Fascinating discussion! I know we have a few lawyers here, but in the end the people who can gain are those in the legal profession when such disputes happen...
It doesn't matter whether its intellectual property, product, physical property, recordings, songs, copyrights, delicious cupcakes or refried bean burrito farts. The point is, no one gets to enjoy them until someone actually creates them.
And no one will have the time or inclination to create them because they will be too busy working part time jobs to try to support their family. But if I have the talent to create something that for whatever reason is valued by society then I should have the sole right to enjoy the fruits of that creation and perhaps will be moved to create even more stuff that society enjoys. And if I die before the value of that creation is exhausted then my heirs should also be able to profit from that creation.
Think about it, if anyone can profit from a creation once the original creator dies its going to be open season on artists. All I have to do is have the creator murdered and I can sell all the copies I want. Talk about your one hit wonder.
Now how long that sole right to enjoy the fruits should last I don't know. But there are laws on the books today, maybe they are for the right amount of time or maybe they aren't but the law is what we have to deal with, not some idealized hippie commune water should be free man way of thinking.
Right now you and I can enjoy an rousing chorus of Jingle Bells or Silent Night, make recordings of it and sell it to anyone who will buy it and we won't have to pay anybody for the rights to do so. And that is where Robin Thicke went wrong. He should have sampled Jingle Bells instead of Got to Give it Up.
This conversation has evolved from a simple pop culture distraction into the weeds of the finer points of copyright law (that's why I love this place). But the premise of my original post was not what US Copyright law should or should not be, my premise was simply that thieving wankers should not be allowed to prevail because that is far worse for artistry and creation than anything that flows from the Marvin Gaye court decision.
Wasn't one of you going to name your backing band the Thieving Wankers?
jUj - If you honestly believe your arguments have anything to do with the case at hand, I can't help that, but they simply don't. I and others have tried to fill you in on what the law is, but you refuse to listen and continue to argue against strawmen, so I'm done conversing on this topic.
greg - Yes, as per usual, everything is the lawyers' fault.
I did a little bit of listening last night in between watching my bracket tank, and I walked away feeling like Marvin, Johnny Taylor (who according to Wikipedia, Marvin used his blueprint) and Thicke all owed money to the Bee Gees for that groove, see, e.g., Jive Talkin' (1975), so it was pretty appropriate that I used that picture up above!
(And has anybody ever been in a CPR class where they tell you to use the rhythm and tempo (i.e. basic groove) of Stayin' Alive? All those people saved by that CPR shouldn't get to be alive for free; they totally owe the Bee Gees too!)
@jackedupjazz - free cupcakes reminds me of the true winners here; the millions of kids who will download these songs and any others they want for free, apple, who will sell them the products to do it with, and google, who will make advertising dollars off the whole process.
In other words, the internet wins, and since many years ago I won the internet...
You can read up here on the Copyright Term Extension Act, aptly denigrated as the "Mickey Mouse Protection Act." Even before this corporate handout, copyright term would have been for life plus 50 (or 75) years, so Gaye's family would still own the material.
I'd forgotten that Sonny Bono was one of the prime movers of this Act.. Perhaps goes without saying that copyright law needs to be completely rebuilt in this digital age, and that that will be almost impossible in this political climate.
Nobody is going to confuse Blurred Lines with Bethoven's Symphony no 5 and nobody is going to confuse Got to Give it Up with Charlie Parker version of Cherokee
The point is there is a whole wide universe out there with plenty of room for everyone to create without leaning too heavily on what has come before, use it.
It's amazing to me that absolutely no art was created during the thousands of years before the codification of copyright laws. Sorry if I've derailed this conversation with my "hippie dippy" US Constitution talk.
And yes, I wonder what the Bee Gees' lawyers are thinking right now.
When I said the estate didn't lose anything and all that, what I meant was nobody's going to confuse Blurred Lines for Got To Give It Up, because they each have totally different and distinct things going on in them.
Stayin' Alive is the CPR song, not the stolen disco groove, but anyway it's not a matter of what you hear, it's apparently a matter of what a decent lawyer can bore a jury into seeing on paper.
To be fair to Craig he and I posted at exactly the same moment, so he didn't see my post before posting his comment. But somehow I don't think that is going to make things any better.
Thanks for that link, Thom. I at least feel more informed now. Looks to me more like writing a play in the style of Shakespeare, which even if you are aiming to capture the style might not be plagiarism. There are some similar discussions in relation to literature trying to distinguish plagiarism from mimicry (I do appreciate that the focus here is on learning, not publication, but some of the issues hold).
@jackedUpjazz, your last couple of posts depend on giving strong content to the word "create", which seems to be precisely what is in dispute. Artistic creation is pretty much never ex nihilo, and the question at issue is what the point is where influence shades over into theft.
Ignoring for the moment the real differences between cupcakes, ideas, "grooves" etc, a closer parallel to your cupcake argument would be if you make cupcakes and sell them profitably for many years (as Gaye did with his song) and then a generation later somebody wants to make something that is kind of the same shape as a cupcake, inspired by your cupcake, and uses flour and sugar and icing but arranges them in a different way and is a different color and your children want a share of their profits. And I am not saying there might not be arguments about that, but reducing it to my right to get the proceeds from what I "create" obscures all the relevant issues. What exactly did you "create"? Flour? Heat? Sugar? Refined sugar? The sequence of steps in the recipe? The feeling one gets when looking at a cupcake? The flavor? The size of egg? The average weight of a cupcake? The pattern in the icing? Which of those things need to be infringed for your "creation" to be infringed? Or do I need to break in and steal your actual, physical cupcake (which clearly did not happen in this case, it seems generally agreed there was no direct sampling)?
Exactly how many of those things to I need to change before I also "created" something? (You did not invent the basics of small, sweet cakes when making your cupcakes, so perhaps you were stealing too.)
Trying to answer that "how many" question is like trying to answer how many precise features I need to have in common with my mother before I resemble her, and getting too far into trying to specify it in law seems doomed.
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description and perhaps I could never succeed in intelligibly doing so. But I know it when I hear it, and the tune involved in this case is definitely that.
This artist proposes a "reasonable solution" to music copyright, including "compulsory licensing for samples." Quoth he, "We need new rules for plagiarism that allow for the creativity of digital copying without making intellectual property valueless." Interesting background on the current "compulsory" royalty scheme, which was devised to deal with - player piano rolls.
Under the heading of nothing new under the sun, I just read this about the 18th century:
"One pre-eminent example of a court style composer is Jean-Baptiste Lully. He purchased patents from the monarchy to be the sole composer of operas for the king and to prevent others from having operas staged." (Wikipedia, Baroque Music)
He patented opera. Not the tune, or even the groove ... the genre...and its public performance. Probably only for a particular locality, but still.
Tee Fury...speaking of copyright infringement! For those not familiar, they peddle limited edition t-shirts, almost all of which feature various TV/movie characters. How they haven't been sued out of existence yet, I am not sure. They take the stance that the images are parodies or spoofs, ala Mad Magazine. But their stuff skates awful close to the line IMO, esp in terms of selling unlicensed likenesses of actors.
I truly think part of their ability to get away with it is that the rights holders of, say, Doctor Who, know they enjoy the goodwill of their fans. They'd rather let some unlicensed t-shirts and other products get out there in the world than make waves...a small price to pay for being a cultural phenomenon.
As for the image above, if that's not a parody or spoof, I've never seen one. Still, I bet the glasses were a conscious decision to make it less of a "likeness." Of course it is not an artiste; If you ask me, the caption should have said 'Ceci n'est pas un célébrité'
@Doofy they do a lot of pop culture t-shirts and you're right many would seem to use licensed trademarked images. They had a great one a few years ago with dance moves to the Time Warp that featured different time travel figures like Marty McFly, The Terminator, Bill and Ted. Unfortunately they were using really cheap shirts.
I bought this one a couple years ago for my daughter, who is a big fan of both Dr Who and Serenity:
(I still don't understand it; I gather it makes sense if you're a fan of both shows.)
Fair enough if the creators let you get away with it, but surely the designs of these two spaceships are copyrighted. Anyway, I followed the artist of this very popular design on Twitter, and he soon started posting that people were pirating his drawing! Yes, for sure it his original work, but using other people's properties...? Copyright these days is a bit of a trip down the rabbit hole, is my conclusion.
The main use case that these sellers are legal under is, in fact, parody. They also, in general, all use original artwork. Meaning, you can't just take a screen capture of 2 movies and put them next to it and call it your own design. Someone actually painted their own version of Serenity and the TARDIS to create that shirt. If they were screencaps, I'm sure the original creators would have gone after them.
Interestingly, the BBC owns the trademark for the TARDIS even though it's based off a design for the Metropolitan Police.
As for people pirating his drawing, do you think Weird Al should not care about people selling bootlegs of his CDs? How about John Sturges, Sergio Leone, or George Lucas? Since they were just rehashing Kurosawa films why should they get any protection? I know, they have studios backing them and put all sorts of effort into making something new, but a lot of those t-shirt designers are honest to goodness artists who spend weeks or months perfecting their designs even if it incorporates existing IP.
For a good (and quick) read about how people can get screwed over by the rather flimsy copyright standards check out Kind of Screwed.
For the record, I'm not saying his drawing shouldn't be protected (it should) - But the fact remains that he's incorporating designs copyrighted by other people. Which muddies the waters a bit, in my inexpert opinion.
In fact, that same artist had another situation where some little zombie donut characters he created (right) got swiped as the logo of a donut shop (left).
Story here. The donut shop paid him, after a brief Internet kerfuffle.
I see this stuff as an amateur cartoonist - People see drawings they like and repost/reuse them any which way. Not only without attribution/link, which is generally all the artists want for noncommericial purposes - But more often than not with the signature cut off! Smart practice is to never post high-resolution images, but of course there are other ways of copying drawings. Nobody has felt compelled to steal any of my stuff, yet...
@Doofy - I get what you're saying. I just want people to have more freedom when it comes to remixing pop culture.
Have you seen Matt Groening on Portlandia? He takes a t-shirt bootlegger to court, not because of copyright infringement, but because the pun and the artwork are so bad.
I'm often not big on the small time artists going after someone else who appears to have copied "a look" from them because it's a bad precedent whether a big studio or some guy in an apartment does it. But I will say that that donut shop was completely in the wrong (they basically told people to copy the guy's artwork) and I'm glad they paid him.
There is a lot more than "copying a look" going on. Cartooonists I follow routinely find their images used by others, reworked slightly or not at all, often on commercial products. Can't find a link just now, but one cartoonist recently found her cute kitty drawing printed on a nightie for sale at H&M.
"Remixing pop culture" - Not sure I can sign off on that one, frankly. If it's sharing Harry Potter fanfics or pop song remixes with your friends, by all means. As a cartoonist, I can (and do) draw all the blue-costumed spit-curled superheroes I want, but I can't call them Superman. (As mentioned above, I think the Blurred Lines court goofed, and that rappers should be able to use samples if they pay royalties.)
Comments
@Thom
It doesn't matter whether its intellectual property, product, physical property, recordings, songs, copyrights, delicious cupcakes or refried bean burrito farts. The point is, no one gets to enjoy them until someone actually creates them.
And no one will have the time or inclination to create them because they will be too busy working part time jobs to try to support their family. But if I have the talent to create something that for whatever reason is valued by society then I should have the sole right to enjoy the fruits of that creation and perhaps will be moved to create even more stuff that society enjoys. And if I die before the value of that creation is exhausted then my heirs should also be able to profit from that creation.
Think about it, if anyone can profit from a creation once the original creator dies its going to be open season on artists. All I have to do is have the creator murdered and I can sell all the copies I want. Talk about your one hit wonder.
Now how long that sole right to enjoy the fruits should last I don't know. But there are laws on the books today, maybe they are for the right amount of time or maybe they aren't but the law is what we have to deal with, not some idealized hippie commune water should be free man way of thinking.
Right now you and I can enjoy an rousing chorus of Jingle Bells or Silent Night, make recordings of it and sell it to anyone who will buy it and we won't have to pay anybody for the rights to do so. And that is where Robin Thicke went wrong. He should have sampled Jingle Bells instead of Got to Give it Up.
This conversation has evolved from a simple pop culture distraction into the weeds of the finer points of copyright law (that's why I love this place). But the premise of my original post was not what US Copyright law should or should not be, my premise was simply that thieving wankers should not be allowed to prevail because that is far worse for artistry and creation than anything that flows from the Marvin Gaye court decision.
Wasn't one of you going to name your backing band the Thieving Wankers?
greg - Yes, as per usual, everything is the lawyers' fault.
Craig
I did a little bit of listening last night in between watching my bracket tank, and I walked away feeling like Marvin, Johnny Taylor (who according to Wikipedia, Marvin used his blueprint) and Thicke all owed money to the Bee Gees for that groove, see, e.g., Jive Talkin' (1975), so it was pretty appropriate that I used that picture up above!
(And has anybody ever been in a CPR class where they tell you to use the rhythm and tempo (i.e. basic groove) of Stayin' Alive? All those people saved by that CPR shouldn't get to be alive for free; they totally owe the Bee Gees too!)
@jackedupjazz - free cupcakes reminds me of the true winners here; the millions of kids who will download these songs and any others they want for free, apple, who will sell them the products to do it with, and google, who will make advertising dollars off the whole process.
In other words, the internet wins, and since many years ago I won the internet...
Nobody is going to confuse Blurred Lines with Bethoven's Symphony no 5
and nobody is going to confuse Got to Give it Up with Charlie Parker version of Cherokee
The point is there is a whole wide universe out there with plenty of room for everyone to create without leaning too heavily on what has come before, use it.
Sorry not hearing any thievery from Staying Alive
And yes, I wonder what the Bee Gees' lawyers are thinking right now.
When I said the estate didn't lose anything and all that, what I meant was nobody's going to confuse Blurred Lines for Got To Give It Up, because they each have totally different and distinct things going on in them.
Stayin' Alive is the CPR song, not the stolen disco groove, but anyway it's not a matter of what you hear, it's apparently a matter of what a decent lawyer can bore a jury into seeing on paper.
@jackedUpjazz, your last couple of posts depend on giving strong content to the word "create", which seems to be precisely what is in dispute. Artistic creation is pretty much never ex nihilo, and the question at issue is what the point is where influence shades over into theft.
Ignoring for the moment the real differences between cupcakes, ideas, "grooves" etc, a closer parallel to your cupcake argument would be if you make cupcakes and sell them profitably for many years (as Gaye did with his song) and then a generation later somebody wants to make something that is kind of the same shape as a cupcake, inspired by your cupcake, and uses flour and sugar and icing but arranges them in a different way and is a different color and your children want a share of their profits. And I am not saying there might not be arguments about that, but reducing it to my right to get the proceeds from what I "create" obscures all the relevant issues. What exactly did you "create"? Flour? Heat? Sugar? Refined sugar? The sequence of steps in the recipe? The feeling one gets when looking at a cupcake? The flavor? The size of egg? The average weight of a cupcake? The pattern in the icing? Which of those things need to be infringed for your "creation" to be infringed? Or do I need to break in and steal your actual, physical cupcake (which clearly did not happen in this case, it seems generally agreed there was no direct sampling)?
Exactly how many of those things to I need to change before I also "created" something? (You did not invent the basics of small, sweet cakes when making your cupcakes, so perhaps you were stealing too.)
Trying to answer that "how many" question is like trying to answer how many precise features I need to have in common with my mother before I resemble her, and getting too far into trying to specify it in law seems doomed.
Great thread by the way.
I shall not today attempt further to define the kinds of material I
understand to be embraced within that shorthand description and perhaps I could never succeed in intelligibly doing
so. But I know it when I hear it, and the tune involved in this case is definitely that.
Doomed indeed!
Craig
Interestingly, the BBC owns the trademark for the TARDIS even though it's based off a design for the Metropolitan Police.
As for people pirating his drawing, do you think Weird Al should not care about people selling bootlegs of his CDs? How about John Sturges, Sergio Leone, or George Lucas? Since they were just rehashing Kurosawa films why should they get any protection? I know, they have studios backing them and put all sorts of effort into making something new, but a lot of those t-shirt designers are honest to goodness artists who spend weeks or months perfecting their designs even if it incorporates existing IP.
For a good (and quick) read about how people can get screwed over by the rather flimsy copyright standards check out Kind of Screwed.
Have you seen Matt Groening on Portlandia? He takes a t-shirt bootlegger to court, not because of copyright infringement, but because the pun and the artwork are so bad.
I'm often not big on the small time artists going after someone else who appears to have copied "a look" from them because it's a bad precedent whether a big studio or some guy in an apartment does it. But I will say that that donut shop was completely in the wrong (they basically told people to copy the guy's artwork) and I'm glad they paid him.