A surprising number of the responses to my recent video on social remix complain that the various videos of kids acting out their own versions of the Lisztomania “Brat Pack” mashup video simply don’t count as a form of creativity. To be sure, they are not timeless works of starting originality, but this sort of reaction strikes me as setting the bar unreasonably high for the sake of sheer grumpiness. It’s hard not to suspect that the folks raising this objection have never tried to create a video work, and so simply have no idea how much talent is required to do it well: I can only wish I had the eye and sense of timing these kids display. One can argue that the remix videos are only copying what was done before with minor variations—but someone with a tin ear might say the same about Glenn Gould’s performance of the Goldberg Variations or Nina Simone’s of “Feeling Good.” Something highly similar to a prior work along many dimensions can still be a highly original interpretation.
Even this, however, strikes me as the wrong standard—for after all, we all recognize Nina and Glenn as great geniuses of performance who made invaluable individual contributions to culture. But should this be the only model of creativity? Current intellectual property law frowns on “copying” as opposed to mere “influence.” If I write and record a song that is manifestly influenced by the sound of the Beatles, that’s just how culture works; if I remix or reperform a medley of their songs, that’s infringing. One way to think about the distinction is to ask how much mutation of the original work has occurred in my head before I send it out into the world. We can imagine my sitting with a guitar playing “Taxman,” beginning by improvising new lyrics, and gradually altering the melody until I’ve produced a song that is sufficiently transformed to count as an original work, though perhaps still a recognizably Beatlesesque one. I’m free and clear under copyright law just so long as I only record and distribute the final product, which consists of enough of my own contribution that it no longer counts as a “copy.”
Implicit in this model is the premise that creativity is fundamentally an individual enterprise—an act of intelligent design. Yet so much of our culture, historically, has not been produced in this way, but by a collective process of mutation and evolution, by the selection of many small tweaks that (whether by chance or owing to some stroke of insight) improve the work, at least in the eyes of the next person to take it up. Perhaps ironically, this is the kind of evolutionary process by which myths evolve—myths of life breathed into mud, or of Athena springing full-grown from the head of Zeus. Our legal system now takes these evolved myths as its paradigm of creation.
Consider again the videos I use as case studies in that YouTube. The first cuts up and rearranges fragments of movies by John Hughes into a video for a song by Phoenix. The original or creative act there is just in the selection and arrangement of clips; everything else is “copied.” The next step is to “copy” the sequence of scenes from the mash-up video with live dancers, still using the Phoenix song. But imagine the original mash-up had never been published, that it’s creator had worked with the Brooklyn kids to create a kind of dance tribute to the movies of John Hughes. Would that seem more original or creative? The audio too can, of course, be remixed and re-remixed. It is easy to imagine a series of individually trivial transformations by which an original video that is “merely” a rearrangement of someone else’s music and movies becomes a work that—if you did not see the process by which it was produced—would bear no obvious resemblance to anything John Hughes or Phoenix had done.
I do think each of these videos should be considered a real act of creativity and originality, even if not up to the lofty standards of a Bach or even a Glenn Gould. But suppose you don’t see anything deserving the label “creative” here—this still, in an important way, misses the point. The argument in my initial video was that it misses the point because they have value as a method of social communication quite apart from their contribution to the common stock of cultural innovation. But we can add to this the point that Yochai Benkler is at pains to make in The Wealth of Networks: The Romantic model of creativity as an individual act of genius excludes the form cultural creation has taken throughout most of human history, and the legal regime best suited to promote and incentivize individual acts of creation on the Romantic model may be quite hostile to the aggregative process of creation on an evolutionary or peer-produced model. The law says, in effect, that we will protect creativity that occurs all at once, in one brain, or at least as the upshot of a planned and organized effort—but at the cost of forbidding the individually derivative elements of distributed and spontaneous creation.
Challenges to our copyright regime under the Free Speech Clause of the First Amendment have thus far proven unsuccessful. Given how bound up our copyright system appears to be with a kind of divine creation myth writ small, maybe it’s time to try an Establishment Clause challenge instead.