We've written a few times in the past about the brilliant musician, Kutiman, who creates astounding musical works through what might be called musical collage -- taking bits and pieces he finds on YouTube and mixing them into something amazing and wonderful. From a copyright standpoint, what he's doing is almost certainly infringement, in some sense, under today's laws, though thankfully no one is challenging him on that (and Israel, where he's from, has decent fair use protections). He's now released his latest work, and while it's also a musical collage, it's quite different in nature. Rather than just pull clips from YouTube, he spent a couple months going around Jerusalem, interviewing various local musicians and asking them all to just improvise some music (all around the key of D), and then mixed it together into this amazing sounding song (and wonderful video), called Thru Jerusalem:
I think we can safely say that this (as with his previous works) is really quite an incredible piece of musicianship -- but his works are created in a world that copyright law can't even comprehend, let alone predict. Can you even imagine trying to untangle the "copyright" question on such a song? Thankfully, it seems unlikely that such a question will directly come up with Kutiman's work, but it very well might come up with other musicians who do something similar or something else new and creative. And do we really want that? Do we want musicians having to worry about "the copyright question" as they create beautiful works such as this?
In our recent discussion on the ruling against Richard Prince, saying that his appropriation art is infringing and should be destroyed, I'm seeing a somewhat disturbing response from people who disagree with Prince: they seem to have some mythological idea that for any artwork to matter, it must somehow be "new." I have trouble with this standard for a few separate reasons:
What determines what is really new?
If you look at the history of music, for example, things like the invention of soul music really involved a very close copy of works that had come before. There was very little new. Ditto with all kinds of rock music. Led Zeppelin is famous for nearly every famous song they had being a near direct copy from someone else. The changes made were minor, but created massive successes -- showing that people seemed to really like these "copies," even if there was very little new in them. It seems, to me, that clearly something important was "new" in that people liked the copies much more than the originals.
One of the complaints in the discussion on Prince's work is that he "didn't spend much time" in creating his artwork, since he basically started with Cariou's work, tinted it, and added a few minor adjustments. Perhaps that's true, but it seems likely that he spent more time than Cariou did in taking the photograph in the first place. I'm not -- as some accused -- arguing that Cariou's work isn't art. Quite the opposite. I'm saying that the time involved is not a statement of what is and what is not artwork either. After all, Carious quite literally "copied" the scene that he photographed. He gets a copyright on it because of a few creative choices, but these are minor: where to position himself, how to frame the photograph etc. But are those really all that different from Prince's decisions of "how to tint, what to change, what to add?" I can't see how one is art and the other is a copy. It seems like both are art to me, even if I'm not personally impressed by Prince's work.
Does it really matter if the copy isn't really new?
And here's the bigger point. If people really enjoy those works, why are we so upset that they're copies with minor changes? Ray Charles had success with "I've Got a Woman," despite it really being the same basic song as the Harold Bailey Gospel Singers, called "I've Got a Savior," with just moderately changed lyrics, and a little more pizazz in the music. Led Zeppelin's most classic hit, "Stairway to Heaven," is a pretty close copy the song "Taurus," by Spirit. And Richard Prince's paintings involve just moderate changes to Patrick Cariou's photographs. And, yet, in all three cases, the markets seemed to value the latter versions more. Doesn't that suggest that, even if these newer works are "mostly" copies, that they provide significant value in the marketplace?
Why does it matter that they're not "new" by some subjective standard?
If the world really felt that there was something fundamentally wrong with these copies with minor changes, then wouldn't they have rejected the market for them? Would the world have been a better place if we didn't have "I've Got a Woman," but were just left with "I've Got a Savior," a song so hard to find these days that James Boyle could only find a single copy in existence when he wrote his book which told the story of the song?
Isn't the world actually better off that we have these "copies with marginal changes"? Why do people feel the need to complain about them?
A few weeks ago, we mentioned an experiment that we were doing, to try to create more useful and engaging ad products, specifically with a "conversational" ad unit on the front page of the site. The initial ad centered on a discussion of ways in which kids could use tablet computers (the ad and post were sponsored by ASUS and Microsoft). We're running another experiment now. On the article page for this post, or on the front page of Techdirt right after the first post (if you don't run an ad blocker), we have an ad unit that asks for your input on the question of what kinds of computing activities might best develop kids creativity. It shows my answer and asks you to "vote" for one of four activities and then allows to type in a more complete answer -- all from within the unit (so it's not taking you to some other page). This is very much an experiment, and we already learned some things from the first pass at this (some stuff worked, some didn't), and we'll be doing some more as well. In order to keep the feedback in that ad unit, I've disabled comments on this post.
This post should also be considered sponsored by ASUS Windows Slate, in partnership with Microsoft and SAYMedia.
One of the common refrains in the comments from some of Techdirt's biggest critics is that I'm a "piracy supporter." I'm not sure what to make of such claims, because I don't actually support or endorse copyright infringement. I don't partake of it (willingly). I don't use any file sharing programs for downloading or sharing content. I don't download unauthorized music or movies. My position is solely from the point of view of the content creator and how they might be able to better engage their audiences and put in place smarter business models. Yet, for some reason, people keep trying to paint me, falsely, as a supporter of "piracy."
Of course, what I do support is the creation of new and engaging content. What troubles me, is when people try to imply wonderful creative works are somehow not creative because they build on the works of people before them. Of course, that's silly. All kinds of wonderful creative works you enjoy almost certainly come from near direct copies of things that came before. A lovely demonstration of this is seen in this short clip from the documentary RIP: A Remix Manifesto:
But I still feel that one of the best examples of creative works building on the works of others comes from Kutiman, the Israeli artist who burst on the scene two years ago with his absolutely amazing album Thru You, in which he assembled random clips from around YouTube -- without permission -- into an entire album that sounds absolutely nothing like its component pieces. Kutiman is the modern conductor, putting together an amazing, involuntary orchestra of players who don't even know what's happening. While he's been somewhat quiet (though, apparently touring the world), Kutiman has just released a brand new track, once again combining various YouTube videos into quite the jazz song, entitled My Favorite Color:
Seeing people's reactions when they first see the videos really is priceless. They're amazed as they realize what's happening. The one that seems to get the most attention (for plenty of good reasons) is the first track off the Thru You album, The Mother of All Funk Chords.
However, when trying to show the power of remixing and building on creativity, I actually think the second song from Thru You can be more instructive. That's because if you break down a number of the component parts, you realize that some of them just aren't all that impressive by themselves. Take, for example, trombone part that's used in the song. When viewed by itself... it's really nothing special:
Now, put it into the middle of a larger song, with the very accurate (for this discussion) title of This Is What It Became, and you get an incredibly powerful, haunting and moving trombone solo, which comes in at about 43 seconds:
And yet, to hear some people talk about these things, none of this is "creative." It's all just "copying." In some cases it's outright "piracy." After all, Kutiman is using the works of others, and doing so entirely without permission. And yet, I have trouble seeing how anyone can legitimately claim that these songs are "piracy" in any real sense of the word. Kutiman is clearly a musician. That he uses a note played by someone else on a YouTube video, and then "plays" it himself, strikes me as no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar. A musician is putting different sounds together to create music. Does it really make a huge difference if that music involves someone making a note from an instrument directly themselves... or by taking the note originally played by someone else and doing something creative and amazing with it?
Is this really the kind of thing that our politicians and copyright defenders mean to outlaw?
I'm not a supporter of copyright infringement or "piracy." But if this is piracy, then I am a supporter of it. Because this is truly creative works, whether or not it's built on the works of others.
Last year, I was invited to attend the FCForum's event on creating sustainable models for creativity in the digital age in Barcelona. Unfortunately, due to timing and conflicts, I was unable to attend, though I heard from many who were able to make it and enjoyed it. Out of that event, the FCForum has released their version 1.0 document which is described as a "How to for Sustainable Creativity." I take a bit of an issue with the title, which implicitly seems to suggest that creativity isn't naturally sustainable, and needs some sort of outside help. However, the document itself is an interesting read. It digs into what the current state of the market is in music, filmmaking, writing & publishing, fashion and software, and then looks at various economic models that can be used to support all of those. The discussions on each industry could certainly be fleshed out a bit, but there are some interesting visual representations, such as this breakdown of money going to a certain major label band:
When you look at images like that, you quickly realize the problem is not that the internet is eating away at money going to musicians, but that something isn't right in how musicians make money today. Thankfully, things are changing, and the ability to seek out competition, rather than remaining a major label act, means that artists have more control and aren't forced into ridiculous deals like the one above. The paper then goes on to look at some of those economic options.
Looking over the list, there isn't anything too surprising, but it's nice to see all these ideas in one place. I'm sure some will brush this off as being nothing special, but as a 1.0 document, it really does seem like a good start in highlighting the massive spectrum of possibility for creators to make money for being creative today. Of course, what I find interesting is that this is all being put together by the folks who the legacy industry likes to (falsely) declare "pirates" who "just want stuff for free." Yet, here they are, working hard to put together a rather helpful "how to" to help creative folks earn money. What has the industry done on that front other than complain to the government and sue their fans?
Separate, but related to this, Eric Goldman points us to a similarly interesting report on sustainable business models for university presses. It could almost be an appendix to the earlier report -- though this one is much more fleshed out. It's nice to see various university publishers thinking through these business model issues, and doing a pretty thorough job of it, rather than just complaining about how everything is failing.
I'm all for interesting experiments involving compelling ways to connect with fans and give them a reason to buy, and I love finding out about platforms that enable such things. However, I have to admit that I'm pretty skeptical about the basic concept behind Crowdbands, which not only lets you "fund" an artist, but also vote on the creative decisions they make. The platform does lots of similar (and useful things) that other platforms do: allowing you to support an artist via a "membership fee" of sorts, in exchange for which you get access to the musicians, the artist's music at no extra charge... and a chance to vote on the creative decisions the artist makes.
I understand why they did this, in terms of getting greater fan buy-in, and trying to differentiate from the competitors out there. However, as much as I like crowdfunding of things, that doesn't mean creative decisions should all be crowd decided. I can see it work in some cases, but making creative decision by committee is difficult enough. In this case, the creative decisions are being made based on the popular vote, with apparently little actual input from the artist.
Years ago, in discussing "crowdsourced" efforts, I noted that they were especially good at digging out factual information. When it comes to things that involve insight, analysis or opinion, crowdsourcing tends not to work that well. This isn't all that surprising. However, moving the fans directly into the decision making process seems like a disaster waiting to happen. I should be clear: I'm all for fans having ways to participate, and have their voices heard, but that doesn't mean that artists should have to follow their suggestions. It seems likely that the design-by-mass-internet-committee will serve mainly to make weaker, less inspired decisions.
The very point of fair use is that it's supposed to allow for creativity without permission. Even in a society dominated by copyright, at least our courts and regulators recognized the need for creativity built (in part) on what came before, without having to go through the tollbooths of requiring permission to create. However, some recent events have shown how the DMCA and other attempts to beef up copyright law are trying to erode the very notion of fair use without permission.
SinkDeep alerts us to the news that a bunch of DJs are upset after discovering that SoundCloud took down a bunch of the mixes they had hosted on the service. If you're not familiar with SoundCloud, in the last few years, it has become one of the most popular tools for musicians and DJs to host their music. It offers a really nice toolset for anyone looking to promote their music online (and for others to build apps on top of it). SoundCloud has also been a pretty big supporter of open culture, supporting things like Creative Commons along the way.
I contacted SoundCloud to find out what was going on, and the response was pretty much as I expected. Due to the nature of the copyright world we live in today, the company recently implemented a fingerprinting-type technology, similar to those used by YouTube (ContentID) and MySpace (Audible Magic), which lets copyright holders designate their own works, and which SoundCloud then automatically blocks. While the original link above "blames" SoundCloud for becoming a "walled garden," that's not really fair nor accurate. The real problem is the nature of our copyright laws today, that assume infringement over fair use. As we've discussed before, copyright law is effectively broken when it sets up fair use as a defense, rather than a proactive right. Fair use should beseen as the default until proven otherwise, if fair use is really (as is claimed) designed to be a pressure valve on copyright law to allow free speech.
Unfortunately, the industry has pushed back on this notion to a huge level. The very crux of the YouTube-Viacom legal fight is really over this issue. As many have noted, in the specifics of the lawsuit, Viacom basically notes that it has no problem with YouTube starting with the exact date that it implemented its ContentID program. In Viacom's (and much of the entertainment industry's) interpretation, the DMCA requires such filters. The likely reason that smaller companies like SoundCloud are now implementing filters as well is that they know there's a half decent chance that the eventual outcome of lawsuits like the Viacom/YouTube fight will mean that a company is required by law to have such things in place.
But, of course, the problem with all of this is that it goes back to creating permission culture, rather than a culture where people freely create. You won't be able to use these popular or useful tools to build on the works of others -- which, contrary to the claims of today's copyright defenders, is a key component in almost all creativity you see out there -- without first getting permission. The systems will try to block it, until you make your case that something is fair use -- though many will just not bother. This is unfortunate, and really shuts down a major opening for creativity these days. If you look at the history of music, nearly all popular music today is built on earlier works, without first getting permission. It would be a terrible situation if we end up shutting off that form of creativity by requiring permission for everyone first.
The issue isn't to blame the tools providers for implementing such features, but to look more deeply at the state of copyright law today, where we're increasingly suffocating the real purpose of fair use, which was to allow such creativity, without first requiring permission. These filters don't understand fair use, so they assume anything that matches is infringement, and because of that, we all suffer.
One of the key elements of things like copyright and patent laws, are that they are really attempts to eliminate certain forms of competition. That's always struck me as an odd idea, since it's competition that leads to greater innovation -- as has been shown over and over again in the economic research. So this following study shouldn't surprise anyone, but Glyn Moody points us to a new study that shows that groups who are put in greater and greater competitive situations, come up with more creative solutions to challenges they're given.
This should be common sense, of course. However, what strikes me is why people think it actually makes sense to limit competition in the creative industries, where you would think that greater competition, leading to greater creativity, would be a good thing? Already, we're seeing that smart creative types have realized that they need to "compete with free" and they do so in increasingly creative ways. Shouldn't we be encouraging that kind of creativity from the creative community?
When we point to examples of musicians or other content creators embracing new business models to make a living, one of the complaints sometimes is that the amount of money they're making is not huge. They're making a living, but they're not living the rockstar lifestyle. We sometimes get snide comments like "get back to us when so-and-so doesn't have to share an apartment any more." But, of course, the people who complaint these creators aren't making a huge amount of money are comparing the wrong things. They're comparing these independent creators to the massive success stories. What they should be comparing these artists to is where they'd be under the old system. That's because the old system had an extreme bimodal distribution. A tiny, tiny, tiny percentage became superstars, and everyone else went home and did something else. That is, the old system was akin to a lottery ticket. Most people end up with nothing, and a very very few end up with a ton.
However, what the changing marketplace and lowering barriers now allows is for people who almost certainly never would have won that lottery ticket in the past to make a decent living doing what they love: creating content. In the past, that would have been relegated to a hobby, rather than a career. Today, it has a much higher likelihood of being a career. No, this doesn't mean "anyone" can be a musician, but it does mean that those who want to be a professional creator have many more opportunities to make it happen today. Peter Friedman points this out in a post about how artists today learn to "cobble together successful careers," which is built off of a post by Laure Parsons at QuestionCopyright referring to "the cobbler" model for content creators.
In that post, Parsons calls the old model -- the one we described as the lottery ticket -- as the "gambler model," where you're basically rolling the dice on whether or not your career will be a success or will plummet. And notes that the "cobbler model," may not be as sexy, but you have a higher likelihood of success. The risk is lower, and the payoff is likely lower, but you can actually build a predictable career around it -- and for many content creators, that's certainly good enough. This isn't to suggest it's the only model. In fact, it's not. There's still room for rock stars and lottery tickets. But, when we're looking at some of these content creators who are making a good living as professional musicians, the proper comparison is not to Mick Jagger, but to what they'd be doing if they were living in the world a few decades ago: and the answer is they probably wouldn't be making music at all.
Glyn Moody points us to some research coming out of the University of Leicester which suggests that highly restrictive copyright laws and enforcement regimes actually serve to harm creative output and the creative industries. This is a point that we've discussed in the past, so it's nice to see more research being done in this area. Basically, what the research is finding is that these legislative efforts are serving to limit the technologies that are used to create new works today.
Of particular concern is that it will "stifle the creative opportunities for youngsters with tough regulation on digital media restricting young peoples’ ability to transform copyrighted material for their own personal and, more importantly, educational uses." Now, I can already hear the copyright system defenders claiming that transforming copyright materials for their own uses is not a "creative opportunity," but that's wrong. The way young people learn to create is initially through emulation. You learn to draw what you see. You learn to play the music that others wrote. And as you start to play around, you transform it in your own way. That's the very basis of young creative expression.
The issue is that new digital technologies allow for a modern version of that in things like digital mashups and remixes. People who don't recognize that these are the modern day equivalents to creating new artworks by attempting to copy what others have done will scoff, but they are mostly demonstrating the myopic view that modern technology used for creativity and creative learning simply "isn't like it used to be." Creativity comes in all forms, and what young people learn today through transforming the creative works of others is what will lead to the great artwork and creative output of tomorrow... if the legacy industries and our politicians don't stamp out such creative opportunities.
