May 28th, 1998
The Advisory on Law Practice in Art was formed from attendees following the Association Litteraire et Artistique Internationale (ALAI) 1996 Study Days. Whether and how copyright will subsist is a major issue as we enter the digital era. Consequently, the ALAI chose 'Copyright in cyberspace' as the subject for its 1996 Study Days. Held on 4-8 June in Amsterdam, the Study Days assembled the world's leading experts in this field to discuss the problems of copyright in a digital environment. ALPA is a project initiated to address issues raised by the Study Days, researching implications over a spread of time and case law, and serving as a counsel to artists and copyright owners.
The Advisory on Law Practice in Art has received a copy of an article appearing in "The Independent" on May 5, 1998, entitled 'I'll Name That Tune In Court, The article was sent to ALPAby The Mawdsley School of Law and Diplomacy,Wilshire University, UK, which deemed the situation suitable for review and subsequent issuing of formal statement by the select committee of the advisory board. The select committee comprises members from the US, Canada, the UK, Italy, France,The Netherlands, Japan, Israel, and Australia. A copy of the “Deconstructing Beck” release was also forwarded in compact disc format.
Pursuant to furthering the intent and aims of the Berne Convention (1896) and the Stockholm Intellectual Property Conference (1967) in a practicable manner, the Advisory on Law Practise in Art submits the following statement:
THAT the determinate contention between the parties is one of fair use.
THAT specific to the "Deconstructing Beck" release, it is significantly contestable that the work is a parody and should be evaluated under the standards determining whether parodic uses are "fair" as set forth by the Supreme Court of the United States of America in Campbell v. Acuff-Rose Music Inc.
The Copyright Act §107 lists four factors that courts should consider in determining whether a use is "fair": (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the work used, and (4) the effect of the use on the market for the original. Although the statute does not specifically list parodies among the categories of the potentially fair uses, the committee notes that for a long time works have been afforded some measure of protection under this doctrine and that the Supreme Court of the United States of America authoritatively confirmed the applicability of the fair use doctrine to parodies in the Campbell case.
Campbell emphasizes that the fair use determination calls for a case-by-case analysis and is not to be simplified with bright line rules. It affirms that all four of the statutory factors are to be explored and the results weighed together. Pertaining to the first fair use factor, the purpose and character of the use, the Campbell decision states that the focus should be on whether the copying work merely supercedes the objects of the original or, instead, adds something new, with a further purpose or different character, altering the first with new expression, meaning or message. It is indicated that this standard has been captured in the helpful adjective "transformative."
Relating the first factor to parodies, the Supreme Court of the United States of America states that "The heart of any parodist's claim to quote from existing material is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." The comment must have some "critical bearing on the substance or style of the original composition." The relevant inquiry is "whether a parodic character may reasonably be perceived."
With respect to the second factor, Campbell indicates that because parodies almost invariably copy publicly known expressive works, the fact that the original is a creative work within the core of the copyright protective purposes is not likely to be of much help in separating fair use works from infringing ones.
The third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole,presents a difficult case, because parody is humor, or, in any event, its comment necessarily springs from recognizable allusion to its object through distorted imitation. The Campbell decision makes three significant points concerning third-factor analysis:
(a) Consideration must be given not only to the quantity of materials taken, but to their quality and importance to the original work;
(b) The parody must be able to conjure up at least enough of the original to make the object of its critical work recognizable, and
(c) Once enough has been taken to assure identification, how much more is reasonable will depend on the extent to which the copying work's overriding purpose and character is to parody the original, or, in contrast, the likelihood that the parody may serve as a market substitute for the original.
Regarding the effect upon the potential market or value of the original, Campbell explicitly rejects any presumption of market harm to the original from copying involving something beyond mere duplication for commercial purposes.
The select committee has applied the standards in the Campbell decision to the "Deconstructing Beck" release. The inquiry in the first factor is whether that recording may be reasonably perceived as a new work that at least in part comments on the artist professionally known as Beck’s art. Clearly it adds something new and qualifies as a transformative work. Whether it "comments" on the original is a somewhat closer question, which the select committee has elected in Illegalart’s favor, primarily because the inherent musical aesthetic contrasts so strikingly with the serious musical expression of the artist professionally known as Beck. The select committee reasons that the Deconstructing Beck release may be perceived as commenting on the seriousness, even the pretentiousness, of the original, which achieves the effect of ridicule that the Supreme Court of the United States of America in Campbell recognized would serve as a sufficient comment to tip the first factor in the parodist's favor.
With respect to the second factor, the creative nature of the original normally will not provide much help in determining whether a parody of the original is fair use. This factor favors Geffen Records Inc., but the weight attributed to it is slight.
In assessing the amount and substantiality of the portion used, focus is only on the protected elements of the original. Accordingly, the third factor inquiry concerns what the parodist did besides going to the heart of the original. Geffen Records Inc. is entitled to protection for artistic elements exclusive to the artist professionally known as Beck . The copying of these elements, which was carried out to an extreme degree by the applied technique of Illegalart, took more of his work than was minimally necessary to conjure it up. However, Campbell indicates that the copying by a parodist of more of an original than is necessary to conjure it up will not necessarily tip the third factor against fair use.
On the contrary, once enough has been taken to assure identification, the reasonableness of taking additional aspects of the original depends on the extent to which the overriding purpose and character of the copy is to parody the original and the likelihood that the parody may serve as a market substitute for it. The opinion notes that such an approach leaves the third factor with little, if any, weight against fair use so long as the first and fourth factors favor the parodist.
The select commitee has determined that the "Deconstructing Beck" release does not interfere with any potential market for Beck’s work or for derivative works based on it. This being so, the fourth factor favors Illegalart.
THAT it is therefore advisable not to litigate under these circumstances. Litigation in cases not entailing direct piracy have been proven as not economically feasible, compromising the integrity of Geffen Records, Inc.’s exclusive recording agreement with the artist professionally known as Beck with regards to future works. THAT the existence of the "Deconstructing Beck" release will serve to increase awareness and sales of the artist professionally known as Beck in accordance with evident trends examined in related cases.
THAT the artist professionally known as Beck maintains the right, ability, and integrity to respond to the Deconstructing Beck CD through creative means and avenues, and that Geffen Records, Inc. would retain exclusive copyright ownership of subsequent creative response.
THAT further legal action in this matter will serve to increase what is deemed to be already exceptionally high media coverage, and that additional public disclosure will only increase interest in an area of expression which compromises professional artists' integrity, thus deliberately placing them at considerable further risk of being subject to appropriation through popularisation of the technique/technology inherent.
THAT litigation will serve to further the agenda of Illegal Art and associated parties, and diminish the credibility and image of Geffen Records, Inc. within its perceived target market and hence further compromise the credibility and image of the artist professionally known as Beck.
These findings were submitted as formal statement for immediate attention to the advisory board by the select committee on May 19th 1998. Reviewed for release on May 26th 1998.
Further correspondence in relation to the findings of the select committee, the statement issued by the advisory board, and criteria for review proceedure can be obtained from the Adjutant-general, at the Australian address provided.
Richard J. Alston Officer in Effective Control, ALPA
Office of the Adjujant-general, ALPA 46-48 Arden Street North Melbourne 3051 Australia Tel: +61 - 3 - 9534 9540 Fax: +61 - 3 9593 9701
++The British Literary and Artistic Copyright Association and The Copyright Society of Australia will be hosting the 1998 ALAI Study Days: " The Boundaries of Copyright: its proper limitation and exceptions" , 14 -17 September, 1998, at Queen's College, Cambridge, England. For information and application forms, contact: The Courses Registrar, University of Cambridge Board of Continuing Education, Madingley Hall, Madingley, Cambridge CB3 8AQ. Tel: 44-0-1954 210636