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.
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.