Girl Talk: If they passed out paints on the street for free, I’m sure there’d be a lot more painters.

John Oswald, pioneer of the aural collage: the futility of law in the face of technology it cannot control.

I’ve written at length in this blog about compositions consisting of digital remixes of pre-recorded samples and the contentious and utterly unresolved tensions between copyright, fair use, and the extra-legal reality of practices that cannot be controlled by legal rules. I’ve written about artists as varied as Negativland, Girl Talk, Steinski, and Kutiman, among others. Negativland and Steinski were pioneers in the genre, composing their aural collages back in the ancient days before digital media made the stitching together of digital information something one could do sitting in front of a laptop in bed.

But no one was there before John Oswald of Plunderphonics. A mere fraction of his career’s chronology demonstrates that he is perhaps the pioneer of the genre:

1973-75

With the sanction of William S. Burroughs, John Oswald cut up recordings of him reading his texts advocating cutting up methods, & consequently discovered an acoustic pallindrome, mediations between backwards & forwards, polysyllabic masking & phase imploding.

1975

Oswald melds a radio evangelist with alleged satanists Led Zepplin in the early rap track POWER. released in 1995 by Musicworks magazine.

1975-85

MYSTERY TAPES assembly & dissemination (by Mystery Tapes Etc.International), include many early plunderphonistic experiments.

1980

Oswald guest produces a one hour radio show for CFRO in Vancouver called Sounds Wrong which includes the first public issues of Dolly Parton & Rite of Spring transformations.

1982

Collusion, a British magazine publishes an article by Oswald, entitled “Revolutions & Mr Dolly Parton – a vortex of of androgeny”.

1985

An essay by John Oswald entitled “Plunderphonics, or, Audio Piracy as a Compositional Prerogative” was presented at the Wired Society conference in Toronto.

1988

The original Plunderphonics EP (never-for-sale, out-of-print) was for its time the most extreme example of sampling ever produced. Four well-known music personalities representing four musical genres & four notable epochs of recording history were presented in surprising ways, or, as the press release put it: warp drive.

1989

The Plunderphonic CD (never-for-sale, remaining stocks destroyed by Michael Jackson & CBS) has become an underground cult classic. The realistic cover photo of a nude Michael Jackson revealed as a white woman paralleled the musical transformations depicted on the disc. Other electroquoted artists included Bing Crosby, The Beatles, Glenn Gould, Public Enemy & (consequently) James Brown.

You can read a more complete biography of Oswald here.

Far more interesting is an extensive recorded interview with Oswald. One of the most fascinating parts of the interview is Oswald’s account of his experience with the overwhelming legal forces brought to bear in the name of copyright enforcement against his new compositions. In a series of events not unlike those experienced by Negativland in connection with their composition U2, every last CD Oswald retained of his recording was destroyed. Of course, he had already distributed some of those CDs and was unable to recover them. And we all know digital media metastasize beyond any capacity of corporate control. So, of course, as with Negativland’s U2, Oswald’s recording not only continues to exist; it is available (for free) for digital downloading.

For your listening pleasure, I include here one track from the album: Glenn Gould-Aria(mp3).

The principle of collage is the central principle of all art.

No one who has spent more than a few days reading this blog in its 3+ years can have missed the fact that I have been strongly persuaded that the common notion of authorship — that true artists are solitary originating geniuses — is a myth. Kenneth Smith, in “It’s Not Plagiarism. In the Digital Age, It’s ‘Repurposing,’” adresses the same issues and covers much of the same ground, but he brings up a a few very interesting things that I had not previously encountered. The first is the prominent literary critic Marjorie Perloff’s use of the term “unoriginal genius” to describe someone with skill at making his or her way through the contemporary flood of “information.”  A “genius” in this sense is not someone who — as convention has it — comes up with a creation that no one has ever dreamt of before, but, rather, someone with an extraordinary ability to manage available information, parse it, organize it, and distribute it. Perloff believes that in the end it is this type of genius, not the mythical conventional sort, that distinguishes your writing from mine:

Her idea is that, because of changes brought on by technology and the Internet, our notion of the genius—a romantic, isolated figure—is outdated. An updated notion of genius would have to center around one’s mastery of information and its dissemination. Perloff has coined another term, “moving information,” to signify both the act of pushing language around as well as the act of being emotionally moved by that process. She posits that today’s writer resembles more a programmer than a tortured genius, brilliantly conceptualizing, constructing, executing, and maintaining a writing machine.

Perloff’s notion of unoriginal genius should not be seen merely as a theoretical conceit but rather as a realized writing practice, one that dates back to the early part of the 20th century, embodying an ethos in which the construction or conception of a text is as important as what the text says or does. Think, for example, of the collated, note-taking practice of Walter Benjamin’s Arcades Project or the mathematically driven constraint-based works by Oulipo, a group of writers and mathematicians. (hyperlinks added)

Even more interesting, however, is what Smith did. He’s taught a class at the University of Pennsylvania he calls “Uncreative Writing.”

In it, students are penalized for showing any shred of originality and creativity. Instead they are rewarded for plagiarism, identity theft, repurposing papers, patchwriting, sampling, plundering, and stealing. Not surprisingly, they thrive. Suddenly what they’ve surreptitiously become expert at is brought out into the open and explored in a safe environment, reframed in terms of responsibility instead of recklessness.

We retype documents and transcribe audio clips. We make small changes to Wikipedia pages (changing an “a” to “an” or inserting an extra space between words). We hold classes in chat rooms, and entire semesters are spent exclusively in Second Life. Each semester, for their final paper, I have them purchase a term paper from an online paper mill and sign their name to it, surely the most forbidden action in all of academia. Students then must get up and present the paper to the class as if they wrote it themselves, defending it from attacks by the other students. What paper did they choose? Is it possible to defend something you didn’t write? Something, perhaps, you don’t agree with? Convince us.

All this, of course, is technology-driven. When the students arrive in class, they are told that they must have their laptops open and connected. And so we have a glimpse into the future. And after seeing what the spectacular results of this are, how completely engaged and democratic the classroom is, I am more convinced that I can never go back to a traditional classroom pedagogy. I learn more from the students than they can ever learn from me. The role of the professor now is part party host, part traffic cop, full-time enabler.

The secret: the suppression of self-expression is impossible. Even when we do something as seemingly “uncreative” as retyping a few pages, we express ourselves in a variety of ways. The act of choosing and reframing tells us as much about ourselves as our story about our mother’s cancer operation. It’s just that we’ve never been taught to value such choices.

After a semester of my forcibly suppressing a student’s “creativity” by making her plagiarize and transcribe, she will tell me how disappointed she was because, in fact, what we had accomplished was not uncreative at all; by not being “creative,” she had produced the most creative body of work in her life. By taking an opposite approach to creativity—the most trite, overused, and ill-defined concept in a writer’s training—she had emerged renewed and rejuvenated, on fire and in love again with writing.

Smith has thus provided another instance of what I already know in a different context — there are more and less original legal writers even though legal writing is one vast collaborative writing enterprise consisting primarily of texts cobbled together from pieces of other legal texts.

Finally, Smith suggests that the insights he provides (which he would no more claim are original to him than I would claim them mine) have been largely resisted in one profoundly important world of writing: literature:

I’m sensing that literature—infinite in its potential of ranges and expressions—is in a rut, tending to hit the same note again and again, confining itself to the narrowest of spectrums, resulting in a practice that has fallen out of step and is unable to take part in arguably the most vital and exciting cultural discourses of our time. I find this to be a profoundly sad moment—and a great lost opportunity for literary creativity to revitalize itself in ways it hasn’t imagined.

Perhaps one reason writing is stuck might be the way creative writing is taught. In regard to the many sophisticated ideas concerning media, identity, and sampling developed over the past century, books about how to be a creative writer have relied on clichéd notions of what it means to be “creative.” These books are peppered with advice like: “A creative writer is an explorer, a groundbreaker. Creative writing allows you to chart your own course and boldly go where no one has gone before.” Or, ignoring giants like de Certeau, Cage, and Warhol, they suggest that “creative writing is liberation from the constraints of everyday life.”

As John Pareles wrote in “Plagiarism in Dylan, or a Cultural Collage?”, Bob Dylan is another one of those giants leading the way:

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.

Of course, literature has not completely ignored these artistic trends. The group of authors comprising Oulipo were exemplars of what Smith might call “writers as programmers,” and Donald Barthelme wrote:

The principle of collage is the central principle of all art in the Twentieth Century.

And, believe me: if you’ve never read Georges Perec or Barthelme, you’ve never read anything like what they’ve written. Or maybe you have.

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“:

People have always remixed their cultural artifacts; the internet has made them publishers.

Rene Kita has a terrific post on copyright law and “remix culture.” His point is that we’ve always engaged in remixing existing copyrighted works circulating in our culture, but the internet has transformed these perfectly typical activities into “published” works:

There’s the problem. People have grown up in a fair use zone where you could do anything with culture and they expect this to extend to their Internet living rooms, in which they typically converse with a few dozen friends. Funny Photoshop transformations of Brad Pitt’s face? Lawyers at your door. Insert ‘poops’ into that Britney Spears song? Lawyers again. Lose your house paying your defence lawyer.

You see, lawyers have this fictional creature known as The Consumer. That’s all of us, but stripped of any urge or ability to get creative. And then there is that other mythical monster called The Artist, who creates works from scratch – or gets hauled into courts for theft. Neither of these phantasms has anything to do with how human culture actually works.

Kita concludes that it is this misfit between the law and normal human activity that underlies the anger people feel at the tyrannical assertion of copyright:

This is why people are angry. Their normal modes of expression have been turned into a crime. They know they are only safe from prosecution because they are small fry – unless someone decides to make an example of you. Thus, any time you post some photoshoppery or a musical mash-up you risk having it summarily deleted and your account cancelled for criminal cultural activities.

Perhaps I do accept that there should be a way for creative artists to make a living with their craft, but if it comes at the cost of turning the rest of humanity into passive consumers, I say it is not worth it. We need a completely different way of showing our appreciation to artists.

Girl Talk on Remix Culture

Gregg Gillis, a/k/a Girl Talk, spoke with fans online via the Globe and Mail on his work:

I believe in what I’m doing, so at this point, the fact that there has been no problems feels great.   Some of those national publications like to write stories and make it seem like me or Illegal Art are a bunch of idiots, like we just don’t give a fuck and that’s why we’re releasing the music.   Completely ignoring the whole idea of Fair Use. It’s definitely not under the radar any more.   That was the point I was trying to make. But times are changing. The way the general public views intellectual property in 2009 is much different than in 1999. Look around the internet.   So much content comes from pre-existing media. We’re used to it now. Christian Bale goes crazy on the set of T4.   That turns into a techno song, which then turns into a cartoon on YouTube, which will then turn into a T-shirt. Everyone is constantly exchanging ideas and building upon previously existing material.  So the idea of a remix being a real artform is being validated in our culture every day.

Do your own American remix!

From my friends at Remix America, a site that provides free, online editing software that gives you the tools to remix the great words of our forefathers with the hot-button issues of today:

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.

Remix America, I salute you!

I am thrilled to have found Remix America¦America’s Digital Public Square. I’m no technical wiz. I’m always looking for easy ways to do technically difficult things. One thing I’ve searched for and asked friends about for a couple of years is a Friedman-friendly way of mixing and mashing up video and audio clips. I’ve wanted the contemporary equivalent (and therefore the multi-media) analog to the mix tapes I used to make on a cassette tape deck, and I need it to be as easy as making a mix tape on a cassette tape deck. My technically intelligent friends have had suggestions, but none have seemed accessible enough to me to be worth the investment of time and/or money they seemed they might require. But now I’m in techno-idiot heaven. As Remix America explains:

RemixAmerica.org is a multi-partisan, non-profit website that uses digital technology to give everyone the chance to own the words, the music, the images and sounds of America in digital form; to remix those expressions and ideas with their own; and to send the products of our community’s creativity out to the world… where others will come back to us and start it all over again…

And it works! I have a long way to go before I’ll be able to create a mashup that deserves to be posted, but, thanks to Remix America, that day is in sight. And I’m flattered beyond words that Erika Johansson, Producer and Program Coordinator for the site, paid me the compliment of writing to me that “we’ve got similar interests and aims.”

Despite the fact she runs circles around me when it comes to actually using the technology, Ms. Johansson is right that our interests and aims are similar. I approach  the innovation and creativity that is the subject of this blog as a lawyer, a role not typically considered innovative, creative or artistic. But it’s plain that being a lawyer requires fluency in the technical realities and practicalities one addresses as a lawyer.

I believe the law governing any particular set of circumstances expresses  society’s conceptions of what constitutes justice and fairness in those circumstances . In stark contrast, many lawyers and law professors believe law is the product of abstract notions of justice and fairness applied to the world as we find it.

If I am going to write persuasively about any given set of laws, my approach requires that I understand as well as I can the material reality those laws apply to. To understand contract law, I need to understand commercial practices and expectations. To understand market regulation, I need to understand how the financial markets run. To understand copyright law, I need to understand the technical details concerning the production and dissemination of information.

A necessary implication of my approach is that when the material conditions underlying any field change profoundly, the laws that govern that field should change profoundly. And in the last twenty years we’ve experienced a profound change in the material conditions that govern the way we produce, reproduce, and disseminate information. So the law governing the production, reproduction, and dissemination of information has to change — otherwise we’re stuck with the inevitable injustice that arises when you apply rules developed for one set of facts to an entirely different set of facts. There’s a revolution going on, but a lot of people don’t even recognize the revolution. And you can’t begin to understand the revolution unless you understand the the technical details that the revolution consists of.

So Remix America is a godsend to me. It gives me the means to create for myself (very crude) approximations of the mashups and remixes and collages I find so compelling and creative but that many consider theft. If I can understand and actually engage in an approximation of those creative acts, I can understand better and communicate better why those works are genuinely creative works, not merely ripoffs of original works that technology has unlocked.

I  salute and give a gracious thank you to Remix America and urge you to go there yourselves, see the works Remix America is making possible, and maybe start remixing and mashing up and creating your own original works.

Larry Lessig: How law strangles creativity