Derived – Copied – Inspired ………
itwofs.com – chronicles of plagiarism in Indian music, is a popular website among Indian film music aficionados. At times, the author of the website accuses and mocks music directors for blatantly copying and at other times the same author appreciates a music director for being inspired by some music, listen to the samples here – as a bonus you get introduced to Indian film music! What really interests me is how he makes this decision, I have to admit that there are times when it is blatantly clear, at least to me, that a particular work is copied or inspired, but I find it difficult to put this natural cognitive decision on whether something is inspired or copied into a set of rules, so as to make a law out of it.
In this blog post, inspired by this website and the recent surge in patent suits concerning smart phones, I look at the concept of “derivative work and copyright”, first from a musician’s point of view by considering two musical examples and then applying it into what might turn out to be a frivolous patent suit filed by Apple against HTC.
In 17 U.S.C. § 101, “derivative work” is defined as:
A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
From Feist vs Rural, we understood that a derivative work must show some originality to not have violated copyright.
According to the derivative work definition, a musical work that is based upon a pre-existing musical arrangement is a derivative work. Suppose, if I take the famous song “My Heart Will Go On” from the movie Titanic and remove Celine Deon’s voice and replace it with another singer’s voice and sell it in a local musical market in India – such things happen by the way, then I have obviously derived from the original work and have blatantly violated copyrights.
However, things get slightly murkier if I put a North African Kora in place of Celine Deon’s voice, is it derivative ? according to the definition it is, but as a composer I might feel that it is my creative genius that lead me to associate a relatively unheard of instrument like the Kora (btw, it does sound great !) within a completely different context. Therefore, It could be argued that though I derived, I didn’t violate copyright(or did I ??). But from a musician’s point of view, especially James Horner the composer who composed this song, this sounds absurd as the melody, harmony and so on are all the same, just that the timbre has changed.
Sidetracking, suppose if I build a touch interface which can differentiate between a single finger touch and a two fingers touch and use it to build a drawing instrument, have I violated Apple’s patent ? Apple has sued HTC for something similar, but drawing parallels with the above mentioned musical example, can it be argued that though I derived, I was creative in using the touch interface for something different ? like how I used the Kora ? will Steve Jobs be happy ???
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