Van Dyke Parks pulls a Mike Love over painting....

[hypehat]

http://www.artnet.com/magazineus/news/artnetnews/beach-boyscease-and-desist.asp


 

[guitarfool2002]

Without reading the specifics or any legal document which was filed, my first reaction is Van Dyke seems to be right on this, especially if nothing was agreed prior to the display and sale of this art. A person cannot use copyrighted material which someone else owns to make a profit, no matter how much of a fan they might be. Someone here could make a "Smile" T-shirt using the official logo or image for themselves and a few friends and it would be fine: As soon as you print a few hundred using a copyrighted logo and publicly offer them for sale and profit without a contract or agreement to pay royalties or whatever, it becomes a legal issue.

One other thing to remember: Frank Holmes did the official Smile artwork. His work is associated with the Smile project and his interpretation of the lyrics is the "official" version to go with the box set release. I'm wondering if perhaps there was a legal agreement or contract with Frank Holmes saying that his art is the exclusive artwork which is connected to those lyrics and the songs.

I'm probably missing the big issue here but after reading the article I was just thinking out loud...and thinking VDP shouldn't be criticized for this if the facts are what they are.

[SMiLE Brian]

Speaking of Van Dyke, I wonder why he has been silent on TSS even into the New Year.

[The Shift]

Without reading the specifics or any legal document which was filed, my first reaction is Van Dyke seems to be right on this, especially if nothing was agreed prior to the display and sale of this art. A person cannot use copyrighted material which someone else owns to make a profit, no matter how much of a fan they might be. Someone here could make a "Smile" T-shirt using the official logo or image for themselves and a few friends and it would be fine: As soon as you print a few hundred using a copyrighted logo and publicly offer them for sale and profit without a contract or agreement to pay royalties or whatever, it becomes a legal issue.

One other thing to remember: Frank Holmes did the official Smile artwork. His work is associated with the Smile project and his interpretation of the lyrics is the "official" version to go with the box set release. I'm wondering if perhaps there was a legal agreement or contract with Frank Holmes saying that his art is the exclusive artwork which is connected to those lyrics and the songs.

I'm probably missing the big issue here but after reading the article I was just thinking out loud...and thinking VDP shouldn't be criticized for this if the facts are what they are.

Absolutely right. Van Dyke is protecting his intellectual property which has been used unlawfully. He makes his living vending words and if someone nicks 'em they're depriving him of income that is rightfully his. The article's a tad one-sided. If I cut and pasted that article and sold it to a national newspaper, they'd be down on me themselves like a ton of bricks!

Rant over…

[rab2591]

I mean, that article really makes me feel for the painter, but I do see VDPs side of things too.

VDPs should just ask for a painting to use on one of his new record sleeves and call it even

[SMiLE Brian]

Speaking of VDP and Mike Love, who thinks they should make an album together.

[The Shift]

I mean, that article really makes me feel for the painter, but I do see VDPs side of things too.

VDPs should just ask for a painting to use on one of his new record sleeves and call it even

… or the artists should just commission VDP to write some words for him, so he can stick them on coloured bricks and make pretty pictures…

(I suspect VDP's words would command a higher price than the pictures)

[Cam Mott]

Who knew Van Dyke wrote so much lyrics for "Fire"?  So much for a wordless "Elements" I guess.

[grillo]

Absolutely right. Van Dyke is protecting his intellectual property which has been used unlawfully.

[/quote] LOL. IP is an unnecessary evil, a residual of the middle ages from which free market societies emerged, a holdover
of the days when governments and royalty granted monopolies to favored courtiers. VDP does not own those words any more than I 'own' the words you are reading. Read http://mises.org/resources/3582/Against-Intellectual-Property if you have an interest in IP (an interest that isn't predatory).

[guitarfool2002]

Who knew Van Dyke wrote so much lyrics for "Fire"?  So much for a wordless "Elements" I guess.

Mr. Manning in his post above mentioned the article on this lawsuit being a bit one-sided. I couldn't agree more, especially since the piece of art they chose to reproduce in the article was "Fire", and obviously that has no lyrics. So some people knowing that would pick up on that vibe and get the whole subliminal thing going on..."Hey, that's not cool of Van Dyke to target this artist, he's a fan..." et cetera.

When they could have, actually, reproduced either this artist's "Surf's Up" canvas, which has the lyrics of the song on the tiles as well as "COLUMNATED RUINS DOMINO" covering 1/4 of the canvas, or his "Smile III" piece which has random lyrics from Wonderful, Cabinessence, etc appearing on the tiles. These pieces were not made for personal use, they were displayed for sale in a gallery.

Here are those other canvases with Smile lyrics from this same collection being offered for sale: http://www.artnet.com/magazineus/features/finch/erik-den-breejen-and-janet-malcolm-1-6-12.asp


...Pardon me while I get back to embossing the lyrics to "Imagine" along with some dreamy floating cloud imagery and whatnot on some blank tote bags...I'll have them up for sale soon, can be yours for only $79.95 plus S&H.  

[guitarfool2002]

LOL. IP is an unnecessary evil, a residual of the middle ages from which free market societies emerged, a holdover
of the days when governments and royalty granted monopolies to favored courtiers. VDP does not own those words any more than I 'own' the words you are reading. Read http://mises.org/resources/3582/Against-Intellectual-Property if you have an interest in IP (an interest that isn't predatory).

A discussion/debate on this seems necessary, but hopefully staying clear of sarcasm, sniping, attacks, etc...

The thoughts about VDP "owning" or "not owning" those words and lyrics struck a nerve. Maybe some of the published authors and songwriters on this board can chime in both pro and con. But I feel that the notion of ownership over something you create - whether it be music or words - is a rather basic concept worth protecting, especially for the "creator". If upon the completion of that work, defined as "Intellectual Property", the work no longer has an owner but is instead somehow floating in limbo between being "ours for the taking" and "free", doesn't it create a scenario which borders on anarchy? If Van Dyke does not own those words, then can anyone feel free to take them and use for their own purposes? Or misuse the words? Or change the words? That doesn't even mention the legality of profiting from those words.

Mr. Kinsella is a learned man, with challenging theories. However, breaking it down to a basic question, what does he do to earn money? What is his product, or what does he produce? How does he draw a paycheck, and make a living?

Kinsella is paid for his thoughts, his ideas, and the writings and lectures which people seek out when they either see him in person or read his words. He is an economist, legal scholar, and also a theoretician of sorts. Therefore, the product which he is paid to "produce" is mostly his thoughts and his words. He doesn't necessarily make anything concrete to sell or buy, his words and ideas are his product. He also signs his writings with his name, suggesting a basic level of claiming ownwership over what others are about to read or see.

Is the concept of a thinker and scholar like Kinsella "owning" his words that different from a lyricist like Van Dyke Parks "owning" his words? Kinsella is paid to speak and to write, expressing his thoughts and theories...should anyone then have a legal or even intellectual claim on those words and be able to take them away from Kinsella?

[Dr. Tim]

We can get the law issue out of the way first.  Van Dyke's claim is more than colorable.  It is the lyric quotes which are being featured and appropriated, and maybe his agents/attorneys spotted this before he did.  (Good ones are paid to do just that).  Other artists have enjoined similar infringements when it bugged them.  Some "appropriation" artists do this and take the chance the source artist won't care or can't afford to act to stop them.  Sometimes they're right.  Sometimes they lose.

Plus, as is noted, Van Dyke no doubt gave a license (as part of his contract) to let his words be quoted and featured in the Smile artwork, etc.  Arguably this cheapens that, left unchallenged, even if it comes from the heart of a fan.   Given the nature of the quotes used, I think the fair use argument is somewhat weak this time.  (It is a variable concept).

I will bet the artists's real sin is not reaching out to clear it with Van Dyke first.  Now, Van Dyke may have refused flat out if asked,  if there is  an exclusive license to EMI (etc.).  But since Van Dyke went out of his way to say he commissioned "free art" from Frank Holmes and others for his 45 releases (I assume they retain their copyrights in exchange for their work being featured), it may have offended his own sense of etiquette for someone else to just do this and not clear it.

Of course the whole issue of transformational/appropriation-ist art (i.e. visual and audio sampling, plunderphonics, mash-ups, etc). is a subject of considerable debate right now. Especially given some of the anti-piracy bills floating around, some provisions of which are OK but others are genuinely chilling, designed to "make the internet pay" for oldster content holders who don't have a clue how the internet works (i.e., most of the congressmen who got lobbied heavily but are not webheads by any stretch, using a club when a flyswatter will do, legally speaking).

[Iron Horse-Apples]

LOL. IP is an unnecessary evil, a residual of the middle ages from which free market societies emerged, a holdover
of the days when governments and royalty granted monopolies to favored courtiers. VDP does not own those words any more than I 'own' the words you are reading. Read http://mises.org/resources/3582/Against-Intellectual-Property if you have an interest in IP (an interest that isn't predatory).

A discussion/debate on this seems necessary, but hopefully staying clear of sarcasm, sniping, attacks, etc...

The thoughts about VDP "owning" or "not owning" those words and lyrics struck a nerve. Maybe some of the published authors and songwriters on this board can chime in both pro and con. But I feel that the notion of ownership over something you create - whether it be music or words - is a rather basic concept worth protecting, especially for the "creator". If upon the completion of that work, defined as "Intellectual Property", the work no longer has an owner but is instead somehow floating in limbo between being "ours for the taking" and "free", doesn't it create a scenario which borders on anarchy? If Van Dyke does not own those words, then can anyone feel free to take them and use for their own purposes? Or misuse the words? Or change the words? That doesn't even mention the legality of profiting from those words.

Mr. Kinsella is a learned man, with challenging theories. However, breaking it down to a basic question, what does he do to earn money? What is his product, or what does he produce? How does he draw a paycheck, and make a living?

Kinsella is paid for his thoughts, his ideas, and the writings and lectures which people seek out when they either see him in person or read his words. He is an economist, legal scholar, and also a theoretician of sorts. Therefore, the product which he is paid to "produce" is mostly his thoughts and his words. He doesn't necessarily make anything concrete to sell or buy, his words and ideas are his product. He also signs his writings with his name, suggesting a basic level of claiming ownwership over what others are about to read or see.

Is the concept of a thinker and scholar like Kinsella "owning" his words that different from a lyricist like Van Dyke Parks "owning" his words? Kinsella is paid to speak and to write, expressing his thoughts and theories...should anyone then have a legal or even intellectual claim on those words and be able to take them away from Kinsella?

I own all the music I compose. I choose to give it away for free mostly, but I still own the copyright and publishing rights. Otherwise, what is to stop someone else saying they wrote it. The money isn't really an issue. It's owning the right to be identified as the creator. As most artists have HUGE and delicate egos, I'd say that was a necessity.

[hypehat]

I will bet the artists's real sin is not reaching out to clear it with Van Dyke first.  Now, Van Dyke may have refused flat out if asked,  if there is  an exclusive license to EMI (etc.).  But since Van Dyke went out of his way to say he commissioned "free art" from Frank Holmes and others for his 45 releases (I assume they retain their copyrights in exchange for their work being featured), it may have offended his own sense of etiquette for someone else to just do this and not clear it.

Yeah, I think this is the key.
It's all well and good doing art inspired by his lyricism to the extent these words are used in the piece, but even if the gallery picked the artist up after the paintings were finished and wanted to exhibit them, Van Dyke should have been consulted prior to the pieces commanding $1k+. It's respectful to do so.

At least you lot are being fairer than WFMU, whose twitter feed I saw this on today - I would quote, but they removed the tweet in question. Something like 'VDP proving what a massive douchebag he is by suing an artist'.

[onkster]

Well, something tells me VDP wasn't adequately compensated in the whole TSS release--hence, his silence on it, and his fairly bitter-sounding comment on Saturday (at Freakbeat) that TSS was "redundant merchandise".

By saying this, I don't mean to diss Mr. Parks in any way--it sounds like he may well have good reasons to be upset. Since those reasons haven't been made public, though, we can only guess what they were.

It's tricky all around--look how many people were using Holmes' artwork for years without compensating him--and, if I recall rightly, he never got paid for creating the stuff in the first place. He had to resort to selling copies himself, before it finally got used on TSS.

One wishes the record companies would just do the right thing and pay everybody what they rightfully deserve for their work. But I know how it goes.

[Smilin Ed H]

Is he known for remaining quiet...?

[guitarfool2002]

LOL. IP is an unnecessary evil, a residual of the middle ages from which free market societies emerged, a holdover
of the days when governments and royalty granted monopolies to favored courtiers. VDP does not own those words any more than I 'own' the words you are reading. Read http://mises.org/resources/3582/Against-Intellectual-Property if you have an interest in IP (an interest that isn't predatory).

A discussion/debate on this seems necessary, but hopefully staying clear of sarcasm, sniping, attacks, etc...

The thoughts about VDP "owning" or "not owning" those words and lyrics struck a nerve. Maybe some of the published authors and songwriters on this board can chime in both pro and con. But I feel that the notion of ownership over something you create - whether it be music or words - is a rather basic concept worth protecting, especially for the "creator". If upon the completion of that work, defined as "Intellectual Property", the work no longer has an owner but is instead somehow floating in limbo between being "ours for the taking" and "free", doesn't it create a scenario which borders on anarchy? If Van Dyke does not own those words, then can anyone feel free to take them and use for their own purposes? Or misuse the words? Or change the words? That doesn't even mention the legality of profiting from those words.

Mr. Kinsella is a learned man, with challenging theories. However, breaking it down to a basic question, what does he do to earn money? What is his product, or what does he produce? How does he draw a paycheck, and make a living?

Kinsella is paid for his thoughts, his ideas, and the writings and lectures which people seek out when they either see him in person or read his words. He is an economist, legal scholar, and also a theoretician of sorts. Therefore, the product which he is paid to "produce" is mostly his thoughts and his words. He doesn't necessarily make anything concrete to sell or buy, his words and ideas are his product. He also signs his writings with his name, suggesting a basic level of claiming ownwership over what others are about to read or see.

Is the concept of a thinker and scholar like Kinsella "owning" his words that different from a lyricist like Van Dyke Parks "owning" his words? Kinsella is paid to speak and to write, expressing his thoughts and theories...should anyone then have a legal or even intellectual claim on those words and be able to take them away from Kinsella?

I own all the music I compose. I choose to give it away for free mostly, but I still own the copyright and publishing rights. Otherwise, what is to stop someone else saying they wrote it. The money isn't really an issue. It's owning the right to be identified as the creator. As most artists have HUGE and delicate egos, I'd say that was a necessity.

Yes! I'm the same way as a writer, I made sure to legally "own" my songs even if they don't sell a single copy in the future. With that in mind, it defies all logic when I read comments about music being free for the taking and the how there should not be a right or a claim to intellectual property.

It's ultimately up to the creator/artist, whether they choose to allow a certain use of their work or whether they want to be compensated for using it. Or if they signed the control of the work away, it's up to whoever controls the rights to the work, i.e. McCartney owning Buddy Holly's song publishing. But you can't just use copyrighted material, sell it for a profit, and expect the creator-artist-publisher to just roll over and give their blessing. That's not only naive, it's also selfish.

[grillo]

LOL. IP is an unnecessary evil, a residual of the middle ages from which free market societies emerged, a holdover
of the days when governments and royalty granted monopolies to favored courtiers. VDP does not own those words any more than I 'own' the words you are reading. Read http://mises.org/resources/3582/Against-Intellectual-Property if you have an interest in IP (an interest that isn't predatory).

A discussion/debate on this seems necessary, but hopefully staying clear of sarcasm, sniping, attacks, etc...

The thoughts about VDP "owning" or "not owning" those words and lyrics struck a nerve. Maybe some of the published authors and songwriters on this board can chime in both pro and con. But I feel that the notion of ownership over something you create - whether it be music or words - is a rather basic concept worth protecting, especially for the "creator". If upon the completion of that work, defined as "Intellectual Property", the work no longer has an owner but is instead somehow floating in limbo between being "ours for the taking" and "free", doesn't it create a scenario which borders on anarchy? If Van Dyke does not own those words, then can anyone feel free to take them and use for their own purposes? Or misuse the words? Or change the words? That doesn't even mention the legality of profiting from those words.

Mr. Kinsella is a learned man, with challenging theories. However, breaking it down to a basic question, what does he do to earn money? What is his product, or what does he produce? How does he draw a paycheck, and make a living?

Kinsella is paid for his thoughts, his ideas, and the writings and lectures which people seek out when they either see him in person or read his words. He is an economist, legal scholar, and also a theoretician of sorts. Therefore, the product which he is paid to "produce" is mostly his thoughts and his words. He doesn't necessarily make anything concrete to sell or buy, his words and ideas are his product. He also signs his writings with his name, suggesting a basic level of claiming ownwership over what others are about to read or see.

Is the concept of a thinker and scholar like Kinsella "owning" his words that different from a lyricist like Van Dyke Parks "owning" his words? Kinsella is paid to speak and to write, expressing his thoughts and theories...should anyone then have a legal or even intellectual claim on those words and be able to take them away from Kinsella?

Well, Kinsella of course is getting paid, but he is not using the force of the Government to make sure he gets paid. In other words, the desire to have the state use force to enable your copyright claim to be 'protected' is the objection, not that a person shouldn't be paid for his work.
BTW, its always hilarious when folks who for sure own music that they didn't pay the artist for still fall for the old state-monopoly line about IP.

[SBonilla]

Well, something tells me VDP wasn't adequately compensated in the whole TSS release--hence, his silence on it, and his fairly bitter-sounding comment on Saturday (at Freakbeat) that TSS was "redundant merchandise".

What compensation would have been due? Artist royalities advance? No. Songwriter royalties advance from the songs' publisher? If he or his lawyers asked, very possibly.

[guitarfool2002]

LOL. IP is an unnecessary evil, a residual of the middle ages from which free market societies emerged, a holdover
of the days when governments and royalty granted monopolies to favored courtiers. VDP does not own those words any more than I 'own' the words you are reading. Read http://mises.org/resources/3582/Against-Intellectual-Property if you have an interest in IP (an interest that isn't predatory).

A discussion/debate on this seems necessary, but hopefully staying clear of sarcasm, sniping, attacks, etc...

The thoughts about VDP "owning" or "not owning" those words and lyrics struck a nerve. Maybe some of the published authors and songwriters on this board can chime in both pro and con. But I feel that the notion of ownership over something you create - whether it be music or words - is a rather basic concept worth protecting, especially for the "creator". If upon the completion of that work, defined as "Intellectual Property", the work no longer has an owner but is instead somehow floating in limbo between being "ours for the taking" and "free", doesn't it create a scenario which borders on anarchy? If Van Dyke does not own those words, then can anyone feel free to take them and use for their own purposes? Or misuse the words? Or change the words? That doesn't even mention the legality of profiting from those words.

Mr. Kinsella is a learned man, with challenging theories. However, breaking it down to a basic question, what does he do to earn money? What is his product, or what does he produce? How does he draw a paycheck, and make a living?

Kinsella is paid for his thoughts, his ideas, and the writings and lectures which people seek out when they either see him in person or read his words. He is an economist, legal scholar, and also a theoretician of sorts. Therefore, the product which he is paid to "produce" is mostly his thoughts and his words. He doesn't necessarily make anything concrete to sell or buy, his words and ideas are his product. He also signs his writings with his name, suggesting a basic level of claiming ownwership over what others are about to read or see.

Is the concept of a thinker and scholar like Kinsella "owning" his words that different from a lyricist like Van Dyke Parks "owning" his words? Kinsella is paid to speak and to write, expressing his thoughts and theories...should anyone then have a legal or even intellectual claim on those words and be able to take them away from Kinsella?

Well, Kinsella of course is getting paid, but he is not using the force of the Government to make sure he gets paid. In other words, the desire to have the state use force to enable your copyright claim to be 'protected' is the objection, not that a person shouldn't be paid for his work.
BTW, its always hilarious when folks who for sure own music that they didn't pay the artist for still fall for the old state-monopoly line about IP.

It might work in theory or on paper, but in the real world, what else would be in place to make someone pay for anything? Let's say Kinsella writes, edits, designs, prints, and distributes his own book, free of any notion of copyright or any other law enforcing anything in the process. Taking the theory to an ultimate extreme, if he himself sets up a table in the middle of a parking lot somewhere, and has stacks of his books for sale at 25 dollars per copy, what would stop me from going to his table, grabbing a copy, and saying "I'm taking this and I'm giving you 5 dollars." What recourse would he have against me if not the legality of me taking his book and in a true free-market system, giving him what I (the market) feels the product (Kinsella's words in the book) is worth?

And what force could he use if not the legal system against me, the consumer, if I undercut his price by forcing him to take what I want to pay versus what he wants to pay? And if he refuses my offer, what force could he then call on if I were to grab his book and run away without paying anything? How different at a basic level is the enforcement of a copyright law from the enforcement of a law against outright theft of physical property, or should they be different at all?

If the theory relies on human nature and goodwill (i.e. the notion of 'doing what is right') to ensure an artist gets paid, it's going to fall short. Again, not saying the current system is flawless or even efficient or fair, but how far do we go with some of the alternatives?

[b00ts]

LOL. IP is an unnecessary evil, a residual of the middle ages from which free market societies emerged, a holdover
of the days when governments and royalty granted monopolies to favored courtiers. VDP does not own those words any more than I 'own' the words you are reading. Read http://mises.org/resources/3582/Against-Intellectual-Property if you have an interest in IP (an interest that isn't predatory).

A discussion/debate on this seems necessary, but hopefully staying clear of sarcasm, sniping, attacks, etc...

The thoughts about VDP "owning" or "not owning" those words and lyrics struck a nerve. Maybe some of the published authors and songwriters on this board can chime in both pro and con. But I feel that the notion of ownership over something you create - whether it be music or words - is a rather basic concept worth protecting, especially for the "creator". If upon the completion of that work, defined as "Intellectual Property", the work no longer has an owner but is instead somehow floating in limbo between being "ours for the taking" and "free", doesn't it create a scenario which borders on anarchy? If Van Dyke does not own those words, then can anyone feel free to take them and use for their own purposes? Or misuse the words? Or change the words? That doesn't even mention the legality of profiting from those words.

Mr. Kinsella is a learned man, with challenging theories. However, breaking it down to a basic question, what does he do to earn money? What is his product, or what does he produce? How does he draw a paycheck, and make a living?

Kinsella is paid for his thoughts, his ideas, and the writings and lectures which people seek out when they either see him in person or read his words. He is an economist, legal scholar, and also a theoretician of sorts. Therefore, the product which he is paid to "produce" is mostly his thoughts and his words. He doesn't necessarily make anything concrete to sell or buy, his words and ideas are his product. He also signs his writings with his name, suggesting a basic level of claiming ownwership over what others are about to read or see.

Is the concept of a thinker and scholar like Kinsella "owning" his words that different from a lyricist like Van Dyke Parks "owning" his words? Kinsella is paid to speak and to write, expressing his thoughts and theories...should anyone then have a legal or even intellectual claim on those words and be able to take them away from Kinsella?

Well, Kinsella of course is getting paid, but he is not using the force of the Government to make sure he gets paid. In other words, the desire to have the state use force to enable your copyright claim to be 'protected' is the objection, not that a person shouldn't be paid for his work.
BTW, its always hilarious when folks who for sure own music that they didn't pay the artist for still fall for the old state-monopoly line about IP.

It might work in theory or on paper, but in the real world, what else would be in place to make someone pay for anything? Let's say Kinsella writes, edits, designs, prints, and distributes his own book, free of any notion of copyright or any other law enforcing anything in the process. Taking the theory to an ultimate extreme, if he himself sets up a table in the middle of a parking lot somewhere, and has stacks of his books for sale at 25 dollars per copy, what would stop me from going to his table, grabbing a copy, and saying "I'm taking this and I'm giving you 5 dollars." What recourse would he have against me if not the legality of me taking his book and in a true free-market system, giving him what I (the market) feels the product (Kinsella's words in the book) is worth?

And what force could he use if not the legal system against me, the consumer, if I undercut his price by forcing him to take what I want to pay versus what he wants to pay? And if he refuses my offer, what force could he then call on if I were to grab his book and run away without paying anything? How different at a basic level is the enforcement of a copyright law from the enforcement of a law against outright theft of physical property, or should they be different at all?

If the theory relies on human nature and goodwill (i.e. the notion of 'doing what is right') to ensure an artist gets paid, it's going to fall short. Again, not saying the current system is flawless or even efficient or fair, but how far do we go with some of the alternatives?

Your analogy falls short, good sir. You are conflating the idea of intellectual property with physical property. You would still be stealing a book, as in the physical object, even if the IP inside the book was public domain.
 
For instance, there are many companies that specialize in distributing public domain films and TV shows (likethe Three Stooges) on DVD. Just because that material is public domain does not mean you can steal those DVDs from the dollar bin in your local Rite-Aid.

Unfortunately, copyright is way out of control in the USA and there seems to be a similar climate much of the world over, with the ACTA treaty ratified, et. cetera. Major media cartels are spending a lot of money on laws and regulations that will not amount to much in the end; people will always copy material. If the media companies invested all that political bribe money in a superior content distribution system with reasonable prices, they would be ensuring their future in a more sustainable and tangible way, with the bonus of not generating additional consumer enmity. As it is, the cartels are shoveling barrels of money at the US house and senate for very little long-term gain.

Moreover, with the constant copyright extensions and the recent Supreme Court decision that says public domain material can be re-copyrighted, we are headed further down the road to information lockdown. What if I created derivative wrks using public domain material? Do the people who re-coyrighted the material now own my derivative work? All of this has a stifling effect after a while.

Like others here, I own my own songs and masters and I like being able to have control over them... But control realistically only lasts until the moment you put the product out there. Then, it belongs to the world, and can be copied an unlimited amount of times - it takes on a life of its own. Of course, I hope nobody steals any of my songs, and would pursue them if they did, but I am also constantly writing. That is the key - continually generating new, compelling content, which the film and music industry are able but unwilling to do, preferring to play it safe with middle-of-the-road BS, remakes and reboots.

All the DRM and laws in the world can't prevent this proliferation. It is just natural. Thus the key difference between the concept of intellectual property and real property - real property belongs to one person at a time, and to acquire it, one must necessarily deprive the person who owns it.

[guitarfool2002]

LOL. IP is an unnecessary evil, a residual of the middle ages from which free market societies emerged, a holdover
of the days when governments and royalty granted monopolies to favored courtiers. VDP does not own those words any more than I 'own' the words you are reading. Read http://mises.org/resources/3582/Against-Intellectual-Property if you have an interest in IP (an interest that isn't predatory).

A discussion/debate on this seems necessary, but hopefully staying clear of sarcasm, sniping, attacks, etc...

The thoughts about VDP "owning" or "not owning" those words and lyrics struck a nerve. Maybe some of the published authors and songwriters on this board can chime in both pro and con. But I feel that the notion of ownership over something you create - whether it be music or words - is a rather basic concept worth protecting, especially for the "creator". If upon the completion of that work, defined as "Intellectual Property", the work no longer has an owner but is instead somehow floating in limbo between being "ours for the taking" and "free", doesn't it create a scenario which borders on anarchy? If Van Dyke does not own those words, then can anyone feel free to take them and use for their own purposes? Or misuse the words? Or change the words? That doesn't even mention the legality of profiting from those words.

Mr. Kinsella is a learned man, with challenging theories. However, breaking it down to a basic question, what does he do to earn money? What is his product, or what does he produce? How does he draw a paycheck, and make a living?

Kinsella is paid for his thoughts, his ideas, and the writings and lectures which people seek out when they either see him in person or read his words. He is an economist, legal scholar, and also a theoretician of sorts. Therefore, the product which he is paid to "produce" is mostly his thoughts and his words. He doesn't necessarily make anything concrete to sell or buy, his words and ideas are his product. He also signs his writings with his name, suggesting a basic level of claiming ownwership over what others are about to read or see.

Is the concept of a thinker and scholar like Kinsella "owning" his words that different from a lyricist like Van Dyke Parks "owning" his words? Kinsella is paid to speak and to write, expressing his thoughts and theories...should anyone then have a legal or even intellectual claim on those words and be able to take them away from Kinsella?

Well, Kinsella of course is getting paid, but he is not using the force of the Government to make sure he gets paid. In other words, the desire to have the state use force to enable your copyright claim to be 'protected' is the objection, not that a person shouldn't be paid for his work.
BTW, its always hilarious when folks who for sure own music that they didn't pay the artist for still fall for the old state-monopoly line about IP.

It might work in theory or on paper, but in the real world, what else would be in place to make someone pay for anything? Let's say Kinsella writes, edits, designs, prints, and distributes his own book, free of any notion of copyright or any other law enforcing anything in the process. Taking the theory to an ultimate extreme, if he himself sets up a table in the middle of a parking lot somewhere, and has stacks of his books for sale at 25 dollars per copy, what would stop me from going to his table, grabbing a copy, and saying "I'm taking this and I'm giving you 5 dollars." What recourse would he have against me if not the legality of me taking his book and in a true free-market system, giving him what I (the market) feels the product (Kinsella's words in the book) is worth?

And what force could he use if not the legal system against me, the consumer, if I undercut his price by forcing him to take what I want to pay versus what he wants to pay? And if he refuses my offer, what force could he then call on if I were to grab his book and run away without paying anything? How different at a basic level is the enforcement of a copyright law from the enforcement of a law against outright theft of physical property, or should they be different at all?

If the theory relies on human nature and goodwill (i.e. the notion of 'doing what is right') to ensure an artist gets paid, it's going to fall short. Again, not saying the current system is flawless or even efficient or fair, but how far do we go with some of the alternatives?

Your analogy falls short, good sir. You are conflating the idea of intellectual property with physical property. You would still be stealing a book, as in the physical object, even if the IP inside the book was public domain.
 
For instance, there are many companies that specialize in distributing public domain films and TV shows (likethe Three Stooges) on DVD. Just because that material is public domain does not mean you can steal those DVDs from the dollar bin in your local Rite-Aid.

Unfortunately, copyright is way out of control in the USA and there seems to be a similar climate much of the world over, with the ACTA treaty ratified, et. cetera. Major media cartels are spending a lot of money on laws and regulations that will not amount to much in the end; people will always copy material. If the media companies invested all that political bribe money in a superior content distribution system with reasonable prices, they would be ensuring their future in a more sustainable and tangible way, with the bonus of not generating additional consumer enmity. As it is, the cartels are shoveling barrels of money at the US house and senate for very little long-term gain.

Moreover, with the constant copyright extensions and the recent Supreme Court decision that says public domain material can be re-copyrighted, we are headed further down the road to information lockdown. What if I created derivative wrks using public domain material? Do the people who re-coyrighted the material now own my derivative work? All of this has a stifling effect after a while.

Like others here, I own my own songs and masters and I like being able to have control over them... But control realistically only lasts until the moment you put the product out there. Then, it belongs to the world, and can be copied an unlimited amount of times - it takes on a life of its own. Of course, I hope nobody steals any of my songs, and would pursue them if they did, but I am also constantly writing. That is the key - continually generating new, compelling content, which the film and music industry are able but unwilling to do, preferring to play it safe with middle-of-the-road BS, remakes and reboots.

All the DRM and laws in the world can't prevent this proliferation. It is just natural. Thus the key difference between the concept of intellectual property and real property - real property belongs to one person at a time, and to acquire it, one must necessarily deprive the person who owns it.

The issues of copyright and personal use were argued in the cases involving home taping, most prominent in the Sony Betamax case where the recording and film industry were concerned about giving the home consumer the ability to, as you said, make infinite copies of something broadcast on TV or on the radio, in their opinion creating a market where less physical copies were actually purchased and more "free" material was made available. This case can be read about in many sources, the exact details aren't worth posting a long screed here, but the arguments in that case are worth reading and some continue to reappear in cases like Napster and others.

Needless to say, the VCR survived, the cassette deck survived, and the recordable CDR survived. There was not a stoppage nor extensive licensing or fees/taxes applied to the blank media or the machines when a consumer bought them.

I believe you misunderstood my analogy: We expect a government agency (the police) and a legal body (the court system) to step in if someone were to "steal" a physical copy of that hypothetical book. Yet we don't think other branches within that same system should step in if someone were to steal the "intellectual property" contained in that same book?

I'd like to pose a hypothetical situation, and I'm really interested to hear what the responses may be.

Assume the notion of "intellectual property" in the context of copyright and ownership were to be dismissed, taking it as far as Kinsella's theories may want to take it.

Say you were to write a novel, as a hobby from your love of writing, and you were to make rough copies for a handful of friends and family...as a gift, not for sale or general publication. What if one of those friends were to take that copy, claim it as his or her own work, and pass it to a bigger entity who would then go on to publish it. It becomes a massive success, generating wealth and profit, yet you know you wrote it from the original idea to the finished novel.

If there is no definable and enforceable concept of "intellectual property" in the court system (the government), what options do you then have as the author who had his work stolen? What would be in place to deal with a situation like this if the legal system no longer recognizes intellectual property rights, claimed by the creator of that work?

[Emdeeh]

Well, something tells me VDP wasn't adequately compensated in the whole TSS release--hence, his silence on it, and his fairly bitter-sounding comment on Saturday (at Freakbeat) that TSS was "redundant merchandise".

So, it probably wouldn't be a good idea to ask VDP to autograph one's copy of TSS, then?

[BJL]

Without reading the specifics or any legal document which was filed, my first reaction is Van Dyke seems to be right on this, especially if nothing was agreed prior to the display and sale of this art. A person cannot use copyrighted material which someone else owns to make a profit, no matter how much of a fan they might be. [this is simple not true.  Fair use law includes many for-profit uses.]  Someone here could make a "Smile" T-shirt using the official logo or image for themselves and a few friends and it would be fine: As soon as you print a few hundred using a copyrighted logo and publicly offer them for sale and profit without a contract or agreement to pay royalties or whatever, it becomes a legal issue.  [That is because that particularly kind of commercial use does not fall under fair use doctrine.  The artist in question, however, does]

One other thing to remember: Frank Holmes did the official Smile artwork. His work is associated with the Smile project and his interpretation of the lyrics is the "official" version to go with the box set release. I'm wondering if perhaps there was a legal agreement or contract with Frank Holmes saying that his art is the exclusive artwork which is connected to those lyrics and the songs.  [This is, from a legal perspective, sort of absurd.  You can not have an exclusive right to artistically interpret, be inspired by, or build on another work of art.  Now, if this artist was using his artwork to try and sell bootleg copies of Smile, that would be different.]

I'm probably missing the big issue here but after reading the article I was just thinking out loud...and thinking VDP shouldn't be criticized for this if the facts are what they are.

These paintings very, very clearly fall under fair use, for the following reasons:

1. The purpose and character of the work is clearly transformative rather than derivative.   Park's words are put in an entirely new medium and context with clear artist purposes.  This is the first of the four major criteria for deciding fair use cases under US law. 

2.  The nature of the copied work (in this case Smile) as a culturally important and easily available to the public work of art.  If Van Dyke's work had not yet been published, then the artist could be accused of "stealing his thunder" so to speak, but that is clearly not the case here.  This is the second major criteria for deciding fair use under US law, although probably the least important.

3. Although the artist is quoting van dyke parks directly, those quotes are only small portions of the original work.  The amount and substantiality of the portion used in relation to the copyrighted work as a whole is another of the four major fair use criteria. 

4.  Finally, although the artist is making money with his artwork, he is not interfering with Van Dyke Park's ability to make money with Park's artwork, and his paintings in no substantive way devalue Park's original work, which is the last criteria for deciding fair use. 

Thus, under US law at least this artist's work is clearly 100% legal, and Van Dyke Park's scare tactics (using the threat of lawsuits and court fees against a poor and relatively inexperienced artist without the financial means to easily defend himself) is very low indeed.

[filledeplage]

Without reading the specifics or any legal document which was filed, my first reaction is Van Dyke seems to be right on this, especially if nothing was agreed prior to the display and sale of this art. A person cannot use copyrighted material which someone else owns to make a profit, no matter how much of a fan they might be. [this is simple not true.  Fair use law includes many for-profit uses.]  Someone here could make a "Smile" T-shirt using the official logo or image for themselves and a few friends and it would be fine: As soon as you print a few hundred using a copyrighted logo and publicly offer them for sale and profit without a contract or agreement to pay royalties or whatever, it becomes a legal issue.  [That is because that particularly kind of commercial use does not fall under fair use doctrine.  The artist in question, however, does]

One other thing to remember: Frank Holmes did the official Smile artwork. His work is associated with the Smile project and his interpretation of the lyrics is the "official" version to go with the box set release. I'm wondering if perhaps there was a legal agreement or contract with Frank Holmes saying that his art is the exclusive artwork which is connected to those lyrics and the songs.  [This is, from a legal perspective, sort of absurd.  You can not have an exclusive right to artistically interpret, be inspired by, or build on another work of art.  Now, if this artist was using his artwork to try and sell bootleg copies of Smile, that would be different.]

I'm probably missing the big issue here but after reading the article I was just thinking out loud...and thinking VDP shouldn't be criticized for this if the facts are what they are.

These paintings very, very clearly fall under fair use, for the following reasons:

1. The purpose and character of the work is clearly transformative rather than derivative.   Park's words are put in an entirely new medium and context with clear artist purposes.  This is the first of the four major criteria for deciding fair use cases under US law. 

2.  The nature of the copied work (in this case Smile) as a culturally important and easily available to the public work of art.  If Van Dyke's work had not yet been published, then the artist could be accused of "stealing his thunder" so to speak, but that is clearly not the case here.  This is the second major criteria for deciding fair use under US law, although probably the least important.

3. Although the artist is quoting van dyke parks directly, those quotes are only small portions of the original work.  The amount and substantiality of the portion used in relation to the copyrighted work as a whole is another of the four major fair use criteria. 

4.  Finally, although the artist is making money with his artwork, he is not interfering with Van Dyke Park's ability to make money with Park's artwork, and his paintings in no substantive way devalue Park's original work, which is the last criteria for deciding fair use. 

Thus, under US law at least this artist's work is clearly 100% legal, and Van Dyke Park's scare tactics (using the threat of lawsuits and court fees against a poor and relatively inexperienced artist without the financial means to easily defend himself) is very low indeed.

Excellent analysis - Stanford, on its' page on Copyright added a fifth "fair use" factor, as to whether the court subjectively finds it, if a "parody" defense was asserted, and that was the "Cabbage Patch Kids," transformed into the  "Garbage Pail Kids" by the bubblegum card empire. ( Original Applacian Artworks, Inc. v. Topps Chewing Gum, Inc., 652 Supp. 1031 (N.D. Ga. 1986.))It was sort of found by the individual judge to be morally offensive, even if the Supreme Court indicates that it should not be a factor. 

What was interesting is when you would be close to the artwork, you would see the word snippets, clearly Van Dyke's, but if one were to step back, they almost become like mosaic tiles, as part of a newer artistic design.  If it became a mural on the side of a wall you drove by, the words, individually, would disappear, unless you stopped to look at it, closely.  In any event, it will be interesting to watch. 

The analysis from Stanford is from the search terms of  "copyright and fair use."