Creative Control - Part 1
On a list group thingy I’m on another writer posted a link to this article on how there ain’t no such thing as original content creation, wherein the writer takes issue with the idea they find aticulated in this review, the misguided notion “that allowing others to remix content without getting permission potentially harms the "original creator." ” Nay, says Mike Masnick. Nay, nay and thrice nay! This is a myth!
Not that he’s actually tackling the real copyright issues he could be dealing with here, like the inequity of a system by which (as I learned from John Coulthart just the other day) the British art coterie’s most vacuous wank of a shuckster, Damien Hirst, can pull a MacDonalds on a young graffiti artist, Cartrain, who used an image of his crystal skull in a collage, this whorseon hustler Hurst having the fucking gall to demand £200 compensation and impound the works of an artist working in a medium that actually has some real fucking artistic balls in comparison to Hurst’s Saatchisuckling, cocktail-clique-pandering horseshit. And to do so when, to top it all, there’s a rather compelling allegation that Horseshit Hirst himself nicked the fucking idea in the first place. There’s a real issue in there to be addressed, I’d say. If “fair use” allows for a certain amount of quotation to be used in critique, surely we might argue that Cartrain’s collage is a form of critique that, as a 2D photographic image rather than a 3D replica, utilises only a part of Horsehit Hirst’s blingwankery and does so in order to embed it in a larger and substantially original work that comments on it. Homage, parody, pastiche or satire — Cartrain’s collage is, I’d say, just as valid as Bored of the Rings or any number of French & Saunders sketches spoofing Hollywood cinema. We’re living in an era of collage. We’re a remix generation, reusing and rearranging.
And Horseshit Hirst’s hypocrisy is, as Coulthart points out, demonstrated in other instances, with Hirst accused of copying anatomy set models and geometric patterns created by designers, ready to deny them credit never mind compensation if at all possible. He is himself part of the remix generation. Hell, the constant incorporation of everyday objects, found art, that began with one urinal has permeated conceptual art to the point where it’s astounding that the critics still see something innovative in this. More astounding still that the cocktail clique value Horseshit Hirst’s vacuous nothings over remixing that really actually mixes it up. Cartrain samples Hirst’s work to incorporate it in his own multi-component collage. Horseshit Hirst simply scales up the anatomy model, paints the dots in the geometric pattern different colours. Wow.
Man, if I were the judge in that case I’d get a breakdown of every fucking asset Hirst had in his name, liquid or material, add them up, times it by ten and award that to the plaintiff. Horsehit Hirst could go sell his arse in Soho to survive, cause that’s all he’s fucking good for.
But Masnick isn’t interested in where remixes might introduce originality in the mere act of arrangement. He doesn’t question the true “potentiality” of Cartrain’s collage “harming” Hirst’s, doesn’t interrogate whether there’s a credible claim of damage to his livelihood, how far a derivative work might or might not affect the original works reputation by association, whether that damage might be entirely fair game just as a critical savaging by means of parody or non-fiction hatchet job is held to be. He doesn’t address the virtual impossibility of actually getting permission in many instances where it’s just plain ludicrous to deny it. Do you have any idea how hard it is to get permission to use one fucking line of the song “Run, Rabbit, Run” in a novel, the copyright to the lyrics not even owned by its original wartime lyricist or even his estate, but held by some moneygrubbing company that exists solely to capitalise on it? They’re not going to charge you for it. They’re just not going to fucking answer you. So trust me, there’s a whole lot to say, as far as I’m concerned, about the idea that we just plain shouldn’t allow others to remix content without permission because it potentially harms the original creator. But this is not what Masnick addresses. He just says there is no 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).”
As I’ve said, we’re living in the remix generation, but there’s so much of the wrong in this paragraph I barely know where to start. Let’s start with the end then, cause it lets me get shouty.
On Serfs and Samples
“That would be a tremendous hindrance on creation -- rather than progress (as the Constitution intends).”
Shut the fuck up about your fucking shitrag fucking Consti-fucking-tution. I don’t give a fuck for it and all your bullshit Americanist pseudo-Enlightenment rhetoric of progress. Take that shitrag, take your flag, take your lip-service to freedom and democracy too, roll it all up into one Jeff Stryker sized dildo of a bundle and shove it where the sun don’t shine and where you’re talking out of. Do I care what the Constitution intends? Do I care what your 18th Century knock-off of the Declaration of Arbroath had to say about art in an era before mass-production, global capitalism and American corporate imperialism? Do I buy into its denial of the principle of droit d’auteur which the courts in civilised countries base their copyright legislation on? No. Your appeal to the authority of the Holy Holy Fucking Holiest of Holies Hallowed Be Thy Name on the Dotted Line Constitution holds zero weight with me. Zero. Cause this US notion that copyright is about patting creators on the back so they’ll keep on with the work they’re doing… this is basically akin to an argument that you have to feed your indentured serfs because it makes them less likely to run away. Not because you owe them food for their toil but because it’ll negatively affect productivity. Bollocks to that, mate. I am not society’s fucking indentured serf and copyright is not a scrap I’m thrown from the master’s table just so I’ll be a good lackey and keep on at the toil. If you value work you can damn well recognise the rights of the worker.
Progress? Christ, I know you get brainwashed into believing a whole lot of bullshit, the Romantic rhetoric of the Land of the Free and Home of the Brave, but give us a fucking break already. Your nation was built on slavery. That was fucking “progress”. Was that “intended” by the Constitution? If we get more “progress” by allowing one man with privilege and power to ruthlessly exploit the unrecompensed toil of a hundred others, is that A-OK because we don’t want to place a “tremendous hindrance” on his capacity to do so? Because those plantation owners are building a new nation, taming the wilderness, and it’s all in the name of “progress”? No? Then shut the fuck up with this empty rhetoric of freedom which simply translates to the freedom to exploit, and let’s got down to business.
“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.”
Wrong and wrong and wrong again. A little less wrong on the last count, maybe, but completely wrong on the other two. Actually those two halves of the sentence don’t relate at all, as simply accepting intellectually that an original creator “deserves” something in terms of recognition of their role in production, recompense for said production or regulatory power over production is not the same thing as legislating that acceptance into practical measures. But let’s assume that by “pretending” you mean “recognising in law”. So how does recognising the creator’s right to these three privileges affect the creation of new works? Does it really mean that none could be created at all without getting permission? None? This is just so absurd it’s risible. I’d point to the millions of works that simply aren’t derivative, that simply don’t sample at all from a source work, as examples which could be done without getting permission simply because there’s no one to get permission from, but this assertion is born of the crucial logic leap we haven’t dealt with yet — the idea, at the heart of the article, that all works are derivative — so I’ll come back to that. Instead I’ll simply point to works like Joyce’s Ulysses which do base themselves closely on a source work but with which there’s no need to get permission because the original creator is long dead, their work long-since passed into the public domain. You want to do a remix of Euripedes’ The Bacchae, rewrite it as a Harlequin play featuring your own personal cast of archetypal players? You don’t need to dig up Euripedes, tip your hat to him, bung a fiver in his hand and offer him editorial oversight on your crazy cubist fantasy novel. All of those privileges are time-limited, mate. Even if collage is your thing, there’s a whole lot of material in the public domain. Millennia of it. Samples? Man, I use the entire text of The Bacchae as a backbeat in INK.
But what about remixing more recent works? If you want to use a line from “Run, Rabbit, Run” in a novel, for example, what strictures does it’s being in copyright place on you. Does it mean you just can’t write your novel at all. Let’s take these privileges one by one. Credit doesn’t change anything. Requiring attribution of a source means just that — requiring attribution. If the law simply said that I had to include an acknowledgement of the lyricist’s copyright on the same page as my own, I’d have been a happy puppy. And frankly, it’s hardly a fucking draconian imposition to expect one writer to have the fucking decency to acknowledge their debt to another, where they’re directly sampling someone else’s work. It’s called integrity. Money doesn’t actually change anything either, you know. This song lyric is a very good example, actually, cause having suffered the wild goose chase of trying to get permission to use “Run, Rabbit, Run” and having joined PRS and MCPS as a songwriter as the easiest way to gather royalties for the lyrics to “If You Love Me You’d Destroy Me”, I now know how automated it can be in the right circumstances. If you write a song, you don’t get your royalties direct from the label. You register at these bodies and they sort it all out for you. CD sales, airplay, use on adverts, being played at night-clubs, live performance — all of these potential usages you can give blanket licences to (and probably would in general, except maybe for adverts, if you don’t wnat your song used to sell shit as shinola). Anybody wants to use your song on radio, on a soundtrack to a TV programme, or wherever, all they need do in most cases is go on a website and chuck some pennies at it for a license. It’s not onerous, it’s not expensive and it’s not contingent on the musician’s permission. Most likely they’ve already given it. Had there simply been an option for “quote lyrics in novel” I could have chucked those few pennies in and used “Run, Rabbit, Run” no problem. Which brings us to the third privilege: control. The only stricture that actually affects the creation of derivative works. The only one that actually necessitates getting permission. Which I can say with some muttered discontent over my personal experience of singularly failing to be able to navigate passage through a licensing system not set up to automate control as regards the quotation of song lyrics in a work of fiction. With a non-standard usage request that had to be sent by direct email to a faceless company with no apparent interest in responding, in the end I had to admit defeat and play it safe by writing a surrogate snatch of song.
But that’s the thing. This terrible stricture didn’t bring the whole project crashing down around me in flames. Did I throw my hands up in despair? Did I cry out to the gods of copyright, “Why hast thou forshafted me?! Verily all I want is to do my new creative work, and lo, this work can not now be done for it requires getting permission that I can not get! Damn this pretence that there’s an original creator who deserves credit, money or control!”?
No, I simply wrote something else that didn’t require getting permission. It may sound like a staggering concept, but actually it’s not that difficult. Writers do it every fucking day, mate. Novels, novellas, short stories, plays, poems, songs and fucking all-out musical spectacular spectaculars. It’s not fucking hard to do your “new creative works” without getting permission because requirements to give credit, cash or control to the original creator hardly fucking restrict you if you are the original creator. Do I give permission to myself to use this line of this song I’ve just made up, in this novel I’m writing? Hmm, let me think about it and get back to me. See, as far as the law is concerned with respect to these privileges, if you create something original then you’re its original creator. In fact, your work doesn’t even have to be wildly different to be considered your original creation by dint of the fact that you fucking created it. You want a surrogate song to replace “Run, Rabbit, Run”? Well, you can even model yours so closely on that song that the reference is obvious — the same rhythm, the same basic sense in the lyrics, (hey little bunny rabbit, you better scoot toot-sweet, cause the farmers on his way with his gun,) and so on. Plagiarism is pretty strictly defined. The degree to which one work has to, without permission, copy the specific detail of another — rather than just bear a resemblance born of inspiration and/or shared intent — in order to constitute a breach of copyright, is pretty strictly defined. And anything which doesn’t fit that definition… that’s original.
Masneck’s core thesis is a straw man. Hell, it’s a twenty foot tall straw man, on fire, with Edward Woodward trapped inside, shouting, “Oh, Jesus Christ! Oh, Jesus Christ!” 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? This is just patently not how it works. We do accept in law that there’s a true original creator. We do accept that they deserve credit, money and control. We do even have it written into laws that limit one creator’s ability to reuse another’s work without permission. None of this prevents new creative work being done. In fact, it pretty much defines what “new creative work” is in direct contrast to derivative work and gives us carte blanche with the former. Not only that, it doesn’t rule out the latter, just requires us to gain consent in that fraction of the cases where the source work is not in the public domain. Other than that small fraction of works still under copyright, the whole history of literature is open to us, from Glgamesh on. The whole history of art is open to us, from the cave-paintings of Lascaux on. Use this to your heart’s consent, the law tells us. All of this is yours now. It belongs to your generation. We only require, legally speaking, that credit, money or control in the case of living creators or the inheritors of their estate for a set period of time after that creator’s death. We think that’s a just reward for that creator’s contribution to our culture.
[Next: The Cons of Copyright; Standing on the Shoulders of Giants]