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.



David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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