Friday, August 22, 2008

From Comments at Parabasis re:copyright

So, I've been knee deep in internet rumblings this past week, which is actually wonderfully engaging even though I'm sure consensus is impossible...anyway I worked hard on this response to Issac and comments...so I "sampled" my own work and put it here...enjoy (or not)

From http://bulk.resource.org/courts.gov/c/US/510/510.US.517.92-1750.html

Capitalization emphasis mine (since I can’t get Isaac’s comments to let me italize)

"This protection is subject to an important limitation. The mere fact that a work is copyrighted does not mean that every element of the work may be protected. ORIGINALITY remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Patterson & Joyce 800-802; Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 Colum.L.Rev. 1865, 1868, and n. 12 (1990) (hereinafter Ginsburg). Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. In Harper & Row, for example, we explained that President Ford could not prevent others from copying bare historical facts from his autobiography, see 471 U.S., at 556-557, 105 S.Ct., at 2228-2229, but that he could prevent others from copying his "subjective descriptions and portraits of public figures." Id., at 563, 105 S.Ct., at 2232. Where the compilation author adds no written expression but rather lets the facts speak for themselves, the expressive element is more elusive. The only conceivable expression is the manner in which the compiler has selected and arranged the facts. Thus, if the selection and arrangement are original, these elements of the work are eligible for copyright protection. See Patry, Copyright in Compilations of Facts (or Why the "White Pages" Are Not Copyrightable), 12 Com. & Law 37, 64 (Dec. 1990) (hereinafter Patry). No matter how original the format, however, the facts themselves do not become original through association. See Patterson & Joyce 776."

2 notes
a) I included the text about Carter because I thought contextually it was essential
b) The finding regarding a phone book lacking originality and therefore not being protected by copyright… is not immediately relatable to a undoubtedly copyrighted recording or literature of the 20th/21st century that’s authors or immediate family are still alive.

Perhaps certain forms of sampling fall under the heading of “original arrangement”?

So what justifies an original arrangement? Do we have a ruling on that? See cause I could argue that if an audio sample is a recognizable replication of copyrighted material then it is arguably NOT original and therefore potential copyright infringement.

So, if some wants to argue that a certain length of time (as in sample) or a certain amount of linear replicated verbiage (as in literature) has to be exceeded or the use is fair use…I can get that (but can we agree as to the duration of sample).

Elsewhere…(cue batman music but only if it has finally entered the public domain)

After careful reading I must concede that the Supreme Court did say “The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.”

(ideas and information as separated from the work itself can be a sticking point…but please indulge me and proceed on…)

But the court also states that whereas it is not the primary objective, it still is a recognized immediate objective.

From http://bulk.resource.org/courts.gov/c/US/510/510.US.517.92-1750.html

"The immediate effect of our copyright law is to secure a fair return for an `author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good."

Perhaps we are both right? (that's no fun)

or is the court saying that by immediately securing the fair return of an author the ultimate achievement is in the best interests of the public good?

or is the court saying that theft is acceptable if one can argue that the theft enriches the public good? i.e. Theft of private property via eminent domain is acceptable if it ultimately leads to a public good?

“But the ultimate aim is, by this incentive, to stimulate artistic creativity”…Question by which incentive? See, I interpret the incentive to be the “immediate effect” it refers to in the previous sentence. Perhaps someone else refutes that?

I believe that by denying one individual the legal opportunity to replicate the original work of another copyrighted author you are stimulating the would be replicator to create something wholly different wholly original. It is by insuring the rights of one author that you simulate the would be sampler to create something original rather than replicated.


Anyhooo....

To merely the cite...

“The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.”

...without a fuller reading of the Court's findings as justification for sampling copyrighted materials as in an instance like the Grey Album seems specious.

Or perhaps I could call it “selective sampling” of the court’s ruling into an original finding?

It has been stated, somewhere perhaps Lethem, that Collage has been the predominant form of creative expression for this century and arguably the previous century.

I’ll grant that point. But perhaps it is via a combination of the information availability and copyright law that that period is coming to a close, or if not a close at the very least to a higher stage of accountability. Historical precedent does not always justify immediate behavior (for an example civil rights)

If there truly are no new ldeas left to discover, those who consider themselves creative have to incorporate diligence into their craft to sincerely attempt to express a pre-existing idea in a new way …or… respect the wishes of the copyright protected author until the original expression passes into public domain …or…accept the risk and revel in infringement before the deserved financial repercussions manifest civically.

No comments: