Release[001841]-Aus
Ref:[28598]-RJA-Hag-ALPA
May 28th, 1998
The Advisory on Law Practice in Art was formed from attendees following
the Association Litteraire et Artistique Internationale (ALAI) 1996 Study
Days. Whether and how copyright will subsist is a major issue as we enter
the digital era. Consequently, the ALAI chose 'Copyright in cyberspace'
as the subject for its 1996 Study Days. Held on 4-8 June in Amsterdam,
the Study Days assembled the world's leading experts in this field to discuss
the problems of copyright in a digital environment. ALPA is a project initiated
to address issues raised by the Study Days, researching implications over
a spread of time and case law, and serving as a counsel to artists and
copyright owners.
The Advisory on Law Practice in Art has received a copy of an article
appearing in "The Independent" on May 5, 1998, entitled 'I'll Name That
Tune In Court, The article was sent to ALPAby The Mawdsley School of Law
and Diplomacy,Wilshire University, UK, which deemed the situation suitable
for review and subsequent issuing of formal statement by the select committee
of the advisory board. The select committee comprises members from the
US, Canada, the UK, Italy, France,The Netherlands, Japan, Israel, and Australia.
A copy of the “Deconstructing Beck” release was also forwarded in compact
disc format.
Pursuant to furthering the intent and aims of the Berne Convention (1896)
and the Stockholm Intellectual Property Conference (1967) in a practicable
manner, the Advisory on Law Practise in Art submits the following statement:
THAT the determinate contention between the parties is one of fair use.
THAT specific to the "Deconstructing Beck" release, it is significantly
contestable that the work is a parody and should be evaluated under the
standards determining whether parodic uses are "fair" as set forth by the
Supreme Court of the United States of America in Campbell v. Acuff-Rose
Music Inc.
The Copyright Act §107 lists four factors that courts should consider
in determining whether a use is "fair": (1) the purpose and character of
the use, (2) the nature of the copyrighted work, (3) the amount and substantiality
of the work used, and (4) the effect of the use on the market for the original.
Although the statute does not specifically list parodies among the categories
of the potentially fair uses, the committee notes that for a long time
works have been afforded some measure of protection under this doctrine
and that the Supreme Court of the United States of America authoritatively
confirmed the applicability of the fair use doctrine to parodies in the
Campbell case.
Campbell emphasizes that the fair use determination calls for a case-by-case
analysis and is not to be simplified with bright line rules. It affirms
that all four of the statutory factors are to be explored and the results
weighed together. Pertaining to the first fair use factor, the purpose
and character of the use, the Campbell decision states that the focus should
be on whether the copying work merely supercedes the objects of the original
or, instead, adds something new, with a further purpose or different character,
altering the first with new expression, meaning or message. It is indicated
that this standard has been captured in the helpful adjective "transformative."
Relating the first factor to parodies, the Supreme Court of the United
States of America states that "The heart of any parodist's claim to quote
from existing material is the use of some elements of a prior author's
composition to create a new one that, at least in part, comments on that
author's works." The comment must have some "critical bearing on the substance
or style of the original composition." The relevant inquiry is "whether
a parodic character may reasonably be perceived."
With respect to the second factor, Campbell indicates that because parodies
almost invariably copy publicly known expressive works, the fact that the
original is a creative work within the core of the copyright protective
purposes is not likely to be of much help in separating fair use works
from infringing ones.
The third factor, the amount and substantiality of the portion used
in relation to the copyrighted work as a whole,presents a difficult case,
because parody is humor, or, in any event, its comment necessarily springs
from recognizable allusion to its object through distorted imitation. The
Campbell decision makes three significant points concerning third-factor
analysis:
(a) Consideration must be given not only to the quantity of materials
taken, but to their quality and importance to the original work;
(b) The parody must be able to conjure up at least enough of the original
to make the object of its critical work recognizable, and
(c) Once enough has been taken to assure identification, how much more
is reasonable will depend on the extent to which the copying work's overriding
purpose and character is to parody the original, or, in contrast, the likelihood
that the parody may serve as a market substitute for the original.
Regarding the effect upon the potential market or value of the original,
Campbell explicitly rejects any presumption of market harm to the original
from copying involving something beyond mere duplication for commercial
purposes.
The select committee has applied the standards in the Campbell decision
to the "Deconstructing Beck" release. The inquiry in the first factor is
whether that recording may be reasonably perceived as a new work that at
least in part comments on the artist professionally known as Beck’s art.
Clearly it adds something new and qualifies as a transformative work. Whether
it "comments" on the original is a somewhat closer question, which the
select committee has elected in Illegalart’s favor, primarily because the
inherent musical aesthetic contrasts so strikingly with the serious musical
expression of the artist professionally known as Beck. The select committee
reasons that the Deconstructing Beck release may be perceived as commenting
on the seriousness, even the pretentiousness, of the original, which achieves
the effect of ridicule that the Supreme Court of the United States of America
in Campbell recognized would serve as a sufficient comment to tip the first
factor in the parodist's favor.
With respect to the second factor, the creative nature of the original
normally will not provide much help in determining whether a parody of
the original is fair use. This factor favors Geffen Records Inc., but the
weight attributed to it is slight.
In assessing the amount and substantiality of the portion used, focus
is only on the protected elements of the original. Accordingly, the third
factor inquiry concerns what the parodist did besides going to the heart
of the original. Geffen Records Inc. is entitled to protection for artistic
elements exclusive to the artist professionally known as Beck . The copying
of these elements, which was carried out to an extreme degree by the applied
technique of Illegalart, took more of his work than was minimally necessary
to conjure it up. However, Campbell indicates that the copying by a parodist
of more of an original than is necessary to conjure it up will not necessarily
tip the third factor against fair use.
On the contrary, once enough has been taken to assure identification,
the reasonableness of taking additional aspects of the original depends
on the extent to which the overriding purpose and character of the copy
is to parody the original and the likelihood that the parody may serve
as a market substitute for it. The opinion notes that such an approach
leaves the third factor with little, if any, weight against fair use so
long as the first and fourth factors favor the parodist.
The select commitee has determined that the "Deconstructing Beck" release
does not interfere with any potential market for Beck’s work or for derivative
works based on it. This being so, the fourth factor favors Illegalart.
THAT it is therefore advisable not to litigate under these circumstances.
Litigation in cases not entailing direct piracy have been proven as not
economically feasible, compromising the integrity of Geffen Records, Inc.’s
exclusive recording agreement with the artist professionally known as Beck
with regards to future works. THAT the existence of the "Deconstructing
Beck" release will serve to increase awareness and sales of the artist
professionally known as Beck in accordance with evident trends examined
in related cases.
THAT the artist professionally known as Beck maintains the right, ability,
and integrity to respond to the Deconstructing Beck CD through creative
means and avenues, and that Geffen Records, Inc. would retain exclusive
copyright ownership of subsequent creative response.
THAT further legal action in this matter will serve to increase what
is deemed to be already exceptionally high media coverage, and that additional
public disclosure will only increase interest in an area of expression
which compromises professional artists' integrity, thus deliberately placing
them at considerable further risk of being subject to appropriation through
popularisation of the technique/technology inherent.
THAT litigation will serve to further the agenda of Illegal Art and
associated parties, and diminish the credibility and image of Geffen Records,
Inc. within its perceived target market and hence further compromise the
credibility and image of the artist professionally known as Beck.
These findings were submitted as formal statement for immediate attention
to the advisory board by the select committee on May 19th 1998. Reviewed
for release on May 26th 1998.
Further correspondence in relation to the findings of the select committee,
the statement issued by the advisory board, and criteria for review proceedure
can be obtained from the Adjutant-general, at the Australian address provided.
Sincerely,
Richard J. Alston Officer in Effective Control, ALPA
Office of the Adjujant-general, ALPA 46-48 Arden Street North Melbourne
3051 Australia Tel: +61 - 3 - 9534 9540 Fax: +61 - 3 9593 9701
++The British Literary and Artistic Copyright Association and The Copyright
Society of Australia will be hosting the 1998 ALAI Study Days: " The Boundaries
of Copyright: its proper limitation and exceptions" , 14 -17 September,
1998, at Queen's College, Cambridge, England. For information and application
forms, contact: The Courses Registrar, University of Cambridge Board of
Continuing Education, Madingley Hall, Madingley, Cambridge CB3 8AQ. Tel:
44-0-1954 210636
