The Droplift Project is fascinating. It raises complex conceptual issues in
terms of sampling, and the tactic of producing your own records and placing
them in record shops is brilliant.
The claims that sampling is protected by (1) the First Amendement to the
United States Constitution, and (2) the fair use provisions of copyright
law are open to question.
The Constitution applies to the United States. There are other nations.
Copyright law, in contrast, involves nearly all nations where sampling is
technically possible.
In the United States, the First Amendment does not apply to sampling. The
First Amendment covers freedom of speech and freedom of the press. This has
been extended by the courts to cover art works and musical works with what
can be construed as speech-like content that expresses specific ideas or
opinions representing some kind of form or content beyond the work itself.
An opera would probably be covered, and an opera using a scatological text
would probably qualify for First Amendement protection. A piece of
challenging abstract music without words would probably not be protected.
The principle of the First Amendment is that it protects the right of the
creator of speech to utter or publish speech. This does not imply the right
of someone other than the creator to do what he or she wishes with the
original speech of another person.
When speech is uttered or published in a public context, in a political
debate for example, it becomes subject to use by others relatively free of
restriction. Speech that is published in restricted or copyrighted forms --
books, newspaper articles, magazine articles and the like -- do not fall
into public domain no matter how widely published they are.
The fair use provisions of the copyright act govern the selective use of
copyrighted material for critical discussion or scholarly analysis. Its
purpose is to permit the use of copyrighted material in other works that
analyze or discuss the work itself, or the range of issues that the work
involves.
Fair use does not apply to the selective reproduction of original works of
art within other original works.
While artists have been making collages for many years, there is a distinct
difference between a generalized collage (i.e., letters, fragment of
packages, pieces of photographs) and a collage that incorporates
recognizable elements from another work of art. There is also a different
between a single collage incorporating recognizable elements from another
work of art and a collage that is itself widely reproduced and sold. The
issues of proportion and purpose are significant. A large fragment of an
identifiable work used in a single collage would generally be permitted. A
much smaller fragment used in a widely-reproduced postcard that earns a
million dollars would not be permitted.
The courts have held in many instances that the use of works of visual art
in other works of art is impermissible, especially when those secondary
works generate profit for the artists who create them without permission
from or profit to the artists who created the work that has been used.
While the issue of not-for-profit distribution to millions has only
recently come up, the basic principle so far has been that wide
distribution and accessibility creates some form of enterprise that exceeds
single use by an individual artist in a single collage available in one
copy only. If nothing else, the use of an image free generates profit in
the form of billions of micro-charges embedded in the service charges and
transmission fees of various telecom and service providers.
The analogies to sampling are relatively clear, but the development of new
technologies with potential distribution to millions of people has raised
the stakes.
The question of sampling raises significant critical and artistic issues.
This program of creating and distributing CDs in a guerrilla action places
the issue on the public agenda in a challenging way. Even so, this issue
must ultimately be addressed as a significant issue in its own right.
Sampling is not protected in the United States by the First Amendment, and
it is nowhere protected under the fair use provisions of copyright law.
Ken Friedman, Ph.D.
Associate Professor of Leadership and Strategic Design
Department of Knowledge Management
Norwegian School of Management
+47 22.98.51.07 Direct line
+47 22.98.51.11 Telefax
Home office:
+46 (46) 53.245 Telephone
+46 (46) 53.345 Telefax
email: [EMAIL PROTECTED]
