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The Irreducible Complexity of Copyright

February 16th, 2010 · 10 Comments

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.

Tags: Art & Culture · Law


       

 

10 responses so far ↓

  • 1 Jesse Walker // Feb 16, 2010 at 12:14 pm

    The Romantic model of creativity as an individual act of genius excludes the form cultural creation has taken throughout most of human history

    The Romantic model of creativity as an individual act of genius excludes the form cultural creation has taken during ALL of human history. Including the Romantic era, when poets riffed on older tales and composers happily built on folk tunes.

  • 2 Jim Harper // Feb 16, 2010 at 12:37 pm

    One of my favorite descriptions of how sampling reflects, refracts, and reinforces culture comes from Stetsasonic’s “Talkin’ All That Jazz,” :

    Tell the truth James Brown was old
    Till Erik and Rak came out with “I Got Soul”
    Rap brings back old R and B
    And if we would not
    People could have forgot

    http://www.youtube.com/watch?v=iJ2pArGnXJ8

    And for those who could have forgot:

    http://www.youtube.com/watch?v=9dmX2uhQrZs

    They’re referring to “I Know You Got Soul” by Erik B. and Rakim, my favorite remix of which is the drum and bass “Acen” remix by Trade Secrets.

    In case anyone thought you white intellectuals came up with all this….

  • 3 Will // Feb 16, 2010 at 1:53 pm

    My knowledge of copyright is laughably thin, but is it possible that the law embraces this romantic vision of creative production because it offers a simple framework for determining where one work begins and another ends? I think there’s a huge gap between recognizing the collaborative nature of production and actually crafting a legal framework that captures all the nuances of creative collaboration. Maybe the pragmatic barriers to crafting an alternative legal approach are just to great to overcome.

  • 4 Julian Sanchez // Feb 16, 2010 at 3:03 pm

    Sure; as a pragmatic issue, if you’re going to incentivize creativity by means of a property-like right, you need to assign some identifiable party the standing to enforce it in court, and you need the scope of precisely what is covered by the right to be reasonably clear. The danger comes when you conflate “the kind of creativity it’s feasible to incentivize with a monopoly right” with creativity simpliciter. If it turns out that evolutionary creativity is at least as important a source of “the progress of science and useful arts” as design creativity, and that your mechanism for incentivizing design creativity is simlutaneously a fairly serious barrier to evolutionary creativity, then your calculation about the scope & strength for that mechanism looks very different.

  • 5 Frank McGahon // Feb 16, 2010 at 3:41 pm

    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

    Not too hard to imagine in the case of Paul Weller writing Start for The Jam. Or was the example deliberately chosen?

    Jim, of course, for that track, Stetsasonic borrowed the great bassline from Lonnie Liston Smith’s classic Expansions…

    Or was that a deliberate reference?

  • 6 Julian Sanchez // Feb 16, 2010 at 4:09 pm

    Hah! Not consciously, but good point.

  • 7 Laure // Feb 16, 2010 at 5:56 pm

    I’m not sure, but it sounds in some ways like there is a problem here in the distinction between mechanical rights and performance/master rights and the way you are defining “creativity.” It sounds also like you are saying “aesthetics shouldn’t be the defining factor” but at the same time you are defending the remixed work on some aesthetic lines.

  • 8 sam // Feb 16, 2010 at 7:48 pm

    I’d read that Elvis Presley’s song, Can’t Help Falling in Love was based on a 19th cent. French song, Plaisir D’Amour. I filed that away in my memory, and was pleasantly surprised one night when watching an episode of Band of Brothers to hear the song being sung by a girl’s choir in a French church in which the paratroopers had taken refuge for the night. No copyright problems here, of course. It was just very pleasing to hear the original.

  • 9 Larry Downes // Feb 16, 2010 at 8:44 pm

    It’s interesting to note that even your example of high creativity would not be enough to satisfy the law. Were The Goldberg Variations under copyright protection, Glenn Gould would surely have needed to license them for either of his two recordings, despite how different those recordings were, despite his efforts to transcribe the work for modern piano, despite all he added by changing the tempo and humming along, etc.

  • 10 Links 23/2/2010: OpenNode Beta, Drupal Adoption | Boycott Novell // Feb 23, 2010 at 10:40 am

    […] The Irreducible Complexity of Copyright 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.” […]

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