Learning to be a Lawyer

Briefs are far more important than oral arguments.

2011-05-18T03:19:00.000-07:00

Jim Salter, from the Jefferson City, Mo. News Tribune:

Oral arguments usually get most of the attention when cases make it to the U.S. Supreme Court, but Justice Samuel A. Alito said those arguments are a relatively small part of deciding each case. . . .

Alito delivered what he called a "top 10 list" of things people don't know about the Supreme Court. Among them is the importance of preparation and briefs compared to oral arguments.

"Oral argument is a relatively small and, truth be told, a relatively unimportant part of what we do," Alito said.

The justices often read 500 pages or more of briefs before hearing a case — 2,000 pages in one recent case, Alito said. Oral arguments typically last just an hour.

With all of that preparation, "when we do take the bench, we are really primed for the argument," Alito said. As evidence, he noted that last year, 40 percent of the words spoken in arguments before the Supreme Court were uttered by the justices, who averaged 120 questions per case — roughly two each minute.

What has happened to our conviction? Where are the limbs on which we once walked?

2011-04-04T09:20:00.000-07:00

My students want rules that give answers. When I insist that they've got to instead give me arguments about why their positions are right, they reply, "But that's just my opinion." (And I can often here an interrogative rise at the end of that sentence.) I reply, "It is your opinion, but not just your opinion. Do you think your 'opinion' is the better one? If you convince me why, you'll have not just expressed an opinion. You'll have persuaded me that your position is the better one."

Taylor Mali says it all better:

Sunday, Bloody Sunday

2011-04-02T11:37:00.000-07:00

My students, I hope, will appreciate this video on this weekend, when they are finishing their briefs on our current problem:

Carney v. Friedman, Round 2

2011-03-26T13:43:00.000-07:00

2 views of Cariou v. Prince

2011-03-25T20:56:00.000-07:00

From the Guardian:

I would probably feel more generous towards the famous artist Richard Prince, who has been ordered to destroy a series of works found to have infringed the copyright of photographer Patrick Cariou, if it were not for the fact that I happened to spend yesterday looking at the founding masterpieces of modern art – at Manet's Olympia, and the enigmatic vegetable form of Rouen cathedral painted by Monet – in the Musée d'Orsay in Paris. Modern art started as such a great experiment, such an awakening of the eye and mind. And it has come to this? Wait, before you reject this as a conservative rant. I am aware that it is lazy to dismiss contemporary art out of hand. Think yourself into a black mood about it and the next thing you know, some genuinely brilliant video installation will come along to prove you foolish. The art of today abounds in interest. But ... it also includes Prince, which has to be a point against it. Let us examine this news story. Prince and his gallery, Gagosian, have lost a case in which he was accused of taking a fistful of photographs published by Cariou, adding various daft decorations to them, and selling them as his own original artworks. He and Gagosian made millions of dollars from these "Richard Prince" works, which may now have to be repaid. None of this will damage Prince's art-world reputation. Appropriation is what he does. He was one of the original wave of American postmodern artists who questioned the very ideas of originality and authorship by taking images directly from popular culture with only minor reworkings. He revels in a piratical, bad-boy reputation, and his response to this court ruling will be the equivalent of a cheeky grin, or indeed an actual cheeky grin. The sophisticates will shrug it off, sighing at the cultural illiteracy of judges who do not understand the tradition of the readymade going back to Duchamp. . . . But sometimes – especially when you have been looking at Manet – you have to allow yourself a grumble. Critics of contemporary art are wrong to dismiss it all sweepingly because of stories like this. But it is the kind of tale about today's artworld that should make even its biggest fan wonder for a moment if we are perhaps playing a big joke on ourselves for the entertainment of posterity.

From Ray Dowd's Copyright Litigation Blog:

I am troubled. Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning. The urinal of Marcel Duchamp. The Brillo Box of Andy Warhol. Both utilitarian objects made by others and fetishized by the artists.And look at L.H.O.O.Q. - nothing original in the execution, but the Mona Lisa was in the public domain at the time. Prince is blatantly stealing.

Plagiarists take the words of others and try to make you believe that they have crafted them. But Prince's cutouts from advertising, porn and outlaw biker magazines never misled the consumer. But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it. When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it. To me, an original work of fine art properly labeled as such by a new artist is almost pure speech - or in some way pure idea - even if it includes major appropriations. Things change when the artwork is widely reproduced. When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value. Prince's "appropriation" added ten million dollars worth of value to a pile of books. Everyone knew he didn't create the original.

This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers - surrounded by the top art advisers and critics -if these people feel that Prince's value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books? In fact, Prince's prices will probably soar - scarcity and scandal drive art prices up. From a semiotic perspective, isn't Prince simply holding up a mirror to people who may not want to look at themselves or their art as art in the hands of another? And if your message is mirror-like, is it less valid? And if you don't have the verbal skills to articulate what you are doing, is that any less a mirror?

Girl Walk//All Day

2011-03-25T20:40:00.000-07:00

The New York Times reports on “Girl Walk//All Day,” which Jacob Krupnick describes as “an epic, 71 minute-long dance-music video” in which Anne Marsen will dance her way through the entire Girl Talk album All Day and up the island of Manhattan. Here's the trailer:

Girl Walk // All Day from jacob krupnick on Vimeo.

Does Gregg Gillis do nothing but copy others' creative work?

2011-03-24T06:52:00.000-07:00

Ophir Kutiel (born 1982), professionally known as Kutiman, is a musician, composer, producer and animator from Israel. He is best known for creating the online music video project ThruYOU, an online music video project mixed entirely from samples of YouTube videos which has received more than 10 million views. Time Magazine named it one of the 50 Best Inventions of 2009. Here is This is What it Became, one cut from ThruYOU:

Mike Masnick of techdirt, writes yesterday, in terms that a lawyer for Gregg Gillis would love:

[T]o hear some people talk about these things, none of this is "creative." It's all just "copying." In some cases it's outright "piracy." After all, Kutiman is using the works of others, and doing so entirely without permission. And yet, I have trouble seeing how anyone can legitimately claim that these songs are "piracy" in any real sense of the word. Kutiman is clearly a musician. That he uses a note played by someone else on a YouTube video, and then "plays" it himself, strikes me as no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar. A musician is putting different sounds together to create music. Does it really make a huge difference if that music involves someone making a note from an instrument directly themselves... or by taking the note originally played by someone else and doing something creative and amazing with it?

Imagine an actual person reading what you write.

2011-03-24T06:09:00.000-07:00

ScotusBlog interviews Ross Guberman, the author of Point Made: How to Write Like the Nation’s Top Advocates. Among the questions: What makes persuasive writing so hard? Guberman's response:

To succeed, you have to imagine a highly skeptical, highly impatient reader who will never care as much about your case or appeal as you do—and then ask yourself how you can somehow grab that reader’s attention and sustain it page after page.

I just don’t think that most advocates—legal or otherwise—imagine an actual person reading their work, let alone think about how to sway that person to their cause. That may be one of the reasons briefs used to be better when lawyers dictated them. Dictation is at least one step closer to actual communication.

You also have to channel whatever passion you feel into clarity and creativity, not into the anger and self-righteousness that drive so many motions and briefs.

Finally, the apparatus of brief-writing—the citations, record cites, defined terms, footnotes, and case discussions—can easily mask flaws in the prose and in the logic itself.

Parody, Satire, and Fair Use

2011-03-23T14:14:00.000-07:00

In Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580, n. 14 (1994) Justice Souter, writing for the Court, observed -- in connection with the distinction the Court was drawing between "parody" and "satire" -- that a work that poses little or no risk of substituting in the market for the copyrighted work may be sufficiently transformative to constitute fair use even if it does not primarily take "parodic aim" at the copyrighted work:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

Why would any musician give away his music for free?

2011-03-17T08:59:00.000-07:00

Have you ever known a Dead Head? Do you know any other band with such a devoted following? Did you know that it has been said that the Dead "may be the most profitable rock band in history." Do you think that's possible for a band that never had a #1 song or a #1 album and had only 2 songs ever that cracked the Top 40?

Maybe the money involved will make you believe:

Despite the death of its leader Jerry Garcia in 1995, Grateful Dead Productions continues to generate about $60 million a year in sales and licensing fees. Pretty good for a group that no longer exists.

Surely making that kind of money requires a fierce protection of one's intellectual property rights, right? Bono, after all, took to the pages of the New York Times to warn that without fierce protection of their copyrights the movie and television industries might suffer the fate of the music industry:

Caution! The only thing protecting the movie and TV industries from the fate that has befallen music and indeed the newspaper business is the size of the files. The immutable laws of bandwidth tell us we’re just a few years away from being able to download an entire season of “24” in 24 seconds. Many will expect to get it free.

A decade’s worth of music file-sharing and swiping has made clear that the people it hurts are the creators — in this case, the young, fledgling songwriters who can’t live off ticket and T-shirt sales like the least sympathetic among us — and the people this reverse Robin Hooding benefits are rich service providers, whose swollen profits perfectly mirror the lost receipts of the music business.

We’re the post office, they tell us; who knows what’s in the brown-paper packages? But we know from America’s noble effort to stop child pornography, not to mention China’s ignoble effort to suppress online dissent, that it’s perfectly possible to track content. Perhaps movie moguls will succeed where musicians and their moguls have failed so far, and rally America to defend the most creative economy in the world, where music, film, TV and video games help to account for nearly 4 percent of gross domestic product. Note to self: Don’t get over-rewarded rock stars on this bully pulpit, or famous actors; find the next Cole Porter, if he/she hasn’t already left to write jingles.

Of course one might ask Bono what exactly is the fate that has "befallen" the music industry. Some believe "[t]he music business didn’t die. And it isn’t dying."

Be that as it may, the Grateful Dead is an example that cannot be ignored:

Rather than prevent their audience from taping their concerts, as every other band did, the Dead set it free and encouraged tapers, hence sparking a revolution. You'd think giving their music away would have dampened their success; instead, the freebies propagated it. Even though people could get the Grateful Dead product for free, the band found itself playing in larger and larger stadiums as the fan base swelled and album sales accelerated: 19 gold albums, six platinum, and four multiplatinum.

And so on the official Grateful Dead web site you can listen to any of the weekly Grateful Dead Radio Hour, which, "[s]ince 1985, the show has featured exclusive interviews, music from the roots and branches of the band's musical family tree, and of course a generous helping of unreleased live and studio recordings." At the Internet Archive, you can listen to a seemingly endless number of those bootleg recordings the Grateful Dead encouraged, and you can download for free those that audience members made. And if that's just too much to begin to comprehend, don't worry! The Grateful Dead Listening Guide is a series of podcasts you can download to hear an expert's introduction into the Work.

Perhaps it is not such a surprise, therefore, that we have articles like the one entitled "Management Secrets of the Grateful Dead."

And you can even listen to a recording of a concert your professor attended 32 years ago right here:

Maybe we should call it Fact School

2011-03-09T13:58:00.000-08:00

A former student, Brett Seifarth, alerted me to this story, suggesting it might convince my current first year students that facts matter above all. The whole story is worth reading, but the take away sums it up well:

In law school, we learn all about the law. They don’t call it “fact school.” We learn about the law and we think we’re fancy and we show off how we can cite to cases and statutes, repelling the normal humans around us. Then as lawyers, we spend our time researching cases and statutes, and we craft our clever legal arguments, and we fall in love with them. Because facts are just stories, and anyone can tell stories. My Uncle Pete can tell stories. But he can’t cite cases or statutes. (I don’t have an Uncle Pete. It’s kind of a parable. Work with me here.) Knowing the law makes us special.

But it’s the stories that win cases. The facts.

I’ve made it a point to ask judges about this when I meet them outside of court. Every single one I’ve ever asked has agreed: Facts win cases.

Who can afford WestlawNext?

2011-03-07T07:24:00.000-08:00

Ronald E. Wheeler, Jr. of the University of San Francisco School of Law has posted an article entitled "Does WestlawNext Really Change Everything: The Implications of WestlawNext on Legal Research." The entire article is worth a read, but a key point is this one:

WestlawNext charges researchers $60 per search, and additional searches to focus or locate within the original search result also cost $60. . . . WestlawNext charges approximately $15 for each document opened within a search result.

The truly unfortunate thing is to suppose the use of WestlawNext or any other search engine constitutes research. But it also is unfortunate that law students have the use of WestlawNext for free. To use it instead of using the entire range of research resources is to become dependent on a service that one's clients will not be able to afford. And one will not be competent in the use of the resources that clients can afford.

It's interesting too, I think, that I don't use WestlawNext (despite the fact it is free to me too for educational purposes). I'd far prefer to delve into an area through secondary sources and annotated statutes, and I know where to find those (both online and off).

Glenn Gould wasn't an artist?

2011-03-03T08:36:00.000-08:00

From Riff Market, a critique of the view that Gregg Gillis is an artist (hyperlinks added):

A month or so ago, n+1 published an article by Jace Clayton called "Confessions of a DJ." First time through, my first thought was "holy shit, it's 2008 and dj/rupture just made a joke about laptop DJs checking their email during sets." My second time through, what stood out was Clayton's humility. "I was inspired to become a DJ by nights spent in an after-hours club in Boston where you couldn't see the DJ performing. The DJ wasn't an icon of cool there, he or she was a faceless person surfing the restless slipstream of musical pleasure," he writes towards the end. Clayton is one of the best DJs out there, from every possible angle. He digs deep and wide, he has style and technique, he knows the theory and could egg heads forever, but more than anything, you get the sense he'd rather you just dance. If any straight-up DJ wanted to claim he's an Artist, it's Clayton.

And yet he doesn't, and in fact you could say the piece is about Clayton refusing the title of artist. The distinction for him is a somewhat counterintuitive economical one: Artists make products, and at the moment, it's neither financially nor legally possible for the theoretical DJ-artist Clayton to make the DJ-Art-Product that he would theoretically art-sell. Instead he seems to think of himself as a technician, and his performances as careful recitals of other people's music. He's a gifted performer, in the same way that (I don't know) Luciano Pavarotti is (was?) a gifted singer or Glenn Gould a gifted pianist or Freddie Hubbard a gifted trumpet player.

At some point, I don't know when--I remember Wyatt in The Recognitions going on about this at one point--it became cooler (not sure that's the word) to be an "original artist" than a "gifted performer." I'm sure the economy has something to do with this. (Maybe the word is money-savvy.) The line in The Recognitions is

That romantic disease, originality, all around we see originality of incompetent idiots, they could draw nothing, paint nothing, just so the mess they make is original . . . Even 200 years ago who wanted to be original, to be original was to admit that you could not do a thing the right way, so you could only do it your own way.

I bring all this up not to shit on Freddie Hubbard's original compositions, but to make room for the totally fine and great possibility that Girl Talk is a technically proficient user of audio software. Let's poke out his eyes and call him the laptop Bocelli. Seriously. I mean do whatever you want here. But please let him be what he is.

Graphic Representation of Samples on Girl Talk's This is the Remix

2011-03-02T11:23:00.000-08:00

Adapted from Fast Company's map of samples on every cut of All Day
Click to Expand

And a graphic, real time representation of the samples as they play through the song is here.

The Evolution Control Committee has a new album -- and they'll sue you if you listen to it!

2011-03-02T08:20:00.000-08:00

From the Evolution Control Committee, which :"began in 1986 and continues to risk millions in copyright violation fines for what The ECC calls 'music'":

We're very pleased to announce that our new album is now finally and officially released! All Rights Reserved is now available as a double CD, on vinyl, or download.

It's just a shame you can't listen to it.

"The lawyers had concerns," ECC's TradeMark Gunderson explains. "Although we felt tracks like our 'What Would You Think If I Sang AutoTune' were clearly parody as well as Fair Use, the legal types thought they were lawsuit-bait." To give the label and the band an extra line of legal defense, the album includes a Listener License Agreement, a set of terms and conditions like those required in order to install computer software. "Fair Use or not, a track like'Stairway To Britney' could easily offend a litigious party," says Seeland Industries lawyer Sandy Kryle. "We thought the best solution would be a legal agreement that forbids anyone -- everyone -- from listening. Period."

Even with the Listener License Agreement, the product was too hot for some to handle. Both the pressing plant as well as the distributor initially refused to handle the album, saying that All Rights Reserved was too risky -- a surprising reaction in an era when even Girl Talk can't muster a single major label complaint.

"We're not crazy about the idea of suing our fans," says ECC band member Christy Brand. "But it seems to work for the RIAA."

The ECC, incidentally, is playing in Columbus this Friday.

And here is ECC's version of the silent movie classic Nosferatu, dj'd live using only soundtracks from other movies:

The world's most important 6-sec drum loop

2011-03-01T13:22:00.000-08:00

Zenga Zenga: remix steps into the political storm

2011-03-01T06:14:00.000-08:00

From the New York Times:

Noy Alooshe, 31, an Israeli journalist, musician and Internet buff, said he saw Colonel Qaddafi’s televised speech last Tuesday in which the Libyan leader vowed to hunt down protesters “inch by inch, house by house, home by home, alleyway by alleyway,” and immediately identified it as a “classic.”

“He was dressed strangely, and he raised his arms” like at a trance party, Mr. Alooshe said Sunday in a telephone interview, referring to the gatherings that feature electronic dance music. Then there were Colonel Qaddafi’s words with their natural beat.

Mr. Alooshe spent a few hours at the computer, using pitch corrector technology to set the speech to the music of “Hey Baby,” a song by the American rapper Pitbull, featuring another artist, T-Pain. Mr. Alooshe titled it “Zenga-Zenga,” echoing Colonel Qaddafi’s repetition of the word zanqa, Arabic for alleyway.

By the early hours of Wednesday morning, Mr. Alooshe had uploaded the electro hip-hop remix to YouTube, and he began promoting it on Twitter and Facebook, sending the link to the pages of young Arab revolutionaries. By Sunday night, the original clip had received nearly 500,000 hits and had gone viral.

Mr. Alooshe, who at first did not identify himself on the clip as an Israeli, started receiving enthusiastic messages from all around the Arab world. Web surfers soon discovered that he was a Jewish Israeli from his Facebook profile — Mr. Alooshe plays in a band called Hovevey Zion, or the Lovers of Zion — and some of the accolades turned to curses. A few also found the video distasteful.

But the reactions have largely been positive, including a message Mr. Alooshe said he received from someone he assumed to be from the Libyan opposition saying that if and when the Qaddafi regime fell, “We will dance to ‘Zenga-Zenga’ in the square.”

Priceless Political Speech

2011-02-25T04:03:00.000-08:00

In Master Card Int'l Inc. v. Nader 2000 Campaign Committee, 70 U.S.P.Q.2D (BNA) 1046, Copy. L. Rep. (CCH) P28,781 (S.D.N.Y. 2004), the court granted the motion for summary judgment filed by the defendant, Ralph Nader's 2000 Presidential Campaign Committee, and dismissed plaintiff Mastercard's lawsuit, which alleged, among other things, that a Nader campaign add that borrowed heavily from Mastercard's "priceless moments" television ads infringed on Mastercard's copyright in those ads. The court concluded:

The Nader Ad does add something new and qualifies as a "transformative" work. Whether it "comments" on the original is the issue in question. MasterCard's message depicted in its Priceless Advertisements is very plain and straightforward. In a series of advertisements, MasterCard presents various intangible moments that are highly valuable, yet unable to be "purchased" or are "priceless." Hence, "there are some things that money can't buy." This idea is followed by the message, that the viewer-consumer can purchase everything else with their MasterCard credit card--"for everything else, there's MasterCard." Ralph Nader's Political Ad attempts to show various ways [*43] different Presidential candidates can be bought in the "big-money arena of Presidential politics" (Def's Mem. in Supp. Summ. J. 27) and contrasts the "priceless" truth represented by Ralph Nader as the remedy for the bought and paid for positions of others. Through this depiction, Ralph Nader argues that he not only sends across his own message, but that he wittingly comments on the craft of the original, "which cloaks its materialistic message in warm, sugar-coated imagery that purports to elevate intangible values over the monetary values it in fact hawks." Id. This commentary "may reasonably be perceived." The message need not be popular nor agreed with. It may be subtle rather than obvious. It need only be reasonably perceived. Ralph Nader's Political Ad is sufficiently a parody for the purposes of a fair useanalysis, and consequently, is transformative. (footnote omitted)

William Patry on political expression using copyrighted works.

A Fair(y) Use Tale

2011-02-19T03:30:00.000-08:00

Jeff Koons proves himself once again copyright law's most important artist

2011-02-18T08:53:00.000-08:00

A Jeff Koons
Balloon Puppy

In yesterday's New York Times, law professors Kal Raustiala and Chris Sprigman write an article entitled "Jeff Koons Turns the Table on Copyright Law," focusing primarily on what Richard Posner deems "copyright overclaiming" by examining a lawsuit Koons brought against "Park Life, a San Francisco boutique that sells, among other interesting knick-knacks, these balloon-dog-shaped plastic book ends. Koons claimed that Park Life infringed the copyright on Koons’s massive balloon dog sculptures, which can be seen in many major museums around the world"[hyperlinks and footnotes omitted]:

What was Koons thinking? Maybe Koons was mischievously attempting to point out how absurd copyright law can be — after all, he’s been copyright’s victim on three occasions. But whatever his motivation in filing suit, it points out a larger problem with copyright law. Copyright grants limited property rights in original works of creative expression. It does so to induce creators to produce new works, while at the same time maintaining the widest possible opportunity for people to experience those works. Copyright is not an unlimited right, however. It is carefully hedged — there is no copyright, for example, in ideas, and there are many uses of copyrighted works that qualify as fair and therefore do not violate copyright.

But that’s the law on paper. The real world is different. As a result of lobbying by Hollywood and the recording industry, the law allows copyright owners — at least those who have registered their works with the Copyright Office — to win huge damages for successful copyright lawsuits. As a result, copyright owners have tremendous leverage to coerce potential defendants to stop engaging in conduct that may be perfectly legal. The cost of a lawsuit — even a lawsuit that seems unlikely to succeed — is just too great, unless the defendant is very, very sure they will win.

As it turned out, Park Life was very, very sure, and so they defeated Koons. But that is a rare story. And as a result, copyright often exerts a “chilling effect” on legitimate conduct that some copyright owners may decide they don’t like. The result is an uncomfortably large number of frivolous copyright claims, like Koons’s. Some of the best — i.e., the worst — examples of this can be found at an aptly-named website — chillingeffects.org. Here, for example, is the firm that owns rights in the infamous “Barney” children’s television character threatening a website which uses images of Barney as part of a parody — which is recognized as fair use. Threatening letters like this may fail before a judge. But if they succeed in making the defendant afraid to fight, they’ve unfortunately done their job.

Koons is a controversial artist. Wikipedia accurately depicts the extreme reactions, negative and positive, to his art and his methods:

Critic Amy Dempsey described his Balloon Dog as "an awesome presence... a massive durable monument."Jerry Saltz at artnet.com enthused that it was possible to be "wowed by the technical virtuosity and eye-popping visual blast" of Koons's art.

Mark Stevens of The New Republic dismissed him as a "decadent artist [who] lacks the imaginative will to do more than trivialize and italicise his themes and the tradition in which he works... He is another of those who serve the tacky rich."[36] Michael Kimmelman of The New York Times saw "one last, pathetic gasp of the sort of self-promoting hype and sensationalism that characterized the worst of the 1980s" and called Koons's work "artificial," "cheap" and "unabashedly cynical."

In an article comparing the contemporary art scene with show business, renowned critic Robert Hughes wrote that Koons is “an extreme and self-satisfied manifestation of the sanctimony that attaches to big bucks. Koons really does think he's Michelangelo and is not shy to say so. The significant thing is that there are collectors, especially in America, who believe it. He has the slimy assurance, the gross patter about transcendence through art, of a blow-dried Baptist selling swamp acres in Florida. And the result is that you can't imagine America's singularly depraved culture without him.” Hughes placed Koons's work just above that of Seward Johnson and was quoted in a New York Times article as having stated that comparing their careers was "like debating the merits of dog excrement versus cat excrement".

Niagara, the subject of
Blanch v. Koons

The photo Koons
appropriated and used
in Niagara

Regardless of his value as an artist, he has proven to be very valuable to those concerned with copyright law, figuring as a key figure in the law governing the artistic use of copyrighted work. In Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007), the Second Circuit, in holding that Koons' appropriation of a copyrighted photograph constituted fair use, based its conclusion that Koons' use of the photograph was "transformative." Seventeen years earlier, the same court had held that Koons had infringed a the copyright in a photograph Rogers v. Koons,, 751 F. Supp. 474 (S.D.N.Y. 1990), aff'd 960 F.2d 301 (2d Cir. 1992), the court held that Koons’ sculptural reproduction of a photograph infringed the copyright in the photograph.

How much is piracy hurting the publishing industry?

2011-02-18T07:57:00.000-08:00

Last year, lawyer and mega-selling author Scott Turow was elected President of the Author's Guild. He has used his new position as a platform to state his case against e-books and online piracy, most recently in a column earlier this week in the New York Times:

The Senate Judiciary Committee is holding a hearing on Wednesday on “targeting Web sites dedicated to stealing American intellectual property,” and the White House has pledged to propose a new law to address rampant piracy within the year. But writers and other creative workers should still be worried.

The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt.

They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.

In an interview last year with Media Bistro's Galley Cat (see video below), Turow talked about how author royalty rates for e-books were too low, but the larger problems for authors and publishers involved piracy. In response to that interview, David Carnoy on cnet explored the issues raised by Turow in connection with e-books, concluding, on a particularly depressing note, that it likely isn't book piracy that's hurting the publishing industry; rather, it's that so few people actually read books:

At the moment, book piracy is dwarfed by that of the music, movie, and game industries. But it is gradually growing. Shortly after the launch of the iPad, TorrentFreak took a look at a small group of popular business titles and calculated that unauthorized e-book downloads on BitTorrent grew by 78 percent on average--and that was when Apple had sold only about 300,000 iPads.

Ironically, though the early lack of standardization may have adversely fragmented the e-book market, it may have also slowed down piracy. The Kindle still has its own platform and file format for e-books, but most of the big e-reader players, including Apple, have now adopted the ePub format.

It seems that most of the EPUB files available are converted from PDF files (scans of books), but what's scary is how compact the files are (less than 1MB) and how easy they are to load into iBooks and other e-readers that support the EPUB format. Though the size of movies and games can easily exceed 1GB and take hours to download (just ask folks who own the PSP Go how they long they have to wait to download games they've legally purchased), e-books can be shared in a few seconds. It seems that it's only a matter of time before file sharers move from exploiting the "analog hole" (scanning a hardcopy book) to the digital world of cracking copy-protection schemes and stripping legally bought e-books of their DRM.

For now, readers who are upset with the rising price of e-books have taken to posting low ratings on books on Amazon. Turow's "Innocent," for instance, sells for $14.99 as an e-book, which is essentially what the hardcover costs, and certain readers have given the book one-star ratings to express their displeasure. Turow is quite aware of the situation, but still supports his publisher's pricing scheme, arguing that if you don't want to pay $15 for the e-book, buy the hardcover (or wait for the e-book to go down in price). He's right, but certain people get angry when they feel they're getting a raw deal, and, like the publishers who are free to price their e-books however they want, these protesters are free to rate books however they want. As an author, it is incredibly aggravating, because you have no control over pricing--only the publisher does.

Free markets and free speech aside, I have my doubts that higher pricing for e-books is a good long-term strategy. Alas, as we've learned from the music industry, keeping prices steady at around $10 to $12 an album has done nothing to help combat piracy and may have, in fact, contributed to it. Eventually, more people are going to go from leaving bad ratings on books at Amazon to doing something more vindictive, like uploading DRM-free EPUB files to file-sharing sites. And mega-bestselling writers like J.K. Rowling, author of the "Harry Potter" series, are finding out that readers also get angry when you don't make your book available as an e-book. "Harry Potter" books are among the most heavily pirated out there.

How much is pirating hurting the publishing industry? Well, in that same "Confessions of a Book Pirate" article, Magee cites a study done by Attributor, a "firm that specializes in monitoring content online," that claims that "book piracy costs the industry nearly $3 billion, or over 10 percent of total revenue." Most people think that figure is very inflated, but the point is there are some big numbers involved and they only stand to get bigger as powerful e-readers like the iPad become more prevalent and tempt people to acquire content without paying for it because, well, too many of them have become used to it.

If there's a silver lining, it's that people don't read anymore. At least that's what Steve Jobs said in January 2008 in The New York Times when the Kindle first appeared.

"It doesn't matter how good or bad the product is, the fact is that people don't read anymore," he said. "Forty percent of the people in the U.S. read one book or less last year. The whole conception is flawed at the top because people don't read anymore."

Starbucks parody sued for trademark (not copyright) infringement

2011-02-18T07:16:00.000-08:00

Kieron Dwyer
Consumer Whore

Graphic, 1999

In 2000, a year after Kieron Dwyer made comic books, t-shirts, and stickers with his version of the Starbucks logo, the company sued him, obtaining an injunction that prevented Dwyer from using the parody until the case was scheduled to go to court over a year later. When the case was finally settled, Dwyer was allowed to continue displaying his logo but only in extremely limited circumstances. No more comic books, t-shirts, or stickers: he may post the image on the web but not on his own website -- nor may he link from his website to any other sites that show the parody.

The precursors of today's mashup artists.

2011-02-18T06:55:00.000-08:00

There's nothing new about Girl Talk's work, though of course the wide availability, low cost, and convenience of the technology available to create it is relatively new. So too is the wide availability, low cost, and convenience of the technology to distribute the work.

Some Assembly Required, a radio-based show that featured its host Jon Nelson's own mashups, "weird[ed] out (Radio) listeners and scari[ed] many a late-night driver into questioning their sobriety level." Unfortunately, Some Assembly Required has become a thing of the past, its entire archive is available online here. Interviews with numerous mashup artists are available here, including one with Gregg Gillis. An episode of Some Assembly Required that includes an interview with "Philo T. Farnsworth," the pseudonymous spokesperson for Illegal Art, is here.

Tom Ashbrook's interview with Jon Nelson is here. Ashbrook hosts the radio show On Point. As the On Point web site explains:

Mashup music isn’t new. All the way back in the ‘60s, fans were remixing Elvis and “Blue Suede Shoes.” Eminem — Slim Shady — laid his vocal track over AC/DC and Vanilla Ice.

But we’re living in a mashed-up musical world right now. From the mainstream to the underground, songs are being sampled, pulled apart, remixed, mashed up. If you’re a fan, you know that Girl Talk does it. Danger Mouse. DJ Spooky. Negativland.

And it’s not just music. My guest today, Jon Nelson, mashes music and found sound — from old movies, laugh tracks, the news — to make what he calls the audio dreamscape of the media age.

I once had the honor of being part of a forum on intellectual property and the arts held the Cleveland Institute of Art with Mark Hosler, who founded Negativland in his basement during high school. Hosler is remarkably articulate in expressing his views on copyright and creativity. Here, for example, is the written statement he submitted before testifying to Congress in 2008. The Some Assembly Required episode featuring Negativland's work and an interview with Hosler is here. Jon Nelson's text compilation of information regarding Negativland is set forth below:

*Name: Negativland

*Members: Chris Grigg, Mark Hosler, Don Joyce, Richard Lyons and David Wills all contributed to Negativland’s breakthrough 1987 release, Escape From Noise. Chris Grigg and Don Joyce appear to have gotten involved with the project around the same time as A Big 10-8 Place was released (1983). Wikipedia’s entry on Negativland also reports that Chris Grigg has since left the band, and Peter Conheim (Wet Gate) has joined.

*Founding Member: Mark Hosler, Richard Lyons and David Wills

*Tape manipulations, digital deconstructions or turntable creations: Negativland would appear to be using multiple tools and techniques to compose, including the use of a variety of traditional and non-traditional musical instruments and samplers. In concert, I personally witnessed cart machines being manipulated by Don Joyce and turntables by Mark Hosler, so that’s tape manipulations and turntable creations, at least… I’m sure at this point the band must use some sort of digital editing software/hardware as well.

*Another genre descriptor: Culture Jamming

*Why you use this descriptor: The band is often credited with the creation of this term, (see their 1984 cassette release, JamCon ’84), and its been popularized over the years by cultural activists of all stripes. Wikipedia has an excellent entry on the subject of Culture Jamming. Here’s just a portion: “Culture jamming is the act of transforming existing mass media to produce negative commentary about itself, using the original medium's communication method. It is a form of public activism which is generally in opposition to commercialism, and the vectors of corporate image.” Check out the rest of the story, HERE.

*Location: The members of Negativland have since spread out around the US, but the band was originally from California.

*Original Location: Concord, California

*History: Negativland’s first self-titled CD was released in 1980. It was followed by Points (1981), and A Big 10-8 Place (1983).Escape From Noise was released in 1987 and from there things get interesting for reasons above and beyond the music the band was producing. Needing a reason to cancel a tour in support of the album, the band concocted a press release claiming they had been asked to cancel the tour until authorities could investigate claims that a song off of Escape From Noise had somehow influenced a real-life murder in Minnesota. The murder was real, but the connection was false. The media, however - all too familiar with similar events - ran with the story without doing much fact checking. This helped to give the band some much needed exposure, while making the news outlets look very foolish, which was of course amusing, and fodder for the band’s next release, Helter Stupid (1989), which told the story in detail. The next two studio releases were EPs. U2 (1991) got the band into some trouble, thanks to a big “U2” on the CD cover, which led Island Records to investigate the recording, where they discovered material which led to their claim of copyright infringement. Casey Kasem, another major sample on the record, also got involved at some point, and the record was yanked from store shelves. To fill the gap, the band rushed Guns to their label at the time (SST), which was released in 1992. The band has since left SST, due to these unfortunate events. Free (1993) was the next studio release by the band, and Dispepsi was put out in 1997. Neither record caused much trouble for the band, while both were well reviewed, and saw major college radio aiplay. Negativland has also done some publishing in conjunction with CD releases. Fair Use was released in 1995 and Death Sentences of the Polished and Structurally Weak was put out in 2002. Their most recent release, to date, is 2005’s No Business. Negativland has also collectively released ten or more albums of material from their long-running radio program “Over the Edge” (which airs in Berkeley, California on KPFA), and have several singles and collaborative CD releases as well. The band celebrated their 20th Anniversary with a major tour called “The True/False Tour,” in 2000.

*Motivations: Musical motivations aside, Negativland has never tried to hide their anti-consumer stance. Dispepsi, in particular, was focused entirely on the negative effects of so much advertising on American (and international) cultures. They’d like to see the end of Capitalism, at least as its currently practiced.

DJ Earworm's United States of Pop

2011-02-15T12:24:00.000-08:00

DJ Earworm's annual “United State of Pop” mashups, short mixes featuring Billboard magazine's top 25 songs of the year, have reached the Top 100 for national radio play. According to Wikipedia, DJ Earworm is the first mashup artist to have a bootleg mashup enter Billboard’s charts. But he doesn't operate purely as a bootleg artist -- he has been contacted by prominent musicians to make mashups from their source material, including Annie Lennox, for whom he created a piece entitled "Backwards/Forwards" that contains nine of her songs (and is set forth below at the bottom of this post). And on September 12, 2009, Earworm released an official Sean Kingston mashup called "A Beautiful Mashup." Here's "Blame it on the Pop," compiled from Billboard's top 25 hits of 2009, followed by "Backwards/Forwards" and "A Beautiful Mashup":

U2 v. Negativland

2011-02-15T11:33:00.000-08:00

"The facts" re U2 v. Negativland:

August 20, 1991: SST Records releases a CD single by Negativland called "U2", a tape-collage parody of U2's "I Still Haven't Found What I'm Looking For" featuring sampled and scrambled portions of the U2 song itself and a found tape of radio personality Casey Kasem losing his cool. As part of the joke, the CD packaging features the title--the letter "U" and the numeral "2"--largely and prominently with the attribution "Negativland" in much smaller letters below it.

October 5, 1991: two weeks later, a federal judge issues a temporary restraining order at the behest of Island Records and Warner-Chappell Music. "Preferring retreat to total annihilation," Negativland and SST immediately capitulate to every demand. These demands are:

Everyone who received a copy of the record--reviewers, record stores, radio stations, etc.--must be notified to return it. If they fail to comply, they may be subject to penalties "which may include imprisonment and fines". Once returned, the records will be forwarded to Island for destruction.
All of SST's on-hand stock of the record--in vinyl, cassette, and CD--is to be delivered to Island, where it will be destroyed.
All mechanical parts used to prepare and manufacture the record are to be delivered to Island, presumably also for destruction. This includes "all tapes, stampers, molds, lacquers and other parts used in the manufacturing" and "all artwork, labels, packaging, promotional, marketing, and advertising or similar material."
Negativland's copyrights in the recordings themselves are assigned to Island and Warner-Chappell. Negativland no longer own what they have created.
Negativland and SST must pay $25,000 and half the wholesale proceeds from the copies of the record that were sold and not returned. Estimated cost to Negativland is $70,000--more than they have made in their 14 years of existence.

From Wikipedia, more of interest on the entire incident:

In June, 1992, R. U. Sirius, publisher of the magazineMondo 2000 came up with an interesting idea. Publicists from U2 had contacted him regarding the possibility of interviewing Dave Evans (aka "The Edge") hoping to promote U2's impending multi-million dollar Zoo TV Tour, which featured found sounds and live sampling from mass media outlets (things for which Negativland had been known for some time). Sirius, unbeknownst to Edge, decided to have his friends Joyce and Hosler of Negativland conduct the interview. Joyce and Hosler, fresh from Island's lawsuit, peppered the Edge with questions regarding his ideas about the use of sampling in their new tour, and the legality of using copyrighted material without permission. Midway through the interview, Joyce and Hosler revealed their identities as members of Negativland. An embarrassed Edge reported that U2 were bothered by the sledgehammer legal approach Island Records took in their lawsuit, and furthermore that much of the legal wrangling took place without U2's knowledge: "by the time we [U2] realized what was going on it was kinda too late, and we actually did approach the record company on your [Negativland's] behalf and said, 'Look, c'mon, this is just, this is very heavy...'" Island Records reported to Negativland that U2 never authorized samples of their material; Evans response was, "that's complete bollocks, there's like, there's at least six records out there that are direct samples from our stuff."

The "U2" single (along with other related material) was re-released in 2001 on a "bootleg" album entitled These Guys Are from England and Who Gives a Shit, released on "Seelard Records" (a parody of Negativland's record label Seeland Records). It is thought likely that Negativland themselves were responsible for the re-release, and that U2 gave their blessing; although the Negativland website refers to this release as a bootleg, it is available from major retailers like Best Buy, Amazon, and Tower Records, as well as Negativland's own mail-order business.

Negativland are interested in intellectual property rights, and argue that their use of U2's and others' material falls under the fair use clause. In 1995, they released a book, with accompanying CD, called Fair Use: The Story of the Letter U and the Numeral 2, about the whole U2 incident (from Island Records first suing Negativland for the release to Negativland gaining back control of their work four years later). The book ends with a large appendix of essays about fair use and copyright by Negativland and others, telling the story with newspaper clippings, court papers, faxes, press releases and other documents arranged in chronological order. An unfortunate side effect of the Negativland-Island lawsuit was another one brought on between Negativland and SST, which served to sever all remaining ties the two had. To get back at Negativland (while wryly circumventing their name), Ginn later released the Negativ(e)land: Live on Tour album on SST.

Negativland's interview with The Edge is here.

It's worth noting that there's the law on the books and the law in action; despite the seeming finality of the remedy won by the plaintiffs, Negativland's U2 is available via YouTube: