Category: Art

Copyright, copyright everywhere…

There is certainly no shortage of copyright in the news these days, and readers of this blog might wonder about my silence on subjects like the Supreme Court’s ruling in Kirtsaeng or the testimony before Congress by Register of Copyright Maria Pallante calling for the next great overhaul of the law. For starters, when I began writing IOM, I never intended for it to overemphasize copyright as a topic; and I have stated repeatedly in posts and comments that there are plenty of sites (see blogroll) hosted by legal experts in Intellectual Property, which I do not presume to be. In fact, one of my ongoing criticisms of the Web is that its mechanisms tend to bring out the armchair expert on all subjects, regardless of their complexity, which invariably reduces even the most intricate matters to popular sentiment based on prejudices already held before discussion began.  An illusion of discourse heading in no particular direction.

I write this blog from two main perspectives — as an artist working to navigate a changing career in the middle of tremendous upheaval and churn; and as a citizen with a measure of socratic humility, admitting that my observations are limited and that there are always experts who know more than I about many things. I bet if I walked into my local diner and talked to the 50+ crowd, I could gather a smattering of opinions on say North Korea but probably receive blank stares on copyright.  If I did the same thing with a bunch of local sixteen year-olds, I might get blank stares on North Korea and an earful on the evils of copyright.  Odds are, of course, few of these opinions will be grounded in quality journalism, let alone first-source expertise.  Yes, the Internet makes it possible to cut through bumper-sticker politics and acquire expert information, but it’s also a great tool for repeating the bumper stickers, which is why amateurs can make a whole career out of repeating what people want to hear, regardless of substance. So it is with copyright.

If uninformed, declaratives about copyright are the froth in your latte, then TechDirt is the site for you. I read Mike Masnick’s post, for instance, concerning Pallante’s testimony, and the typical blogger thing to do would be for someone like me to critique that post fallacy by fallacy; but the prospect of doing so is almost as tedious as it is futile.  After all, both Masnick and I are about as expert on copyright law as we probably are on plumbing.  Those opposed to strong copyright protections already agree with his post, and those in favor will agree with mine. Meanwhile, I’m betting a large segment of the American population neither knows nor cares to know about the inner workings of these laws; so I often find myself wondering about the value of us amateurs arguing via blog over some of the more fleeting and granular aspects of a legal system that will likely take several years to evolve into its next incarnation.

So, for anyone who reads this blog and is not knee-deep in the gore of the copyright battle, the big picture as I see it this:  I believe the copyright system will change over the next decade or so, but if that change is predicated too much on the self-serving premises of its tech-industry antagonists, the results for artists in particular, and for society in general, will be regressive rather than progressive. It would be like allowing the oil industry to overly influence emissions policy.  Copyright stifles innovation is a popular meme and a cornerstone premise of the entire cabal aligned against the system, but this assertion is never supported by solid examples or data, which leads one to conclude that innovation describes what is contemporary and popular, regardless of whether or not it is economically progressive or, dare I say, fair.  We generalists could boil down the details to  a few fundamental questions when considering the future of copyright:  Is enterprise-scale piracy innovation or exploitation? Is the right of the author a civil right or a government handout?  Is copyright relevant for the individual or just a tool for big corporations?

These may be questions my kids’ generation will have to answer, but in order to do so honestly, they will need to come to terms with certain practical realities that don’t require legal scholarship.  First, they’ll need to recognize that the Internet is not an extension of themselves, but a technological piece of infrastructure over which just a few corporations wield unprecedented power.  Next, they’ll need to see past the selfish habit of acquiring media for free and accept that there is no such thing as an economy based on free stuff, that someone always pays and who pays makes a difference.  They’ll need to recognize that no matter what they believe about big media companies and lobbyists, flesh-and-blood, independent artists and small creative businesses are experiencing tangible and measurable harm. In fact, as I write this, musician and activist David Lowery, speaking at the Canadian Music Week’s Global Forum, just said the following: “The first week our new Camper Van Beethoven album came out, I watched one seed on BitTorrent distribute more copies than we sold.” I think you have to be both daft and depraved to describe this as innovation, and this kind of spin has no business informing the future of copyright.

I was asked the other day by a gadfly baiting me on Twitter if a “win” for me would be the triumph of the RIAA and the MPAA. I don’t know what that means, and neither does the gadfly; but these implicit accusations are typical of the associative politics to which neither conservatives nor progressives are immune.  Such interactions are circular, boring, and meaningless. And the hypocrisy is off the charts. I won’t pretend I’m a legal scholar, but the number of tech utopians who presume to lecture the creative community about how to make albums, motion pictures, and other works is truly staggering.

As I say, this blog was never intended to be all about copyright, and it occurs to me that part of its intent was to share observations from the perspective of developing new film projects in the current landscape. I admit that I am too easily attracted to the broad discussion, and I shall make an effort to steer this blog to be a little more film project focused, if for no other reason than film is next and may be more vulnerable than music.  It’s been a long time since Lars Ulrich was pilloried on the steps of Napster, and today we see musicians, from fairly obscure to the biggest names, coming forward to talk about artists’ rights in the digital age, and not without reason.  The truth is I don’t care if I or one of my colleagues develops a new film as a self-produced project, a deal with a Netflix, a traditional studio, or an established indie production company — whatever best serves the work.  But there is not one of these paths that is not founded on the right of the author to retain first choice in the process by establishing a precedent of ownership in the work.  Beyond that fundamental reality are many intricate details for professionals to work out and a whole lot of amateur-hour bullshit that deserves once and for all to be moved to the fringes of the debate.

Choice Words & The Right to Choose

Photo by David Crockett
Photo by David Crockett

Announcement of the Copyright Alert System just over a week ago brought some new readers to this blog, and among these was one who was offended by this post, which is coincidentally the most-read to date.  My use of the word slavery in context to BitTorrent sites exploiting labor inspired the reader to call me a racist. You can decide for yourself whether the accusation is fair, but the subsequent exchange of comments did leave me thinking about the word slave, which made me think of Prince, who performed in 1993 on Late Show with David Letterman with that very word inscribed on his face. [Date and show name corrected from original post thanks to comment from a regular reader.]

Prince is an unqualified musical genius, and in the tradition of geniuses, he has been as provocative in managing his career as he is with the production of music itself.  It occurs to me, though, that this particular artist also unwittingly personifies so many of the emotional and functional complexities in the business of making and selling music in the digital age.

Presently, the 1984 hit song “Let’s Go Crazy” is at the heart of an ongoing case, Lenz v UMG, brought by the Electronic Frontier Foundation in 2010. The case involves a DMCA takedown of a home video from YouTube depicting a baby dancing in a kitchen while Prince’s song plays on the radio in the background.  The short story is that the video was taken down in error and then restored, which is pretty much how DMCA is meant to work, but of course the video and Mrs. Lenz’s temporary inconvenience aren’t really the point. See Terry Hart’s analysis from August of 2010.

Interestingly, the CAS bump in readership here also brought a new reader/commenter with whom I had discussion about the altruism (or not) of organizations like EFF; and Lenz makes a pretty good example of what looks to me like a group of lawyers making much ado about nothing while hiding a rather large axe to grind.  The general public gets the easily digestible image “Prince sues mother and baby,” even though the suit was brought by Lenz and the EFF.  But the aura of Prince provides good cover for the real motive in this case, which is that the EFF is seeking a ruling that UMG willfully issued takedowns to non-infringing material (because honest mistakes are not grounds for a suit) in order to establish a precedent that would place a higher burden on creators seeking to protect their works online.  Writes attorney Luke Platzer in this guest post at Copyright Alliance:

“…the expansion of the 512(f) standard to challenge the reliability of copyright owners’ takedown processes — thereby forcing copyright owners to use more precise, but potentially much slower processes — appears to have been at least in part EFF’s goal in bringing the Lenz case.”

If you read the recent article in the Wall Street Journal about NBCUniversal’s counter-piracy efforts which can hardly keep up with its notice and takedown process, you might understand why many independent content owners have given up hope of protecting their work online; but by bringing the case in Lenz, the EFF would like to make that process even harder. In fact, cases like this aren’t about the work, they aren’t about the artist, they aren’t about free speech, and they aren’t even about fair use.  They’re about ivory-tower academics making a career out of fighting a problem that doesn’t exist. To paraphrase Hart, DMCA was 12 years old when the case began, and this relatively benign and temporary video takedown was the best example they had to reflect a supposedly comprehensive threat to free speech and democracy.  In fact, the recent misuse of DMCA by NASCAR to remove footage of a crash from YouTube makes a much better example than Lenz, but  Lenz  is already underway.  Still, the fact that Prince is the face of this story is somewhat paradoxical, although not necessarily incongruous, if we understand the mind of the artist.

Where this stuff gets a little complicated for the casual observer is that Prince is in fact an ardent — some might even say obsessive — protector of his rights on the Internet. He has gone to great length and expense to control where and how his work is used but has never, to my knowledge, filed suit against an individual user or fan for infringement. For anyone who thinks copyright is just about money, consider the likelihood, that it costs Prince more to pursue these actions than it is probably worth on the balance sheet. So why does he do it?  I don’t know the man, but I’m going to guess that it’s the same passion that drove him to the performance he gave in 1993 on Letterman.  It is one of the few live TV acts I’ll never forget because it was so strange — this virtuoso guitarist playing as though wrapped in a straight jacket, and scrawled on the side of his face in what looked like black marker, letters organized vaguely into a guitar shape akin to the glyph that would become his temporary moniker, the word — SLAVE.

I do find it fascinating that the same musician who has been unfairly tarred in the Lenz case is the one who can reasonably be described as our generation’s poster child of the artist bucking against his corporate “gatekeepers,” for those who would use that term. In fact, Prince’s frustration with Warner Music back then had nothing to do with money per se, but with the label’s reluctance to release his new album Gold over concerns of “saturating the market.”  Restraining an artist is a difficult thing, and I can only imagine doing so with Prince would be like trying to lasso a stallion with a length of yarn.  Yet even in the years subsequent to these events, even with all the resources at his disposal, Prince has not thoroughly embraced the so-called “permissionless culture” promoted by legal scholars, who perhaps don’t actually understand artists.  Some will assume the motive here is greed, although I would argue that this assumption is likely a misunderstanding of Prince in particular and many artists in general.  What those who don’t create art fail to grasp is that controlling distribution is often a component of the work itself.  This is why an artist as passionate, as obsessive, as prolific, and as influential as Prince will naturally rebel against both a Warner Music holding him back and a Google exploiting his work. And, yes, either form of restraint on his choices can make the artist feel like a slave.

Why is it either/or? Amanda Palmer’s TED Talk

I watched this Amanda Palmer TED Talk “The Art of Asking” over the weekend and  found it both remarkable and inspiring.  Her frankness and humanity are unassailable.  Who can argue with an artist who says, “I put myself and my work out there, I ask to be embraced, and I am embraced”?  Kudos to her for doing it.  Kudos to her for talking about it.  But if we are meant to draw a conclusion that her experience is the new model, as some will claim, I think we’d do well to remember that there is more than one kind of artist and more than one medium; and I don’t know why the principle of creators’ rights is not seen as inclusive rather than exclusive in this regard.

As much as I enjoyed Palmer’s talk, my immediate thought after watching it was about one of my favorite authors whose work is no less provocative in literary form than Palmer’s is in music and performance. John Irving still writes prodigiously in longhand, and his own descriptions of his work habits reflect an asceticism typical of most serious authors.  I don’t think Mr. Irving takes time to tweet let alone crowd-surf, and he is unlikely ever to strip down so that his fans can sign his naked body (at least let’s hope not). But jokes aside, we are blessed to have a society that produces both the Amanda Palmers and the John Irvings; and I don’t understand why anyone thinks we need to choose a system that would favor one over the other.  Believe it or not, the one unifying principle that supports these two artists, as well as all others, is copyright.

Copyright doesn’t say Amanda Palmer can’t mange her career as she sees fit; it says that it is her absolute right to do so.  Combine that right with the First Amendment, and she’s a force to reckon with.  But so is the comparatively reclusive novelist who may best be capable of “connecting with fans” only through his writing. Copyright gives that author the freedom to stay home, indulge in one of the most solitary activities imaginable, and accept publishing deals, if that’s what best serves the work.  And nothing about that model prevents the Amanda Palmers of the world from doing things in a completely opposite manner.

It’s hard enough to be an artist and to seek approval in the form of both praise and patronage, which Palmer makes abundantly clear in her talk.  But creators’ journeys are as varied and unpredictable as the work itself.  In his novel Until I Find You, Irving writes of his actor protagonist that there are two things that can’t be controlled — where your first break will come from, and where that break will lead.  Amanda Palmer is lucky to have found the harmony between her work, herself, and her approach to marketing; and I think there’s a reason we see musicians find this balance more readily than some artists in other media.  But why does Palmer’s success in this regard suggest that we would devalue other voices that speak loudest from very quiet places not shared with the entire world?

At its core, regardless of all the noise, copyright simply bestows the right of choice upon the individual.  So, while I applaud Ms. Palmer for her courage and for sharing her experiences, I also assert that the conclusion we draw from her insight should not be that the future of art is an either/or approach to the rights of the creator.