Copyright law wrestles with the artistic realities of age where copying is creative, not plagiarism.
In 2007, the English rock band Radiohead released its latest album online, where it was available for download for as much or as little as fans wanted to pay. After fulfilling their previous contractual agreements, the band had decided not to re-sign with a major label and instead keep complete creative and distribution control. They had earned the freedom to give away their music for free, and that’s just what they did. In a period when digitized music is easily copied and distributed, Radiohead beat the pirates to the punch. The band even encouraged fans to download one of the songs and remix it.
In December, the Tate Gallery in London awarded the Turner Prize, Britain’s most well-known annual art award, to Mark Leckey, whose exhibition “Industrial Light & Magic” combines re-created images of Felix the Cat, Homer Simpson and the movie Titanic. The judges pointed out that Leckey’s work “celebrates … our potential to inhabit, reclaim or animate an idea, a space or an object.”
In picking their winner, the Turner judges inevitably make an argument for what they believe is an important strand within contemporary art. In this case, they picked an artist who re-creates and re-claims existing popular images.
These are but two examples of a place we occupy where the advances in digital technology, the changing nature of art and the demands of commerce cross paths. It is hard to deny that the idea of the remix — taking, for example, a piece of music, reworking it and presenting the result as a new piece of music — has quickly become a central part of our artistic culture. Whether this is a new or a good thing is another discussion entirely.
In Sound Unbound: Sampling Digital Music and Culture, the artist, writer and musician Paul D. Miller makes a case for the current widespread presence of remix and sampling culture by bringing together essays by a wide range of writers and musicians. As he writes in his introduction, “… after all, if there’s one thing Sound Unbound is about, it’s the remix — a sampling machine where any sound can be you, and all text is only a tenuous claim to the idea of individual creativity. It’s a plagiarist’s club for the famished souls of a geography of now-here.”
Miller has brought together a variety of essays — from Brian Eno writing about the history of bells to the novelist Jonathan Lethem discussing literary influence, among many others — that all loosely circle around Miller’s idea. As Daphne Keller, one of the contributors, notes, “Human culture is always derivative, and music perhaps especially so. New art builds on old art. We hear music, process it, reconfigure it, and create something derivative but new.”
Miller and his contributors do a fine job of detailing our cultural moment. But despite his claim that individual creativity is tenuous, we still live in a world where social beliefs and, more important, copyright law think otherwise.
Traditionally, artists, musicians and writers have earned their living from the sale of their work. How do we ensure that in the age of digital music and remix, the artists continue to get these royalties as it becomes easier and easier to duplicate and distribute the work for free? And how do we make sure that in this process we do not criminalize the consumers who benefit from easier access?
This second question is of particular interest to Lawrence Lessig, a Stanford law professor who has quickly become the name and face of a movement to rethink intellectual property and copyright law in the Internet age.
Early in his latest book Remix: Making Art and Commerce Thrive in a Hybrid Economy, Lessig shares something the late Jack Valenti, former head of the Motion Pictures Association of America, recalled during a debate with Lessig. Valenti remembered giving a talk at Stanford, where 90 percent of the students confessed to illegally downloading music from Napster. As Lessig writes, “He asked a student to defend this ‘stealing.’ The student’s response was simple: Yes, this might be stealing, but everyone does it. How could it be wrong? Valenti then asked his Stanford hosts: What are you teaching these kids? ‘What kind of moral platform will sustain this young man in his later life?’”
Lessig examines how some moral platforms — and the laws that regulate them — require reconsideration. As it stands now, copyright law criminalizes the students who admitted to illegally downloading music. In the past several years, lawsuits against these listeners have become commonplace. And if we are to believe Miller and his contributors that remix is the defining artistic category of our current age, current copyright law threatens creativity, particularly when it comes to video and music, by introducing litigation every time a home remixer takes a popular song and reworks it to his or her liking.
Lessig — weary of criminalizing a new generation for whom downloading and remixing is an important creative category — considers these various issues by splitting the book into three main parts.
In Part I, he distinguishes between a Read/Write (RW) and a Read Only (RO) culture. With RW culture, the listener can be both consumer and creator. With RO, on the other hand, we simply consume. “Both cultures were part of our past: RW creativity from the dawn of human culture, RO from the birth of technology to capture and spread tokens of culture. Both, I’ve argued, will be part of our future: The Internet will enable a more vibrant RO culture. It will also enable a more expansive RW culture.”
In Part II, Lessig examines three main types of Internet economies. In a commercial economy, the primary interest of the seller is to sell product for profit; think Amazon and Netflix. In a sharing economy, money is not the central term of exchange. Rather, information, value, community and good will are being shared and exchanged. Wikipedia is perhaps the most well-known example.
The book is weighed heavily on a discussion of a third type of economy, best understood in examples such as YouTube and craigslist. “The hybrid is either a commercial entity that aims to leverage value from a sharing economy, or it is a sharing economy that builds a commercial entity to better support its sharing aims.” Lessig suggests that this hybrid economy “will dominate the architecture for commerce on the Web.”
And if hybrid economies and RW culture are to flourish, some changes need to be made.
In the last part, Lessig maps out a future, namely five steps for changing copyright law. First, we need to deregulate amateur creativity so that everyday citizens are free to remix songs. Second, “create a maintenance obligation for copyright owners after an initial term of automatic protection.” If the copyright is not renewed after a certain period, say 14 years under one proposal, the work would enter the public domain. Third, simplify copyright law. And fourth and fifth, decriminalize both the copy and file sharing.
The case of Radiohead is a good example of Lessig’s idea of a hybrid economy model. By giving listeners a chance to get the album for free, the band was engaged in a sharing economy. But three months after the album was first offered on the In Rainbows Web site, the band released it on CD, and it went to the top of the charts. They were right back in the thick of a commercial economy. Just because they gave away their music for free did not mean that they gave out free concert tickets. The band recognized the inevitable nature of file sharing in a digital age, so they concentrated on other means of making money while gaining the good will of their audience.
Every band is not Radiohead. Many don’t have the luxury to give away their music, let alone sell out concert halls. Lessig is well aware that copyright is important. “Copyright law regulates cultures in America. Copyright law must be changed. Changed, not abolished. I reject the calls of many (of my friends) to effectively end copyright.”
One can agree or disagree with Lessig’s prescription for dealing with copyright. But the core of his argument is a response to a wider, exciting cultural moment that asks us to consider, following this idea of remix, the work of art in the age of digital reproduction.