President Obama just appointed Victoria A. Espinel to be the first U.S. copyright czar. The position sounds like one more unnecessary addition to Washington bureaucracy (and it probably will be), but Espinel actually has a real opportunity to help fix our profoundly broken copyright laws, which--rather than fostering creativity, as they were originally intended--now inhibit it at every turn.
Over the last century our copyright system has been co-opted by large corporations whose profit motives often conflict with the fundamental goals of copyright policy. Indeed, the job of copyright czar was created as part of yet another industry-approved intellectual-property law that ratchets up enforcement and strengthens copyright protection despite any real evidence that such measures are necessary, let alone desirable. (Full legislation here.)
If she hasn't seen it, the first thing Espinel should do is watch RiP: A remix manifesto, Brett Gaylor's superb documentary about the serious social and economic damage caused by our overly aggressive copyright regime.
The film makes its point by focusing on the culture surrounding remixes: those multimedia, digital mashups that exemplify expression in the internet age. Its central character is the popular musician Girl Talk (Gregg Gillis), a remix artist whose songs are made entirely from digitally manipulated samples of other songs. Gillis' instrument is his laptop. Given the history of music as one of influences, sampling and (analog) remixing, he doesn't see what he does as any different from what Led Zeppelin did when they took "You Need Love" by Muddy Waters and turned it into "Whole Lotta Love."
Copyright law doesn't treat Girl Talk like Led Zeppelin, though, because Girl Talk composes from exact digital copies of his source material. So he either has to hope he doesn't get sued, and plan on claiming "fair use" if he does, or pony up the license fees--which would run, according to RiP, about $4.2 million per Girl Talk song. (Guess which choice he makes.) Gillis has miraculously managed to go mainstream without getting a single cease-and-desist letter. But that shouldn't be a miracle--it should be public policy.
Remix is about more than good music. It's about our fundamental democratic right to self-expression. One of the most widely acclaimed political statements in the aftermath of Hurricane Katrina was the Legendary K.O.'s "George Bush Doesn't Care About Black People." The track assailed President Bush's response to the crisis with powerful lyrics set to the tune of Kanye West's "Gold Digger." Hundreds of thousands of people downloaded the song or watched the video mashups of it on YouTube. But the song may be illegal, because the Legendary K.O. didn't get permission before basing it on "Gold Digger." And while there is a strong argument that the song counts as "fair use," no record company would risk distributing it without a license when winning a "fair use" battle in court can cost well over $100,000.
("Gold Digger," by the way, happens to be a nice example of historical borrowing in music. As Professor James Boyle documents in The Public Domain: Enclosing the Commons of the Mind, Kanye's song uses a fragment from Ray Charles' "I Got a Woman," which Charles most likely based on Clara Ward's "I've Got a Savior," which Ward borrowed from a gospel standard.)
Professor Larry Lessig, the founder of Creative Commons, describes remix as the multimedia version of writing. Writers quote all the time, of course, because citing others is often the best way to make a point. But, as Lessig explains in Remix: Making Art and Commerce Thrive in the Hybrid Economy, while copyright law allows such quoting without permission (even for commercial use), it practically forbids quoting without permission when you "write" with sounds and video.
In a period when, thanks to digital technology, anyone can make a film or cut an album, this outdated policy has several bad consequences. First, it suppresses a new form of cultural expression. Imagine how much culture would have been lost in the last century had authors, playwrights and commentators needed to seek permission (let alone pay) every time they wanted to quote someone else's writing. Second, given our retrograde copyright policy, the cultural expression that happens anyway (The Legendary K.O. and the millions of other video mashups on YouTube) is at best of dubious legal standing, and at worst a crime. Finally, because this kind of expression is illegal under current copyright laws, we have simply criminalized an enormous segment of the population.
It's worth remembering that, despite the alarmist claims of the content industry, copyright was not created to prop up giant media companies or pad the trust funds of celebrities' heirs. The Founding Fathers were wary of an overzealous copyright policy because they understood what Congress has long since forgotten: that there are significant economic and social costs to granting "too much" copyright. This is because granting someone a copyright is essentially giving that person a monopoly over his or her creation. Since we generally disfavor monopolies, for obvious reasons, the original principle behind our country's copyright policy was to grant only the minimal monopoly necessary to induce the maximum cultural creation. But today, we have something closer to the inverse: maximum monopolies functioning as corporate welfare for the content industry while severely curtailing individual artistic creation.
As the chief US trade negotiator for intellectual property, Espinel has had plenty of opportunity to think about copyright from the content industry's perspective, which is probably why Hollywood and the RIAA are so pleased with her appointment. I hope she disappoints them by pushing for a return to a copyright policy that truly fosters creativity.
A clip from RiP. The film is itself a remix, its fans continually improving on it with newly edited content uploaded through opensourcecinema.org.
The Legendary K.O.' "George Bush Doesn't Care About Black People." Video remix by The Black Lantern.
Jonathan Melber is an attorney and co-author, with Heather Darcy Bhandari, of ART/WORK: Everything You Need to Know (And Do) As You Pursue Your Art Career (Free Press), a professional-development guide for visual artists.