Good Vibrations or Misappropriations?

Erik den Breejen's "Smile"

Copyright is a hot topic these days, from the misguided SOPA and PIPA acts to the Cariou v. Richard Prince case that is currently working its way through the courts. Now Artnet reports that painter Erik den Breejen has received a cease-and-desist letter from the lawyer of Beach Boys lyricist Van Dyke Parks. Den Breejan’s recent Freight + Volume show, “Smile,” featured the artist’s series of works inspired by the album, “SMiLE.” The series included paintings of brightly colored blocks of the album’s lyrics from the album assembled into ocean waves, smiling lips, flames, and other imagery related to the album. It also included paintings of session worksheets and images that had no text, but were titled with song titles from the album.

So the question here is: What is included in a musical work’s copyright?

According to the U.S. Copyright office:

“Copyright protects, ‘original works of authorship’ that are fixed in a tangible form of expression… Copyrightable works include the following categories:

1. literary works

2. musical works, including any accompanying words

3. dramatic works, including any accompanying music

4. pantomimes, and choreographic works

5. pictorial, graphic, and sculptural works

6. motion pictures and other audiovisual works

7. sound recordings

8. architectural works

So, “musical works, including any accompanying words,” are protected by copyright, but does that copyright extend to the *image* of the accompanying words? I would argue yes.

The doctrine of fair use sets out four factors to be used in determining whether or not a reproduction of a copyrighted work is infringement or fair use:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

The first factor– the purpose and character of the use– is the primary factor used to determine fair use. It asks, is the new work transformative? Has new expression or meaning been added to the original material that was taken? And, is there added value to the original work? Was new information, aesthetics, or comprehension added?

In Rogers v. Koons, the Supreme Court ruled that a work is not transformative merely because it has been rendered in a different medium. This makes sense: Warner Brothers can’t create a motion picture based on my short story without first buying the rights. Not even a silent film that doesn’t actually have any *words.* That would be an obvious example of copyrighted words being turned into image– an instance that most certainly would be deemed infringement if proper permissions had not been obtained. Similarly, I can’t create a graphic novel based on someone else’s literary novel without purchasing the rights. And, following that logic, a visual artist can’t legally paint a musician’s notes or lyrics without first obtaining permission.

But then the question is: is den Breejen’s work transformative? And here, I would say yes. Den Breejen doesn’t merely paint the text of songs from “SMiLE.” He creates patterns and shapes using the painted words, and these are meant to evoke and comment on the emotional power of music, a theme central to the artist’s work. In a statement to hyperallergic, he says:

“I don’t even know if people read the words in my paintings that much, since they function on a visual level. However, it is important to me that they are there, both as an initial inspiration and a cultural reference point. But it is just that — a reference point.”

Furthermore, using “SMiLE” as a reference point was integral to this body of work, and not just because the two opuses share a title. The press release that Freight + Volume released for the den Breejan’s exhibition explains:

in “Smile” den Breejen has also chosen to tackle a theme he’s been obsessed with for years: how an artist (or musician, writer, dancer, filmmaker) can sometimes fly too close to the sun in creating a major work and suffer the consequences.

In addition to the more general themes related to the emotive qualities of music, Den Breejan’s work is also specifically commenting on the well-documented emotional demise of Brian Wilson, the lead singer and main composer of The Beach Boys, shortly after the group’s critically acclaimed “Pet Sounds” was released. Additionally, I would argue that his work is also about a sort of infatuation and fanaticism that  is best illustrated by obsessively and somewhat painstakingly devoting years of work to visually representing one album.

But, perhaps unfortunately, it’s unlikely that their will ever be a ruling about Parks v. den Breejen. The artist and his gallery have approached Parks and are looking to settle out of court.

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Filed under Art, Art Copyright, Controversial Art

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