Out-takes: copyright and crime

I've been getting into a daft habit of carefully making a note of news relevant to JSBlog, then forgetting to upload it. Purged from my organiser:

Men at Work plagiarised 'Down Under' riff ("Flute melody taken from 1935 'Kookaburra' children's song, Australian court rules", Kathy Marks, The Independent, 5 February 2010). This means Men at Work potentially owe millions to the copyright owners, Larrikin Music. See the previous Kookaburra fossil exposed for background. Personally I think the result stinks, and that the quotation in question, a tiny riff between verses, was nothing more than a nice homage to a tune that had become de facto public domain due to its obscure copyright status. Quoted in The Age, the founder of Larrikin Records and original owner of Larrikin Music, Warren Fahey, says exactly this:

He recommends the copyright owner, Larrikin Music, should "gift" the song to Australia, arguing that most Australians believe they already have public domain ownership of the song anyway.

"The past week has seen thousands of emails, letters to the editor, radio commentary and internet forums criticising the judgment," says Fahey, who sold Larrikin Music to Music Sales Corporation in 1988 and whose folk band is called the Larrikins.

"Many of these incorrectly criticise Larrikin Records and myself as the protagonist, asking, 'How could someone so dedicated to Australian music do such a thing?' The Larrikin brand has certainly been tarnished by what many see as opportunistic greed on behalf of Larrikin Music/Music Sales."

A "larrikin" is, incidentally, one who subscribes to Australia's folk tradition of anti-authoritarianism - see Larrikinism - and the opposite of a "wowser".

Harry Potter and the great Google onslaught ("The bunfight over Google's library project only serves to remind us that intellectual property battles are nothing new", Robert McCrum, The Observer, Sunday 14 February 2010): the always interesting McCrum writes about great intellectual property battles in history such as the first recognition of literary "piracy" in the 1660s, arguing in effect that these didn't kill literature in the past, so the disputed Google Library Project may have innovative effects we can't predict. See preview of Adrian John's book Piracy.

Forget 'serious' novels, I've turned to a life of crime ("Murder mysteries, once looked down on, are now fit for the literary elite", Stephanie Merritt, The Observer, 14 February 2010). Merritt argues the ... er ... merit of the crime genre as historical fiction. I thoroughly agree; one of the best historical novels I know is Peter Lovesey's murder mystery Wobble to Death, with its fascinating background in Victorian endurance races and their attendant corruption and strychnine-doping (see Strychnine - a lesser-known past).

This artwork was made by a killer. It is no less valid for that (Deborah Orr, The Independent, 11 April 2009): concerning the difficult issue of what we should feel about art made by murderers. In the literary field, she mentions the well-known case of William Chester Minor, a schizophrenic murderer who made thousands of contributions to the OED from his cell in Broadmoor. The excellent and prolific historical crime novelist Anne Perry, creator of the William Monk series, also springs to mind.

- Ray

Kookaburra fossil exposed

A couple of months ago Felix at The Growlery had a post, Kookaburras and other fossils, about the words of an Australian folksong that was current in English schools in our childhood. Felix's version was this:

Kookaburra sits in the old gum tree
King of the whole wide bush is he.
Laugh! Kookaburra, laugh!
How gay your life must be.

Small world: see BBC News for Men At Work face plagiarism case, concerning the highly recognisable quote from the Kookaburra song (which, in the variant I know, sounds like this - reproduced as fair use) in a flute riff in Men at Work's number one hit Down Under (listen at 0:52 and 1:55 in the video here).

I'd always assumed the kookaburra tune to be traditional, but the legal issues arise from it being relatively modern, written by Marion Sinclair for a competition run by the Girl Guides in 1934 (see Wikipedia). There are many variants, including parodies, but this one appears to be definitive. Larrikin Music claimed copyright breach. As this Sydney Morning Herald article said - Riff row leaves Men at Work up a legal gum tree - it initially seemed moot who actually owned the copyright, but today the Federal Court of Australia ruled that Larrikin owns the rights to Kookaburra: a preliminary ruling that allows the case to proceed. Seems overkill to go to litigation over a witty in-quotation of a theme that isn't central to Down Under, and which has become so ubiquitous in the English-speaking world (see YouTube) that ownership is virtually never considered. LawFont.com goes into the ruling in more detail - Kookaburra sits in the courtroom - noting that it's remarkable that it took 27 years for anyone to notice, particularly given that Down Under was "immensely successful" while Sinclair was still alive and asserting her own ownership of the copyright. As a commentator notes, this raises the possibility of a defence of laches: the argument that an opposing party has "slept on its rights" and is no longer entitled to make the claim.

Such situations can be very convoluted. See the Social Sciences Research Network paper Copyright and the World's Most Popular Song (Robert Brauneis, George Washington University - Law School, GWU Legal Studies Research Paper No. 1111624) - click Download link for full PDF paper - about the musical and copyright history of Happy Birthday to You. Despite Warner/Chappell Music claiming hefty royalties in cases of performance for profit, Brauneis makes a strong argument that the copyright trail is so messy that Happy Birthday to You

is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.

Addendum: Whatever the rights and wrongs of this case, I'm fairly baffled by the number of people saying they hear no resemblance (for instance, in the comments to this news item on YouTube). Maybe they're listening to the wrong part? Maybe it's confusing that the backing has been shifted to the relative minor? It's a clear quote of the first two lines of the Kookaburra song.

Update, February 2010: Men at Work plagiarised 'Down Under' riff ("Flute melody taken from 1935 'Kookaburra' children's song, Australian court rules", Kathy Marks, The Independent, 5 February 2010). This means Men at Work potentially owe millions to the copyright owners, Larrikin Music. See the previous Kookaburra fossil exposed for background. Personally I think the result stinks, and that the quotation in question, a tiny riff between verses, was nothing more than a nice homage to a tune that had become de facto public domain due to its obscure copyright status. Quoted in The Age, the founder of Larrikin Records and original owner of Larrikin Music, Warren Fahey, says exactly this:

He recommends the copyright owner, Larrikin Music, should "gift" the song to Australia, arguing that most Australians believe they already have public domain ownership of the song anyway.

"The past week has seen thousands of emails, letters to the editor, radio commentary and internet forums criticising the judgment," says Fahey, who sold Larrikin Music to Music Sales Corporation in 1988 and whose folk band is called the Larrikins.

"Many of these incorrectly criticise Larrikin Records and myself as the protagonist, asking, 'How could someone so dedicated to Australian music do such a thing?' The Larrikin brand has certainly been tarnished by what many see as opportunistic greed on behalf of Larrikin Music/Music Sales."

- Ray

Rowling vs RDR

The blogosphere is full of news of the latest litigation related to JK Rowling and the Harry Potter mythos. This Legal IQ post explains the background and parties: Stanford Law School's Fair Use Project Defends RDR Books Against Copyright Lawsuit Brought By J.K. Rowling and Warner Bros.

The case hinges on "fair use" - whether RDR Books' Harry Potter Lexicon has sufficient characteristics to allow its particular reassembly of material from Rowling's works. This is a subtle decision based on four criteria: 1) purpose (e.g. commercial or not); 2) nature of original (you can get away with reproducing more of a non-fictional work than a fictional); 3) how much of the original was used; and 4) market effect (i.e. does it undercut the market for the original?). See the Fair Use Network for more on this. Anthony Falzone, the defendant's lawyer (who is associated with the Stanford Center for Internet and Society's Fair Use Project) argues that the case is highly important, in that Rowling's winning would set a precedent majorly eroding the centuries-old right to create concordances and other derivative works. This idea is expanded in Joe Nocera's New York Times article, A Tight Grip Can Choke Creativity (bugmenot).

Dan Slater at the WSJ's Law Blog, reporting on the final day of the trial, thinks it looks good for the the defendant, RDR: Potter Trial: On Last Day, Defense Outshines Rowling. At Info/Law, Derek Bambauer, Assistant Professor of Law at Wayne State University Law School in Detroit, Michigan argues otherwise in Harry Potter and the Lexicon of Fair Use. Much of the legal argument is well over my head: I'd never heard of estoppel and laches - loosely, the doctrine that someone's case is weakened by their having acted in a way suggesting approval for what they're now complaining about - so I won't bother to speculate which way it'll go.

We won't know the result immediately: as this Bloomberg account says - J.K. Rowling Returns to Witness Stand, Defends Authors' Rights - the lawyers now have three weeks to submit final briefs. The presiding judge, U.S. District Judge Robert Patterson, had urged both sides to settle, mentioning Bleak House (the futile Jarndyce and Jarndyce case where legal costs ate up the disputed estate). But no deal. Whoever wins, it'll likely go to appeal, because both sides have strong interests to defend and deep pockets.

Mountweazels and other fictions

A old article I just ran into in the New Yorker: Not a word, the interesting story of Lillian Virginia Mountweazel, an American fountain designer turned photographer who died prematurely in an explosion while on assignment for Combustibles magazine.
      The interesting part is that she didn't exist, but appears in the 1975 New Columbia Encyclopedia as a copyright trap: if her biography turns up in any other reference work, the publishers will know that it has been stolen rather than independently researched. Another example cited is the appearance of a non-word, "esquivalience", in the New Oxford American Dictionary. It's nice to see this phenomenon confirmed, as it has rather an urban myth flavour to it.
      As you can gather from the Wikipedia Mountweazel entry, fictitious entries have varied motives: copyright traps, plain mistakes, hoaxes for fun, and hoaxes for fraud. For instance, the 1880s American Appleton's Cyclopedia of American Biography has around 200 known hoax entries. In this case, the probable motivation was financial; the contributors being paid by space and with checking only for general style, the temptation must have been too great.
      Similar considerations apply to maps. In 1999 this Telegraph article, AA in £20m battle over 'copied' Ordnance maps, reported how the Automobile Association was caught out as having copied from Ordnance Survey maps a number of deliberate stylistic fingerprints - "kinks in rivers, the addition of minor buildings or exaggerated curves in roads". You can find other examples at the OpenStreetMap article Copyright Easter Eggs - Maps that Lye, and confirm using Google Maps that there are definite discrepancies between the street data and aerial photos, such as The Avenue, Finchley, that's displaced to cut straight through a block of flats. As with textual references, it's a matter of opinion whether many of these are deliberately fake "trap streets", simple errata, or time-related errors (such as road layouts revised by subsequent building, or reliably anticipated ones that never came to be). - Ray

More Russification / Wind Done Gone

I recently mentioned Tanya Grotter, Dmitri Yemets' Russian "cultural reply" to Harry Potter. I've been reading Wikipedia on the subject, and was interested to find behind this a long-running story of Russian adaptations of classic Western literature - not mere translations but Russification to adapt to local cultural flavour. We have Tolstoy's Buratino (based on Pinocchio); The Wizard of Emerald City, Alexander Volkov's adaptation of L. Frank Baum's Oz mythos; Nabokov's Anya in Wonderland (see Nabokov as Translator for background); and Boriz Zahoder's adaptation of Winnie the Pooh (see the Zahoder page at the Russian State Children's Library). These works have acquired classic status within their genre: the Volkov adaptations have even come back into English and inspired the works of March Laumer (brother of SF author Keith Laumer - more about him soon). I find it hard to conclude JK Rowling's successful litigation to prevent Western publication of Tanya Grotter to be of long-term benefit to literature; Tanya Grotter and the Magical Double Bass looks an interesting book that could enlighten Western readers about Russian mythology and life in modern Russia.

You can, incidentally, with a little Google-Fu, find a detailed English-language analysis of the the first three Grotter books in Tanya Grotter: a Russian Harry Potter Knock-Off or Parody?, Mark Hooker's conference address reprinted in Selected Papers from Nimbus-2003 Compendium. If you go to the link above and search the book internally for "Tanya Grotter" (use the Google Books "search in this book", in the right-hand sidebar) you can track through the article page by page (ie pp75-104).

Hooker ultimately concludes that the relationship between Harry Potter and Tanya Grotter is akin to that of Gone with the Wind and Alice Randall's The Wind Done Gone, a retelling from a slave perspective (marketed and legally defended as a parody, though it obviously isn't one in the usual comic sense of the word). A legal dispute on very similar grounds to that of Emets vs Rowling concluded as an out-of-court settlement - Settlement reached over 'Wind Done Gone' - enabling the book to be published. The US climate and scenario is, however, rather different, in that The Wind Done Gone was "home-grown" and had strong expert support for its cultural perspective; also, a block on publication raised First Amendment issues of "unlawful prior restraint".

Addendum, 12 Oct 2008: I just ran into another example of a retelling of a novel still in copyright, Pia Pera's Lo's Diary 2001 , Vladimir Nabokov's Lolita retold from the point of Lolita herself, portraying her as a sadistic monster: see Salon Books' The Nymphet Strikes Back and Nerve.com's On a Book Entitled Lo's Diary (Dmitri Nabokov's commentary). Despite considerable legal wrangling, a settlement was reached between Pera and Nabokov's estate - Pact Reached on U.S. Edition of 'Lolita' Retelling (Peter Applebone, New York Times, June 17, 1999). It shows that such accommodations are perfectly feasible.

- Ray

Tanya Grotter

Rather than make the obligatory comment about the release of the last Harry Potter novel, I thought I'd mention a more interesting bibliographic story: the case of Tanya Grotter.

The Tanya Grotter series is a very popular Russian clone of Harry Potter by the best-selling author Dmitri Yemets. There is no doubting the origin, and Yemets is open about it: introduced in Tanya Grotter and the Magical Double Bass, Tanya is an orphan with magical powers, brought up by an abusive foster-family, who gets to go to a wizarding school, etc etc. You won't currently get to read it in translation because in 2003 lawyers for JK Rowling and Time Warner successfully brought a cease-and-desist action to prevent the release of a Dutch translation, and this is likely to be the fate of translation into other languages (see Pravda's J.K. Rowling law firm sued Russian publishing house Eksmo on plagiarism allegation and the BBC's Rowling blocks Grotter release). Rowling's lawyers argued that the Grotter books violated copyright, and Yemets and his Moscow-based publishers, Eksmo, were unsuccessful in defending it as a parody. The latter is permitted under copyright, which is why Michael Gerber's Barry Trotter series is allowed.

On the face of it, this sounds like a cut-and-dried copyright case. But Maureen O'Brien, a blogger in the USA, wrote a deal at the time about the Tanya Grotter series, suggesting that it has been misrepresented. According to Defending Tanya Grotter, the case failed to address the point that the Grotter series is not a parody (in the sense of an extended joke) but a contrafakt: a form of literature that retells a story in a different genre. Compare "contrafactum", the same concept applied to music. Maureen gives the particular examples of Sharon Shinn's Jenna Starborn and Pat Murphy's There and back again, respectively SF retellings of Jane Eyre and The Hobbit. The latter is a particularly significant precedent, as The Hobbit is still in copyright.

As described in Maureen's review , Tanya Grotter has structural similarities to Harry Potter, but is so deeply adapted to a Russian setting that, Maureen argues, it amounts to a different work (or, as Yemets put it, a "cultural reply" to the Potter series). For instance, Tanya doesn't sleep in a broom cupboard but a loggia, a glazed balcony (freezing in winter, sweltering in summer) characteristic of Russian apartments. The magical elements are rooted in Russian folklore, such as Baba Yaga and Rusalki, and general Russian culture such as the works of Pushkin and Rimsky-Korsakov's Night on Bald Mountain. You can read about some of the characters at another of Maureen O'Brien's postings, A little more measured response.....

None of these subtleties came out at the Dutch court sessions, and few commentators outside Russia bothered to investigate (news items just reported the similarities and assumed the copyright breach to be clear-cut). One exception was Tim Wu at Slate.com - Harry Potter and the International Order of Copyright - who argued that the freedom to create derivative works is actually beneficial to the literary market. There have been no attempts to market a translation since then.

- Ray

Addendum: I've commented on this further in a later post, More Russification / Wind Done Gone. - Ray

Beckett oddments

In some circles, YouTube has a bit of a reputation as a video dustbin, but I think this is unmerited as long as you're selective. I just ran into this video for kd lang's Constant Craving, which contains a beautifully-filmed recreation of the first Paris performance of Samuel Beckett's Waiting for Godot. Seaching YouTube for Samuel Beckett finds many more directly related Beckett-related clips, such as the classic Lucky speech (a tour de force in free-association).
      Godot has been inspiration for a great many parodies. See, for instance, Godot Action Comics (from the excellent Book of Sequels written by National Lampoon alumni; or Francis Heaney's Holy Tango of Literature (a very clever collection of pastiches based on anagrams of the author's name; its concluding "Bake me Cutlets" takes Godot into a cookery show).
      Beckett probably wouldn't have liked these. According to Colin Wilson's litcrit book The Strength to Dream, Beckett wasn't pleased (despite the subtitle "a tragicomedy") that Godot came across as so comical, an aspect that is so easily parodied. His work is, by the way, renowned for the strictness with which Beckett's estate enforces his stage directions posthumously (under current law, this situation will persists until 2029). According to this DVD Review, the origin of the kd lang video was that its director, Mark Romanek, wanted to film Godot but was refused permission. (A great loss, if it had the intensity and style of the video). In a 2003 article, Damned to fame: the moral rights of the Beckett estate, Dr Matthew Rimmer told how productions of Godot have been contested (and in many cases stopped) for reasons including unauthorised music, female actors and a mixed-race cast. "It is a sad fate", Dr Rimmer writes, "that Samuel Beckett, the most innovative of playwrights, should have his work preserved in aspic". These issues are explored in detail - some text NSFW - at Gregory Aharonian's Waiting for Opradot.
      For material and links about Beckett himself, see The Samuel Beckett On-Line Resources and Links Pages site.

- Ray