for noncommercial use, a recent development has been Lenz v. Universal Music. (a.k.a. the “dancing baby case”). The plaintiff, Stephanie Lenz, had posted a YouTube video (less than 30 seconds) of her baby dancing to the Prince tune “Let’s Go Crazy”. Universal Music sent a takedown notice under the DMCA: in response, Ms. Lenz sued Universal, and the case eventually reached the Ninth Circuit Court, which held for that
[copyright holders have a] “duty to consider — in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use”.
This almost creates the legal situation that exists in Israel — where “shimush hogen” (fair use) is legally a right rather than an affirmative defense, and one can actually sue a company for not permitting fair use. However, to be clear: this does not mean that use that is obviously not fair in the legal sense of the word now magically has become so.
Dessert
By way of dessert, here is a musical example of a “transformative work” I rather like. The original was a Rob Dougan track called “Clubbed to death” used in The Matrix soundtrack. It ironically itself starts off with a sample from an orchestral performance of Elgar’s Enigma Variations. I remember thinking “boring, but could be a good track to jam over” when I first heard it — then a guitarist named Tom Shapira recorded this amazing improvisation over it. Enjoy!
Last week the “We con the world” video by the Latma.com team (lama she-tit`atzben levad/why should you get aggravated by yourself?) became a viral success. Following complaints by Warner Music for copyright infringement, YouTube took down the video, only to be rewarded for its effort by dozens of copies elsewhere (including on PJTV.com and on YouTube itself [example]).
Clearly, YouTube has never heard of the parody defense — this type of parody for nonprofit (in this case, political) purposes has long been recognized as “fair use” in US jurisprudence.
Turns out, there is even a Supreme Court ruling that explicitly recognizes even for-profit parodies as fair use:
The story in brief: the rap group 2 Live Crew requested permission to record a parody of Roy Orbison’s classic “Pretty woman”. Permission being denied, they went ahead and recorded one anyhow, adding their trademark raunchy lyrics. Only after the recording became a hit were they sued. Eventually, the case made its way to SCOTUS.
The court found unanimously for 2 Live Crew. Under US copyright law, four criteria determine whether “fair use” applies:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The Supreme Court then found the aforementioned factors must be applied to each situation on a case by case basis. ‘”The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner’s suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair.”
When looking at the purpose and character of 2 Live Crew’s use, the Court found that the more transformative the new work, the less will be the significance of the other three factors. The court found that, in any event, a work’s commercial nature is only one element of the first factor enquiry into its purpose and character, quoting Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417. The Supreme Court found the Court of Appeals analysis as running counter to this proposition.
Justice Souter then moved onto the second § 107 factor, “the nature of the copyrighted work”, finding it has little merit in resolving this and other parody cases, since the artistic value of parodies is often found in their ability to invariably copy popular works of the past.
The Court did find the third factor integral to the analysis, finding that the Court of Appeals erred in holding that, as a matter of law, 2 Live Crew copied excessively from the Orbison original. Souter reasoned that the “amount and substantiality” of the portion used by 2 Live Crew was reasonable in relation to the band’s purpose in creating a parody of “Oh, Pretty Woman“. The majority reasoned “even if 2 Live Crew’s copying of the original’s first line of lyrics and characteristic opening bass riff may be said to go to the original’s ‘heart,’ that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim.” The Supreme Court then looked to the new work as a whole, finding that 2 Live Crew thereafter departed markedly from the Orbison lyrics, producing otherwise distinctive music.
Looking at the final factor, the Supreme Court found that the Court of Appeals erred in finding a presumption or inference of market harm (such as there had been in Sony). Parodies in general, the Court said, will rarely substitute for the original work, since the two works serve different market functions.
A case could be made that the 2 Live Crew version is a crime against music: however, it is not the function of the courts to regulate taste. The point of all this: if a parody defense was successful in this case, a fortiori the “We con the world” video should not have been a problem.
Quite amusingly, the majority opinion has the lyrics of both the original and the parody attached. Thus the “2 Live Crew”s sophomoric doggerel can be found in any major law library 🙂
Spin, strangeness, and charm 