Back in May, we wrote about the amazingremixed autotuned "rap remix" of the infamous Slap Chop infomercial. In the post, we noted that the ad was almost certainly infringing on basic copyright, but it was actually doing an amazing job attracting more attention to the product. It's much more entertaining than the original ad itself. And, amazingly, it looks like the folks behind Slap Chop (no slouches when it comes to recognizing viral ways to get their message out to the world) have embraced the remix. Details are minimal, but Lee points us to the news that the remix is going to start airing on TV as a real commercial for the Slap Chop:
Once again, it's great to see the convergence of a few different things we talk about here, including how advertising is content and content is advertising, along with a better way to respond to "infringement," by recognizing how you can take advantage of it, rather than breaking out the lawyers and threatening to sue.
from the because-they're-scared-to-death-they'll-lose dept
Peter Friedman has another wonderful post, discussing why music is the "main battleground" in the copyright wars, raising a few good points -- including the idea that music master tapes are dying in vaults, causing locked up music to disappear, and highlighting a troubling series of case law decisions that seem to entirely ignore the concept of fair use when it comes to music (some of which we've discussed in the past here).
But the most interesting point may come at the end, when he brings up something that's been confusing here as well: how come Greg Gillis -- better known as Girl Talk, the popular mashup musician -- hasn't been sued yet. Especially since his Feed the Animals CD came out, generating a ton of publicity and popular press coverage (and sampled from hundreds of songs), pretty much everyone has been waiting for him to get sued. Friedman tosses out a suggestion that makes a lot of sense: the recording industry is scared to death that a court will rule in Girl Talk's favor and return "fair use" to music:
Well, I think I am a lawyer just like the lawyers representing Metallica, the Guess Who, and anyone else whose work has been sampled and repurposed by Gillis. And if were advising one of these clients (or I were representing the RIAA and could influence the lawyers for Metallica and the Guess Who), I would advise that client not to sue Girl Talk; Gillis's argument that he has transformed the copyrighted materials sufficiently that his work constitutes non-inringing fair use is just too good. I'd go after someone I am more likely to beat. Othewise, I'd lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand Upright Music and Bridgeport Music.
When asked, Gillis has repeatedly stated that if he's sued he believes he has a strong fair use defense. Perhaps the lawyers at the record labels (and representing certain musicians) have all recognized the same thing. Gillis will almost certainly win in court, and all those terribly decided cases that ignore fair use in music will get pushed aside.
Greg Gillis (aka Girl Talk) recently participated in a live chat as part of a Download Decade series run by the Globe and Mail. Gillis makes music entirely from samples, combining existing songs in creative ways to make something new. His last album, which was offered as a pay-what-you-want download, used over 300 samples. Even though he's been held up in Congress as an example of why traditional copyright laws might no longer make sense, it seems like a lawsuit is inevitable because Gillis doesn't license any of the samples he uses. Yet, there has been no legal action to date (knock on wood!). Gillis argues that his sampling is fair use because it's transformative, but that hasn't been tested in court.
In the chat, he responded to a question I raised about why he uses a noncommercial license for his music (as he makes commercial use of others' works), arguing that transformative fair use would still allow commercial use of his music and noting that his label suggested the noncommercial license as a "safe move." Gillis was also asked whether he's surprised that he still hasn't faced a lawsuit, even though his profile has been much higher in the past few years.
Kind of. I believe in what I'm doing. I do not think it should be illegal. But at the same time, if you look at the history of sample-based music, it is somewhat surprising. Biz Markie, 2 Live Crew, Danger Mouse, Negativland, etc. Those are the people who laid the groundwork. They all had issues.
He notes that he was under the radar with his first couple albums, but since 2006, it's been hard for him to ignore publications like the Rolling Stone and the New York Times talking about how he's going to get sued. Yet, no lawsuits. He says times are changing.
The way the general public views intellectual property in 2009 is much different than in 1999. Look around the internet. So much content comes from pre-existing media. We're used to it now. Christian Bale goes crazy on the set of T4. That turns into a techno song, which then turns into a cartoon on YouTube, which will then turn into a T-shirt. Everyone is constantly exchanging ideas and building upon previously existing material. So the idea of a remix being a real artform is being validated in our culture every day.
Certainly, artists like Girl Talk, as well as others ranging from DJ Kutiman to the creator of the "rap chop" video, have been debunking the myths about "original" content, showing people that remixing can be creative and original and that it contributes to culture. Still, there are plenty of people who believe otherwise. Hopefully, Gillis continues to avoid legal troubles, though I don't think things have changed so much that this isn't still a huge risk. But, insofar as the remix is increasingly validated as an art form, perhaps a lawsuit would end up highlighting the limits that copyright law places on artistic expression nowadays.
Blaise Alleyne is an expert at the Insight Community. To get insight and analysis from Blaise Alleyne and other experts on challenges your company faces, click here.
Xanthir writes in to point to this Guardian article about viral videos that highlights the "Rap Chop" video that's currently got over a million views on YouTube. If you haven't seen it (and I hadn't), it's basically taking a silly infomercial for an "as seen on TV" chopping device, which you can see here:
... and remixed it into a techno tune, with some music, cuts and (of course) Autotune to turn the guy's voice into music, and you get this:
As both Xanthir and the writer at the Guardian note, after watching the remix, they felt like buying the device. Either way, once again, we're seeing the convergence of a few different topics we tend to talk about here, including the creativity of remixed content and the benefits of making advertising into really good and desirable content, so it doesn't even feel like advertising. And, of course, there are copyright questions. The video is almost certainly infringing on the original, but it's yet another example where it would be a bad idea to try to enforce the copyright (and it doesn't look like the company has even tried to do so, which is good).
At the beginning of the month we were one of the first to write about the amazing Thru-You "album" created by a DJ named Kutiman, who took individual sounds off of YouTube and mixed them into a full album. I've always been a believer in the concept that remixing something is a creative endeavor in its own right, but I'd never seen the point driven home quite as clearly as in this album. Not suprisingly, Kutiman has received plenty of well-deserved attention for the project, and Wired is running a great interview with him that's well worth reading. The idea that what he's done is almost certainly illegal and copyright infringement (he seems incredulous at the idea) should be a clear indication that something is wrong with the current copyright regime.
But, again, there's this false belief out there that "remixing" is simply copying. But I defy anyone to explain how taking a simple kid playing a scale on a trumpet could become integral to an entire (great) funk song. Here's the trumpet bit:
And here's the full song:
Or how about this basic trombone solo becoming such a haunting and compelling part of this dub reggae song (trombone comes in at 42 seconds). Here's the trombone:
And here's the full song:
To say that's "copying" or even just derivative is insulting to the amazing creativity and work of Kutiman to blend all these totally separate sounds into something amazing. Just as a musician plays notes on an instrument, Kutiman used YouTube as his instrument and created something amazing and wonderful... that probably breaks a ton of copyright laws. It's difficult to see how anyone could claim that's not a massive problem.
Larry Lessig's most recent book, Remix, focuses on just how common it is for people today to take existing content and "remix" it in new, useful and creative means. The problem, however, is that in almost every case this violates some aspect of copyright law. This, of course, is backwards. It's the opposite of what copyright law is intended to do. When it comes to remixed content, rather than encouraging creativity, copyright law ends up discouraging creativity. So, I'm guessing that UK gov't officials haven't read the book, as they've just turned down a request to "exempt" user-generated "mashups" from copyright law. The officials do make some valid points: including questioning whether you really can separate those who "create" vs. those who "remix." However, it is still quite troubling that such creativity is so often-stifled.
We were already quite surprised when ASCAP set up a private lunch to come up with ways to "counter" the viewpoints of folks like Larry Lessig and various "free culture" supporters. After all, songwriters who have been embracing those concepts are making more money because of it. The problem, of course, is that those means often don't send that money through ASCAP. Still, as an organization that claims it represents the interests of songwriters, you would think they'd be thrilled to have songwriters make more money. Instead, it appears they would like to have songwriters make less money, and to attack Larry Lessig in the process.
Their latest move was to send out an email to members with links to various articles and commentaries that try to undermine Lessig's ideas. It's basically ASCAP propaganda. I guess they're afraid that songwriters might discover that they don't actually have to be beholden to ASCAP to make money.
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?
Last night, Larry Lessig went on The Colbert Report to talk up his latest book Remix. While I think Remix is an important book and Lessig is a brilliant commentator on these issues, I was a little disappointed by the performance, but I'm willing to chalk it up to the fact that appearing opposite Colbert is incredibly difficult (almost impossible), and Colbert is the best at throwing interviewees off their game.
Of course, pretty much everything Colbert does is satire, and included in the video was the joking suggestion that no one take the video and remix it. Colbert, of course, has been one of the champions of getting folks to remix videos for him. So, obviously, the idea was to get more folks to remix.
Lawrence Lessig's REMIX has been removed at the request of Penguin Publishers.
At this point, it's unclear what exactly has been removed. The video of the interview is still online, so that's not what's been removed. Some are wondering if Colbert originally posted a downloadable copy of the book itself that has been removed. Many folks have noticed that Remix is not available for download, despite promises that it would be. Apparently, the free version of the book has been delayed until May, which is pretty lame, itself. And, then, of course, there's the possibility that the "removal" notice itself is just a Colbert joke -- though, it almost seems too subtle for Colbert's style of humor. If anyone has more info on what happened here, it would be great to know. Update: Adam Green, who works with Lessig and was at the taping stopped by to say, indeed, that it was a joke. If so, it's a bit odd, since they never even bothered to make clear what it was that was taken down.
We just covered Larry Lessig's recent opinion piece about how to save remix culture (which, tragically, was entitled "a defense of piracy" -- which it's not). However, that was just a teaser from his new book, REMIX, which has now been released. And, of course, true to form, Lessig will soon release a copy of the book online for remixing purposes. And, as Mathew Ingram tells us, today an "open source documentary about copyright and culture" called RiP: A Remix Manifesto is premiering as well. That movie was made, in part, with the help of many people working on making it better. Here's the trailer:
The movie apparently focuses on Gregg Gillis, better known as Girl Talk, the remix artist we've discussed in the past plenty of times. It certainly looks like the book and the documentary will go together well (Lessig appears in the film), and hopefully will get people realizing that creativity has always involved standing on the shoulders of giants, and being able to improve on the works of those who came before you -- and with draconian copyright laws, we're often stamping out that possibility.
Larry Lessig has a fantastic op-ed essay in the Wall Street Journal that tries to defend "remix
culture" from draconian copyright laws that have made it illegal to build new creative
works on the works of others. Not surprisingly, he makes some important points:
This war must end. It is time we recognize that we can't kill this creativity. We can only criminalize it. We can't stop our kids from using these tools to create, or make them passive. We can only drive it underground, or make them "pirates." And the question we as a society must focus on is whether this is any good. Our kids live in an age of prohibition, where more and more of what seems to them to be ordinary behavior is against the law. They recognize it as against the law. They see themselves as "criminals." They begin to get used to the idea.
That recognition is corrosive. It is corrupting of the very idea of the rule of law. And when we reckon the cost of this corruption, any losses of the content industry pale in comparison.
Copyright law must be changed.
It's definitely worth reading, and then considering the five suggestions he puts forth for
how copyright can be fixed, though I disagree with him on whether or not his suggestions
would actually work. I think they would significantly improve things from the way they
are today, but Lessig still seems to think that there's a way to "thread the needle" by
distinguishing between commercial works and non-commercial works. The more I look, the
less possible I think it is to distinguish between the two in any meaningful way.
Furthermore, Lessig's solutions are focused very much on
trying to "balance" the rights of amateur creative types with professional creative types.
However, I think if you look at the economics and historical record, there's no need to
create "balance." If content creators started adapting new business models, both can
succeed tremendously, without having to worry about any kind of balance. A true solution
suits both sides perfectly, benefiting both, without either side having to "balance" with
the other.
It's been clear for quite some time that Radiohead more or less stumbled into its position as "embracing" new music distribution models. The band has admitted that the idea of doing a name your own price download offering was suggested by the band's manager just before they put the album online. They didn't really think it through, they just did it. And, since then, it's been clear that the band doesn't quite grasp the wider economics of what it's doing. It never made sense for the band to get rid of the download offering, but it did. And now, the band is getting some publicity for asking its fans to remix a new single from the band, apparently a song the band has struggled to complete for quite a while. However, the details are anything but fan friendly. Fans are asked to buy the five separate tracks (bass, voice, guitar, strings/effects and drums) and only once all five have been bought are they given access to a program to mix the tracks. And, as a bunch of readers have sent in, the terms are not particularly friendly -- basically saying that the fans have no rights whatsoever, Radiohead gets everything and no one should expect any prizes for participating. In other words, this is Radiohead getting fans to pay the band to do its work.
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