Preface – I don’t want to jump ahead to a discussion of infringement. We are not there yet. (Don’t worry, we will get there). This is an application of the theories we learned about and a discussion of “originality.” Half the battle in commenting on this will be constraining yourself to a discussion of those subjects without bleeding over into infringement.
In class Thursday, we pondered whether anything is truly “original” in art, be it music, film, literature, etc. We also batted around some alternative theories thrown into the mix by Mr. Blevins and Mr. Feldman.
The general consensus on whether anything is “truly original” was “no.” Even Repo Man, builds on prior works. Consider this line by Bud (Harry Dean Stanton)
I shall not cause harm to any vehicle nor the personal contents thereof, nor through inaction let that vehicle or the personal contents thereof come to harm. It’s what I call the Repo Code, kid. Don’t forget it–etch it in your brain. Not many people got a code to live by anymore.
If you don’t recognize it immediately, do a little research and find out where Alex Cox lifted this from. (It might pop up on the exam).
While Elvis Presley is iconic and a central figure in my personal religion, it is often correctly stated that he rarely (if ever) created anything “original.” Most of his most popular music was simply lifted from African American artists who, due to racism in the market, were unable to capitalize on their genius. Of course, they were not the only source of Elvis’ success.
Compare this:
With this:
Was Elvis really the next Caruso (or in this case Gigli)? Or was he just a precursor to Vanilla Ice? (At least Elvis acknowledged that “It’s Now or Never” was a derivative of O Sole Mio).
Consider this:
vs.
Curtis Mayfield didn’t just give us the foundation for Touch the Sky… compare these:
Again, set aside infringement notions and just think about the theories and the issue of originality.
(Hit “play” simultaneously on both videos. Turn off the sound for Soul Train, but watch the video for it).
Lets just presume, arguendo, that Curtis Mayfield didn’t want to give Kanye West permission to use “Move on Up.” Should we all be deprived of “Touch the Sky?” Worse than that, Curtis Mayfield probably doesn’t own the copyright to his music anymore – should his record label be permitted to decide that we could all do without Egg Man?
Maybe… but when thinking about these questions, consider the theories we talked about in class. Think about the moral rights theory. Think about the incentive theory. Consider the purpose of the Copyright Clause. We might not listen to Ice Ice Baby and call it “progress,” but one man’s vulgarity is another man’s lyric. (Cohen v. California). Sure, Simon & Garfunkel were brilliant – but can you really say that the Lemonheads doing Mrs. Robinson is not “progress?”
Reel your minds back to the film medium. I once took a class on Italian Neo-Realist Cinema in which Jennifer Stone told us “the best films are about the history of film.” In other words, a lack of originality is, at least in Stone’s eyes, a desirable quality. Well, lets take it away from the berets and cappuccino crowd and be a little more pedestrian — The fun of Family Guy or South Park is the constant references, parodies, and homages.
Which brings us back to the implied question in Burrow-Giles Lithographic Co. v. Sarony. Is the “artist” truly creating something — or is the artist merely “taking a mirror for a walk?” Does it matter? Legally or theoretically, is “originality” required? Necessary? Desirable?
Later on this semester, when we talk about infringement, we will get into the Ice Ice Baby / Under Pressure example. But, listen to the mashup below and run it through the ideas above. How much “originality” is there in this? Enough for copyright protection?
There is no set “assignment” here. Take the ball and run with it — but staying within the ring of what we have studied so far, what do you think?
Keep it under 750 words (unless you request a waiver). Comments will be closed at Noon on Tuesday, August 28.
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August 25, 2007 at 4:54 pm |
Some Kid from Jersey “Hacked” the Iphone.
As per the Yahoo article:
“There is apparently no U.S. law against unlocking cell phones. Last year, the Library of Congress specifically excluded cell-phone unlocking from coverage under the Digital Millennium Copyright Act. Among other things, the law has been used to prosecute people who modify game consoles to play a wider variety of games.
As per Wiki:
http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act
Why is it illegal for me to be playing Defense Commander on a modified game system, but is perfectly fine If I want to make calls on a modified Iphone?
I am not only the president I am also a client.
-Feldman
August 26, 2007 at 7:13 pm |
Legally and Theoretically, is originality required in copyrights? No.
Copyright law exists to provide a marketable right for the creators and distributors of copyrighted works, which in turn creates an incentive for production and dissemination of new works pg 7 Cohen Copyright in a Global Information Economy. Most European countries also recognize a concept called moral rights that protects certain non-economic interests of authors. Authors have rights to prevent distortion, destruction, or even misattribution of a work. Pg 11
Is originality required? The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low, even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be…Originality is a constitutional requirement. The source of Congress’s power to enact copyright laws in Article 1 Section 8 cl. 8, of the constitution, which authorizes congress to secure for limited times to authors…the exclusive right to their respective writings Pg 58. Keep in mind that no work is truly original. Rather all works build to some extent on earlier creations. Pg7.
The author is entitled to a copyright if he independently contrived a work completely identical with what went before; similarly, although he obtains a valid copyright, he has no right to prevent another from publishing a work identical with his, if not copied from his. Alfred Bell v. Catalada Fine Arts, Inc. A compilation is a work formed by the collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. U.S.C. Title 17 Section 101 pg 5 A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole represent an original work of authorship, is a derivative work. Id.
The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. U.S.C. Title 17 Section 103 The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the pre-existing material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. Id.
-Nilpesh Amin
Excellent analysis, but I don’t hear what YOU think. This is well done, but take the opportunity to break out of the “black letter” chains (should you so desire). -MJR
August 27, 2007 at 1:47 pm |
I think the real meat of copyright is in the area of derivatives and what constitutes same. I think the IPhone hack is a great example although the DMCA has its own issues. Originality is like asking what came first the chicken or the egg? I think the question is far to theoretical to permit reasonable agreement and therefore not truly the essence of modern copyright. And if we can agree that there really is no original, then I believe we simply argue derivatives and how much is necessary to make it derivative and therefore creative enough to be its own unique creation. No answers except to say that there should be some original thought required and not just some variant mock-up. Isn’t a mixed tape a derivative by definition?
Mark K. McCulloch
August 27, 2007 at 5:27 pm |
Is originality required? I think the Feist Court got it right when they articulated that “the sine qua non of copyright is originality…Original, as the term is used in copyright, means only that the work was independently created by the author, and that it possesses at least some minimal degree of creativity.” The Court went on to note that the requisite level of creativity is extremely low. I think under this definition (looking at it from an originality standpoint only), Elvis’s “It’s Now or Never” or Kanye’s “Touch the Sky” would certainly qualify. The purpose of copyright protection in this country is to promote the progress of science and the useful arts – whatever theories or provisions one may wish to argue simply boils done to this one purpose. If you conclude that nothing is 100% original and that each new “original” expression is built off a prior “original” expression, then it seems to me that originality is a necessary ingredient to the copyright recipe as is understood in this country. If something has no originality whatsoever how does that expression promote progress in the way of bringing something new and fresh to society?
Under the moral rights theory, however, I think originality serves a different purpose. If your theory of copyright law is based on the author “breathing life into the work” then originality may not be as important from the standpoint it would be under the incentive theory.
Regardless, I think a degree of originality is necessary to fulfill the purpose of the Copyright Clause. Parodies, re-makes of classics, etc…add enough originality (usually) to keep expression progressive. While some may find it difficult to see progress in a simple parody, for example, one must be reminded that progress can be measured in numerous ways and as long as society is continuously adding even a slight degree of originality to the mix, then I think the purpose is being accomplished.
Gail Benson
August 27, 2007 at 7:55 pm |
For some reason it really bothers me that we say nothing is truly original work. Yes, everything is built from something, but this idea takes away from the creativity of the author/producer/artist. I have absolutely no creative talent in any artistic medium. Whether it be in writing, singing, sculpting, whatever, I am pretty horrible. So when someone has unbelievable talent I hate to think that they really just built off of someone else’s idea. I’m not talking about artists like Elvis, even though Randazza thinks he’s a genius, but I mean real talent that hasn’t ripped off another’s work.
On another note, I think the originality standard is at times quite lax in certain copyright areas such as protection of characters. In Entertainment Law we discussed a case that dealt with a sequel to “Gone With the Wind” called “The Wind Done Gone.” I completely disagreed with the holding of that case due to the rip off of the characters and storyline obviously. But I think the original author is entitled to protection from sequels and derivatives of such well know stories. I think I already had this argument with Randazza about the copyright protection of original characters, but I’m just throwing it out there.
Stephanie Canglin
August 27, 2007 at 10:34 pm |
I do not have a long response to this topic. I concede to the creators of South Park, who had a hard time discovering new episode plots. So, being the geniuses that they are, they made an episode devoted to the creators of the Simpsons. “The Simpsons Did It” Episode.
August 27, 2007 at 10:35 pm |
Ok the embed did not work…Here is the link:
http://youtube.com/watch?v=WNl5IKoFPDg
August 28, 2007 at 12:25 am |
Originality of work is required for Copyright protection. The example of the Lemonheads performing Mrs. Robinson is, to me, original. The Lemonheads took that song and made it their own. I think that the change in tempo alone creates a new, original work.
However, I think a better example, and a better cover, is Ministry performing Bob Dylan’s Lay Lady Lay. The lyrics are all that these two “versions” have in common. The musical arrangement by Ministry has created an entirely different work that is easily distinguished from the Bob Dylan standard. I also don’t believe that Ministry’s version detracts from, or affects the original version in any way, shape or form. The two versions are in different genres of music, so it can’t be argued that Ministry’s version would impact sales of Dylan’s original.
August 28, 2007 at 3:42 am |
Personally, I think the “originality” issue in copyright can come down to one thing, “the right place at the right time.” Our copyright laws are “constructed to provide an incentive to create works by giving creators property rights in the products of their creativity and to provide the greatest possible public access to products of creativity in order to promote a competitive marketplace.” A perfect example of this IS music. American copyright law does not allow artist’s to copyright their entire songs, but only the underlying recording of the song. This law, of course, makes it much easier for other artists to create another work, only slightly tweaking the original, but then being able to call it their own.
The rationale behind not allowing protection for the entire song, is because of what is referred to the “Idea-Expression Dichotomy of copyright law.” In essence, the dichotomy states that in order to promote creativity, no person may protect broad or general ideas from the public by copyrighting the ideas. Copyright laws may not protect an idea, the law only protects the expression of an idea.
Taking all that into consideration, the “originality” aspect of all this is pretty fake to me. I mean, yeah , there are some truly original works, so I guess “fake” isn’t the word, I guess I would with “unfair.” It wasn’t too long ago that this country was just “getting the kicks out” of its copyright law. And it also wasn’t too long ago that this country infringed on people’s rights because of their skin color, without a blink of an eye. While both of these things were occurring, music was still being generated and money was still being made because of it.
Now I’m not going to be that person to sit there and say Elvis is the Devil and he took people’s music and never came up with an original thought in his life – far from it, I love Elvis. However, it is a fact that Elvis openly stated that he often frequented African American Jazz and Blues clubs to “perfect the style of the creation of his songs.” Not t mention, that it amazes how everyone brings up Elvis when they talk about stealing music and originality issues, when in actuality everyone from George Gershwin to The Beatles were doing the exact same thing. So I guess it depends on how you want to look at it… You can be on one side of the spectrum and accept that though the manner of which it was done might not have been the most desirable, the works of art were developed and set forth into the market. Or you can look at it from the perspective of people like Frankie Lymon or Chuck Berry and know that “originality” in the sense of copyright law means nothing unless you have the means to produce results.
- Kimberly Harchuck
August 28, 2007 at 6:15 am |
In Copyright law, originality is a perquisite to the acquisition of Copyrights. This means that the work owes its origin to the author, and must be the result of an “independent creation,” in which the author contributes a minimum degree of ingenuity. The “modicum of creativity” requirement is a central theme of the “idea expression dichotomy” and the basic principle of Copyright law. As such, only the fixed expression of an idea warrants protection, not the idea itself.
A sufficiently original work acquires Copyright protection when “fixed in a tangible medium of expression;” when its embodiment is sufficiently permanent to be perceived, reproduced, or otherwise communicated. This relatively low threshold for protection conjures up the possibility of two independent creations resulting in identical works. After all, one would have to be entrenched in a state of sheer narcissism and delirium to believe that only he possesses the knack and dexterity to create such chef d’oeuvre.
So then, what level of originality is required under the Constitution? With such vague phraseology as “…exclusive Right to their respective Writings and Discoveries” one is left without a truly definitive answer. However, if one ponders this bleak question in the context of the incentive theory, the inscrutability of is somewhat diminished. Proponents of the incentive theory posits that, in order to foster the creation of society-enriching works, the law ought to afford economic interests to the creators of these works, and that without such incentives, gifted members of society would not spend time/money creating them.
Conversely, others argue that, true artists create art for art’s sake, and not for financial gain. While this may be true for a small percentage of art-minded individuals, a more accurate observation of humankind is that we all possess an inherent will to survive; which in most cases, is contingent upon our ability to acquire essential goods/services. Without economic incentive to create, many authors would be too preoccupied with survival. Thus, providing economic benefits for creation grants authors the opportunity to allocate more of their time to innovation. Following this line of reasoning, it is fair to assume that the Drafters intended to create broad incentives for creation, as evidenced by the lack of an aesthetic-quality requirement in the Copyright clause. The clause only requires that a work be useful to “the progress of art…” Certainly, the subjectivity of “good art” has something to do with the vagueness, but when compared to the mathematical preciseness of other Constitutional clauses, it seems more deliberate. Perhaps this is why the Courts require only a de minimus degree of creativity.
With such a low threshold for originality, how does one actually acquire rights that are worth enforcing? What determines whether a work is a mere copy of an earlier work, or whether it is an original work itself? This question is more perplexing given that Copyright law acknowledges the possibility of two substantially similar works resulting from independent creations. Nevertheless, this ostensible loophole contains many caveats. Without discussing scenes a faire, parody, and satire, it is safe to conclude that some “not so original works” will constitute infringement, while others will muster the requisite originality.
Regarding the posted works, the question remains whether these works possess the necessary originality. The works that are mere covers will like possess the requisite originality for protection. A covering artist undoubtedly contributes original elements such as, style, voice, and technique. Furthermore, it is arguable that all cover records, regardless of quality, contribute to the progress of the arts. Even if a “remake” is a mistake/flop, it still contributes to progress, even if all we learn is that it was a mistake.
While I myself find a substantial amount of contemporary music worthless and lacking artistic quality, the decision regarding which music to protect, is not mine. Even an artist like Curtis Mayfield, assuming he owns the rights in his song, does not have the legal authority or theoretical right to make such a determination. Rather, American law holds that after recording & release of a song, anyone may cover it. The issue of moral rights only exists as an undertone in the prohibition against melodic alterations.
Regarding the question in Sarony; I do believe that sometimes artists actually create art. Originality in the plain sense is desirable; however, it may be a lofty goal. But if we think of progress as building blocks instead of absolute novelty, it is possible to see how slightly more than “trivial variations” maybe original.
-Salam Tekbali
August 28, 2007 at 12:18 pm |
I think what this issue comes down to is the fallacy that most people believe they can create something truly original. I think that the Bare Naked Ladies said it best in their song “It’s all been done.” The plots of today’s stories (movies, video game and books) all follow plots that can trace their origins back to the Greeks or even the earlier works like The Epic of Gilgamesh. So why bother creating anything new? Relevance, people want to see stories unfold in their era with actors from their generation. This is what compels people to see remakes of movies that are only 20 years old. Making something relevant is not limited to placing it in a contemporary setting or using a contemporary artist, translation into your language can accomplish this task. This is basically what the Romans did with the Greece Myths, but by changing the names and translating the stories they created something all together different. Well, different enough when you consider most Romans probably thought they were the originators. Of course borrowing from the works of other countries is a staple source of creativity in all forms a media (see British television for the last decade). I think my point is that very few things are truly original and the most we can hope to create is an evolution of what currently exists or to bring elements of already existing creations to a new canvas or media. This is the originality that we can contribute and thus it is what can be copyrighted. I think that this is the reason that the bar is set so low for the amount of creativity required for original works.
Artist must take their inspiration from somewhere, this much is unavoidable. We’ve all heard that it appears that people are running out of ideas. I think the information age has increase the amount of works that we can pull inspiration from. Unfortunately, anyone that can think back ~20 years or use a search engine can probably find all of your sources of inspiration. I don’t think people are getting lazier at distinguishing their works than in past times but rather it’s getting harder for people to conceal their source of inspiration. For example, Elvis’ songs, most people of the day had no idea that he was singing songs that other people had previously preformed but a small pissed off population did know the truth at the time. I think that at some point in the last two decades, a lot of artists just stop trying to conceal their sources of inspiration or it just became an impossible task. In fact some artists use the original singer or actors in their remakes of the old movies or songs, this kills me. However, few can say that the original artists object to the remakes.
I guess my conclusion is this, you can’t create something truly original but I hate the fact that most people in the entertainment industries aren’t trying anymore.
Regards,
Mark Rubio
August 28, 2007 at 1:02 pm |
Originality is such a difficult concept to put your finger on exactly. A semi-coherent argument can be made that absolutely nothing in the world is original, that all music and stories are basically derived from the same from the same bases, be it a musical scale or an ancient love story.
Originality is really in the eye of the beholder. If you percieve something to be original, then it is. a precise definition is impossible. I think that a work is original when an artist puts a sufficient amount of creativity in it and promotes to others as their own, as often the first one to publicly market or promote a product or idea gets credit for it being their original idea. For example Elvis, his music is clearly not 100% original but he put a sufficient enough of himself and his own spin on the genre, he also marketed it as his own. Another decent example of this though not cited above is Windows. It is reasonably well known that windows was essentially copied from Zerox by Apple and then Microsoft essentially copied it from Apple. Microsoft was the first to market it and protect it, therefore they own the copyright even the work was truly not originally theirs.
The moral of the story is that there is very little that is truly original, and that originality is in the eye of the beholder. If you percieve something to be original, then it is to you.
Jeff Grant
August 28, 2007 at 1:06 pm |
I think what this issue comes down to is the fallacy that most people believe they can create something truly original. I think that the Bare Naked Ladies said it best in their song “It’s all been done.” The plots of today’s stories (movies, video game and books) all follow plots that can trace their origins back to the Greeks or even the earlier works like The Epic of Gilgamesh. So why bother creating anything new? Relevance, people want to see stories unfold in their era with actors from their generation. This is what compels people to see remakes of movies that are only 20 years old. Making something relevant is not limited to placing it in a contemporary setting or using a contemporary artist, translation into your language can accomplish this task. This is basically what the Romans did with the Greece Myths, but by changing the names and translating the stories they created something all together different. Well, different enough when you consider most Romans probably thought they were the originators. Of course borrowing from the works of other countries is a staple source of creativity in all forms a media (see British television for the last decade). I think my point is that very few things are truly original and the most we can hope to create is an evolution of what currently exists or to bring elements of already existing creations to a new canvas or media. This is the originality that we can contribute and thus it is what can be copyrighted. I think that this is the reason that the bar is set so low for the amount of creativity required for original works.
Artist must take their inspiration from somewhere, this much is unavoidable. We’ve all heard that it appears that people are running out of ideas. I think the information age has increase the amount of works that we can pull inspiration from. Unfortunately, anyone that can think back ~20 years or use a search engine can probably find all of your sources of inspiration. I don’t think people are getting lazier at distinguishing their works than in past times but rather it’s getting harder for people to conceal their source of inspiration. For example, Elvis’ songs, most people of the day had no idea that he was singing songs that other people had previously preformed but a small pissed off population did know the truth at the time. I think that at some point in the last two decades, a lot of artists just stop trying to conceal their sources of inspiration or it just became an impossible task. In fact some artists use the original singer or actors in their remakes of the old movies or songs, this kills me. However, few can say that the original artists object to the remakes.
I guess my conclusion is this, you can’t create something truly original but I hate the fact that most people in the entertainment industries aren’t trying anymore.
Regards,
Mark Rubio
August 28, 2007 at 1:09 pm |
I think what this issue comes down to is the fallacy that most people believe they can create something truly original. I think that the Bare Naked Ladies said it best in their song “It’s all been done.” The plots of today’s stories (movies, video game and books) all follow plots that can trace their origins back to the Greeks or even the earlier works like The Epic of Gilgamesh. So why bother creating anything new? Relevance, people want to see stories unfold in their era with actors from their generation. This is what compels people to see remakes of movies that are only 20 years old. Making something relevant is not limited to placing it in a contemporary setting or using a contemporary artist, translation into your language can accomplish this task. This is basically what the Romans did with the Greece Myths, but by changing the names and translating the stories they created something all together different. Well, different enough when you consider most Romans probably thought they were the originators. Of course borrowing from the works of other countries is a staple source of creativity in all forms a media (see British television for the last decade). I think my point is that very few things are truly original and the most we can hope to create is an evolution of what currently exists or to bring elements of already existing creations to a new canvas or media. This is the originality that we can contribute and thus it is what can be copyrighted. I think that this is the reason that the bar is set so low for the amount of creativity required for original works.
Artist must take their inspiration from somewhere, this much is unavoidable. We’ve all heard that it appears that people are running out of ideas. I think the information age has increase the amount of works that we can pull inspiration from. Unfortunately, anyone that can think back ~20 years or use a search engine can probably find all of your sources of inspiration. I don’t think people are getting lazier at distinguishing their works than in past times but rather it’s getting harder for people to conceal their source of inspiration. For example, Elvis’ songs, most people of the day had no idea that he was singing songs that other people had previously preformed but a small pissed off population did know the truth at the time. I think that at some point in the last two decades, a lot of artists just stop trying to conceal their sources of inspiration or it just became an impossible task. In fact some artists use the original singer or actors in their remakes of the old movies or songs, this kills me. However, few can say that the original artists object to the remakes.
I guess my conclusion is this, you can’t create something truly original but I hate the fact that most people in the entertainment industries aren’t trying anymore.
Regards,
Mark Rubio
August 28, 2007 at 1:14 pm |
I think what this issue comes down to is the fallacy that most people believe they can create something truly original. I think that the Bare Naked Ladies said it best in their song “It’s all been done.” The plots of today’s stories (movies, video game and books) all follow plots that can trace their origins back to the Greeks or even the earlier works like The Epic of Gilgamesh. So why bother creating anything new? Relevance, people want to see stories unfold in their era with actors from their generation. This is what compels people to see remakes of movies that are only 20 years old. Making something relevant is not limited to placing it in a contemporary setting or using a contemporary artist, translation into your language can accomplish this task. This is basically what the Romans did with the Greece Myths, but by changing the names and translating the stories they created something all together different. Well, different enough when you consider most Romans probably thought they were the originators. Of course borrowing from the works of other countries is a staple source of creativity in all forms a media (see British television for the last decade). I think my point is that very few things are truly original and the most we can hope to create is an evolution of what currently exists or to bring elements of already existing creations to a new canvas or media. This is the originality that we can contribute and thus it is what can be copyrighted. I think that this is the reason that the bar is set so low for the amount of creativity required for original works.
Artist must take their inspiration from somewhere, this much is unavoidable. We’ve all heard that it appears that people are running out of ideas. I think the information age has increase the amount of works that we can pull inspiration from. Unfortunately, anyone that can think back ~20 years or use a search engine can probably find all of your sources of inspiration. I don’t think people are getting lazier at distinguishing their works than in past times but rather it’s getting harder for people to conceal their source of inspiration. For example, Elvis’ songs, most people of the day had no idea that he was singing songs that other people had previously preformed but a small pissed off population did know the truth at the time. I think that at some point in the last two decades, a lot of artists just stop trying to conceal their sources of inspiration or it just became an impossible task. In fact some artists use the original singer or actors in their remakes of the old movies or songs, this kills me. However, few can say that the original artists object to the remakes.
I guess my conclusion is this, you can’t create something truly original but I hate the fact that most people in the entertainment industries aren’t trying anymore.
-Mark Rubio
August 28, 2007 at 1:30 pm |
“It’s Now or Never” was based on O Sole Mio. I did not know this until right now. So what? He played with that song and made it his own. I don’t take anything away from him on that one. He made a good song-with a similar melody, but he transformed it into something completely different using his talent. There is no way that Elvis’ version is going to make an impact on the market, and there is barely anything used in Elvis’ song from O Sole Mio.
Yes. Same thing with Kanye and Curtis Mayfield. Although, the melody that Kanye uses sounds much more similar to Mayfield than Elvis to O Sole Mio. Regardless, Kanye transformed this work into something else. I don’t think Mayfield sales will be hurt by this.
Same thing with the Beastie Boys-like Kanye, they almost used a sample. The same instrument, (Bass) is used to play the same melody. Those percussion sounds as well. Again, I don’t think that the Beastie Boys version is going to hurt the sales of the former version.
South Park and Family Guy are two of the greatest television shows that mankind will ever produce. We are fortunate to live in a time where they are airing those. They do jab each other back and forth. Actually, Family guy has not made reference to the simpsons or south park. South Park is usually doing the joking around about other shows. They can do that. Didn’t we get the parody idea from Jerry Fallwell having sex with his mother in an outhouse?
That anime is very creative and very original. I don’t remember how the courts look at mashups. In this case, the two songs are being creatively edited together, creating a kind of new thing. The problem is that they are using SIGNIFICANT amounts of samples from both songs. That could be trouble…but it was very creative.
DILLON SMITH
August 28, 2007 at 2:10 pm |
[...] Writing Assignment is NOT part of your regular blog participation grade. This is graded separately (as will a few more [...]
August 28, 2007 at 2:52 pm |
Regarding originality in modern American society, there are hardly any created works which can truly be deemed original. For example, motion pictures in my opinion have been stagnant in the creativity department as everything coming out seems to have been derived from someone else’s work. For the most part you can look at any motion picture coming out and deduct the influences of the creators and the particular previously created works of which either influenced or was the sole basis for the current work.
However, the music industry (although having their own issues with copyright pursuant to the public domain issue) requires more creativity to be an original work in my opinion. There are only a finite number of notes to be combined when creating scores in addition to the creation of lyrics to correspond to the music. My point is that although various songs may have similar scores and influences, for the most part the newly created work is unique in and of itself. This is contrary to that of the motion picture industry which in my opinion has been producing movies which are the same old story with just different characters or, for one example of many The Transformers movie which is directly derived from a previously created work with the addition of my favorite movie creation aspect (note the sarcasm): poetic licensing.
In conclusion, pursuant to our American copyright laws, all of these created works are original as long as they are in a fixed, tangible medium and fulfill the definition of original. Therefore, although I disagree with certain aspects of the originality of a work, I will just have to deal with it until the law changes or something better comes along.
~ Justin Schafer
August 28, 2007 at 3:28 pm |
I think Mr. McCulloch has an excellent point. When I was in high school, I used to draw. Like one of my colleagues, I don’t have a single creative bone in my body. But I can draw. In fact, I’m quite excellent at it. I used to scour magazines and old National Geographics to find pictures to draw. Then I’d pretty much just copy the pictures I found. Of course, I changed the medium (I used pencils) and the size. My pencil drawings were photo quality. So I didn’t really add anything new to the pictures. They weren’t “original” in a traditional sense of that word. What I did was probably more of a direct copy. But even the one original work I did do (a collage) was not truly original but more of a derivative of other works.
When I think about my all time favorite movies and books, I can definitely see that they have similar plot points and characters. These archetypal images are common themes in many works. The ways in which they are utilized may differ however. To say all works dealing with common themes are copies of each other or are not truly original oversimplifies the issue. The themes may be similar, but as long as there is some new element added in to the mix, there is a new depth added to the story. The story has changed – for better or worse. Even remakes sometimes have a modicum of originality (changing the setting). (Unless we’re talking about Psycho which tried to recreate the original by emulating the original scene by scene, and changing absolutely nothing – sort of like what I used to do…)
August 28, 2007 at 3:59 pm |
In Feist, the Supreme Court stated that originality consisted of independent creation and a modicum of creativity. That as the Supreme Court said was the sine qua non of copyright. The problem in that case was the Supreme Court found no element of originality. Specifically, the court found that Rural Telephone Service Company white pages, which contained only factual information, i.e., phone numbers, addresses, and names listed in alphabetical order lacked the requisite originality because Rural had not selected, coordinated, or arranged the uncopyrightable facts in any original way. A brilliant solution to this problem was seen in Sweden. Since there were so many people of the same name, they started putting a brief note on that person after the name. i.e. Sven Magnusson (the shop owner from so & so). This would be sufficient to satisfy the originality requirement of copyright law.
Is anything truly original? Probably not, but this is not Patent law, which has the rigorous standard of novelty, i.e that the invention must not be known or previously practiced. Applying this concept to Copyright law is against the purpose of the Act, that is to promote the progress of science.
All copyright law requires is a modicum of creativity. As we saw in Bleistein, this is a low threshold which the court is not willing to decide. Is Kanye’s ‘touch the Sky” musical composition original? Yes it is, I think we all agree. He has more than likely obtained a compulsory license to sample a portion of Curtis Mayfield’s musical composition and repeated the sample over and over. Together with his lyrics, and the added beats, his musical composition is definitely original.
I think a huge problem of originality especially in music comes an issue with artists and groups who are unsigned looking to get picked up by major labels and independent labels. They are submitting their music to these labels who are using their works for their own groups. This to me is not original This is STEALING. But are these artists whose work is being used likely to do anything, NAH.
A short video clip worth checking out is found below. It is a clip from MTV diary of Timabaland, in which Busta Rhymes and Timabaland create a song. All started from Busta pressing a key on a keyboard. OH how technology has advanced.. Timbalands keyboard sure beats my Yamaha from back in the day.
Robert Johnson
August 28, 2007 at 4:34 pm |
I will add to the above post since was not aware (by my own lack of due diligence) that it was an assignment. I will keep it in line with the post about Matt Parker and Trey Stone’s work.
Originality does not matter, at least in the true sense of the concept. Our copyright protection laws do not demand true originality. It would be conceptually and realistically impossible to mandate originality. How would one gauge originality or original thought. What is lost in the discussion of originality is whether the new authors should attribute to the preceding authors. It appears that the answer should be in the affirmative. Creative work is not conceived in a vacuum. Everyone is shaped and molded by life experiences and exposure, even if unconscious. The “original” should be preserved but authors should not be prohibited from creating new works. If the authors would give credit then the originals would be preserved into perpetuity and a paper trail would exist. The author would not be charged with the burden of following it to the end but just attesting to the one that inspired his work.
The above examples demonstrate a lack of attribution. The new authors should give notice of the work that preceded it, even if it is not the original. The problem is misstated as there is lack of original thought. The problem lies in that no one is willing to give credit where it was due. Elvis should be allowed to cover a song, borrow a rift, sample a beat or use the creative works of another. However, he should give the material credit. While copyright law will not allow an author to copy verbatim another’s work, it does allow for a new combination of work. This is evident in the provided examples. No bar exists to restrain artists from improving on the preceding work (not even my theory). The new combinations and upgrades are necessary for “progress.”
The example of Vanilla Ice embodies this lack of attribution. No one was fooled by Rob Van Winkle’s rip off of David Bowie’s song. The problem was that he did not want to give credit. Why not? Assuming no outside problems with royalties, marketing and other attachments to using this work, copyright law, theoretically, would have protected Ice’s work. It was the use of a hook from another artist recombined with new lyrics and beats. However, Rob did not attribute the work to Bowie and VH1 covered the rest.
If authors would step off the ivory tower and allow the world to know where aspects of the work came from, it would eliminate problems. An “original” work does not need to be the secrets to the universe. Did you know that Cold Mountain was the North Carolina version of the Odyssey? If you did, would it matter? Probably not. A contemporary version of a classic story may find copyright protection. It will also find a place in the consciousness of the masses. If the author’s gave credit it may help to validate the work even more. The consumer or the viewer of the work would understand the concepts better when framed by the past.
The creators of South Park have followed this concept. Matt and Trey were not the first ones to put a cartoon on television; in prime time; with children; with curse words. While they probably attest that their success is wholly their own creation, the creators give credit to the pilgrims of the genre. “The Simpsons Did It” and “Cartoon Wars” episodes make it clear that South Park is aware of its predecessors. It does not take away from their creation or nullify any copyright protection they may seek. The authors used elements from the past and recombined them to create a wholly “original” work. It would not be difficult to dissect the cartoon and find the elements of other work. This would not vitiate the originality of the work.
It is sad that someone would be unaware that a song was being covered or a story was being contemporized. The author should educate the masses about the works that came before. An average person may not know that the Odyssey was contemporized; therefore, the person never read the story. If that same person that would not tackle Greek classics was aware of Cold Mountain, the person could at least conceptualize the story and know its roots.
-Blevins
Your lack of diligence is excusable neglect. Full credit will be granted.
-MJR
August 28, 2007 at 5:27 pm |
Originality is a false premise. Every time I hear Led Zeppelin I think of how Jimmy Page stole most of his music from muddy waters or Howlin Wolf. Likewise, every time I watch a Tarantino movie I wonder which piece of Japanese cinema or John Woo film did he rip off this time. Much like Winghouse v. Hooters, it all just recycled popular cultured shrink wrapped for a new generation.
The real question hinges on whether it REALLY matters? Is Jimmi Hendrix version on Bob Dylan’s All Along The Watchtower really better or worse? Who cares…
I remember in the early rap music days when sampling others beats was considered selling-out. Vanilla was a Sellout because he looped Bowie. It was not until Puff Daddy or P.Diddy or “Just” Diddy turned a Police song into a tribute to Notorious B.I.G that it all of a sudden became acceptable to rap over others beats.
Think about the moral rights theory. Think about the incentive theory. Consider the purpose of the Copyright Clause. These are all just ways for philosophy theorist to pat themselves upon their back and talk about how smart they are for naming a theory. The founding fathers were just trying to decentralize government control over invention, I imagine they could care less about the fiddle players moral rights to the songs he plays. Federalist arguments are just idiotic in this context and do not apply.
The Grateful Dead were the kings of playing other peoples music better than the original. The Dead had something that no other band ever have, a different Set-list every night. The popularity of the Grateful Dead, and the reason that people would go on tour for the summer in their Daddy’s land rover was because each show was different. Each song they played was done differently depending on a myriad of factors that were not known until right before it was played. There was no MORAL Rights theory, or a incentive theory, it was a group of guys who loved MUSIC and loved playing music and that is what they did. Coincidently the Dead also ushered in a new era of recorded music called “bootlegging”. Where people were allowed to bring in recording devices to shows so that audience members could record the music and spread it to others. And they did. Bootlegging was a major reason for the Greatful Dead’s exposure and popularity. Who owned the copyrights to those tapes?
The Grateful Dead,Tarantino, and others are successful because they find the best way to take the old stuff, dust it off, replace the outdated material, and sell it to the unsuspecting or uncaring. They are the best at it and that is why they make money. I could not do what they do and neither could most people, that is why we enjoy their work.
At the end of the day, it is either better than the original or it is worse, that is left up to the eye of the beholder. The artist incentive for creation takes a back seat to creation itself no matter where it came from. That is art the debate about the origins of the inspiration for the art is a fools pursuit.
-Set out running but I’ll take my time. A friend of the Devil is a Friend of mine. If I get home before daylight I just might get some sleep tonight.
Feldman
August 28, 2007 at 5:52 pm |
The idea of having only one version of anything runs contrary to every facet of human nature. Original works can and should be improved upon. Would Curtis Mayfield’s original song appeal to today’s music buying/video watching (socially unconsious, or dare I say extremely “shallow”) audience?
I seriously doubt it.
I read somewhere once that there are only seven original literary plots. Everything else is simply a variation of one of the seven.
Think about it. How many movies of TV shows have you watched where you knew EXACTLY what was going to happen next,or who was going to be killed first (usually the black guy, right?) This isn’t because we’re such literary/artistic geniuses, its because we’ve seen the same old plot a thousand times before!
I was living in Atlanta when Curtis Mayfield passed away, and let me tell you he was definitely beloved in that community. I think that Curtis woul be a flattered by Kanye’s work but somewhat dissapointed by the lack of social consciousness in Kanye’s version. Kanye’s work has its own sense of orginality and may even have some social value. Regardless, it defiitely serves the purpose of introducing newer generations to the works of one of the greatest contributors to American music of the last century; whom they would not otherwise have heard of, but for Kanye’s derivative work.
Having a newer or updated version of a creative work in my opinon takes nothing away
from the original author or artist, but rather introduces new generations and audiences to an artist that they may not even have been aware of. Also in some cases – copying, improving or updating an original work may actually produce additional income or fame for the original artist.
So I suppose this puts me somewhere in the “natural rights” camp. That is, no one can ever really “take away” your creation. It’s yours! So what if someone in the future makes a diiferent variation or puts a diferent interpretation of it out there.? This only serves (as the founding fathers in their infinite wisdom intended) to “promote the progress of science nd the useful arts…..”
Rob Pollidore
August 28, 2007 at 6:35 pm |
I believe the Copyright Act has made it harder, maybe even impossible for individuals to create truly original works. I feel there is a very thin line between “progress” and “slavish copying of”. The minimal creativity requirement is too minimal to adequately provide individuals with enough incentives to make truly original creations. “Originality” is purposely left undefined by the Copyright Act. Leaffer, Marshall, Understanding Copyright Law 58 (LexisNexis 2005). This may lend reason to attitudes that nothing is truly original-at least anymore. Feist defined originality as 1)independent creation, 2)modicum of creativity. Id. I think the standard should be set higher than a mere “modicum” of creativity. I think the courts refusal to address the artistic or aesthetic merit or “beauty” of the work, also creates the impression that originality doesn’t exist in terms of the Copyright Act. Even though all works to a certain degree borrow from others, I feel that when you borrow directly from a person or individually created concept then the originality test should fail. Looking at § 102 b), It the legislatures construed “originality” to mean any fixed work taken from anything concerning “ideas” “procedures”, “processes”, “systems” and “method of operation”-not created by any one individual in particular then maybe more works would be truly original. I feel the legislative branch created these minimal requirements, solely promote progress of the U.S. commercial economy, which runs perpendicular to the theories of moral rights as recognized more my European countries. Its no coincidence the style, the art, the music lies more outside the United States than within. The authors, creators and innovators here in America are enabled by such requirements set out in the Copyright Act, for it lessens the likelihood that truly original works will ever be produced, ultimately decreasing real progress, as opposed to the sole stimulation of socio-economic progress. As far as the video with the ICE ICE baby played in the background, its obvious that there is no level of originality in the clip other than blending the song with the video. “Technology” should get the copyright in this case. Its was nothing that ANYONE couldn’t have done with “minimal amount of creativity”. Which is the precise reason it should NOT be copyrighted…
JASON RICHARDS
August 28, 2007 at 8:12 pm |
It is a close call when deciding whether something is actually original or not, especially in the world of music. As the Supreme Court articulated in the Feist decision, the sine qua non of copyright is originality. Works that are original to the author qualify for copyright protection. For copyright purposes, the term original means only that the work was independently created by the author, not copied from another work, and that it has at least a minimal degree of creativity.
After reading this statement from the Supreme Court I began to realize that you can argue both ways and have a valid argument. Although I agree that Elvis stole his sound from the African American artists of his time like Chuck Berry and Jackie Wilson, I took a step back to consider the meaning of originality in a social context and not just as a definition.
For a large number of the white population of the time Elvis was extremely original. Does that count? should we be able to look at the impact an artist has on a specific community and weigh that in the originality equation? Because even though Elvis was using material that was already created, he put his own spin on it and gave it a new meaning to his target audience.
Elvis along with many other artist like Kanye West have used music videos to breathe life into their songs. Should that be taken into consideration when determining if a work is original. Because while the song may only be 10% original, the video may be 100% original. Should the two be taken into consideration as one piece of work? If so, I think that one could find that works that are almost identical musically, but very different visually, may be original.
Because the threshold of originality is so low, not much originality is needed to be offered protection. The court in The Bridgeman Art Library v. Corel Corp. stated that slavish copies will not be offered copyright protection. It is hard to argue that Kanye’s song and video for “Touch the Sky” are slavish copies of Curtis Mayfield’s song and video for “Move on Up” and there is no originality involved in Kanye’s version.
This is all based on the proposition that the videos be looked at in conjunction with the songs as one copyrightable unit. This is just an idea which may sink when in front of a Judge but nevertheless it’s an idea.
-Carlos Gonzalez
August 28, 2007 at 9:29 pm |
If one accepts the premise that nothing is truly original in art, music, film or literature, and that “authorship in any medium is more akin to translation and recombination than it is to creating”, as Jessica Littman posits in The Public Domain on page 14 of our textbook, than one must or should recognize the importance of the public domain in the creation of art, music, film and literature. Where would “new” works originate if they could not build upon or borrow from the public domain? I believe that the Blevins Theory ignores this critical question. The Blevins Theory, as I understand it, gives authors and artists an unlimited monopoly on their works, and, in addition, endows them with unlimited moral rights. I believe that the Blevins Theory would cause a reduction in the “Marketplace of Ideas” that is the public domain. It is also my opinion that the framers of the Constitution recognized the importance of a robust public domain and placed the “for a limited time” language in the Copyright Clause in order to “promote progress.” Progress is promoted by allowing authors and artists to use the works of others to create new “original” works.
Chris Keegan
August 29, 2007 at 7:08 am |
While nothing is ever completely original, there is always the possibility for original additions. There is always something different that can be done, can be added, can be taken away. With the song examples provided, yes, there was a whole lot of copying going on, BUT there were still differences. To me, that is what the originality aspect means: it’s not something new; it’s something different.
I looked up “different” in the thesaurus and one of the words listed was ”distinct”. If you are going to build off the work of another, you have to make it distinct. You have to do something to make it stand out as your own. I think that makes it meet the originality requirement.
The way I thought of it was like this: it’s similar to a family recipe passed down through the generations. You might be using mom’s recipe, but it’s never going to taste “just like mom’s”. The same basic ingredients are there, but each person is going to add something different to it to personalize it.
Moving this into the entertainment realm, take romantic comedies for example: essentially, they all say the same thing. Boy meets girl, boy gets girl, boy loses girl, boy gets girl back, or vice versa. If that was all there was ever going to be, every Blockbuster store could be half its size. But it’s the different “spices” added to the “main ingredients” that keep the business flourishing.
To me, original≠new, but original=distinct/different.
Kathryn M. Dolan
August 29, 2007 at 3:53 pm |
So long as the individual has added something original to the already existing work, the end result should be deemed “original”. As we have learned in class, the law only requires a “minimal level of originality” to be copyrightable. In the examples provided above, the artist(s) have added such a significant amount of change to the work, that the final expression constitutes originality. The latest example of a derivative work that comes to mind is the song “Shut up and Drive” by Rihanna. She has taken the song by New Order titled “Blue Monday” and remixed it and written different lyrics. The musical theme is the same as Blue Monday, however, the lyrics are completely different and the instrumental aspect is substantially re-mixed. I personally, enjoy listening to songs that have been derived from previous works such as this. The familiarity of the original melody along with the modernized musical touch create a very enjoyable listening experience.
I also relate to the example provided by Kathryn Dolan regarding recipes. In my situation, I may refer to a recipe in a book, especially if it is a dish I am not very familiar with and add my own special touch. I usually refer to the recipe for the basic ingredients and add my own ingredients to make it taste even better. The end result is always superior and almost nothing like the original recipe in the book. As such, I always claim ownership over the final consumable masterpiece.
-Gina M. Bernola
August 29, 2007 at 11:03 pm |
The argument presented seems to indicate that originality is expressed to mean there is only one single origin of an expression of work. If the expression has been expressed previously, it is therefore, not original. Originality is subjective and personal; thus, I submit the argument that duplicate or similar expressions of work can be original to more than one author, yet not original to third parties who see, hear, smell or touch the work. How can a third party determine originality between multiple independent expressions, if originality is meant only to be singular? US copyright laws do not monitor or regulate originality of expressions, they regulate the “first” tangible expression of such work and generally this expression needs to be public. I have never seen Repo Man, nor care for Elvis Presley. If I thought of the same or similar words contained in the script for Repo Man, or the same words that comprise the song Blue Velvet Shoes (that was an Elvis song, right) before their respective writers, does that make either expression not original? Or, alternatively, does it lend to the argument that neither expressions, theirs or mine, are original? I, as a creator of the works, would take offense to both statements. It goes without argument, if neither of us had ever exchanged ideas, both expressions can be original to each of us personally as authoris. No one can see into my brain. When I take what I am thinking and express this through written words, art, etc., my subjective beliefs are that these works are original. Originality seems more to me as thus the publication of the expression of an idea, rather than the idea or the expression itself.
August 30, 2007 at 2:06 am |
I am sure that I read somewhere that there are only 6 truly original stories, everything else is just a variation of the originals. There are the basic stories on love, war, power, and the rest. Good writers just know how to spin it into thier own style. Can anyone even say the Romeo and Juliet was original?
I am sure this translates to music as well. As long as it is not a direct copy of music made by some one, then it should count as original music. I am not a fan of sampling, but i do recognize its use in music today and how it can help to create new genres. Remixes, sampling and other types of work that could be considered stealing also help to keep music alive. this also translates into other forms of art such as television. Every husband/ wife show on now is just a variation of the Honeymoooners of the 50’s. Its all the same ol’ same ol’ stuff (yes thats a legal term) with a new twist. I think as long as the new twist is added in, it becomes an original work of art. If nothing is added then it just a copy… and a cheap one at that.
November 24, 2007 at 2:55 pm |
I don’t know where this fits in, but I thought it was important.
ON LINE COPYRIGHT REGISTRATION BEGINS
Registration online is now possible for $35 as part of a beta test of the Copyright Office’s web-based registration program. To participate, fill out the Request Form at
http://www.copyright.gov/eco/beta-request.html.