Hypocrisy is as hypocrisy does in copyright fight.

I recognize that it’s vogue to malign the interests of copyright holders, particularly when various pundits recount anecdotes of sympathetic-sounding new creators who find themselves as defendants in a litigation. Recently, Andy at TorrentFreak published a lamentation on the excess and “hypocrisy” of copyright enforcement in the case of Serendip v Lewis Bond.

Mr. Bond, a UK citizen who distributes videos to his monetized YouTube channel called Channel Criswell, posted his 20-minute documentary composed almost entirely of film clips from the works of Stanley Kubrick along with his own narrated commentary. The use of the clips may arguably be a fair use—I admit to scanning the doc and not watching the whole thing—but Bond also synched several music tracks from A Clockwork Orange to his film, and he is now being sued for copyright infringement by Serendip LLC, which owns and manages the rights to the works of composer Wendy Carlos.

Calling it a “Sad Hypocrisy” Andy wants to present a tale in which a budding and talented young filmmaker (Bond is 23) is being unfairly and needlessly squashed by an older artist, who should respect that Bond is simply building upon works the way Carlos built upon the works of others. Andy opines that there is a path other than the courts to a happy place where artists collaborate instead of litigate, which sounds sweet but is entirely missing the point. To emphasize his perspective, Andy makes such a hash of copyright law in general, and the facts of this case in particular, that the only clear hypocrite in the mix is him. After all, it is hypocrisy to believe so firmly in a position on a given topic that one makes no effort to examine the facts of an individual story before adding it to the anthology of “evidence” for that point of view.

To begin, Andy relies on a typical assumption that he knows anything about Carlos’s financial interest in her works and that her current income is in any way relevant to enforcing her rights. He states, “While undoubtedly a wonderful and timeless piece of music, is a track from 1971 really bringing in the money for Clockwork Orange [sic] composer Wendy Carlos today? Has Bond’s fleeting reproduction of a part of this track in his documentary caused real financial damage?”

Here, Andy makes two critical errors. The first is that enforcing IP rights isn’t always about financial damage from the use being litigated. It’s about precedent. One either protects IP or one does not. And if a rights holder lets some infringements go on the grounds that “they weren’t all that harmful,” this can weaken his/her ability to enforce those rights in future cases. The second mistake is that Andy’s assumption of value in this case is apparently wrong. The brief filed by Serendip states that of all of Carlos’s works, the tracks she created for A Clockwork Orange are the ones most in demand and most often licensed for substantial fees. This means that, yes, Bond’s use, if left unenforced, does directly threaten the business in which Serendip manages those rights for Carlos’s works. How much or little she currently earns from this enterprise is nobody’s damn business and also irrelevant to the need for consistency in enforcement.

Andy’s next error—and it’s a whopper—is to go off on a whimsical tangent calling Carlos a “hypocrite” because one of the works in question is not her composition but that of Henry Purcell, who died in 1695. Although Andy seems to think he’s zapped Carlos with a real gotcha here, he fails to acknowledge that master recordings are separately copyrightable regardless of who the original composer is, and that uses of music exactly like those made by Bond — as atmospheric elements synched to a film — require both a synch and a master use license. The underlying composition is either separately copyrightable or in the public domain, as is the case here. Andy describes the music thus: “It is an abridged version of this [Purcell’s] music that forms the entire basis of Carlos’ 1971 work. Arrangement and beautiful synthesizer work aside, it’s virtually identical.”

Nope. It’s just identical. Because if one simply looks at the playlist for the film’s soundtrack, we see that the “Title Music from A Clockwork Orange” is attributed to Purcell’s March for the ‘Funeral of Queen Mary.’ Carlos doesn’t claim authorship of the underlying composition and has no reason to do so. But, as mentioned, this has nothing to do with a litigation over copyright infringement of her master recordings, of which three are named in this lawsuit — all of them based on classical compositions, with the other two by Rossini and Beethoven. Andy wants to propose that Lewis Bond is building upon Carlos’s work the way Carlos built upon the works of these other composers, but this is neither true creatively nor legally from any real-world analysis of Bond’s use.

As to the matter of Bond as a victim of copyright, I clearly cannot say whether he is being defiantly foolhardy or innocently naive in this case, but the Serendip brief does state that after they issued a takedown notice through DMCA, Bond “immediately” filed a counter-notice. Now, I’ve learned a few things about copyright over the last four years, but there is no way in hell I would take a potentially $450,000 gamble that my own fair use analysis would be so solid that I’d go filing a counter-notice in a similar circumstance — at least not without consulting an attorney. And in this particular instance, I cannot see an argument that remotely favors a finding of fair use. Bond used these tracks in the most typical manner music is used for film — as accompaniment — and this use is always licensed. If Bond were attempting to distribute his film anywhere but YouTube, he would have to demonstrate that he had all such relevant license agreements in place.

It’s not that I don’t have any sympathy for Lewis Bond—at least in theory—but stories like this raise two broader issues in my mind. The first is that new creators, who want to take the authorship of their works seriously have just as much obligation to consider copyright as the creators who came before them. Wendy Carlos didn’t build her career without ever considering the copyright implications of her choices, and those who want to use or build upon her works have the same responsibility. Just because a contemporary new creator is a creature of the digital age, this calculus shouldn’t change, though many seem to think it should.

Having said that, if Bond and his contemporaries are victims at all, I would argue that they are harmed by editorials like this one by Andy at TorrentFreak. The pundits and corporate leaders who have so consistently misrepresented facts about the law and pushed a message of “infringe now, deal with it later” are doing a disservice to the next generation of artists by fostering bad intel on complex matters like fair use. As such, if these interests really cared about artists, they might back off the rhetoric a bit because new creators like Bond simply cannot afford the hubris of tech-industry billionaires.


Thanks to regular reader John Warr for bringing this story to my attention.

© 2016 – 2017, David Newhoff. All rights reserved.

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18 comments

  • Right on the money as usual, David. Bond’s whole argument is bullshit. He at no time has the right to “cut and paste” someone else’s work into his own. If he had an ounce of sense, he would have noticed the underlying work on the credits from the Wendy Carlos record. Then he could have found a MIDI file (widely available – almost all classical pieces are) of the Purcell, plugged it into Sonar or Logic/Cubase whatever, and configured the file with slightly different instruments and he would have to pay no one. Or he could have paid a composer a small amount to do it…it’s simplistic. Instead he tries to double-down. What a moron.

    • overviper – taking your advice, Bond probably wouldn’t have ended up with something on the level of Wendy Carlos though. I agree with you but a midi file and a bunch of on-board digital synths will have a hard time replicating what Wendy Carlos did. Just to pay her her due.

  • Is it actually true that failure to bring suit against an unlicensed use of a work under copyright weakens one’s ability to enforce those rights in future infringements? Certainly that may be the case with trademarks, but as I understood it lack of enforcement of copyright in one case has no legal bearing on one’s ability to enforce it in another.

    • Thanks for the question. My understanding is that non-enforcement of a trademark can literally result in the loss of the trademark. Non-enforcement of copyright doesn’t forfeit the copyright. But in a case like is–especially when YouTubers are apt to invoke fair use without grounds–I believe it is correct to say that if Serendip were to have let the counter notice stand without litigation on such popular works that, yes, their ability to litigate other infringements would be weakened. If Bond’s use is implicitly fair, why isn’t every filmmaker who wants to use the works in the same way not also fair?

      • Exactly. One may turn a blind eye to a use, but once you have sent a DMCA and received kickback claiming erroneous fair-use then one has little choice than to follow through.

        The response to torrentfreak from the copyright holder’s site was telling

        ———————————————-

        “There is much bad advice on the internet about copyright and the use of music on YouTube, but some very good advice that should be followed is not to post other people’s copyrighted music on the internet ‘because you like it and want others to hear it’,” the email reads.

        “This YouTube user would also be well advised to follow the old saw that ‘when you find yourself in a hole, you should stop digging.’ His problems might go away if he would just ‘undo’ his previous bad choices.”

      • My suspicion is that being too lax in enforcing a copyright might have an effect on the amount of damages a plaintiff could seek in a future unrelated case, since it would be hard to assess the fair market value of a particular license when it’s being used for free by some entities.

        With regard to trademarks, my understanding is that the “sue or lose it” aspect is a little overstated. I think a company has to be shown to be allowing their trademark to become a generic term; usually to their advantage. I’m sure the Kimberly-Clarke Corporation was more than happy that everyone started calling all facial tissues “Kleenex” … at first.

        But, as a counter example, the proper noun “Photoshop” has definitely morphed into a generic term (and a verb!) to describe any kind of photo manipulation, or act of manipulating a photo. However, Adobe still constantly asks (through its website, etc.) that users stop using Photoshop as a generic term, as a verb, and to stop spelling it with a lower-case P. Perhaps this is a way for a company to keep their trademark from becoming an unprotected generic term? To be able to show that they have fought against the generic usage?

      • David Newhoff

        Thanks, Patrik. With regard to copyright, I think it’s more binary than that–or that it’s important to enforce based on use more than the direct harm that might be estimated to have been caused by a particular use. In this case Bond’s use is identical to the many licenses Serendip authorizes for films and so must be enforced due to the nature of the use regardless of how directly harmful Bond’s film might be. Awards tend to be statutory most of the time, I believe, or some settled amount less than statutory. Larger awards tend to occur when both parties are playing with big numbers — Gaye estate and Robin Thicke.

        Again, I know less about trademarks, but I am quite sure they have to be protected somewhat vigorously in certain cases. Use of the word Kleenex as a generic for tissue is not an infringement. I could use the term in an article or a book or even a movie script in nearly all circumstances. I could make a work of visual art in homage to or criticism of Kleenex, or just use it without necessarily commenting on it. Selling a product posing as the brand would be a problem–even a book claiming to be the Kleenex Guide to Nose Blowing.

  • TorrentFreak surely is the Fox News of the content theft world. No editorial integrity and pandering to a psychographic of non-creators that feels militant in their entitlement to steal intellectual property.

  • “But, as mentioned, this has nothing to do with a litigation over copyright infringement of her master recordings, of which three are named in this lawsuit, all of them based on classical compositions, with the other two being works by Rossini and Beethoven.”

    Are you saying this has nothing to do with the master recordings that are the part of the basis for the lawsuit? I would think it has everything to do with the master recordings, because they’re the basis for the lawsuit.

    “Although Andy seems to think he’s zapped Carlos with a real gotcha here, he fails to acknowledge that master recordings are separately copyrightable regardless of who the original composer is/was, and that uses of music exactly like those made by Bond — as atmospheric elements synched to a film — require both a synch and a master use license. The underlying composition is either separately copyrightable or in the public domain, as is the case here. ”

    The terrible irony here is that those master recordings, according to the complaint, were fixed on June 2, 1972. If they had been fixed just four months earlier, Serendip would not even have a claim for the master recordings under federal copyright law. Also, the underlying composition is the music composed by Carlos, which is not in the public domain. Serendip is suing over infringement for both the musical compositions and the recordings (see paragraph 18 of the complaint). Of course Serendip can, and should, enforce its rights. But people should choose their battles. Any rights holder (just like anyone who has a legal claim) should always weigh the benefits and costs of taking someone to court. Its always going to be harder bringing a sympathetic defendant to court, and that’s probably something Serendip should have thought about. The kid is a young, 23 year old filmmaker. Even if Serendip wins and vindicates its rights, what good will it do for them? They’re not going to collect on a judgment in the near future (unless this kid has some deep pockets we don’t know about), all while fronting a stupid amount of legal fees and dealing with blogs like Torrentfreak and giving the copyleft more arsenal for spouting their claims. There has to be a better long-term strategy if we want to paint copyright law in a good light.

    “Carlos doesn’t claim authorship of the underlying composition and has no reason to do so.”

    Are you talking about Purcell’s work or Carlos’ work? Because I think Carlos does claim authorship of the work, which is, according to Serendip, now owned by Serendip.

    • John —

      In your first question, you’ve taken the second half of a thought out of context. I’m saying Andy’s point about composition is irrelevant to the basis of the lawsuit.

      As to your second point, I already argued in the post that this “kid” has the same responsibilities as any other creator whose ever tried to launch a career, and the amount Serendip may ultimately expect to collect is not relevant to the need to enforce the claim, especially in the YouTube world. I know people like to say this paints copyright in bad light, but I blame the false message that the internet has simply obviated the need for creators to consider copyright. While change may be necessary in certain areas, it really isn’t that hard to consider the implications of what one is doing with existing works.

      Re. your last point, I don’t know how much Carlos built upon Purcell’s composition to create a new composition, but the film’s soundtracks do name the original source. I read the brief rather quickly, focusing on the master recordings, and did not catch the composition thing. Will look again. Thanks.

      • No question that Bond has the same responsibilities as any other creator. I wouldn’t be surprised if they went after him after he spurned a demand letter or invitation to negotiate a modest license agreement. In an ideal world, no one would question a copyright holder’s right to enforce their rights, regardless of who’s on the other side of the lawsuit. But the reality is that he’s a sympathetic defendant, and in determining their strategy here, it is definitely something Serendip, or any other plaintiff, should think about prior to filing a lawsuit.

        “[A]nd the amount Serendip may ultimately expect to collect is not relevant to the need to enforce the claim, especially in the YouTube world.”

        The thing is, it kind of is. I would assume Serendip is a rational for-profit business. In an ideal world, anyone with a legal claim should be able to enforce their claim. But again, this isn’t that world, and any plaintiff (not just a copyright owner) would be wise to consider the costs of litigation prior to going to trial. If they wanted to enforce their claims, there is other things they could have done. They could have put advertising on their video and collected royalties. Of course, those royalties are clearly too meager, but that’s a separate issue (and copyright owners should continue pushing back against YouTube for better rates). They still would at least be enforcing their rights. They could have filed for an injunction under 17 U.S.C. § 512(j), which could give them a court order (not just a DMCA notice) restricting access to the video. Or they could figure out a way to take on YouTube, investigating ways that YouTube could face liability here (probably unlikely). Of course, just as Bond doesn’t want to be forced into litigation with Serendip because its bigger them him and has more legal muscle, Serendip doesn’t want to be forced into litigation with YouTube because its bigger than them and has more legal muscle. It all goes back to the money.

        “In your first question, you’ve taken the second half of a thought out of context. I’m saying Andy’s point about composition is irrelevant to the basis of the lawsuit.”

        My apologies, I read that wrong.

      • Thanks again, John. As I say in the post, I can’t really comment on Bond’s thinking, but the point of no return occurs at the counter-notice; and he cannot truly be given the benefit of innocence at that moment because it’s a decision anyone should make with a degree of knowledge. Once that notice is sent and accepted by YouTube, the file is restored unless the rights holder notifies the OSP within 10 days that they have begun legal proceedings against the user. Bond wasn’t forced into litigation, he asked for it when he filed the notice, and 23 is plenty old enough to at least realize that has implications.

        Serendip doesn’t want Google’s ad revenue, they want to continue to license Carlos’s works in the manner in which they are meant to be licensed and have every right to do so. And surely, Google doesn’t have a right to dictate otherwise. Meanwhile, rights holders who have zero muscle see their works restored by counter notices filed without merit all the time, so Serendip has a very compelling reason not to let this use go. As for suing Google, that’s a pipe dream.

        There are a lot of other options indeed, but many of them do not involve breaking the fundamental principles of copyright. In another time, Bond would write to Carlos, tell her about his work, and ask if there might be some way to license it for free or less-than-typical rates. My point is that new creators can’t just say “fuck you” to the old creators and then cry “why can’t we be friends” after the lawyers show up. Respect and collaboration has to work both ways, and sometimes the older creator isn’t interested, but that’s just another curve in the road.

        DN

      • PS – when I’m referring to Bond as a sympathetic defendant, I’m not implying that I sympathize with him.

        What I’m saying is that, while you’re totally right that Bond was irresponsible and is clearly in the wrong, don’t think about how you, or others in the copyright world view him. Think about how a jury would view him, and how his own counsel would portray him if this case were to end up at trial. He’s no Peter Sunde or Kim Dotcom. Serendip may be able to find liability (after what would inevitably be a lengthy fair use battle), and even if Bond was prohibited from arguing fair use at trial (assuming the court dispensed of fair use on summary judgment), Serendip’s counsel will still have to convince 6-12 average people why it should award up to $150,000 against a young filmmaker from the UK.

      • I understand, but not necessarily. Serendip is not required to demand the full statutory amount for each infringement, and there’s no way he has that kind of money. This case will settle out of court, I imagine. And sure, it’s possible that a jury would sympathize with him, but that’s always a risk with a jury trial, right? In general, I understand what you’re driving at; and there’s an extent to which I sympathize with him without knowing him. But as I say in the post, I think the Google’s of the world are practically preaching to young creators to just infringe or not think about it.

      • David Newhoff

        John —
        Sorry it took some time to get back to you on this one question, but I wanted to consult with a copyright expert, who has also been a litigator. In fact, use of the word “music” in the filing by Serendip can refer to Carlos’s own manner of arranging and performing Purcell’s work, even if she did not change a note of the composition; and this work is separately copyrightable from the master recording. So, it is right that Serendip asserts its ownership of Carlos’s “music and recordings,” and this does not have to imply new composition on her part. I cannot say whether or not Carlos actually changed compositional elements as well; I don’t know either piece well enough and don’t have the music expertise to compare the two. Regardless, I hope this clears up the question you raised in your comments. Thanks!

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