Month: June 2016

by Arpan Banerjee, Jindal Global Law School (India)

from Volume 5, Issue 1 (Spring, 2015)

 Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: This article traces the history of how Western rock musicians and hip-hop musicians, separated by many decades, have borrowed elements from Indian music. Conversely, the article also discusses how Indian film music composers have frequently, and rather blatantly, copied Western melodies. While cross-cultural borrowing raises complex socio-political questions, this article focuses on some practical legal questions that arise from such borrowing. The article discusses lawsuits filed by artists in India and the United States — from a much-publicized lawsuit against Dr. Dre by the Indian film music composer Bappi Lahiri, to a more recent lawsuit against another Indian film composer by the Canadian musician Loreena McKennitt — and compares Indian and US law on musical and sound recording copyright infringement. The article also discusses legal strategies that might be employed by litigants in India. The article argues that, contrary to popular perception, plaintiffs in India enjoy a number of advantages.

by Christine Haight Farley, American University Washington College of Law

from Volume 5, Issue 1 (Spring, 2015)

 Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: Even before Campbell v. Acuff-Rose Music, Inc. made transformativeness the name of the game in fair use law, judges have been in search of artistic speech in their copyright fair use determinations, especially in appropriation art cases. Judges often find themselves ascribing meaning both to the defendant’s work and the plaintiff’s work when comparing the two in order to determine whether defendant’s art is new. So while many commentators attribute appropriation artist Jeff Koons’s victory in Blanch v. Koons after a string of losses to the development in fair use law contributed by Campbell, I instead argue that it has more to do with his change in legal strategy. In Blanch, Koons finally offered the court what it wanted: an “Art History 101” explanation of his work’s meaning—something he was too arrogant to do in previous cases. And the surprise in the Cariou v. Prince case was not the reversal of the restrictive requirement that fair reuses comment on the originals, but was instead the holding that transformative uses need not comment at all. Prince essentially refused to offer the court an explanation of the meaning of his work. As a result, the Second Circuit was hard-pressed to ascribe a meaning to his work that contrasted with Cariou’s. Instead, the court focused on objective differences between the works (size/color/materials) and a visibly different aesthetic (serene/natural beauty versus crude/jarring/hectic/apocalyptic). Thus, the “newness” that the transformative use test demands can be gleaned by the “reasonable observer” without any reference to the artist’s intentions. As a result, the provocateurs of the art world will not have to dumb-down their art as Koons did in Blanch. Judge Charles Haight in Rogers v. Koons described Koons’s art as “commenting upon the commonplace.” Not only was the judge clearly unimpressed with Koons, but he was also dismissive of appropriation art. In contrast, the Second Circuit in Prince accepts one of the central tenets of this art form: placing common images in new contexts can change the way we think of them. And we do not need the artist to tell us how.

by Michael B. Landau, Georgia State University College of Law

from Volume 5, Issue 1 (Spring, 2015)

 Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: As “fair use” has become more common as a defense to copyright infringement, often successfully, it has not gained any ground in cases involving music sampling. In the years since Campbell v. Acuff-Rose Music, Inc., we have seen the introduction of “transformative use” to fair use analysis. “Transformative use” has led to the holdings that thumbnail reproductions of photographs, parodies of novels, parodies of advertisements, changed artworks, the inclusion of legal briefs in searchable databases, the inclusion of music in film, and the mass digitization of millions of books are all “fair use.” Almost every day we read of another example that would have been copyright infringement pre-Campbell, that is “fair use” post-Campbell. Everything is fair game, except for music sampling. Why is there such hostility toward music sampling, a practice that if the courts followed their “fair use” doctrine, would be allowable as a “fair use?” This article looks at the difference between sampling a sound recording, a musical composition, and/or both. It also looks at expanding the compulsory license provision to allow for sampling.