Notre Dame 2010 Creativity and the Law Symposium panel 2

Panel Two
Rebecca Tushnet, Georgetown, Scary Monsters: Hybrids, Mashups, and Other Illegitimate Children

Part of my larger product on vidding and copyright. I begin with Joanna Russ, How to Suppress Women’s Writing: “She didn’t write it. She wrote it, but she shouldn’t have. She wrote it, but look what she wrote about. She wrote it, but ‘she’ isn’t really an artist and ‘it’ isn’t really serious, of the right genre—i.e., really art.… She wrote it, but there are very few of her.”

Start with the last: she’s an anomaly and there are no historical models for her work. In 2005, I was at an MIT conference with Naomi Novik and Francesca Coppa, sitting in the audience, and these guys got up on stage and talked about the amazing new art form they’d invented: taking video game footage and editing it to music. There was nothing wrong with their work, but we were stunned at the claim of invention (and its positive reception) given that media fans had been vidding for decades, growing out of Kandy Fong’s timed slide shows for Star Trek. In the 1980s fans vidded with dual-deck VCRs and stopwatches, an excruciatingly difficult process; eventually digital editing came to dominate the form. I recount the history to reclaim it. Art forms with history are more readily recognized as legitimate and not the idiosyncratic behavior of a few strange people. As Mike Madison has written, it’s easier to make a legal case for an art form that is part of a persistent cultural pattern.

I then showed a vid, Vogue, using footage from 300, which I chose for several reasons. First, it’s about reclaiming the gaze from men: a woman putting a woman’s voice in charge of the narrative, directing and interpreting the action, exposing the pornography of violence in the film as such. Second, Vogue was specifically discussed by the Register of Copyright in her recommendation on DMCA exemptions, and the discussion exemplifies a lot of conventional reaction to women’s art forms. It’s art, except it’s not really art. Vids were the only examples discussed in the text as fair uses, yet the recommendation kept saying that they might not be fair use. They were creative, but disavowed. This was connected both to their basis in pop culture—about which we’re not supposed to be critical or reflective—and to an idea of excessiveness, taking too much. Excessiveness is of course a charge often leveled against women’s expression, associated with inappropriateness and with lack of creativity, and here it has a specific legal payoff in the fair use factors.

What does it mean to transform? The doctrine tells us that it’s more likely to be a fair use to bring something out of the work that’s already there, rather than to make an unrelated commentary. But that means that the transformative use is always going to be subject to the objection that it didn’t tell us anything we didn’t already know, that wasn’t obvious from the original work. This faulty reasoning shows up in the district court opinion in Salinger v. Colting, which rejects a fair use argument that the new work shows how awful and pointlessly narcissistic a character Holden Caulfield is, rather than a romantic hero, on the grounds that it was always obvious that Holden is absurd and ridiculous. But it wasn’t obvious to everyone! If we recognize that people read works in different ways, then a variety of different responses are transformative of those meanings.

In this context I discussed another vid, It Depends on What You Pay, which set images from the TV show Dollhouse to a song celebrating rape. Some responses from Joss Whedon fans (Whedon created the show) thought that the vid was pointless because it was already obvious that the show was about rape; others thought the vid was unfair because the show was obviously not about rape. The responses made the vidder’s point: our culture encourages many people to deny the prevalence of rape and the ways in which the attitudes of nonrapists allow rapists to continue raping; the show lent itself to the second reading at least as readily to the first. The vid was transformative because it took what was (to the vidder, and to some others in the audience) obvious and shouted it more loudly.

Vidding comes from love as well as from hate; there’s passion in both. You don’t work this hard because you’re indifferent to the source.

Olufunmilayo Arewa, Northwestern Law, Creativity, Improvisation, and Risk: Copyright and Musical Innovation

Improvisation was a norm in classical music until about 1910. When accomplished musicians improvise, it activates different areas of the brain than reading music.

Visua/textual bias in music copyright. Copyright assumes the locus of creativity is in the writing of music, and in many areas that’s simply not true. Classical tradition comes out of specific historical development in the 20th century, and other traditions like jazz and blues don’t even have that. Imagine trying to transcribe a hip-hop piece—virtually impossible to do so in writing. Notes are incomplete representations of sound. Rhythm can’t be musically notated—whether medieval chant or complex African rhythms.

Copyright focuses on writings, in part for historical reasons: at the time, writing was the only alternative to human memory. We assume that notation is objective and neutral, but it’s not; disregards performers, reflecting the fact that at the end of the 19th century composers became very powerful. Before that, aria insertion by performers was common when they knew/liked/thought the aria fit better than what was in the text. Sacralization: pieces can no longer be touched or improvised on. All classical composers were great improvisers, and some say Beethoven was better at that than at composing. But we now assume that writing is where the only creative action is.

We now have ways to preserve music through sound recording, challenging the visual assumption. But performers are still presumed to be just mouthpieces—our bias against performances is reflected in the way we treat sound recordings, more limited rights/neighboring rights.

Performers are not silent. They have increasingly claimed copyright credit for the songs they perform; Beyonce was named songwriter of the year. This has led to controversy with songwriters who claim extortion of various sorts. Catherine Fisk working on allocation of writing credit for film/TV: SAG allocates credit based on both visual and nonvisual material—dialogue, but also scene settings and other elements. Text alone leads to a different conception of authorship. Focus on writing disadvantaged creators from other traditions—allowed record execs to claim authorship/ownership.

Sources of visual bias: historical (sacralization; historical origins of copyright in written text; displacement: profound shift in basis of popular music in last 100 years); cognitive (perceptions of writing and sound); linguistic/semiotic (notation and problems of representation). Displacement: 100 years ago, music in US was very European in sound; then broad takeover by African-Americans—ragtime, blues, jazz, influences on rock ‘n roll and country, etc. That matters because the tradition is much more oral. Visual assumptions of copyright coming from sacralized view of classical tradition, confronting music not from that tradition—leads to clashes about locus of creativity.

Musical notes are not representational.

In copyright infringement: Harder to assess what is “too much” with respect to nonvisual aspects of performance.

Improvisation: could end up with something creative and new, or something disastrous. Hip-hop was all about improvisation—jazz, blues, etc. Creativity is located there, and copyright needs to figure out how to deal with that. Improvisation requires borrowing from an existing base. Copyright disfavors use of existing works as important building blocks.

Conservatories are now starting to teach aria insertion again: necessary to make the tradition a living one instead of a dead one. Not so wedded to the written word as authority.

Copyright is a technique of risk management, focused on ownership. Need to think about risks to artists of deterring them from exercising their own creativity.

Michael Madison, Pitt, Commons and Curation

Shakespeare: his works weren’t collected until after his death. Modern example: in Dec. 2009, a tape was found—the only known recording of Game 7 of the 1960 World Series in which the Pirates beat the Yankees, the greatest single moment in the history of organized baseball. The tape was in the basement of Bing Crosby’s house, an early adopter of taping—arranged for a kinescope to be set up to record his TV screen. Internet Archive hosts all kinds of digital collections, including Grateful Dead audience recordings. Social singing: the practice in the late 19th century of Americans sitting around singing songs collectively. Blues: related kind of material cultural practice with stability and fixity but in an intangible sense.

All species of knowledge curation: collecting and preserving knowledge as it existed at the time of production is something law and policy should think about. How do we get such creation and what should law do about it? (Geographic indications are a related topic.)

Knowledge: ways of knowing the world—art, arts, science, information, mapmaking, musicmaking—important to talk about products as well as processes. Creativity is not just a quality of mind and not just an act or technique, but is embodied in objects.

The value of copying itself (thanks for the shout-out!): the value of the object.

Knowledge curation is a species of the public goods problem we use to justify IP rights in general, but doesn’t lend itself readily to proprietary rights solution, even given limited duration arguments. A governance model can help us understand how curation was managed in the past and how we should design for preservation going forward.

Why move from creativity to knowledge? Lawyers sometimes lose track of difference between creativity as characteristic of human mind and creativity as something external to the mind. We should focus our policy on external manifestations of creativity. This emphasizes the social character of knowledge and how people interact with knowledge and with each other.

Forms matter: when we talk about creativity and innovation generally, we talk mostly about processes rather than objects.

Problem: if you look far enough into the future, the present value of having an undistorted/preserved version of a creative work is basically zero; hard to put into the IP scheme. Gift economy may work better than public goods model. Likewise, we haven’t come up with a good, granular sense of what happens when you put items into the public domain: how do you end up with knowledge goods that are durable over time (Shakespeare) and ones that aren’t (as social singing has been). Mechanical licensing—offers new musicians the ability to copy existing compositions, so long as you maintain a certain level of identity with the prior work—expresses a value judgment about copying identical works. We thus have a collection of pop culture recordings that preserve the original while advancing the interest in the new. But that’s the exception rather than a rule.

Governance model: commons structured around the idea of sharing. Populations or communities defined either external or internal to the practice. Community has rules, and sanctions, for appropriation and for when you have to return borrowed/shared materials to the common pool. IP regimes remain useful but not central. Moral rights, geographic indications, TM become useful for maintaining character—these are not generally thought of as responses to the public goods problem.

Curatorial practices: distribution of copying; performance; infringement—the Bing Crosby example shows how infringing copyright interests can be a way of preserving things. Adrian Johns’ book Piracy talks extensively about this. Museums, archives, libraries: collections in their own right are mechanisms for curation, but they’re not exclusive.

Why do we need a theory of knowledge curation at all, when intangibles don’t degrade? You can’t take for granted that ebooks will be preserved—format questions/quality of curation (similar to concerns in DMCA rulemaking about needing high quality source) can be brought in.

Roberta Kwall: If the female voice had been embraced historically, would the law look different?

Me: There are two versions of this—maybe the world would look the same except more of the people making money would be women; I don’t think so. My analysis would imply cutbacks in the derivative works right and in substantial similarity analysis.

Fromer for Arewa: How important is fixation in your analysis?

Arewa: We could easily address sound recordings as performance, taking the ability to fix in that way more seriously. But she also wants to recognize the building blocks of new works as building blocks, think of infringement as intepretive process. Right now we base infringement analysis on the written text; basing it on performance would be very different. Her preference would be to open more space for different types of creativity.

Buccafusco for Arewa: Elite French cuisine had the same type of sacralization Arewa describes, but then that changed in the 1970s. Movement was based on market/social preferences, not changes in IP. Could the market do a better job?

Arewa: Sacralization was a broad 19th century trend, not limited to music—happened with museums too. Unlike cooking, music already has copyright constraining and shaping the markets, so you can’t say just change the market. Things people didn’t worry about in the music industry 10 years ago are claimed as infringements now.

Buccafusco for Madison: What’s valuable? There’s a tension between authenticity and creativity.

Madison: He calls his topic “curation” not just preservation because there are value judgments involved. Copyright hides them but he doesn’t want to. 3 possible arguments: (1) History is valuable in itself. (2) Classic copyright presumes the existence of building blocks, but we need to talk about how we get those building blocks. (3) Objects, tangible and immaterial, are important for groups—they are focal points and boundary objects—this builds some circularity into his argument. We know objects are important to other levels of social activity. Social singing isn’t completely gone: people are emulating Glee on YouTube, reworking the form.

Q: What about dilution? It’s easy to take film clips out of context.

Me: Dilution is bunk. Authors have never been able to stop (mis)interpretation; they just didn’t have so many opportunities to hear about it in the past. Everyone should be able to participate in conversations about the meaning of our culture and its productions. Criticism doesn’t have to be fair; critics should get to use visual evidence, and there is nothing wrong with using persuasive techniques, including music—which is well-recognized as an important way to evoke emotions, structure reactions, create deeper meaning.

Madison: does not think curation is a justification for expanding dilution rights.

Arewa: in copyright we often focus on appropriations from “original” work but those works took from something else. A lot of music is alike because Western music has 12 notes/common chord structures.