Girl Talk: If they passed out paints on the street for free, I’m sure there’d be a lot more painters.

Dickie Goodman & Bill Buchanan: The Flying Saucer — the first hit mashup and its legacy

• Buchanan & Goodman – The Flying Saucer (Parts 1 & 2) (mp3)

Chuck Miller on the first controversial hit recording using samples of other songs:

[I]n June 1956, [Dickie] Goodman came up with an idea. “Bill Buchanan and I were writing some songs at the time,” said Goodman in a print interview, “trying to break into the business. We were sitting around and suddenly we got an idea. How would it be if we had a disc jockey show being interrupted by reports of a flying saucer – THE FLYING SAUCERS ARE REAL! – and suddenly the Platters line (from “The Great Pretender”) came to me – ‘Too real when I feel what my heart can’t conceal’ and we said ‘Hey!’ and we didn’t know any better so we put the thing together.”

Within a few days, Goodman and Buchanan spliced together a four-minute reworking of Orson Welles’ “War of the Worlds” radio broadcast. Goodman played “John Cameron Cameron,” an unflappable reporter interviewing people, officials and even the Martians themselves. Buchanan was heard as a title-mangling disc jockey (allegedly based on Alan Freed), who interrupted a Nappy Brown dance number with news of an invasion from Mars.

Buchanan: We interrupt this record to bring you a special bulletin. The reports of a flying saucer hovering over the city have been confirmed. The flying saucers are real!

Radio:Too real, when I feel, what my heart can’t conceal… (from the Platters’ “The Great Pretender”)

Buchanan: That was the Clatters’ recording, “Too Real!”

And that set the pattern. Goodman would interview eyewitnesses about the spaceship, whose responses were the lyrics of popular songs.

Goodman: This is John Cameron Cameron downtown. Pardon me madam, would you tell our audience what would you do if the saucer were to land?

Witness: Duck back in the alley (from Little Richard’s “Long Tall Sally”) . . .

The record continued. While the flying saucer landed on Earth, Buchanan and Goodman greeted its arrival with more splices, in-jokes and primitive technical wizardry.

Goodman: This is John Cameron Cameron on the spot. And now I believe we’re about to hear the words of the first spaceman ever to land on earth.

Martian: “A WOP BOP A LOO MOP A LOP BAM BOOM” (from Little Richard’s “Tutti-Frutti”) . . .

The duo shopped their pastiche to every record label in New York. Nobody was interested; many record execs dismissed the recording as a cheap “sampler.” Undaunted, they took the tape to radio station WINS, where disc jockey Jack Lacy agreed to play it. He gave the song a couple of airings, then let the next DJ – Alan Freed – play the track during his show.

Meanwhile, Buchanan and Goodman visited George Goldner, a producer at Roulette Records. In a print interview with Art Fein, Goodman remembers that meeting. “We were in George’s office, but before we got a chance to play our record, one of his salesmen burst in and asked if anybody knew about a record that was played on WINS the night before – something about Elvis Presley and spacemen. Everybody in town wanted it. George took it on immediately.”

* * *

Although the record was an immediate hit in New York, it took a couple of weeks for the rest of the country to catch on. The NBC and ABC radio networks initially banned the song, because they didn’t want any listeners misunderstanding the gag record as an actual announcement of an invasion. Other parts of the country couldn’t get their hands on the record fast enough. In Cleveland, for example, the record was so scarce that stores were charging customers as much as $1.75 for each copy.

Meanwhile, the Music Publishers Protective Association, through the offices of its trustee, the Harry Fox Agency, claimed “The Flying Saucer” was guilty of at least 19 different instances of copyright infringement and unauthorized usages. “If we can’t stop this,” said one record insider to Billboard, “nothing is safe in our business.”

“No industry exec believes [Buchanan and Goodman] have a leg to stand on in their use of copyrighted material and other disk artists without permission,” said an unnamed source to Variety.

But although the record companies publicly moaned and wrung their hands over the issue, they initially let the publishing houses go after Buchanan and Goodman for copyright infringement, rather than litigate the matter themselves. Part of the reason may have been because “The Flying Saucer” actually increased sales of records included in its collage. For example, because a snippet of “Earth Angel” was part of “The Flying Saucer,” requests for the Penguins song forced DooTone Records to reissue their hit. As an unidentified publishing representative told Time magazine, “It’s the greatest sampler of all. If you’re not on ‘Saucer,’ you’re nowhere!”

Some record company executives questioned whether Buchanan and Goodman actually infringed on any rights at all. The fragments were all part of ASCAP’s and BMI’s libraries, and Buchanan and Goodman’s lawyers argued that the question was really whether “The Flying Saucer” contained any material that wasn’t part of those two libraries. One record exec told Variety that he was ready to forget the whole business and just let the record run its course. Another industry lawyer said that because of all the publicity this case received, he didn’t think anybody would dare make another “snippet” record for at least another decade.

After much negotiation among all parties, an agreement was finally reached. The publishing houses would split 17 cents in royalties from every 89 cent copy of “The Flying Saucer” – approximately 1 cent for each publisher per disc sold. Buchanan and Goodman could still sell their single, and the song was finally cleared for jukeboxes and radio airplay.

By August 15, 1956, “The Flying Saucer” had sold 500,000 copies in three weeks, and was a regional #1 hit in Pittsburgh, Louisville and Cleveland. By the end of August, “The Flying Saucer” had doubled those sales figures, and climbed as high as #3 in Billboard’s and Variety’s national sales charts, just behind Elvis Presley’s two-sided hit “Don’t Be Cruel”/”Hound Dog” and the Platters’ “My Prayer.” In some cities, “The Flying Saucer” actually beat Elvis for a few weeks in sales and local airplay. Jukebox owners purchased three or four copies of “The Flying Saucer” for their businesses – and a couple extra for themselves. Disc jockeys loved the song, and began working on “break-in” collages of their own.

Some of those “break-in” records actually made it to disc – many of them while “The Flying Saucer” was flying up the charts. . . .

The publishing houses were furious. Instead of “break-in” records stopping, now they were multiplying like weeds in a garden. In an attempt to limit the production of new “break-in” records, the publishing houses demanded an increase from the standard two-cent royalty for each song used, to eight cents per song from each of the new “break-in” discs!

Many of the smaller companies simply gave up. . . . Plus Records . . . pressed 53,955 copies of an Elvis-themed “break-in” record, “Dear Elvis, With Love From Audrey” . . . , but could sell only 30,000 copies before the increased royalty rate was assessed. As part of a settlement agreement, Plus Records turned over the master of “Dear Elvis” to the publishing houses, who promptly destroyed the master.

In November 1956, Buchanan and Goodman began work on their second single, “Buchanan and Goodman on Trial” (Luniverse 102), a “break-in” record satirizing their experience in the courtroom. With Little Richard as their defense attorney and a jury full of Martians acquitting the “break-in” duo of all charges, “Buchanan and Goodman on Trial” became both a moderate hit and a not-so-veiled jab at the legal system.

This time the record companies fought back. Four record labels – Imperial, Aristocrat, Modern and Chess – along with two performers, Fats Domino and Overton Lemon (Smiley Lewis), filed suit in New York District Court for an injunction against all Buchanan and Goodman recordings, as well as $130,000 in compensatory and punitive damages. They also wanted 6 cents per single for use of such songs as “Ain’t That A Shame,” “Maybelline,” “I Hear You Knocking” and “Hard to Tell” on the two Luniverse singles. Two publishing companies, Commodore Music and Arc Music, joined in the suit, both refusing Luniverse’s original penny-per-sample out-of-court settlement from the first trial.

During the trial, Saul Goodman, Dickie Goodman’s father and co- counsel for the defendants, brought a copy of “The Flying Saucer” into the courtroom as Exhibit A. “My grandfather took it up to the judge,” said Jon Goodman,” and he asked the judge to take it home and listen to it. At first the judge didn’t want to do it, but he went ahead and did it.”

The next day, judge Henry Clay Greenberg denied the injunction, writing in his decision: “The defendants [Buchanan and Goodman] artfully and cleverly have devised interesting novelty records which make use of portions of records of successful performers under exclusive contract with the plaintiffs and others … In this highly competitive industry, the fruits of labor may be gathered in or lost quickly … Undoubtedly some considerable value attaches to the portions of the plaintiffs’ records which have been adopted by the defendants … the court is not able to determine whether or not the defendants have exceeded the bounds of permissible fair competition … A temporary injunction ought not to issue in a case unless the offense is clear.”

“The judge later said that the “Flying Saucer” was a satire, a parody, a new work – a burlesque, in effect – and there was no reason to charge Luniverse with violation of anybody’s copyright,” said Jon Goodman. “There were out of court settlements – they arranged clearances for the publishing houses and whatever. My father made the Harry Fox Agency, which was in charge of collecting mechanicals and royalties, a more interesting organization to work with.”

* * *

In fact, Goodman’s snippet records may have been the rock equivalent of the compositions of John Cage, David Tudor and George Rochberg – using tape recorders and phonograph records as instruments, slicing up reel-to-reel tapes and resplicing them at random; creating new recordings from the fragments of old ones. It was the music of indeterminacy, as Luciano Berio composed “Sinfonia” by quoting from a Mahler symphony and fragments of a theatrical production. It was new uses for old technology, as Ferrante and Teicher plucked the wires of a “prepared piano” for a harp-like sound. Music barriers were being torn down, as Edgard Varese’s aural symphonies influenced the work of Frank Zappa; and as Karl-Heinz Stockhausen’s electronic compositions left an indelible imprint on the Beatles’ “Revolution No. 9.”

And Dickie Goodman may have been the first to turn this “music of indeterminacy” into pop recordings. Other unsuccessful attempts at “break-in” records could be found as early as the 1920′s, according to syndicated radio host and music expert Dr. Demento. “In 1928, The Happiness Boys (Billy Jones and Ernest Hare) recorded a comedy sketch for Victor called ‘Twisting the Dials,’ about listening to the radio. It used a few snatches of other phonograph records to simulate the music that was encountered while ‘twisting the dials.’ The record was not a big seller. Spike Jones and Stan Freberg often used quotes from existing songs for humorous effect, but not bits of actual hit records. I would say that for all intents and purposes, ‘The Flying Saucer’ was the first successful release in that genre.”

* * *

Goodman’s legacy is still alive today. . . .

And most of all, he wants anybody who ever sampled a track, anybody who ever transposed a lyric into an entirely new song, anybody who had to contact the Harry Fox Agency to determine proper mechanical rights – to remember Dickie Goodman. “This is what I was meant to do. What I’m trying to do is stop something that can last forever from fading away. I’m trying to save my father’s work.”

Michalis Pichler: Statements on Appropriation (2009)

Michalis Pichler: Statements on Appropriation (2009) 

1. if a book paraphrases one explicit historical or contemporary predecessor in title, style and/or content, this technique is what I would call a “greatest hit”

2. Maybe the belief that an appropriation is always a conscious strategic decision made by an author is just as naive as believing in an “original” author in the first place.

3. It appears to me, that the signature of the author, be it an artist, cineast or poet, seems to be the beginning of the system of lies, that all poets, all artists try to establish, to defend themselves, I do not know exactly against what.

4. Custom having once given the name of ” the ancients ” to our pre-Christian ancestors, we will not throw it up against them that, in comparison with us experienced people, they ought properly to be called children, but will rather continue to honor them as our good old fathers.

5. It is nothing but literature!

6. there is as much unpredictable originality in quoting, imitating, transposing, and echoing, as there is in inventing.

7. For the messieurs art-critics i will add, that of course it requires a far bigger mastery to cut out an artwork out of the artistically unshaped nature, than to construct one out of arbitrary material after ones own artistic law.

8. The authenticity of a thing is the essence of all that is transmissible from its beginning, ranging from its substantive duration to its testimony to the history which it has experienced.

9. Intellectual Property is the oil of the 21st century

10. Certain images, objects, sounds, texts or thoughts would lie within the area of what is appropriation, if they are somewhat more explicit, sometimes strategic, sometimes indulging in borrowing, stealing, appropriating, inheriting, assimilating… being influenced, inspired, dependent, indebted, haunted, possessed, quoting, rewriting, reworking, refashioning… a re-vision, re-evaluation, variation, version, interpretation, imitation, proximation, supplement, increment, improvisation, prequel… pastiche, paraphrase, parody, forgery, homage, mimicry, travesty, shan-zhai, echo, allusion, intertextuality and karaoke.

11. Plagiarism is necessary, progress implies it.

12. Ultimately, any sign or word is susceptible to being converted into something else, even into its opposite.

13. Like Bouvard and Pecuchet, those eternal copyists, both sublime and comical and whose profound absurdity precisely designates the truth of writing, the writer can only imitate a gesture forever anterior, never original

14. The world is full of texts, more or less interesting; I do not wish to add any more.

15.

16. The question is: what is seen now, but will never be seen again?

17. Détournement reradicalizes previous critical conclusions that have been petrified into respectable truths and thus transformed into lies.

18. No poet, no artist, of any art has his complete meaning alone.

—————————
On December 11 2009 six one sentence statements originated by the “artist /author” for the purpose of this piece were mixed, in a container, with eighteen one sentence quotes taken from various other sources; each sentence was printed onto a separate piece of paper. Eighteen statements were drawn by “blind” selection and, in the exact order of their selection, join altogether to form the “statements on appropriation”, for the presentation at Stichting Perdu, Amsterdam.

In the following bibliography the sources (…) may be found although no specific statement is keyed to its actual author.

Roland Barthes,”The Death of the Author”, (1967)

Walter Benjamin, “Unpacking My Library “(1931), repr. In “Illuminations”, (ed.) Hannah Arendt (1968)

Walter Benjamin (1936), “Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit”, Frankfurt/Main 1963, p.15 (transl.http://www.marxists.org/reference/subject/philosophy/works/ge/benjamin.htm)

Marcel Broodthaers (interviewed by Freddy de Vree, 1971) repr. in “Broodthaers”, Koeln (1994), p. 93

Ulises Carrión , “The New Art of Making Books”, Kontexts no. 6-7, 1975 and repr. in Guy Schraenen: “We have won! Haven’t we?”, Amsterdam, (1992)

Giorgio de Chirico, repr. in “The New Five-Foot Shelf of Books”, Allen Ruppersberg, Ljubljana (2003)

Guy Debord, “The Society of the Spectacle” Paris, (1967), Paragraph 206, (transl. Ken Knabb http://www.bopsecrets.org/SI/debord/8.htm )

Guy Debord, Gil J Wolman, “Mode d’emploi du détournement” in “Les Lèvres Nues #8″ (trans. by Ken Knabb “A User’s Guide to Détournement” (2006))

Eliot, T.S. “Tradition and the Individual Talent” (1919), repr. in Frank Kermode (ed.) “Selected Prose of T.S. Eliot”, (1984) London:Faber, p.37

Mark Getty, chairman of Getty Images in an interview with “The Economist”, London (2000)

Kenneth Goldsmith , “Being Boring”, in The Newpaper #2, London (2008), p.2,http://www.thenewpaper.co.uk

herakleitos, Ephesos (around 500 BC), quoted by Plato in “Cratylus” (fragment 41)

Julia Kristeva “Word, Dialogue and Novel” (1969), repr. in Toril Moi, (ed.) “The Kristeva Reader”

Comte de Lautréamont (Isidore Ducasse), “Poésies”, London (1978), p.68

Daniel McClean and Karsten Schubert (ed), Dear Images: Art, Copyright, and Culture, (2002)

Allen Ruppersberg, “Fifty helpful hints on the Art of the Everyday” in “The Secret of Life and Death”, LA (1985), p.113

Kurt Schwitters, “i (ein Manifest)” repr. in ” Kurt Schwitters – Das Literarische Werk” (ed.) Friedhelm Lach Band 5, p. 120, Koeln (1973/1981)

Leo Steinberg, (1978) repr. in Schwartz, Hillel, Culture of the Copy, Zone Books, New York (1996)

Max Stirner, “Der Einzige und Sein Eigentum” (1844), Stuttgart (1972), S.16

—–
see also: Douglas Huebler, “Variable piece #20″, Bradford, Massachusetts 1970

Part home, part musical instrument — NOLA’s Music Box

From NPR.org, In The Music Box, New Orleans Residents Hear Hope:

When Hurricane Katrina hit New Orleans in 2005, it left behind a city full of destroyed homes. Despite ongoing rebuilding efforts, thousands of blighted properties remain. Now, a group of artists is creating a structure that is part home, part musical instrument and part inspiration of what can be made of these damaged properties.

The Music Box is a small village of ramshackle sculptures huddled together on Piety Street in the Bywater section of the once-flooded 9th Ward. The sculptures are outfitted as musical instruments and are made almost entirely of the remains of the 18th-century Creole cottage that used to sit on this lot.

The Heartbeat House is one of these musical sculptures: It’s an A-frame shack with a rotating organ speaker perched on top. The speaker is attached to a stethoscope — which broadcasts the heartbeats of those who stop to engage with the art.

“Unlike a church bell [that] calls people to congregation or an alarm, what we want to have is a Experience the Sounds of the Musical Instruments that make up the Music Box heartbeat,” explains curator Delaney Martin. “This primal beat that calls to the people of New Orleans and says: Come out and dance, come out and sing, come out and have fun.”

The instruments housed in the Music Box are described here. One, the Voxmuron, “is comprised of a microphone that feeds a series of audio loop devices that can be recorded on to and played by mahogany paddles. Complicated metal linkages that power the paddles and a complex organization of wires are masked behind a decorative, finished wall-panel. This wall of sound is intended to evoke the sound of neighbors talking or playing music on the other side of a thin wall. The sound of this instrument is never the same. It is dependent on who or what is recorded into it. A very versatile producer of sound.”

You can listen to one performance on Voxmuron by Matana Roberts and Taylor Shepard right here:

Building knowledge in the digital age; the transition continues — science this time.

I have made the point on this blog that the digitization of information and the internet have made the old ways of doing business with information (be it entertainment, news, science, or art) obsolete and that efforts to force the new media into legal forms that evolved with the ways businesses had organized the old technologies are doomed to failure or to killing the innovation those laws are supposed to promote.

But the struggles inherent in the transition from old and established ways of doing business are ongoing and will continue to be. Today’s example comes from the world of science. As the New York Times reports, “For centuries, [scientific] research [was]cdone in private, then submitted to science and medical journals to be reviewed by peers and published for the benefit of other researchers and the public at large.  . . . Peer review can take months, journal subscriptions can be prohibitively costly, and a handful of gatekeepers limit the flow of information. It is an ideal system for sharing knowledge, said the quantum physicist Michael Nielsen, only ‘if you’re stuck with 17th-century technology.’”

But Dr. Nielsen and others argue that science can happen much more quickly and accurately using the new technologies, and reality is catching up to their ideals (even as established institutional players such as universities and grant-makers still depend on the “traditional published paper” as their exclusive criterion of judgment):

Open-access archives and journals like arXiv and the Public Library of Science (PLoS) have sprung up in recent years. GalaxyZoo, a citizen-science site, has classified millions of objects in space, discovering characteristics that have led to a raft of scientific papers.

On the collaborative blog MathOverflow, mathematicians earn reputation points for contributing to solutions; in another math experiment dubbed the Polymath Project, mathematicians commenting on the Fields medalist Timothy Gower’s blog in 2009 found a new proof for a particularly complicated theorem in just six weeks.

And a social networking site called ResearchGate — where scientists can answer one another’s questions, share papers and find collaborators — is rapidly gaining popularity.

Editors of traditional journals say open science sounds good, in theory. In practice, “the scientific community itself is quite conservative,” said Maxine Clarke, executive editor of the commercial journal Nature, who added that the traditional published paper is still viewed as “a unit to award grants or assess jobs and tenure.”

Ray Johnson, dead 17 years ago today: “I have simply had to accept the fact that out of a life necessity I have written a lot of letters, and given away a lot of material and information, and it has been a compulsion.”

Guy Bleus:

Mail-Art is an international network of hundreds of artists who apply communicationmedia as artmedia. It concerns networkers or mail-artists who distribute their work primarily via mail, and less or not via galeries and museums. Through the years thousands (sometimes 50.000 is mentioned) of artists and non-artists have participated to this artistic movement. Ray Johnson once got the historical titel of “Father of Mail-Art” and that will always remain.

Ina Blom:

Ray Johnson [was the] initiator of the international mail art movement, . . . one of the most complex and idiosyncratic art projects of the 20th Century. A painter associated with the New York School of painting, Johnson had started it all the mid-1950’s, slowly building up a network of correspondents who would exchange objects and messages through the postal system. Initially it was Johnson himself sending out small collage-like works to a mailing list, urging people to keep them, to add to them, to change them, to send them to others, to return to sender. In time others joined in this activity, and in the course of the 1960’s and 1970’s the network grew way beyond the immediate reach and touch of Johnson’s own mailing activities. The initial network was named The New York Correspondance School (sic) – a spin or pun on the idea of artistic schools and the concomitant idea of art history as a succession of such schools. But then the quip about the history of Mail Art was itself a pun, of the most serious kind. Like so many other avant-garde artists (who left painting and behind) Johnson waseager to cut through the historicist temporality that informed modern art history and art production, with its logic of continual succession and supersession of artistic tradition. Cutting through this logic meant placing the production and thinking of art within the immanence of an eternal present, an uncontrollable present of events, not unlike the eternally present liveness of television [or the Internet? -- PF] – a technology and a communication medium which was just at that moment appropriated for artistic purposes.

On January 13, 1995, Johnson was seen diving off a bridge in Sag Harbor, Long Island, and backstroking out to sea. His body washed up on the beach the following day.Many aspects of his death involved the number “13″: the date; his age, 67 (6+7=13); the room number of a motel he’d checked into earlier that day, 247 (2+4+7=13), etc. Some continue to speculate about a ‘last performance’ aspect of Johnson’s drowning. Hundreds of collages were found carefully arranged in his home. He left no will and his estate is now administered by Richard L. Feigen & Co.

Chuck Welch, otherwise known in the mail art network as the Crackerjack Kid, has been an active participant in the international mail art network since 1978. In March 1995 — over 2 months after Johnson’s drowning – Welch received in the mail Johnson’s last self-portrait.

Clive Phillpot, in “The Mailed Art of Ray Johnson,” writes:

Examining the elements of Ray Johnson’s work, or disentangling the threads of his activity, would not be so worthwhile if he were not a superb graphic artist who pursues the embodiment of his thoughts with consummate economy and skill – and wit. The movements of his hand are responsive to the fluidity of his verbal and visual ideas. He animates the most unpromising shapes: he makes life flicker in the simplest forms. He is highly sensitive to words, both the way they look and the way they sound. He detects words within words, puns, and other oddities as easily as a heat-seeking missile rips through skeins of camouflage. He shapes letters and words deliberately and effortlessly, giving them, too, an organic life. He also knows how to animate the page, how to make the white spaces buzz. He combines pictures and texts in new, hybrid forms that seem genetically determined.

Mailings from Ray Johnson are a concatenation of ideas, sometimes distinct or decipherable, sometimes slippeng or sliding into one another Thus , Johnsonian physiognomical and biographical images mingle with recycled images of earlier work, with facets of a current art, and with other uncategorizable motifs and insertions, almost paralleling he flux of thought itself. Any of these elements may also overprinted with other images or texts, so that a mailing may be literally multilayered.

Reading such mail is simpler than reading a collage, for the layered elements can generally be isolated and examined. But Ray Johnson’s mind is so fertile, information-rich, and cross-connected, so full of potential visual and verbal associations, metaphors, puns, and rhymes, that while the flavor of his work may be enjoyed, some of the ingredients may remain mysterious. An unanticipated incident, image, or remark sets the Johnsonian circuits humming, and images and ideas print out that relate overtly or obscurely to the stimulus. Ray Johnson’s thinking is marvelously fluid and full of Leonardesque eddies. His ideas move and change, swerve and submerge, but continue on like a river.

Ray Johnson, however, describes the production of these “concatenations of ideas” as the result of his compulsion to give away material and information:

[T]he New York Correspondence School has no history, only a present, which was a pun, of course, on present as now, and present as a gift, a pun on my way of giving information and objects or whatever in letterform. . . .

I’d like to do my own history as to what I think happened. Every time I get any publicity or press everybody has a different version as to when anything happened or as to what anything was and I myself don’t even know when anything happened, or what happened . . . .

I have simply had to accept the fact that out of a life necessity I have written a lot of letters, and given away a lot of material and information, and it has been a compulsion. And as I’ve done this, it has become historical. It’s my resumé, it’s my biography, it’s my history, it’s my life. And now, people always come up and say, “oh, you’re the father, you’re the father of mail art, and everybody got the idea of it from you, or was influenced by you” . . .

John Oswald, pioneer of the aural collage: the futility of law in the face of technology it cannot control.

I’ve written at length in this blog about compositions consisting of digital remixes of pre-recorded samples and the contentious and utterly unresolved tensions between copyright, fair use, and the extra-legal reality of practices that cannot be controlled by legal rules. I’ve written about artists as varied as Negativland, Girl Talk, Steinski, and Kutiman, among others. Negativland and Steinski were pioneers in the genre, composing their aural collages back in the ancient days before digital media made the stitching together of digital information something one could do sitting in front of a laptop in bed.

But no one was there before John Oswald of Plunderphonics. A mere fraction of his career’s chronology demonstrates that he is perhaps the pioneer of the genre:

1973-75

With the sanction of William S. Burroughs, John Oswald cut up recordings of him reading his texts advocating cutting up methods, & consequently discovered an acoustic pallindrome, mediations between backwards & forwards, polysyllabic masking & phase imploding.

1975

Oswald melds a radio evangelist with alleged satanists Led Zepplin in the early rap track POWER. released in 1995 by Musicworks magazine.

1975-85

MYSTERY TAPES assembly & dissemination (by Mystery Tapes Etc.International), include many early plunderphonistic experiments.

1980

Oswald guest produces a one hour radio show for CFRO in Vancouver called Sounds Wrong which includes the first public issues of Dolly Parton & Rite of Spring transformations.

1982

Collusion, a British magazine publishes an article by Oswald, entitled “Revolutions & Mr Dolly Parton – a vortex of of androgeny”.

1985

An essay by John Oswald entitled “Plunderphonics, or, Audio Piracy as a Compositional Prerogative” was presented at the Wired Society conference in Toronto.

1988

The original Plunderphonics EP (never-for-sale, out-of-print) was for its time the most extreme example of sampling ever produced. Four well-known music personalities representing four musical genres & four notable epochs of recording history were presented in surprising ways, or, as the press release put it: warp drive.

1989

The Plunderphonic CD (never-for-sale, remaining stocks destroyed by Michael Jackson & CBS) has become an underground cult classic. The realistic cover photo of a nude Michael Jackson revealed as a white woman paralleled the musical transformations depicted on the disc. Other electroquoted artists included Bing Crosby, The Beatles, Glenn Gould, Public Enemy & (consequently) James Brown.

You can read a more complete biography of Oswald here.

Far more interesting is an extensive recorded interview with Oswald. One of the most fascinating parts of the interview is Oswald’s account of his experience with the overwhelming legal forces brought to bear in the name of copyright enforcement against his new compositions. In a series of events not unlike those experienced by Negativland in connection with their composition U2, every last CD Oswald retained of his recording was destroyed. Of course, he had already distributed some of those CDs and was unable to recover them. And we all know digital media metastasize beyond any capacity of corporate control. So, of course, as with Negativland’s U2, Oswald’s recording not only continues to exist; it is available (for free) for digital downloading.

For your listening pleasure, I include here one track from the album: Glenn Gould-Aria(mp3).

Creativity? YOU CAN’T HANDLE CREATIVITY!

In a study out of Cornell University, The Bias Against Creativity: The Reason People Desire But Reject Creative Ideas, the authors point out that creative responses to problems create uncertainty, and that people reject those creative ideas because they can’t handle the uncertainty:

Although the positive associations with creativity are typically the focus of attention both among scholars and practitioners, the negative associations may also be activated when people evaluate a creative idea. For example, research on associative thinking suggests that strong uncertainty feelings may make the negative attributes of creativity, particularly those related to uncertainty, more salient

The authors conclude:

Our results show that regardless of how open minded people are, when they feel motivated to reduce uncertainty either because they have an immediate goal of reducing uncertainty, or feel uncertain generally, this may bring negative associations with creativity to mind which result in lower evaluations of a creative idea.

I’ve always told students and colleagues that being genuinely creative requires courage and the ability to persevere in the face of rejection. There’s good reason for that. As much as “innovation” is the catchword of our age, very few people in decision-making positions are really brave enough to accept innovative ideas (whether they’re teachers, school administrators, politicians, lawyers, or corporate executives).

hat tip to Farnam Street

Do you think something original can be made entirely from copyrighted pieces? Christian Marclay: The Clock

An Introduction to Copyright, Fair Use, and Appropriation Art, Part 1

In September, I spoke at SPACES on copyright and art, an opportunity that I used to go introduce copyright and fair use and the contentious issues that remain entirely unresolved in connection with appropriation art. I had an opportunity to give a similar talk last week at Wooster College.

You can see my presentation here. But the presentation, obviously, is only the starting point of a talk, so I thought I’d take this opportunity to “annotate” the presentation, providing some commentary and a lot of links to provide most of the content of the talk here and to supplement it for those who were there.

This post constitutes the first part of these annotations. I will continue this supplement to the presentation in the near future.

The first “slide” (I used Prezi, not PowerPoint, for the first time in this talk) is a video by Kutiman, a musician, composer, producer and animator from Israel. He is best known for creating an online video music project entitled ThruYOU consisting of individual videos mixed entirely from samples of YouTube videos.

The second slide is the title slide: What does an artist need to know about copyright law? Although I spoke a lot about appropriation art and copyright law, I emphasized my sincere belief that to negotiate the difficulties posed by copyright law in an era of novel and breathtaking technologies requires the gifts of an artist. I used Warhol’s Campbell’s Soup Can and Shepard Fairey’s Obama Hope poster as 2 examples of what I was talking about in part because they encountered such different responses from the corporation from whom the artist appropriated his image. Warhol received an amusing and appreciative letter from Campbell’s Soup. Fairey was sued by the Associated Press, a lawsuit that was eventually settled and thus left unresolved the underlying legal questions.

The next 2 slides ask, “What is an artist?” and give one answer, provided by performance artist Guillermo Gómez Peña:

[T]he artist doesn’t really give answers. That is the role of the theorist, the scientist, the political activist, and the religious leader. The role of the artist is to ask impertinent and complex questions, irritating questions, and also to make the audience aware of the process of inquiry, and that’s where the pedagogical dimension lies—when the performance becomes the search, and when the process of search becomes the performance; and people see you struggling with meaning, with your own philosophical despair, with your political demons, and your own aesthetics.

Not only does this confrontation with questions that confront all of us strike me as central to the role of the artist; it also strikes me as central to the role of the lawyer. Moreover, one of the most difficult stumbling blocks in teaching law students is getting them over the belief that they will learn answers to the questions they will confront in their careers rather than the skill to identify the right questions and to best move forward in light of those questions.

Thus, the next 2 slides ask, “What is a lawyer?” and provide a quote from from Edward Levi, a legal scholar studied by first year law students when I went to law school but now largely neglected, to the effect that legal “rules” are not the sort of rules people typically expect:

[T]he rules change from case to case and are remade with each case. Yet this change in the rules is the indispensable dynamic quality of law. It occurs because the scope of a rule of law, and therefore its meaning, depends upon a determination of what facts will be considered similar to those present when the rule was first announced. The finding of similarity or difference is the key step in the legal process.

Lawyers then, like artists, must always be attentive to the similarities and differences that abound in the infinite complexity of human life. If you present me with a legal problem and an answer and then change one fact about the problem, the entire answer may change. Or may not. It depends. So if you’re looking for answers, you’ve come to the wrong place. Another situation is always different. But I can certainly let you in on what I deem important and why.

For the basic rules on copyright and fair use, the U.S. Copyright Office is a terrific starting point on all things copyright. If you are interested in knowing the basics about what you have to do to register a copyright and other nuts and bolts matters, go there.  Stanford’s Copyright and Fair Use Center is also a great resource on all of the questions addressed in my talk. I like the Copyright Website too.

In order to be protected by copyright, a work must be, among other things, “original.” The quintessential illustration of this requirement — which emphasizes that the mere “sweat of the brow” invested by the work’s creator is not sufficient to earn the work copyright protection — is Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), in which the U.S. Supreme Court ruled that the substantial work of compiling and organizing the information required to put together a rural telephone directory did not entitle the directory to copyright protection. The information itself, though the result of the plaintiff’s hard work, constituted “mere facts,” and there was nothing original about the alphabetical arrangement. Thus, the defendant could not be stopped from copying the plaintiff’s directory and selling it as his own.

A more recent example of this principle with some bearing on appropriation art is the case of Meshwerks v. Toyota Motor Sales, Inc. (10th Cir. 2008), in wich the 10th Circuit Court of Appeals dismissed the copyright infringement case brought against Toyota by Meshwerks, which had created digital models of Toyota cars for use in Toyota’s advertising. The digital models are useful because if the art director wants the position of car changed within a photo, the entire scene does not need to be re-shot. All one needs to do is move the digital model around on a computer screen within the digital photograph of the background.

The digital model, while the product of skill, resulted merely in the reproduction of a car. The image itself is nothing more than an image of a fact. While the court noted the obvious difficulties of applying existing law to new technologies, it compared the digital images of cars created by Meshwerks to photographs. Since the invention of photography in the 19th Century — when it was believed by some that photography as a mere transmission of “reality” did not constitute art — courts have concluded that photographs are entitled to copyright protection but only to the extent the photograph consists of elements resulting from the photographer’s choices. Thus, a photograph “is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.”

Decisions rendering the photograph a protectable “intellectual invention” included: the posing and arrangement of [the subject] “so as to present graceful outlines”; the selection and arrangement of background and accessories; the arrangement and disposition of light and shade; and the evocation of the desired expression. Courts today continue to hold that such decisions by the photographer–or, more precisely, the elements of photographs that result from these decisions–are worthy of copyright protection. See, e.g., Rogers v. Koons (“Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”) (citations omitted).

The digital image of the car that could be inserted and manipulated within a digital image was, in contrast, merely a reproduction of a car. It would only be when an art director placed it within an image that choices regarding lighting, angle, and other elements would be chosen. In contrast, in Time, Inc. v. Bernard Geis Associates,  the court held that the famous “Zapruder film” was entitled to copyright protection. Abraham Zapruder, a Dallas dress manufacturer, had been taking home movie pictures with his camera, when, by sheer happenstance, he captured President Kennedy’s assassination on film. The court observed that “if Zapruder had made his pictures at a point in time before the shooting, he would clearly have been entitled to copyright.” The fact that the moment he filmed happened to be historic did not change that fact. And, if you’re interested, here’s another interesting photography case.

The fact that Congress has the power to pass laws protecting copyright is a result of the Constitution’s Copyright Clause. There are at least 2 important reasons the constitutional dimension of this power is important. First, the Copyright Clause expressly states that Congress has the power for the purpose of promoting innovation. Thus, to the extent copyright law inhibits innovation rather than promotion it, that law very may well be unconstitutional. In addition, copyright limits the ways people can express themselves and thus is a limitation on the freedom of expression protected by the First Amendment. Obviously, that freedom of expression is of supreme importance in our country. Thus, the conflict between the two constitutional rights — the right to protection of one’s creative product and the right of one to express oneself (even by means of another’s creative product) must be balanced. That balance is what results in the doctrine of fair use.

Originality relies on a good deal of imitation and even a bit of theft — Picasso this time.

James Polchin, Cezanne, Michelangelo, and Greek sculpture in Picasso’s early drawings:

To look at Picasso’s drawings is to better understand his paintings as something greater than Picasso, an artistic vision based on imitation and purloined art. If we look beyond the artist, we might actually see his art and access his creative process without the shadow and burden of Picasso’s name getting in the way. We might call what Picasso created “invention” or “reinvention,” but it is hard to look at these drawings and not have a sense that so much of what we call originality relies on a good deal of imitation and even a bit of theft.

The principle of collage is the central principle of all art.

No one who has spent more than a few days reading this blog in its 3+ years can have missed the fact that I have been strongly persuaded that the common notion of authorship — that true artists are solitary originating geniuses — is a myth. Kenneth Smith, in “It’s Not Plagiarism. In the Digital Age, It’s ‘Repurposing,’” adresses the same issues and covers much of the same ground, but he brings up a a few very interesting things that I had not previously encountered. The first is the prominent literary critic Marjorie Perloff’s use of the term “unoriginal genius” to describe someone with skill at making his or her way through the contemporary flood of “information.”  A “genius” in this sense is not someone who — as convention has it — comes up with a creation that no one has ever dreamt of before, but, rather, someone with an extraordinary ability to manage available information, parse it, organize it, and distribute it. Perloff believes that in the end it is this type of genius, not the mythical conventional sort, that distinguishes your writing from mine:

Her idea is that, because of changes brought on by technology and the Internet, our notion of the genius—a romantic, isolated figure—is outdated. An updated notion of genius would have to center around one’s mastery of information and its dissemination. Perloff has coined another term, “moving information,” to signify both the act of pushing language around as well as the act of being emotionally moved by that process. She posits that today’s writer resembles more a programmer than a tortured genius, brilliantly conceptualizing, constructing, executing, and maintaining a writing machine.

Perloff’s notion of unoriginal genius should not be seen merely as a theoretical conceit but rather as a realized writing practice, one that dates back to the early part of the 20th century, embodying an ethos in which the construction or conception of a text is as important as what the text says or does. Think, for example, of the collated, note-taking practice of Walter Benjamin’s Arcades Project or the mathematically driven constraint-based works by Oulipo, a group of writers and mathematicians. (hyperlinks added)

Even more interesting, however, is what Smith did. He’s taught a class at the University of Pennsylvania he calls “Uncreative Writing.”

In it, students are penalized for showing any shred of originality and creativity. Instead they are rewarded for plagiarism, identity theft, repurposing papers, patchwriting, sampling, plundering, and stealing. Not surprisingly, they thrive. Suddenly what they’ve surreptitiously become expert at is brought out into the open and explored in a safe environment, reframed in terms of responsibility instead of recklessness.

We retype documents and transcribe audio clips. We make small changes to Wikipedia pages (changing an “a” to “an” or inserting an extra space between words). We hold classes in chat rooms, and entire semesters are spent exclusively in Second Life. Each semester, for their final paper, I have them purchase a term paper from an online paper mill and sign their name to it, surely the most forbidden action in all of academia. Students then must get up and present the paper to the class as if they wrote it themselves, defending it from attacks by the other students. What paper did they choose? Is it possible to defend something you didn’t write? Something, perhaps, you don’t agree with? Convince us.

All this, of course, is technology-driven. When the students arrive in class, they are told that they must have their laptops open and connected. And so we have a glimpse into the future. And after seeing what the spectacular results of this are, how completely engaged and democratic the classroom is, I am more convinced that I can never go back to a traditional classroom pedagogy. I learn more from the students than they can ever learn from me. The role of the professor now is part party host, part traffic cop, full-time enabler.

The secret: the suppression of self-expression is impossible. Even when we do something as seemingly “uncreative” as retyping a few pages, we express ourselves in a variety of ways. The act of choosing and reframing tells us as much about ourselves as our story about our mother’s cancer operation. It’s just that we’ve never been taught to value such choices.

After a semester of my forcibly suppressing a student’s “creativity” by making her plagiarize and transcribe, she will tell me how disappointed she was because, in fact, what we had accomplished was not uncreative at all; by not being “creative,” she had produced the most creative body of work in her life. By taking an opposite approach to creativity—the most trite, overused, and ill-defined concept in a writer’s training—she had emerged renewed and rejuvenated, on fire and in love again with writing.

Smith has thus provided another instance of what I already know in a different context — there are more and less original legal writers even though legal writing is one vast collaborative writing enterprise consisting primarily of texts cobbled together from pieces of other legal texts.

Finally, Smith suggests that the insights he provides (which he would no more claim are original to him than I would claim them mine) have been largely resisted in one profoundly important world of writing: literature:

I’m sensing that literature—infinite in its potential of ranges and expressions—is in a rut, tending to hit the same note again and again, confining itself to the narrowest of spectrums, resulting in a practice that has fallen out of step and is unable to take part in arguably the most vital and exciting cultural discourses of our time. I find this to be a profoundly sad moment—and a great lost opportunity for literary creativity to revitalize itself in ways it hasn’t imagined.

Perhaps one reason writing is stuck might be the way creative writing is taught. In regard to the many sophisticated ideas concerning media, identity, and sampling developed over the past century, books about how to be a creative writer have relied on clichéd notions of what it means to be “creative.” These books are peppered with advice like: “A creative writer is an explorer, a groundbreaker. Creative writing allows you to chart your own course and boldly go where no one has gone before.” Or, ignoring giants like de Certeau, Cage, and Warhol, they suggest that “creative writing is liberation from the constraints of everyday life.”

As John Pareles wrote in “Plagiarism in Dylan, or a Cultural Collage?”, Bob Dylan is another one of those giants leading the way:

The absolutely original artist is an extremely rare and possibly imaginary creature, living in some isolated habitat where no previous works or traditions have left any impression. Like virtually every artist, Mr. Dylan carries on a continuing conversation with the past. He’s reacting to all that culture and history offer, not pretending they don’t exist. Admiration and iconoclasm, argument and extension, emulation and mockery — that’s how individual artists and the arts themselves evolve. It’s a process that is neatly summed up in Mr. Dylan’s album title ” ‘Love and Theft,’ ” which itself is a quotation from a book on minstrelsy by Eric Lott.

Of course, literature has not completely ignored these artistic trends. The group of authors comprising Oulipo were exemplars of what Smith might call “writers as programmers,” and Donald Barthelme wrote:

The principle of collage is the central principle of all art in the Twentieth Century.

And, believe me: if you’ve never read Georges Perec or Barthelme, you’ve never read anything like what they’ve written. Or maybe you have.

You convince people by confirming that what they believe about the world is true.

One of the most difficult things to convince law students of is that law is not merely the application of law to facts. Students start out believing that learning law is learning the rules that will answer whatever questions arise. Some students never get past that idea. The ones who become good lawyers do.

There are instances in which there are clear rules that are easy to apply. But if that were the whole of the law, we wouldn’t need lawyers, and law students certainly wouldn’t have to pay $45,000 a year for three years to earn a law degree.

Instead, convincing someone that your view of the law is the correct one requires not only finding and applying the correct rule but also in convincing whomever you are trying to convince that the rule and your interpretation of it make sense, are just, are convincing at a gut level. If you can’t do that, you’ll never become a good lawyer.

An inability to get over the stumbling block posed by the desire for a legal system consisting of clear rules that answer every conceivable question, of course, is not confined to some law students. As Jon Krakauer explains in Under the Banner of Heaven, “literalism” — the conviction that there are rules set forth in hallowed texts (which need not be religious, as strains of constitutional “originalism” demonstrate) that answer all the important questions one encounters makes people resistant to the idea that answering the tough questions requires a considerable amount of creativity, acknowledgement of ambiguity, and sensitivity to situational specifics:

For people . . . who view existence through the narrow lens of literalism, the language in certain select documents is assumed to possess extraordinary power. Such language is to be taken assiduously at face value, according to a single incontrovertible interpretation that makes no allowance for nuance, ambiguity, or situational contingencies. As Vincent Crapanzano observes in his book Serving the Word, [this] brand of literalism encourages a closed, usually (though not necessarily) politically conservative view of the world: one with a stop-time notion of history and a we-and-they approach to people, in which we are possessed of truth, virtue, and goodness and they of falsehood, depravity, and evil. It looks askance at figurative language, which, so long as its symbols and metaphors are vital, can open—promiscuously in the eyes of the strict literalist—the world and its imaginative possibilities.

Perhaps this is why literalism rarely carries long-term appeal in a functioning democracy. The majority cannot be convinced for very long without the use of force that there is good reason for elevating the particular hallowed text (much less the literalists particular reading of that text) above all other “reasons.”

I’m reminded of these things by the TED talk embedded below, in which Simon Sinek explains that success in realms as diverse as commerce, invention, and social change depend on making the why of what you do your principle focus.

Thus, in the commercial world, for example, people don’t buy what you do; they buy why you do it. Nevertheless, companies and people typically sell their product or services by explaining what they do and how they do it. They don’t typically even know why they do what they do, and they certainly don’t explain it well.

But the most successful people sell first and foremost why they do what they do. Apple, for example, explains they do what they do to challenge authority. They explain what they do as designing beautiful products that are easy to use. What do they do? They happen to sell computers. That message convinces buyers in ways the typical computer seller’s approach — (1) we sell computers, (2) we make them user friendly — does not.

Simek explains the phenomenon in market terms: the only way to get the majority of consumers to buy a new product or service is to first convince innovators and early adopters, and those people are only persuaded by the conviction they share the seller’s convictions.

But his message about the market is one applicable in all contexts in which one is trying to convince an audience:

People buy what they buy to confirm what they believe about the world.

Please be a supporter of Geniocity, the Magazine of Creativity & Innovation

Help give creativity a news outlet on the Internet! Please contribute to Geniocity.com, The Magazine of Creativity & Innovation, on Kickstarter.

Kasumi presents: Geniocity, the Magazine of Innovation & Creativity

Artists don’t protect their “purity” through copyright overclaiming.

Readers of this blog know I feel pretty strongly about this, particularly in connection with genres often disparagingly referred to as “appropriation art.”

Well, my friend Andrew Dubber pointed me to this very cool “8 bit, chiptune” reworking of an all-time favorite of mine (and just about everybody’s my age) — Miles Davis’ Kind of Blue — dubbed Kind of Bloop.

Andy Baio, Kind of Bloop‘s creator, unfortunately ran into the type of problem with which I am all too familiar. As he writes,

Before the project launched, I knew exactly what I wanted for the cover — a pixel art recreation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue. I tried to draw it myself, but if you’ve ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.

You can see the results below, with the original album cover for comparison.

Unfortunately, Jay Maisel, the photographer who shot the original photo of Miles Davis used for the cover of Kind of Blue. threatened a lawsuit for copyright infringement seeking hundreds of thousands of dollars in damages. Baio settled, agreeing to pay Maisel $32,500 and not to use the artwork again. And he writes, in words I firmly endorse:

But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is “fair use” and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.

At the heart of this settlement is a debate that’s been going on for decades, playing out between artists and copyright holders in and out of the courts. In particular, I think this settlement raises some interesting issues about the state of copyright for anyone involved in digital reinterpretations of copyrighted works.

Baio includes in the account of his ordeal several works of art that reinterpret earlier copyrighted works as well as a list of links to other such works. They are all worth checking out and almost all add to those referred to in the posts in that “appropriation art” link above.

One thing both Baio and I find particularly troubling is a statement Maisel’s lawyer made in a letter to Baio in explaining that Maisel never even would have licensed the use of the image:

“He is a purist when it comes to his photography,” his lawyer wrote. “With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world.”

I am no cynic, and I have respect for people’s work and spiritual purity, but this is nonsense. Copyright does not give an artist the power to control the way his work is used to the point that he can forbid transformative uses of it. Or, rather, it does, but only if he is willing to use his financial weight and the ways our legal system allows that financial weight to coerce those without the same resources. And that is hardly the behavior of a “purist.” But it is copyright overclaiming.

Art builds on art. Maybe Maisel should read The Gift, by Lewis Hyde. The introduction is available here (pdf).

Search engines pre-filter your results; one more roadblock to effective research

I have been for some time deeply concerned both by the inadequacy of most of my students’ research skills in recent years and the wider sense that most fields are losing a true understanding of what effective research consists of.

As I’ve previously written, research “is barely begun, if even begun at all, by merely finding a source or set of sources in which answers might lie. The real art of research lies in ‘careful consideration, observation, or study’:

Research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

Perhaps more importantly, the identification of the elements that matter cannot be done without simultaneously developing ways of putting those elements together in some useful and novel way. How can you know what matters without knowing what purpose you are putting it to? And how can you decide what purpose you are trying to accomplish if you don’t know what elements you’ll have to use?

My belief that there is a decreasing recognition of the complexity and creativity of research is only compounded by the following talk by Eli Pariser, who explains in graphic detail the ways online search engines are constraining our abilities to use them effectively by filtering the results pursuant to algorithms that seek to give us what the designers believe we are looking for. If they know — algorithmically — what we are looking for before we even see the results of our initial searches, what hope do we have beyond even redoubled persistence and imagination of finding anything new?

Again: Culture is Collaborative. Kembrew McLeod this time.

In the Atlantic, there is an interview with “intellectual property scholar (and Atlantic contributor) Kembrew McLeod,” who, with copyright lawyer Peter DiCola, argues in Creative License: The Law and Culture of Digital Sampling that “current digital copyright practices unfairly burden musicians who sample snippets of other artists’ songs in their own music. begins by taking us back to the golden age of hip-hop, demonstrating how lawsuits quashed a nascent art form during its artistic ascendancy.” In the course of the interview, McLeod touches on several points I have emphasized in this blog, including the ways sampling (like any sort of artistic appropriation) serves perfectly traditional and ordinary artistic purposes:

Sounds can bring back memories. Some samples remind the listener of a particular era, or connect a song with a particular moment in time. Artists want to transport themselves, and the listener, for nostalgic reasons—or to provide historical resonance. Sampling can function like an audio time machine.

McLeod also articulates a point I have made over and over again: that our conventional notions of “authorship” as the creation of wholly original art from the mind of an inspired genius is not at all consistent with the reality of artistic creation:

The old-school notion of the individual genius author is embedded in European and American copyright law—the lone individual genius toiling away until a burst of creativity creates a truly original work unlike anything else that previously exists. But we know that, in the world of music, you can’t really create a new song without referring to an old song in some way. So the law itself assumes a Romantic notion of authorship, though we know this isn’t how culture is produced. Culture is collaborative.

The entire interview is worthwhile. It covers a wide range of matters relevant to these issues and is especially informative on the history of the music industry’s ways of dealing with sampling.

Doesn’t anyone understand that just because you can make money off of it doesn’t mean it should be property?

Our culture’s obsession with ownership and control seems to know no bounds. Ray Madoff writes in the New York Times about ownership of a person’s identity after death:

According to Hebrew University of Jerusalem . . ., when it inherited Einstein’s estate, the bequest included ownership of Einstein’s very identity, giving it exclusive legal control over who could use Einstein’s name and image, and at what cost.

Einstein is not the only example. While we might think of people like the Rev. Dr. Martin Luther King Jr., George Patton, Rosa Parks, Frank Lloyd Wright and Babe Ruth as part of our cultural heritage, available for all to use, the identities of each of them, and thousands more, are claimed as private property, usable only with permission and for a fee.

This phenomenon is fairly recent — and it’s getting out of control. For most of this country’s history, a person’s identity was not something that could be owned. . . .

Today the right of publicity clearly allows people to control the commercial use of their names and images during their lives. What happens after death is much murkier.

Throughout much of the world, the right of publicity ends at death, after which a person’s identity becomes generally available for public use. In the United States, however, this issue is governed by state laws, which have taken a remarkably varied approach. In New York, the right of publicity terminates at death; other states provide that the right of publicity survives death for limited terms. But in Tennessee (whose laws govern the use of Elvis Presley’s image, since he died there), Washington (home of a company that purports to own Jimi Hendrix’s right of publicity) and Indiana (where CMG Worldwide, which manages the identities of hundreds of dead people, is based), control over the identities of the dead has been secured for terms ranging from 100 years to, potentially, eternity.

Extending control over the identity of important people to their estates after death is, I think, to mistake how culture and art work and to elevate property rights to an importance that does us very little good. The identities of famous people as varied as Einstein, Elvis Presley, and Marilyn Monroe become part of our culture’s language. That cultural meaning then becomes part of the language of our cultural conversations, and as a part of that language it then has meaning that can be used in the sorts of compressed and symbolic ways that culture and art thrive on. To remove the identities of dead people from this language in the absence of payment for their use would substantially damage our culture. Madoff suggests congressional legislation limiting control over a person’s identity to a short term of, for example, ten years. To extend control at all past death seems to me to be problematic as a cultural and expressive matter (and Madoff raises all sorts of ways in which it is problematic as a matter of estate law). But to extend it any longer than ten years seems just plain obtuse — doing so would raise the threat that by the time an identity becomes available for use as part of the public domain it would have lost much if not all of its expressive value.

Appropriation art: is Richard Prince’s loss its end? I don’t think so.

The decision holding Richard Prince liable for infringing Patrick Cariou’s copyright in photographs Prince appropriated (which I wrote about 3 days ago) continues to inspire commentary. Donn Zaretsky does his typically excellent work in collecting the range of intelligent commentary and adding his own. He points to what he considers the key point in the decision, the judge’s belief that Prince’s appropriation was not sufficiently “transformative” to constitute fair use of Cariou’s photographs because Prince’s work did not sufficiently comment on or otherwise refer back to Cariou’s photographs (hyperlinks in original):

[T]he key bit is that the court rejected the fair use defense because, as Artnet’s Walter Robinson puts it, “Prince’s works do not specifically comment on Cariou’s originals.” (Robinson says: “Face it, the notion of ‘appropriation’ just doesn’t play well in our law courts.”) The NYT’s Randy Kennedy writes that “Judge Batts wrote that for fair-use exceptions to apply, a new work of art must be transformative in the sense that it must ‘in some way comment on, relate to the historical context of, or critically refer back to the original works’ it borrows from.”

That hasn’t always seemed to be a requirement in other fair use cases. In Blanch v. Koons, for example, the Second Circuit noted that Koons used “Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media” (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch’s image). Quoting the Supreme Court’s Campbell decision, the court said the test of transformativeness is whether the later work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

As I wrote the other day, I think the “key” element in the case is the evidence that Cariou had (and that the court apparently found credible) that he had been directly damaged by the appropriation. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the Gagosian Gallery began showing Prince’s works that appropriated Cariou’s photographs. As a result, the gallery owner considering a show for Cariou’s works backed off, because “she did not want to exhibit work which had been “done already” at another gallery. Slip op. at 6-7. In other words, Prince’s work essentially was functioning as a direct market substitute for Cariou’s work.

That is a far cry from the situation in Blanch v. Koons, in which the Second Circuit Court of Appeals held that Jeff Koons’ appropriation of a photograph in a collage constituted fair use. There was no reason in Blanch to believe that Koons’ work in any way damaged any market for the appropriated photograph.

Moreover, Cariou’s case does not and cannot conceivably be interpreted to overturn Blanch, in which, as Zaretsky correctly notes, the Second Circuit approved Koons’ use of “‘Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media’ (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch’s image).”

Judge Batts’ apparent belief that in order to be sufficiently transformative to qualify as fair use an artistic appropriation must comment on or otherwise refer back to the appropriated work is certainly open to question even apart from the unquestionable continuing vitality of Blanch. The proposition that an appropriation must comment on the original to constitute fair use originates in commentary on Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,  (1994), in which the Supreme Court held that 2 Live Crew’s appropriation of Roy Orbison’s Oh, Pretty Woman was a non-infringing fair use. While the Court did stress the ways in which 2 Live Crew’s reworking of the song “parodied” Oh, Pretty Woman, I think it is worth wondering whether one’s principal reaction to 2 Live Crew’s song is that it is making fun of Orbison’s song. More importantly, Justice Souter, writing for the Court, emphasized that the less an appropriating work damages the market for the original work it appropriates, the less it needs to reflect directly back on the original to the degree to constitute a non-infringing fair use:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody’s critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work’s minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

Id. at 580, n. 14. And, indeed, this understanding fits perfectly the decision in Blanch, in which it would be absurd to suggest that Jeff Koons was parodying the specific photograph he appropriated rather than using it to comment on the worlds of commercial and fashion photography in general:

Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “`in the creation of new information, new aesthetics, new insights and understandings.’” When, as here, the copyrighted work is used as “raw material,” in the furtherance of distinct creative or communicative objectives, the use is transformative.

The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

Blanch v. Koons, at 467 F.3d at 252-53.

I think it is crucial to remain cognizant of the fact that the case law establishes that there can be transformative use of copyrighted work in art other than art that ridicules copyrighted work. I have gone on at great length on this blog about the ways our conventional notions of authorship are too narrow and historically ignorant. But Ray Down is downright eloquent on the ways these issues pertain to art over at his Copyright Litigation Blog in connection, specifically, with Richard Prince. His entire post, with helpful illustrations, is well worth your read. Here’s an excerpt:

Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning. The urinal of Marcel Duchamp. The Brillo Box of Andy Warhol. Both utilitarian objects made by others and fetishized by the artists.

And look at L.H.O.O.Q. – nothing original in the execution, but the Mona Lisa was in the public domain at the time. Prince is blatantly stealing. Plagiarists take the words of others and try to make you believe that they have crafted them. But Prince’s cutouts from advertising, porn and outlaw biker magazines never misled the consumer.

But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it. When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it.

To me, an original work of fine art properly labeled as such by a new artist is almost pure speech – or in some way pure idea – even if it includes major appropriations. Things change when the artwork is widely reproduced. When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value. Prince’s “appropriation” added ten million dollars worth of value to a pile of books. Everyone knew he didn’t create the original.

This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers – surrounded by the top art advisers and critics -if these people feel that Prince’s value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books? In fact, Prince’s prices will probably soar – scarcity and scandal drive art prices up.

From a semiotic perspective, isn’t Prince simply holding up a mirror to people who may not want to look at themselves or their art as art in the hands of another? And if your message is mirror-like, is it less valid? And if you don’t have the verbal skills to articulate what you are doing, is that any less a mirror?

In short, I think Dowd is right, but I also think the death knell of non-parodic appropriation is being rung without reason. Finally, I think that if Cariou convinced the court that Prince’s appropriations robbed Cariou of real opportunities to sell his photographs, the outcome of Cariou’s case is obviously correct and does not threaten the kind of appropriation case people like Zaretsky, Dowd, and I talk about when we talk about appropriation by the likes of Prince, Koons, and Shepard Fairey.