Re: Merger Doctrine Question -- Idea/Expression

Charles B. Kramer <tilyou1[_at_]aol.com> wrote:
>
> On Tue, 10 Nov 1998, Steven Hoffer <worldvu[_at_]well.com> wrote:
> >
> > Put another way, suppose Ms. Y uses Mr. X's copyrighted photo
> > of a cheetah in air-borne in mid-stride, and reduces it to a
> > silhouette of the cat. If she then modifies it in several other
> > respects that are clear only upon close inspection, can she use
> > that image on her brand of tennis shoe without violating the
>
> There is a commonly held -- but wrong -- view that "if you change it
> enough, it's not infringing". Changing something "enough" usually just
> means that you've made infringement difficult to prove, not that there
> is no infringement. In fact there are 2 infringements: making a copy,
> and then making a derivation of it. When someone takes a work an in a
> physical way (digitally, by tracing, anything) and reproducing it, I
> don't think intellectual justifications that only an "idea" was copied
> apply.
>
> I will leave to those more philosophically inclined whether something
> copied and changed so radically as to be unrecognizable is even a copy
> or a derivation. Sure some painters start with an image of a house and
> end with a painting of a seashore -- is that derivation? But as long
> as any element, even a changed one, of the house remains, the better
> analysis is the "poisonious seed": you start with an infringement, and
> everything that follows also is an infringement.

Mr. Kramer's argument is the very counter to the proposition that, e.g., people who do sampling of music and then change it so much as to make it unrecognizable as compared to the original, are nonetheless infringers, due to the original impermissible copying as well as the derivation. I agree with the argument. Unfortunately, although I'm a pretty strong advocate of copyright, I am also somewhat inclined to think that, at least in the musical context, there comes a point at which it no longer seems to me to be useful. For example, Vanilla Ice's song "Ice Ice Baby" is a blatant and obvious ripoff of the Bowie/Queen tune "Under Pressure." I think it has musical merit, but it was nonetheless done without permission. However, had Vanilla Ice taken the same passage, reversed it, sliced it into four unequal parts and rearranged the parts, flanged it, phased it, added horns, and a different meter, it would very likely not be even remotely recognizable as a derivative of the original - and, it might even have musical merit. Courts already make determinations all the time on whether something is "too close for comfort," much less substantial/original enough, so there is no bright line test. Might it be workable to have the law provide that when a derivative is so far removed from the original as to make any determination of copying and derivation impossible, it vitiates the liability for the technical infringement of the original copying and even the derivation? Arguably, in the case of some sampling activities, it would advance the arts (and it certainly happens all the time - one distinct advantage, to the [sampling] artist, of that degree of slicing and dicing of a sample of another's work is that the recognition of the original work, much less the proof of the infringement, is about as easy as pointing out the eggs in an omelet.

Roger Cloud
<rcloud[_at_]surfnetusa.com> Received on Thu Nov 19 1998 - 05:18:26 GMT