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

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  1. identicon
    TonsoTunez, 5 Jul 2009 @ 9:16am

    Re: It's The Expression of an Idea That Counts

    "As any basic instruction in economics and unintended consequences will tell you, the unintended consequences of gov't back monopolies will usually harm the overall market...

    Mike, your attempts at economic voodoo have been soundly debunked throughout this thread, so, I don't need to go there - but let's go here ... in your zeal to have the copyright law neutered in such a way as to remove all economic incentives for those who create, why don't we apply a little quid pro quo by making it illegal for anyone who currently uses music to make a profit to do so.

    For example let's make it illegal for Google and its various services, including YouTube, to earn a dime from any service that includes music.

    Let's make it illegal for radio and TV to profit when music is part of an attraction.

    Let's make sure that any restaurant or bar that uses music as part of their ambiance doesn't charge for food.

    As for the members of the Consumers Electronic Association let's be sure they aren't allowed make a profit from any electronic products that deliver music to the pubic. Apple, for example, should give ipods and iphones away at no charge.

    And, shouldn't concert promoters and theater owners be forbidden to present programs that include music?

    And, what about the scavengers feeding off the death of Michael Jackson, why should they be allowed to include any of his music in any of their offerings?

    What about the good ol' ISPs? Should they be allowed to charge for any part of their service that delivers music to their subscribers?

    As for our open source friends, shouldn't they be forbidden from creating any products that facilitates the delivery of music?

    On January 13, 1864, world renowned composer, Stephen Foster, died at age 37 with 38 cents in his pocket. Foster's only real income was the royalty he earned on sheet-music sales. Altogether he made $15,091.08 in royalties during his lifetime (his yearly average was $1,371 for his 11 most productive years). His heirs, Jane and Marion equally, later earned $4,199 in royalties, so that the total known royalties on his songs amounted to $19,290. (

    There was no copyright protection in place for Foster at the time ... and the multitudes of technologies we have today that rake in huge sums of money by being conduits for music didn't exist either.

    Your proposals would condemn all creators to an economic life similar to that of Stephen Foster by stripping them of their rights granted by the copyright law. If that were to come to pass, it seems to me it would only be fair to restrict profit making technologies from advancing their businesses on the backs of music and those who create it.

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