The Myth Of The Original Content Creator

from the what's-original? dept

A few people have directed my attention to copyright lawyer Mark Fischer's review of Larry Lessig's most recent book, Remix. The review is worth reading -- and there are some points on which I agree with Fischer -- particularly with the near impossibility of separating commercial use from non-commercial use. While Fischer seems sympathetic to the idea that there are some problems with copyright law, he keeps going back to one central idea that is the core of his problem with Lessig's book: that allowing others to remix content without getting permission potentially harms the "original creator."

This is a myth that is all too often found in IP law -- both in patents and in copyrights. This concept of the "original creator" of a piece of work. All works are built on those that came before. All works are inspired by and use bits and pieces of what they've learned or what they've seen, heard and felt. Pretending that there is a true original creator who deserves credit, money or control is a problem -- because it means no new creative works could be done without getting permission. That would be a tremendous hindrance on creation -- rather than progress (as the Constitution intends).

But because of this false belief in an original creator, Fischer creates some tradeoffs that don't really occur. Specifically, he notes:

If we move toward making content free for copying, distribution and remixing, the professional creators and their distributors will have an even tougher future. Erosion of the copyright system comes at a price. If we have to choose between encouraging original creativity and remixing, why not err on the side of encouraging the originators?

There are multiple problems with this statement. It makes the assumption that allowing free copying of your works makes it harder to earn money. Yet, that's not what we're seeing at all. Those who put in place smart business models have found that it's even easier to make make a lot more money than in the previous method. Erosion of the copyright system does not come at a price. It merely changes the business model around, and opens up tremendous new opportunities. And that's for everyone because it makes the process of building on the works of others easier -- and since all creativity really does come from building on the works of others, then creativity has the ability to flourish.

So, let's get rid of this myth that there's some "original content creator" and that said "original content creator" needs to be "protected." Neither point is true. Every content creator is building on the works of others, and there are plenty of business models that can be put in place easily that don't require "protection" at all. It may be more difficult for someone who makes their living helping enforce those protections to see it, but we're seeing it every day. Why block off all those innovative new content creators just because of a couple of myths?

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Directors Admit They 'Steal' Ideas... But Most People Recognize That As Inspiration

from the what's-the-real-difference? dept

Jon Lawrence points us to an article in Variety where a bunch of movie directors admit that they often look to other movies for ideas to "steal" in making their own movies. Of course, they don't really mean "steal." They mean that they use the ideas of others for inspiration and to build off of in creating their own films. Yet, these days, when there's been an ongoing push to make people think they can own ideas and concepts, that line between good ("inspiration") and bad ("stealing") seems to keep getting pushed further and further back, for no good reason at all. If people recognized that there's no real line at all, and being inspired by someone else to copy them is actually a great jumping off point for new art, we'd have a lot fewer silly lawsuits. I'm reminded of a passage in James Boyle's The Public Domain where he quotes Ray Charles on copying other musicians:

I knew back then that Nat Cole was bigger than ever. Whites could relate to him because he dealt with material they understood, and he did so with great feeling. Funny thing, but during all these years I was imitating Nat Cole, I never thought twice about it, never felt bad about copying the cat's licks. To me it was practically a science. I worked at it, I enjoyed it, I was proud of it, and I loved doing it. He was a guy everyone admired, and it just made sense to me, musical and commercial sense, to study his technique. It was something like when a young lawyer--just out of school--respects an older lawyer. He tries to get inside his mind, he studies to see how he writes up all his cases, and he's going to sound a whole lot like the older man--at least till he figures out how to get his own shit together. Today I hear some singers who I think sound like me. Joe Cocker, for instance. Man, I know that cat must sleep with my records. But I don't mind. I'm flattered; I understand. After all, I did the same thing.

Yet, these days, if you sound too much like someone else, you get sued.

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Yes, Artists Build On The Works Of Others... So Why Is It Sometimes Infringement?

from the it's-called-inspiration dept

Following on our story the other day about copyright questions concerning the "appropriated art" that became the iconic Obama campaign poster, the Wall Street Journal has an interesting article exploring the fine line between derivative works and transformative works in the art world. As you probably know, derivative works (e.g., making a movie out of a book) are considered copyright infringement, but transformative works are not.

Of course, how you define a transformative work is a big open question. The article doesn't discuss it here, but for some unexplained reason, courts have mostly determined that there is no such thing as transformative works in music -- so sampling is mostly seen as infringement. The article, instead, focuses on visual artwork, though, where courts have ruled in different ways, depending on the artwork -- leading many to consider this to be a "gray area."

It probably won't surprise many, but to me the whole concept seems silly. The history of creativity has always included the concept of taking the ideas of others (those who influenced you) and building on them. That's the history of storytelling. It's the history of joke telling. It's the history of writing. It's the history of music. It's the way art is created. And that's a good thing. Art never springs entirely from 100% original thought. It's an amalgamation of what else is out there -- put together in a new way. What's even more ridiculous is that, in almost every one of these cases, it's difficult to see how the "original" complaining artist is even remotely "harmed" by the follow-on artists. If anything, it's likely that the later art would only draw more attention to the original artist. It's just that we've built up this ridiculous culture of "ownership" of ideas, where people think that someone else doing something creative by building upon my work is somehow "stealing." It's a shame, and it's incredibly damaging to our cultural heritage -- which, of course, is exactly the opposite of what copyright law is supposed to be about.

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