Are Bad Copyright Laws Killing Jazz And Harming Jazz Musicians?

from the play-it-again dept

We recently wrote about Daniel Pink's new book Drive and how there are some situations where money is not just the wrong motivator for creativity, but it can actually harm creativity. While some in the comments falsely interpreted that to mean money is never a motivator or that it somehow means everyone should give up their money, others did have many thoughtful responses. That discussion got Ray Dowd, a copyright litigator in New York, thinking about a variety of topics related to motivation and copyright, noting that if the key point of copyright is to create incentives for creativity, the studies covered by Drive certainly should be an important part of the larger discussion.

From there, he goes through a variety of situations where copyright is clearly harming creativity, rather than helping it, including a discussion on the bizarre notion that satire cannot be fair use, but parody can be. However, where it gets most interesting, is when he discusses how copyright, and the more recent draconian enforcement of copyright law, is having a massively negative impact on jazz and jazz musicians:

When the Copyright Society had its convention in New Orleans a few years back, I was struck by the plight of Jazz musicians: they didn't have the right to a compulsory license. So a bunch of white kids doing an exact cover of a Led Zep tune can force Led Zep to license the song at a cheap rate.

But Jazz - which remixes, rearranges and is an art form that is derivative - can't get a compulsory license, and the changes and modifications to the original can't be protected without an additional license from the copyright owner - even though a sound recording in a cover song can.

According to the jazz musicians, the licensing practices of copyright owners have put them out of making a living and basically strangled their creativity. It was a heartbreaking presentation. Jazz and its successors which rely on sampling, borrowing, remixing - all activities emanating from African-American traditions - have been severely penalized, to the point of practical extinction.

That's a clear, concrete (and, as a jazz fan, depressing) example of an area in which copyright is clearly doing the exact opposite of its intended purpose. I'm really curious to hear from defenders of the copyright status quo (or who believe in even stronger copyright protections) to see how they defend this situation. I'm also reminded, yet again, of James Boyle's excellent chapter on how soul music owes its very existence to the fact that copyright laws weren't enforced that strongly a few decades back (and, the laws themselves weren't nearly as limiting).

In the face of increasing examples of such copyright policies doing exactly the opposite of what they intend, how is it that our elected officials continue to buy the claims from a few entrenched industries, that copyright needs to be made even more strict? How many more musicians have to have their art and creativity stifled?

Filed Under: copyright, creativity, derivative works, jazz, music

The Myth Of Originality...

from the it's-not-what-you-think dept

Nina Paley alerts us to a neat writeup (with illustrations) that she did, discussing the concept of originality, and why it's so often misconstrued. First, things that many people think are "original" usually aren't very original at all. They tend to be derivative in some way or another -- a point that we've made here many times. And yet, many people seem to think that there's some sort of objective standard for originality, and that something that involves a direct copy of something else as part of the process can't count as original (though, they conveniently ignore it when "the greats" like Mozart or Shakespeare did a direct cut-and-paste type of copying in their own works).

Paley then goes on to make a second point: which is that the traditional gatekeepers of culture, for all their talk of the importance of originality (whenever they talk down any kind of copying) are actually more likely to stomp on anything truly original, because there is no "proven market" for it. A movie has to fit a certain formula. A hit pop song must meet a series of pre-programmed conditions. No originality allowed.

So where is originality really? It's not an intrinsic value in the work, but in the perception of how people view a work. I find things like Kutiman's music tremendously original and unique, but in the comments here, critics have decried his efforts as "cut and paste copying" of little value. So different people have different takes on originality. Why should we set in place laws that enforce some sort of official standard on what is, and what is not, original, when it's our own perception that really determines what is original?

Separately, Paley recently also put together this neat short film that does a nice job of demonstrating that all artwork is derivative:

Filed Under: creativity, derivative works, gatekeepers, nina paley, originality

Digital Britain Minister Insists No One Is Creative If They Don't Earn Money

from the oh-really,-now? dept

Andrew Dubber does a nice job taking Digital Britain minister Stephen Timms to task for claiming that "If people can't be paid for their creativity, they're going to stop being creative."

On the face of it, that's an incredibly stupid thing to say, and is amazingly offensive to the vast majority of people in the world who are creative amateurs.

Note: I did not say "the vast amount of creative people in the world who are amateurs", though this would also be true. Most people in the world do creative things for no money. The vast majority of music in the world is made for cultural reasons that are not economic. To suggest that the only reason to be creative is with the expectation of payment is utterly offensive.

Beyond stupidity
But it's not just stupid and offensive -- it's corrupt. It's so manifestly and obviously false that it could not possibly be the considered belief of a rational human being.

The alternative (and indeed, the only plausible conclusion) is that it's a deliberate falsehood in order to support something that is utterly indefensible when examined with any intellectual honesty.

It's the direct result of corporate lobbying, it's entirely disingenuous, and it's a bald-faced lie echoed to support the interests of powerful and moneyed multinational organisations.

He goes on to suggest that a statement like that, so revealing in how Timms views the world, should get Timms fired, as he's basically admitting that he's only there to protect corporate interests, rather than actual creativity.

Filed Under: amateurs, business models, copyright, creativity, money, music, professionals, stephen timms

Creativity, Innovation And Happiness

from the thanks-to-everyone dept

Last year, for our final post of the year, I wrote a message On Staying Happy. It seems, at time, that people think that I am filled with anger or rage, because of all the annoying or "bad" stories that show up here all the time. Of course, for folks who know me, this is pretty funny. I'm pretty laid back and quite happy and content for the most part -- which was the point of last year's post.

This year, for my final post of the year, I wanted to take that a step further, and point out how in awe I am of the continued amazing creativity we've been seeing. In just the last year alone, we've seen and written about so many incredible stories of creativity and innovation in a sea of negative from those who insist that it can't be done. We've heard that music and movies are "dying" because of piracy, even as we've seen incredible new music and movies being created by people who are embracing new and innovative business models.

We've seen things like how Amanda Palmer connected with her fans and gave them a reason to buy, allowing her to create some fantastic new music. We've seen how a guy in Israel by the name of Kutiman, that no one had ever heard of probably broke all sorts of copyright laws to create create an amazing album (one of my favorites of the year). We've seen how Nina Paley went from being stifled by copyright to embracing alternatives and how she's used that to build a different kind of business model. We've seen how the business models we talk about are suddenly being applied widely to things like books, photography and even everyday objects. It's been an incredible year for amazing creativity both in content creation and in business models.

As a part of that, I've personally been blown away at the reception I've received (sometimes from initially "hostile" audiences) when I've been granted the opportunity to go out and present and discuss these business models and how they're working.

Finally, as a result of all this, we've had a lot of fun running our own experiments, from which we've learned a ton and were able to work with some amazing and talented partners and content creators. Seeing all this happen even as the stories (without any evidence) of doom and gloom get louder and louder from those who aren't willing to embrace change is even more exciting and encouraging. The pace with which these ideas are being adopted (and adapted) is breathtaking and exciting. We're looking forward to the pace of this activity to only increase in 2010, and we've got a bunch of surprises in store as we look to not only continue discussing these concepts but to really help more people join in the fun as well. Thanks to everyone here for making it yet another fun year. We've been at this for over a dozen years now, and each year is more exciting than the previous one -- in large part due to the amazing community of folks who spend at least some of their free time here. We hope that you had a wonderful and exciting year as well, and look forward to more opportunities in 2010...

Filed Under: business models, creativity, happiness, innovation, opportunity

How Georgia Wonder Turned Lack Of Cash To Record Into An Opportunity

from the marketing-smart dept

Earlier this year, we wrote about the UK music act Georgia Wonder, who was thrilled to be listed as one of the "most pirated" musical acts out there -- recognizing the power of good promotion. Since then, we've watched with interest how the group has continued to really interact with fans and use new tools and new marketing ideas to get heard and build a following. Rose M. Welch alerts us to the band's latest smart move. As they wanted to record a new album, they realized (as plenty of others have) that it's expensive to record an album -- buying studio time, equipment and instruments. So they did something different. They teamed up with a local music equipment shop, called Nevada Music and worked out a deal:

Both during store hours and after the store closes each night, they'll be recording their next album dubbed "Made In Nevada" using all the gear the store has on sale.

This benefits everyone. The band gets access to all the equipment and instruments they need, plus they get added attention for doing something cool and new. The store also gets a nice benefit in additional attention and marketing for itself and its products. What's cool about this is that it's yet another different way of going about things. One of the most frustrating responses we hear whenever we show examples of cool things that musicians are doing -- is people saying "but everyone can't do this." But that's the whole point. Musicians can keep coming up with cool different things to do. Frankly, the idea that they can't come up with cool ideas is insulting. These are some of the most creative people around, and given the ability to express that creativity, it's amazing what they come up with.

Filed Under: business models, creativity, georgia wonder
Companies: nevada music

Firebowls, Copyright And Crowdfunding (Oh My)

from the will-people-understand-the-nuances? dept

A bunch of people have been sending in John T. Unger's story, claiming that someone who copied his artwork is now suing him in federal court over copyrights. The general sentiment from the submitters, it seems, is to support Unger's position. I avoided writing about this for a while, because the story is actually a lot more complex, and since I think Unger is going too far, I thought it might upset some folks. Plus, the story is pretty complex. Thankfully, the good folks over at Consumerist actually really did an excellent job laying out a pretty balanced look at the issues that doesn't automatically side with Unger.

Here's the summary of the situation:

• Unger makes "firebowls" -- decorative metal bowls that you light a fire in (I had no idea such things existed).
• He copyrighted the design of his firebowls.
• He then discovered that Rick Wittrig was making firebowls that look remarkably similar, but are a bit cheaper.
• Unger got angry and sent a cease-and-desist
• Wittrig filed a lawsuit to claim that Unger's registered copyrights are not legitimate, as there shouldn't be any copyright on utilitarian objects.
• Unger writes up his side of the story (small artist being ripped off!) and asks people to fund his legal defense using popular crowdfunding site Kickstarter

As Consumerist notes, it's easy to quickly side with Unger without understanding the full story, saying that he's an artist who got "ripped off," but that's not at all clear. Yes, it does seem pretty likely that Wittrig copied Unger's designs (they match quite closely and at no point does Wittrig deny copying the designs). But it is a pretty big question as to whether or not Unger's work really is covered by copyright (or should be). Now this whole story is the type of thing that people often bring up when I write about why copyright isn't needed. This -- they say -- is a perfect example where copyright is necessary. Unger is mad because this other guy is "ripping him off" and passing off Unger's designs as his own. Except, again, that's not clear at all. Copyright was designed as an incentive to create -- not a system to block all competition. In the fashion world, as we've noted repeatedly, knockoffs are quite common, and have helped the industry thrive. It actually helps make the brand name originators of the design worth more, because people want the "real" original kind.

So, without copyright, what can Unger do? Well, he's actually already doing it. He put up a site that points out that Wittrig copies him, get lots of attention for it, and a lot more people now know about these kinds of decorative firebowls. My guess is that Unger is suddenly selling a lot more than he was before -- and that'll be true whether or not Wittrig gets the copyrights tossed out. And, in the meantime, having Wittrig around as competition should be good for Unger, pushing him to continue innovating and coming up with new designs.

Separately, I have to admit to some fascination over the use of Kickstarter's crowdfunding platform to fund a "legal defense" rather than just as a way to sell products. Even if I don't think Unger should have much of a legal argument, I think it's a cool use of the platform, which also drives more interest and attention to his own bowls.

So, in the end, I think Wittrig should be free to make these firebowls and to sell them in the marketplace and compete with Unger. At the same time, though, I think Unger should be free to draw lots of attention to his own firebowls combined with the sympathy-inducing story of how he originated the designs that Wittrig copied. In the end, then, they'd both be better off, as it ends up getting both of them a lot more attention for the bowls, and those who feel sympathy for Unger, or who just want to support the "original" artist, will pay up for his versions of the bowls, whereas those who would rather save some money will pay Wittrig. In the end, both of them end up being better off, and no copyright battle needs to happen. Unfortunately, in an age where so many content creators have been taught to use copyright as a crutch, that's not what we get.

Filed Under: competition, copyright, creativity, crowdfunding, firebowls, john unger, rick wittrig

What's Wrong With Paying Homage To A Literary Classic By Writing A Sequel?

from the trying-to-figure-it-out dept

Against Monopoly points us to a NY Times article that discusses some of the recent "controversies" over unauthorized sequels/prequels/re-imaginings of certain classic books, including the ban on an unauthorized "sequel" to Catcher in the Rye -- as well as the awesome addition of zombies to Jane Austen's Pride and Prejudice, now known as Pride and Prejudice and Zombies. But the key point is made towards the end:

Yet the urge to write sequels and prequels is almost always an homage of sorts. We don't want more of books we hate. The books that get re-written and re-imagined are beloved. We don't want them ever to be over. We pay them the great compliment of imagining that they're almost real: that there must be more to the story, and that characters we know so well -- Elizabeth Bennet, for one, or Sherlock Holmes, who has probably inspired more sequels than any other fictional being -- must have more to their lives. In a couple of quite good sequels recently -- "A Slight Trick of the Mind," by Mitch Cullin, and "Final Solution: A Story of Detection," by Michael Chabon -- we even get to watch Holmes grow old and discover love of a sort.

Certain books are more than mere texts -- words on a page or, these days, an electronic reading device. They're part of our mental furniture. And yet it's their familiarity, their well-wornness, that makes them such tempting targets. If zombies were to turn up, for example, in Mrs. Gaskell's "Cranford," it wouldn't be nearly so funny.

And, then when you think about it, if copyright is designed to encourage more creativity, wouldn't these sorts of re-imaginings of already existing fictional worlds fit that criteria exactly?

Filed Under: copyright, creativity, homage, sequels, writing

This Is America... Why Are We Banning Books?

from the good-questions dept

Last month we wrote about how a district court banned the publication of a so-called "sequel" (written by another author) to JD Salinger's Catcher in the Rye. I had a lot of trouble with this ruling, which seemed to be a complete assault on the basics of free speech and a total misreading of copyright law. The book itself is not a copy, but something entirely new. Whether or not it's any good (and some of the reviews say it's not), it is a new creative work -- the exact type of thing that copyright was supposed to encourage. It's good to see a lot of other folks are quite concerned about this ruling as well, and the Fair Use Project at Stanford has teamed up with some other universities to file an amicus brief on behalf of the American Library Association and some other library associations, who are reasonably concerned about the free speech implications of banning the publication of a book such as this one.

Filed Under: catcher in the rye, copyright, creativity, free speech, jd salinger, sequels

The Myth Of Original Creators

from the creativity-is-built-upon-others-ideas dept

We recently wrote about how many different sources Shakespeare used in writing King Lear, some of which he apparently copied verbatim. However, it seems quite likely that what Shakespeare did with those words created something wholly unique and valuable (at least, it's withstood the tests of time). Yet, this idea that taking the works of others and doing something with them to make them new and wonderful seems to be an anathema to the "true believers" in copyright, who insist that creativity is about being wholly original, and almost never about building on the works of those who came before. Yet, there's almost no evidence to support this. Nearly any creative work can be shown to be built upon the works of those who came before (hell, even our own copyright law is copied from others').

Law professor Peter Friedman recently had a few interesting blog posts that helped highlight this. First, he noted that the very notion of an author as the originator of a new work is a relatively recent phenomenon, and part of the Romantic Movement. However, prior to that, the view was much more akin to what we're actually seeing today with online tools of creation: "creative endeavors are derivative and collaborative, that originality is not the product of isolated genius but of, well, remixing."

He then goes on to discuss the blues musician Robert Johnson -- considered by many to be the "quintessential" Blues musician. However, a recent study into Johnson's work suggest that his fame and renown is basically an accident of history. Some British musicians heard Johnson's music, and since they'd never heard it before, they credited him for it, even though he was mainly copying (and building on) the work of others:

Conceptions of Robert Johnson's work highlight the context dependent nature of notions of originality. Originality is yet another characteristic of copyrightability that is not always easy to delineate in actual contexts of creation. However, what might seem original to those in one context may not seem as original in other contexts. Consequently, within the context of African American audiences of the 1920s and 1930s, Johnson's work probably did not seem startlingly original in the way that it did to British and other musicians and audiences listening to Johnson's music, often in relative isolation, in the 1950s and 1960s. This later audience was largely removed from the original context of other music that was prevalent at the time Johnson produced his music or able to listen to a limited and likely biased sample of such music. For early African American blues listeners, what seemed original and interesting was very different that what seemed interesting and original to the largely white blues fans that were the major force behind the blues revival in the 1950s and 1960s. For the latter, romantic conceptions about the blues were closely tied to notions of authenticity that are often unsuited to musical creation in living musical traditions. As a result, what is perceived as original may depend in significant part on the contexts within which listeners hear music.

Friedman also points back to another recent post where he discusses the nature of content creation, based on a blog post by Rene Kita. In it, she points out that remixing and creating through collaboration and building on the works of others has always been the norm. It's what we do naturally. It's only in the last century or so, when we reached a means of recording, manufacturing and selling music -- which was limited to just those with the machinery and capital to do it, that copyright was suddenly brought out to "protect" such things.

But, today, with the rise of the internet, and the ability for anyone to perform those roles, we run smack dab into conflicting interests. People still want to create the way they always have, but the industry of the last century, that has relied on copyright law to make its product seem different and "original" freaks out about this ongoing content creation:

Culture is a conversation. Every act of culture is a reply to something, a restatement, correction, modification, reworking. Lawyers are constantly debating how much modfication is required to make a work legal. Thus, you may 'create' a new instance of The Blues(TM Martin Scorsese), by shuffling the notes and words around by a set amount. Shuffle too little and you're in trouble with the law. Shuffle too much and the purists start screaming rape. Still, artists are trained to recognize what is a new song and what a version and their publishing companies have experts to deal with these matters. And there we enter the crux of the matter:

Copyright law is corporate law. Or it used to be.

Previously, it took heavy investment to publish art, music, writing, so it was always done by companies and professionals. Today, squirting anything into a blog is an act of publishing. The legalese you signed by clicking when you started your blog forbids any use of copyrighted material that you don't own. Suddenly, instead of plain ordinary citizens entitled to sing "Poops, I did it again" or tape Brad Pitt's face in a toilet bowl onto a postcard to a friend, we are all professional artists required to Create Art from Scratch. Because we are no longer just having a conversation, in which we quote from everything we have seen and heard without any thought of Creation and Originality. Your piddling little blog is a Publishing Enterprise held to the same legal standards as Time Warner Inc, except that you do not have the funds to pay for any borrowings.

You have been muzzled.

This is why people are angry. Their normal modes of expression have been turned into a crime. They know they are only safe from prosecution because they are small fry - unless someone decides to make an example of you. Thus, any time you post some photoshoppery or a musical mash-up you risk having it summarily deleted and your account cancelled for criminal cultural activities.

It's nice to see more and more people recognizing and speaking out about these things. The idea that there is a single "author" or "creator" who deserves to get money any time anyone else builds upon his or her works is something that should be seen as increasingly ridiculous as people recognize that all works are created based on the works of others, and it's inherently silly to try to charge everyone to pay back each and every one of their influences in creating a new work.

Filed Under: creativity, original creator, ownership, romantic

JD Salinger Sues Author For Writing A Sequel To 'The Catcher In The Rye'

from the let's-look-at-copyright dept

Eric M writes in to let us know that JD Salinger is suing the author and publisher of a new book that claims to be the sequel to Salinger's famous The Catcher in the Rye. Salinger is claiming that the book infringes on his copyright -- which may be a big challenge. Now this is an area of copyright law where a lot of lawyers disagree, but in general an unauthorized sequel doesn't necessarily infringe copyright. Copyright covers the specific expression, not the idea -- and since a "fan" sequel isn't likely to decrease interest in the original (in fact the opposite is likely to be true), there's unlikely to be a finding of copyright infringement. Of course, the specific details may matter and cases have gone in all different directions on this. There is, for example, the famous lawsuit about the book The Wind Done Gone, which was a retelling of Gone With The Wind from a different perspective. A lower court issued an injunction to block the sale of a book, but eventually it was allowed. There are certainly other potential claims that Salinger could make -- but the article specifically says it's a copyright issue, which seems like a tough sell.

Filed Under: catcher in the rye, copyright, creativity, jd salinger, sequels