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.

Can you be original if you do nothing but appropriate the work of others?

From Wikipedia: Ophir Kutiel (born 1982), professionally known as Kutiman, is a musician, composer, producer and animator from Israel. He is best known for creating the online music video project ThruYOU, an online music video project mixed entirely from samples of YouTube videos which has received more than 10 million views. Time Magazine named it one of the 50 Best Inventions of 2009.

Here is This is What it Became, one cut from ThruYOU:

Mike Masnick of techdirt, writes yesterday, in terms that a lawyer for Gregg Gillis would love:

[T]o hear some people talk about these things, none of this is “creative.” It’s all just “copying.” In some cases it’s outright “piracy.” After all, Kutiman is using the works of others, and doing so entirely without permission. And yet, I have trouble seeing how anyone can legitimately claim that these songs are “piracy” in any real sense of the word. Kutiman is clearly a musician. That he uses a note played by someone else on a YouTube video, and then “plays” it himself, strikes me as no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar. A musician is putting different sounds together to create music. Does it really make a huge difference if that music involves someone making a note from an instrument directly themselves… or by taking the note originally played by someone else and doing something creative and amazing with it?

I think Masnick is right on in stating that the use of technology widely available only in the last several years to compose a work from pieces of other recorded work is “no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar.” What many fail to recognize is that the music the likes of Kutiman, Gillis, DJ Earworm and a myriad of others are producing today is the result of new technology, not a new mindset. There are plenty of people out there who would tell you that rampant sampling is the consequence of a generation without respect for property rights. But I think people who say such things are missing the real point: ten years ago, it would have been very difficult for people like Gillis and Kutiman to compose the work they compose today. Twenty years ago it would have been impossible without efforts few but the most dedicated would resort to.

In short, we have new instruments today. That those instruments produce their sounds by means of reproducing pre-recorded sounds does not make them any less instruments than instruments that can produce only a limited number of notes.

Substantially similar or original? Can’t it be both?

From The Millions: “’Substantially Similar? (after Koons 2010),’ [right] is composed of 36 rectangular panels, each contributed by a different artist and then assembled by the artist who conceived the piece, Alfred Steiner. The result was an instantly recognizable riff on Jeff Koons’s ‘Popeye’ series [left] – an appropriation from an appropriator who has made headlines in several highly publicized copyright cases. A note beside ‘Substantially Similar?’ left no doubt about its creator’s stance on the passionate arguments for and against copyright laws: ‘By engaging these issues, the project may also suggest how copyright antagonizes artistic freedom while providing artists no discernible benefit.’”

Steiner is a “lawyer who happens to be an artist.” Steiner described his methods in composing Substantially Similar? (after Koons 2010):

I took an electronic version of the Koons original and divided it up into 36 pieces and sent each artist just one little piece, via e-mail, so they wouldn’t recognize the whole thing. I gave them instructions on how to create an image based on the image that I’d e-mailed them. The only other instructions were a very close paraphrase of the 2nd Circuit’s test for copyright infringement – which is, “would a reasonable person regard the two works’ esthetic impact as the same?”

TM: In other words, would a layman recognize these two works as being the same thing?

AS: Right.

TM: So the contributors didn’t know what they were reproducing?

AS: Right.

TM: And the result was a piece that looked vaguely like Koons, but was different.

AS: It had the essence of the original but was clearly a new work.

In connection with Girl Talk, Steiner states what is very much my thinking — why would we want to stop something so good?

[Greg Gillis] will make songs that are totally based on samples. One song may have 200 samples, so many that there’s no way you could pay each artist. He’s very well received critically. The question is, should it be possible to make that kind of work or not? I kind of think, yes, it should be possible.

Cariou v. Prince: the damage to plaintiff is far more important than Richard Prince’s inability to articulate an artistic intent.

I discussed here nearly 2 years ago the lawsuit by photographer Patrick Cariou against Richard Prince alleging that the collages Prince had exhibited at the Gagosian Gallery in 2008 because they had appropriated photographs of Rastafarians Cariou had taken and published in his book Yes Rasta in 2001. I wrote then that the lawsuit “could have a profound impact on the art world, either clarifying that the widespread acceptance in the art world of appropriation art is legally legitimate or opening the door to an increased number of lawsuits by copyright holders against artists engaged in collage, sampling, satire, and any  number of other genres that have become increasingly easy to engage in with the digitalization of media and the rise of the internet.”

The verdict is in: the court ruled in favor of Cariou and against Prince. The decision is embedded below.

On the one hand, the decision is not as far reaching as it might have been. The court emphasized that it was declining to accept Prince’s argument that “appropriation art is per se fair use, regardless of whether or not the new artwork comments on the original works appropriated.” Slip Op. at 17-18. On the other, the court limited the scope of fair use in appropriation art to work that comments on the original works, insisting that, “to the extent that [Prince’s works] merely recast, transform, or adapt the photos, [they] are . . . infringing derivative works.” Id. at 18.

There are a several interesting aspects of the case. First, the court emphasized that Prince “testified that he has doesn’t “really have a message” he attempts to communicate when he making art,” and that “[i]n creating [his] Paintings Prince did not intend to comment on any aspects of the original works or the broader [Rastafarian] culture.”

It may be a dangerous thing to depend on the artist’s intent in judging the transformative nature of his art. As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well accepted they are almost trite,

The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist’s own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists’ work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.

What was Jackson Pollock’s purpose in painting Lavender Mist? Van Gogh’s in painting The Irises? Haven’t we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007) (emphasis added), the Second Circuit, in holding that Jeff Koons’ appropriation of a copyrighted photograph constituted fair use, based its conclusion that Koons’ use of the photograph was “transformative” precisely on Koons’ statements regarding what he intended:

Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it. Compare Koons Aff. at P4 (“I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.”) with Blanch Dep. at 112-113 (“I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs.”). The sharply different objectives that Koons had in using, and Blanch had in creating, “Silk Sandals” confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant’s purpose in using copyrighted concert poster was “plainly different from the [*253] original purpose for which they were created”); see also 17 U.S.C. § 107(1) (first fair-use factor is the “purpose and character of the use” (emphasis added)).

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. Castle Rock Entm’t, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as “raw material,”Castle Rock Entm’t, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see alsoBill Graham Archives, 448 F.3d at 609 (use of concert posters “as historical artifacts” in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when “the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting” on the original). 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.’”

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.”Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated);Davis, 246 F.3d at 174 (same). 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.

In short, courts seem to be basing the transformative nature of alleged infringements on the avowed intentions of the artists themselves. Thus, in the decision enjoining the publication of a “sequel” to The Catcher in the Rye, the judge was significantly influenced by the fact the author and his representatives had described the work in words that didn’t fit the legal standard they wanted to meet:

Until the present lawsuit was filed, Defendants made no indication that 60 Years [the new work] was in any way a parody or critique of Catcher [in the Rye]. Quite to the contrary, the original jacket of 60 Years states that it is “. . . a marvelous sequel t one of our most beloved classics.” . . . Additionally, when initially confronted with the similarities between the two works, rather than explaining that60 Years was a parody or critique of Catcher, Colting’s [the new work’s author] literary agent, Mr. Sane, contended that 60 Years “is a completely freestanding novel that has nothing to do with the original Catcher in the Rye.” Opinion and Order at 16, n. 3.

Colting, obviously, should have called his work a parody and critique, not a sequel or a “freestanding novel.” It’s odd to think that makes a difference, though. No matter what he said, his work would be the same.

In the same way, it seems odd that Prince’s refusal to articulate an artistic intent and Koons elaborate description of his own intent are the most significant determinants of the legitimacy of their respective artworks.

Of course, there are more obvious was to distinguish Prince’s case from Koons’. Koons’ use of a fashion photograph in his collage quite plainly had no impact on any reasonably foreseeable markets for that fashion photograph. In contrast, Prince’s work quite obviously did have an impact on the commercial value of Cariou’s work. 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.

So we need not go so far as to conclude that Cariou’s lawsuit signals the death of appropriation art in all its various guises. Blanch v. Koons alone is proof that is not the case. But if we realize how plainly and directly Prince’s appropriations damaged Cariou’s opportunities to economically benefit from his own work, the outcome (if not all of the reasoning) of this new case is obviously correct.

Cariou v Richard Prince

Is the NY Times new paywall a platypus?

Will the new New York Times paywall survive longer than its last one? The Times sent me an e-mail explaining the plan, but Felix Salmon explains it more succinctly and clearly:

[T]he website is free, so long as you read fewer than 20 items per month, and so are the apps, so long as you confine yourself to the “Top News” section. You can also read articles for free by going in through a side door. Following links from Twitter or Facebook or Reuters.com should never be a problem, unless and until you try to navigate away from the item that was linked to.

Beyond that, $15 per four-week period gives you access to the website and also its smartphone app, while $20 gives you access to the website also its iPad app. But if you want to read the NYT on both your smartphone and your iPad, you’ll need to buy both digital subscriptions separately, and pay an eye-popping $35 every four weeks. That’s $455 a year.

I can’t say I disagree with Salmon’s take: “The message being sent here is weird: that access to the website is worth nothing. Mathematically, if A+B=$15, A+C=$20, and A+B+C=$35, then A=$0.” And I suspect Mike Masnick’s is correct in his belief this plan was spawned by a committee that either lacked or utterly ignored any member who suggested the idea was stupid:

It feels like something that was completely developed by committee group-think. It’s one of those things where they’re sitting around and someone timidly suggests a dumb idea (“I know, for $5 more we take away their smartphone access”) and, because they have to come up with something, someone else says “sure” and then they think there’s validation of a good idea. But there’s no one brave enough in the room to say: “Guys, the newspaper is digital. Charging different amounts based on the hardware is like charging people different prices for listening to the same music on headphones vs. speakers.” But no one did that. And because they had a committee, who kept making bad suggestions like this, and 14-months to keep upping the stupid, they spent over $40 million on it.

The result for me will be that I’ll read the New York Times less than I do now. Whether the newspaper will in fact be hurt by losing page views by readers like me or will make more money than it does now with its content online for free remains to be seen, but something tells me this isn’t the best solution to the world we live in now, one in which newspapers no longer control the means of producing and distributing journalism.

Stay tuned. We’ll see what the New York Times is doing online in a year or two.

If you think you’ll come up with a really original idea, you’re just kidding yourself.

In The City and the City, China Mieville writes a police procedural that takes place in “[t]win southern European cities Beszel and Ul Qoma,” which “coexist in the same physical location” but are “separated by their citizens’ determination to see only one city at a time.” When I read the novel I marveled at the originality of the premise. Of course, as Mieville himself recognizes in an interview on BLDGBLOG, there’s nothing new under the sun:

I should say, also, that with the whole idea of a divided city there are analogies in the real world, as well as precursors within fantastic fiction. C. J. Cherryh wrote a book that had a divided city like that, in some ways, as did Jack Vance. Now I didn’t know this at the time, but I’m also not getting my knickers in a twist about it. If you think what you’re trying to do is come up with a really original idea—one that absolutely no one has ever had before—you’re just kidding yourself.

You’re inevitably going to tread the ground that the greats have trodden before, and that’s fine. It simply depends on what you’re able to do with it.

That indeed is where artistic genius resides — not in the originality of the thought, but in what the artist does with the thought.

Welcome to the future of publishing.

Amanda Hocking lives in Minnesota, and writes young adult paranormal romance and urban fantasy. Her My Blood Approves series is about vampires in Minneapolis. She also wrote the Trylle Trilogy, which is a paranormal romance without vampires, shifters, mermaids, fae, angels, dragons, ghosts, or ninjas.

But what’s remarkable about Ms. Hocking is that she’s experienced enormous success by self-publishing her works exclusively as electronic texts, as the Huffington Post reports:

Unknown, living paycheck to paycheck in Austin, Minnesota, rejected by publishers all over New York, Amanda Hocking decided to self-publish on ebook platforms only. She sold 100,000 of her works in December, and over 10 months she’s had more than 900,000 in sales. She’s 26 and is now making enough money to quit her day job and become a full time writer, in fact she’s a millionaire.

Paranormal romance is not precisely to my taste, but no one interested in culture can ignore the economics of popular culture. And at least this comment from the Huffington Post article, while acknowledging the fear provoked by the ongoing revolution in publishing, acknowledges what I’ve long seen as the need to embrace the inevitable:

As a long-time author it frightens me somewhat to see the industry change so much so quickly. Yet it’s also exciting to witness this kind of people power in the making. The Internet is the great equalizer. I firmly believe that those of us in the industry need to embrace the change or we will eventually go down in flames. You can’t stop progress, only delay it.

Noy Alooshe: Zenga Zenga

Five Seconds Of Every #1 Pop Single Part 1

Five Seconds Of Every #1 Pop Single Part 1 by mjs538

Would Shakespeare have survived the Internet? Scott Turow and the morality of propertizing creativity.

In the New York Times, Scott Turow, Paul Aiken, and James Shapiro ask whether Shakespeare would have survived the Internet:

The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt.

They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.

There are a number of questions one might raise in response to Mr. Turow and his colleagues. For one, there are not many law professors other than the notoriously ineffective Charles Nesson who defend the legality of unauthorized file sharing. (To question the assumption that file sharing has a material impact on the music and publishing industries is, on the other hand, a different matter.) To conflate file sharing with tranformative appropriation in discussing copyright is the genuinely misleading rhetorical move. And Shakespeare may not be the best example to use in arguing that copyright and innovation necessarily go together. One might wonder, in fact, whether there really is such a thing as a sui generis artist, be that artist Shakespeare or Robert Johnson. Nor could one argue that there were no great artists and writers prior to the advent of what the Turow and his colleagues describe as “paywalls” around theaters or before copyright. Indeed, at least in certain markets the absence of copyright protection does indeed promote innovation. The very premise of Turow’s argument — that in the absence of the economic monopoly conferred by copyright creativity like Shakespeare’s simply won’t happen — is hardly indisputable.

Perhaps Judge Alex Kozinski, referencing Scott Turow of all people, put it best in dissenting from the 9th Circuit’s refusal to rehear en banc a case in which Vanna White successfully sued Samsung for violating her “right of publicity” by “appropriating” her “identity,” emphasizing that overprotecting intellectual property is as dangerous as underprotecting it (footnotes omitted):

Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts. Clint Eastwood doesn’t want tabloids to write about him. Rudolf Valentino’s heirs want to control his film biography. The Girl Scouts don’t want their image soiled by association with certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it “Star Wars.” Pepsico doesn’t want singers to use the word “Pepsi” in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year’s Eve. Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see purple when their creations are made fun of.

Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains.

So too it is with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture. . . .

But what does “evisceration” mean in intellectual property law? Intellectual property rights aren’t like some constitutional rights, absolute guarantees protected against all kinds of interference, subtle as well as blatant. They cast no penumbras, emit no emanations: The very point of intellectual property laws is that they protect only against certain specific kinds of appropriation. I can’t publish unauthorized copies of, say, Presumed Innocent; I can’t make a movie out of it. But I’m perfectly free to write a book about an idealistic young prosecutor on trial for a crime he didn’t commit. So what if I got the idea from Presumed Innocent? So what if it reminds readers of the original? Have I “eviscerated” Scott Turow’s intellectual property rights? Certainly not. All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy.

Turow and his colleagues are guilty, I think, of the “bad medicine” of “reducing too much to private property.” Perhaps Turow would describe me as a law professor advancing “counterintuitive” arguments, but he runs the risk of embodying (and profiting mightily from) a culture that has an unprecedented tendency to “propertize” everything it can and a blindness to the ways law cannot stem new practices made possible by technology. The inarguable truth is that the music and publishing industries once had virtual monopolies on the production and distribution of their products and that they no longer do. Those industries have largely reacted by trying to enforce a legal regime that grew up with and required the old means of production and distribution, which seems to me at least not the most productive way of promoting creativity.

Turow appears to be among the reactionaries trying to use the force of law to overcome reality. Last year he complained that publishers had made a mistake in making publishing e-book versions of writers’ works at the same time they published the book versions, agreeing with a publisher’s assertion that “there’s something radically wrong” when a market has the power to cause the value of a book to plummet.  When the publisher expanded on the point by stating that “I want to be able to say that a new book by Scott Turow is worth $28, and people should be willing to pay that,” Turow agreed, justifying his entitlement to the price by arguing that “[t]here is nothing wrong with [copyright holders] maximizing their profits . . . . If we really want to have a robust literary culture, then we have to think about the compensation system.”

I would suggest to the publisher and Turow that there might not be anything wrong with maximizing profits but that there might indeed be something wrong with charging a price that reflects the costs of printing and distributing books when the market now can deliver a product that need not be printed and that can be delivered virtually for free.

What is “intuitive” to Turow and the point of view he represents is that your creations are as much your property as your car or your computer. But “intellectual property” is not property in the same way as personal or real property. The very source of our nation’s copyright laws, the Constitution’s Copyright Clause,  makes clear that copyright law exists to promote invention and creativity, and to the extent it discourages invention and creativity it is unconstitutional. Nonetheless, Turow and many others cannot seem to overcome some “moral” conviction that to allow others to profit off of your creations is somehow to “steal” something from you. Again, Judge Kozinski in the Vanna White case quoted above, eloquently states the response to this “moral claim” (footnotes omitted; hyperlinks added):

Moreover, consider the moral dimension, about which the panel majority seems to have gotten so exercised. Saying Samsung “appropriated” something of White’s begs the question: Should White have the exclusive right to something as broad and amorphous as her “identity”? Samsung’s ad didn’t simply copy White’s schtick–like all parody, it created something new. True, Samsung did it to make money, but White does whatever she does to make money, too; the majority talks of “the difference between fun and profit,” 971 F.2d at 1401, but in the entertainment industry fun is profit. Why is Vanna White’s right to exclusive for-profit use of her persona–a persona that might not even be her own creation, but that of a writer, director or producer–superior to Samsung’s right to profit by creating its own inventions? Why should she have such absolute rights to control the conduct of others, unlimited by the idea-expression dichotomy or by the fair use doctrine?

To paraphrase only slightly Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S340], __, 111 S.Ct. 1282, 1289-90, 113 L.Ed.2d 358 (1991), it may seem unfair that much of the fruit of a creator’s labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the system’s very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it

The future of newspapers? Who knows? But there is one.

I don’t know where books are going. I don’t know what will happen to newspapers. But I am confident that both will survive and perhaps even prosper in the new environment we find ourselves in. John Lanchester’s article in the London Review of Books on the future of newspapers is well worth reading. Among other things, he reminds us that the future cannot be foreseen:

As for the new media, they are clearly a work in progress, and it would be premature to say what their impact will be on the fundamentals of public and political life. Their impact on private life is more apparent, and seems to focus on an increase in the number of ways for people to meet and connect, both online and off. In some ways, the story of text messaging is a parable for the way the net has evolved. SMS messaging was taken up by Nokia in Finland as a way of allowing engineers to communicate short, factual messages about where they were, what they were doing and how long it would take. Nokia then made the service available on their phones, since, well, there it was, so you might as well let the punters have a go. They were amazed to see the spike in data traffic which suddenly showed up. The reason: Finnish teenagers were using SMS to organise their social lives. From there, texting hasn’t looked back. Nobody decided what the purpose of SMS would be, it just evolved. It would be hard to deny that texting is a new thing; also hard to argue that it has fundamentally changed the world. I’d say that’s roughly where we are with the journalistic uses of the new media. Their democratising and decentralising effects have barely begun, and aren’t going to go away. In a sense, the WikiLeaks episode(s) shows both what the digital media can and can’t do. Its release of information is unprecedented: but it is not journalism. The data need to be interpreted, studied, made into a story. For that we need . . .  the press.

And the elimination of printing and distribution costs is profound. Lanchester explains that the New York Times could give its subscribers for free four Kindles with worldwide 3G per year coverage for the costs it currently expends in printing and distributing its newspaper:

If newspapers switched over to being all online, the cost base would be instantly and permanently transformed. The OECD report puts the cost of printing a typical paper at 28 per cent and the cost of sales and distribution at 24 per cent: so the physical being of the paper absorbs 52 per cent of all costs. (Administration costs another 8 per cent and advertising another 16.) That figure may well be conservative. A persuasive looking analysis in the Business Insider put the cost of printing and distributing the New York Times at $644 million, and then added this: ‘a source with knowledge of the real numbers tells us we’re so low in our estimate of the Times’s printing costs that we’re not even in the ballpark.’ Taking the lower figure, that means that New York Times, if it stopped printing a physical edition of the paper, could afford to give every subscriber a free Kindle. Not the bog-standard Kindle, but the one with free global data access. And not just one Kindle, but four Kindles. And not just once, but every year. And that’s using the low estimate for the costs of printing.

I might even subscribe if they did that. Though my e-reader is not a Kindle.

A National Public Library? There’s nothing to stop it other than a lack of political will to do anything useful.

Robert Darnton calls for a National Digital Library — “a digital library composed of virtually all the books in our greatest research libraries available free of charge to the entire citizenry, in fact, to everyone in the world.” I agree with him that the project is neither naive nor utopian. Several countries have already committed themselves to the creation of their own national digital libraries:

In December 2009 President Nicolas Sarkozy of France announced that he would make €750 million available for digitizing the French cultural “patrimony.” The National Library of the Netherlands aims to digitize within ten years every Dutch book, newspaper, and periodical produced from 1470 to the present. National libraries in Japan, Australia, Norway, and Finland are digitizing virtually all of their holdings; and Europeana, an effort to coordinate digital collections on an international scale, will have made over ten million objects—from libraries, archives, museums, and audiovisual holdings—freely accessible online by the end of 2010.

Darnton concludes that the U.S. “should be possible to digitize everything in the Library of Congress for less than Sarkozy’s €750 million—and the cost could be spread out over a decade.” And he therefore sees the legal issues — particularly dealing with “orphan works” – as the principal barrier to a U.S. National Digital Library.

Unfortunately, I disagree with Darnton regarding the main impediment. As I’ve explained “orphan works” are “works whose copyright holders cannot be identified, a common problem because there is no registry of copyrights and the authors of the books are not necessarily the copyright holders. Rather, the copyright holders might include unidentifiable heirs or even corporate entities that have gone through mergers, dissolutions, or other forms of corporate reorganization that make it difficult or impossible to identify the entity that currently owns the copyright.” I’m not sure I see any particular problem with Congress enacting legislation amending the Copyright Act to authorize a National Public Library to use works whose copyright owners cannot be identified under terms that provide for reasonable compensation when and if owners make and establish their claims.

I think, however, the cost is a real impediment in the current economic climate. €750 million is almost $1 billion. While the U.S. military budget for 2010 totals approximately 685 times this amount, the current political climate hardly seems ripe for Congress to take the initiative on a project that would strike much of the citizenry — and certainly most U.S. politicians — as intellectual frivolity. It isn’t, of course, but one can be sure that massive confusion over the rights of authors (as I’ve touched on here, among other places) could be used to demagogue to death a billion dollar project longed for by a bunch of professors.

Friday Night Mashup (in further memory of John Lennon): DJ Danger Mouse – The Grey Video

Matt Ridley: When ideas have sex

Be creative? Question Authority. Even the CIA thinks so.

Who would’ve thought that the Central Intelligence Agency — often ridiculed by describing its name as an oxymoron — might have such useful resources on creative thinking and problem solving. A chapter on “Keeping and Open Mind” from The Psychology of Intelligence Analysis, sums up the attitude and mind-set any lawyer and law student must cultivate to address the problems they face, problems that — due to the infinite variety of human experience — cannot be solved by merely finding and applying rules:

Creativity, in the sense of new and useful ideas, is at least as important in intelligence analysis as in any other human endeavor. Procedures to enhance innovative thinking are not new. Creative thinkers have employed them successfully for centuries. The only new elements–and even they may not be new anymore–are the grounding of these procedures in psychological theory to explain how and why they work, and their formalization in systematic creativity programs.

Learning creative problem-solving techniques does not change an analyst’s native-born talents but helps an analyst achieve his or her full potential. Most people have the ability to be more innovative than they themselves realize. The effectiveness of these procedures depends, in large measure, upon the analyst’s motivation, drive, and perseverance in taking the time required for thoughtful analysis despite the pressures of day-to-day duties, mail, and current intelligence reporting.

A questioning attitude is a prerequisite to a successful search for new ideas. Any analyst who is confident that he or she already knows the answer, and that this answer has not changed recently, is unlikely to produce innovative or imaginative work. Another prerequisite to creativity is sufficient strength of character to suggest new ideas to others, possibly at the expense of being rejected or even ridiculed on occasion. “The ideas of creative people often lead them into direct conflict with the trends of their time, and they need the courage to be able to stand alone.”

Steinski talks about the origins of musical mashups

Innovation comes from remixing what we already have.

I’ve written frequently about the myth that creative genius is the product of solitary inspiration and the ways that myth reinforces notions of intellectual property that, under the pretense of rewarding innovation, in fact stifle innovation by preventing the re-use and remixing of existing ideas, creations, and inventions. In reviewing Steven Johnson‘s Where New Ideas Come From, Paul Crowe makes the point that

Greek philosophers said nothing comes from nothing, a new idea, actually a new anything, is simply a rearrangement or unique new combination of things that already exist. When you think of it that way, coming up with new ideas isn’t about having that mysterious “creative” ability, it might be more about a willingness to try lots of new combinations to see what might work, and, hey, anyone can do that, you just need desire and effort.

Theft, a History of Music

Steven Johnson, Lawrence Lessig, & Shepard Fairey at the NY Public Library on Mashup & Remix

The myth of authorship and the rise of a new artistic culture

As I’ve pointed out previously, my colleague and friend Martha Woodmansee‘s scholarship is fundamental to the reexamination of the historical bases of our present conceptions of “authorship”:

An “author” in the modern sense is the creator of unique literary, or artistic, “works” the originality of which warrants their protection under laws of intellectual property — Anglo American “copyright” and European “authors’ rights.”

Now Abram Sinnreich, in Mashed Up: Music, Technology, and the Rise of Configurable Culture, extends these insights into the quirks that have produced our notion of authorship and the ways the radical changes in the technological realities governing the creation and distribution of artistic works is undermines that notion. truthdig has posted a substantial excerpt, the entirety of which (like the book, no doubt) is well worth reading. Here’s just a taste, one that begins to develop the relationship between the current conventional wisdom of what an author is and its relationship to our social obsession with converting public goods into private property:

The biggest myth of all is the Romantic notion that artists somehow create their work uniquely and from scratch, that paintings and sculptures and songs emerge fully-formed from their fertile minds like Athena sprang from Zeus. Running a close second is the myth that only a handful of us possess the raw talent – or the genius – to be an artist. According to this myth, the vast majority of us may be able to appreciate art to some degree, but we will never have what it takes to make it. The third myth is that an artist’s success (posthumous though it may be) is proof positive of his worthiness, that the marketplace for art and music functions as some kind of aesthetic meritocracy.

Of course, these myths fly in the face of our everyday experience. We know rationally that Picasso’s cubism looks a lot like Braque’s, and that Michael Jackson sounds a lot like James Brown at 45 RPM. We doodle and sing and dance our way through our days, improvising and embellishing the mundane aspects of our existence with countless unheralded acts of creativity. And we all know that American Idol and its ilk are total B.S. (very entertaining B.S., of course!). Each of us can number among our acquaintance wonderful singers, dancers, painters or writers whose creations rival or outstrip those of their famous counterparts, just as each of us knows at least one beauty who puts the faces on the covers of glossy magazines to shame.

And yet, we believe the myths. How could we not? Who among us has the time, the energy, or even the motivation to buck the overwhelming support the myth of the Artist receives from the institutions that govern our society – to dispute our schools, our churches, even our laws? What is copyright, after all, but the legal assertion of an individual’s sole ownership over a unique artifact of creative expression? These laws, sometimes enforced at gunpoint, require us to believe the myths, or face the consequences.

Of course, there’s a reason the myths exist. Our economy runs on the privatization of hitherto public goods. Our legal system is premised on the individual as the locus of all rights, all liability, all blame. Our society’s profound inequalities are only acceptable because we believe ourselves to live in a meritocracy, a world where a person’s success is de facto proof of his or her inherent worthiness. In short, the myth of the Artist-with-a-capital-A allows us to believe in America-with-a-capital-A.