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