Music this good can’t be illegal: On illegal art and remixing.

A year ago, I conducted alongside Dr. Nimrod Kozlovski a comprehensive research about Fair Use in Israel, which was made for Consumers International. The 2010 Report about Fair Use in Israel was the first of its kind; we reviewed almost all the court decisions regarding fair use ever since the young state of Israel was established, conducted a survey between hundreds of content creators and interviewed dozens of people whose work involved copyright: musicians, artists, photographers, journalists and others. We wanted to find out how they felt with subjects such as remix artist Kutiman‘s Thru You and other issues relating to sampling, remixing and creating upon other’s works. One of the interviews I conducted was with Terry Poison‘s Bruno Grife. Terry Poison, for non-Israeli readers [wiki article] is a popular music band, with electro-pop influences and quite interestingly, displays the new Israeli music, as it is not targeted to Israelies, written in English, and performed worldwide.

I spoke with Bruno for about an hour and one of the subjects was, because of Terry Poison’s music genre, the question of remixing and fair use. Actually, not the “fair use” in the classical form of the Israeli Copyright Act that is solely for self learning, research, criticism, review, journalistic reporting, quotation or teaching and examining by an educational establishment, but the Cultural Fair Use which was created in C 7648-09-08 Smadar Katz v. Ben-Tzion Rothman and OCR 11646/08 Premier League v. John Doe. In both cases, the court addressed fair use as a cultural right, and ruled that uses may be fair even if they are not in the extensive list of purposes.

Bruno explained that “when fans upload a portion of our show to YouTube it disturbs me, but when our fans perform homages such as LipDubs, it doesn’t … if a fan takes something that is ours and then remixes it, we’d love to integrate it. If it’s good, it’s good. But when something turns commercial, the line is drawn”. afterwards, he explained about where hew uses others’ materials: “we perform live mash-ups, I can take the chorus of someone else and take-off my music, because is is a part of respect for the influence he gave me, and live music is the place to let others discover music we love”.

But putting all of of this aside, a recent arbitration between two popular Israeli musicians puts this issue in a whole new perspective. [Hebrew link to the news story]. In 2002, Israeli band Hadag Nachash released an album called Local Substance (actually, more like “Local Material”, but the reference for drugs all over the album is a part of the decision). One of their songs, “Ma Naase” (what will we do), was influenced or quite similar to another Israeli artist classic hit, Ariel Zilber “Veeich Shelo” (no matter what, literally). Zilber sought arbitration, claiming Hadag Nachash violated his intellectual property rights; and Justice Theodore Or, residing as the arbitrator, ruled damages for Zilber and issued an injunction prohibiting Hadag Nachash from performing this song in their shows, mandating them to redact their albums from record stores and removing this song from the ACUM (the Israeli equivalent to ASCAP) repertoire.

Hadag Nachash’s Song

Zilber’s Song:

However, the question of whether whether Hadag Nachash copied the song isn’t relevant if you discuss cultural fair use. This right is a person’s right to perform homage, to give credit, to take the music he grew on without harming the original music’s commercial value. Hadag Nachash’s homage to Ariel Zilber does not harm Zilber’s ability to sell even one album. In the same way that sampled music never harmed the value or commercial potential of music. If we take interesting examples of sampling showing increased sales, we can see that Eminem’s song, Stan was what brought the success of the sampled Thank You, performed by Dido.

this shows how the tort in copyright, where copyright should prevent damages to the plaintiff, crashed. Zilber did not and won’t lose money here. In old songs, older than 5-6 years, the commercial value of the work was already maximized. And as usual, the fact that someone creates work based on your work and makes money off of it doesn’t mean that you have to be compensated (see, for example, C 1074/05 Maariv v. All You Need).

Therefore, the unconstitutional prohibition of playing the song makes it a part of the Illegal Art Corpus, in a same way that DJ Danger Mouse‘s The Grey Album was: the only way to hear the song is to download it illegal in the file sharing networks. Now, the question arising about what will Zilber do against all the bloggers who put up the song in their blogs to explain about the case.

And finally, I want to show a small Homage that Israeli artist Edan Alterman gave to many artists. Alterman performed a song in one of his shows which “infringes” the rights of a dozen artists; however, the cultural value in the performance exceeds any infringement. This is a distinct example on how Fair Use has to include homage as an exemption: music this good can’t be illegal.

Justice Or’s arbitration ruling does not apply to myself. I am not a party for the subject matter and unlike courts, which can issue injunctions against the general public, the arbitration ruling applies only to the parties. Moreover, one has to remember that one of the articles in The Israeli Arbitration Act is that the court may invalidate an arbitration is the decision is unconscionable. The result of this arbitration, if it like the press is reporting it (as it does not appear anywhere, and we can’t find the ruling) harms my right as a public for culture. As such, it has to be invalidated. If Hadag Nachash wants, the court is open to hear them.

As a footnote, this version of the songs so how many homages could be put in one song, and nothing goes wrong:

[Originally in Hebrew]

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