Plagiarism 3: The Webz are Alive with the Sound of… Copyright? Plagiarism? (Part B)

As I mentioned on Wednesday, a lot of the discussions regarding plagiarism and copyright, writers have brought in the concept of music. Specifically, sampling and "mixing" (as alleged plagiarist and young German author Helene Hegemann termed it… which started me on this line of posts).

The problem, of course, and most logicians would note: Writing and music are two different media.

I spoke with two musician friends of mine and Wednesday was an excellent guest blog by esteemed filker and author, Roberta Rogow. Today I have the honor of introducing you to another good friend of mine, Dan Kupka. Dan both composes music and is a DJ. While he doesn’t have anything to sell now, those who are close enough can see him in concert on April 17 at Gulu Gulu Café in Salem, MA.

So, without further ado, here is Dan's guest blog (with minor proofing/editing/linking):

Well, as is so often said... 'my thoughts and opinions are solely my own, and I make no respresentation of others' as my own or my own as others' blah blah blah...'

When DJs mix for a club or similar venue, to my understanding, the club/bar/establishment catering to that sort of thing already is, or should be, responsible for paying a nominal fee based upon that set with an organization such as ASCAP [The American Society for Composers, Authors, and Publishers]; ASCAP is one of the companies involved in covering royalties distribution to artists who might have been, er, covered by another band or played by a DJ on a CD or other media, under what's known as a "public performance." This probably includes things like the well-known Mario theme - you've heard it, even if you don't know what it's called. (I'll write about this last one - or 8-bit music in general - in a bit.)

As a musician myself, generally I compose - and I use that verb loosely - music on a laptop that has special applications running on it that assist with electronic music production, one specifically being Reason. (I'd like to thank Chris, former keyboards player for the Cruxshadows, for steering me that way!) All vocal samples I use (or might use) that aren't from Reason thus far come from one or two royalty-free sample CDs that I had purchased from a store. The license allows use for commercial or non-commercial use, so long as credit is given, I believe, to the original medium from whence it came. There are those musicians or DJs who try, or succeed with respect to skirting the legal waters, by not clearing samples that might have been recorded for use in their work simply because cost may be prohibitive to license the sample(s) for that use. Unfortunately, I don't have the foggiest idea of where that starts, as, again, I haven't dipped into that area myself. When I do, of course, I'll let you know. :)

There is a relatively recent trend toward licensing works under the Creative Commons license. In a prior discussion relating to a note you had posted on Facebook regarding copyright, I touched upon the idea that 1. copyright initially was designed to allow a temporary monopoly of rights ownership with the original creator - or, ultimately, whoever became the rights-holder - to receive, and I will reiterate this, TEMPORARY compensation for said work, after which time the work would enter the public domain; the knowledge of this temporary nature would spur the artist or musician to continue creating works that would, hopefully, benefit the public with respect to art, science, and knowledge in general (or, as I'd prefer to term it generally, culture). Copyright, as it stands now, has a shelf life of 75 years plus the life of the author. I think a Twinkie still lasts longer, but in any case, the idea that I have to wait effectively two generations before I am allowed to do anything I see fit to a work that I find interesting and put my own spin on it is, frankly, rather absurd. This is where I say that copyright, as it is currently, impedes what would be the natural spread of culture, or its tendency to reach out geographically, broaden minds. I will, however, stop short of making a completely political statement, with ramblings about corporate this, and social that... I'll leave that for another rant entirely.

So, on to Creative Commons itself, briefly. In a nutshell, this license allows those who wish to share their work to do so freely, and even would allow it to flourish in someone else's hands in different media or different styles in the same medium, with less inherent restriction than what would be provided under typical copyright terms - which some might find much more draconian, given the current state of copyright (read about the Digital Millennium Copyright Act for insight into the tip of the iceberg about "draconian" [from Trish: and also here for authors]). I don't have much else to say here, as I'm not familiar with legalities and liabilities as it pertains to using commercial vs. noncommercial works, what's constituted as derivative or adapted - and that I'll leave to the music law professionals to determine...

Back to Mario and at least some things Nintendo. There has been a growing interest for some time overseas in what is known as 8-bit music. I haven't been involved directly in the scene myself, though I have seen some local artists who have made use of various Gameboy and NES consoles, with various hacks and modifications to turn them into (what else?) music-making machines. This music, as the name of the genre would imply, uses the hardware from the aforementioned consoles to produce the old-school-ish video-gamey sounds from the 80s, but applies those sounds in sometimes very new and interesting ways. To rattle off a few bands that I've seen and enjoyed, in no particular order: Br1ght Pr1mate, Active Knowledge, Bubblegum Octopus... Conceptually, I liken the idea to going to your favorite music equipment store and buying an instrument. That's really all it is, and it's not the size of it, what you do with it is what counts! (The prior sentence could be applied to any number of activities that are outside the scope of this discussion. I'll leave those to your imagination.)

I'm not entirely certain as to what [Trish is] asking about when [she asked me] "what's the line for sampling in music?" If you mean the quantity of, say, the Mario theme or another familiar tune that may still be under copyright which is used in a piece of music by another musician, then that is a bit murky, as I don't think there is a set percentage or time-count cutoff after which the lawyers are called in to have a meeting. Needless to say, however, based on my aforementioned distaste with the current copyright scenario, I do think it is far past time for an overhaul to get back to the basics as to what life and culture is all about. Everyone is a part of this culture, so why should only a select few be in control of its dispensation even after several generations?

xx

[From a follow-up email from Dan]:

Quick little addition... while this is no substitute for a lawyer involved in music law, I did come upon some information that, generally, in the scenario of a live performance, sample clearance may not be needed as the venue owner pays license fees to ASCAP and/or BMI [Broadcast Music, Inc], and you're not making copies of the sample / music for distribution.

If, though, I were to press or copy CDs with that sample included on the CD, then the sample clearance is necessary. A lot of what determines what can be flown under the radar and unnecessary for clearance is pretty murky under even the best of circumstances (transforming a sound so it's barely recognizable to the original, burying it underneath the music so-to-speak, and so forth).

xx

So, writers looking to make comparisons of written plagiarism and musical plagiarism/sampling/mixing are hiking shaky ground - whether they are using it as an example promoting "sampling" or as an example where plagiarism has happened. Since it goes even beyond words, there are more facets to the music argument, too. However, the "murky depths" still show that copyright and plagiarism arguments are anything but clear cut.

Thank you very much, Dan, for your insights!

What are your thoughts on copyright law and the DMCA and how that applies to both music and writing? Are there things that you see need to be changed, readers? :)