U.S. Congress. House. Design Piracy Prohibition Act. 110th Cong., 1st sess., H.R. 2033. (25 April 2007).
This is one piece of legislation proposed to protect fashion designs from piracy. This Design Piracy Prohibition Act would basically give fashion designs protection for three years after the application for registration is submitted. Within this act, the terms fashion design, design, and apparel are defined so as to create a definition of what can actually be protected under this bill. The reason these are defined within this bill is the ambiguous nature of these words. Without a clear definition, there would be way too many interpretations of the clauses of the Design Piracy Prohibition Act. The bill also states the terms for submitting a design for copyright protection. Basically, any rights to protection are lost if the design is not submitted within three months after the design is made public. The bill also briefly lists the monetary penalties for any pirates if found guilty of copyright infringement.
This bill is an important source for any paper on fashion copyright since it provides an example of the types of legislation that would supply design protection. Even though this bill has not gone through, many of the Design Piracy Bills follow this basic structure for fashion copyright. Therefore, this source provides an example of how effective bills can be in providing protection. In addition, many sources reference this bill and its contents. So, it is useful to have the actual bill and its wording to look back upon and analyze as a primary source. The bill basically amends title 17 in the United States Code to provide for fashion design protection. By looking at how proponents of fashion copyright will protect fashion designs, I can decide, within my paper, whether these laws are beneficial or effective enough to even bother enacting. Thomas, the site where this bill is located, also provides a list of sponsors for this bill. There are only fourteen sponsors, which creates suspicion as to how effective or plausible this bill may actually be. Information like this surrounding pieces of legislation make bills useful sources.
U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property. Testimony of Steve Maiman in Opposition to H.R. 2033. 14 February 2008.
This source is the testimony of Steve Maiman, co-owner of Stony Apparel, against the Design Piracy Prohibition Act. Maiman is completely opposed to extending copyright protection to fashion design. According to Maiman, fashion has grown into a huge, thriving, competitive industry without any help from copyright protection. Nothing has changed recently within the fashion industry to suddenly need copyright protection now. He claims that enacting bill H.R. 2033 will be detrimental to the fashion industry and economy, reduce creativity, and hurt the consumers. He speaks against fashion design protection proponents by stating that customers in fancy boutiques are willing to pay more for apparel despite pirates creating imitation designs. He then addresses the negative consequences this bill will have on the fashion industry, especially firms like Stony Apparel. This bill will make financing firms extremely difficult since retailers will immediately return anything claimed, even falsely claimed, to be infringing. Invoices would become meaningless. Since retailers would also be held liable with this bill, retailers would refuse to do business unless the manufacturing firm can provide compensation for any possible loss. This new demand for compensation will create an even larger finanacial risk for manufacturers and retailers. The fashion industry is already an area filled with risk and this bill will simply add another layer of risk since everyone will have to now deal with the possibility of frivolous law suits. This fear of infringement will lead to an increase in the prices of apparel since designers will need to hire lawyers to interpret their every design out of fear of suit. In addition to price inflations, the innovation rate would slow down. However, the biggest consequence of this bill would be the effect on designers interpreting a trend. If designers are too scared to work with a trend, one of the biggest methods the industry uses to attract consumers will be cut off. This bill will only aid rich, established designers who can afford lawyers. However, the young generation of rising designers with fresh, new ideas will disappear. Fashion copyright will hurt designers, consumers, manufacturers, and retailers. Only lawyers will benefit. Benefitting lawyers is not worth splitting America into a class that can purchase copyrighted clothes and a class who cannot afford to anymore.
This is a very crucial source since it provides a primary account of a fashion manufacturer. Since it is a primary source, it provides real concerns plauging manufacturers and store owners within the fashion industry. Maiman actually has to deal with the consequences of the bill. So, what he has to say comes from experience and is very reliable. Although he is obviously biased since he has a stake in the outcome of this war, his arguments arise from legitimate concerns he would have to deal with if this bill passed. Secondary sources are just opinions of people outside of the industry looking in. He basically structures his argument around the negative consequences of enancting the Design Piracy Prohibition Act. He also addresses the concerns brought up by the other side and then explains why these are unreasonable. By showing the possible consequences of going through with fashion copyright for players in the industry besides himself, such as consumers, designers, and retailers, he effectively makes his position against protection appear to be beneficial for the majority of the industry.
Raustiala, Kal and Sprigman, Chris "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review, Vol. 92, p. 1687, 2006; UCLA School of Law Research Paper No. 06-04. http://ssrn.com/abstract=878401
This detailed article is an in depth view of both sides of the fashion copyright debate. Rather than simply looking at and supporting only one viewpoint on this controversial issue, the authors address both angles to the fashion copyright controversy. They then proceed to prove why support of low IP protection is the better choice despite arguments made in support of fashion copyright laws. This article describes the fashion industry as unique since it continually produces original content while its main creative element remains outside of copyright protection. This appears to condradict the theory of IP rights which claims that copying, which is rampant in the fashion industry, smothers the incentive for innovation. The article then presents the reader with the two overarching arguments. The argument for increased copyright protection within the fashion industry is more of a moral rights claim. This side claims the lack of current fashion design protection is an injustice to the immense creativity put into the creation of apparel. The other side looks at the unique nature of the fashion industry. They claim copying drives the cycle that makes fashion such a thriving, innovative industry. The article then proceeds to delve into past attempts at copyright protection for fashion. One failed attempt was made by the Fashion Originators' Guild of America: they made a deal between designers and retailers to refuse the sale of any copied apparel and boycotted any member of the guild who violated this rule. Since clothing and apparel are considered utilitarian objects, copyright should not apply to fashion design. Patents and trade dress also are not effective methods of protecting copyright. Although trademark is used by designers, it can only be used to protect names and logos, not entire designs. Therefore, bills like HR 5055 are suggested by groups like the CFDA. One of the main concepts of this paper is how induced obsolescene and the positional nature of apparel drive the fashion cycle, which would be incredibly slow and ineffective without copying. In addition, Raustiala and Sprigman explain how free appropriation helps to anchor trends in the industry. So, they conclude that due to induced obsolescene and anchoring of trends, the fashion industry has remained stable despite rampant copying. Finally, the authors address the copyright system in the European Union and how even with protection laws, very few design infringment cases come to court. Additionally, due to the litigious culture of the United States, copyright protection in the US would simply flood the courts with unnecessary cases and reduce innovation due to fear of suit.
This article is of extreme importance to any research regarding the issue of fashion copyright. The article is unique among other scholarly works on this issue in that rather than just delving into one side of the debate, the authors address the arguments on both sides of this fashion copyright war. This is an extremely useful method and structure since it provides the reader with insight into both arguments. However, the article is then strengthened by analyses of both arguments and subsequent counterarguments against those supporting fashion copyright. Since my topic revolves around whether fashion copyright should be enacted or not, having both argments laid out within one coherent paper is extremely beneficial. The paper also looks at previous attempts at fashion copyright. This is important in building the history and basis of design protection in my paper and why these laws should not be enacted in the present day. This article is very important in building the foundation of my argument.
Barnett, Jonathan, Grolleau, Gilles and Harbi, Sana El. "The Fashion Lottery: Cooperative Innovation in Stochastic Markets." USC CLEO Research Paper No. C08-17; USC Law Legal Studies Paper No. 08-21. http://ssrn.com/abstract=1241005
This article puts an economic spin or an economist's viewpoint on the fashion copyright debate. In other words, it applies economic principles to the fashion industry to show why an incomplete property regime, not complete copyright protection, is the most sensible situation for the fashion industry. To build this argument, the author first explains the concept of "fashion risk," the main economic problem in fashion. Due to demand uncertainty in the fashion industry, it is difficult to forsee if a new design will be successful. So, designers need a system of collective insurance to balance the losses from seasonal product failure and the risk of firm bankruptcy. This collective insurance comes from designers allowing limited imitation which maximizes earnings in the long run. Basically, how this economic idea works is that the designer that produces the "winning" design for that season earns a larger prize, keeping the incentive for innovation alive. However, the incomplete property regime also gives smaller profits to the "losing" designers as a kind of insurance against the "fashion risk." This method is termed the "winner take most" approach. The article then transitions into three different types of imitation: mark perfection, design perfection, and quality perfection. These are then related to three different methods of imitation: horizontal imitation, legitimate vertical imitation (knockoffs), and illegitimate vertical imitation (counterfeits). Basically, horizontal imitation is copying among high end designers while vertical imitation is copying of elite designs by lower end fashion designers in a trickle down effect. As stated previously, the fundamental economic problem for designers is demand uncertainty and the associated risk of bankruptcy. By allowing horizontal imitation and legitimate vertical imitation, this risk is greatly reduced. An obvious way to success for the majority of the market is to wait until the winning design is determined for the season by the consumers and then release imitation products as this eliminates risk and increases success. However, this would kill innovation. So, the best solution is incomplete protection-positive yet constrained imitation. The economics equations show that to maximize final wealth and minimize the variance of final wealth incomplete, not complete, property regimes are required. This can be explained by the idea that at one extreme the winner does not make enough and so incentive is low. At the other extreme, insurance is too low and risk is too high. Both of these cases lead to underinnovation. In short, some imitation supports design innovation while too much or too little undermines it. Therefore, only the very few elite firms can afford the complete copyright protection suggested by bills such as the Design Piracy Prohibition Act.
This article is a very unique way to approach this fashion copyright war. It is an invaluable asset to my argument against enacting fashion design protection laws. This article basically utilizes economical principles to build mathematical equations proving that incomplete copyright protection or rejection of recently proposed copyright laws is more beneficial to society than enacting complete protection for fashion designs. The organization of this paper with alternating pieces of mathematical equations and textual analysis creates an extremely convincing and almost indisputable argument due to the logical thought process this method of presentation creates. This article greatly enhances my argument in that it provides an alternative viewpoint, particularly an economist's angle, which still points towards the same conclusion: fashion copyright laws should not be enacted.
Hedrick, Lisa J. "Tearing Fashion Design Protection Apart at the Seams." Washington and Lee Law Review, Vol. 65, No. 1, pp. 215-273, 2008. http://ssrn.com/abstract=1127190
This article presents both side of the copyright debate more in terms of the pieces of legislation proposed for fashion copyright. It goes through the pros and cons of either side of the fashion copyright argument and then argues against the enactment of these laws. Fashion design falls within the negative space of copyright protection. Therefore, designers cannot prevent knockoffs of their original designs. This paper acknowledges that these knockoffs are harmful as they hurt the designer's profits and reputation due to the low quality of imitation products. Piracy causes almost $12 billion of loss in the fashion year annually. The paper is set up this way and the author then skillfully uses all these facts that seem to support fashion copyright to show why copyright laws are ineffective in stopping any of these problems. First of all, terms such as fashion design, apparel, and design are extremely ambiguous but are used within the Design Piracy Bills. This is simply because fashion is hard to define and consequently very difficult to protect. The author also explains that fashion also cannot effectively use patents, trademark, trade dress, or copyright (due to its utilitarian function) for protection purposes. In addition to the vagueness of fashion lingo, the Design Piracy Bills would simply cause congestion of the courts with senseless cases due to the extreme subjectivity that would be involved in fashion court cases. Even if the bills went through, there are so many loopholes that pirates can find within these bills to basically render any protection useless. Finally, Hedrick looks at the fashion laws in the European Union and shows that even with laws hardly any cases come to court regarding piracy. However, she points out the cultural differences in that America is much more litigious and these laws could force designers to pay large amounts of money for lawyers to protect clothing that has a short shelf life. In addition, there is no guarantee that courts will even be able to punish pirates. It is also very possible that the laws enacted in the US would be much stronger than those in the European Union, which could lead to monopolies that would stifle creativity. Although Hedrick is opposed to these laws, she does make some suggestions on how to improve fashion copyright dealings if these laws go through. Overall though, her basic argument is that effective protection by Congress for fashion design is impossible. So, no protection is better than minimal protection. Any benefits that might arise from design protection would diminish rapidly with the cost and time of court decisions on piracy.
This source is obviously beneficial to my argument since it supports my thesis. However, the importance of this source is due to the rational and legal method used by the author to argue against fashion copyright. The author basically looks at the problems with the fashion industry at present and then shows the correlating proposed laws. However, she then analyses these legal proposals to show that they are extremely ineffective at solving the issues surrounding the fashion industry. If anything, these "solutions" might actually make things worse. The argument basically concludes that the fashion industry is inherently incapable of useful intellectual property protection. Therefore, time and energy should not be wasted on implementing laws that will most likely not benefit the industry.
Picker, Randal C. "Of Pirates and Puffy Shirts: A Comment on the Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review, Forthcoming; University of Chicago Law & Economics, Olin Working Paper No. 328. http://ssrn.com/abstract=959727
This article takes the side of those individuals supporting the enactment of fashion copyright. This argument is made using past attempts at employing fashion copyright laws to protect designs and the results of these attempts. One major example used to support this claim of positive effects resulting from design protection is the Fashion Originators' Guild of America. This guild basically organized registration and monitoring for apparel with a threat of boycott of any retailer who sold knockoffs. The claim here is that this increased intellectual property protection resulted in greater innovation efforts. Although the Federal Trade Commission took down this organization, the article argues that the fact that it formed demonstrates that high end designers do want greater protection. This argument is made against other claims that the members of the industry do not even want increased protection. The argument then continues into the present time and the benefits these laws would endow on the fashion industry. With fashion design protection, high end designers can make credible promises to their consumers, which is impossible with the current amount of knockoffs in the market. With the ability to make credible commitments, high end designers could raise their prices and make more money off their original designs. Therefore, there is clearly a benefit to high end designers that accompanies increased protection. Also, the author argues that imitation in the industry is only one sided with the high end designers having to deal with the rapid imitation of their original designs. With copyright, these designers could promise their consumers that this rapid copying of the apparel they are buying would not occur. Basically, the author here argues that the rampant copying in the fashion industry is detrimental to the high end designers and their customers. Therefore, copyright protection is necessary to protect their rights and keep low end designers from exploiting the low protection regime of the fashion industry.
Although this source complicates my thesis by working against my claims that fashion copyright laws should not be enacted, sources like these are absolutely necessary to develop a strong paper. These claims will provide something for me to argue against and prove incorrect in my argument. Without addressing opposing opinions, the argument and paper would be weak. This article clearly utilizes an analysis of the high end or elite designers to support the claim for increased fashion design protection. However, it avoids looking at the effect of copyright laws on the rest of the fashion industry. However, it is still a useful source as it provides the perspective of a high end designer, the biggest victim of piracy or imitation.
Subcommittee on Courts, the Internet, and Intellectual Property, Committe on the Judiciary, U.S. House of Representatives. Design Law: Are Special Provisions Needed to Protect Unique Industries-Testimony of Fashion Designer Narciso Rodriguez. 14 February 2008.
This source is a testimony by Narciso Rodriguez, a fashion designer and board member of the Council of Fashion Designers of America. This testimony is in favor of HR 2033, the Design Piracy Prohibition Act. He first presents some astounding figures such as the annual loss of at least $12 billion in the fashion industry due to piracy. He then takes the audience or reader through an almost emotional trip by explaining all the training, hard work, and money that goes into becoming a designer. With all the time and money invested within the fashion industry, pirates are just making a risky business riskier. He then constructs an argument for fashion copyright using a sad, personal anecdote. In other words, he plays on emotions and moral rights to make his point. He basically recounts a story about an original design he made that was copied and sold by pirates millions of times. Without protection for fashion design, US companies arise with piracy as their business model. These companies can afford to make large quantities at low prices, causing more sales for the pirating companies than for the original designer. Rodriguez then suggests the positive results of enacting copyright. Pirate companies would be forced to hire real designers, increasing the job market for designers and creating a great choice of original designs for consumers. He admits that in the past clothing was a functional object and therefore did not require protection. However, he believes that fashion has now become an art that is no longer just utilitarian. He then addresses the other side's concerns by claiming that only truly unique designs will be copyrighted, not all designs. He also states that the three year protection period will simply allow designers to reach the market before the pirates. After these three years and with a large public domain still in existence, previous designs can still be used for inspiration. He also addresses the concern that this will increase apparel prices by claiming that accessibly priced clothing will still exist, but the creation of these derivative lines will be through the original designer. Through explanation like these, Rodriguez attempts to passify the concerns on the scope of the legislation of copyright opponents.
This testimony by Narciso Rodriguez is very beneficial since it is a primary source coming from an elite fashion designer. It provides the viewpoint of someone within the fashion industry. Rodriguez begins his argument with a very emotional approach regarding his personal experiences and losses due to piracy. After getting the audience's sympathy, he provides some positive benefits of enacting copyright. He concludes his argument by addressing the concerns of the skeptics of fashion copyright. Rodriguez is a biased source since he obviously can benefit if the copyright laws are enacted. However, his testimony provides some real insight into the minds of fashion designers and the actual issues they face due to piracy. Therefore, this article provides a better sense of the real problems plauging the industry and if these laws can actually address these issues. So, although this testimony may not support my thesis, it provides better issues to address and counterargue than secondary sources would.
Time Inc. "Dress War." Time Magazine, 23 March 1936.
This newspaper article from the 1930s presents a more in depth view of the Fashion Originators' Guild of America. This article was written when retailers began noticing the guild was abusing its powers. This article gives examples of the guilds' abuse of power. The guild basically believed it had the power to decide which pieces of apparel were copies and which were not. If a retailer did not agree to remove whatever the guild instructed them to, the store would be "red-carded." In other words, the guild would inform all designers and manufacturers to boycott this retailer. So, Filene's Department store uses this abuse of power to accuse the guild of attempting to monopolize the fashion industry by blacklisting disobedient retailers and creating heavy penalities for anyone who broke the guild's rules. This particular battle between Filene's and the guild is the core of this newspaper article. However, the author takes the reader through the history of the guild and why it began in 1933. The guild began as a way to pick up the fashion industry during its low point in the Great Depression. The members of the guild agreed not to purchase anything known to be a copy of original designs by guild members. The members agreed to these terms for apparel in the higher priced range. This protection did indeed decrease business mortality and increase original design creation in the high end market. However, once the guild's power began to increase, they starting imposing these protection rules on lower priced apparel as well. The retailers were not happy with this power abuse since they could not compete with chains who were selling these lower priced pieces with no restrictions. In addition, customers buying clothing in this range do not care if their purchases are imitations. So, the guild was basically just abusing their power rather than creating rules to benefit the industry.
Although this article does not necessarily provide direct support for either side of the fashion copyright debate, it is an extremely important resource since it provides the history of a previous attempt at fashion design protection. Therefore, this article will provide a way for me to demonstrate why copyright laws should not be enacted in the present. Although current proposed laws will likely learn from the mistakes of the guilds, this article shows that even in the 1930s, only high end designers wanted protection. For the rest of the industry, copyright laws would cause more harm than good. This article is structured to show the many different and conflicting desires of the various players in the fashion industry. This makes any effective and lasting protection very difficult in this industry. Therefore, this article provides a historical example as support to why effective copyright laws for fashion are not only nearly impossible, but also somewhat harmful.
Sprigman, Christopher. "Fashion Copyright, 'Corruption,' and the Unheard Consumer." Public Knowledge Blog. http://www.publicknowledge.org/node/1404. February 20, 2008.
This blog provides some very useful insight into how the fashion industry works and the corruption plauging the industry. The fashion industry's success can be attributed to the cyclical nature of consumption. Basically, copying helps to set trends, trends lead to consumption, more copying destroys that same trend due to overexposure, and the industry moves on to new trends. Therefore, copying does not harm the process; it is the process that creates profits in fashion. Why then would anyone want to destroy the process that generates money? Sprigman answers this question by accusing the Council for Fashion Designers of America of corruption and selfishness. The CFDA is the group that is promoting copyright laws for fashion design. However, the CFDA only represents a small fraction of the industry, the elite designers. The needs of the thousands of non-elite designers, manufacturers, retailers, distributors, and consumers are completely overlooked by the CFDA. These elite designers, who sell clothes for ridiculous prices, are the only ones who can afford to compete and prosper in a revised industry where every design is subject to infrigement suits. This is because these elite groups are the only ones who can afford lawyers. Just to increase profit a little for the small group of elite designers, the CFDA is going to raise prices and reduce consumer choices in an industry that has been incredibly successful for a very long time. These laws hurt consumers. However, consumer needs are ignored because of corrupt politics. These elite corporations can afford to pay Congressmen to sponsor the passing of bills they support. Therefore, intellectual property laws are badly warped due to elite desires and political corruption.
Although blogs are not necessarily the most reliable sources, the author of this blog is Chris Sprigman, the author of the Piracy Paradox. This blog is so interesting because it provides a completely different take on the fashion copyright war: a political angle. Rather than having an equal amount of people of either side of the debate, Sprigman argues that only a very few elite designers actually support these laws. The other supporters, such as those in Congress, are just a result of corruption. The argument here is the decision made regarding this issue should benefit the majority or the "public good." Since the CFDA is a small fraction of the fashion industry, passing these laws would harm the majority simply because this elite group is able to buy support. Therefore, this article is structured around attacking the CFDA and Congress and their reasons for supporting design protection. This will be very beneficial to my paper and argument since I can use these claims to counterargue declarations that fashion copyright will benefit the industry, consumers, and the fashion cycle.
Rangnath, Rashmi. "Design Protection for Fashion Design and Autoparts: A Bad Idea Times Two." Public Knowledge Blog. http://www.publicknowledge.org/node/1399. February 16, 2008.
This blog considers the design protection for fashion designs and autoparts in terms of markets and niches. In terms of fashion design, the author argues that knockoffs do not damage the market for original designs much at all. Obviously there is some effect on the original designer, but the author argues that this effect is negligible due to the different markets that original designs and knockoffs compete within. Customers who can afford to buy runway designs are going to buy these original designs regardless of how many imitation versions are circulating. This is because the people who are willing to pay so much for clothing want to be able to tell others they are wearing an original. For them, only the original can give them the status they desire. On the other hand, people who cannot afford these original designs do not care if their clothing gives them status. In actuality, these customers still would not purchase the original design if the knockoffs were not present in the industry. These consumers are fine with the lower quality imitation once the trend trickles down. For this reason, elite and original fashion designers have no need to lower their prices to compete with knockoffs and imitations. This is because these two versions are marketing and selling to two different groups of people. They are operating within two different markets. Finally, the blog ends with an attack on elite designers who claim pirates end up selling more imitation versions than the designers can even imagine to sell of their original. The author argues here that in the elite market, the designer can sell very few items at a incredibly high price while pirates may sell thousands of products, but at virtually nothing compared to the original's price. Therefore, the elite designers probably come out ahead in terms of profit. The author makes a correlating argument against autopart design protection, which does not apply to the topic of interest.
This blog was chosen as a source for my paper because it has a very unique approach in looking at fashion designs and their imitations. Rather than looking at the logistics of the fashion industry or as someone from within the fashion industry, this blog arrives at this issue from the viewpoint of a consumer. In other words, the blog looks at the various classes of consumers and their different markets in order to suggest that imitation is not really harming anyone to an extent where copyright laws need to be enacted. By looking at the fashion copyright debate from a consumer and market viewpoint, this blog provides incredible support for my thesis by showing that a lack of copyright laws in fashion actually helps the industry thrive in all consumer markets. With design protection, the market for low end customers may very well be knocked out since a majority of consumers do not shop around in both low and high end markets.
The temporary restraining order (TRO) application filed by DVD-CCA and motion picture studios against Real Networks seeks to halt the sale or distribution of the RealDVD software. It argues that the software circumvents the Content Scramble System (CSS) that is used on DVDs to protect the copyrighted content, and is therefore illegal. It also states that the software infringes on current and future markets for digital distribution for the studios.
This document is important, as it is really the reason for my paper topic. It outlines the basic argument of the MPAA against RealDVD, thereby providing an outline for what I need to cover in my own analysis of the issue.
This fairly short case played a large part in the demise of sampling as a legitimate artform. The case begins "Thou shalt not steal," which places sampling clearly in the category of theft. The case follows the incident in which Biz Markie sampled a portion of "Alone Again (Naturally)" by Gilbert O'Sullivan for his track, titled "Alone again." Biz Markie attempted to acquire the rights to use the samples and upon failing prodeeded to use the sample anyway. The court decided that "it is clear that the defendants knew that they were violating the plaintiff's rights as well as the rights of others. Their only aim was to sell thousands upon thousands of records.This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures."
This case's relevance is fairly obvious - this case was one of those that helped to create the anti-sampling precedent which makes it so difficult for a sampling artist to legally go about creating material. Particularly shocking is the complete absense of any discussion or consideration of Fair Use. The judge in this case simply assesses whether or not Biz Markie acquired a license to sample O'Sullivan's track and whether Markie knew that he needed to get a license. There is no mention of whether or not the use is transformative or of the potential market impact of the new version on the original. I have never heard either song, so I cannot make the evaluation myself. Nevertheless, I find it shocking that the court wouldn't even consider the possibility that it could have been a fair use.
Bridgeman Art Library, LTD v. Corel Corp. ended the argument that exact copies of any material are not copyrightable. For example, the Mona Lisa is a public domain work. However, collage artists found that when they wanted to get a reproduction of the Mona Lisa to use in their works, they still had to pay high licensing fees because the reproductions were copyrighted by the reproducers. The reproducers argued that because it takes great skill and effort to create a perfect reproduction of a painting. While the court admitted that although it is difficult to create a perfect reproduction of a work, the fact that the reproduction is exactly that - an exact reproduction - no artistic value added. Therefore the reproductions are not copyrightable.
This decision is important because it enabled collage artists to use public domain material in their works without having to make the reproductions themselves or getting a license from the museums or private collectors who were making reproductions of public domain works of art. Essentially, this court decision makes collage a potentially legal and viable art form. Without this case, collage artists would be basically without a means of accessing public domain works for use.
The case in which the court wrote: "Get a license or do not sample. We do not see this as stifling creativity in any significant way." A bit of a setback for mashup/music collage artists. We studied this one in class, but it's certainly relevant and important to this topic. The George Clinton estate sued because a short sample of a Clinton song was employed in a different song. The court came down very harshly against the samplers, ruling that all samples must be licensed or else the sampler has stolen from the original author.
This case is extremely relevant to my paper because it is my contention that the court was wrong in dismissing unlicensed sampling as theft. Although I am very willing to admit that sampling of copyrightable material can infringe on the original copyright, it is my contention that if sampling artists are careful to make sure that all of their uses are transformative, it is possible to sample in a constructive and legal manner without a license.