Tuesday, January 3, 2012

Mish, Mash, We are Taking a Bath

Sharon Wildwind

For practical purposes, enforcement of copyright law is dead, and artists’ and writers’ incomes are taking a bath because of it.

Governments can’t pass legislation fast enough to keep up with new media platforms. Even if copyright laws were updated weekly, those laws apply only in one country.

Creators can no longer keep track of who has copied or downloaded their material or how it’s being mashed into new material. Only wealthy artists like multi-media collagist Richard Prince and photographer Patrick Cariou can afford to fight out questions of copyright infringement in the courts.

Prince built his entire career around appropriating imagery created by others and using it in art works that sells for millions of dollars. He could do this because of a principle in copyright laws called fair use.

Under fair use anyone had the right to use a small amount of someone else’s creation, add value to the original, and thus enrich society. Not everything was up for grabs. Song lyrics couldn’t be touched, even in minute snippets, but Andy Warhol could take a recognizable can of food and turn it into a cultural icon. Susan Herbert could take a painting (admittedly not under copyright) by Frans Hals and turn it into a very silly cat portrait, which an English factory then turned into thousands of a tin boxes, one of which sits on my desk.

What changed in the recent Prince vs. Cariou case was that the judge essentially narrowed what was acceptable and legal under fair use and found that Mr. Cariou’s interests had been violated by Mr. Prince’s extensive use of Cariou’s photographs. Mr. Prince is appealing the decision, but modern art museums are suddenly very nervous. Many of their holdings are based on material taken from copyrighted sources and manipulated into satires or pastiches.

This may sound selfish, but I want some say so before other writers muck about in a universe that I created. I don’t want them borrowing my characters wholesale and assigning them alternate sexual preferences, political views, or occupations, like vampire hunter. They are the way I created them, and I want them to stay that way.

How you feel about what may happen in the art world, and what already happened in the music, movie, and writing businesses depends, in large part, on when you were born.

If you are a writer who was born before the 1980s, chances are that, at the least, you have qualms about appropriation of creative work. You may go so far as to be angry and confused, and demand that governments pass and enforce iron-clad laws. Good luck on that.

If you were born in or after the 1980s, to use the vernacular, “No worries. It’s all good.” meaning that anything in the public venue is just that, available for any kind of public reuse without limit, and with compensating the original artist/writer.

The argument that is frequently made for mashing-up writing (or art) is that once something is available to the public, it has passed some mythical best-before date. It’s like that almost-suspicious dish of leftovers in the refrigerator, and we really should use it up soon, shouldn’t we? Besides, the author can always write more or an artist paint more. It’s not like this stuff is valuable or anything.

Setting the legal questions aside—remember I started by saying that enforcement of copyright laws was dead—the disregard for copyright speaks to some basic questions about respect: respect for self, respect for others, and personal responsibility for actions.

Have we, as a society, become so creatively bankrupt that thousands of people are so terrified of the blank page that they are reduced to starting their own work with what someone else has done? Can they create only if they can spin off of soup cans, boy wizards, or Victorian detectives? I don’t happen to think so.

One of the things I plan to do this year is take a closer look at Creative Commons. I'm not crazy enough to think that all of my creative work is priceless, and there is some of it that I think might do pretty well in a mash-up. It's just I want a way to say which work that is. At least Creative Commons gives me choices.

You might want to take a look there, too.

Creative Commons License
Mish, Mash, We are Taking a Bath by Sharon Wildwind is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.


Quote for the week

There is no sense in owning the copyright unless you are going to use it. I don't think anyone wants to hold all of this stuff in a vault and not let anybody have it. It's only worth something once it's popular.

~Hilary Rosen, editor, television columnist, and former executive officer of the Recording Industry Association of America.


Sandra Parshall said...

Piracy sites abound where people who lack any vestige of a conscience can download entire books for free. Policing these sites would require an enormous investment of money and personnel by publishers -- and a lot of time from writers who don't have the time to spare.

I think the internet has created a "free for all, all the time" mindset that's going to be nearly impossible to eradicate.

jenny milchman said...

This is an interesting topic. I've done a little reading on it, and there seems to be a fair amount of doubt whether piracy hurts the author--or helps her. Now clearly, there could be unintended consequences if the practice continues or escalates, but as of now the consensus seems to be that if you're big enough to be stolen/used/etc. such theft won't hurt you anyway. And if you're lucky enough to get stolen/used, it will probably make you bigger than you otherwise would've been at that point.

There's also some question as to whether someone who would steal content would ever pay for it, were regulations in place. Would this just be a lost reader of your work? And if this thief enjoys your work, might his recommendation lead to some true customers?

On a moral level I agree that we should instill a respect for the artist--heck, I think 99 cent books downgrade the writer's effort. But I don't know that morality necessarily coincides with what's best for the artist.

Anonymous said...

Sandra, you're exactly right. The genie is out of the bottle and nothing will put it back in again.

Writers are in a position of having to accept that once their work is released, or even before if someone can get a copy in advance, there work is available for free.

Jenny, unfortunately, the research that has been done to date shows that having something available for free on line neither leads the person who put it on line to pay for it in the future nor encourages other people who see the free work to then purchase it. The more an online work goes viral, the lower the income for the author.

Julia Buckley said...

Great post, Sharon! There's a parallel discussion in the world of academia regarding what constitutes plagiarism, especially when young people who have always had access to the Internet have the sense that they "own" downloaded material, and that by cutting and pasting they sort of appropriate the content because they are wise enough to fit it into their general argument.

In addition, things are complicated for young people because they often come from grade schools which encourage group work and group grades in which everyone takes credit for joint work; then they get to high school and college and are told, for the most part, that they are immoral for incorporating someone else's work into their own.

And in certain other countries, plagiarism isn't even seen as an issue (some nations don't even have a word for it in their languages) because the academic teaching is that one should know ALL of the great theorists so well that when someone else references them (without quotation marks or attribution) the reader should know who is being referenced.

And there are some theorists/linguists who suggest that text, once put into the world, belongs to everyone, not to the author.

Like Sharon, I find it hard to go along with that last idea.

Linda Rodriguez said...

Sharon, I think one of the problems is that the internet creates a complete lack of respect for the written word. There is so much written and posted online--with so much of it being pretty worthless--that people devalue everything that's written. There is little understanding that a good written work takes lots of time and hard labor because so much mediocre wordage is quickly and easily posted all the time. It all just becomes "content."

Anonymous said...

One base of all of this is certainly what is the written word worth. For most of recorded history there has been a gap between those who could read and write --- and often made a living by those skills --- and those who could not.

If you add things like calligraphy to the mix, there was a time when even the physical act of writing was valued

It seems to me that the gap is now between those who can write well and those who can cooy-and-paste well.