Posted on

Fair Use, the 2-line rule & my heart tells me it’s real

file0001147019680

The 3,398th Day Anniversary of an email

As I was wading through “All Posts” in the space behind/under the hood of my site, I stumbled upon this – an email I posted to an online discussion of Fair Use nine years (3,398 days) ago.  I don’t remember the person to whom it was addressed or the name of the forum so I will expunge three names in my post.

I wanted a 2/3 silly title to this post and I hope I have succeeded.

1.

“Fair Use.”  Fair use is not silly – it’s essential.  Fair use is the use a copyrighted work (or more than one) without the author’s permission.  It’s what we were forced to do in the American education system.  It’s not enough that we spouted our views – we needed to COPY and quote others’ views as well, and it was unthinkable that we’d go to the trouble of writing to a book publisher to ask for permission, for example, to COPY a few sentences/paragraph from an author and insert it into our original work.  This new original work by a student was usually a paper that had to be handed in to a teacher to fulfill an assignment.  Asking for permission would take too long.  Proper attribution (and copyright notice) for an academic assignment is usually considered a good reason to violate/break/pillage the “Copyright Law of the United States and Related Laws…”

2.

The “2-line rule.”  There are so many references to a “2-line rule” that many believe there might really be a 2-line rule.  To annoy certain people and for the humor of it, I have gone to that ultimate DETERMINER of what does and does not exist – Wikipedia.  I entered the term, “2 line rule,” and then “2-line rule” and both times got this in return:

“The page “2 line rule” does not exist. You can ask for it to be created, but consider checking the search results below to see whether the topic is already covered.
For search help, please visit Help:Searching.”

I guess that puts an end to it – there is NO 2 line rule!  But the next item Wikipedia informed me of was “Bright-Line rule,” and still, under Bright-line rule, there is no 2 line/2-line rule, hyphen or not.  Therefore, I still believe, unlike Virginia with Santa Claus, that there is NO 2-line rule.

3.

“My heart tells me it’s real.”  To some, this short phrase is a sweet sentiment but I find the lyric silly, so that is my 2nd and final silly part of a 3-part title (but I will quote these six words again below).

To summarize the analysis of this post’s title:

Part 1 (“Fair use”) – Not Silly.  

Part 2 (“2-line rule”) – Silly.  

Part 3 (“my heart tells me it’s real”) – Silly.

Now to my ranting about fair use from May 2004.  I could revise and re-word this (and perhaps I should) but I won’t.  I’ll let this frozen-in-time rant imperfectly represent my thoughts from that day.

__________________________________________________________________________________

4.   May 16, 2004

May 16, 2004

Dear X:

Your story (and Y’s paper) well illustrates the out of balance copyright world.  Few people know that the first U. S. copyright law was meant as, and called, “An Act for The Encouragement of Learning.”  The most important reason for copyright in the U. S. was to provide our not well educated 18th century public inexpensive access to educational materials.  The Founding Fathers felt that an educated public was necessary in order to have a well intentioned government.  The second point of copyright, and one that was not as important as the dissemination of knowledge, was to provide the writers and inventors a reasonable financial return on their labors.  This financial reward was to come about through a monopoly for a short time on their works.  But judges throughout our history have made it clear that the authors’ and inventors’ monopoly for limited times was of secondary importance to dissemination of a rich wealth of ideas in a rich public domain.  Today, however, the balance between the welfare of the public and that of the authors is out of whack, as many copyright holders wield far too much power, and the public either is unaware of its importance or unwilling or financially unable to fight back.

I highly encourage U. S. citizens/authors/educators to be well aware of section 107 of Title 17 of the United States Code (The 1976 U. S. Copyright Act).  Section 107 outlines the four Fair Use factors which allow anyone to borrow from a copyrighted work without the permission of the copyright owner, but with consideration of these four factors.

There are no bright line tests to determine whether one has infringed a copyright by borrowing from another work.  The law states that copyright protection subsists in original works of authorship fixed in any tangible medium.  But no law can state what is original and what is not, and at what point does original and protectible expression arise.  There are no specifics in the 1976 Act pertaining to how much can be taken from another work, but a close look at any short “sample” of an original work of authorship reveals that little is original.  In fact, in most works of authorship of popular expression, short segments are unoriginal.  They merge with more unoriginal segments and eventually become original.  This applies to words, pitches, sounds, colors on a canvas, dialog, etc.

One should use other copyrighted works after one has assessed the originality of the material that is being borrowed, the amount to be taken, the nature of the material (facts are rarely protectible; fiction can have much more protection), whether the intent is educational or for profit, and the effect the borrowing will have on the market for the original work.  I know of no “standard formula of seeking permission whenever quoting more than two lines of a song.”  If there is such a “standard formula,” to the best of my knowledge it is not based in the law or common law.  One cannot be found guilty of copying if what is copied is unoriginal.  Copyright infringement only comes when what is copied is “original” (and “fixed in any tangible medium…”).

To illustrate why one could copy more than two lines of a song without permission, I offer the following.  I would feel free to quote the following four lines without asking permission:

Tell me how you feel

I finally know how love feels

Tell me if it’s real

And my heart tells me it’s real

Or the following:

When it’s warm outside

And the look in your eyes

Is longing to show me the way

I don’t want to wait

or the following:

I don’t know how to live without your love

I was born to make you happy

cuz you’re the only one within my heart

Again, I would reiterate the importance of considering the four fair use factors in assessing the “criminality” of the above “thefts.”  In all three, the “purpose and character” of my use is educational.  Even if the use is for profit, that still would not exclude the borrowing from being a fair use.  Secondly, the nature of the copyrighted work is fictional/creative.  Borrowing from creative works is less fair than borrowing from factual works.  So, this factor goes in favor of the original author, and against my borrowing.  The third factor is two pronged:  what is the quantity and quality of what I have taken?  The quantity is relatively small in relation to the work.  The quality is very low in that these words are extremely common, mundane and unoriginal. And copying unoriginal material is not infringing a copyright as unoriginal material, by law, cannot have copy protection, i.e., is uncopyrightable.  Fourth, what effect would my borrowing have on the market for the originals?  Answer:  None.  These excerpts are from three Britney Spears songs.  Assuming Britney Spears fans are reading this email, would this email containing exact short quotes from her songs (or if the email found its way into my forthcoming book) be a substitute for three actual recordings of her singing these songs?  Certainly not.  So, I win on most of the fair use considerations and could borrow without asking permission.

I recommend a less fearful reading, interpretation and implementation of Section 107 of the Copyright Act, and would recommend the model of Oxford University Press.  Check out the two-volume “The Beatles As Musicians,” by Walter Everett.  Where in these two books does it state that lyrics or music has been used with permission?  All of the excerpts were considered to be fair uses.

Before I ramble on too long in this long email, I will close by responding to a point made in Z’s  previous email.   Fair use in sampling is now here.  Get the excellent opinion of Judge Higgins in a recent case in the Middle District of Tennessee – Bridgeport Music et al v. Dimension Films et al (October 11, 2002).  I discussed Higgins’ ruling briefly at my EMP presentation this month.

Sincerely,

E. Michael Harrington

September 4, 2013 postlude:  There really might be more to this talking heart thing (“my heart tells me it’s real”) than I realized.

__________________________________________________________________________________

Posted on

Why Would An Artist Re-Record Portions Of Her/His Own Music?

 

A conversation was begun on Facebook among my friends recently.  It does not seem to still be on Facebook but as I recall, the question was posed  – why do artists re-record music?  Another friend wanted to know my take on this question.  I found it to be something which I had not given much thought but was fascinated as to the reasons why one re-records a work.

This questions brings up many more questions.  Why ask about “re-recording” and not “re-composing?”  Is one much different from the other?  Is there a continuum between re-recording being closely related or not at all related to re-composing?  I want to delve more into “why does someone re-record,” than “why does someone re-compose,” but the two are usually in play simultaneously.

As a composer, I have occasionally revisited works I have written.  Sometimes I want a listener to be able to perceive that a “new” musical idea or entire work is the re-creating of an earlier musical idea or complete work of mine – other times, I have wanted to “hide” the source, i.e., to make any connection un-preceivable.  I hope to give examples of this later and in fun detail.

I want to briefly explore the different means, causes and reasons why music is re-recorded.  As always, I welcome readers’ input.  So far, I have been able to identify more than one dozen reasons to re-record music.  This might be tantamount to saying, “more than one dozen categories of re-recorded music.”  I’m not ready to shout out, “Here is the definitive list of how, why, what, where and when music is re-recorded.”  For now, this is just a beginning and an interesting pursuit into an area of creativity and originality.

___________________________________________________________________________

A common reason to re-record music is because a composer/songwriter wants to quote music s/he created earlier and place it in new music.  The composer/songwriter wants to re-purpose one of his/her earlier musical expressions from an earlier composition/song.  It can be more than the creator/artist having run short of ideas to express.  It can be that re-recording the music and placing it in a new context can give new meaning to the earlier expression, and that expression can function as part of a new “work of authorship,” to quote the phrase found in the Copyright Law of the United States of America.

The first examples that came to my mind in pop music were Crosby, Stills, Nash & Young’s Carry On with its substantive quote of Buffalo Springfield’s Questions.  I was a huge fan of Buffalo Springfield and its principal members – Stephen Stills, Neil Young, and Richie Furay, as well as their projects after Buffalo Springfield broke up –

Stephen Stills formed Crosby, Stills & Nash;

Neil Young was a solo artist, then member of Crosby, Stills, Nash & Young until he resumed his solo career;

Richie Furay formed Poco.

(Young aperiodically returns to Crosby, Stills & Nash in a fashion less predictable than the return of cicadas.)

“Questions” is a Stephen Stills composition on Side 2 of Buffalo Springfield’s 3rd and final album, Last Time Around (1968).  Notice that Neil Young is placed on the right side of the “cracked” album cover looking to the right, while the rest of the band is together on the left side looking in the same direction (left).  This seems to be an unsubtle depiction of Neil Young as the member most likely responsible for breaking up Buffalo Springfield.

From 0.26-1.13 of  Questions, Stephen Stills sings:

“With the questions of a thousand dreams, what you do and what you see, come on lover talk to me, when I was on my own chasing you down, what was it made you run trying to get around, the questions of a thousand dreams what you do and what you see, come on lover talk to me”

And at 1.45-2.16, the song’s final phrases are sung:

“Now that we’ve found each other, where do we go now, I’d like to know what you’re thinking, answer me slowly now, the questions of a thousand dreams what you do and what you see, come on lover talk to me, yeah!”

Stills would use these lyrics but with different music two years later in Carry On, the first song on Déjà Vu (1970), the first Crosby, Stills, Nash & Young album (this was the second album featuring CS & N – this time Neil Young was added to the group).

From 2.58-3.13 of Carry On, Stephen Stills sings:

“Are the questions of a thousand dreams, what you do and what you see, lover can you talk to me?”

And at 3.27-3.57, the song’s final phrases are sung:

“Girl when I was on my own chasing you down, what was it made you run trying your best just to get around the questions of a thousand dreams, what you do and what you see, lover can you talk to me?”

There is strong similarity between the two as the lyrics have been, for the most part, copied and re-recorded.  The differences between the music of both songs are significant.

I don’t know why significant sections of  Questions were reused.  I just loved the fact that when I bought Déjà Vu on that cold, snowy night, and began to play side 1 on my parents’ stereo, stumbling upon this very familiar Stephen Stills song within a new Stephen Stills song was really exciting.  I felt I was on to a cool secret.  Next, I told my parents of my excitement and started to call friends to tell them as well.  And I called them that winter night using a rotary dial telephone on our kitchen wall.  I wasn’t old enough to have my driver’s license so I couldn’t bring the album to their house.  They’d have to buy their own or wait to see me on the weekend or call local radio stations and beg.  Ah, those old days.  🙂

___________________________________________________________________________

In the next few weeks, I want to explore other artists who have re-recorded (and re-composed) portions of their own songs.  For this, I emphasize re-recording portions of songs/compositions as opposed to re-recording the entire work or song.  Artists I’ll explore who have re-recorded sections of their earlier works will include The Beach Boys – some of their unreleased songs as well.

Posted on

Jonathan Coulton, Sir Mix-A-Lot, Glee and Whose Baby Got Back?

file0001643312672

I heard about the Jonathan Coulton v. Glee thing all day yesterday, last night and this morning.  As usual the Hollywood Reporter account is the best.  Coulton took Sir Mix-A-Lot’s Baby Got Back and transformed it into a much different composition. Coulton’s radical revision is in the same league of radical revision as The Residents’ The King And Eye in which they (The Residents) wildly re-imagined famous Elvis Presley songs.  Here is one of the tamer re-imagines – The Residents’ version of Don’t Be Cruel.  (I use the word, “re-imagine,” so as to heap praise upon this practice which goes far beyond the normal, reserved arranging one often hears in popular music.  Earth, Wind & Fire’s take on The Beatles’ Got To Get You Into My Life is another example but not as wildly reimagined as those by The Residents or Coulton.)

I have very strong opinions on all of the above, as well as the U. S. Copyright Act that allows some good things to take place but at the same time fails to protect or even recognize other “authors,” such as Coulton.  (Coulton might not be an author of Baby Got Back despite the superb job of authorship he lavished on Baby Got Back.)

There has been so much talk on the Inter-Tubes about the injustice done by The Fox TV series, Glee, to Jonathan Coulton.  Here is what Coulton thinks.

Here is a version found on YouTube of Coulton’s Baby Got Back.  Here is a Glee version of Baby Got Back.  Jonathan Coulton has substituted a “quack” for the F-word in the original Sir Mix-A-Lot.  It is heard at 2.40 into the song.  At the 2.40 mark of Glee, one hears_____?  Are the tempos of Coulton and Glee identical?  Did elements of the Coulton master recording find their way into the master recording of Glee?

This post is unstable, i.e., dynamic, and will be altered one or more times very soon.

Posted on

Welcome!

Welcome to EMichaelMusic.com, a place for the exchange of ideas on a multitude of subjects.  Because I am paying for this website and registered it, and you just discovered its existence, I’ll start.

By the way, the “I am paying for this website” is a variant of Spencer Tracy’s “I am paying for this broadcast,” from the film, “State Of The Union,” of 1948, and Ronald Reagan’s “I am paying for this microphone,” of 1980.)

Please watch this short excerpt: http://www.youtube.com/watch?v=RRI6iSrS1kc

QUESTIONS

  1. Is it OK for a songwriter or composer to copy music and/or lyrics from someone else?
  2. Do you have a favorite example of a songwriter/composer copying music and/or lyrics from someone else?
  3. Do you have a LEAST favorite (or hated) example of a songwriter/composer copying music and/or lyrics from someone else?

Let me make Question 1 even more specific – is it OK to copy someone else’s expression without asking for her/his/their permission?  Asking its permission?  (I write “its” because it could be that you are expected to ask a company or corporation for “its” permission.  Companies are not people, my friend.)

I will only wait another day or two before I chime in.  I welcome your input first.