Collage is art, not theft

From Negativland:

No one much cared about the centuries old tradition of appropriation in classical music as long as it could only be heardwhen it was played live in front of your ears. But now all music exists as a mass produced, saleable object, electronically frozen for all time, and seen by its owners to be in continuous, simultaneous economic competition with all other music. The previously interesting idea that someone’s music might freely include some appropriated music of another has now been made into a criminal activity. This example is typical of how copyright laws now actually serve to inhibit or prevent the creative process, itself, from proceeding in certain interesting ways, both traditional and new.

This has become a pressing problem for creativity now because the creative technique of appropriation has jumped from the mediums in which it first appeared (principally in the visual fine arts of painting, printmaking, and sculpture) to popular, electronic mass distributed mediums such as photography, recorded music, and multimedia. The appearance of appropriation techniques in these more recent mass mediums have occasioned a huge increase in owner litigations of such appropriation based works because the commercial entrepenours who now own and operate mass culture are apparently intent on oblitering all distinctions between the needs of art and the needs of commerce.These owners of mass produced cultural material claim that similarly mass produced works of appropriation are a new and devastating threat to their total control over the exclusive profits which their properties might produce in the same mass marketplace. They claim that, art or not, an unauthorized appropriation of any kind can not be allowed to directly compete in the appropriated material’s avenue of commerce, as if they were equal in content, and equal in intent. The degree to which the unique nature and needs of art practice do not play any part in this thinking is more than slightly insane.

Consider the starkly stupid proposition that collage has now become illegal in music unless the artist can afford to pay for each and every fragment he or she might want to use, as well as gain permission from each and every owner. Consider how this puts a stop to all independent, non-corporate forms of collage in music, and how those corporately funded collage works which can afford the tolls had better be flattering to the owner intheir usage. . . .

Please consider the ungenerous and uncreative logic we are overlaying our culture with. Artists will always be interested in sampling from existing cultural icons and artifacts precisely because of how they express and symbolize something potently recognizable about the culture from which both they and this new work spring. The owners of such artifacts and icons are seldom happy to see their properties in unauthorized contexts which may be antithetical to the way they are spinning them. Their kneejerk use of copyright restrictions to crush this kind of work now amounts to corporate censorship of unwanted independent work.

All Creative Work is Derivative

Requiring licenses for artistic appropriation has nothing to with providing incentives to create.

I’ve been pretty passionate in this blog in expressing my belief that art that appropriates copyrighted work does not infringe the copyrighted work provided the new work stands sufficiently on its own as a creative work. To stand on its own in that way, the new work is one that isn’t attracting an audience merely because of its appropriation of the earlier work. The fact it uses the the copyrighted work to convey meaning through the use of symbols and allusions is no different than the way new, original art has always used the meaning culture attributes to earlier work. Art builds on art.

The counter-argument to my position is that artists need to make money to be able to create art, and if an appropriator can pay for a license, why shouldn’t he? First, merely asking for a license is not the same as obtaining one. Second, the most meaningful pieces of art in our culture are the most successful, and licenses for the use of those works are not likely to be within the financial means of most artists. Third, why should you have to ask for a license to make something new from something someone already has made money from (or as much as their work earned in the market)?

But now Malcolm Gladwell goes right to the heart of the most compelling argument copyright holders have against un-licensed appropriation — that the financial remuneration is an incentive necessary to the creation of art in the first place. Gladwell writes:

Dan Pink is best known for a number of really insightful business books, including “A Whole New Mind.” In “Drive,” he tackles the question of what motivates people to do innovative work, and his jumping-off point is the academic work done over the past few decades that consistently shows that financial rewards hinder creativity. These studies have been around for a while. But Pink follows through on their implications in a way that is provocative and fascinating. The way we structure organizations and innovation, after all, almost always assumes that the prospect of financial reward is the prime human motivator. We think that the more we pay people, the better results we’ll get. But what if that isn’t true? What the research shows, instead, is that the great wellspring of creativity is intrinsic motivation—that is, I do my best work for personal rewards (out of love or intellectual fulfillment) and not external motivation (money).

Maybe you don’t think much of this blog, but I’ve written it now for 18 months and haven’t seen a penny in return. The best writers I know scramble to make their livings through their writing, teaching, parlaying their writing into other creative projects, and whatever else can come their way. I’ve known artists my entire life. I’ve known a few who’ve had vast success, but they are a tiny, tiny minority. The artists I know won’t stop creating if they’re not paid for transformative appropriations of their works.

Article 1, Section 8 of the U.S. Constitution sets for the basis of Congressional power to create laws to protect copyright. It states:

The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; . . . (emphasis added).

It does not state:

The Congress shall have the Power . . . To further the capacity of authors and inventors to extract any and all value that exists in their creations, by securing for a time in excess of the lifetimes of these Authors and Inventors the exclusive right to their respective writings and discoveries; . . .

New solutions for new problems: who knows your passwords after you die?

Here’s a new problem: how do your heirs get access to your financial accounts and other online information after you die? You can, of course, be sure to maintain a file of your user names and passwords, but you run the risk of forgetting to change the list as you change passwords, and who among us has compiled such a list?

Into the vacuum created by such needs come solutions. As Rafe Needleman writes, “Legacy Locker simply backs up the passwords and access codes to your online accounts. When you die, it gives that information to the people you designate.” And the system (scheduled to become operative in April) comes with all sorts of backup systems built in:

The system periodically tries to log on to your accounts for you. If it can’t–if you’ve changed passwords–it alerts you to update your records. Also, Legacy Locker only unlocks if two people whom you’ve designated confirm your death, and even then only if one of them supplies a death certificate to the company. Legacy Locker staff handles this; the unlock procedure is not wholly automated. Toeman claims that the system’s files are all encrypted and cannot be unlocked without authorization.

Of course, it comes with a price — $29.99 a year or $299.99 for a lifetime subscription. And Life Locker plans to market itself primarily to estate planners, who will pass on the cost to their customers.

And, of course, I hope it’s not just a very effective phishing scheme.

Literature is theft.

Plagiarism is a puzzling vice. No writer, if he or she were honest about it, would ever deny that, when they come across a good thing in someone else’s work, consciously or unconsciously they store it up for a rainy day. “Literature,” the American journalist James Atlas likes to say, “is theft.” He’s right. The history of books and writing supports this provocative assertion to the hilt.

[I borrowed that.]

The Korean War Memorial Postage Stamp Photo Case: I was way wrong! But I still think I was right, and I think the case is bad for art.

Consider me dumbfounded, or just plain dumb. I thought the copyright infringement case brought by the sculptor of the Korean War War Veterans Memorial (above, left) against the U.S. Postal Service for the use of the memorial’s image in a postage stamp (above, right) was an “easy case” — that the stamp constituted fair use of the image of the memorial because, among other things, I thought the image was sufficiently “transformative” of the memorial itself to constitute a creative work in its own right.

But today, in Gaylord v. U.S. (pdf),the U.S. Court of Appeals for the Federal Circuit reversed the lower court’s holding and ruled that the stamp infringed the sculptor’s copyright in the memorial (pdf). Whereas I thought the image on the stamp was transformative because, among other things, I wouldn’t have even known it was an image of a sculpture rather than a stylized image of actual soldiers unless I’d read otherwise, the court held that the purpose and character of the image on the postage stamp and the purpose and character of the sculpture were identical: “to honor veterans of the Korean War.” Slip op. at 9. The court rejected the reasoning I had advanced, reasoning as follows:

Although the stamp altered the appearance of The Column by adding snow and muting the color, these alterations do not impart a different character to the work. To the extent that the stamp has a surreal character, The Column and its soldiers themselves contribute to that character. Indeed, the Penn State Team suggested that the Memorial have a “dream-like presence of ghostly figures.” Capturing The Column on a cold morning after a snowstorm—rather than on a warm sunny day—does not transform its character, meaning, or message.  Slip Op. at 11.

I am stunned, and I find the court’s limitation of of “transformative” work to work that “comments on or criticizes” the work it appropriates without real rationale, but the odds are long the case will end up before the U.S. Supreme Court. It might be a good case for the Supreme Court to weigh in on — the ease and low cost of copying and disseminating images in this day and age makes any and every sort of appropriation art a contentious and wide open field, but I suspect the Supreme Court would prefer to let these issues simmer in the lower courts for some time before it chooses to weigh in on the question. In the mean time, I have to bow in humility to Donn Zaretsky, with whom I engaged in an online debate last summer on this particular case in particular and on the issue of the photographic appropriation of public art in particular. Donn was right, and I was wrong. I suspect, though, that this isn’t the last word we’ll hear on this type of case.

Addendum: The more I think about the decision in Gaylord, the more wrong-headed I believe it is, and the more I think it falls prey to a dangerous proclivity to commercialize every last aspect of our culture, including art. To limit “transformative” uses of copyrighted materials to uses that comment upon or criticize the copyrighted works they appropriate is to eliminate the use of the kind of appropriation as source material that is the very foundation of art. Copyrighted art works become part of the cultural language. A work that has impact in a culture takes on a meaning of its own. That cultural meaning then becomes part of the language of art, and as a part of that language it then has meaning that can be used in the sorts of compressed and symbolic ways that art needs to use in order to be art. To remove copyrighted works from this language in the absence of payment for their use would substantially damage our culture. By the time a work of art becomes available for the free use of other artists as part of the public domain — the duration of the artist’s life plus 70 years — it no longer will have any resonance worth exploiting.

Moreover, it is, I think, strange that the court in Gaylord reasoned that the photograph of the sculpture was not sufficiently original in its own right to be transformative despite what I referred to above — the fact that one would not likely even spot that the photo was of the the memorial, much less a sculpture — because that character of the photo was merely the product of the fact the photo was shot on a snowy day:

To the extent that the stamp has a surreal character, The Column and its soldiers themselves contribute to that character. Indeed, the Penn State Team suggested that the Memorial have a “dream-like presence of ghostly figures.” Capturing The Column on a cold morning after a snowstorm—rather than on a warm sunny day—does not transform its character, meaning, or message. Nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude. Slip op. at 11.

This reasoning is strange because, as I have pointed out before, photography itself is protected by copyright as “original” — rather than being rejected as mere transmission of the “facts” it conveys — precisely to the extent it reflects the photographer’s choices regarding the framing of the image, the choice of background and lighting, and the resulting mood:

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). Meshwerks v. Toyotoa Motor Sales, Inc. ( 10th Cir. 2008).

I am not sure how one reconciles the idea that photography constitutes original work entitled to copyright protection with the notion that the elements of the art that give it originality — the elements that are the result of the artist’s choice — are merely “nature’s decision” and therefore not an element that make a work sufficiently original to be entitled to stand on its own without paying its way. I also think that the decision is vacuous as an artistic matter.

Finally, the decision plainly has significance with respect to the claim by the Associated Press that Shepard Fairey’s Obama Hope poster infringed Manny Garcia’s photo of then-candidate Obama. I have stated again and again that I think the Hope poster is a non-infringing fair use primarily because of the way it transforms the photo and stands on its own as a creative work. It was many, many months before anyone even identified which photo was Fairey’s source material; even Garcia himself, despite seeing the poster again and again during those months, did not recognize that the poster was derived from his own photo! But there’s no doubt in my mind that the poster does not constitute a comment or criticism of the photo. Under the Federal Circuit’s reasoning, therefore, Fairey’s poster infringes the photo’s copyright. Fortunately, however, the Federal Circuit’s decision is not binding on the United States District Court for the Southern District of New York, where AP v. Fairey is pending, so that court will be left to its own judgment as to the scope of appropriation art will be permitted in this age of digital copying and transmission.

Here’s hoping, on my part, that the court in that case comes to a different decision. Art is a language that draws on and builds from itself. To reduce the language’s components to commodities would be to commercialize one more part of our lives, monetize one of the few things we have left that have not been reduced to the equivalent of cold cash.

Second Addendum: John E. Grant has a very interesting take on the Gaylord decision – he reads the decision as one that focuses on the stamp rather than the photo the stamp consists of:

In reversing the lower court decision, a 2-1 appellate majority ruled that the trial judge was wrong to focus on the transformative aspects of the photograph. Instead, it held that it must analyze the purpose and character of the stamp. The appellate majority then found that the purpose of the stamp was the same as the purpose of the sculpture: to honor Korean War veterans.

It’s an interesting thought, but I’m not sure I entirely buy it. If the photo itself was fair use, then I do not understand why the photographer did not have the right to license the use of that photo to the government for use on the postage stamp. Further, as Grant acknowledges and as I pointed out above, the court reasoned that although the image on the stamp “altered the appearance of the sculpture, . . . the alterations [were attributable] to mother nature, not the photographer and . . .  ’nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right’ to his copyright.” Again, I cannot understand why the very elements that constitute the creative elements of a photograph can in this fair use analysis be passed off as merely “nature’s decisions.”

Cuckoo Kookabura — Culture as the Language of Art

I wrote in November of the claim by the owners of the copyright in the Australian chestnut Kookaburra Sits in the Old Gum Tree that Men at Work had infringed Kookabura’s copyright in their 1981 #1 hit Men Down Under. The claim is ridiculous. As the Sydney Morning Herald reported at the time, “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But now, as Celebrity Justice (among others) reports, “[a]fter a 3 year fight, a federal court in Australia has ruled against favorite sons Men At Work saying they plagiarized one portion of the Kookaburra tune and will now owe some of their royalties to the publishing group who bought the rights to that song in 1990.”

As CNN reports, the judge in his decision wrote that “I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the ‘hook’ of that song.”

Whether the judge’s decision will withstand appeal under Australian copyright law is beyond my expertise, but the suggestion that the quotation of a copyrighted song in a new work constitutes copyright infringement would make a travesty of the notion of fair use under U.S. law. My zealousness on this question is not merely the result of the argument that I made in my November post — that the “transformative” nature of Men Down Under is proven by the way it alters the melody it takes from Kookabura and the failure of anyone to recognize the borrowing for 29 years. It is also because that being able to “quote” works that have resonance and meaning in our culture is fundamental to artistic creation. Kookabura is fundamental to Men Down Under as a song because Men Down Under, from its title to its performers to its lyric to its video is about Australia, and the use of a musical phrase from Kookabura is as resonant a way to convey Australia as there is.

Instead of recognizing what Lewis Hyde calls the “Cultural Commons,” many people have the knee-jerk impulse people have to identify cultural creations as “property” and thereby equate them to real estate or cars or something. Beside the rather large fact that property rights are limited in all sorts of ways in order to advance social goals (you can’t have a pig farm in the middle of a suburb, you can’t paint your house fuschia in most places, and the government can take your property if it pays you a fair (and rather low) price for it, etc.), that knee-jerk reaction entirely ignores how cultural creations draw (and must draw) on existing cultural creations, and how those creations then achieve meaning in the social sphere and are used to convey meaning in the social sphere. Copyright exists to feed, not hinder, creation, and the sooner we under what creativity really involves the more creative a culture we’ll have.

You be the judge: are Men at Work plagiarists or composers?

Mark Twain on invention

It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a photograph, or a telephone, or any other Important thing–and the last man gets the credit and we forget the others. He added his little mite–that is all he did.

- letter to Anne Macy. Reprinted in Anne Sullivan Macy, The Story Behind Helen Keller (Garden City, N.Y.: Doubleday, Doran, and Co., 1933), p.162.

True innovation in health care: no-fault insurance for bad medical outcomes.

We would make genuine and profound progress in “fixing” our health care system if we replaced the existing malpractice system with (1) no-fault insurance to compensate patients for the long-term medical and personal costs of bad medical outcomes and (2) an effective mechanism by which the medical profession policed the quality of the care provided by its members.

One political war that never seems to wane is over the medical malpractice system. On the one hand there are the doctors, the insurance companies, and right-wingers screaming that it is medical malpractice that is bankrupting us; on the other, there are the malpractice lawyers and the rest of us who want protection against the risk of suffering unexpectedly from medical treatment.

The critique of the malpractice system has a lot of validity — it’s a lottery in which those patients who have gone to the trouble of hiring lawyers under circumstances smelling sufficiently of medical negligence make out well and the rest of those injured by bad medical outcomes are left with nothing. As a result, too, doctors practice defensive medicine, driving up medical costs for all of us.

But that’s not the entire story. Our health insurance system is a failure, and patients who suffer bad medical outcomes often won’t have coverage sufficient to provide them the care required by the bad outcomes. The only alternative is to sue for malpractice, but the premise of malpractice is that there is no recovery unless the patient is able to prove the doctor was negligent.

Is it any wonder, then, that in a close case, given the choice between, on the one hand, compensating a badly injured patient from with money provided by an insurance company and, on the other, declaring the doctor to be without fault, a jury of human beings will tend to do the merciful thing and find the doctor acted negligently?

Doctors, of course, hate that question. They look at malpractice cases as judgments on their talents, not as tests of mercy. A jury that finds a doctor liable for malpractice has, in the doctor’s eyes, found the doctor to be a bad doctor. To the doctor on trial, The patient’s injuries –as opposed to the doctor’s efforts — are irrelevant.

The dilemma is obvious. First, bad medical outcomes are inevitable regardless of the adequacy of care. As a result, bad medical outcomes are risks we all face. Second, our existing insurance scheme does not spread this risk — rather, those who suffer bad medical outcomes and are not compensated by the malpractice system themselves bear all the costs of that risk.

Wouldn’t we be better off if everyone who suffered a bad medical outcome was compensated for the costs that arose out of that bad medical outcome regardless of the quality of the medical care? No one would be over-compensated, everyone would be fairly compensated, and the abilities of doctors wouldn’t be judged by juries of lay people who are motivated to disregard good judgment regarding those abilities by an entirely understandable and praiseworthy sense of human sympathy.

Such a scheme does raise one problem that the critics of the malpractice system also ignore — we really do enjoy a remarkably high standard of care in this country precisely because of the malpractice system. Doctors have never gone to the trouble of instituting an effective means of policing the quality of medical practice. To some degree they haven’t needed to do so because the risks posed by the malpractice system have forced insurance companies to take on that role. To replace the malpractice system with a no-fault insurance system, therefore, would require some genuine quality control imposed by the medical profession itself.

But if we simply gut the malpractice system and ignore the costs of bad medical outcomes and the need for some genuinely effective means of quality control, we would instead have the worst of all worlds.

Umberto Eco 13 years ago on the Next Decade in Book Culture

A few days ago Critical Mass, the blog of the National Book Critics Circle Board of Directors, posted my piece as part of a series of guest posts on “The Next Decade in Book Culture.” In it, as a lover of literature, I expressed and called for optimism about the changes being wrought by the internet. Umberto Eco, in his 1996 lecture “From Internet to Gutenberg,” expresses well some of my reasons for suggestions that the internet will be the death of literature –in short, history tells us that technological change doesn’t kill earlier artistic forms; rather technological change transforms and enriches earlier artistic forms:

The arrival of new technological devices does not necessarily make previous device obsolete. The car goes faster than the bicycle, but cars have not rendered bicycles obsolete and no new technological improvement can make a bicycle better than it was before. The idea that a new technology abolishes a previous role is too much simplistic. After the invention of Daguerre painters did not feel obliged to serve any longer as craftsmen obliged to reproduce reality such as we believe we see it. But it does not mean that Daguerre’s invention only encouraged abstract painting. There is a whole tradition in modern painting that could not exist without the photographic model, Think for instance of hyper-realism. Reality is seen by the painter’s eye through the photographic eye.

Certainly the advent of cinema or of comic strips has made literature free from certain narrative tasks it traditionally had to perform. But if there is something like post-modern literature, it exists just because it has been largely influenced by comic strips or cinema. For the same reason today I do not need any longer a heavy portrait painted by a modest artist and I can send my sweetheart a glossy and faithful photograph, but such a change in the social functions of painting has not made painting obsolete, except that today painted portraits do not fulfill the same practical function of portraying a person (which can be done better and less expensively by a photograph), but of celebrating important personalities, so that the command, the purchasing and the exhibition of such portraits acquire aristocratic connotations.

This means that in the history if culture it has never happened that something has simply killed something else.

I do think that the 13 years that have passed since Eco’s lecture have undermined one of the points he made regarding the need for books (in codex, rather than electronic, form). Eco is convinced that a writer must print his material in order to edit it fully: “In order to re-read a text, and to correct it properly, if it is not simply a short letter, one needs to print it, then to re-read it, then to correct it at the computer and to reprint it again. I do not think that one is able to write a text of hundreds of pages and to correct it without printing it at least once.”

I now teach students who were ten years old at the time of Eco’s lecture, and they grew up writing and editing on-screen. I now write and substantially edit what I write on-screen even though in 1996 I would’ve been convinced that I would never be able to do so. And ebooks don’t cause the eyestrain Eco attributes to computer screens — he did not at all seem to anticipate that reading in electronic form would not necessarily take place in the future only on electronic devices with which he was familiar back in the previous century.

DJ Earworm – United State of Pop 2009 (Blame It on the Pop) – Mashup of Top 25 Billboard Hits

Is a music video with no original content “transformative” if I like it better  than any of the top 25 hits of the year it samples and it explains partly why that is? I think so.

Breaking through to the other side: the music and publishing industries are dying. Music and writing will live on in new ways, and we’re living through the revolution.

My sister, Amy Friedman, is a brilliant writer who, like most artists I know who make their livings as artists, has managed to make her way by working her butt off doing a million different writerly things. She wrote a weekly column for the Kingston Weekly Standard, Canada’s oldest newspaper. In 1992 she began to write Tell Me a Story, which, on a weekly basis syndicated by Universal Press Syndicates, produces an “original story or a children’s classic accompanied by a captivating illustration that will launch the imagination.” She must now have written over a thousand of these stories. Two compilations of these stories have been published as books, Tell Me a Story and The Spectacular Gift. She personally produced 3 CD collections of these stories read by actors and backed by music composed specifically for each work. (You can buy them here, individually or as a 3 CD boxed set). Each one of the CDs has won numerous awards, and the most recent was the Winner of 2009 Parents Choice Gold Medal and 2009 NAPPA Gold Medal for story telling. John Wood of Kid Muzic wrote of the first CD: “The talent is first-rate from top to bottom. The stories literally jump off the CD and into the listener’s imagination – I love the choices on all levels! This is the real deal”

Amy has also written 2 works of non-fiction, Kick the Dog and Shoot the Cat and Nothing Sacred: A Conversation With Feminism. She continues to write and publish both fiction and nonfiction for newspapers, magazines and literary journals. She also performs her stories, often accompanied by musicians, in schools and at summer festivals. She is presently working on a novel, a collection of short stories and a television adaptation of Tell Me a Story. She’s a brilliant teacher of writing too.

In short, Amy is an artist, she works like hell at it, she produces brilliant work, and she has never, to put it mildly, been economically secure in the way, say, many of my law students expect to be.

So I took it very seriously when she sent me the following yesterday:

All the authors I know, every one of them, is freaking out. Celebrity books. No reviewers anywhere. Insane advances to celebrities leaving nothing left for others, no reviewers, too many reviewers, Kindle, celebrity books, the death of Editor and Publisher and Kirkus Reviews, all the authors I know are freaking out. If my memoir had gone to editors even three years ago, it would be sold by now. Everyone’s scared. Whaddya think? http://bit.ly/5O2CQI

I’m choosing not to freak out. I’m choosing to say, this too shall pass, and it will enliven the art world in some new way. (That’s my prayer, anyway)

In the article Amy linked to, Katharine Weber, a former National Book Critics Circle board of directors member, novelist and short story writer, details some of the changes wrought by the internet on book publishing and concludes, among other things, “That literary work will continue to lose value as it is seen even more as just another form of communication, rather than as a work of art with its own integrity.”

There are 2 important points I want to make here: (1) I do not write incessantly about copyright and the slippery notion of authorship as some ivory tower intellectual without strong connections to artists and art art of all sorts, and (2) I have a very personal stake in these questions. So this (with some slight edits) is what I wrote back to Amy yesterday:

Not freaking out is always the better choice. I can’t think of a situation in which freaking out adds value; in fact, I can’t think of a situation in which freaking out doesn’t considerably worsen the situation.

But the fact so many people are freaking out is, in my opinion, because we’re living through a frigging technological revolution. Come on, you remember your Marx. The stuff he was brilliant about: material and economic reality determine cultural reality. Cultural reality has an effect on material reality too. That’s why the experience of a cultural freakout is not a healthy thing. It leads to bad decisions. Had Jack Valenti and the entire film industry had their way, there would be no VHS machines, no CD and DVD burners, etc., etc. But it turned out that the VHS was the biggest financial boon the film industry had ever experienced.

The way we produce, copy, and disseminate information had entirely changed. Anyone sitting in a coffee shop can produce a document that looks as if it’s been typeset. (And I’m sure my students have no clue what typesetting is.) That document can be copied at virtually no cost, and disseminated world-wide at virtually no cost. So, guess what? The entire publishing industry as we’ve known it is a walking corpse. You can almost imagine the zombie image composed of parts of Sarah Palin, Oprah, Dan Brown, and Tiger Woods lumbering down Manhattan’s avenues.

What will result? I don’t know yet. But I strongly disagree with Katherine Weber’s statement that “literary work will continue to lose value as it is seen even more as just another form of communication, rather than as a work of art with its own integrity.” The idea that literary work is anything other than a vast cultural discussion is a relic of the Romantics.

And there will still be books bought. They’ll be read on electronic readers a lot and in codex form a lot – I’m pretty sure demand for the scroll and the inscribed tablet has vanished entirely. And there will be some illicit copying and distribution (that might not in the end result in a net loss to the author).

But sure, publishing houses and anyone who’s convinced her livelihood is dependent on publishing houses is freaking out. Let them. The recording industry once had a monopoly on producing and distributing recorded music. Now any kid can do it on his laptop. And musicians are still making money. The music industry will scream and scream that the internet is killing it, but that’s because the music industry’s ways of producing and distributing music over the past 100 years have as much relevance today as the horse and carriage industry’s ways of producing and distributing means of transportation had after the automobile became widely used.

As Mike Masnick at techdirt has written, a recent report by 2 British economists (pdf) demonstrates that “the UK music industry is actually growing. Let me repeat that: despite all of the whining and complaining about the state of the music industry, some of the music industry’s own economists are admitting that the market is growing. Not surprisingly, it found that retail product sales have declined, but the other parts of the industry have grown noticeably more than the decline in retail sales. This growth has come from a few sources. Live show attendance has increased more than retail sales have decreased. Consumers have actually spent more. On top of that, the business to business side of the industry (sponsorships, licensing, advertisements, etc.) has grown as well, opening up new and lucrative means of making money.”

Neither Masnick nor I would paint the present situation has some new technologically produced utopia — too much of the money in the music industry is going to touring artists from the ancient days of our youths, among other things. But the point he is making is that trying to pass laws and create digital locks and promote misleading propaganda is not going to recreate a model of producing and distributing recorded music that no longer makes any sense.

Something new is developing, there’s no stopping it, and the thrilling thing is that we are part of creating it.

If I had to bet, I suspect in the long run we’ll probably end up with fewer writers making too much money, and more making at least some.

But there’s been literature for what, at least 3000 years? The fall of the structure which produced and sold it in the 20th Century capitalist West won’t mean there won’t be great literature. There may be more. I really think so.

I bought and started re-reading Lewis Hyde’s Trickster Makes this World yesterday. The Trickster is the character who operates between realms, at doorways, through openings that others don’t cross either because they don’t see them or they’re afraid of what’s on the other side. (The intro to Hyde’s book is available as a pdf here — provided by Hyde himself.) And the trickster is the artist. If there’s ever been a doorway to a new reality in the world of literature, we’re facing it head on. Let’s break on through to the other side!

“Authorship is rarely a simple question.” — Architecture this time

I’ve written before that it boggles my mind when people write seriously that legal documents that duplicate others might constitute copyright violations. Originality is not of any value in a legal document — the document’s effectiveness in accomplishing its purpose is all that matters. Moreover, as I’ve also mentioned, legal writing is a quintessentially collaborative enterprise. Of course, law is not unique in this regard. In the course of finishing up a paper on the nature of a judge as an “author,” I came across a story from the New York Times written in 2005 about why accusations of plagiarism by architects rarely make it to court. Guess what? Architecture too is largely a collaborative enterprise. As the story states:

One reason accusations of plagiarism [between architects] rarely make it to court is that architecture, despite the romantic image of the solitary genius, is largely a collaborative pursuit. Principal, project architect, project designer and outside consultants of all stripes contribute to a design. All the while, young architects move from firm to firm, spreading ideas and sometimes eventually opening their own, competing offices. As for student architects, well, just because they don’t get paid for their work doesn’t mean it never enters the commercial arena. There’s so much rich activity going on at the schools,” said Bill Sharples of the Manhattan firm SHoP/Sharples Holden Pasquarelli, ‘it’s hard not to be influenced by it.’ With so many influences and so many echoes, authorship is rarely a simple question.”

If you understand the uses and limits of maps, you can begin to understand the uses and limits of legal rules (and it doesn’t hurt to know the offside rules in soccer and hockey)

Jeff Lipshaw of Suffolk Law School has been asked to teach Suffolk’s six credit contracts course next year and has “been puzzling . . . about . . . teaching philosophy.” As he claims, “Contracts is the often the bane of the first year experience, and I am thinking about hitting the reasons head on.” I think Lipshaw’s point is the same I’ve been trying to get across frequently in this blog — learning law (and perhaps, especially, contract law)  is not a matter of learning rules you apply to the world, thence to go on your merry way as a lawyer who knows and understands law. Rules are useful guides, but different rules are useful in different situations; when a situation changes, a particular rule may be useless — it may be too specific, and not take into account specifics never contemplated when the rule was formulated, or it may be too general to be of any practical use.

Lipshaw writes (emphasis added):

I’ve concluded instead that the way to approach the subject (and relieve some student angst at the same time) is to reject at the outset the idea that what they are learning maps on the real world.  It is more helpful to think of contract law as most casebooks begin – with the idea of the objective law of contracts, or, as we say more explicitly in areas like partnership, the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms. . . . Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work. No – an integrated law of contracts, if one exists, is a figment of the . . . imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).

Put otherwise, if the reality of private ordering is metropolitan Boston, contract doctrine is a map, based on the mapmaker’s view of what is important.  But you could have a road map of major highways, a topographic map, a detailed street map, a map of population densities, etc.  This is merely one map, or several competing maps. . . . .

Finally, the difficulty with putting aside whatever sense of reality we might have, and reconstructing the rules of the model (or game?) on their own is a little like trying to master the rules of cricket without making analogies to baseball, or the rules of rugby without making analogies to American or international football.  Let’s say you are playing cricket, and you do something that cause the other team to cry “foul!”  You have to make your argument why what you did was legal in cricket terms, not baseball terms.  That doesn’t mean there couldn’t have been other ways to play cricket, or that the world would be better off if we interpreted the rules of cricket differently, but to win the argument we have to fashion it in a way that appears to be consistent with cricket.  Contract law is the set of rules making up the objective contract litigation game, and some arguments based on those rules are cricket, and some are not.

A map that I draw you to get you to my house will likely be of little use in helping you navigate your way to other places in Ohio, but it will be very helpful as a means of getting you to my house. Then again, most maps of Ohio I’ve seen would be of little use in getting you to my house (which is on a road leading from one side street ending in 2 other side streets, none of which lead to a street (much less a highway) of any significance). And I could explain to you how being offside in soccer is akin to being offside in hockey, and doing so would help you understand the common purposes of the 2 rules (to avoid cherry picking), but when I’m arguing about being offside in soccer I better not be using rules and jargon from ice hockey.

Or, if you’d like to get even more involved in considering the role of maps in understanding the uses and abuses of rules, it’s well worth considering an article written by Boaventura De Sousa Santos, Law: a Map of Misreading. Toward a Postmodern Conception of Law, 14 J. of Law and Society 279, 282-283 (1987)(footnotes omitted; hyperlinks added):

UNDERSTANDING MAPS

The main structural feature of maps is that in order to fulfill their function they inevitably distort reality. The great Argentinian writer Jorge Luis Borges has told us the story of the emperor who ordered the production of an exact map ofhis empire. He insisted that the map should be exact to the most minute detail. The best cartographers of the time were engaged in this important project. Eventually, they produced the map and, indeed, it could not possibly be more exact, as it coincided point by point with the empire. However, to their frustration, it was not a very practical map, since it was of the same size asthe empire.

To be practical a map cannot coincide point by point with reality. However, the distortion of reality thus produced will not automatically involve the distortion of truth, if the mechanisms by which the distortion of reality is accomplished are known and can be controlled. And, indeed, that is the case. . . . As the American cartographer Mark Monmonier put it:

[A]ll advantages and limitations of maps derive from the degree to which maps reduce and generalise reality, compress or expand shapes and distances and portray selected phenomena with signs that communicate without necessarily resembling visible or invisible characteristics of the landscapes. The three elements of a map are interdependent. Scale influences the amount of detail that can be shown and determines whether or not a particular kind of symbol will be visually effective.

Maps should be convenient to use. There is thus a permanent tension in maps between representation and orientation. These are contradictory claims and maps are always unstable compromises between them. Too much representation may hinder orientation, as we saw in Borges’s map. Inversely, a very accurate orientation may result from a rather poor and elementary representation of reality.

When you are invited to a party in a house whose location you do not know, the host will probably draw a map which will be very effective in orienting you though very inaccurate in representing the features of the environment along the way to your destination. One more example: some of you may have seen medieval portolans, those maps of ports and coasts well-renowned in the Middle Ages which, though very poor as far as representation of the globe goes, were very effective in orienting navigators .at sea. There are maps that solve the tension between representation and orientation in favour of representation. These I would call, borrowing from French cartography, image maps. Other maps solve the tension in favourof orientation. These are instrumental maps.

I would like to suggest that this dialectic of representation and orientation applies to law as much as it applies to maps. In the analysis of .the relations between law and society we should [consider] the simple paradigm of correspondence/non-correspondence. In the following I will linger on maps a little while to analyse in more detail each one of the procedures through which maps distort reality. In the process I hope to interest you in the fascinating world of maps. As Josef Konvitz has said, “lt is a supreme irony that maps, though they are one ofthe most common cultural metaphors, are still far from occupying the place they deserve in the history of mentalities.”

One common distortion of which most of us remain unaware is the ways the traditional mercator projection of the map of the world grossly distorts the relative sizes of the earth’s various landmasses. Below is the Arno Peters map , which, as Sirius Bark of Temple 3 explains “isn’t perfect (every map (and rule) creates some distortion), but . . . does address some of the overall size distortions which dominate our more well-known Mercator projections” (emphasis and hyperlinks added):

The Amen Break: 40 years of remixing a drum break; but now ownership is being asserted over it (and not by the creators)

Those naive little innocents may be a lot smarter than you, Mr. Prosecutor.

The range between online fluency and online ignorance is remarkable these days. It is largely, though certainly not entirely, generational. One example of this gap in fluency was the discovery by one of my more technically proficient students in a case we read in my Contracts course of ignorance regarding the technical implications of an online transaction. The ignorance, in my student’s opinion, undermined entirely the judge’s reasoning.

Ars Technica brings up another example, this one perhaps disclosing the naivety of a prosecutor:

Rodney Bradford, a 19-year-old Brooklyn resident, was arrested last month for allegedly robbing a man at gunpoint. This, in itself, was not a very newsworthy event—until his defense lawyer discovered that Bradford had made an update to his Facebook profile at the time of the robbery. Bradford had insisted that he was at his father’s Harlem apartment at the time, and that the update was made from there. When the district attorney verified the claims with Bradford’s father and stepmother and the IP information with Facebook, the charges against Bradford were dropped.

But, of course, “it’s obvious to everyone . . . that the Facebook posting could have been made by someone else, and there would be no way to truly verify who was sitting in front of the computer at the time.” As John Jay College of Criminal Justice law instructor Joseph Pollini points out, it might not be sufficient for the prosecutor to shrug off the possibility simply because the alibi is a teenager’s — teenagers likely know better than anyone how to construct such alibis (and that older people often fail to see through them):

Some of the brightest people on the Internet are teenagers. They know the Internet better than a lot of people. Why? Because they use it all the time.

Fair Use, Fairy Tales, and Collage: more proof Girl Talk won’t be stopped

Professor Eric Faden of Bucknell University created this brilliant account of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms. The fact it has never been forced down is to me proof positive that legitimate, non-infringing fair use can consist entirely of copied and pasted copyrighted works. Which is proof positive to me that I am right in believing that Greg Gillis/Girl Talk  need not worry should he ever be sued for infringement of the copyright of any of the samples he uses.

I do think this video is deficient in one respect: it doesn’t sufficiently discuss the importance in the fair use analysis of the originality of the allegedly infringing work — it suggests parody, journalism, and criticism are legitimate, non-infringing uses of small parts of copyrighted works, but it doesn’t connect these individual examples of transformative work to the larger point: if the allegedly infringing work stands on its own — if it uses the copyrighted work to express something the copyrighted work doesn’t express to reach an audience for a different purpose than the copyrighted work’s audience comes to the copyrighted work for — then it is “transformative” and very, very likely not to be infringing. (If it is tranformative, it’s not going to have an impact on the market for the original or any of the original’s reasonably anticipated derivative uses.)

The funny thing is that the video doesn’t discuss the larger issues relating to the nature of the allegedly infringing work and how tranformative it is, but the video itself is entirely transformative:

The source of innovation — as a lawyer, as a business person, or as a designer — is creative thinking.

One of the reasons I was willing and remain committed to writing about law and creativity here at Geniocity is the purpose of this site as Carolyn Jack, its founder, has made clear to me from the beginning: it’s intended to show how innovation works across professions and disciplines normally segregated from one another so that people in those disciplines and fields can learn from one another. Innovation requires a remarkably agile mind — a creative mind — and so anyone wanting to innovate should look to the thinking of creative people no matter where they find them. Businesses should look to artists. Artists should look to game designers. Game designers should look to lawyers. Lawyers should look to fiction writers . . .

Again: no matter what you do — law, business, education, etc. — you should pursue innovation by seeking ideas from people whose job it is to innovate. As Fast Company reports, that’s also precisely the advice Roger Martin gives to businesses:

[T]he dean of the Rotman School of Management at the University of Toronto is traveling the country, throwing down the gauntlet to companies who hope to analyze and strategize their way out of a recession by bringing in armies of management consultants. You’ll get what you pay for, he warns, and it won’t be innovation. “The business world is tired of having armies of analysts descend on their companies,” he says. “You can’t send a 28-year-old with a calculator to solve your problems.”

The problem, says Martin, author of a new book, The Design of Business: Why Design Thinking is the Next Competitive Advantage, is that corporations have pushed analytical thinking so far that it’s unproductive. “No idea in the world has been proved in advance with inductive or deductive reasoning,” he says.

The answer? Bring in the folks whose job it is to imagine the future, and who are experts in intuitive thinking.

As Martin points out, even scientific progress starts with hypotheses; it doesn’t merely apply the known. Which, interestingly, is precisely the point evolutionary biologist Olivia Judson made in the New York Times this week:

One of my favorite things to do is to take a set of facts and use them to imagine how the world might work. In writing about some of these ideas, my aim is not to be correct — how can I be, when the answer isn’t known? — but to be thought-provoking, to ask questions, to make people wonder.

[S]cience is usually presented as a body of knowledge — facts to be memorized, equations to be solved, concepts to be understood, discoveries to be applauded. But this approach can give students two misleading impressions.

One is that science is about what we know. One colleague told me that when he was studying science at school, the relentless focus on the known gave him the impression that almost everything had already been discovered. But in fact, science — as the physicist Richard Feynman once wrote — creates an “expanding frontier of ignorance,” where most discoveries lead to more questions. (This frontier — this peering into the unknown — is what I especially like to write about.) Moreover, insofar as science is a body of knowledge, that body is provisional: much of what we thought we knew in the past has turned out to be incomplete, or plain wrong.

The second misconception that comes from this “facts, facts, facts” method of teaching science is the impression that scientific discovery progresses as an orderly, logical “creep”; that each new discovery points more or less unambiguously to the next. But in reality, while some scientific work does involve the plodding, brick-by-brick accumulation of evidence, much of it requires leaps of imagination and daring speculation. (This raises the interesting question of when speculation is more likely to generate productive lines of enquiry than deductive creep. I don’t know the answer — I’d have to speculate.)

Being effective at anything requires innovation to address an ever changing world. It’s true in law. My students arrive in law school wanting to be told the answers law provides. I hope by the time they leave that what they’ve learned are not answers but, rather, ways to creatively reach answers to questions no one can anticipate they will face.

In other words, the qualities required by effective lawyers are the same qualities  – as Hartmut Esslinger, the founder of frog design, tells Guy Kawasaki — required by effective designers.  Both great designers and great lawyers lawyers have an enormous depth and breadth of knowledge, an ability to connect that knowledge to human lives and human hearts, desire, and persistence:

The artistic talent required is more of an enabler at the end of rational and emotional analysis as well as strategic conceptualization. Therefore, it is vital to learn and study as much as possible especially about business, technology and human nature. In the end, there are flavors in design which are more esthetic—see New York Times “Style Magazine”—but design is only relevant when it improves human lives by appealing both to the mind and the heart. Finally, a young person with the right talents needs to have infinite desire and never give up. I apply a simple test with young students: smash a teapot into pieces and then hand out the glue. Those who rebuild the teapot won’t make it, those who create phantasy animals and spaceships will.

So next time you are looking to innovate (and you always should be), look to creative people to help you do it.

Cukoo Kookaburra copyright claim

In 1980, Men at Work released Down Under, and in 1981 it was a #1 song in Australia, Britain, and the U.S. In 2007, 26 years later, a game show contestant identified Kookaburra Sits in the Old Gum Tree as the nursery rhyme the song’s riff was based on. The contestant needed prompting. It’s no surprise he had trouble thinking about where the tune had come from. As the Sydney Morning Herald reports, “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But that didn’t stop the copyright holder from suing Men at Work, despite the fact it had bought the rights to Kookaburra in the 1980s “when it bought them for $6100 from the family of its late composer, Toorak School teacher Marion Sinclair.” In fact, one of its managing director’s jobs was to track down unauthorized uses — it’s a wonder he hasn’t yet gotten to the school chorus version below.

The mere fact the use went unnoticed for so long is itself, I think, evidence that its use in Down Under is fair use. If something is so transformed that it isn’t noticed even in a #1 hit, it must be transformative, right? I think Shepard Fairey’s Obama Hope poster is fair use for a similar reason — the photographer himself didn’t realize the poster was based on his own photograph. Copyright claims like the one against Men at Work pervert the very basis of so much we call creative. As the Morning Herald states, “The reuse of riffs is as old as rock’n'roll. And it’s a good thing, according to Martin Armiger, former member of the Sports and composer of music for The Secret Life of Us and Young Einstein. The 1955 hit Louie Louie by Richard Berry became the template for hundreds of songs including the Troggs’ Wild Thing and the Beatles’ Twist and Shout, he pointed out in his expert evidence for Men at Work and EMI.”

Or, as the KLF puts it, “Every Number One song ever written is only made up from bits from other songs.”

When is a copy an original?

Behind all the shouting about Shepard Fairey and the Obama Hope poster, there is, as I’ve emphasized again and again, a real failure to contend with our conceptions of creativity and originality. Hollywood, of course, is stuck in a rut of remakes so deep that I’m seeing remakes of films I’ve already seen as an adult. There isn’t much originality there. But then you look at something seemingly so simply as Douglas Gordon’s 24 Hour Psycho (1993), a super slowed-down version of Alfred Hitchcock’s 1960 film Psycho, and you have to wonder whether it isn’t a whole lot more original then the coming remake of A Nightmare on Elm Street. Gordon explains his film as follows:

“24 Hour Psycho, as I see it, is not simply a work of appropriation. It is more like an act of affiliation… it wasn’t a straightforward case of abduction. The original work is a masterpiece in its own right, and I’ve always loved to watch it. … I wanted to maintain the authorship of Hitchcock so that when an audience would see my 24 Hour Psycho they would think much more about Hitchcock and much less, or not at all, about me…”