Andy on the Road

15 November 2010

Girl Talk goes Creative Commons (but caveat sampleor)

Filed under: copyleft,knowyourrights,music,Uncategorized — Andy @ 2:51 pm

Girl Talk has a new album out today that you can download for free here.  Copyright nerds like me will note that Gillis has licensed this one under a Creative Commons license, with the attribution and noncommercial restrictions.

I’m still confirming this, but I believe this is the first CC-licensed Girl Talk album.  Unstoppable, Secret Diary, Night Ripper, and Feed the Animals all are released under Radiohead-style pay-what-you-want schemes, but not under any more liberal a copyright license.  The difference is subtle, but important: you may be able to obtain a copy of Night Ripper for free, but to get it for free doesn’t mean that you get to copy your copy and send that to your friends, or make a music video with the tracks, or perform these songs publicly.  Your rights over the copy only go as far as your right to use it, and then (if you decide to) dispose of it.  The Creative Commons license used in All Day gives you some new rights that you don’t have over Girl Talk’s earlier works: the right to copy, distribute, transmit, and remix.  You can do this as long as you provide attribution to Girl Talk and you do not do this in a way that is primarily directed toward commercial advantage.  To the consumer it makes little difference, but to the remixer the difference is stark.

So, everyone go remix the Girl Talk album and post it on YouTube?  Well, not so fast.  All Day isn’t a lone, romantic album.  Inside of All Day are samples from Jay-Z, The Ramones, The Doors, Missy Elliot, Beck, Fugazi, Radiohead, DMX, Lady Gaga, Daft Punk, MGMT, 2 Live Crew, Arcade Fire, Fine Young Cannibals, John Lennon… the list goes on.  If Girl Talk is doing as he has done in the past, he didn’t get permission to use these sound recordings.  He releases his albums at his own legal peril; Girl Talk could easily be sued for appropriation of those songs.  (He hasn’t yet, probably because of the flood of copyright lawyers that would come out and make the case that what Girl Talk is doing is fair use, giving the music industry some very bad case law to fight off the next time a sample is before a court.)

The problem with using a Creative Commons license here is one of arithmetic.  Girl Talk can only license that which he has authority to license, and he doesn’t have authority to license all of the underlying sampled works.  The sampled recordings aren’t under the Creative Commons license.  To put this in practical terms, your YouTube music video for a song on All Day may not get you in trouble with Girl Talk, but DMX could come after you for sampling “Party Up” in your video, by and through Girl Talk’s sample of the song.  Your defense is about as strong as Girl Talk’s defense.  You’ve got a fairly strong argument for fair use, but it’s a largely untested argument, and you’d be the one paying for the litigation to make that argument.  (There’s no indemnity clause or warranty of title in Creative Commons licenses.)

Gillis going Creative Commons is a strong gesture towards those of us who advocate free culture.  But as a legal matter it’s little more than a gesture.  Perhaps his will encourage broader dissemination of the album, but it does not clear the muddied waters around the album’s legality.

Now, will record companies sue you for remixing All Day?  Probably not, only because it’s such a complicated case to make with little economic return.  But will they send a DMCA takedown notice to YouTube over your remix?  Quite possibly, and the Creative Commons license doesn’t make your counterclaim any easier.

28 June 2010

ASCAP goes to war with Creative Commons

ASCAP’s HQ, a CC-licensed photo from Flickr user CosmoPolitician

I can’t believe this slipped by me last week: ASCAP has started urging its members to fundraise against Public Knowledge, Creative Commons, and the Electronic Frontier Foundation.  The blog ZeroPaid has two pieces on the initial ASCAP action and CC’s response.

To do a Jon Stewart meet-me-at-camera-3 thing for a second: Hey, ASCAP.  As I’m sure our fellow music industry members at the RIAA can tell you, it’s never wise to engage in a public war against people the general public overwhelmingly like.  It doesn’t do our industry any favors.  But what’s far worse about what you’re doing here is you are blatantly misstating the nature of things.

Creative Commons is not about destroying copyright or artist rights – quite the opposite.  CC is about allowing artists the freedom to decide for themselves exactly how much control they wish to assert over copyright.  As any US copyright scholar will tell you, our scheme of copyright is all about artists and authors a limited monopoly on expression in order to encourage them to create and disseminate works.  The exclusivity we give comes at a cost, however: the monopolies we grant to authors necessarily prevent the general public from doing certain forms of expression.  We’re okay with this because we believe (or strive to believe) that the net result of our system is that more works are created.

Creative Commons allows us to fix a deadweight loss in the system – authors who are “over-incentivized” can, at their control and discretion, give back to the public the monopoly rights they determined are unnecessary for them to create and disseminate.  The beauty of CC is that the decision is left in the hands of the artist to decide for themselves.

Now I consider myself pro-artist, notwithstanding my professed leanings in areas of copyright policy.  And I’ve taken heat from my friends by standing to defend your lawsuits against bars and restaurants that do not pay their PRO fees.  But I do so because I believe the ends justify the means: public performance royalties are often a necessary ingredient of the royalty-mix that allows songwriters to make a living.  When an artist decides for her or himself that they don’t need a public performance royalty – say, by declaring attribution is enough through a form of Creative Commons license – they signal a contrary preference, and we should respect that decision.

At my most charitable, I see what you’re doing as being over-paternalistic, deciding that artists cannot decide for themselves what rights they need to assert in order to create their works.  What I truly think is going on is you’re annoyed that Creative Commons cuts ASCAP and the other PROs from receiving fees in certain circumstances, meaning you have less of a royalty pool to dish out later (and collect administrative percentages on top of).  Perhaps I am being cynical, but why else would you attack Creative Commons? It’s the same reason why you decided to claim that a cell phone ringtone is a public performance: if it is, you get paid; if not, you don’t.  So don’t pass this off as an artist rights issue.  To act in the artists’ interest would be to allow them the choice.  What you’re doing is something else entirely.

Update: More and more folks are weighing in on this one: here’s an ad hominem piece by David Israelite of the NMPA, Gigi Sohn of PK’s response, and an assessment from Wired’s (always amazing) Threat Level blog.

Coincidentally, this week I’ve been going through William Patry’s Moral Panics and the Copyright Wars again.  In that book Patry talks of how use of folk devils and hyperbolic metaphors is killing our ability to have a cogent debate on this stuff, which is essential to the development of constitutionally sound copyright policy.  This present fight is proving his point all too clearly.

I should also note that the contents of this blog, to the extent they are not owned and licensed by another party, are licensed under a Creative Commons Attribution Noncommercial Share-Alkie 3.0 license.

21 April 2010

Downfall parodies removed from YouTube

Filed under: copyleft,snarkbutter — Andy @ 8:41 pm

Gosh I wish I had time right now to write about Constantin Films taking down a bunch of the Downfall parodies, but it’s finals season out here. This meta-Downfall parody will have to do:

Update: Here’s another one, purportedly from EFF:

9 March 2010

EFF on DMCA, 12 years later

Very quickly between classes here, I want to let you guys know that, as Techdirt notes, EFF has recently released their anual analysis of the Unintended Consequences of the DMCA.  It’s always worth a read.

It’s important to keep in mind as we all try to get inside the minds of those negotiating the much-discussed-but-little-understood ACTA treaty, that (at least for me) the problem is not that the law will directly change American law.  Ben Sheffner makes an excellent case as to why this is unlikely to change American law, and, aside from the three-strikes concern, I have no reason to doubt this claim.  The problem I have with ACTA – aside form the secrecy and the lingering Internet cutoff threat – is that it will lock in DMCA-like provisions in the rest of the world.  It will become harder to act on the advice of organizations like EFF and modify our (admittedly already-codified) law.

This is, in many ways, rescaling one of my favorite arguments in favor of federalism: when states are free to regulate individually, the states can function as “laboratories” experimenting in policy judgments to solve common problems.  States in turn can learn from each other and adopt regulations accordingly, and the greatest policy structures will ideally prevail.  I’m not saying the DMCA is uniformly bad, but I can’t believe that it’s the best we can do to solve the complicated intersections of technology, security, trade, and copyright.  I bet, left to their own devices, other countries can do far better, and we should not be foreclosing this experimentation.

18 January 2010

Excellent documentary “Copyright Criminals” to air on PBS tomorrow night

Filed under: copyleft,intellectual property,lawsandsausages,music,oyez — Andy @ 3:32 pm

While my friends in MA may have other coverage to keep them glued to the screen, if you find yourself with some free time tomorrow night you should definitely catch Copyright Criminals, a documentary by Kembrew McLeod and Benjamin Franzen. I got a chance to see this as part of the Future of Music Coalition Policy Summit back in October and found it inspiring, entertaining, and thought provoking. (So thought provoking, in fact, that an entire conference panel was dedicated to discussing it the next day, and it lead me to draft a law journal article on this topic.)

From the movie’s website comes this description:

This documentary traces the rise of hip-hop from the urban streets of New York to its current status as a multibillion-dollar industry. For more than thirty years, innovative hip-hop performers and producers have been re-using portions of previously recorded music in new, otherwise original compositions. When lawyers and record companies got involved, what was once referred to as a “borrowed melody” became a “copyright infringement.”The film showcases many of hip-hop music’s founding figures like Public Enemy, De La Soul, and Digital Underground—while also featuring emerging hip-hop artists from record labels Definitive Jux, Rhymesayers, Ninja Tune, and more.

It also provides an in-depth look at artists who have been sampled, such as Clyde Stubblefield (James Brown’s drummer and the world’s most sampled musician), as well as commentary by another highly sampled musician, funk legend George Clinton.As artists find ever more inventive ways to insert old influences into new material, this documentary asks a critical question, on behalf of an entire creative community: Can you own a sound?

As I argue in my note (as much of which I will post as I can in the spring), sampling has become an integral part of our musical identity, and extends naturally from earlier traditions of borrowing which go as far back as music itself. The sampling clearance process as a business is plagued with problems which stile creativity. But this is a complicated business with many, many players, and each wants both a say and a cut of the profits. Copyright Criminals does a great job highlighting many of the key players here: the samplers, the sampled, and the various agents and managers involved in the sampling process.

The documentary also has a DVD release slated for 26 Jan, and as Creative Commons points out there will be a release party tomorrow night in Brooklyn (at the Brooklyn Bowl) with the likes of EL-P, Eclectic Method, and DJ Spooky.

Check your local listings for showtimes. (In DC: WVPT and WCVE-TV air at 10PM tomorrow, WETA airs next Sunday a midnight; in MA: MPBN, CPTV at 10PM tomorrow, WGBX World (‘GBH 44.2)  on Wednesday at 9AM, 3PM, and 8PM, NHPTV Saturday at midnight, Sunday at 11PM).

7 January 2010

What the U.S. could have celebrated on Public Domain Day (and what we can celebrate)

Filed under: copyleft,huh.,intellectual property,lawsandsausages — Andy @ 1:03 am

Copyright duration is always calculated relative to the calendar year, which means that every January 1st a new batch of works enters the public domain. We IP geeks mark the occasion by celebrating Public Domain Day (along with that other January 1st holiday). By entering the public domain third-party creators are now free to join the original author in disseminating, analyzing, selling, remixing, and doing all sorts of interesting things with the work; the work becomes part of our collective cultural identity.

… at least that’s what should happen. But as Ars Technica, Creative Commons, and public domain guru James Boyle all note, no published work in the United States will enter the public domain again for nearly another decade, thanks to recent copyright extensions. So while other countries are enjoying increased access to hundreds of works, we will still be waiting for the works of Robert Frost, George Gershwin, Cole Porter, and Aldous Huxley to come down from their 95 years in copyright. Assuming the work was published in compliance with the formalities the Copyright Act had at the time, no work published after 1923 will enter the public domain until 2018.

You can click those links above to see the sad news about what we can’t use freely thanks to our vastly overreaching copyright laws. I’m here to tell you some good news. In fact, a small class of works did find their way into the public domain this year in the U.S.. But don’t get too excited.

To understand what entered the public domain you need to know a little history. For over a century the law in the US recognized a “common-law” perpetual copyright for unpublished works. While U.S. copyright law kicked in and the duration clock began ticking whenever a work was published, the author forever maintained the exclusive right to publish their work first. When Congress revised the Copyright Act in the 1970s they sought to do away with this (as we were now adopting a new life-of-the-author-plus-some-years system for calculating duration), but didn’t want to immediately inject all these unpublished works into the public domain. So the 1976 act provided a compromise, encouraging holders of unpublished work to publish. That compromise is 17 U.S.C. § 303, which grants copyright protection until 2047 (!!) for any work not published when the 1976 Act went into effect (January 1, 1978), but published between that point and December 31, 2002. After that, the unpublished work would enter the public domain in the regular life-of-the-author-plus-fifty-years cycle (extended to life+70 years in the 1990s).

So, any work whose author died in 1940 and was either published after 2002 or never published, entered the public domain on January 1st. So go make some cool mashups, all you people out there holding onto unreleased drafts by F. Scott Fitzgerald, Emma Goldman, Leon Trotsky, Alfred Ploetz, Paul Klee, Nathanael West, or Philip Francis Nowlan. Happy Public Domain Day.

3 October 2009

Mojo Nixon to put entire catalogue online, for free

Filed under: copyleft,huh.,intellectual property,music,seriesoftubes — Andy @ 2:40 pm

(Mojo, as captured by Flickr user kathyp.)

Digital Music News is reporting today that psychobilly legend Mojo Nixon is going to release his entire catalogue – over 150 songs – online for free download, alongside the debut of his latest album, Whiskey Rebellion (also free).


“I’m just the kind of crazy person to do it,” Mojo told Digital Music News in a phone conversation.  “What do I have to lose?  I’ll make make more money off of this in the long run.” […] The Orchard is now preparing an official release on the matter, pending various executive approvals.  “Getting all 150 tracks, that might be like having a bacon sandwich with sausage on it.  It’s like chocolate ice cream with chocolate syrup,” Mojo shared. [Link added for reference.]

I don’t put this up here suggesting this is the way to go for everybody.  Indeed, Mojo’s 1980s releases on Restless Records might cause The Orchard some trouble during those “executive approvals.” Restless would probably be more into getting their catalogue out there for free before they were bought out by WMG.  Nevertheless, it’s a fascinating step, and something to talk about during the Future of Music Coalition Policy Summit over the next few days.

28 September 2009

An introduction to sampling

Amen_break_sample_image(waveform of the “Amen Break”)

Carleton (and before him James Nord and YouTube user mobius32) brings to my attention this excellent video about the “Amen Break” – one of the most important 6 seconds in recorded music, originally recorded by The Winstons.  Check it out:

This is loosely related to a journal article I am writing on sampling rights.  I don’t think I’ll be getting as abstract as the “cultural public domain” argued here, and my conclusions might cut directly against some of mobius32’s arguments here, but his concern about copyright re-appropriation and the incoming clash between copyright law and digital sampling are certainly right up my article’s alley.  And I’ll certainly be taking up the Bridgeport Music case mentioned in passing towards the end of the clip.  This is a must-watch to understand the foundations of many of our modern discussions on sampling rights.  Check it out.

18 July 2009

Jamba Juice’s new advertising technique is despicable

(Thanks to the eminent Mr. John Hodgman for the TwitterScoop)

There’s a ripoff happening online that’s caught my attention this afternoon.

David Rees is a humorist best known for creating cutting, heady, sarcastic comics using clip art and simple speech bubbles.  Highlights of his work include My New Fighting Technique is Unstoppable, My New Filing Technique is Unstoppable, and the excellent Get Your War On, now available as a complete anthology book.

Get Your War On highlighted the mass hysteria and empty logic surrounding the US “War on Terror,” and ran from the beginning of the Afghanistan invasion through the end of the Bush presidency.  The comic prominently features two characters who are never given a name, but are sometimes referred to as “accounts payable” and “accounts receivable.”  A sample comic:


Apparently GYWO made a lasting impression on an employee or ad agency contractor over at fruit smoothie enterprise Jamba Juice, as the company featured the two characters on a recent advertisement for a “Cubicle Picnic” contest (these are stills from a flash video which runs when the website starts up):


Goes without saying, but Rees was not to happy with his anti-corporate comic being used as a blatant, “viral,” corporate shill.  On his blog he is now asking for a boycott of Jamba Juice, railing on the comic in general, noting the use of the exact same word balloons, insulting Jamba Juice drinkers, and ending with this remark:

Whoever made this ad is probably a 22 year-old “creative” at some ad agency in Tech Valley, CA. Way to think outside the box, sonny. Have fun snorting cocaine at the nightclub you go to with your friends who work at Twitter or wherever. And no, Adult Swim will NOT buy your stupid cartoon you’re developing with your housemates about four guys who work at an ad agency but are secretly lobsters.

Goddamn, I need to get Code Pink on the case about this. I’ll take this shit to the Supreme Court and live-blog my own lawsuit. Judge Sotomayor better side with me.



Were the two of Rees’ own creation this would be an open and shut copyright case.  The tricky part is, the clip art characters are in the public domain.  (At least according to Rees in his post; I’ve yet to verify that.)   Even so, copyright law does permit one to claim ownership of original creative contributions to existing public domain works – like the layout of an anthology of public domain art or the text Rees adds to the speech bubbles in GYWO.  But is a particular design of a speech bubble enough?  Should it be?  Any IP nerd will quickly tell you an “idea” alone is not protected; but while the idea of doing a comic based on a depressing, stale office environment using public domain clip art cannot be protected under US copyright, has this crossed over from being the “idea” of a GYWO-like comic to a cognizable claim of infringement?  Could you, or should you, be able to claim that while Rees can’t claim copyright infringement from use of a public domain work, he should be able to claim it when Jamba uses the same two public domain works in the same context?

I’m rarely (maybe never) one to advocate an expansion of intellectual property law, and I’m trying very hard to imagine how I would feel if Rees ripped on Jamba Juice instead of the other way around, but I feel as though the law should provide remedy for this sort of shameless ripoff.

Perhaps the best remedy is found under trademark.  Trademark law is a means of helping the public identify the origin of goods, allowing manufacturers to protect their brand identities against other market participants creating stopping confusingly similar products.  In short, trademark law is why I can’t go into my kitchen, develop a new soda, call it “Coca-Cola” (or “Coce-Kola”), and start selling it in stores. Within the field of trademark law is a term of art – trade dress – to reference protections provided over layout, packaging, and other unique characteristics of a product which, if copied, can cause confusion in the marketplace even if the copier didn’t use the name directly.  In other words, trade dress is why I can’t go into my kitchen, develop a new soda, put it in a red can with cursive white script in the same layout as a Coke can, and start selling it in stores.

Trade dress may provide a remedy here.  Perhaps Rees can claim that the layout of the figures and use of the speech bubbles are sufficient design characteristics for a trade dress claim.  As John Hodgman noted, “many will presume [Rees] made these ads and is getting paid. Not True.”  That said, there is no doubt David Rees fans would be upset if he started making ads for a company like Jamba Juice, and to the extent this leads fans to believe that the confusion is causing harm to Rees’s GYWO brand.  This also helps me distinguish this case from others where I might be okay with someone ripping on another company’s design: this is not done for commentary, parody, or other fair uses, and in doing this ripoff Rees will be falsely depicted as endorsing this activity.  If trademark can be said to further the public interest of distinguishing goods, while still providing First Amendment protections critical to a public discourse, a use like this – which confuses the origin of the comic and adds nothing meritorious to the public good – seems a ripe candidate for a trademark claim.

Regardless of whether courts find a cause of action in what Jamba Juice did, whoever came up with this add should be fired.  This is the sort of activity which gets a company on shame-worthy blogs like You Thought We Wouldn’t Notice, and causes people to distrust, boycott, or even sue a company.  I can’t find the agency responsible for this ad, but in digging around I found this YouTube video of Jamba Juice’s ad agent describing the Cubicle Picnic promotion.  Be it him or some other viral marketing lackey, this is plagiarism, and even if the law does not recognize fault with that the creative industry most certainly does.

Update: James Urbaniak, in addition to being the voice of Dr. Venture on the Venture Brothers, has taken up arms in this particular fight.  As his LJ post notes, the organization responsible for this ripoff ad is LA agency Neighbor.  From his post:

Their unintentionally hilarious website positions themselves as paragons of crunchy, earthy, green, do-gooder, one-world decency. According to their manifesto: “You get conscious, inspired, ethical, engaged, genuine, positive and purpose-driven work that grows your business and your people all the while making the world a better place.” Ad man, heal thyself.

Heal thyself indeed.

Update 2 (21 June): Thank you all for the comments, emails, and especially for the budding discourse.  This story has clearly grown beyond this humble little blog.  For much more coverage, see BoingBoing, Consumerist, Fast Company, Brand Flakes for Breakfast, Comics Alliance, and Timothy Buckwalter’s blog. I hope to do some more research into this trademark and copyright question and share what I find, but work keeps me busy during the week.  Until then, I defer to the comments below and the links above for more discussion.

Due to the increased traffic, I should probably quickly (create and) state my commenting policy: I do moderate comments on the blog, but as long as it’s pertinent to the discussion I’ll post it.  If you feel this is unfair let me know.

Also, a very warm thanks to John Hodgman and David Rees for their kind words and links.

5 May 2009

Welcome Back, Folks


After finals effectively destroyed any chance of keeping up with my feeds, I turned on my RSS reader for the first time in a couple weeks. I was met with over 4000 items. There’s no way I’ll be able to give these a full treatment (and to pile these all together makes for pretty scattered reading), but here are a few highlights:

I hope to be back to more regular schedule now that my 1L year is over and the summer has begun. I make my return to Boston tomorrow; can’t wait to see you all. And to my new DC friends: congrats and thanks on a wonderful year, and I hope to see a lot of you up here or down there soon.

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