Cover Your Tracks / Copyright Law
July 30, 2009 6:25 PM Subscribe
Does a principle called 'Cover Your Tracks' exist in copyright?
When I was a young artist in the 80's, I dimly recall reading a book (title and author unknown) that discussed, among other things, copyright law for artists. The book, if I remember correctly, said that it was okay to start with someone else's work as a basis for your own, as long as by the time you were done you had transformed it to the point where you 'covered your tracks' and disguised your work's starting point.
The book was not talking about the mythical '30% rule,' it didn't offer a 'percentage,' it used the phrase 'cover your tracks.' I seem to recall the book saying that a court had ruled that to 'cover your tracks' was permissible.
My question is: does such a concept, and phrase, exist in copyright law?
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btw: I'm not looking for advice, legal or otherwise on some pending project of mine, I just want a chance to know if that vague memory of that book is correct or not.
When I was a young artist in the 80's, I dimly recall reading a book (title and author unknown) that discussed, among other things, copyright law for artists. The book, if I remember correctly, said that it was okay to start with someone else's work as a basis for your own, as long as by the time you were done you had transformed it to the point where you 'covered your tracks' and disguised your work's starting point.
The book was not talking about the mythical '30% rule,' it didn't offer a 'percentage,' it used the phrase 'cover your tracks.' I seem to recall the book saying that a court had ruled that to 'cover your tracks' was permissible.
My question is: does such a concept, and phrase, exist in copyright law?
---
btw: I'm not looking for advice, legal or otherwise on some pending project of mine, I just want a chance to know if that vague memory of that book is correct or not.
Response by poster: Well, that's probably that, then.
Either I remember the book wrong, or the book was expressing an idea that wasn't correct.
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In a way, if you cover your tracks well enough then it shouldn't matter. For example if I download a photo, fill the image with black, and paint over it in Photoshop, then that's pretty well covered. The odd gray area I seemed to recall was if the original photographer found out you could say, maybe I did start with your work, but there is no trace of it left now, so...
posted by jfrancis at 6:51 PM on July 30, 2009
Either I remember the book wrong, or the book was expressing an idea that wasn't correct.
----
In a way, if you cover your tracks well enough then it shouldn't matter. For example if I download a photo, fill the image with black, and paint over it in Photoshop, then that's pretty well covered. The odd gray area I seemed to recall was if the original photographer found out you could say, maybe I did start with your work, but there is no trace of it left now, so...
posted by jfrancis at 6:51 PM on July 30, 2009
Well, it sounds like Shephard Fairey had a similar issue. Maybe the outcome of that trial will have some of the answers you're looking for?
posted by spiderskull at 7:02 PM on July 30, 2009
posted by spiderskull at 7:02 PM on July 30, 2009
Either I remember the book wrong, or the book was expressing an idea that wasn't correct.
I think you slightly misinterpreted it. This isn't a legal principle. It's a practical technique.
As your own example indicates, if you cover your tracks sufficiently, it doesn't matter whether or not it's a derivative work because nobody will be able to prove it.
posted by Netzapper at 7:08 PM on July 30, 2009 [1 favorite]
I think you slightly misinterpreted it. This isn't a legal principle. It's a practical technique.
As your own example indicates, if you cover your tracks sufficiently, it doesn't matter whether or not it's a derivative work because nobody will be able to prove it.
posted by Netzapper at 7:08 PM on July 30, 2009 [1 favorite]
Sounds like something that'd be in The KLF's Manual, but it's not in there.
posted by zsazsa at 7:13 PM on July 30, 2009
posted by zsazsa at 7:13 PM on July 30, 2009
I am not your attorney. There is such a thing as "transformative use" when analyzing fair use. I've never heard of a doctrine of "cover your tracks." Assuming your memory is correct, that sounds more like some (potentially very questionable) practical advice, rather than any legal formulation.
posted by Conrad Cornelius o'Donald o'Dell at 7:45 PM on July 30, 2009
posted by Conrad Cornelius o'Donald o'Dell at 7:45 PM on July 30, 2009
The above comments are correct, but I'll add some BS.
The copyright act is so stupidly drafted that to "prepare" a derivative work is an infringement. Without considering any vague fair use issues, it is thus arguable that intermediate "works" along the way might be infringing even if the final work is not, even if those intermediate steps are never made public. I imagine there must be some case somewhere making the commonsense observation that the process of creating a work doesn't create a series of "works" along the way--maybe they're not "fixed"--but you never know.
More plausibly troubling, it is infringing to make a "copy" of a work even if you do it in the privacy of your home and then destroy it immediately.
Here's something irrelevant: if I coincidentally make an exact analogue of your prior work, without actually copying it, my work is not infringing. (No one would ever believe me, and it would be impossible in the lifetime of the universe to accidentally rewrite someone's novel (outside a Borges story), but it's nonetheless true as a matter of legal theory.) This is the opposite of patents where the thing itself as opposed to copying the thing is protected.
posted by yesno at 8:04 PM on July 30, 2009
The copyright act is so stupidly drafted that to "prepare" a derivative work is an infringement. Without considering any vague fair use issues, it is thus arguable that intermediate "works" along the way might be infringing even if the final work is not, even if those intermediate steps are never made public. I imagine there must be some case somewhere making the commonsense observation that the process of creating a work doesn't create a series of "works" along the way--maybe they're not "fixed"--but you never know.
More plausibly troubling, it is infringing to make a "copy" of a work even if you do it in the privacy of your home and then destroy it immediately.
Here's something irrelevant: if I coincidentally make an exact analogue of your prior work, without actually copying it, my work is not infringing. (No one would ever believe me, and it would be impossible in the lifetime of the universe to accidentally rewrite someone's novel (outside a Borges story), but it's nonetheless true as a matter of legal theory.) This is the opposite of patents where the thing itself as opposed to copying the thing is protected.
posted by yesno at 8:04 PM on July 30, 2009
Response by poster: Thanks, everyone. Interesting.
I guess if this phrase were part of the thinking surrounding copyrightit would have been preserved and brought forward, at least as an item of historical interest, if nothing else.
posted by jfrancis at 8:30 PM on July 30, 2009
I guess if this phrase were part of the thinking surrounding copyrightit would have been preserved and brought forward, at least as an item of historical interest, if nothing else.
posted by jfrancis at 8:30 PM on July 30, 2009
'Cover your tracks' is, as Netzapper says, more about removing evidence of infringement rather than providing a legal defence against copyright infringement.
As I understand it under United States law when remixing works you can make a derivative work (illegal) or a transformative work (legal). There is no clear state of change where it's one or the other though and it would be impossible to say.
It would probably be better to rely on a more conventional defence (Eg, parody and satire).
I'm not a lawyer so this isn't legal advice.
posted by holloway at 8:35 PM on July 30, 2009
As I understand it under United States law when remixing works you can make a derivative work (illegal) or a transformative work (legal). There is no clear state of change where it's one or the other though and it would be impossible to say.
It would probably be better to rely on a more conventional defence (Eg, parody and satire).
I'm not a lawyer so this isn't legal advice.
posted by holloway at 8:35 PM on July 30, 2009
It's generally referred to as "file off the serial numbers"--there are some published novels, for example, that started their lives as fanfic, but were altered enough to be non-infringing.
posted by Sidhedevil at 9:24 PM on July 30, 2009
posted by Sidhedevil at 9:24 PM on July 30, 2009
I should also say that when I've encountered it, I've encountered it from the content-creator end, never from the legal end.
posted by Sidhedevil at 9:46 PM on July 30, 2009
posted by Sidhedevil at 9:46 PM on July 30, 2009
I've never heard the phrase (I'm a [nonpracticing] lawyer, but not a copyright lawyer, though I know a good amount of copyright law). It would be quite bizarre to see it.
posted by paultopia at 3:26 AM on July 31, 2009
posted by paultopia at 3:26 AM on July 31, 2009
This thread is closed to new comments.
posted by Inspector.Gadget at 6:40 PM on July 30, 2009