If you think lawyers lifting other lawyers’ language is proof lawyering is easy, you know nothing about true creativity.

There’s always the danger that when someone suggests that genuine creativity can and is built from earlier creative works that someone else will believe the implication is that creativity is no big deal. If I feel I can cut-and-paste from other lawyers’ works then lawyering must be nothing but a cut-and-paste job, right?

It’s not as if I’ve never dealt with these matters for real, as if I’m dealing with it from an academic perspective “unsullied” by the realities of practice. A client who retained me to draft a contract for him once said to me, after we’d spent a considerable amount of time discussing the details of his deal, “It’s all boilerplate, right?”

I responded, “I don’t do boilerplate. Every deal is different, and if you know the lawyer who’s done exactly your deal before and you’re confident the contract he wrote then is just fine for you, go hire him.”

Which isn’t to say I didn’t review a lot of other contracts or that I didn’t lift language from those other contracts. I did. I took a line or two from this one, a paragraph from that, another line from another, etc. And I put those things all together with my notes, shuffled things around, revised a lot of the language I’d lifted from other sources, wrote far more language necessary to express what was necessary to express this particular deal, worked and reworked, checked and rechecked, revised and revised, and at the end I had a document that set forth the client’s deal in all its precision, breadth, and ambiguity. It wasn’t boilerplate at all. But were there lines and even, perhaps, a paragraph lifted from other contracts? Of course.

I obsess about these matters in part because there is terrible confusion about what genuine creativity (in art, music, literature, the practice of law or a myriad of other endeavors) is. The confusion arises because, I believe, there is so much money at stake in the legal and rhetorical wars over copyright. So there are a lot of people who will look at Shepard Fairey’s Obama Hope poster and the photo Fairey used as the poster image’s source, and write things like the following:

Any director, writer or actor interested in making long-term money in the entertainment industry should be calling Fairey what he is: A plagiarist.

While I recognize the attitudes underlying these views — no one else is entitled to make a buck from my work! — the blindness to the creativity involved, even acknowledging the appropriation, is astounding. I’ve gone on at length about my view on this, but no one can deny that Fairey’s poster had a profound resonance and impact during the 2008 presidential campaign, and no one can suggest that the poster would have had any similar impact if the original photo had appeared on the poster rather than Fairey’s reworking. So how can anyone possibly suggest the level of creativity in the poster wasn’t profound?

The KLF “were one of the seminal bands of the British acid house movement during the late 1980s and early 1990s.” Their relevance here is that, “despite their protestations of 1988 about not wishing to be seen as crusaders for sampling, the [KLF] continue to be associated with the cultural movement which retrospectively bundles together those literary and artistic works that make use of ‘creative plagiarism’. 1987: What the Fuck Is Going On? is considered a landmark work in the early history of sampling music in the United Kingdom.” Their #1 British hit, “Doctorin’ the Tardis” “is predominantly a mash-up of the Doctor Who theme music, Gary Glitter’s ‘Rock and Roll (Part Two)’ with sections from ‘Blockbuster!’ by Sweet and ‘Let’s Get Together Tonite’ by Steve Walsh.”

Jimmy Cauty and Bill Drummond — who were the KLF — are also very smart fellows. Among a never-ending series of creative works in a wide range of media, they wrote The Manual: How to Have a Number One the Easy Way, which I’ve heard some describe as a cynical con job but that is far more intelligent and complicated than that. On the one hand, The Manual explains

Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality. In the past, most writers of songs spent months in their lonely rooms strumming their guitars or bands in rehearsals have ground their way through endless riffs before arriving at the song that takes them to the very top. Of course, most of them would be mortally upset to be told that all they were doing was leaving it to chance before they stumbled across the tried and tested. They have to believe it is through this sojourn they arrive at the grail; the great and original song that the world will be unable to resist.

But Drummond and Cauty are not accusing successful musical artists of being “mere plagiarists.” They recognize that even if a song can be broken down into bits and pieces of other songs, there is real genius in great pop music:

So why don’t all songs sound the same? Why are some artists great, write dozens of classics that move you to tears, say it like it’s never been said before, make you laugh, dance, blow your mind, fall in love, take to the streets and riot? Well, it’s because although the chords, notes, harmonies, beats and words have all been used before their own soul shines through; their personality demands attention. This doesn’t just come via the great vocalist or virtuoso instrumentalist. The Techno sound of Detroit, the most totally linear programmed music ever, lacking any human musicianship in its execution reeks of sweat, sex and desire. The creators of that music just press a few buttons and out comes – a million years of pain and lust.

Lewis Hyde makes a similar point in Common as Air, the new book that was the starting point for my exploration the other day of lawyerly “plagiarism”:

“Intellectual property” is the phrase now used to denote ownership of art and ideas, but what exactly does it mean? Does it make sense, to begin with, to say that “intellect” is the source of the “properties” in question? A novel like Ulysses, the know-how for making antiviral drugs, Martin Luther King, Jr’s “Dream” speech, the poems of Rimbaud, Andy Warhol screen prints, Mississippi Delta blues, the source code for electronic voting machines: who could name the range of human powers and historical conditions that attends such creations? All that we make and do is shaped by the communities and traditions that contain us, not to mention by money, power, politics, and luck. And even should the artist or scientist think she has extracted herself from the world to stand alone in the studio, a tremendous array of faculties and mind- states may well attend her creativity.

There is intellect, of course, but also imagination, intuition, sagacity, persistence, prudence, fantasy, lust, humor, sympathy, serendipity, will, prayer, grief, courage, visual acuity, ambition, guesswork, mother wit, memory, delight, vitality, venality, kindness, generosity, fortitude, fear, awe, compassion, surrender, sincerity, humility, and the ability to integrate diametrically opposed states of mind into harmonious wholes . . . We would need quite a few new categories to fully map this territory — “dream property,” “courage property,” “grief property” — and even if we had that list, only half the problem would have been addressed.

Do you want a great lawyer? You can have one even if he cuts-and-pastes the work of other lawyers into his work. But please — don’t believe for a second that means that lawyering can be reduced to cutting-and-pasting. Lawyering requires as much creativity as any endeavor on earth — if I didn’t believe that why would I write a blog devoted to law and creativity? And creativity is infinitely more complex a matter than tracking down the bits and pieces that make up the creative work. It requires the imagination necessary to find those bits and pieces, the vision to understand how to select and fit them together to due the present job, the skill borne of years of work to write in the stuff that can’t be found anywhere else and without which those bits and pieces would be just a bunch of crude boilerplate that doesn’t fit well into any specific situation at all, the passion and energy necessary to do the work to bring all this stuff together, the courage to stick to one’s vision even as one’s adversary is insisting you’re wrong, the delight without which the strength to do all of these difficult things would be impossible to muster, the generosity of spirit that can identify a client’s problems as your own, and a million other things.

So don’t you dare suggest that taking some language that is useful for doing the job that needs to be done from another lawyer is evidence lawyering is like putting together tinker toys.

Plagiarizing about Plagiarism

You could write a column entitled “When it comes to songwriting, there’s a fine line between inspiration and plagiarism” any day of the week, and I believe I have, though I only stole the idea from the KLF (or Negativland or Bob Dylan, or Jim Jarmusch or Jonathan Lethem or David Shields or  David Markson or Shepard Fairey or . . . )

If Girl Talk does get sued, I’d love to represent him.

Greg Gillis and I see things very similarly, and I”m a big fan too:

It’s not where you take things from—it’s where you take them to.

From Jim Jarmusch’s Golden Rules, which are about film making but have an awful lot of relevance to the practice of law:

Rule #1: There are no rules. There are as many ways to make a film as there are potential filmmakers. . . . Therefore, disregard the “rules” you are presently reading, and instead consider them to be merely notes to myself. One should make one’s own “notes” because there is no one way to do anything. If anyone tells you there is only one way, their way, get as far away from them as possible, both physically and philosophically.

Rule #2: Don’t let the fuckers get ya. They can either help you, or not help you, but they can’t stop you. . . .

Rule #3: The production is there to serve the film. The film is not there to serve the production. . . .

Rule #4: Filmmaking is a collaborative process. You get the chance to work with others whose minds and ideas may be stronger than your own. . . . [T]reat all collaborators as equals and with respect. A production assistant who is holding back traffic so the crew can get a shot is no less important than the actors in the scene, the director of photography, the production designer or the director. Hierarchy is for those whose egos are inflated or out of control, or for people in the military. Those with whom you choose to collaborate, if you make good choices, can elevate the quality and content of your film to a much higher plane than any one mind could imagine on its own. If you don’t want to work with other people, go paint a painting or write a book. . . .

Rule #5: Nothing is original. Steal from anywhere that resonates with inspiration or fuels your imagination. Devour old films, new films, music, books, paintings, photographs, poems, dreams, random conversations, architecture, bridges, street signs, trees, clouds, bodies of water, light and shadows. Select only things to steal from that speak directly to your soul. If you do this, your work (and theft) will be authentic. Authenticity is invaluable; originality is nonexistent. And don’t bother concealing your thievery—celebrate it if you feel like it. In any case, always remember what Jean-Luc Godard said: “It’s not where you take things from—it’s where you take them to.”

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

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

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

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

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

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

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

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

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

Decisions rendering the photograph a protectable “intellectual invention” included: the posing and arrangement of [the subject] “so as to present graceful outlines”; the selection and arrangement of background and accessories; the arrangement and disposition of light and shade; and the evocation of the desired expression. Courts today continue to hold that such decisions by the photographer–or, more precisely, the elements of photographs that result from these decisions–are worthy of copyright protection. See, e.g., Rogers v. Koons (”Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”) (citations omitted). Meshwerks v. Toyotoa Motor Sales, Inc. ( 10th Cir. 2008).

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

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

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

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

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

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

Mark Twain on invention

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

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

Ideas, originality, and copyright. Coldplay accused of infringement again.

One of these days we’ll learn what the KLF long ago tried to teach us about pop music: “Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality.”

Let’s get a basic point straight: copyright does not protect an idea. As the U.S. Copyright Office puts it: “Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section ‘What Works Are Protected.’”

So it may be true, as Consequence of Sound reports, that “just days after settling with Joe Satriani over plagiarism allegations, [Coldplay] is now being accused of copyright violations by UK musician Andy J. Gallagher for borrowing from Gallagher’s “Something Else” video with their video for ‘Strawberry Swing.’” But being accused of copyright violations and having those accusations deemed worthy of anything other than contempt are two entirely different things. As the Guardian explains, “there’s no doubt that [Gallagher's] and Coldplay’s music videos offer ‘an awful lot of similarities’. Or rather, one big similarity: they both show people interacting with animated chalk-boards.” And it may even be true that, as Gallagher complains, it seems “less than fair that [Coldplay's] video will win numerous awards and receive industry praise when [Gallagher's] director Owen Trevor had the idea the year before.”

But the answer is: so what? You cannot copyright the idea of a video involving people interacting with animated chalk-boards. As the producers of Coldplay’s video point out (pdf), the idea was hardly original with Gallagher. Nor do they claim originality; rather, they claim to have worked hard at making the Coldplay video:

We’re aware of those videos, and I don’t wish to denigrate them, but we thought there was more mileage in the technique than they had explored. We never claim to be original, just rigorous. So we wrote a story we thought would be entertaining and went about making it. It was a lot of hard work.

The specific video they produced may be original, but it hardly precludes anyone else from making videos involving people interacting with animated chalk boards.

Negativland was way ahead of Girl Talk, and still is.

On September 2, I will have the honor of being part of a seminar, sponsored by the Arts Network of the Council on Smaller Enterprises (COSE), that “will feature a multimedia presentation by independent musician, arts activist and “citizen lobbyist” Mark Hosler from Ashville, North Carolina. Mr. Hosler, well known [as one of the founding members of] the band Negativland for his experiences fighting legal battles over copywright, intellectual property and fair use in art and music, will present a mixed media lecture about his first hand experience with these topics.” Negativland was way ahead of Girl Talk. Holser’s encounters with the inanities of copyright law are legendary and illustrative. Most importantly, Holser is remarkably articulate on these issues. Negativland’s entire site is worth a visit; here is one of Holser’s most recent writings:

From our 28 years of being creators, observers, and consumers of music, art, and video, our group, Negativland, has witnessed incredible and wonderful shifts in the ways that the public is now able to create and distribute new work via digital technologies. We’ve also witnessed amazing changes in the way that money and corporate power has increasingly influenced policy, Congress, and the laws of our nation. At times, these changes are good. At other times, as I am sure you know, they benefit no one except the businesses lobbying you. We are concerned when this does not serve the public interest.

We believe that the healthy evolution of art and creativity has more value than simply counting how much money is lost or made. Art, science and technology have evolved because of how we all build upon the ideas and works of those who came before us. Copyright was always intended as a balancing act between giving ownership to creators so as to provide incentive to create new works, and allowing works to lapse into the public domain so that new ideas could develop. But our founding fathers could never have imagined the kind of world we live in today and the amazing new technologies that we are surrounded with – technologies that encourage and inspire us to interact with the world and create in unprecedented new ways. Protecting the author of a creative work is a good thing, but the benefits of copyright have been thrown off balance by the disproportionate influence of those with the most money. In fact, the more recent expansions of our nations copyright laws represents a break from our nations past and from the intentions of our own Constitution.

Did you know that copyright originally lasted only 14 years, and then all work fell into the public domain? The limit now is 70 years plus the life of the creator, meaning that nothing made in our lifetimes will fall into the public domain. This does not strike us as a very good public good. Even patents, which govern everything from industrial processes to pharmaceuticals, are given only a 20 year period before other manufacturers have access to them and this system seems to have done nothing to discourage innovation, creation, and especially remuneration in the fields of science and technology with this relatively short time span.

But art is neither science nor technology. Why make art out of things originated by others? We think that unless one is lucky enough to live on a remote island somewhere, we all live in a world surrounded by news, music, movies, ads, logos and messages. We are, quite literally, bombarded with media. It has always been a part of human nature to make art in response to and using material from the world around us. Nowadays, anyone with a small computer can easily make, remake, slice, dice, mix, and remix from any electronic media they can get their hands on. And because we can, we often do. Besides being fun, this kind of work creates a new type of cultural “conversation” that we can all have with the media around us, a conversation that we believe is healthy for a vibrant democracy that aspires to true freedom of speech.

Copying has gone on in art and music throughout the ages, from “quoting” in classical music compostions, to homage and parody. In much of the last century, these “appropriation” practices were the province of the avant-garde and the fine art world. But with the Internet, the ever-growing speed of computing, YouTube, MySpace, file-sharing, and other recent developments, they have now moved wholly and firmly into the mainstream. And yet our laws strive to criminalize all of this behavior. Ours is a world in which copyright has fallen woefully behind the curve of what the public actually wants to do with all that digital “stuff” out there. Millions world wide are creating art, music and video that incorporate elements of existing work – cutting and pasting bits and pieces of music, video, text, and pictures made by others to create new works. Millions of web pages now use various Creative Commons licenses to provide a nuanced alternative to traditionally black and white interpretations of copyright laws (one such license Negativland helped to write). The prevalence of these alternative copyright strategies is a testament to how many of your constituents are not at all happy with copyright as it stands now.

At this juncture, we feel it’s necessary to point out that we support artists and creators being paid for the work they produce. We believe copyright was correctly intended as a judicious balance between providing for the creator as well as providing for the public commons, a balance which Negativland believes has been largely forgotten by the big businesses who produce and sell most media and entertainment. And we should also mention that all this creative re-use of material rarely if ever puts new work in economic competition with its sources. It does not pose any reasonable economic threat to the original source in any marketplace that they share. In an ideal world, Negativland would like to see the notion of Fair Use expanded to accommodate, accept, and protect these new practices.

We are very confused about the difference between similarity and illicit copying. Down Under and Kookaburra this time.

Another in a long line of this type of case: Larrikin Music is suing for compensation from royalties earned by Men at Work, alleging that the distinctive flute riff in “Down Under” was copied from the refrain of a 1934 children’s tune, “Kookaburra Sits in the Old Gum Tree.” As I suggest in the post liked to above (as well as many others on this blog), one has to ask these questions: Do our markets reward plagiarism, or are we confused in believing that an artist or author only has rights in his work if his work is unique? And if an artist does have rights to work that is derivative (as I believe most creative work is), don’t appropriators (collage artists, musicians who create “aural collages” by weaving together samples of copyrighted recordings) also have rights in their works?

John Lennon: an original, or a remixer? Or are they really the same?

Robert Johnson made no deal with the devil; he listened to and learned from his colleagues.

In “Beyond Authorship: Refiguring Rights in Traditional Culture and Bioknowledge,” the Case Western Reserve University English Department’s Authorship Collaborative (building on the work of my colleague and friend Martha Woodmansee) explains that the prevailing view of an author as the originator of new works is a relatively recent phenomenon arising out of the Romantic Movement and its view of an artist as someone uniquely inspired. This view of authorship stands in stark contrast to an older view becoming new again in today’s remix cutlure — a view that creative endeavors are derivative and collaborative, that originality is not the product of isolated genius but of, well, remixing:

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.” This notion is so firmly established that it persists and flourishes even in the face of contrary experience. Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary. This individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than two centuries ago in the heroic self-presentation of Romantic poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but in a new, unique — in a word, “original” — work which, accordingly, may be said to be the property of its creator and to merit the law’s protection as such. See Martha Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’”; reprinted in Woodmansee, The Author, Art, and the Market, 35-55.

The post I referred to yesterday by Rene Kita noted the tension between the collaborative nature of creation and the Romantic notion of authorship in connection with the Blues: “[Y]ou may ‘create’ a new instance of The Blues by shuffling the notes and words around by a set amount. Shuffle too little and you’re in trouble with the law. Shuffle too much and the purists start screaming rape.”

My former colleague Olufunmilayo B. Arewa makes the point in much greater depth in “Seeing but not Hearing Music: How Copyright Got and Didn’t Get the Blues,” a working paper she recently presented at the recent Conference on the 100th Anniversary of the 1909 Copyright Act. Arewa focuses on Robert Johnson, the musician who remained largely obscure until decades after his death he became known as the greatest and quintessential Blues musician. In Arewa’s view, Johnson is an archetypical example of the way the Romantic view of authorship promotes individual genius over cultural context:

Commentators have so elevated Johnson by using classic language associated with Romantic author discourse that emphasizes the unique genius of Johnson’s compositions. Romantic author discourse has generally played an important role in defining who constitutes an “author” for copyright purposes in part by emphasizing the unique and genius-likecontributions of individual creators. Romantic author assumptions are a primary mechanism by which borrowing and collaboration in creation are minimized or even denied. This vision of authorship has significantimplications for the application of copyright to blues music. The collaborative nature of blues musical composition does not lend itself very well to Romantic author characterizations. In blues practice, the combination of individual performers crafting material from a collaborative tradition is a difficult one from the perspective of current assumptions about creation in copyright. Later romanticization of his musical creations aside, Robert Johnson falls firmly within a blues tradition characterized at least in part by repetition and reuse of existing music and lyrics as a core aesthetic. [Charles Ford, "Robert Johnson's Rhythms", 17 Popular Music 71, 88 n. 57 note 57, at 88 (noting that Johnson borrowed and pasted-in materials much like his predecessors and shaped his pieces into unique and autonomous forms)].The divergence between Robert Johnson’s actual musical practice and later characterizations of both the nature and musical practices underlying his “musical genius” is thus significant. (footnotes omitted)

Why, then, did Robert Johnson, who in Arewa’s view was likely of a piece with an entire genre to African American audiences in the 1920s and 1930s, become known as a genius among musicians comparable to the way Shakespeare is viewed among writers? Because a bunch of white British musicians in the 1960s listened to his recordings and heard something they genuinely had never heard before. In other words, as Arewa explains, perceiving originality in the Romantic sense is more a matter of being ignorant of sources and influences than it is of genuinely discovering independent genius:

Conceptions of Robert Johnson’s work highlight the context dependent nature of notions of originality. Originality is yet another characteristic of copyrightability that is not always easy to delineate in actual contexts of creation. However, what might seem original to those in one context may not seem as original in other contexts. Consequently, within the context of African American audiences of the 1920s and 1930s, Johnson’s work probably did not seem startlingly original in the way that it did to British and other musicians and audiences listening to Johnson’s music, often in relative isolation, in the 1950s and 1960s. This later audience was largely removed from the original context of other music that was prevalent at the time Johnson produced his music or able to listen to a limited and likely biased sample of such music. For early African American blues listeners, what seemed original and
interesting was very different that what seemed interesting and original to the largely white blues fans that were the major force behind the blues revival in the 1950s and 1960s. For the latter, romantic conceptions about the blues were closely tied to notions of authenticity that are often unsuited to musical creation in living musical traditions. As a result, what is perceived as original may depend in significant part on the contexts within which listeners hear music. (footnotes omitted)

Don’t believe it? Here’s a song by Charlie Patton (1891-1934) and one by Robert Johnson:

Lessig’s Conversation of Remix – fair use? Warner Music doesn’t think so.

Lawrence Lessig’s lecture on remix culture, posted to YouTube, was the subject of a DMCA takedown notice by Warner Music. As Lessig explains, “Apparently, YouTube’s content-ID algorithm had found music in the video that they claimed ownership to.” The uploader’s protest to the takedown notice was apparently successful, which reinstates the video while Google reviews the legitimacy of the fair use claim against Warner Music’s copyright infringement claim.  Lessig’s blog post, along with the entirety of his lecture, is here.  Below is the segement that was blocked and is, for now, restored:

Here’s more on DJ Danger Mouse’s Grey Album. And more on Girl Talk here, here, and here.

There still is nothing new under the sun. So what is originality?

Is Coldplay original? As Paste reports, “Back in December, . . . guitarist Joe Satriani was accusing Coldplay of plagiarizing his song, “If I Could Fly,” with their undeniably catchy, monster hit, “Viva La Vida.” Coldplay has now responded, claiming Satriani’s song is not original enough to be infringed. Of course, Satriani’s lawyer disputes the legitimacy of this defense:

Coldplay and its lawyers saying Satriani’s song doesn’t even deserve protection because it “lacks originality.” So, they’re basically saying that because the song blows in the first place, it doesn’t deserve shielding of the law. Fair enough.

But that’s a straw man’s argument, says Satriani’s lawyer Howard E. King, replying that this sort of response is “typical” in copyright infringement cases. According to King, Satriani would like this matter settled out of court, but Coldplay isn’t ready to budge.

It is not, of course, the first time Coldplay has been accused of stealing the tune to Viva la Vida, and it is not the first time Coldplay’s apparent plagiarism has been explained as the coincidental replication of a common pool of pop music moves. Because we so worship the creative artist, though, we tend to recoil from the idea that so much genuine artistry is merely the repackaging of formulas with which we are familiar and comfortable. The KLF, though, understood the formulaic foundation of pop music, publishing The Manual (How to have a Number One the Easy Way), a how to? guide to the method they used to construct British pop hits. As they explained:

Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality. In the past, most writers of songs spent months in their lonely rooms strumming their guitars or bands in rehearsals have ground their way through endless riffs before arriving at the song that takes them to the very top. Of course, most of them would be mortally upset to be told that all they were doing was leaving it to chance before they stumbled across the tried and tested.

Thus, they instructed the pop star wannabe:

The first of the component parts you are going to need to find is the irresistible dance floor groove.

Before we go any further we had better define “groove”. It is basically the drum and bass patterns and all the other musical sounds on the record that are neither hummable or singalongable to. . . .

Black American records have always been the most reliable source of dance groove. These records down through the years have inevitably laid so much emphasis on the altar of groove and so very little into fulfilling the other Golden Rules that they very rarely break through into the U.K. Top Ten, let alone making the Number One spot. A by-product of this situation is that gangsters of the groove from Bo Diddley on down believe they have been ripped off, not only by the business but by all the artists that have followed on from them. This is because the copyright laws that have grown over the past one hundred years have all been developed by whites of European descent and these laws state that fifty per cent of the copyright of any song should be for the lyrics, the other fifty per cent for the top line (sung) melody; groove doesn’t even get a look in. If the copyright laws had been in the hands of blacks of African descent, at least eighty per cent would have gone to the creators of the groove, the remainder split between the lyrics and the melody. If perchance you are reading this and you are both black and a lawyer, make a name for yourself. Right the wrongs.

As the Authorship Collective in the English Department at Case Western Reserve explains (footnotes omitted):

With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-Europeans, artists working in traditional forms and genres, and individuals engaged in group or collaborative projects, to name but a few. Exposure of these exclusions — the recovery of marginalized creators and underappreciated forms of creative production — has been a central occupation of cultural studies for several decades. But the same cannot be said for the law. Our intellectual property law evolved alongside of and to a surprising degree in conversation with Romantic literary theory. At the center — indeed, the linchpin — of Anglo-American copyright as well as of European “authors’ rights” is a thoroughly Romantic conception of authorship. Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual property regime. In patent it survives today both in figurations of the inventor and in the emphasis, which this body of law shares with copyright, on the “transformative” moment in the creative process.

The Authorship Collective goes on to cite examples of “biopiracy,” the appropriation by pharmaceutical companies of native knowledge in medicinal plants. The companies then patent synthetic versions of the plants’ effective ingredients and profit from the sale of the “new” drug. For example:

The Hoodia cactus, native to South Africa, has recently come to the fore of the debate surrounding bioprospecting and intellectual property rights. The Hoodia cactus, native to the Kalahari Desert, has been used for centuries by the hunter-gatherer San speaking tribes of the region (in the past they were commonly referred to as “Bushmen”, although now this designation is recognized as being pejorative, inaccurate and outdated). The San peoples have long recognized the appetite suppressant qualities of the Hoodia cactus, and have traditionally chewed the stem to stave off hunger and thirst during long hunting expeditions in the desert. Scientists from the South African Council for Scientific and Industrial Affairs learned of the Hoodia’s properties and began to study the cactus. In scientific tests, animals given the cactus lost weight rapidly without any apparent negative side effects. According to scientists from the South African Council for Scientific and Industrial Affairs (CSIR), the Hoodia works by “mimicking the effect glucose has on the nerve cells in the brain, in effect telling us we’re full…thus curbing the appetite.” (http://news.bbc.co.uk/2/hi/programmes/correspondant/2947810.stm) Scientists at the CSIR dubbed the appetite suppressant molecule in the Hoodia “P57″. Recognizing the enormous potential market for the Hoodia outside South Africa, CSIR placed a patent on P57 and sold the licensing rights to an English biopharmaceutical firm, Phytopharm, in 1997. Phytopharm then sold the license to American pharmaceutical giant Pfizer for 25 million dollars. Throughout the whole process, however, the San peoples were completely unaware of what was occurring.

So, is Viva la Vida merely a reworking of old formulae? It sure seems it might be:

So maybe Coldplay is not a group of plagiarists; rather, it is a group of pop hacks working on tropes that the entire pop music industry since the 1950’s has stolen from elsewhere. Originality is a tricky thing. Just ask Shepard Fairey.

How creative does a work need to be to win the Brit Insurance Design Award?

The British Design Museum gave its Brit Insurance Design Award 2009 to Shepard Fairey for his Obama Hope poster. Nominations for the award were made by “a group of internationally respected design experts, curators, critics, practitioners, enthusiasts.”

Do you think the Design Museum considered Fairey’s poster a sufficiently creative transformation of the photograph from which it was derived to be a non-infringing fair use of the photograph? Do you think AP is spending its money wisely in challenging Fairey’s right to use the photograph?

Edward Morris: “Fairey is not plagarizing or stealing! Get with the program on appropriation art, ok!”

There is nothing new under the sun?

What is creativity? What is originality?

Is republication of Mark Cuban’s tweet on Twitter non-infringing? Almost certainly it is.

Mark Cuban asks:

Here is a question for all you legal scholars out there. Is a tweet copyrightable? Is a tweet copyrighted by default when its published ? Can there possibly be a fair use exception for something that is only 140 characters or less ?

Well, sure, a “tweet” might be protected by copyright. The more creative it is, the more powerful is the protection. Cuban wouldn’t be wondering whether a 140 character poem by William Carlos Williams could be protected by copyright.

The question would only come up, though, if the author of the tweet was claiming someone had infringed his copyright. If Cuban, for example, claimed ESPN were infringing the copyright in his tweet, I strongly suspect the use would be a non-infringing fair use. Nevertheless, my ultimate conclusion would require consideration of the specific message Cuban is talking about and application of the specific facts in dispute under the appicable analysis:

(1) What is the nature and character of the allegedly infringing use? The more creative it is in its own right or the more it is an instance of the type of expression protected by the First Amendment (journalism or political speech, for example), the more likely it is to be a non-infringing fair use. The fact ESPN, an outlet for sports journalism, would be transmitting the words of Mark Cuban, the owner of a sports franchise (the Dallas Mavericks of the NBA), makes it seem more likely ESPN is engaged in legitimate journalism . . . , but

(2) What is the nature of the copyrighted work? The more creative or journalistic or political the expression, the less likely use of it without permission will be fair use. And the fact the work is available anyway would cut in favor of ESPN’s use of it being a fair use. This factor is almost impossible to determine based on Cuban’s hypothetical question. There can be 140 words that are as creative and expressive as anything can be (think Shakespeare or William Carlos Williams), or the 140 words might be utterly an utterly generic report about facts Cuban is passing on, or the 140 words might be mostly lifted from someone else. So which way and how hard this factor would cut on this hypothetical is without examining the specific words difficult to tell. It is, nonetheless, difficult to believe much creativity would be produced by Mark Cuban in a tweet. Moreover, the fact Cuban has already transmitted it via Twitter to everyone that follows him indicates that he doesn’t have that strong an interest in controlling the use of the words.

(3) How much of the copyrighted work is taken? Assuming ESPN takes the entire 140 characters, I suppose this factor cuts against ESPN’s claim of fair use, but, of course, the brevity of the entirety (under factor 2) cuts in favor of fair use, so in the abstract the two factors nullify one another. This is one reason hypothetical questions are useful, but only of limited use, in answering legal questions. One can only take abstract hypotheticals so far. 140 characters written by Shakespeare in a play are probably very different than 140 characters written by Mark Cuban in a tweet, but they might not be.

(4) How much does the allegedly infringing work affect the market for the copyrighted work? Is there a market for Mark Cuban’s tweets? It’s hard to believe there might be.

In short, I’d advise Cuban to be very light-hearted and laid back about ESPN republishing his tweets. If he really thinks he’s got something so worthwhile he should have the exclusive right to its commercial value, he shouldn’t have put it out on Twitter in the first place.

Is Michael Murphy another Shepard Fairey?

Do you think that if we ever discover the photo from which Michael Murphy derived the image for this “shadow portrait” of Obama in urethane Murphy will be accused of copyright infringement?  I do, but I don’t think it’s infringement.

Shepard Fairey did not infringe AP’s copyright because AP could not have had a copyright in anything Shepard Fairey used in his Obama Hope poster.

I have discovered another reason Shepard Fairey did not commit copyright infringement when he stenciled AP’s photograph of Obama to begin the creation of his Obama Hope poster — nothing Fairey copied is even entitled to copyright protection.

In Meshwerks v. Toyotoa Motor Sales, Inc. (2008), the 10th Circuit Court of Appeals dismissed the copyright infringement case brought against Toyota by Meshwerks, which had created digital models of Toyota cars for use in Toyota’s advertising. (My friend and former student Brian Wassom was lead counsel for Toyota.) The digital models are useful because if the art director wants the position of car changed within a photo, the entire scene does not need to be re-shot.  All one needs to do is move the digital model around on a computer screen within the digital photograph of the background.  Thus, the Toyota Solara in the photograph to the right is likely a digital model of a Toyota Solara superimposed upon and moved within the photograph of the picturesque background.

The court noted the obvious difficulties of applying existing law to new technologies (a theme I hammer again and again), but found its solution in the ways, since the invention of photography in the 19th Century, courts have figured out how to determine what photographs (or what portions of photographs) are entitled to copyright progection.  Thus, the court explained that a photographer “is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” The court noted that it is these elements — the ones created by the photographer –  that are entitled to copyright protection:

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

There is nothing in the AP photographer arranged or posed in his photograph that Fairey copied in the Obama Hope poster. The image is a stock wire service photograph shot in the midst of a presidential campaign.  It is so unworthy of note that it was many months after the Obama Hope poster became a sensation that anyone even identified the photograph as Fairey’s original source (and it was neither AP nor the photographer who made that identification). In short, Fairey’s poster duplicates nothing that was original enough in the first place to merit copyright protection. There is likely no copyrightable material in the photograph, in fact, that he could have infringed.

ADDENDUM: Brian Ledbetter suggests in the comments that my argument is that “none of the elements in the AP photograph are ‘copyrightable.’”  That is certainly not what I am arguing.  Rather, I am arguing that none of the elements Fairey copied in his poster were copyrightable.

Fairey’s poster was not a copy of the photograph.  It used one element, the angle of Obama’s face, and changed everything else from the photograph.  I doubt the choice of the angle was a creative choice on the part of the photographer. First, I would be surprised if the angle was not forced on him by the place the photographic pool was required to be, and, second, the angle is so generic that I can hardly imagine it represents the kind of creative decision that amounts to originality. If Fairey had simply painted a copy of the photograph, I’d agree that it was an infringement.  But he didn’t.  He changed everything except the angle of the head.  And surely the choice of subject matter for the photograph was not a creative one.

As William Patry points out in his treatise (Patry on Copyright, section 3:18) “In most cases, the photographer chooses a particular subject and either poses the subject or selects the angle and lighting from which to best capture the subject.” But that often is not the case. In Time, Inc. v. Bernard Geis Associates, Abraham Zapruder, a Dallas dress manufacturer, was taking home movie pictures with his camera, when, by sheer happenstance, he captured President Kennedy’s assassination on film. In a challenge to the pictures’ copyrightability, the court rejected the defendant’s claim that the photographs were “news,” observing that “if Zapruder had made his pictures at a point in time before the shooting, he would clearly have been entitled to copyright.”

What is copyrightable in the AP photograph includes things like “the selection of lighting, shading, timing, angle, and film.” Leigh v. Warner Bros., Inc,  (11th Cir. 2000). As I wrote above, the only one of these elements one could conceivably say that Fairey copied is the angle, and that angle is so ordinary a perspective and so unlikely to have been chosen specifically by the photographer that I cannot imagine what Fairey copied that was copyrightable.

ADDENDUM II: Fairey was interviewed by Terry Gross on Fresh Air.  From the interview:

Mr. FAIREY: Well, the AP was threatening to sue me, and they first contacted me and said, you know, let’s figure out how to work this out amicably, which I was vey open to and said, you know, I’m glad to pay the original license fee for the image. For all the reasons I’ve already given you, I didn’t think that I needed to, but I’m glad to do it because, you know, I’d rather just make this easy for everyone.

And then they said no, we want damages. And then they ran a piece in the National Press basically saying I stole the photo, which as an artist that works from references frequently, you know, I feel that they’re calling into question the validity of my method of working as well as the hundredsif not thousands of other artists that made grassroots images for Obama working in a similar way, or people that made things, you know, against the Bush agenda that had a likeness of him. These are all things that were created by people who probably don’t have the resources to license an image.

Mark Twain: we are sewing machines re-weaving old threads.

Mark Twain on “originality”:

Old Man: Whatsoever a man is, is due to his make, and to the influences brought to bear upon it by his heredities, his habitat, his associations. He is moved, directed, commanded by exterior influences – he originates nothing, not even a thought.

* * *

Old Man: Shakespeare created nothing. he correctly observed, and he marvelously painted. he exactly portrayed people whom g-d had created; but he created none himself. let us spare him the slander of charging him with  trying. Shakespeare could not create. he was a machine and machines do not  create.

Young Man:   Where was his excellence, then?

Old Man:   In this. He was not a sewing-machine, like you and me; he was a gobelin loom. the threads and the colors came into him from the outside; outside influences,  suggestions, experiences (reading, seeing plays, playing plays, borrowing ideas, and so on), framed the patterns in his mind and started up his complex and admirable  machinery, and it automatically turned out that pictured and gorgeous fabric which  still compels the astonishment of the world. If Shakespeare had been born and bred on a  barren and unvisited rock in the ocean his mighty intellect would have had no outside  material to work with, and could have invented none; and no outside  influences, teachings, moldings, persuasions, inspirations, of a valuable sort, and  could have invented none; and so Shakespeare would have produced nothing. In turkey  he would have produced something-something up to the highest limit of Turkish  influences, associations, and training. In France he would have produced something  better-something up to the highest limit of the French influences and training. In England he rose to the highest limit attainable through the outside helps  afforded by that land’s ideals, influences, and training. You and i are but sewing-machines. We must turn out what we can; we must do our endeavor and care nothing at all when the unthinking reproach us for not turning out gobelins..  

The Great Emancipator, 200-year-old mashup artist

Reflecting on Abraham Lincoln’s 200th birthday, I’ve made the startling discovery that he was not only an inventor but that he espoused ideas that constitute one of this blog’s principal themes — that innovation and progress require the technical capacity and the legal freedom to exploit existing knowledge.

I hadn’t learned in school or in the many books I’ve read about him since that Lincoln  is the only President to have applied for and received a patent. It was for a device to lift boats over shoals. In fact, throughout his life Lincoln was fascinated by mechanical devices. William H. Herndon, his law partner, wrote that Lincoln “evinced a decided bent toward machinery or mechanical appliances, a trait he doubtless inherited from his father who was himself something of a mechanic and therefore skilled in the use of tools.”

On February 11, 1859 (on the eve of his 50th birthday and precisely 150 years prior to the moment at which  I am writing this post), Lincoln delivered a lecture on “Discoveries and Inventions” in Jacksonville, Illinois. Published as the “Second Lecture on Discoveries and Inventions,” Lincoln described the U.S. as the embodiment of a youthful vitality that caused some to think it “conceited and arrogant” but also made it “the inventor and owner of the present, and sole hope of the future.”

Lincoln attributed this extraordinary national role to America’s capacity for innovation:

The great difference between Young America and Old Fogy, is the result of Discoveries, Inventions, and Improvements.

But Lincoln didn’t consider America’s talent for innovation to be the product of some unprecedented national genius. Instead, its inventiveness resulted from the recognition that innovation requires using and building on earlier innovation. Thus, speaking of the invention of the steam engine, Lincoln made clear that his comparison of “Young America” to “Old Fogies” was ironic:

[W]as this first inventor of the application of steam, wiser or more ingenious than those who had gone before him? Not at all. Had he not learned much of them, he never would have succeeded—probably, never would have thought of making the attempt. To be fruitful in invention, it is indispensable to have a habit of observation and reflection; and this habit, our steam friend acquired, no doubt, from those who, to him, were old fogies.

Furthermore, while humans instinctively exchange knowledge, the progression from speech to writing to printing was indispensable to “facilitating all other inventions and discoveries”:

When man was possessed of speech alone, the chances of invention, discovery, and improvement, were very limited; but by the introduction of each of these, they were greatly multiplied. When writing was invented, any important observation, likely to lead to a discovery, had at least a chance of being written down, and consequently, a better chance of never being forgotten; and of being seen, and reflected upon, by a much greater number of persons; and thereby the chances of a valuable hint being caught, proportionally augmented. By this means the observation of a single individual might lead to an important invention, years, and even centuries after he was dead. In one word, by means of writing, the seeds of invention were more permanently preserved, and more widely sown. And yet, for the three thousand years during which printing remained undiscovered after writing was in use, it was only a small portion of the people who could write, or read writing; and consequently the field of invention, though much extended, still continued very limited. At length printing came. It gave ten thousand copies of any written matter, quite as cheaply as ten were given before; and consequently a thousand minds were brought into the field where there was but one before. This was a great gain; and history shows a great change corresponding to it, in point of time. I will venture to consider it, the true termination of that period called ”the dark ages.” Discoveries, inventions, and improvements followed rapidly, and have been increasing their rapidity ever since.

It is easy to imagine, then, that Lincoln would revel in the capacity of today’s technology to copy and disseminate information world-wide in mere moments. Without the technological capacity to pass knowledge across time and space, “[i]t is very probable—almost certain—that the great mass of men . . . were utterly unconscious, that their conditions, or their minds were incapable of improvement. They not only looked upon the educated few as superior beings; but they supposed themselves to be naturally incapable.”

But it was knowledge, not intelligence, they lacked.  Lincoln knew innovation is not the product of individual genius towering above the mass of humanity.  It is a collaborative enterprise that grows from one person’s creative use of someone else’s invention, which itself appropriated another’s discovery that was inspired by something written across the world in an earlier century.  To think it could be otherwise is to enslave humanity not on a plantation but in ignorance:

To emancipate the mind from this false and under estimate of itself, is the great task which printing came into the world to perform. It is difficult for us, now and here, to conceive how strong this slavery of the mind was; and how long it did, of necessity, take, to break its shackles, and to get a habit of freedom of thought, established.

It is even more difficult for us, for whom the printing press seems the equivalent of cuneiform.  But if we are to overcome the challenges we face, we must embrace the full potential of the technology that makes it so easy to improvise on the creations of others.  It is improvisation and reworking and remixing that leads to innovation and progress.

Who knew that Remix Culture is merely an appropriation of Abraham Lincoln’s thinking, that the Great Emancipator believed that for humans to be truly free  knowledge must be free too?