Derivative Works are awesome. Warner music group? Not so much.

July 16, 2009

From Wired’s blog:

Keyboard cat, the posthumously famous feline formerly known as “Fatso,” is a perfect example of what passes as a mass-market phenomenon these days. With over four thousand videos to his name on YouTube and millions of views, keyboard cat has “played off” everyone from Glenn Beck’s woozy guest to TechCrunch’s Michael Arrington (NSFW audio).

But not everyone gets the joke. Keyboard cat will no longer be collaborating on YouTube with Hall & Oates, whose label, Warner Music Group, excised the audio from a video including Helen Hunt’s turn as a teenage drug casualty in the 1982 film Desperate Lives, the Hall & Oates hit “You Make My Dreams Come True,” and — of course — the mighty keyboard cat, who plays off Hunt’s character with the help of the two erstwhile pop stars.

Warner Music Group didn’t think this was a worthy use of Hall & Oates’ music, so it hobbled what CNET is calling “the greatest music video ever”

And now we run into the biggest issue with copyright law in the United States: Derivative works. Derivative works are any work based on one or more pre-existing works. Examples include hip hop songs that sample other artists, Mona Lisa with a mustache, and fan fiction.

While there are fair use considerations in play here, the reality is that the body of work by courts on the use of derivative works has been used to make the production of derivative works extremely costly and difficult, as is the case with this story.

Fair use of derivative works has been ruled that in order for a fair use defense to apply the new work must bring some new insight that the works on which they are based do not. Now, I may not be the keen eyed observer of poetry and music that others are, but I would guess that what Hall and Oates were so cleverly singing about in the 80s with “You make my dreams come true” was probably not what keyboard cat was bringing to the fore with Helen Hunt’s drug-crazed lunacy (and, really, is there any other way to appreciate the stylings of Helen Hunt?).

Yet, the video is gone, crushed beneath the legal boot heel of Warner Music Group.

This is a primary example of where copyright law needs to be reformed. Copyright law should be encouraging the creation of new art (even the silly kinds of art such as keyboard cat), not being used to discourage it. When it comes to derivative works, the standard needs to be whether or not the new work has the effect of largely replacing the work on which its based. So if a hip hop artist samples Frank Sinatra, the chances of the new song taking many sales away from Sinatra’s estate isn’t going to be all that great. However, if one hip hop artist samples another there is a much greater chance.

Copyright law shouldn’t be a club used to smash new works, but that’s exactly how its being used in this case.

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