Fresh Scholarship on Copyright

For quite some time, too long perhaps, a considerable amount of academic scholarship has trended toward focus on copyright’s negative effects, or at least doubt its positive effects, without adequate analysis of the creative process itself.  When viewing the market, and especially creators, many academic views I have encountered appear to look solely at finished works, how the market interacts with those works, and then to interpolate from these data the creative process that generated the works in the first place.  As such, many attempts to reinvestigate copyright’s role in incentivizing production are incomplete. To quote from a new academic article that will be published in the March 2015 issue of the Harvard Law Review, “Copyright’s incentives/access debate has done a good job recognizing the risks. Yet it has all but ignored the rewards.”

At last, a legal scholar has emerged who has taken a scientific approach to examine the creative process in an effort to better understand copyright’s generative benefits.  Joseph P. Fishman, Climenko Fellow & Lecturer at Harvard Law School, is the first academic to my knowledge who has attempted to express in analytical terms what I believe most artists understand intuitively — that constraint is always part of the creative process, and that copyright’s constraints very likely produce a greater diversity of works than we would see in a market without such constraints.

In his paper, Fishman refutes the often misguided assumption that creative people require “absolute freedom” in order to be more creative.  Artists and creative producers understand that a process without constraints (or boundaries) is not a process at all but a road to madness or failure or both.  A novelist does not arbitrarily pick themes and plot devices and language as she goes, but makes firm choices and either sticks to them or changes them wholesale in the book in order to produce a story that her readers will want to follow.  Most of us are familiar with the Michelangelo-attributed quote about sculpting being the act of “cutting away everything that is not the angel.”  Fishman has quantified that metaphor in his paper titled Working Around Copyright.

The title refers to a well-established and accepted benefit of patent law that “working around” patents generates the kind of diversity of useful inventions that benefit society exactly as intended.  Fishman’s thesis asks why this same working around principle is not applied to legal scholarship on the subject of copyright.  Why would working around copyright not be as diversely generative as working around patents?  Experientially, creators will tell you that it is.  And now Mr. Fishman has applied legal theory that corresponds with that experience.

Last July, I wrote this post describing how the creative process is always about working around obstacles and that obstacles — legal, financial, physical, logistical, and internal — are often the most important catalysts to producing unanticipated, creative solutions that themselves become the signature elements that give a work its unique or masterful qualities.  Shortly after publishing that piece, Fishman contacted me, still in the early stages of writing his paper.  We spoke for a while, and his article does cite that October post, but what I did not know was that he would produce such a thorough and scientifically-based explanation of what artists throughout history have consistently described anecdotally.

Citing extensive psychological research into the creative process, Fishman demonstrates that there is an optimal balance to be maintained between constraint and freedom.  Too much constraint fails to produce creative diversity, but so does too little constraint.  In order to view the creative process as a science, Fishman rightly describes artistic work as an exercise in problem solving no different from the activities of a scientist or technologist.  We tend to talk about the arts in emotional or poetic terms, but Fishman is right that the process is entirely analogous to problem identification and solution.  As such, the psychological experiments to which Fishman refers throughout his article suggest that a purely “open” process free of constraints produces less creative variation than a process with the right amount and right types of constraints.

Fishman contrasts various experiments in constraint with the path-of-least-resistance approach (i.e. freeform) to creative development; and in a copyright context, a path of least resistance might be the ability, for instance, to riff off any existing creative works without the permission of rights holders.  But Fishman explains, “Following this path of least resistance inhibits originality, and hence creativity, by launching a mimetic approach to problem solving.”  To translate that into a contemporary example:  the world would be more boring with a hundred simultaneously available Sherlock Holmes derivatives than with, say, one or two of those while creators are forced to invent other works.

One analogy that came to mind while reading Fishman’s article was child-raising.  You’re probably familiar either with the concept or the unfortunate experience of the young child whose parents allow him to “express himself” insofar as he is given few if any boundaries.  Those of us who have witnessed this catastrophe in action know that the unbounded child is not only a brat, but is a thoroughly unoriginal brat incapable of producing creative solutions, even if his parents might see genius in his mischief.  But the child who is given appropriate boundaries balanced with appropriate freedoms will produce volumes of creative work though play acting, building, arts and crafts, etc.  As engaged parents, we constantly try to find that balance between constraint and freedom that produces a person capable of creative (i.e. original) problem-solving skills, but we know for sure that the child without any constraints is a recipe for trouble.  It seems to me that Fishman is seeking an analogous balance with copyright law.

The article even goes so far as to create a taxonomy of constraints, identifying seven properties for examination with regard to their generative or restrictive effects.  With the first of these properties, Source, he discusses chosen vs imposed constraints, which is an interesting and important division to recognize.  An artist or group of artists will embark on a project with myriad imposed constraints (time and money always at the top of the list), and will need to pick a number of chosen constraints that actually give shape, texture, and voice to the finished product.  I would add to this taxonomy a third subcategory under Source that most artists probably understand, and this would be innate or internal constraints.   In fact, any artist who looks first at external constraints and not at internal ones may have to consider the possibility that his biggest barrier is that he is not in fact an artist.

 When I was still in college, I spent some time thinking about various artistic media in terms of their constraints, operating from the premise that these boundaries are in fact what define each medium and are, therefore, the source of their power to affect us as we want art to do. After all, when one attends a class in a medium, say photography, discussion begins with the boundaries of the medium, even though we don’t usually think of it that way.  New photo students will begin to consider composition, light, two-dimensionality, color, all of which are boundaries that define a thing we call a photograph as something distinct from, say, looking at the subject of that photograph in real life.  Or to put it another way, a constraint on a photograph is that it cannot make a sound, but a power that it has is that it can make the viewer perceive sound without hearing it and thus offer an experience that re-contextualizes “real life,” which is what art is supposed to do.

This contemplation of boundaries is particularly relevant, I believe, to filmmakers because film more than any other medium trades on a gestalt that what is being experienced is “real.”  Even the most fantastic on-screen world in a narrative film tends to draw viewers into an immersive experience that is more visceral than with other media.  Additionally, the hundreds of dynamic variables, choices, and obstacles that are constantly being managed in order to complete a motion picture ought to make filmmakers particularly cognizant of the generative power of constraint.  The line between an imposed workaround and a brilliant creative choice is so blurry as to be absurd.

In his article, Fishman mentions standup comedy, which is a medium that probably deserves more study than it gets in this context. He writes,  “In stand-up comedy, for instance, the reputational cost of appropriating others’ jokes stimulates continued innovation in developing new ones.”  What’s interesting about that world is that comedians don’t need copyright per se to protect their jokes because it is an unspoken rule that stealing someone else’s material will very quickly ostracize the thief from both fans and peers.  Some might view this as evidence of copyright’s irrelevance, but to Fishman’s point, it should be viewed as an endorsement of constraint’s generative capacity.  The accepted boundaries among comedians force them to work harder to find their own voices, which adds to the diversity of comedy rather than homogenize the medium.

It is heartening to see a legal scholar make the effort to examine the pros and cons of copyright from a creative-process perspective.  It is also about time.  I sincerely hope others in Mr. Fishman’s field take note.

See Working Around Copyright by Joseph P. Fishman here.

Posted in Art, Copyright, Law & Policy | Tagged , | 12 Comments

Google Unveils New Shiny Object in D.C.

If Disney built a miniature version of one of its theme parks in the middle of Washington D.C. and populated it with lobbyists and government affairs specialists, people would go berserk.  And rightly so.  But will there be any public reaction be to the new 54,000 square-foot fun zone Google,Inc. officially opened on July 15 with a grand party attended by lawmakers?  That’s not a typo.  It’s fifty-four thousand square feet for 110 employees.  I’d like to say that each employee needs 489 square feet for his/her Google-scale ego, but that would be unfair.  In fact, according to this article in Bloomberg, all that space is a giant advertisement for Google products and for Google’s role in the continuum of technological and scientific information. And there’s nothing wrong with that message.  That’s what lobbyists are supposed to do, and at least part of the time, they speak the truth.  But as Google is now the fifth largest lobbying corporation in the nation, it should at least be noted that when it comes to dangling shiny objects in front of lawmakers, they’ve got ample game.  As such, I hope we can now dispense with the whole “Washington is in Hollywood’s pocket” gibberish and attempt to look at conflicting issues on their own terms.

See article in Bloomberg here.

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With easy access comes easy hypocrisy.

I can’t help but be aware of a disturbing harmonic buzz in my head when I read two stories on the same day that point to a particular digital age dichotomy. Remember Sarah Jones? You might have helped her story go viral. Sarah was a camera assistant, who was killed when she was struck by a train during filming of the Gregg Allman biopic Midnight Rider. I read today that the producers of that now-cancelled project have surrendered themselves to Georgia State authorities to face charges of involuntary manslaughter stemming from the February 20 disaster. But also today, I read that the app Popcorn Time, which makes movie piracy easy for everyone with its Netflix-like interface, is being “improved” for the Android platform. The hypocrisy underlying the concurrence of these stories is typical of our times. The same technology that enables people to know about Sarah, to share her story, even to join the campaign pledging better on-set safety, also allows some of the very same individuals to flick a thumb and start pirating motion pictures that are made by tens of thousands of people just like Sarah.

Here’s a clue:  if you enjoy motion pictures and actually care at all about the well being of the individuals who do the heavy lifting to make those films happen, don’t pirate. It’s a no-brainer. In an effort to justify this behavior, you can quibble all you like about where you think (because you actually don’t know) the money goes; but in general, the money (a.k.a. the project investment) pays for worker wages, union support, insurances, location fees, and, yes, safety procedures and personnel. Unfortunately, accidents and negligence still happens; and it is always the responsibility of managers and fellow crew members to keep checks on our ingrained culture that wants to get the shot at almost any cost. Surely, firsthand accounts of the Midnight Rider production sound like the kind of amateurish crap that goes on all the time and thankfully only rarely results in serious injury or death. So, while I’d certainly stop short of saying piracy kills filmmakers, I will not hesitate to say that, in general, economic stability is better for maintaining worker safety in every industry. Andwe have yet to fully see the effects of piracy on this industry.

We have a bad habit of talking about piracy with regard to finished and popular filmed entertainment. Partly, this is because it suits piracy’s supporters to say things like “XYZ tentpole made a gazillion dollars, so piracy does no harm and probably even helps.” But for every Avengers and Game of Thrones out there, there are hundreds or thousands of small and medium budget pictures being made, many of which are the films most treasured by serious fans. 

Digital-age utopians love to extoll the virtues of independent, guerrilla filmmaking; and when they do, it’s a little like listening to middle-class white kids gripe about the struggle of some oppressed minority. It’s both true and utter bullshit at the same time, especially if the self-appointed proponent of indie filmmaking is also pro-piracy. The reality is none of these people has a clue about the very specific set of skills Sarah Jones had developed and was developing in her role as an AC. Those skills don’t come cheap, and neither should they. But among the indisputable ill effects of piracy is that it exerts economic pressure on the industry as a whole, and it will always be the small to midsize, indie producers that will present the earliest symptoms of the diseases caused by this pressure. These symptoms may include lower standard wages for skilled workers and/or shortcuts around various production practices that affect general working conditions, including safety. 

Yes, Sarah’s untimely and entirely avoidable death should be a wake-up call to production teams everywhere to remind themselves that no film is worth unreasonable risks to a crew member’s safety. But as this tragic story also draws attention to the many otherwise invisible hands behind the scenes, perhaps consumers ought to consider their responsibility to support a sustainable industry rather than casually line the pockets of poachers who do absolutely nothing.

Posted in Film, Piracy | Tagged , , | 21 Comments

Talking to Jennifer Lyn Morone (Podcast)

I don’t think it’s a coincidence that we are presently grappling with existential questions posed by big data and at the same time, considering the social implications of rulings by the supreme court in both Citizens United and Hobby Lobby.   In fact, I believe we have an unprecedented mandate at this point in history to more rigorously consider the distinction between human beings their inventions. The nature of existence itself is changing as we atomize experience into data that is bought and sold as a new commodity.  At the same time, many of us in the United States are concerned about the precedents set when corporate entities appear to be endowed with the same rights as living beings.  A corporation is a tool.  Technology is a tool.  But whether us makers are using these tools or they are using us is a question yet to be answered. And examination includes choices about personal privacy and the economic value of ourselves as expressed in a body of data.

Jennifer Lyn Morone, Inc from jennifer morone on Vimeo.

Talking to Jennifer Lyn Morone Part I "Talking to Jennifer Lyn Morone Part I"
Taking to Jennifer Lyn Morone Part II "Taking to Jennifer Lyn Morone Part II"
Talking to Jennifer Lyn Morone Part I "Talking to Jennifer Lyn Morone Part I"
Taking to Jennifer Lyn Morone Part II "Taking to Jennifer Lyn Morone Part II"

In this podcast, I talk with Jennifer Lyn Morone, who is in the start-up phase of bringing to market Jennifer Lyn Morone™ Incorporated.  An American artist who has lived in Europe for more than a decade, Morone has chosen to address these social, economic, and existential questions with a venture that is part experiment, part cultural statement, and part business.  By incorporating herself, Jennifer Lyn Morone will now be the CEO of Jennifer Lyn Morone, Inc., and that means literally treating her life, her experiences, her knowledge, even her biological data, as a set of assets to be fully managed and monetized at the discretion of the corporation.  This Fall, Morone will begin using a combination of cameras and data recording technology to track her activities and store information on servers controlled by the corporation.  I think this is not going to be just another example of web-enabled voyeurism.  Morone is serious about the business venture, and she’s eager to share what she learns as she explores the dual nature of being both a person and a corporation.

Visit Jennifer Lyn Morone™ Inc. website.

Posted in Digital Culture | Tagged , , , , , | 1 Comment

So wait, Google is pro censorship?

Sometimes one is confronted with an absurdity so self-evident that it defies an introductory sentence.  So, I wrote that sentence instead.  But what’s got me gobsmacked today is a story by Adam Sherwin writing for The Independent explaining that Google insisted the popular music site Drowned in Sound censor images of certain album covers on the grounds that they are “sexually explicit” and, therefore, violate existing policy that Google will not serve ads to sites with “adult or mature content.” Really?  Last I checked, half of Google’s arguments for failing to address matters like contributing to piracy were based on a stance against censorship.

First of all, I can login to YouTube right now, search the word sex, and get scads of results with sexually explicit thumbnails.  In fact, many of these thumbnails link to videos that are not so explicit as the pictures imply. So, I guess it’s okay for Google to use pornographic thumbnails in a bait-and-switch ploy to get users to click on videos that are ad supported, but if an artist depicts the naked human form (newsflash, artists do this sometimes) in a painting or other medium, then Google can arbitrarily label it “adult mature content” and out of bounds? I know one man’s art is another’s pornography, and this subjectivity is an important standard for the protection of free speech; but somehow mainstream advertisers seem to know pornography when they see it because you won’t find their brands on actual pornographic sites (I asked a friend).  But consider this…

One of the covers targeted by Google for censorship was for the album OH (Ohio) by the band Lambchop.  The irony in this case is pretty thick considering the painting depicting two lovers in bed in the foreground with a scene of police brutality through the window in the background evokes of one of the most famous visual themes in the history of Western art — that of Olympia.  Probably the most well-known and most overly-adapted Olympia is Manet’s painting of the nude courtesan, which debuted in 1865.  It was scandalous in its time, not so much for the nudity but for the blatant depiction of a prostitute looking right at the viewer. The Lambchop cover is a painting by artist Michael Peed, a friend and former professor of frontman Kurt Wagner, and Peed references the familiar Manet composition to create a scene that is provocative in our times.  The counterpoint between the intimacy of the lovers and the abuse by the police is a wry statement that one can interpret as one may choose, but that it should be censored by Google of all entities has got to at least make you wonder what all their pro-culture, pro-speech horse shit is all about.  Take this for what it’s worth, but the censored version with pixel blurs over the “naughty bits” inadvertently makes an even more disturbing statement about America — that sex remains offensive while police brutality is not.  Well played, Company That Shall Not Be Evil.

We should not lose sight of the significance of an entity like Google exerting its influence, even in this small case.  An individual advertiser may, and should, choose what kind of media associations best suit its brand.  You probably won’t see Betty Crocker commercials during Adult Swim, for instance.  But should an ad service business — and in this case the only ad service business –  be entitled to arbitrarily label creative works “sexually explicit” and requiring censorship? If Peed’s painting meets that definition, then so does nearly every nude in every museum and gallery in the world. I thought the Internet was the proverbial garden of free expression.  I also thought Google was just a neutral highway that has neither interest in nor responsibility for the manner in which users drive.

Admittedly, even for Google-scale hypocrisy, it is an enigmatic choice to commit such a blatant act of censorship where there isn’t even a hint of gray area regarding the works in question.  Is this the result of killjoy bots?  Or is it a sign that Google will soon be throwing even more prudish sops to its new conservative friends among DC influence-peddlers?  No matter what the thinking (and I use that word generously) may be in this case, the disturbing implications of the precedent cannot be overstated.  To be outside the Google universe is to be effectively off the web, at least as far as monetization goes. This is an absurd amount of power for any single company to wield. And seeing as we are no longer able to distinguish between corporations and people in the United States, I’m not at all ready to let the whims of centaurs in Silicon Valley or anywhere else define what it means to be indecent.

Posted in Digital Culture, Free Speech | Tagged , , , , | 2 Comments