Monday 30 January 2012

Does Copyright Hinder, or Help the Creative Process?


            Have copyright laws on music helped to protect artists, or has it been a hindrance to the creative process? It has been the very nature of music to build off of musicians that have come before, adding a new spin on an old sound. Artists constantly acknowledge who their influences are but sometimes artists go over the line and replicate the original. This can be a conscious or unconscious decision and has happened to even big name artists like the Red Hot Chili Peppers (“Dani California” vs. “Last Dance with Mary Jane” – Tom Petty) and most recently the highly publicized case of Coldplay’s newest album “Viva La Vida” being accused numerous times by a variety of artists. Why would a band like Coldplay steal another artist’s sound when they have played by the rules in the past (the song “Talk” from the album “X & Y” samples Kraftwerk’s song “Computer Love”)? A band like Public Enemy’s impact on hip hop music and culture cannot be denied, but their excessive use of sampling eventually led to the group’s demise. Although bands like Public Enemy surely owe a debt to the original artists, their impact on hip hop and culture cannot be denied. However, the message sent to other young artists could be devastating. The rules on copyright and what is copyright infringement should be rewritten to ensure that we aren’t limiting artistic creativity in the name of commerce.
            Copyright law is important and delicate because its role is to protect the interests of the creator, but also allows access to that information. In the United States Constitution it states “The Congress shall have power ... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Garofalo 33). Canadian copyright is designed to offer “protection for authors, composers or lyricists.  Copyright is designed to ensure that artists receive appropriate rights or remuneration for creativity, not inconsistent with international standards” (The Cultural Industries Sectoral Advisory Group on International Trade 213). Copyright wasn’t designed so that Michael Jackson could benefit from the use of the music of The Beatles; it was designed to promote artistic creativity by protecting the artist. However, the way that copyright now functions is clearly not what it was intended for in its creation. This happens because “control may well pass from the original creator to a third party who may view the copyright as an economic investment and treat requests to use the work accordingly” (Greenfield and Osborn 66).  
            For the famed scholar Marshall McLuhan, Copyright evolved out of the invention of printing because “the invention of printing did away with anonymity, fostering ideas of literary fame and the habit of considering intellectual property private property... The rising consumer oriented culture became concerned with labels of authenticity and protection against theft and piracy. The idea of copyright ‘the exclusive right to produce, publish, and sell the matter and form of a literary or artistic work’ – was born” (McLuhan and Fiore 122). The evolution from the beginnings of copyright to where it stands today is the result of a long line of court decisions. Copyright law begins in the Anglo-American tradition in 1662. The “Licensing Act” was designed to establish “monopolies for publishers in England in cooperation with the Crown, to guarantee that those who had the power to speak would use the press in a way that either benefited the Crown’s political interest or the publisher’s monetary interest” (Lessig, Does Copyright Have Limits: Eldred v Ashcroft and It's Aftermath? 219). By 1789 the idea of copyright had evolved in the United States Constitution which states that “Congress has the power to promote the Progress of Science and useful Arts by securing to authors and inventors exclusive Right to their respective Writings and Discoveries” (Lessig, Does Copyright Have Limits: Eldred v Ashcroft and It's Aftermath? 222).  
            According to Professor Lawrence Lessig, a specialist in the field of copyright, the evolution of copyright law can be seen in 4 ways, its scope, term, reach and force. The term of copyright has been changed from its initial length of 14 years in 1790 to as long as the artist lives plus 50 years in Canada, and as long as the artists lives plus 70 years in the United States. The scope of copyright has also changed. In its inception copyright applied to maps, charts, and books. Now, copyright applies to “all creative work reduced to a tangible form, and appropriately so, because it should cover the widest range of creativity where there is a need for incentives to create” (Lessig, Does Copyright Have Limits: Eldred v Ashcroft and It's Aftermath? 223). The reach of copyright has also changed. As copyright was designed to regulate commercial publishing, in the beginning copyright protected copying of the same book. In 1909 however, the word publish, was changed to copy. Although this was not all that important in 1909, with the creation of the internet everything is a copy. This is because “every act with a digital object is an act which produces a copy, meaning automatically that the scope of this regulation was extended. That which before was presumptively unregulated now is presumptively within the scope of the law” (Lessig, Does Copyright Have Limits: Eldred v Ashcroft and It's Aftermath? 224).
            The last change discussed by Lessig if the force of copyright which has changed because “originally copyright laws regulated through the law, but increasingly that is no longer the case. It is technology that regulates copyrighted works” (Lessig, Does Copyright Have Limits: Eldred v Ashcroft and It's Aftermath? 225). This is articulated with the example if the Aibo dog. The Aibo was a computerized pet that you could teach tricks. People found out how to hack into the dog’s and teach the dog how to dance jazz. Sony soon sent out letters to the people that were spreading the information on how to hack that they were in violation of “anti-circumvention provisions”. This is a case where “to circumvent the code’s restriction on your ability to do stuff with your dog is a crime, even if the underlying act is not a crime... Here the law says code ‘controls’ and you cannot circumvent code even for a legitimate purpose” (Lessig, Does Copyright Have Limits: Eldred v Ashcroft and It's Aftermath? 225).
            This case raises an interesting look at “The Grey Album”; an album by Brian Burton, who goes by the alias DJ Danger Mouse, combined The Beatles White Album, with Jay-Z’s Black Album in what is known as a “mash-up”. According to Burton what he was doing wasn’t stealing from either album, but rather saying “a lot of people just assumed I took some Beatles and, you know, threw some Jay-Z on top of it... but it’s really about deconstruction. It’s not an easy thing to do... It is an art form. It is music. You can do different things, it doesn’t have to be just what people call stealing. It can be a lot more than that” (Rimmer 132-133). Although there were only 3000 promotional copies distributed initially, the album soon became available on the internet. This resulted in a cease and desist order from EMI, the holder of the rights to The White Album and they also ordered online distributers to destroy all of their copies of the album. What is important to note is that Burton claims that “This wasn’t supposed to happen... I just sent out a few tracks (and) now online stores are selling it and people are downloading it all over the place... It was not my intent to break copyright laws. It was my intent to make an art project” (Rimmer 133). One of the defences raised for mash-ups is the defence of “Fair Use”. The question is does the work alter the original work enough that it in fact creates a new work?
            In his article, “The Ecstasy of Influence”, Jonathan Letham begins to look at some of the problems associated with originality and copyright. Letham discusses several examples of originality and problems that may arise with copyright law. One statement that is especially true for music is that “most artists are brought to their vocation when their own nascent gifts are awakened by the work of a master” (Letham 61). The ruling of the case Bridgeport Music Inc. v. Dimensions Films Inc. the judge’s ruling sent a clear message that “a balance must be struck between protecting an artist’s interests and depriving other artists of the building blocks of future works... Since the advent of Western musicians have freely borrowed the themes and ideas from other musicians” (Rimmer 137). In music many artists are defined by those who defined them. The cult figure Tom Waits discussed the change in his sound when his wife introduced him to the work of Captain Beefheart. Nirvana often discussed their love of The Pixies, lead man Kurt Cobain discussed his love of obscure musician Daniel Johnston, and many critics have said that it was Nirvana’s love of The Beatles that set them apart from other bands like them. This is because originality works much like the scientific process (Latour and Woolgar). Originality is the end result of a collaboration of things, life experiences, culture, and also works that came before. Like the scientific process, originality is the result of a series of artists who came before. When one listens to Nirvana, they may not instantly think of The Beatles; however The Beatles, Pixies, Daniel Johnston, and a slew of other bands are all important parts in the creation of Nirvana’s own signature sound. However, while referencing others is an integral part in the creation of new facts in science, in music, artists must be careful not to cross the line from being influenced by their favourite artists, to replicating their favourite artists, or they will fall victim to copyright infringement.  
            The similarities that exist within music were seen as early as 1941 when Theodor Adorno wrote his famous essay “On Popular Music”. Adorno believed that everything outside the realm of classical music fell into the category popular music, this even included jazz. As he saw it, the makeup of popular music, the similar band arrangements and song structure meant that there wasn’t real individualization, only pseudo individualization. He believed that any small variation in the song is what differentiated it from others, and made it more marketable. This even applied to the improvisation that took place within jazz music which he said followed a pre-determined structure (Adorno). This makes the case of copyright even more delicate because what makes a song different from any other song is small. However, that small variation is what makes a song unique and marketable.  
            This was what happened after the release of Coldplay’s 2008 album “Viva La Vida”, they saw accusations of copyright infringement from the New York indie band Creaky Boards, as well as acclaimed guitarist Joe Satriani. Creaky Boards claim that Coldplay front man Chris Martin had actually been seen in the audience of one of their concerts prior to the release of the song Viva La Vida, and that the song sounds a remarkable amount like their song, “The Songs I Didn’t Write”. Satriani filed suit against Coldplay, alleging that large portions of his instrumental “If I Could Fly” were featured predominately in the Coldplay song. In a statement on their website Coldplay responded to the allegations made by Satriani who was seeking all profits made by the song,
With the greatest possible respect to Joe Satriani, we have now unfortunately found it necessary to respond publicly to his allegations. If there are any similarities between our two pieces of music, they are entirely coincidental, and just as surprising to us as to him. Joe Satriani is a great musician, but he did not write or have any influence on the song Viva La Vida. We respectfully ask him to accept our assurances of this and wish him well with all future endeavours. (Coldplay)
            The songs are clearly similar even to the untrained ear, but how did they end up this way. There are several explanations, one of course is coincidence, that there are a limited number of notes existing on a guitar, and that they happened to write the same song. Another that is mentioned by Letham is “cryptonesia” in which someone unknowingly recreates something they have heard prior, without knowing that they had heard it. This was the case with George Harrison, whose song “My Sweet Lord” sounded remarkably like The Chiffon’s “He’s So Fine”. Although the George Harrison admitted that he had heard the song prior, he did not deliberately re-create the song, and went through his song writing process in the case. The judge made the decision that, “My Sweet Lord is the very same song as He’s So Fine with different words, and Mr. Harrison had access to he’s so fine. This is, under law, infringement of copyright, and is so even though subconsciously accomplished” (Rimmer 135).
            Letham sees copyright as “an ongoing social negotiation, tenuously forged, endlessly revised, and imperfect in its every incarnation” (Letham 63). However, the influence that business has had on copyright law has been seen by many in the case of Mickey Mouse, the symbol of the Disney Corporation. While the term began as 14 years, as it stands, “the current term is the life of the author plus seventy years. It’s only a slight exaggeration to say that each time Mickey Mouse is about to fall into the public domain, the copyright term is extended” (Letham 63). This is because copyright as Thomas Jefferson saw it no longer exists. While copyright may have been designed to benefit society with progress, the loser is always society for the benefit of private interest. For Letham, “contemporary copyright, trademark, and patent law is presently corrupted. The case for perpetual copyright is a denial of the essential gift-aspect of the creative act” (Letham 68).
            The problem that many people see is that there seems to be no alternatives to copyright. One alternative raised by Letham is the gift economy in which “the cardinal difference between gift and commodity exchange is that a gift establishes a feeling-bond between two people, whereas the sale of a commodity leaves no necessary connection” (Letham 66). For Letham it is quite simple, “if it is true that in the essential commerce of art a gift is carried by the work from the artist to his audience, if I am right to say that where there is no gift there is no art, then it may be possible to destroy a work of art by converting it into a pure commodity. I don’t maintain that art can’t be bought and sold, but that the gift portion of the work places a constraint upon our merchandising” (Letham 66).
            While many would have contended even a few years ago that something like the gift economy could not exist, that has changed thanks to the innovative band Radiohead. On October 10th 2007, Radiohead allowed fans to download their newest album, “In Rainbows” at whatever price they saw fit. This move proved wonders with critics and listeners and landed them at number 30 on Rolling Stone’s 100 agents of change. Front man Thom Yorke has said that, “If I die tomorrow, I’ll be happy that we didn’t carry on working within this huge industry that I don’t feel any connection with” (Rolling Stone 56). Nine Inch Nails continued in the direction that Radiohead was going releasing the album “The Slip” for free online. He also releases songs onto the bands website for free for fans.    
            Letham’s argument for allowing artists to grow upon other artist’s work freely is not without its proponents; among them is the previously mentioned Lawrence Lessig. Although Lessig contends that he agrees with many of the ideas brought force by Letham, he says that “Creativity requires that the artist be free to borrow freely. It demands that he not be required to get permission in advance. But it does not require that he be allowed to hide an expression’s borrowing. Whether the ideas are borrowed it too hard to know. We should thus leave them alone. But is it too much to ask to demand that a beautiful (or ugly) borrowed sentence be wrapped in simple quotation marks” (Lessig, Letters 4). This raises a key point in the argument of copyright, it’s not an argument against copyright outright, it is an argument for revisions to copyright to get back to the original ideal, generating progress.            
            Another alternative is raised by Lawrence Lessig in his book Free Culture, this is known as “The Creative Commons”. The Creative Commons’ “aim is to build a layer of reasonable copyright on top of the extremes that now reign. It does this by making it easy for people to build upon other people’s work, by making it simple for creators to express freedom for others to take and build upon their work” (Lessig, Free Culture 282). The use of the creator’s work is in the hands of the creator. They have the choice to share their information so long as they are rightfully referenced, if it is used for non-commercial use, share and share alike, may use so long as no derivative use is made, any use in developing nations, or any educational use. This system “aims to build a layer of content, governed by a layer of reasonable copyright law, that others can build upon. Voluntary choice of individuals and creators will make this content available. And that content will in turn enable us to rebuild public domain” (Lessig, Free Culture 283). So why would people agree to release their content for free, when it is also available for purchase? By making the content available for free, it will probably increase the sales.
            With regards to the concept of “sampling” made famous by the rap group “Public Enemy” in the 1980’s, “the sampling license says that others are free, for commercial or non-commercial purposes, to sample content from the licensed work; they are just not free to make full copies of the licensed work available to others” (Lessig, Free Culture 285). This is because artists who sample would also make their art available to others to sample. This would avert the crisis faced by Public Enemy whose sound was forever altered by changes in the laws of sampling. As members “Chuck D and Hank Shocklee attest, this change in licensing and law changed the sound of Public Enemy forever as license fees for samples became prohibitively high. They describe their more recent releases as sounding “soft” because they’ve resorted to recreating samples in the studio using live instruments, to get around master sampling license fees” (Haughey).
            The questions remains, does copyright benefit the creative process? There have been several documented cases of artists being refused the rights to use the works of other artists. Kevin Rowland formerly of the band “Dexy’s Midnight Runners” tried to record a record of songs that had impacted his life. One of the songs he wished to record was a version of Bruce Springsteen’s “Thunder Road”. However, despite Rowland sending a personal letter to Springsteen requesting permission he was denied. The issue here is that “due to the existence of property rights, future use can be fettered on the grounds that someone owns the original work and can therefore control its reuse. It is certainly arguable that this aspect of copyright deters creativity, notwithstanding the traditional view that copyright promotes creative endeavour by acting as an incentive” (Greenfield and Osborn 71).
            The copyright debate has many possible solutions. It is clear that copyright as it stands today does not fill the original agenda set forth by it, for the progress of culture, but in fact holds culture back. Copyright like all laws has evolved over time by precedent which has caused changes in its force, scope, reach and duration. The Grey Album by producer DJ Danger mouse raises many interesting questions about the nature of copyright law today because it falls into the realm of fair use. One major problem associated with copyright and music is that artists are respected and encouraged to build off of the influences of others however there remains a fine line between influence and infringement. This is seen in the cases of Coldplay and George Harrison, the latter losing in a court battle despite evidence of cryptonasia. Another one of the major problems associated with copyright as it exists today is that it is ever more corrupt, being run more off of the private interest of companies like Disney, than for the public good. There are alternatives to this, such as the gift economy described by Letham, and the Creative Commons described by Lessig. These alternatives are seen in today’s society in bands like Nine Inch Nails, and Radiohead, who make their work available online for free in the case of Nine Inch Nails, and for a price decided by the fan in the case of Radiohead. As it stands today, these bands are more fitting to the original inception of copyright, for the benefit of artists than copyright law as it stands today. While their methods are only viable because they are big name bands, it delivers a message that there are alternatives to the current system in place. Cases like that of DJ Danger Mouse really bring to the forefront the question of who does copyright serve? His work was not for profit, and was clearly stated by the DJ Danger Mouse as an art project in itself.  

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