(OT) Copyright in a Sampled World...

["Kevin Mulvihill" <kmulvihill@mediaone.net>]

Well, I've been reading most of this thread. Interesting too. But
incorporating samples, and particularly music, created by others and used
without permission or compensation seems to be a real sticky point for me.
I'm struggling. Caliban, I was with you in your message below until the 
very
end. There, you talk about how "absolutely essential" you believe the
concept of copyright law is, but you yourself consciously do not, in
practice, adhere to it. I can see from your posts that you are very
intelligent, so let me ask you: does this seem like a double standard to
you, or is there some way to reconcile the two conflicting positions?

In your long message below, when it comes to the question of the artist
doing what they want to with another's artistic work, you're suggestion,
apparently, is to do what you wish, claim 'fair use' - and hope no one sues
you. Upon closer inspection, however, this doesn't seem to me to be a very
effective legal or moral counterargument - not if you have hope of ever
earning any money from your music anyway.

Section 107 of the Copyright Act of 1976 says that the fair use of a
copyrighted work for purposes such as criticism, comment, news reporting,
teaching, scholarship, or research, is not an infringement of copyright. It
goes on to say that in determining whether the use made of a work in any
particular case is a fair use the following factors are considered:

- the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the
copyrighted work.

So, Caliban, I'm just wondering: assuming that you do want to earn some
buckolas from your music, how do you legally and morally justify your use 
of
samples (meaning music created by others and used without permission or
compensation) under the fair use doctrine?

Kevin



> And therein lies the rub. There HAS to be an acceptable middle ground!
> It's clearly most beneficial to artists from an *artistic* standpoint
> when they can freely sample and derive from any and all media, but then
> there's no benefit to creating art -- you make something and say "look
> what I did!", but then anyone can grab it and run off and do whatever
> they want with it. When we say it's *okay* for anyone to do whatever
> they want, we very quickly run into the problem of people running out
> and doing things we don't like. And when we say it's NOT okay, that you
> have to have the original artist's permission, we very quickly run into
> the opposite problem of artists who won't let you do ANYTHING.
>
> And that's my main problem with copyright. A lot of the people who own
> copyrights aren't artists. An artist can be consulted; you can go to an
> artist and say "I want to do this with your stuff, is that okay?" -- and
> if the artist likes what you're doing, chances are he's fine with it.
> But copyright is often held by corporations and heirs who don't have any
> actual sense of the ART -- only the ownership. Their perception of a
> sample or a melodic groove is simply that this is a commodity which can
> be sold, and thus we have notions of audio "theft". It's very neatly
> circular; if the product didn't have value, you wouldn't have used it.
>
> It gets worse. When you combine this notion of art as property with an
> artistic temperament, many independent artists will not only protect
> their property rights in a given piece, but also take offense at any
> effort to license those rights -- objecting that this treats their work
> as a product which can be bought, and trivialises the artistic value of
> the work. You can't use it without permission, because this doesn't
> respect the rights of the author; you can't get permission, because this
> doesn't respect the sanctity of the art.
>
> Luckily, we have the concept of "fair use". Not that it's actually any
> good until you get to court, but you can usually cast enough doubt on a
> potential lawsuit to get it dropped as long as you have a reasonably
> decent argument their lawyers will look at and say "actually, he has a
> valid legal position".
>
> I don't like copyright law as it stands. I think it lends itself too
> easily to abuses (one of which I perpetrate myself: deliberate
> exploitation of the nebulous definition of fair use). But copyright law
> as a concept is absolutely essential to the maintenance of an artistic
> community at *all* in a capitalist economy.