A Remix Manifesto for Our New Copyright Czar

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.

 

 

Follow Jonathan Melber on Twitter: www.twitter.com/ARTWORKbook

Comments

[ChrisCastle]

Jonathan, I noticed that our article was quoted here so took a closer look at your piece. I suggest that there is not much difference between the legal issues surrounding remixes today than those we faced in establishing a market for remixes and sampling 20 years ago.

Good mashup licensing practice starts with consent by the sampled artist. The sampled artist has the right to make the creative judgment of how their work and persona are represented, and whether they respect the new work.

It’s not fair that their persona can be taken against their will by unauthorized copying--or as Professor Lessig would say "what the industry calls piracy". Yet a Constitutional right without a remedy is no right at all.

Remixing arguments reveal a more fundamental point—should society continue rewarding individual authorship, or introduce a new tradition (at least in Berne countries) of rewarding the collective and elevating the collective above the individual. The answer determines whether we authorize a success-based formula or a reward for showing up, like your collective licensing concept.

I’ve studied this problem for a long time and suggest to you that the only way the collective licensing regime works is if the government mandates the license and inevitably the price—and artist wages. That would give the government a greater role than they have ever demonstrated an appetite for in the past.

So call your Congressperson and good luck to you. A lot of people will meet you in the channel.

[Jonathan Melber - Huffpost Blogger]

Chris, I appreciate your thoughtful comments.

Is there any sort of compulsory p2p licensing scheme you'd support? I take it the answer is 'no,' because you it would require government-mandated licenses, but if that's what you're saying, why do you consider such a scenario to be a "greater role" for government than, say, the government setting statutory rates for mechanical licenses?

I believe in artists' moral rights generally, but with sampling, I'm not sure "The sampled artist has the right to make the creative judgment of how their work and persona are represented" if you mean the right to block representations the artist doesn't like. I think most sampling should count as fair use and that one artist shouldn't need permission to make transformational work out of another artist's material. I take it you see most sampling as less than transformational?

I also don't see how remix is about choosing between elevating the individual or collective. What Walt Disney did with public-domain works was transformational, creative and valuable. Rewarding him wasn't elevating the collective over the individual. What Jeff Koons did with a fashion ad was transformational (per the 2nd Cir.); letting him do it without seeking permission from the photographer didn't elevate the collective over the individual. If you believe that digital remix artists are doing something similar, then allowing them to remix isn't elevating the collective either. Do you disagree with that logic, or is it that you don't think the remix analogy holds up?

[neilturkewitz]

Jonathan:

Yes, I am indeed the executive vp at RIAA. A couple of responses. First of all, you suggest a potential ISP levy as a solution. I strongly suggest that you read the article by Chris Castle and Amy Mitchell entitled "What's Wrong with ISP Music Licensing.­" One excerpt: "Conspicuously missing [in proposals for such a levy]is a discussion of transaction costs, monitoring, indemnification, accounting, auditing, and—perhaps most importantly—the identity of the licensor and the specific content." The levy notion has faced broad and reasonable opposition from nearly every sector of society. It is a form of rough justice that satisfies no one. Society can do better. Negotiated deals with a variety of music service providers, and hopefully with ISPs who want to offer their users with easy access to legitimate content, is a much more sensible and flexible way to build an infrastructure for online distribution.

you also ask whether by "massive theft of intellectual property," I am referring to "allegedly illegal music file-shari­ng." no I am not. there is nothing allegedly illegal about unauthorized file sharing. the unauthorized distribution of music over the internet is illegal. on that there is no legal question.

finally, we don't think--and never did, that "20,000 lawsuits against music fans" is the solution. The solution is individual and corporate integrity, honesty and accountability. the question is how to get there.

[Z James Prokulewicz]

"A return to a copyright policy that truly fosters creativity", says it all.
If you sample, cut and paste, or whatever .....pay the artist that you borrowed from. End of story.

[neilturkewitz]

Melber believes that the priorities for the new IP Coordinator should be to address a perceived overbreadth of copyright protection that has allegedly stifled new forms of creativity built on the reuse of pre-existing materials. He, like many in the copyleft community, seems to think that this is the most pressing issue of the day. But can the rational observer really look at the state of the internet and conclude that the biggest problem that we face is the overbreadth of copyright protection and the prejudicial impact on the creation of new works?

In short, Melber is right while being completely wrong. Fair use is important, and we should maintain a dialogue to ensure that our legal system continues to incentivize the creation of new works. But the current issue that has the broadest impact on the creative community and society has nothing to do with fair use, and everything to do with massive misappropriation of copyright works that undermines conditions for maintaining a professional class of creators. If Melber first helped to address the massive theft of intellectual property that takes place every day on the net, he might find much more fertile ground for a reasoned discussion about the implications of a read/write environment, and how copyright laws and/or practices should be modified—or not—to take this into account.

[Jonathan Melber - Huffpost Blogger]

Hi neilturkewitz,
I can't tell if you're the same Neil Turkewitz who is Executive Vice President of the RIAA, http://tinyurl.com/yczmd2ss) but I'm guessing that by "massive theft of intellectual property," you're referring to allegedly illegal music file-sharing. I wrote that the documentary RiP makes its point focusing on remix; I did not say that remix is the only pressing copyright issue today. *Of course* I agree that file-sharing technology has had an enormous impact on the creative community, and that a solution to the problem is long overdue. I think 20,000 lawsuits against music fans was not the solution. I think the solution lies among the various p2p compulsory-license schemes that rational observers have been proposing for more than a decade, because such schemes would compensate musicians, encourage technological innovation and decriminalize an activity that the RIAA has thankfully, belatedly realized it cannot stop through litigation. Here's one proposal that provides, I think, fertile ground for reasoned discussion: http://tinyurl.com/2nsbkb.

[DaveinNorthridge]

I think we need to clarify something here. The reason that the copyright law now says 70 years, and will likely be extended yet again the next time it's up for review, is based on the creative control one company wants to maintain over one of its products. The company shouldn't surprise you -- it's Disney, and neither should the product - Mickey Mouse. Nothing will change unless someone finds some way to get Disney to change its position. The consequences of Disney's protection of Mickey Mouse are what's bedeveling music.

[calamityjohn]

valid points ... but I would guess very few remix artists are basing their work on sampling Count Basie, Ellington, Bartok, or Stravinsky ... I would guess that 99.999999% are sampling the work of musicians that are still living.

[rjmiller]

Because of the length of copyright, every single American is a copyright criminal. Have you ever sung the birthday song? Unless you paid a performance license, you're a criminal.

It's obvious that copyright is far, far too strong. The purpose of copyright is to give artists incentive to create. If artist's work hit the public domain on creation, their work would be immediately stolen and sold by whoever could get it in stores first, so we originally gave artists a short term of monopoly control to get paid: 14 years. This made perfect sense.

Somehow, our copyright laws now give control for the lifetime of the artist plus 70 years.

Why? Jimi Hendrix isn't going to play another guitar solo and John Lennon will never write another song. They're dead. No matter how much money you throw on a corpse, it isn't going to get up and start singing, so why bother? We have no reason to continue allowing their estates or their publishers to control our culture.

[BlackJAC]

It's for their families. Once again I forget that the Thirteenth Amendment doesn't apply to entertainers.

[rjmiller]

It's not for their families, it's for their publishers. But even if it was for their families, they shouldn't have control over our culture either. Do you really think the birthday song should be a protected work? That Beethoven's 9th Symphony and Dylan's "Blowin' in the Wind" should be treated that differently (well maybe, Dylan isn't dead)?

Is a song that different from an invention? Patents are granted 20 year terms because technology can be used differently for innovation. So can songs.

Copyright should be granted for a term of 20 years, renewable by the living artist.

[watchTVgetSTUPID]

Czars are corrupt insiders who have nefarious agendas. Look at Wagoner the car czar.

Obama forced GM to abandon millions of loyal Saturn customers. GM's CEO Waggoner tried to save the company and jobs but Obama's car czar Rattner would not have any of it and forced Waggoner to resign. Then Rattner replaced GM's board of Directors with his own followers. Rattner's outsiders now controled GM and announced GM would eliminate Saturn, Pontiac, and 2,000 dealerships. Millions of loyal customers who have been stabbed in the back by Obama's car czar will now buy foreign imports.

OBAMA HAS BECOME THE DESTROYER OF AMERICAN JOBS

[oscify]

first of all, you make no point relating to this article. secondly you seem to be forgetting that saturns and most gm cars are crap which is part of why they filed for bankrupcy. third, this article is right on the money

[andygaus]

A lot of stuff mushed together here. What is analogous to quoting in prose is not assembling a composition from samples, but rather sticking in a phrase of a song the way that George M. Cohan's "Grand Old Flag" quotes "Auld Lang Syne." ("Should auld acquaintance be forgot, We'll remember the grand old flag.") Taking somebody else's tune and writing new words and distributing it without permission is NOT something that copyright should allow. As for the composition from samples, it could be argued that taking somebody else's work in very small pieces is what every writer or composer does, but you shouldn't be swallowing large chunks undigested.

The main issue, I think, is sheer length of copyright. The copyright should protect only the actual creator, not the grandchildren or the lawyer for the estate 60 years later. If I could rewrite copyright law, copyright would last for 70 years or 20 years after the author's death, whichever came sooner. And I would go back to the system where you must renew after 30 years or let it lapse. That provision used to allow a lot of free use of old reference books and things that were no longer being actively sold.

[marxmarv]

How it's supposed to work is that copyright in sound recordings can be transferred for 35 years but then reverts back to the original author. I believe the original author will be rather more observant of the cultural contributions their work has made and less concerned about the value of their catalogue.

But you can't really rewrite copyright law, and neither can anyone (except, apparently, for The Mouse).

[Jonathan Melber - Huffpost Blogger]

Thanks for these points, andygaus, which are well taken. I agree that copyright terms are too long, and that we should return to a system that requires renewal. That would put more culture into the public domain more quickly, which by itself would address some of the issues you raise about "taking" what other people have created. I think it's possible to strike a balance that achieves this goal while still allowing artists to profit from their work.

[yakmeat]

As a musician and composer, I think that the copyrights of the original artist should always be respected. But (being an electronic musician) I also have to acknowledge that the "remix" has grown into an art form of it's own that should be allowed to grow.

There should be some balance in the law that enables the creators of original content to be compensated when it is used, but at a reasonable and proportionate rate.

For example, if I create a song that uses a sample of one of Eddie Van Halen's guitar squeals, perhaps Eddie should get 2% of my profits. If my song makes me $50 million, I can probably afford to give Eddie his $1 Million cut. But if I only sell 39 downloads on iTunes, I won't go bankrupt giving Eddie his 77 cents.

This makes sense for Eddie too. Right now, If he hears my song and decides to sue me for everything I own, he'll get a nice used car and some student loan debts. His lawyers will cost him more than it's worth. But if I make millions of dollars using a sample of his music, suddenly it's worth the cost of legal action.

Establishing a standard and reasonable percentage scale based on the amount of content used and the amount of profits generated could encourage artists to create new music with "used" sounds but still ensure that any revenue generated would be shared with the original artist who created the source material.

[yakmeat]

As a musician and composer, I think that the copyrights of the original artist should always be respected. But (being an electronic musician) I also have to acknowledge that the "remix" has grown into an art form of it's own that should be allowed to grow. There should be some balance in the law that enables the creators of original content to be compensated when it is used, but at a reasonable and proportionate rate.

For example, if I create a song that uses a sample of one of Eddie Van Halen's guitar squeals, perhaps Eddie should get 2% of my profits. If my song makes me $50 million, I can probably afford to give Eddie his $1 Million. But if I sell 39 downloads on iTunes, I won't go bankrupt giving Eddie his 77 cents.

This makes sense for Eddie as too. Right now, If he hears my song and decides to sue me for everything I own, he'll get a nice used car and some student loan debts. His lawyers will cost him more that it's worth. But if I make millions of dollars using a sample of his music, then it's worth the cost of legal action.

Establishing a standard and reasonable percentage scale based on the amount of content used and the amount of profits generated could encourage artists to create new music with "used" sounds but still ensure that any revenue generated would be shared with the original artist who created the source material.

[oscify]

great artists are just better at hiding their influences

[calamityjohn]

there are differences between influences, plagiarism, and theft

[BlackJAC]

So basically, by your own admission, an author's children should starve once he dies.

[benjismith]

If the artist didn't save enough cash to leave any inheritance to his children, and if the artist's children don't get a freaking job of their own, then...uh.­..yeah. They should starve.

I think it's silly that someone should receive ongoing royalty checks for the creative works of their parents.

My dad designed the navigation systems on the NASA New Horizons mission to Pluto. His work (and the work of his team) advanced the scientific state of the art and will doubtlessly influence future space exploration for generations.

When my dad passes away, should I expect to start getting cash from NASA for the rest of my life? What about my children? Maybe they should be entitled to get some of that mojo too.

[TAFL]

There are compelling and cogent arguments to be made for copyright reform...a­nd this wasn't one of them. I'll suggest you gain a better understanding of monopolies and plagiarism before trying again.

[beachmom]

Thank you for a very thought provoking essay. I am not sure what is right here. It seems at some point that the music needs to go public domain. Like Mozart or Beethoven. But there wasn't recordings in the 1700s or 1800s, so I am not sure how that would translate to today. Thing is an artist needs to eat, and that is my main concern. But what I do know for sure is that music companies are getting way too big a cut of royalties. A bill in Congress to make terrestrial radio pay performance royalties gives an interesting detail: 50% goes to the record company, while the rest must be shared by the main singer and all back up musicians & singers. That does not look fair to me.

[marxmarv]

It's a good incentive to self-publish. You don't need $50k to make an album anymore. You don't even need $5k unless the only percussion instruments you own are pots and pans.

It's also a pretty good incentive to be a session performer.

[CABon]

Apples and oranges. Apples are crisp, hard, definable, much like the written word where you can attribute credit or plagiarize, but if you plagiarize you get kicked out of school or fired from your job. Oranges, on the other hand, squirt all over the place and you're never really sure what part of the orange or even which orange, that juice that landed on your shirt or in your eye, came from. So you can't credit or blame. Borrowing other people's creative works without their permission or giving them due credit is just wrong.

[Rogan]

Tell me: do you strain metaphors, professionally?