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.