We have a responsibility, as artists, to fight for better conditions.

Ai Weiwei, the co-designer of China’s Olympic stadium and target of Chinese government repression, on the duties of artists:

“We have a responsibility, as artists, to fight for better conditions. I see freedom and justice as basic, fundamental rights for everyone. I’m just in this position to make my voice heard.” He acknowledges that his fame, and friends around the world, afford him that ability. “But there are a million people like me in China. I don’t think they can stop us all.”

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

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

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

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

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

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

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

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

It does not state:

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

You need to understand your teacher’s interests; a librarian’s job is necessarily one that requires a narrow view of copyright.

Lawyers know someone can be very clear and compelling — and even dead-on accurate about his client’s legitimate view of the world — without telling the whole truth.

A librarian sent the video available from the Copyright Clearance Center at this link to my colleague Carolyn Jack, explaining that it explains copyright in a “clear and engaging way.”  There’s no doubt she’s right about that.  It’s very well done.  But it is very much a librarian’s take on copyright.  Librarians control access to scholarship in print and behind subscription-only paywalls. They certainly can’t bypass those paywalls simply by re-posting material, which seems to be a practice the offending librarian is surprised to learn is a problem.  Moreover, a librarian’s job is to maintain and ease access to the material in the library.  There may be ways portions of the material are republished to create more useful means of finding and accessing them, but it would be difficult to imagine those methods would risk infringement.  Plainly, though, the sheer volume and value of the material in a librarian’s control and the need to educate a library’s users on not abusing it is going to make librarians very risk averse.

Therefore, this video leans heavily on the side of copyright holders. That’s not to say it’s inaccurate (and it’s very well done), but one has to walk away from it thinking using copyrighted works is rarely okay. It certainly doesn’t even allude to “transformative uses,” and, while accurate, it’s gloss on fair use is so cursory (and the subject
so complex) that one can’t walk away from it with an idea of what would be fair use. It definitely is a librarian’s piece — their interests are in making sure nothing is done wrong. I don’t blame them; I’m just not sure that the video in the end does much more than say, “Be careful, and when in any doubt don’t do it.” I’m not sure that’s useful to, say, artists or those who would comment on the laws of copyright, among others.

Thus, I don’t think this video does what the Copyright Clearance Center, according to the librarian who sent the video to Geniocity, claims it is doing: “CCC is making the video available for free for anyone who wants to use it for educational purposes. Since corporate librarians are so often called on to educate folks on copyright matters, we thought you’d be interested . . . .”

ADDENDUM: Context is everything, and I want to note the very valid comments a couple of librarians have added to this post.  Larisa points out that librarians are dedicated to providing, not restricting access to information, and suggests that my critique might be better aimed at “corporate” rather than public librarians.  Rob emphasizes both the quality of the video (it teaches someone with no knowledge of copyright an awful lot in 6 minutes) while acknowledging the issues such a brief introduction inevitably leaves hanging.  He’s worth quoting in his entirety:

Your comments are eminently reasonable in respect of this well-done video and its brevity. While incompletely exploring the issue of Fair Use, in the range of most modern-day attenition spans, it does provide a basic grounding in copyright for the unititated in organizations and institutions(i.e. most corporate executives and their respective staffs, a majority of faculty).

In addition, it engagingly presents an opportunity to raise questions such as those here: archivist? preservationist? public/academic/corporate librarian? Fair use? – and presents ample opportunity for informed and intelligent discussion among those suitably interested.

Finally, one cannot come away from the 6+ minutes of this charming video without being forever better informed than 6 minutes previously. How many things have we seen or heard lately about which we can say that? Too few, I’d wager.

Oppositional figures?

Art and law are ways of exploring, defining, and even creating the world. They are also often romanticized as methods of expressing opposition — opposition to the ruling order, opposition to the status quo, opposition to conventional wisdom. Princeton will soon be hosting a symposium on The Art of Opposition. The promotional materials state:

Throughout history artists have created works as a form of opposition, whether to a dominant political order or to familiar social mores and conventions. This polemical mode of conceiving and interpreting art continues: artists frequently present their own work as a challenge to the status quo, while scholars and critics of contemporary art reinforce the notion that for art to be relevant it must at some level present a critique of prevailing habits and attitudes. For art historians, the concept of art as a form of protest or a challenge to established convention remains a frequent point of departure for research, particularly in relation to certain artists or in the study of specific historical junctures.

Art too, of course, has a long history of reinforcing the status quo, of glorifying the powers-that-be. Virgil’s Aeneid is at least in significant part pro-Augustan propaganda. And you don’t exactly find the world’s greatest art (or most art) in the more pedestrian places. Patronage has its price.

Law as well has its long history of opposition. Our entire system of litigation is founded an adversarial process. More to the point, however, lawyers have often been at the forefront of progressive social movements. As in the case of artists, however, it is not skill and creativity that frees one from the mass of humanity, or even from the forces that crush the most noble parts of humanity. It is the use to which one puts that skill and creativity.