The Creativity Pyramid

• Intellectual property law is designed to motivate innovation in expression, technology, etc.

• How do changes to IP policy affect innovation?• Focus on a case study in music• Start with comparing

assumptions underlying patents and copyrights

Patents

• Assume technology development converges– Limited number of good ways to do

an action– Similar methods of performing some

action will be identified by different groups• Technological progress in incremental– Each development builds on prior developments

• Patent rights last for a short time• Improvers get their own rights that they can trade

Copyrights

• Assumptions are from copyright originating for texts

• Essentially infinite number of ways to express the same thing

• Unlikely different authors will converge on same words

• Derivative works are not allowed (have no rights) without consent of author

• Of course, this is only a caricature – remember the discussion of plots, characters, etc. from earlier

A Case Study

• Song “George Bush Don’t Like Black People”

• Context:– Perceived slow federal response to Katrina

disaster– Portrayal of those left in New Orleans by media

• History of song exemplifies reuse– Political/social commentary– Emergence of new genres of music/art

Story Begins Long Ago

• The Legendary K.O’s song– From Kanye West’s “Gold Digger”

• Kanye West’s song– From Ray Charles’ “I Got a Woman”

• Ray Charles’ song– From Will Lamartine Thompson’s “Jesus is All the

World to Me” and– From Bailey Gospel Singers’ “I’ve Got a Savior”

Start with Ray Charles

• He started his career modeling himself on Nat King Cole

• Nat King Cole’s Nature Boy (1948)– http://www.youtube.com/watch?v=Iq0XJCJ1Srw

• Ray Charles’ Confession Blues (1949)– http://www.youtube.com/watch?v=LBeWcoN5D9s

• Quickly he began to blend gospel and blues

“I Got a Woman”

• One of the birthplaces of soul music

• Sources traditionally said “I Got a Woman” was a rewording of “Jesus is All the World to Me”

• “I Got a Woman”– http://www.youtube.com/watch?v=Mrd14PxaUco

“Jesus is All the World to Me”

• Will Lamartine Thompson’s “Jesus is

All the World to Me”– Published in 1904

• http://www.youtube.com/watch?v=jh6TR7Szlgc

• Copyright extended to music in 1881

“Jesus is All the World to Me”

• Copyright lasted for 28 years with 14 years extension if requested– Copyright could have lasted until

1946 if extended• Ray Charles could have reworded song without

permission in 1954• Thompson died in 1909– With today’s law, the copyright would have expired

in 1984 (or 1999 if it was a work for hire)

“I’ve Got a Savior”

• Bailey Gospel Singers• Composer: Thomas Ward

(not Clara Ward)• Published in 1951 with no copyright on record• If copyright not requested, it went into the public

domain immediately• Today’s law: copyright would last until

75 (or 90) years after Thomas Ward’sdeath– At least 2026

Did Charles Break Copyright?

• Possibly but not likely given the evidence• If copyright was in place, the gospel singers

would not have wanted their songs remade (desecrated)

• “What will the music of the future look like if the Clara Wards and Will Lamartine Thompsons of today can simply refuse to license on aesthetic grounds or demand payment for every tiny fragment?”

“This Little Girl of Mine”

• “This Little Light of Mine”– Written about 1920 by Harry Dixon Loes (1895-1965)– Would go out of copyright about 1962 if extended– With today’s laws it would be in copyright until 2040 (or

2055)• Recorded by Clara Ward in – http://www.youtube.com/watch?v=izycJL1x_Is

• “This Little Girl of Mine”– http://www.youtube.com/watch?v=HfPL7Lb0LLM

• And on it went – many versions/covers:– http://www.youtube.com/watch?v=rTebgVrHEVM– https://www.youtube.com/watch?v=70rm_klKYaA

“Gold Digger”

• Gold Digger– Recorded in 2004 by Kanye West

(born 1977)– Under copyright until 2137 if West lives to be 70

• Use of “I’ve Got a Woman”– Repeats eight-bar loop throughout song– Jamie Foxx sings original lyrics in background– Selected for irony?

• https://www.youtube.com/watch?v=6vwNcNOTVzY

Music Copyright Today

• At least two copyrights– One for musical composition (sheet music and

lyrics)– One for particular sound recording

• Legal protection for use of similar/partial composition– Scènes à faire, merger, and fair use

• Reuse of recording has no such protection– Two notes constitutes infringement

Kayne West’s Reuse

• No copyright on “I Got a Woman” composition• Copyrights on recordings– So if they are being used in remix, then West

would have been required to license or gain permission

• If Charles had gotten copyright on composition– His copyright would have been what was different

from the Bailey Gospel Singers

“George Bush Don’t Like Black People”

• By Legendary K.O. – Sampling Jamie Foxx• Copying Ray Charles

– Copying the Bailey Gospel Singers» Etc.

• Videos made with song as the background– http://www.youtube.com/watch?v=mZcscNJ2noY– http://www.youtube.com/watch?v=UGRcEXtLpTo

Sampling

• 1980s -- Public Enemy and N.W.A.– Layer of tiny samples with rap lyrics

• Hip-hop assumed sampling was allowed– Like jazz musicians taking fragment of another tune

during a solo• Biz Markie vs. Gilbert O’Sullivan– “Alone Again” sampled from “Alone Again”– http://www.youtube.com/watch?v=D_P-v1BVQn8– http://www.youtube.com/watch?v=OebqNsNRBtU

Court Ruling by Judge Duffy

• “Thou shalt not steal” has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.”

Ruling Changed Music Culture?

• After this, every sample is licensed• Bridgeport Music V. Dimension Films– NWA used a fragment (< 2 seconds) consisting of the

three notes in an arpeggiated chord– Chord was then heavily distorted and faintly looped

during portion of song• Court ruled that sampling even one note of a

recording requires permission– Desire for a bright-line rule– Effectively gets rid of fair use for recordings

Back to The Legendary K.O.

• Song clearly sampled– So there is the potential for infringement– But was it parody as in …

• Acuff-Rose Case (Roy Orbison v. 2 Live Crew)– “While we might not assign a high rank to the

parodic element here, we think it fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree.”

– http://www.youtube.com/watch?v=65GQ70Rf_8Y

What about the YouTube Videos

• The videos are even more difficult because of all the sources being compiled together.

• Hypocrisy or irony– JibJab forced The Black Lantern to remove part of

their video which was a remix of other work

How is there anything out there?

• Cultural activity does not mirror policy• While The Legendary K.O. are probably

breaking the law– Only some copyright holders police their rights– West probably agreed with the political point– Commonsense notion of what is likely to be okay

• But this is not a reason to ignore bad policy– Remember JibJab and the likelihood that the

gospel singers would have not have allowed Charles’s work

Role of Borrowing in Media

• “The idea that copyright encourages creativity and discourages the reuse of material created by others seems reasonable.”

• But it is not that simple– Music is different than text– But how different?

• How long into the futureshould these rights extend?

• A song created today by a 20 year old with a typical life span will be under copyright until 2139 or 2154.

Creativity Today

• New media and social media embrace building on the content of others

• Mashups– Software designed explicitly to create mashups

Extra Credit (Replace Quiz)

• Write a 2 page (ACM conference format) paper on a topic in the news recently that relates to the themes in Computers & New Media discussed in this class.

• Must tie itself to what we have read (i.e. must include references)

• Not just a summary, must discuss the topic and the concepts from this class

• ACM templates – http://

www.acm.org/sigs/publications/proceedings-templates• Hardcopy (on paper!) must be turned in by the end of

the last day of class (May 5).