Sunday, June 14, 2009

Remix culture and copyright law

Popular culture - as opposed to the pop culture created by artists without academic training which is flooding our media - has always been a remix culture. The first song I learned in Kindergarten in Germany was a remix of a traditional children's song, in which the ducks had been moved from the lake into the toilet bowl. Great fun for a five-year-old.
That is what people without any artistic or monetary ambitions do with culture. They take bits of what is available and adapt them to the moment. Parody, persiflage, satire, rewrite for topical subjects or just the simple fill-in-the-blank of the Happy Birthday song. Cut pictures out of magazines and arrange them into collages. Misquote jokes and sayings. Everybody does it. Creativity is the normal condition of a human being.
This was all unproblematic until the arrival of the Internet, which turned all of us into publishers in the eyes of the law. Imagine the shock of the housewife who has put up a video of the child's birthday party on the family blog and gets a letter from a lawyer demanding instant takedown or payment for millions of potential viewers because that idiotic little ditty of "Happy birthday to you" is under copyright from here to eternity, if the industry continues to have its way.
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.

Culture is a conversation. Every act of culture is a reply to something, a restatement, correction, modification, reworking. Lawyers are constantly debating how much modfication is required to make a work legal. Thus, you may 'create' a new instance of The Blues(TM Martin Scorsese), 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. Still, artists are trained to recognize what is a new song and what a version and their publishing companies have experts to deal with these matters.
And there we enter the crux of the matter:

Copyright law is corporate law. Or it used to be.

Previously, it took heavy investment to publish art, music, writing, so it was always done by companies and professionals. Today, squirting anything into a blog is an act of publishing. The legalese you signed by clicking when you started your blog forbids any use of copyrighted material that you don't own. Suddenly, instead of plain ordinary citizens entitled to sing "Poops, I did it again" or tape Brad Pitt's face in a toilet bowl onto a postcard to a friend, we are all professional artists required to Create Art from Scratch. Because we are no longer just having a conversation, in which we quote from everything we have seen and heard without any thought of Creation and Originality. Your piddling little blog is a Publishing Enterprise held to the same legal standards as Time Warner Inc, except that you do not have the funds to pay for any borrowings.

You have been muzzled.

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.

And yes, I put my money where my mouth is: all of my creations are freely reusable. Go on, remix them.


  1. I keep thinking that went a bit over the top, but rereading it I can't find a part I don't agree with - which is rare for me. :)

    Hope you don't mind my adding your blog to my list. I love those music styles, but I've had trouble (well, I'm lazy...) finding sources on anything past King Tubby. The Jamaican record shops here in Finland seem to be all owned by roots and dancehall conservatives. Hell, the dub column of The Wire is mostly about re-releases, too! The Wire: Adventures in modern music and old reggae...

  2. No I'm happy you staked a strong position. Believe me, spending the past 5 years in a law school studying copyright and creativity, there's no shortage of people who will cut any position down to incremental change which slants towards the powerful players.. so it's good to have a solid, consistent opposition. Plus I basically agree with it..

    I've dj'd in Finland several times, btw and always had a blast! Tampere, Tartu, and Helsinki (at Club Bundolo and elsewhere). Playing breakcore & jungle mostly, and some club music too.

    try to stay up to date on latest riddims in dancehall. As for purchasing it.. well.. hmmm...

  3. I considered a distinction between commercial and non-commercial, like today's fair use thinking, but then I remembered Beastie Boys saying that their first albums would be impossible to make today, since they contained too many samples...

    Collage is the signature art form of the 20th century, and not just in the visual arts. Looks like it is about to be outlawed in the 21st century. Which is absurd, as the splintering of life into collage-like, barely connected structures is continuing. How can we do justice to it in works that try to avoid 'contamination' by external influences?
    I like compilation CDs and group exhibitions exactly because their multiplicity of voices seems more true to life than any Gesamtkunstwerk by a single artist with a single point of view.

    Mind, my own work is self-sourced to an almost autistic degree, but I think that lessens its relevance considerably. I'm just a Nowhere Man doing my own little thing off the beaten track.

    Every important work of art/music/writing/film contains a reply, a restatement and a refinement of its predecessors, usually performed with an aggressive stance that appears to overturn their achievements. You can't do that, if you have to respectfully request permission to quote at every turn.

    It is no accident that electronic music and all those dub derived genres like jungle, breakcore etc. have evolved with such breakneck speed. They seem to have mostly ignored questions of identity and ownership.

    The view of art and artists enshrined in law is fundamentally wrong. I do not believe it can be adapted to modern collective, collage-like creativity.

  4. It is not just "popular" culture that uses remix. Professionals as well as amateurs have used it for centuries. Some of the techniques of musical remix are old enough to have Latin names: cantus firmus; contrafactum. Some of the most original writers of music are at the same time those who most use borrowing techniques: G.F. Handel and Charles Ives.

    By way of example: Song #42 in Charles Ives's 114 Songs is "The Things our
    Fathers Loved (and the greatest of these was Liberty)." In this single song, Ives quotes at least five old tunes: (1) Nettleton ("Come thou fount of every blessing"), from which Ives quotes 8 notes by my count. Nettleton was first published in Wyeth's Repository of Sacred Music, Part Second, which bore a copyright date of 1813 (though Ives uses an evolved version of the air that differs somewhat from the 1813 version) (2) "My Old Kentucky Home", published 1853 (Ives quotes 7 notes); (3) "Battle Cry of Freedom", published 1862 (Ives quotes 10 notes); (4) "In the Sweet By-and-By", published 1868 (Ives quotes 14 notes); (5) "On the Banks of the Wabash," published 1897 (9 notes). Because the duration of copyright was much shorter in 1922 -- it had been 42 years maximum before 1909, 56 years maximum after -- only "On the Banks of the Wabash" was still under copyright when Ives published. If the copyright term had been what it now is (95 years for pre-1978 published works) only Nettleton would have been out of copyright in 1922--the original version, not necessarily the derived version that Ives quotes.

    I don't know if Ives cleared the 9-note quotation from "On the Banks of the Wabash". If he were writing today, though, the case law is such that all his quotations might be deemed to infringe the works from which they were drawn.

  5. Thank you for the corroboration. And I think I was implying that all culture does that. Gothe's Faust is a remix of Marlowe and other preceding versions based on folk tales. Today, Marlowe could drag Goethe through the courts, like Salinger did with that Swedish guy who remixed his Catcher in the Rye.
    Was our culture impoverished by that rip-off or by that court case? And the preposterous thing is that if he had copied more and exaggerated a bit, it would have been parody and thus protected from legal attack.
    What a preposterous world we live in...

  6. By the way, there are legal scholars who make this point. A fantastic article, called, I think "From Bach to Hip-Hop" by Olufunmilayo Arewa, addresses lots of this, exhaustively and carefully..

    some of Julie Cohen's work deals with this, from a more theoretical perspective

  7. Oops, clicked on your profile afterwards and found you had already made my exact point on your blog.

    I have a friend who makes music under the name Mockingwyrd and thought you were him while writing my reply. :)

  8. Having a monopoly on something has always been the wet dream of every businessperson in history, regardless of how it might clash with the interests of society or any actual facts on the ground.

    Come to think of it, Jean-Baptiste Lully received/bought from Louis XIV a monopoly on the performance of operas in France, forcing his rivals to restrict themselves to recitals or emigrate. So the interactions of power and culture have not gained their absurdity in recent days.

    And thank you for the informative replies. In future, I will keep in mind that my rants might be read by intelligent, well read people and will strive for the requisite rigour to make it worth your time. And very happy to do it, too. Frankly, I thought I was writing into a void. :)

  9. Oops. Copyright in the song "In the Sweet By-and-By" lasted by my computation until sometime in 1924, provided the copyright was timely renewed. So two of the five works from which Charles Ives drew in writing "The Things our Fathers Loved" may still have been under copyright when he published 114 Songs in 1922, rather than just one, as I wrote above.

  10. Ouch. I just noticed that this post was mentioned on Slashdot, not to mention being referred to by a professor.
    Finnish culture frowns on all exhibition of pride, so I'd better stay home and very quiet until my swollen head deflates again. :)

    And thanks again, Mockingbird. Ives was part of a worldwide trend, too. Many classical composers from the middle of the 19th century until serialism used popular melodies of their home countries in their compositions. It was part of the romantic elevation of popular traditions that also saw the creation of Finland's national epic, the Kalevala, from song fragments collected from farmers in Karelia.

  11. Hmm, good point! I'm so accustomed to thinking of Ives as a modernist, part of the reaction against romanticism, that I never took the time to reflect on the extent to which his work might be seen as a continuation of the romantic, as well as a reaction to it.

  12. Perhaps the building of complex structures and harmonies is easier to teach than the creation of great melodies, which is why even many of the greatest composers go slumming for their tunes. That has always been the case.

    Ives had one problem: America in his days was still more of a melting pot than a nation and its educated classes felt no inclination to identify with the tunes arising from the unwashed masses. They sought respect from Europe by emulating its culture.
    Sibelius, Dvorak, Mussorgsky and other composers from the European fringes were riding on the nationalistic fervour of the late 19th century and asserting/creating national identities by using/abusing indigenous folk music.

    Mind, the way the material is used makes Dvorak a romantic composer and Ives and Bartok modern ones.

  13. Heh heh heh, I could go on all day about musical borrowing. But I'll constrain myself merely to giving a couple of links. First, a bibliography of musical borrowing:

    Musical Borrowing (Indiana)

    Second, an example of borrowing by G. F. Handel, one of music's greatest borrowers (a very large proportion of the melodies in Israel in Egypt consists of melodies copied from other composers)

    G. F. Handel copying from Gottlieb Muffat

    And finally note that J. Peter Burkholder, the brains behind the borrowing bibliography linked above, is also the author of the entry "Borrowing" in the New Grove Second Edition, and is also the author of All Made of Tunes: Charles Ives and the Uses of Musical Borrowing. On pp. 415-416 of All Made of Tunes, Burkholder makes the point similar to the one you made, drawing parallels to the practices of Beethoven, Tchaikovsky, Mahler, and others. He goes on to discuss the compositional practices of Ives and his generation (Debussy to Webern) in their historical setting.

  14. Mind if link to your blog on my Facebook?

    -A random 13 year old Massachusetts activist :P

  15. Sure, go right ahead. This is a public blog, after all.