This New York federal court ruling on copyright infringement provides a lesson for students in creative media. Students often thought that they could take whatever on the web and apply some changes (mash-up or remix) and re-purpose the IPs for their coursework. But, this court ruling shows that even the argument of “fair use” is not enough to re-claim the intellectual properties originally created by other people.
As my colleague Prof. David Sanjek remarked in his guest lecture on 16 February 2011, the law is a completely different (or alien) language. Through a nearly biographical way of recounting, Prof. Sanjek’s talk articulated the complicated relations between digital sampling, ownership and authorship. For example, copyrights law protects similarities – so adaptation is ok. In the case of sound recordings, the law doesn’t protect rhythm; it protects tangible recordings only. In light of John Cage‘s Four, thirty-three, it is not the idea of having a 4’33” silence that is copyrighted, but the recordings themselves. It’s just how the law functions.
The complication arose (or the digital rights legal dynamics changed) when MIDI came into play. With the emergence of MIDI synthesizers, one can take pre-existing records that few knew about, and make a new piece of music without having any instrument, just by inserting software or code to existing recording. With no trainings and no instruments needed, making music is no longer the privilege of a musical person. These kind of properties are common in hip hop and rap genres. Say, a hip-hop piece could have 200-300 different sources – so is such a newly created hip-hop song a stolen goods or a newly generated property? The prevalence of new technology (e.g., the midi revolution) gives new possibilities of music making, and facilitates reconfiguration of existing tracks. Under this condition, the original is not permanent; it is fragile in that its novelty can be over-ridden and that the recording can be broken up and turned into pieces. But the current law still cares little about protecting intangible objects (e.g., originality – hard to define “originality”); the law remains adhesive to tangible objects. Therefore, one has to make reference to what tracks used in a hip hop piece. Whereas law is often perceived as secondary to creativity to musicians, the market has systematised how people should be charged to use tracks (through e.g., musical forensics, inspecting which track was used). So in that case, “fair use” is to do with “density of sounds and tracks”
Many have proposed that the law should reconsider the language to include intangible objects (re-define what is “originality”). Lots of discussions have carried out in the debate of software patent (see e.g., No Software Patents!). Creative Commons licences also provide a flexible range of protections and freedoms for authors, artists, and educators (and my students have been taught how to choose a CC licence for their IPs). Often, game developers can’t even use the IPs they created for the previous employer (authorship vs. ownership). Given this, before a fundamental shift actually occurs in legal systems, one can never be too careful about re-appropriating any IPs (may it be All Rights Reserved or nebulously/improperly licensed ones).
Although Prof. Sanjek said copyright law of audio cultural products (e.g., sound and music recordings) is very different from that of video cultural products (e.g., photography, CGIs, movices), I thought a lot of essential legal concepts have been articulated in his talk (terminology e.g., fair use, reproduction, authorship, ownership). And I think this link between the Music and the Creative division can be further developed in the near future.
 US Copyright Office offers a wealth of resources, explaining copyrights laws in lay English.