Copyright and the Creative Process

Ring toss

On July 4th, I announced that I’m rebooting a project that began as a short film in the summer of 2011.  goneElvis is a portrait depicting a day in the life of a female veteran of the Iraq War who is homeless and suffers from PTSD.  As stated in the new post on the film’s website, there are things I like about the short and things I don’t, but I have decided the subject still warrants a fresh approach, probably as a series, and that I have initiated collaboration with some colleagues to begin anew.  I mention the project because its production includes a very common experience in the creative process that contradicts many of the complaints one hears about copyrights stifling new creative or derivative works.  Most often, these criticisms come from people who are not engaged in any creative process, which is why they fail to understand that particularly with art, obstacles can be opportunities at least as often as they are barriers.  In fact, as an aside, I have long felt that one of the reasons many major motion pictures have become so emotionally flat is that the big-money movies are over-produced. When creators can afford to do everything exactly as planned, this removes some of the magic that comes from quick-witted solutions to various limitations.  Any student of film history knows that some of the most highly-praised cinematic moments are the result of off-the-cuff workarounds to technical, financial, or logistical challenges.

While planning the production of goneElvis, I wanted to use my friend Martin Ruby’s cover of “Tonight’s the Night,” famously recorded by The Shirelles, but I was turned down by the publishers when I requested the license for which I could not of course pay.  It seems the tendency these days is to view this kind of obstacle as unfair or muting the creative process of the next generation; but this attitude is a mistake, and I’d venture that almost any serious artist will agree.  Because I couldn’t have what I thought I wanted in the first place, I ended up with something much better simply because I was forced to go look for it.  In this case, I began by searching songs in the public domain, and when I came across the Mexican standard Cielito Lindo (you know the one with the refrain Ay, Ay, Ay, Ay), I got goosebumps imagining what Martin Ruby might do with it translated into English.  Although normally sung at a bright tempo by mariachi bands, Cielito Lindo is fundamentally a lullaby, which immediately resonates because the protagonist in the film clings to the hope of finding the daughter she lost when her husband abandoned her while she was in Iraq.  Knowing that Ruby grapples with his own challenges as a single father of a young daughter, I imagined his rendition of this song might produce something very haunting.  It did.  Instead of a bittersweet cover of a love song, we had a piece of highly-original music that is thematically perfect for the film. Suddenly, my little low-budget short didn’t have a borrowed song — it had a soundtrack.

Any artist lives in a world of obstacles — financial, logistical, legal, and hardest of all, internal.  Very often, it is the obstacles that define both the artist and the work; and I doubt there is a creator in any medium who has not benefitted from producing something he or she never anticipated at the start of a process.  In fact, I would go so far as to generalize that all creators find ways to balance the planned part of the process while leaving ample room for the unexpected. It is this aspect of creative work that is so hard to explain to those who don’t do it, but it is also true that the best results are usually a fortunate harmony of experience, expertise, and inexplicable instinct.  In other words, as a mathematical exercise, there are so many elements that must align to produce something good that it’s almost absurd to predict that any one obstacle might be either harmful or beneficial to the end result. Hence, there is no more reason to identify existing copyrights as stifling creativity any more than it would be reasonable to complain about the vicissitudes of weather.  In fact, speaking of weather, the scene with the police officer depicted in the embedded clip wasn’t written or blocked for rain, and the rain we got forced me to shoot the entire scene from inside the car with available light. Operating a heavy camera, hand-held on a sultry, rainy night in the front seat of a Cutlass is not a set of conditions I would have chosen, but the resulting scene is more dramatic than what I had planned on paper.  But that’s just filmmaking. It’s the norm.

Beyond the myriad reasons why copyrights cannot be viewed generally to stifle the creative process, they also must be understood to support the creative process with regard to the same unpredictable nature to which I refer.  Nearly any artist one listens to or reads about will describe variations on the theme of organizing one’s life to allow the work to happen, and each artist requires different conditions — from asceticism to utter chaos — to foster his or her own productivity.  With successful works, the passive income derived from copyrights, is the means by which artists are able to reinvest in a career based so precariously on the unknown.



© 2013, David Newhoff. All rights reserved.

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  • This is a great, optimistic perspective on the current state of copyright clearance that I don’t see terribly often. That said, current Internet technologies enable easy distribution of all manner of unlicensed (and in some cases, unlicensable) works. If you had wanted to include your first-choice song in your film, you probably could have gotten away with it – and there are even avenues by which you could have made money distributing such an “illegal” film.

    I work for a company whose primary goal is encouraging artists to distribute their works legally and obey copyright law. The problem we run into time and again is that the emerging generation of artists generally give licensing one chance – and they want it to be FAST. If their first experience is a bad one, they often turn to the ease of piracy, never to return. We’ve found that most artists (at least initially) would love to share their profits with the copyright holders of the original works. However, artists being artists, they quickly become defensive when told they *can’t* do something.

    You’re entirely right that obstacles spark creativity and quick-thinking in what I believe are the vast majority of artists. The problem I’m seeing is that that creativity quickly goes to “how can I use technology to circumvent copyright?” instead of “how can I make my art work with copyright?”

    • David Newhoff

      Thank you, Jesse. Interesting insight. I think it’s an unfortunate, and possibly lazy, habit of mind among the artists you describe, if their energies are devoted first to circumventing copyright rather than to seeking creative solutions. I am always skeptical of any artist who insists too ardently that he or she must use the work of another artist and that there is no other option. I suspect that a lack of patience, a lack of respect for fellow creators, and a lack of willingness to embrace obstacles will often be reflected in the work.

    • There is so many levels of copyright infringement. From singing Happy Birthday in your children’s birthday parties, all the way to massive verbatim commerical copying of high value copyrighted works.

      The latent disrespect for copyright amongst the general population is so strong that the content industries can only really focus on only the most egregious violations, and the long tail of copyright infringement is largely ignored.

      Basically what I am saying is you got your work cut out for you.

      • Singing Happy Birthday at your kids party is no more a copyright violation than singing the latest hit song in the shower is.

        Staff at KidsPartyMealsAndPlay singing Happy Birthday however is a copyright violation.

        In the US 55 million jobs are dependent on copyright, and it accounts for about 75% of US exports. Unless the haemorrhaging of income is addressed the Nation will in a few years be a 3rd world economy.

      • It’s questionable if violating a copyright holder’s public performance right requires commercial intent. I feel that in most cases it like in birthday parties it would be protected by fair use, but it’s hard to say.

        There has been cases in the past where copyright holders have threatened to sue girl scouts for singing songs around a campfire for instance – would it be successful if it went to court? It’s hard to say, and anyways IANAL.

      • David Newhoff

        It’s not questionable. Singing Happy Birthday at a private party is not a violation of copyright. A group of waiters singing it to a customer in a restaurant can be a violation of copyright if that restaurant hasn’t included the song in its licensed material as a venue. Check your facts on the scouts; odds are it would be a dispute with the organization and not individual girl scouts. Whether the case did or did not have merit is another matter.

      • The public performance right is one of the specifically enumerated rights of copyright holders. Singing Happy Birthday (which is copyrighted) in public venues is copyright infringement unless:

        (1) You have covered under a license to so from the original copyright holder or a rights licensing agency authorized to act in the original copyright holder’s behalf.
        (2) In instances when fair use or de minimis infringement is justified, which are sometimes hard to predict.

        You don’t have to buy a restaurant or company to violate the public performance right, it’s just that that’s typically the kind of entities that copyright holders go after in regards to the public performance right. But anyone can violate the public performance right, even individual artists. And they do, very often..

        Which is my original point – nobody cares. Even very pro-copyright content industries don’t typically care. at least I’ve not heard of them actively enforcing sync rights or performance rights when individuals or small artists (even with commercial intent) are involved.

        Jesse talks about working for a business that simplifies getting synchronization and performance rights for small entities, and he agrees himself that it is something people completely don’t care about acquiring, even though not doing so is technically illegal.


      • Also I’d like to mention, even if the venue has a performance license for a song or a collection of songs it’s not necessarily reciprocal. For instance, they may cover allowing playback of radio (which it self has a non-reciprocal performance license) or background music in the venue, but not live performances.

        In some cases, a rights society will bill a specific event organizer separately, exclusive of the venue which itself may have a performance license. What I am saying is you just blurt out any song you want in a venue assuming that their license reciprocates to you unless you’ve physically read it.

        Again realistically, signing a tune in public like in a birthday party is probably fair use but again, not every case is the same, IANAL, you should probably check with a lawyer before you publicly sing songs, including ones as seemingly innocuous as Happy Birthday, because it’s just as copyrighted as any other song.

  • Nice blog post. It’s basically a case study for the value of the public domain. Are you a supporter of the public domain manifesto?

    • David Newhoff

      Thanks. I’ll read the whole manifesto when I get a chance — mid hellish house move week — but it seems to be based on the premise of a shrinking PD and lack of available culture, which I dispute as I think you know.

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  • Just got the time to watch the movie. Nicely done!
    I can see this as a series on HBO. Tell a different story each week or something; unfortunately there’s no shortage of stories to tell…

    I think the song worked out very well for the cue. Watching it, it felt like it just belonged there. Too bad copyright prevented you from making the film [/joke]
    ~Best of luck

  • Considering the long tail of copyright infringement, I’ve started to do this little experiment when I encounter websites with strong pro-copyright arguments on them. I try to find examples of copyright violation on the very website.

    Your compliance to copyright law is pretty amazing, definitely the best I’ve found so far. Usually I can find some copyright violation on a website (sometimes a ton of it actually – even on very pro-copyright type websites, for someone reason there is a latent universal belief that copy and pasting photos from the Internet is totally legal), you credit your photographers and you seem to get licensed photos from iStockPhoto. The only thing I could find is a probable violation of the MIT copyright license in one of your JavaScript objects (audio-player.js). You omit the complete header as the MIT license requires. Not a huge deal though, I think. Kudos for your efforts. 🙂

    • David Newhoff

      Thanks, M. I appreciate that. And I’ll look at the audio-player. When it comes to adding plug-ins via WordPress, I’m happy when I can make them work; and it didn’t occur to me to pay much attention to that particular matter.

    • David Newhoff

      So after a quick review, I see two things: 1) that there is no clear way to change how the player is displayed vis a vis text of any kind, even though the software allows adjustment of colors and other options; and 2) my read of that notice is only that the disclaimer must be attached to the file when transferred in any form as a piece of software. I think if Martin Laine wanted it to appear with a copyright on the page, he would have encoded it thus. I could be wrong, but that seems to be the deal in this case. Thanks for mentioning it, though, and if you have better insight, I’m happy to hear it.

    • Software licenses are one of those things that are universally not followed. Hell, I’d wage that most people don’t even read EULAs, even considering that the typical computer user agrees to thousands of pages of EULAs (which are legally binding contracts).

      That being said there is still are risk and history of examples of software companies successfully suing over the minutia of their software agreements. There is examples of weak copyleft licenses (which the MIT license is an example of) being used in successful court cases, the violation being just literally what I described (not correctly producing the copyright header). But the case I know of (involving open source train software), the plaintiff did a bunch of disagreeable stuff to piss off the software developer. But regardless there is definitely a strong risk.

      I won’t go even into software patents, which technically speaking when you use a piece of software that violates a software patent, the you as an end user gain the liability of patent infringement. So you really need to do due diligence by doing a complete patent search before installing any software (again many many many cases of patent holders suing end users of software).

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