p2pnet news view | P2P | Music:- “Kutiman’s musical instruments are other people’s videos, and they have an automatic privilege of copyright, which means he either obtains permission from everyone or they get to prosecute him for infringement (if they can afford it), and can otherwise have his work taken down from YouTube under the DMCA,” says Crosbie Fitch in a comment post to the p2pnet story on an amazing, mind-boggling, absolutely incredible virtuoso video mix.

“I had a great time searching for you and working with you,” says Israel’s Kutiman, the man who put it all together, figuratively and literally.

Copyright, “suspends what would otherwise be a musician’s natural liberty to build upon others’ published work,” says Crosbie.

“I think that is not only questionable, but highly unethical. Unfortunately, it’s the most I can do to convince people to at least question this state of affairs.”

Click here to get started (unless you have work in hand you absolutely have work you have to get done right this instant ). Or check out the YouTube post at the bottom for the first mix.

Meanwhile, p2pnet’s Henry Emrich was among the now hundreds of thousands of people who’ve  experienced (word used advisedly) Kutiman’s art (word used advisedly), and here’s what he has to say about it »»»

First word: wow!

I mean, seriously, wow. I’m honestly struggling for how to put into words how I feel about this:

Let’s try it this way: I like numbered lists (as anybody who reads my stuff can probably tell!)   So, here’s a numbered list related to Kutima:

No disrespect to Dangermouse or anything, but for me, this is a better project. Dangermouse’s “Grey Album” is basically a fairly-straight “mashup” between Jay-Z’s Black Album, and the Beatles’ White album.  Great idea, like I said, but his “sonic pallette” (for want of a better word) is pretty restricted.

Kutiman’s album isn’t so much a mashup, as an extremely elaborate sonic sculpture, painstakingly assembled from disperate fragments floating around Youtube, which ends up as “more than the sum of it’s parts”.

For one thing, the songs themselves are extremely tightly thought out, with tremendous care and selectivity in terms of what source material was used for particular songs:

“The Mother of all funk chords” opens the album with (of all things) “studio-chatter” involving several musicians who — importantly — at the time, had no idea whatsoever what they said would eventually end up in the project.  It then blasts full-force, into something that sounds to me for all the world like a cross between a 1970s-era porn groove, and the soundtrack to “Flash”.

I’m not going to tell you about any of the other songs, except to say that they all have their own unique genre, and every song holds up — unlike the all-too-common complaint we often hear about albums released by the member companies of the RIAA.

The thing I find most provocative about the whole project is that, for the life of me, I have no idea whatsoever what the “legal status” of this album IS, and I’m pretty sure nobody else does, either.

Let’s think about the album in terms of the four-part test normally used to determine what constitutes “fair use” (We’ve been thinking about that topic rather a lot here in Possum Gulch)

According to Wikipedia:

The first factor is about whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only “supersede the objects” of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.”

1. Considering that everything is drawn from existing Youtube videos which are made available freely, it’s exceedingly unlikely that anything about the album could “supersede the objects” of the originals.  Moreover, since Kutiman has made the resulting mix available free of charge, it’s hard to see how he can be said to have “profited” in the narrow, merely financial sense to which seemingly everything is inevitably reduced these days.

As to whether it’s innovative, and “helps fulfil the intention of copyright law to stimulate creativity for the enrichment of the general public” — well, just look at the thing!

Wikipedia has this to say in regard to the second factor:

Although the Supreme Court of the United States has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional.”

To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright—only their particular expression or fixation merits such protection. On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. Yet their copyright was not upheld, in the name of the public interest, when they tried to enjoin the reproduction of stills from the film in a history book on the subject in Time Inc. v. Bernard Geis Associates.

Given that Kutiman’s album so radically “recontextualizes” every one of the fragments used, it’s hard to see how this would apply at all — especially considering that the originals from which such fragments derive are ALSO available via Youtube — he even provides links.!

The third test, amount and substantiality, “assesses the quantity or percentage of the original copyrighted work that has been imported into the new work,” says the Wikipedial going on:

In general, the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see Sony Corp v Universal City Studios for a case in which substantial copying—entire programs for private viewing—was upheld as fair use. Likewise, see Kelly v Arriba Soft Corporation, where the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not weigh against fair use, “if the secondary user only copies as much as is necessary for his or her intended use.” Conversely, in Harper & Row, Publishers, Inc. v Nation Enters, the use of less than 400 words from President Ford’s memoir by a political opinion magazine was interpreted as infringement because those few words represented “the heart of the book” and were, as such, substantial.

Before 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The strict decision against rapper Biz Markie’s appropriation of a Gilbert O’Sullivan song in the case Grand Upright Music, Ltd. v. Warner Bros. Records, Inc. changed practices and opinions overnight. Samples now had to be licensed, as long as they rose “to a level of legally cognizable appropriation.”[13] In other words, de minimis sampling was still considered fair and free because, traditionally, “the law does not care about trifles.” The recent Sixth Circuit Court decision in the appeal to Bridgeport Music has reversed this standing, eliminating the de minimis defense for samples of recorded music, but stating that the decision did not apply to fair use.”

THIS is where it *might* get hairy. 

It’s hard to know what constitutes “the heart” of any of the particular fragments utilized. 

Moreover, the fact that the original videos were uploaded to Youtube in the first place could reasonably be construed as at least an implicit consent for such recontextualization — especially given the fact that other, broadly similar stuff has become a rather uncontroversial part of the Youtube cultural “scene”.  (See, for example, any of a vast number of parodies/derivatives of the infamous “Leave Britney alone” video made by Chris Crocker.)

As to the fourth test:

The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner’s ability to exploit his original work. The court not only investigates whether the defendant’s specific use of the work has significantly harmed the copyright owner’s market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony Corp. v. Universal City Studios,[14] where the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In the aforementioned Nation case regarding President Ford’s memoirs, the Supreme Court labeled this factor “the single most important element of fair use” and it has indeed enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court’s more recent announcement in Campbell v. Acuff-Rose Music, Inc.[15] that “all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright” has helped modulate this emphasis in interpretation.

In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work: First, courts consider whether the use in question acts as a direct market substitute for the original work. In the judgement of the Supreme Court in Acuff-Rose Music they decisively stated that, “when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur.” In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner’s official trailers.[16] Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-pack for college students, when a market already existed for the licensing of course-pack copies.

Courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.

I honestly don’t know how to answer that one, especially given the unarguable fact that YouTube clips — offered freely as they are — are very often NOT strictly speaking, “commercial” in the way that I think this is describing.

But enough blather.

Go watch the thing. And enjoy it!

Henry Emrich – p2pnet
[Ermich says he's, "just some guy," sometime musician, wannabe writer, sporadic blogger, and (hopefully) good-natured person.  He and his wife  live in Pennsylvania with two cats, and, "entirely too many record albums".]

p2pnet – Kutiman – [brilliant] Art Outlaw, March 5, 2009

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This entry was posted on Monday, March 9th, 2009 at 10:23 am and is filed under Music, P2P. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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