Saturday, November 07, 2009

Derivative priority and the Thomas/Matisse/Obama matter

Ben Shapiro, in a post titled ‘Washington Post’ Endorses Plagiarism to Defend Obama delves into the Thomas/Watusi/Matisse/Snail matter and the Shepard Fairey Obama Hope/AP matter.

In the first paragraph, the manifest beef seems to be that the Washington Post didn't credit Shapiro with being the first to identify the Thomas/Matisse story: ignoring the fact that Big Hollywood actually broke the story. Within the second paragraph, we see more evidence that the complaint is about a failure to cite Shapiro, with text from Andrew Breitbart:

“Ben Shapiro at Big Hollywood broke this story with a legitimate report. Not blog opinion. To credit Free Republic or conservative opinion sites is either bad journalism or… bad journalism. Even at Free Republic they cite Shapiro and Big Hollywood. The story was cited properly all over the Internet, why the Washington Post breach? We have been at the forefront of reporting on what the MSM won’t regarding this admin. We had the ACORN story, the NEA propaganda conference call. All hard news stories. And so is this. Shapiro is a Harvard law grad. He is hardly worthy of this kind of brush off. We’d like to see a correction as soon as possible.”

IPBiz had to chuckle at the argument "Harvard law grad" as a proxy for credibility. As pointed out in IPBiz, Harvard Law does not have much credibility as to citation or plagiarism. Laurence Tribe plagiarized. In defending one plagiarist Harvard law prof, Alan Dershowitz noted law promotes a culture of copying. So now Ben Shapiro, Harvard law grad, is complaining he didn't get properly cited for reporting a story about what someone else did? In the patent law biz, we have to contend with who invented something (absolute priority), not about who first reported on the actions of another, a derivative priority concept.

The next paragraph includes text by Blake Gopnik, Chief Art Critic, The Washington Post, responding to Breitbart, which includes:

Accusing Thomas of “plagiarism” here is precisely like accusing the Beatles of “plagiarism” for having recorded “Roll Over Beethoven” — after making the “discovery”, in 2009, that there was this other guy named Chuck Berry who’d written a song that sounded almost the same.

IPBiz suspects that the Beatles (or representatives thereof) properly paid the appropriate copyright holders of "Roll Over Beethoven" to record their version of "Roll Over Beethoven." [Recall separately George Harrison and "My Sweet Lord," a staple of law school copyright class. ] Note also there is no federal crime of plagiarism; there is copyright infringement, which is NOT co-extensive with what academics consider to be plagiarism. Shapiro gets into another music theme later: I guess Cotter is as uneducated as I am. (The New York Times, by the way, was just as bad as the Washington Post – in their coverage of the White House takedown, they selectively edited out Cotter’s line about “Watusi (Hard Edge)” as an “out-and-out steal of a Matisse collage” while keeping his description about Chubby Checker.)

Shapiro addresses the Beatles issue: a “mechanical license” — a process which calls for the re-recording artist to both notify the original artist of the song and to pay a royalty for using it.

Wikipedia discusses mechanical licenses and 17 USC Section 115(a)(2): Copyright law also allows for a "compulsory mechanical license" where permission from the original author is not required. In the United States of America, most mechanical licenses are negotiated through the Harry Fox Agency. A mechanical license can only be used after the original copyright holder has exercised their exclusive right of first publishing, or permission is negotiated

The Harry Fox website notes:

If you are manufacturing and distributing copies of a song which you did not write, and you have not already reached an agreement with the song's publisher, you need to obtain a mechanical license. This is required under U.S. Copyright Law, regardless of whether or not you are selling the copies that you made.

Pamela Koslyn writes:

A compulsory mechanical license is permission to use someone's published song, meaning the musical composition, not the CD/sound recording.It's compulsory because once the song is published, the publisher must allow these uses, but the statutory mechancial royalty rate applies. This rate is set by Congress is adjusted every couple of years and now for CDs and permanent digital downloads it's 9.10 cents (not 8.5 cents) for songs 5 minutes or less or or 1.75 cents per minute or fraction thereof over 5 minutes (and there are different rates for ringtones and streamed music).

Basically this kind of license means you can record a "cover" version of the song and sell copies of the recordings.

A mechanical license doesn't let you change the lyrics or the music, that would be creating a "derivative work" of the original song, and only the publisher - the copyright owner of the song - can allow that. A mechanical license doesn't let you "synch" the song to video images you choose, such as in a film - that requires a synchronization license.

As patent attorneys know, there is NO compulsory licensing of patents in the US, in contrast to the above-noted copyright situation. There are proposals at the upcoming Copenhagen meeting which might alter this.


**In passing, as to lack-of-novelty with Obama (and non-coverage thereof), refer to issues associated with
The Problem with 'Gold-Plated' Patents , pointing out that now-President Obama's proposal on gold-plated patents did not originate with Obama AND was not a good idea, which IPFrontline declined to publish until after inauguration. [Also On Gold-Plating Patents ]


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