Perhaps a lawyer can explain a little more to me the logic behind the "transformative" rule when it comes to copyright protection, and particularly how there seems to be a totally different standard when it applies to music.
While Ed Sheeran just won (in my opinion, thankfully) his copyright lawsuit, the writers of "Blurred Lines" famously lost the lawsuit filed by Marvin Gaye's family alleging infringement of "Got to Give it Up". In my opinion, that was the wrong decision - while you can argue there are some similar beats and chord progressions, I don't see how anyone could believe that Blurred Lines isn't at least a "transformative" depiction of "Got to Give it Up" (to be clear, I think it's much more than that - the songs sound completely different to my untrained ear). Even in cases where there is no dispute, where one song legally samples another song but pays royalties, in many cases the use of the sample is completely transformative, again in my opinion, use of the original song.
So basically what I'm asking is why do judges appear to apply the "transformative" rule to visual arts but not to auditory ones.
The article basically clarifies a good reason why
> the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism.
if you made a transformative version of Marvin Gaye's song (perhaps as part of a gallery installation), even if was just pitch altered or something like that, there would be no 'commercialism' involved and your version would not be competing with the original.
Warhol's version here does seem like it would be transformative enough to be in the gallery, but not, as it was in this case, to be sold for marketing purposes which evidently is in competition with the original photo.
> Perhaps a lawyer can explain a little more to me the logic behind the “transformative” rule when it comes to copyright protection
IANAL, but…
First, its not a rule of copyright protection, its a rule of fair use, which is only an issue when copyright protection exists.
Second, there is not really a specific “transformative” rule. Whether use is transformative is an aspect of the “Purpose and character of use” factor in fair use analysis. That a use is “transformative” (that is, that it has a different character and use – that it becomes a work of a significantly different kind) is typically, where present, a finding which ways in favor of fair use, but it is neither by itself neither necessarily necessary for nor necessarily sufficient for fair use (though in a specific case it can be either), there is no hard and fast rule, and fair use analysis is highly context-specific.
> So basically what I’m asking is why do judges appear to apply the “transformative” rule to visual arts but not to auditory ones.
The defendants in the Blurred Lines case did not assert fair use, they asserted that there was no use at all, and that there was no copying and no substantial similarity in the works resulting from copying. Whether they might have prevailed had they done so instead of denying copying at all is…speculation, but it is not an inconsistency that they did not win on an argument they did not make, even if consistency would demand that they should have if they did.
One of the major problems with songs is they often “borrow” from songs in competition or even the same style. Art that’s appealing to wildly different customers is given significantly more leeway where art that competes head to head is more suspect.
This is one reason comedy is given so much freedom. It’s much easier to argue South Park retelling a story isn’t economically harming the original creators. That isn’t to say transformative only applies in economic terms, but such things make the arguments a lot easier.
As an example of this, Blizzard actually provided significant help in creating “Make Love, Not Warcraft” which shows just what transformative reuse can look like.
> Blizzard actually provided significant help in creating “Make Love, Not Warcraft” which shows just what transformative reuse can look like.
Actually, it shows how copyright owners can cooperate when a third party's use comports with their interests. If, however, South Park had appropriated imagery, music, etc., from Blizzard without permission, then that may have been copyright infringement outside the realm of fair use. (Note: South Park probably still could have parodied World of Warcraft, albeit without using any of Blizzard's materials.)
The point was Blizzard’s willingness is a sign of the transformative nature of the copying. "Weird Al" Yankovic similarly seeks permission even if it might not be needed, but he also regularly receives it.
By comparison it’s relatively rare for say k-pop stars to either seek or revive permission from other k-pop stars.
Most of his songs are not commenting on the original so permission is definitely needed. "Smells like Nirvana" and "Perform this way" are making fun of the original songs, "Amish Paradise" could be argued either way.
Bringing up Weird Al is doubly interesting, because he asked for permission from both the recording company and Coolio to parody Gangsta's Paradise. Though the recording company agreed, Coolio refused permission.
I would have sworn that I'd heard Weird Al had been misinformed and believed that he did, in fact, receive permission, but I'm not seeing any evidence of that. Either way, the most Coolio could do is write a diss track, though he later came to regret not supporting it from the beginning.
All of this is made even more ironic since Gangsta's Paradise is itself a very obvious reworking of Stevie Wonder's Pastime Paradise
I just listened to Pastime Paradise. That's wild man. I assume Coolio was required to get permission for that, because, that's a VERY obvious reworking. I never understand music IP law, like how Queen was able to sue Vanilla ice because of one 7 note chord in Ice Ice Baby:
I'm sure in principle the rule is the same for all mediums, but in practice our sensory systems are not unbiased and its far easier to hold up two pieces of art side by side than it is to listen to two different songs in two different ears.I think it may be as simple as visual similarity is just more obvious and easier to point out.
While Ed Sheeran just won (in my opinion, thankfully) his copyright lawsuit, the writers of "Blurred Lines" famously lost the lawsuit filed by Marvin Gaye's family alleging infringement of "Got to Give it Up". In my opinion, that was the wrong decision - while you can argue there are some similar beats and chord progressions, I don't see how anyone could believe that Blurred Lines isn't at least a "transformative" depiction of "Got to Give it Up" (to be clear, I think it's much more than that - the songs sound completely different to my untrained ear). Even in cases where there is no dispute, where one song legally samples another song but pays royalties, in many cases the use of the sample is completely transformative, again in my opinion, use of the original song.
So basically what I'm asking is why do judges appear to apply the "transformative" rule to visual arts but not to auditory ones.