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? :)

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

In 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.

To see if I could help with some record setting in regards to comparing music sampling/mixing and written plagiarism, I chatted with a couple of friends of mine who are musicians, one of which is also a DJ. In fact, both are so eloquent and well versed, I will be borrowing liberally from them. (But not plagiarizing as I will use quotation marks and proper attributions… AND… please patronize these fabulous people if you see them online or catch them at a convention!) In short: this blog post will read more like a "guest blog."

(Edit to note: Because the two people I chatted with were kind enough to give me wonderful responses with more details than I could conceive of, myself, I'm giving each her/his own post… Today we will chat with Roberta Rogow.)

One friend, Roberta Rogow, is a well-known and well-respected filker in the Northeast. Her credits, as she wrote them: "I've been writing, performing and recording Filk since 1976; I've written an article on Filk in The Encyclopedia of Women in Science Fiction and Fantasy; I have published filk lyrics in my own fanzine Rec-Room Rhymes since 1978. I've been running the Filk Track at Lunacon (the NYC area SF Convention) since 2003. And I'm going to be Filk Guest of Honor at I-Con in March 2010! I currently have two CDs available: Rogow, Alive and Filking and One Filk, Two Filk, Old Filk, New Filk, both recorded by Harold Stein's Floating Filk studio."

I also happen to know that Roberta has a great mystery book out as well and while she doesn't currently have a website, I will gladly link to the Amazon page for her book, THE GUILTY CLIENT.

What's filk and why do I bring it up? Well… if you didn't follow the link on "filker" above, basically filk is a type of folk music that draws from science fiction and fantasy literature, television, and movies - often borrowing or using tunes from classic folk, rock, country, and other music (including hip-hop, rap, metal… it's pretty varied). The name originates from a typo of "folk" in a convention that happened before I was born - though the matching of genre topics to folksy music and concerts has continued advancement under said typo. Most of filk falls under "parody" in regards to copyright laws, so there isn't the plagiarism stigma… but, filk musicians still have to navigate the rough waters of copyright law and proper attribution.

Now, I'll let Roberta speak for herself (with a few proofreading edits):

Filk started out as parody... taking a familiar tune and putting new words to it. There's nothing wrong with this; it's a got a long and honorable pedigree. After all, "The Star-Spangled Banner" poem was sung to the English drinking-song, "To Anacreaon in Heaven", and no one seemed to mind.

However... there's one big caveat: singing these songs in a more-or-less private gathering like a SF Con filk circle is one thing... publishing them, or recording them is quite another. As I have found out!

When I recorded my first audiotapes back in 1984, I paid royalties on the tunes I used through the Harry Fox Agency, which handles these things. Over time, the fees have grown, to the point where my CD Rogow Alive and Filking cost the producer more than $500 in copyright fees. And this is for a measly little 500-item deal!

The result is that filkers either write their own music or comb the archives for material that is in the Public Domain. And you'd be surprised what is not in the Public Domain, because it's not a "folk song" in the traditional sense. All of Woody Guthrie's output is under copyright; so is Sholem Secunda's (he wrote "Dona, Dona" and many other Yiddish classics) and "The Unicorn Song" (Shel Silverstein). Don't touch Bob Dylan or Paul Simon; Canadian Stan Rogers, a filk favorite, is similarly off-limits for recording. You can sing the parodies in the privacy of a Con or a house-filk, because that's not "public performance," but recording and distributing said recordings is definitely "public," and for that, the composer gets compensation. In some cases, the composer doesn't want anyone touching her work without her co-operation (which is why I can't record anything originally written by Dolly Parton).

If you use the tune written by another filker, that's within the boundaries of filk parody. There are so many parodies of "Banned From Argo" that they've been collected into a fanzine, "Bastard Sons of Argo." And the US Supreme Court has ruled that parody is legal, especially if done with comedic or satiric intent, as a commentary on the orginals, as done in Mad Magazine, or by Weird Al Yankovich, […].

Filk lyrics often riff off someone else's work. There are countless songs about the Star Trek and Star Wars characters; songs based on Tolkein's Lord of the Rings saga; songs that derive from all sorts of novels and movies and TV shows. This is considered acceptable, because you're not directly copying someone else's work, you're commenting on it in a way. And when you perform the material, you always cite the original source, if it isn't immediately obvious (as with my ballad "The Woman in the Snow", which I always attribute to a story written by Patricia McKissick).

There are one or two authors who are extremely leery of filkers or anyone else messing with their characters. There was a notorious case back in the late 1980's, where someone used a character in a well-known series in a fanzine story, and the original author not only sued, but won her case. Since I wrote a filk about said character, I have been very careful about recording that particular song. However, most authors are one with Harry Turtledove, who said "I'd be jazzed!" when I asked if he minded when other people were inspired to write something in response to one of his books. They look at filk as free advertising... if someone sings about their books in a filk circle, the listeners may want to go out and read them, just to find out what the song was about.

A general rule about parodies: you can get away with a lot if you're trying to be funny. But parody is not plagiarism, because there's a creative element to it. I may "borrow" a tune, but the lyrics are mine. Setting someone else's poem to an original tune is certainly not plagiarism, because the original poet is acknowledged. Plagiarism involves saying that someone else's work is your own, and filk is definitely not that.

So, in the case of filk, the response to Hegemann and her take on "plagiarism" is that she needed to credit her sources, still. On a CD, one can do that in the cover and in the blurb for the song; in concert, since most filkers perform pretty openly at conventions, I have heard them give credit where credit is due, also.

Rather than talking food on Friday, it will be my pleasure to include my friend Dan Kupka's response to this question! He goes into even more detail in regards to "mixing" as both a DJ and composer.

Until then, what do you think of using the medium of music as a comparison to writing in regards to copyright and plagiarism? While both are art forms, what makes the difference and how much leeway is there?