Roy Lichtenstein, Image Duplicator (1963)

They’re trying to make it illegal for you to respond to the imagery your bombarded with every day.

From NEWSgrist comes the sad news of Mike Kelley’s death, along with a very interesting interview of Kelley conducted by Glenn O’Brien. An excerpt:

GO:?I’ve remembered an event and thought I’d said something when actually it was somebody else who said it or vice versa. I think, especially in writing, so much of plagiarism is completely unconscious.

MK:?I have experienced that often. I’ve stolen ideas, and people have stolen from me. I’m all for it. That’s the way things get created. That’s how culture grows. When there’s an amazing idea, you take it and run with it. I mean, you’re going to take it someplace else than the source anyway. There are a lot of artists who’ve worked at that specifically. One of my favorite writers is the Comte de Lautréamont, and much of his writing is constructed from plagiarized texts. Who would claim that his work is no different than what he plagiarized?

GO:?One thing that the Internet seems to be doing is eroding the idea of copyright and originality. People are just taking bits of things and using them in a very free way.

MK:?That’s great. And the corporate entertainment industry is trying to stop it from happening. Think about it: Andy Warhol could not have a career now. He would be sued every two seconds.

GO:?It’s given a lot of work to the lawyers.

MK:?Copyright laws are terrible for culture. It’s illegal to respond to the imagery that surrounds you; you’re bombarded every minute of the day with mass-media sludge. It should be the opposite: Everybody should have to respond to it. This is what should be taught in the public school system.

William S. Burroughs should be a major role model: All students should be given tape recorders and cameras to constantly record the gray veil that surrounds them, so that they can recognize that it’s even there-and manipulate it. Most people are not aware of the white noise they exist in. Tape recording and photography allowed people to become aware of what was invisible to them for the first time. We’re surrounded by invisibility. That’s what I think art can do-make things visible.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

* * *

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

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

Michalis Pichler: Statements on Appropriation (2009)

Michalis Pichler: Statements on Appropriation (2009) 

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

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

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

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

5. It is nothing but literature!

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

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

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

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

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

11. Plagiarism is necessary, progress implies it.

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

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

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

15.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Richard Prince doesn’t have to describe one of his paintings as a Rhino in Hot Pants Shouting, “Repent, Repent!” for it to be so.

Tom Waits on the “meanings” of his songs:

If you break open a song, you’ll find the eggs of other songs. Misunderstandings are really kind of an epidemic and acceptable. I think it’s about one thing, but someone else will say, ‘That song is kind of a rhino in hot pants on a burnt rocking horse with a lariat shouting, “Repent, repent!” I think that’s great.

Why do I bring up Waits rejoicing in the fact someone might hear one of his songs as a “kind of rhino in hot pants on a burnt rocking horse with a lariat shouting, “repent, repent!” Because the lawyer for Patrick Cariou believes that a work of art appropriating another work can only be interpreted to be sufficiently “transformative” of that earlier work if the appropriator expresses in words a transformative purpose. Richard Prince, in appropriating Patrick Cariou’s photographs for his own artistic purposes, said he had no real interest in the meaning behind Cariou’s work, and that he used it strictly as “raw material,” that it was “taking for the sake of taking.”

Cariou’s lawyer thinks that Prince’s inability to state an artistic purpose is fatal to his case. In his eyes, the law requires a 2-step process: “First the defendant has to say” he was engaged in a transformative use of the work he was appropriating. “Only then does the court go on to say, ‘Well let’s see if this is reasonably perceivable.’”

As I made clear yesterday, and as I think Tom Waits makes clear far more vividly, it seems absurd to limit the meaning of a work of art to whatever the artist might state it is. Nor is this particular controversial. The phrase “intentional fallacy” was coined in the title of an influential scholarly article (Wimsatt and Beardsley 1946) claiming that artists’ intentions are neither available nor desirable as a standard for assessing art. As has been pointed out, “Intentionalists disagreed, arguing that any sense of the artist’s intention, however obscure, can be a useful resource in interpreting a work of art.”

But the point is, even “Intentionalists” acknowledge that judging, interpreting, and assessing art calls on attention to the art and all it evokes in the eyes of the viewer. Those judgments, interpretations, and assessments are never limited to what the artist wanted the viewer to see and think.

So Cariou’s lawyer is advancing nonsense when he suggests the court should be limited in that way. Nor is the precedent for court reliance in making fair use decisions on the expressed intent of the appropriating artist particularly compelling support for that nonsense. It is true that in Blanch v. Koons the U.S. Court of Appeals for the 2d Circuit relied on what Jeff Koons stated his purposes were in appropriating a photograph for use in one of his paintings. But there were no competing interpretations submitted to the court. As the court pointed out: “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.” Quite simply, the court was persuaded by Koons’ explanations. That the court was so persuaded does not mean, however, that the artist’s explanations are the only means by which the court could be persuaded.already stated their intent to parody. Nor, as Cariou’s lawyer contends, did a lower court find that 2 Live Crew’s re-working of Roy Orbison’s “Oh, Pretty Woman” depended on 2 Live Crew’s assertion their song was a “parody.” In fact, the Court found that 2 Live Crew’s words parodied Orbison’s and remanded the case so a lower court might determine (a) whether there had been any negative economic impact on sales of Orbison’s song in the potential “derivative market” of rap cover versions, and (b) whether the quantity of musical elements taken from Orbison’s song were more than necessary to 2 Live Crew’s purposes. Campbell, 510 U.S. at 590-91. After remand, the case settled, and there were no further court hearings.

Why hasn’t Girl Talk been sued? My answer, sampled and remixed in a new article

Why hasn’t Greg Gillis, who performs and records as Girl Talk, been sued despite (1) the fact his music consists entirely of recorded samples of other recordings, (2) his high profile and success, and (3) the music industry’s insistence — based on very shaky legal grounds — that no recorded sample can be appropriated without permission?

Well, I’ve been saying it for a long time, and I believe I was the first — Gillis is just too good:

I am a lawyer just like the lawyers representing Metallica, the Guess Who, and anyone else whose work has been sampled and repurposed by Gillis. And if were advising one of these clients (or I were representing the RIAA and could influence the lawyers for Metallica and the Guess Who), I would advise that client not to sue Girl Talk; Gillis’s argument that he has transformed the copyrighted materials sufficiently that his work constitutes non-inringing fair use is just too good. I’d go after someone I am more likely to beat. Othewise, I’d lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand Upright Music and Bridgeport Music.

And now comes Joe Mullin, of paidContent.org explaining Why The Music Industry Isn’t Suing Mashup Star ‘Girl Talk“:

So why hasn’t Gillis been hauled in front of a judge by the music industry? Probably because he’s the most unappealing defendant imaginable. Gillis would be a ready-made hero for copyright reformers; if he were sued, he’d have some of the best copyright lawyers in the country knocking on his door asking to take his case for free.

At the Electronic Frontier Foundation, probably the most well-funded public interest group working in the copyright space, lawyers have made it clear for years that they’re positively eager to litigate a case over music sampling, which they believe is a clear-cut case of fair use.

And I’ve said it before myself. I’d love to represent Gillis in that case should it ever come about.

California Gurls quotes California Girls. Can you imagine the nerve?

It’s sad when artists mistake the nature of their creations, when they somehow think they exist apart from culture as lone innovators. It’s especially pathetic when they believe their work is something like the real property they buy with whatever they’re lucky enough to earn from those works, something they can fence off from the rest of the world and keep trespassers off of. Techdirt points out an exceedingly outrageous instance of this:

[T]he Beach Boys are threatening to sue Katy Perry and/or her label if they’re not given songwriting credits for her song California Gurls. The Beach Boys, of course, did have a famous song back in 1965, called California Girls, with the classic line “I wish they all could be California Girls…” In the Katy Perry song, which is very different than the Beach Boys song, at the very, very, very end, Snoop Dogg says “I really wish you all could be California girls,” so the quote isn’t even a direct one.

I share techdirt’s hope that Katy Perry and her label stick to their guns. It’s tough to imagine a more obvious non-infringing use. Quite plainly, Perry was paying homage to the Beach Boys. Could you imagine requiring permission every time an artist riffs on an earlier work of art? We’d have no culture. Mike Love says, “I think [Perry's song] brings the Beach Boys’ 1965 classic to mind, that’s for sure.” You think? Would that mean the producers of the Dukes of Hazzard have their own claim?

Campbell Soup’s response to Andy Warhol’s appropriation

Making creations property does not promote creation: fashion this time

It’s difficult in this era in which “property” is considered the source of liberty for people to get their heads around the idea that treating the products of creativity as part of a “cultural commons” is in fact more conducive to creativity and innovation than is strict copyright protection. Here’s some strong evidence of exactly that:

There is no copyright protection afforded to fashion designs. As a result copying is a matter of course in fashion design. You don’t exactly see a dearth of creativity and innovation in fashion design, do you?  In the video below, Johanna Blakely expands on this point. Of course, fashion designers are seeking federal legislation extending copyright protection to their designs. I hate it when ideology (here, that without the worship of “property” our way of life is doomed) trumps reality.

Property is not always the foundation of liberty: fashion and copyright.

It’s difficult in this era in which “property” is considered the source of liberty for people to get their heads around the idea that treating the products of creativity as part of a “cultural commons” is in fact more conducive to creativity and innovation than is strict copyright protection. Here’s some strong evidence of exactly that:

There is no copyright protection afforded to fashion designs. As a result copying is a matter of course in fashion design. You don’t exactly see a dearth of creativity and innovation in fashion design, do you?  Here, Johanna Blakely expands on this point:

And yet, of course, fashion designers are seeking federal legislation extending copyright protection to their designs. I hate it when ideology (here, that without the worship of “property” our way of life is doomed) trumps reality.

Stealing what you love

John Pareles wrote, in “Plagiarism in Dylan, or a Cultural Collage?,”that “[i]deas aren’t meant to be carved in stone and left inviolate; they’re meant to stimulate the next idea and the next.” Accordingly, in words apropos of a point I’ve made over and over and over on this blog, he explains:

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

Another masterful artist, David Foster Wallace, wrote, “No one who is invested in any kind of art . . . can read [Lewis Hyde's book] The Gift and remain unchanged.” It is Hyde’s thesis not merely that all art builds on earlier art, but that it is precisely the artist’s recognition that his creations are gifts that sustains his creativity. In other words, the capacity to create is a gift given to the artist and is given only if the artist understands his own creations as gifts themselves that other artists can use themselves in their acts of creation:

It is the assumption of this book that a work of art is a gift, not a commodity. Or, to state the modern case with more precision, that works of art exist simultaneously in two “economics,” a market economy and a gift economy. Only one of these is essential, however: a work of art can survive without the market, but where there is no gift there is no art.

So it should be no surprise that Andreas Hykade entitled this brilliant video “Love & Theft“:

Art builds on art, be it Shepard Fairey’s Obama Hope poster or the re-tellings of myths and legends.

I have made clear, at length, my view that Shepard Fairey’s Obama Hope poster is a legitimate, non-infringing fair use of the photo Fairey appropriated as its source material. But I think Fairey himself expresses well in this interview from The Knowledge the basis of that belief, that the very nature of a lot of art (and, I might argue, all art) is to build on and refer to pieces of the culture in which we live and that without the freedom to appropriate pieces of that culture in ways that don’t merely exploit the value the creators of those pieces themselves have built we will diminish our culture. Fairey explains:

“I do think that copyrights and intellectual property are important—it’s important to be able to keep people from making verbatim copies of a particular creation that could somehow hurt the creator. If I spend time conceiving and making a piece of art and somebody else sees that it has market value and replicates it in order to steal part of my market, then that’s not cool. But the way I make art—the way a lot of people make art—is as an extension of language and communication, where references are incredibly important. It’s about making a work that is inspired by something preexisting but changes it to have a new value and meaning that doesn’t in any way take away from the original—and, in fact, might provide the original with a second life or a new audience.”

He goes on to explain, in terms that are very personal to me, the implications of an alternative view, often referred to as a position in favor of “strong” copyright protection”:

“The problem with copyright enforcement is that when the parameters aren’t incredibly well defined, it means big corporations, who have deeper pockets and better lawyers, can bully people. I don’t want to start making enemies in the corporate world, but there are plenty of cases. For example, there is a tradition of certain fairy tales being reinterpreted, and now, all of a sudden, a big corporation that has a mouse on its logo decides it’s going to copyright these fairy tales, which ends the cycle of these things being reinterpreted. What happens with these big entertainment companies is that they start to get a monopoly on the creation of culture. But I think that the more people participate in the creation of culture, the richer the culture becomes. In the case of the Obama poster, I was just exercising my First Amendment rights—and my free speech is exercised visually. People who want to talk or write in order to share an opinion about Obama can do that, but when I want to say what I think about him, I need to make a portrait. And if I can’t make a picture based on a reference because all references are copyrighted, then my only options are to pay a licensing fee—and possibly be turned down because the person licensing the image doesn’t agree with my political viewpoint—or to try to get a personal sitting with Barack Obama to make a portrait of him, which presents its own obstacles. So I don’t think all this is good for free speech.”

This is a personal matter because my sister, Amy Friedman, writer and teacher extordinaire, has for twenty years written on a weekly basis versions of fairy tales, folk tales, and legends from around the world and throughout history, an enormous corpus of work that is syndicated by Universal Press Syndicates under the name Tell me a Story (entire archive available). Needless to say, copyright concerns throughout this decades long endeavor, only one of many in which she engages, have been foremost in her mind, but there has never been any doubt either that her stories, while based on pre-existing creations from as many cultures and as many times as are virtually conceivable, are legitimate art in their own right and, therefore, enjoy their own copyright protection.

Amy’s story is important in another way. Not only would the Disney’s of the world co-opt the subject matter she makes her own, but she also is an artist in the truest sense. She is not a best-selling author. No one I’ve ever known works harder, and working at making a living as a writer, as she always has, is as difficult a task as one would wish upon a sister. She doesn’t depend on her copyrights to make her living — she depends on delivering a product that consumers want, whether they be students or parents who want wonderful audio stories for their kids. People like Mark Halperin, rich best-selling author and conservative pundit, , who bitch about copyright protection don’t know what they’re talking about. They live in an age in which digital information can be remixed and distributed worldwide by anyone with a laptop and an internet connection, an age in which their views of authorship and artistic production are, in a word, outmoded. The real artists are people like Amy, who eke out a living (one whose comfort level she expresses no complaints about).

Good lawyering means remixing

Gerry Spence on one of the secrets of his enormous success:

One artist’s take on issues related to Shepard Fairey

When does appropriation serve creativity? Quite often, in fact.

A commenter to yesterday’s post on Shepard Fairey’s Obama poster has suggested that I don’t believe in copyright because I believe that, even though Fairey created his image by initially tracing a copyrighted photo, the changes he made to the image and its re-contextualization within the campaign poster might well be sufficiently transformative to make his work non-infringing fair use.  In fact, I’d go so far as to say I genuinely believe Fairey’s image is a creative work in its own right even though it derives from another work.

In that regard, it’s worth noting that Henry McKervey and Declan Long, in “Makers and Takers: Art and the Appropriation of Ideas, write::

[I]t is the expression of an idea which is subject to legal protection. While perhaps this has meant that an artist such as Gillian Wearing can be faced with difficulties over the unattributed re-application of her work, the law also could be said to give artists a relative amount of freedom to take and re-use material in any number of subtly different ways without the spectre of plagiarism remaining ever-present. In a work such as Douglas Gordon’s 24 Hour Psycho, for instance, there is in one sense very little of the artist’s ‘own’ work (Hitchcock’s classic thriller being merely re-played at a radically slowed-down pace) yet Gordon’s intervention makes for a powerful, transformative artistic statement. The question of “knowing originality when you see it” is almost beside the point in cases such as this: artists’ strategies of appropriation prompt questions of originality to become thematically intriguing on, one level, while also being critically irrelevant and, on occasion, inappropriate, on another.

Believing that genuinely transformative appropriation is legitimate does not imply I do not believe in copyright.  It means, rather, that I believe that copyright should serve the only purpose it constitutionally is meant to serve: increased invention and creativity.

And did anyone notice that the John Williams composition played at the inauguration, “Air and Simple Gifts,” borrowed heavily from Aaron Copland’s Appalachian Spring, which itself appropriated a Shaker hymn?

This morning I didn’t think about the fact I wasn’t being original.

I didn’t realize when I wrote this morning’s post that Ann Bartow at Sivacracy.net had over a month ago quoted musician Jeffrey Lewis’s piece in the New York Times making essentially the same points:

Negativeland’s positivity

I’ve written before here about Girl Talk.  As I wrote then, Girl Talk’s music, which consists entirely of the weaving together of samples from other recording artists, is a direct challenge to a legal and business regime that  has treated as theft any sample of any recording without permission, regardless of the size of the sample and regardless of the appropriating work’s origniality.  

Long before Girl Talk, however, came Negativeland, doing the same thing and, unlike Girl Talk, articulating intelligently along with the music the theoretical justifications for its methods.  Here, as post-modern as it gets, is Negativeland’s “No Business”:

Negativeland’s art can lead to amusing ironies.  including its confrontation with U2 or, rather, as they found out later, when they actually ran into U2′s Dave Evans (a/k/a “The Edge”), U2′s record company, which had never actually consulted with the members of U2 before taking legal action that wiped Negativeland’s “U2,” a tape collage satire of U2′s “I Still Haven’t Found What I’m Looking For,” off the face of the earth.

One may not agree with Negativeland’s stance (and they can go on about it), but it is a thoughtful and undeniably compelling one, as this excerpt one of their essays should begin to make clear:

We think it’s about time that the obvious esthetic validity of appropriation begins to be raised in opposition to the assumed preeminence of copyright laws prohibiting the free reuse of cultural material. Has it occurred to anyone that the private ownership of mass culture is a bit of a contradiction in terms?

. . . We are now all immersed in an ever-growing media environment — an environment just as real and just as affecting as the natural one from which it somehow sprang. Today we are surrounded by canned ideas, images, music, and text. . . .  Most of our opinions are no longer born out of our own experience. They are received opinions. Large increments of our daily sensory input are not focused on the physical reality around us, but on the media that saturates it. As artists, we find this new electrified environment irresistibly worthy of comment, criticism, and manipulation.

The act of appropriating from this media assault represents a kind of liberation from our status as helpless sponges . . . . Appropriation sees media, itself, as a telling source and subject, to be captured, rearranged, even manipulated, and injected back into the barrage by those who are subjected to it. Appropriators claim the right to create with mirrors.

Our corporate culture, on the other hand, is determined to reach the end of this century while maintaining its economically dependent view that there is something wrong with all this. . . .

Our cultural evolution is no longer allowed to unfold in the way that pre-copyright culture always did. True folk music, for example, is no longer possible. The original folk process of incorporating previous melodies and lyrics into constantly evolving songs is impossible when melodies and lyrics are privately owned. We now exist in a society so choked and inhibited by cultural property and copyright protections that the very idea of mass culture is now primarily propelled by economic gain and the rewards of ownership. . . .

. . . That being the case, there are two types of appropriation taking place today: legal and illegal. So, you may ask, if this type of work must be done, why can’t everyone just follow the rules and do it the legal way? Negativland remains on the shady side of existing law because to follow it would put us out of business. Here is a personal example of how copyright law actually serves to prevent a wholly appropriate creative process which inevitably emerged out of our reproducing technologies.

In order to appropriate or sample even a few seconds of almost anything out there, you are supposed to do two things: get permission and pay clearance fees. The permission aspect becomes an unavoidable roadblock to anyone who may intend to use the material in a context unflattering to the performer or work involved. This may happen to be exactly what we want to do. Dead end. Imagine how much critical satire would get made if you were required to get prior permission from the subject of your satire? The payment aspect is an even greater obstacle to use. Negativland is a small group of people dedicated to maintaining our critical stance by staying out of the corporate mainstream. We create and manufacture our own work, on our own label, on our own meager incomes and borrowed money. Our work is typically packed with found elements, brief fragments recorded from all media. This goes way beyond one or two, or ten or twenty elements. We can use a hundred different elements on a single record. Each of these audio fragments has a different owner and each of these owners must be located. This is usually impossible because the fragmentary nature of our long-ago random capture from radio or TV does not include the owner’s name and address. If findable, each one of these owners, assuming they each agree with our usage, must be paid a fee which can range from hundreds to thousands of dollars each. Clearance fees are set, of course, for the lucrative inter-corporate trade. Even if we were somehow able to afford that, there are the endless frustrations involved in just trying to get lethargic and unmotivated bureaucracies to get back to you. Thus, both our budget and our release schedule would be completely out of our own hands. Releases can be delayed literally for years. As tiny independents, depending on only one release at a time, we can’t proceed under those conditions. In effect, any attempt to be legal would shut us down.

So OK, we’re just small potato heads, working in a way that wasn’t foreseen by the law, and it’s just too problematical, so why not just work some other way? We are working this way because it’s just plain interesting, and emulating the various well-worn status quos isn’t. How many artistic perogatives should we be willing to give up in order to maintain our owner-regulated culture? The directions art wants to take may sometimes be dangerous, the risk of democracy, but they certainly should not be dictated by what business wants to allow. Look it up in the dictionary — art is not defined as a business! Is it a healthy state of affairs when business attorneys get to lock in the boundaries of experimentation for artists, or is this a recipe for cultural stagnation?

Ruling Imagination: Law and Creativity

Collaborative Writing and Creativity

Legal writing is collaborative and built on appropriations from earlier legal writing. Does that mean it is not original? Take for example a judicial opinion written by a high appellate court. The judicial opinion is not the original work of the wise and creative judge pronouncing from on high. Rather, the opinion itself is a piece cobbled together from a number of other sources that include the lawyers’ written and spoken legal arguments to the court, the opinions rendered by the lower courts (which themselves appropriated the legal arguments made by lawyers to them), secondary legal sources, and earlier opinions that were themselves built up from the bits and pieces floating through the legal discourse community. Nevertheless, conventional legal thinking has since at least the 19th Century propounded the notion of the judge as quintessentially Romantic author-creator.

Increasingly it is being recognized that all writing is to some degree collaborative

In short, legal writing is quintessentially collaborative and full of unattributed appropriations of texts, ideas, and forms. My work in this blog will be in part, I think, two-fold: (1) to convince you that such writing is, despite its mongrel nature, fully original, and (2) to convince you that what you consider the most original writing is, in fact, far more collaborative and appropriative than you have previously considered.

In short, I hope to examine what creativity really is and to convince you it is not typically, if ever, the inspired product of an isolated genius.