how digitization affects creative work
Strange thought it may seem, it’s not possible to copyright the title of a creative work. There is nothing to stop you writing a novel called Where Angels Fear to Tread, making a film called Gone with the Wind, or composing a musical show called A Little Night Music. In fact all of these examples have taken their titles from works of art which preceded them. You might be criticised for lack of originality; you would certainly risk creating confusion, but nobody could stop you. Copying somebody else’s title is not the same thing as plagiarism. This isn’t particularly well known, but it’s a fact.
It’s also not possible to copyright an idea. You can have the idea for inventing invisible steel, but you can’t copyright or patent the idea itself. Copyright and patent applications are required to be detailed descriptions for the manufacture and implementation of new ideas. That is, you can only copyright the process of actually making invisible steel.
In the creative arts, it’s not possible to copyright the idea for a new series of television programmes, the plot outline for a new opera, or the concept for a new video game or iPhone app. You only have copyable rights to such a product when the thing itself has been produced. That’s why proposals for new works such as these are kept under tight wraps by production companies. They don’t want their rivals to get in first.
The issues of ownership in recorded sound are increasingly complex since the arrival of digitization. But there are two fundamental distinctions to be made which affect plagiarism and copyright:
- Melodies can be copyrighted
- Chord sequences can not be copyrighted
In 1970 the Beatles guitarist George Harrison published a song called My Sweet Lord which went on to become a big hit. The problem was that it was note-for-note identical to a song called He’s So Fine recorded by an all-girl black group called The Chiffons. Harrison claimed that it was a case of ‘subconsciously’ copying. A court case ensued in which just about everyone’s reputation was damaged and a lot of money changed hands.
Similar cases have arisen elsewhere, but now with less frequency, since it is relatively easy to prove the similarity between two melodies, even if they have different underlying harmonic sequences.
In the case of harmony and chord sequence, the case is quite different. Any number of tunes have been written based on an identical harmonic sequence. George Gershwin’s I Got Rhythm has a relatively simple chord progression which has been a great favourite of jazz musicians because it provides a comfortable sequence on which to improvise. New songs composed to fit on top of the original harmony include Ah-Leu-Cha, Allen’s Alley, Anthropology, Lemon Drop, Lester Leaps In, Red Cross, Salt Peanuts, and Squatty-Roo.
Sampling occurs when one part of a song or a musical performance is taken and re-used as part of a different composition or performance. This is often done using electronic equipment and software programs. The sampled portion can also be edited or played back continuously in a ‘loop’ to form the background for a new composition. This practice has been widespread in popular music for the last twenty years.
It’s currently a vexed area of copyright and plagiarism, and many successful court cases have been fought by artists claiming that their work was being used without recognition or payment. Some have been successful even though the original sample has been edited and changed almost beyond recognition.
The argument in favour of sampling invokes the concept of ‘fair use’ in copyright law. This recognises the right of one person to quote from the work of another when creating an original work. [This happens all the time in academic scholarship and research.]
Open Source supporters such as Laurence Lessig and Cory Doctorow argue that sampling and fair use should be tolerated in favour of creative expression. Detractors argue that if the newly composed work relies too heavily on the original sample for its effect (such as a recognisable guitar riff in pop music) it falls into the realm of plagiarism.
A mashup is the fusion of two separate sources of digital information to form a new entity. The following example shows the combination of a geographic map with information on flights in and out of Schipol airport Holland to produce a real-time (and interactive) data presentation program.
In this case it’s likely that permission has been sought to use these sources of information. But thousands and thousands of mashups are created in the world of pop music where the lyrics from one song are overlaid on the instrumentals or the melody of another. These instances raise issues which the copyright laws have been unable to resolve.
Defenders of mashups claim ‘fair use’ arguments, and point to the fact that the new product is ‘original’ in that it did not exist before. Critics have pointed to unacknowledged use of material, but the court cases they have brought have rarely been successful, because the people being sued rarely have any money. Pop music mashups is a minority sub-culture in which people produce things just for the hell of it – or just because it can be done.
In the realm of film, literal copying and even plagiarism are rare – for the simple reason that access to the original materials would be difficult and permission to quote expensive. Rare exceptions include Woody Allen’s Play it again, Sam which includes reconstructions and direct imitations of films featuring Humphrey Bogart and in particular Michael Curtiz’s 1942 film Casablanca.
Sometimes films include re-makes of an original story. For example, The Big Sleep was originally filmed by Howard Hawks in 1946, based on Raymond Chandler’s 1939 novel of the same name. It was re-made in 1978 by Michael Winner and the setting transferred to England. In both cases, these are ‘interpretations’; of Chandler’s original story.
In 1998 Luc Van Sant created a shot-for-shot remake of Alfred Hitchcock’s 1960 film Psycho, which was itself taken from Robert Bloch’s 1959 novel, based on a true-life Wisconsin serial killer. Although many of the camera angles and shots are very similar, the cast is different, the setting updated, and the theme music re-orchestrated. It was not particularly well-received, but nobody accused Van Sant of plagiarism: the film was seen as more of a hommage to the original.
Because much video is now digitised, it is much easier to copy and ‘quote’ than a film printed on a 35mm celluloid strip. Consequently, much video footage is now used in mashups. These are often created for comic effect – with visual materials from one source counterposed with audio tracks from something entirely different.
A popular case in point is the short sequence from Joachim Fest’s 2004 film Downfall about the last days of Adolf Hitler. This has been used as the basis of any number of satirical parodies. The original video footage and the sound track of Hitler’s furious rant about the war being lost is retained – but new sub-titles are inserted with reference to anything from English football managers being sacked, Hitler’s plans to invade Ireland, his rage at having been banned from Microsoft’s arcade game Xbox. and even rants about the frequency and quality of Downfall parodies themselves. In this example (ranting about the new iPad) he finishes his rant with a request not to put the video clip onto YouTube.
What makes these clips funny is the fact that the film remains the same, but the subtitles are re-written to provide ridiculous and completely inappropriate subjects for his rantings, often focussed on trivial contemporary events. Why is this not classed as plagiarism? For two important reasons. First – the people who make these parodies don’t suggest for one minute that they have made the original Downfall footage. Second – they are not attempting to profit from their re-use of the visual material. Their object is to create fun which is freely available to anybody.
Joachim Fest has endorsed the production of these parodies on the grounds that they reinforce his original message – that people who become too powerful should be exposed by revealing their megalomania, with mockery if necessary.
Blogging is rather like the Wild West of the Internet. Anybody can write whatever they wish and publish it to a personal blog for the rest of the world to see and read. There is virtually no control over content, no censorship, and no monitoring of who says what.
Nevertheless, bloggers are on the whole respectful and they attribute the sources of any materials quoted, with web links to the original and hat-tips acknowledging the authors. Some people break these conventions and steal other people’s news items, but they are often found out and held up to ridicule. That’s because once something is put up onto the Internet it’s easy to check its origin and the time and date it was put there. Anyone claiming an ‘exclusive’ or lifting someone else’s copy can be found out if the same material exists in an earlier published version. Even a string of words less than a sentence long can be traced via a Google search in less than a second.
It was common only a few years ago for people to deride blogging as no more than a form of vanity publishing. Now, every self-respecting business (particularly news-related publications and broadcasters) have their own in-house bloggers.
In their earliest manifestation, web sites were specialist repositories for scientific research papers and archives of academic materials. Since the democratisation of the Internet, the Web is also now big commercial business. Some online companies exist for the sole purpose of throwing up web pages which will attract the attention of Google searches.
As a consequence of this change, an enormous amount of copyright infringement and plagiarism occurs on web sites. That’s because some people will shamelessly copy existing web pages and take already-syndicated articles to give their own sites more ‘content’. There are even programs that will automate the process. (These are called ‘page scrapers’.) Shady business companies adopt this practice to attract visitors with a minimum of effort and make money from advertising on the site.
However, they do so at their peril, because Google ranks any ‘duplicate material’ as ‘redundant pages’ and demotes them in its page and site rankings.
A similar lack of original content occurs on web sites known as ‘link farms’ or ‘portal sites’. These are sites which merely provide lists of other web sites – usually in categories with multiple sub-menu options. That is, they are empty of any original content. These too are downgraded by Google in its rankings.
Most established newspapers now have their own web sites, and they employ journalists to write the news items and articles that they publish both in print and on line. Copyright and plagiarism is almost never in question. Even when a newspaper uses a photograph or a short report supplied by an independent news agency such as Reuters, the fact will usually be credited and the original source named.
However, a recent case shows that there are always possible exceptions. Johann Hari was a journalist writing for The Independent. He specialised in radical issues, and in particular he wrote in-depth interviews with controversial political figures. Recently, he has been accused of breaking the journalist’s code of ethics. By comparing the text of his articles to previously published work it has been possible to show three primary instances of plagiarism.
- He used quotations from other people’s work – without attribution.
- He re-wrote other people’s articles, using the structure, sequence, and the arguments of the original.
- He used quotations from other people’s interviews – as if the words had been addressed to him personally.
Hari at first strenuously denied these charges of plagiarism, but then it was discovered that he had adopted a false identity (‘David Rose’) and used it to maliciously edit other people’s Wikipedia entries, besmirching their reputations and boosting his own. He was suspended from the Independent, and then eventually admitted his guilt.
The only time copyright issues occur in magazines is when one publication decides to re-print an article from another. But this is usually acknowledged, with a footnote along the lines of ‘This article first appeared in the July 2010 issue of Harper’s Bazaar‘.
However, the recent success of The Huffington Post has raised a number of copyright issues. Arianne Huffington created her online news service in 2005-2009. It offers a combination of a frequently updated digital news service with magazine-style articles written by specialists. It has been very successful, and now has versions covering Canada, America, France, Italy, Spain, and the United Kingdom.
But much of the content of the HuffPo is generated by bloggers who are not paid for their articles. They’re encouraged to contribute on any subject they wish; and their work is mingled with product placement articles and other junk journalism. There have also been recent accusations that armies of HuffPo staff are being employed to re-write other people’s original work to escape any accusations of plagiarism.
Wikipedia has a useful list of copyright case law in Australia, Canada, United Kingdom, and the United States. This takes account of historical rulings and recent cases involving digital works, trademarks, photographs, peer-to-peer file sharing, definitions of originality, distribution, and even ‘what is not a sculpture’.
© Roy Johnson 2011
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